MMMm'MWKma CJorn^U IHam ^rlyonl Hihtatrg Cornell University Library KF9002.G731855 •■' A treatise on the law of new trials in c H Cornell University B Library The original of tliis book is in tlie Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020121194 A TREATISE LAW OF NEW TRIALS, IN CASES CIVIL A.ND CRIMINAL. Bt DAVID GRAHAM, OOTJNSELLO:^-^SV. Siecond Edition^ REYISBD AND COBUBOTED, WITH A PULL ANALYSIS OP BACH CHAPTBE. NEW YOEK: BANKS, GOULD & CO., 144 NASSAU-ST. ALBAISTY : GOULD, BANKS & CO., 4^5 BROADWAY. 1855 Entered aooording to the Act of Congress, in the year eighteen hundred and thirty- four, by the Attthob, in the Clerk's Office of the District Court of the Southern District of New York. Entered according to the Act of Congress, in the year eighteen hundred and fifty- five, by the Next or Kiir of the Atjthoe, in the Clerk's Office of the District Court of the Southern District of New York. TO THE HON. JOHN SAVAGE, omEP jDsnoB OP thb supeemb ooukt op the state op new toek, THE FOLLOWING WORK IS MOST EBSPBOTFDLLT INSCBIBED BY THE AUTHCjp. PREFACE. The principal object of this work is, to aid tlie junior mem- bers of the profession in a branch of practice of daily occurrence. It was thought that, to supply the place of experience to this most interesting portion of the bar, and prepare them with ready materials for almost every emergency, by collecting, arranging and exemplifying the rules regulating new trials, an acceptable service would be rendered to the profession. It is a singular fact, that while other legal topics, of much less interest to the practitioner; are exhausted by elaborate treatises and digests, without end, the subject of new trials, so intimately connected with the progress of the great mass of causes, should have been, in a great measure, overlooked. The only attempts, devoted professedly to this subject, that have met the author's eye, are Grrant's "Summary," and Morgan's "^Essay ;" the former, a mere syllabus, intermingling brief discussions with occasional examples, confined to a few rules, and to the leading cases in England ; the latter, a mass of precedents without arrangement, Set out in extenso, as found in the reports. These works, together with the digests on this title of practice, have been carefully examined, but without reference. The ex- amples, being common property, are taken directly from the Vol I. 1 vi PREFACE. reports into this work, after having condensed the narratives, and, in many instances, abbreviated the decisions, that nothing extraneous might appear, to embarrass or confound the illus- tration. One great object of the work, throughout, has been simplicity. With this view, such rules, only, as have been definitely marked with a sufficiently palpable line of discrimination, have been in- troduced, carefully avoiding subtle distinctions, the bane of all elementary works. For a similar reason, exceptions have not been multiplied, nor any notice taken of obscure decisions, nor of the dicta, nor obiter opinions of judges, however eminent, nor of their excursive flights of speculation upon ideal cases. How- ever these things might have amused by their novelty, or sup- plied materials for plausible argument, it was believed they could contribute nothing of real value to the profession. Following out the idea of simplicity, the plan most likely to accomplish it, appeared to be, to take up the causes for new trials in the natural order in which they arise previous to, upon and after, th'e first trial ; and in order to illustrate each, to state the rule, to. adduce leading cases as examples, from the English^ courts and courts of highest character in this country, in a condensed -form, and to superadd parallel cases, in the same, or in other courts, by way of reference, — not merely to illustrate the rule, but to supply the practitioner with such a profusion of materials, such an imposing mass of authority, as might repel every doubt, and carry conviction into' the breasts of the judges. Although the work has been executed with special reference to the state of New York, it is hoped it may be found of general utility. The rules it professes to illustrate, the reasons of. those rules, and examples adduced, acknowledge no locality. They PSif)!? A.u£i> I Vll sTe not to be circumscribed within territorial limits; but were selected without discrimination or preference as to country. The object was, to collect decisions, combining clear argument with high authority, around every succeeding rule. Where both could not be found uniting, and intelligent opinions have ap- |)eared in the reports of courts comparatively obscure, they have ■not for that reason been overlooked.' It will be perceived that, in some instances, the same cases are introduced more than OHce. In a great proportion of them, more than one point, and -in many instances, several are adjudi- -eated. When re-introduced, -they illustrate, in each instance, a •distinct principle, and are noticed in relation to that principle ^lone, referring for the general narrative of the case to its first introduction. It may be thought, the author ought to have pledged his own •opinions in doubtful cases, or at least have attempted to reconcile apparently conflicting decisions. This has been studiously avoided, from a conviction that little is to be gained to the pro- fession by the opinions of a writer, where the judges disagree; and that he best discharges his duty to the profession, by confin> ing himself to well established rules. , It might be gratifying to the writer, it is true, to indulge in- metaphysical discussions, upon abstract principles of doubtful operation ; but it is an indulgence at the expense of the understanding of his reader, a mere parade ■of words without power, an arrogant attempt to cut, instead of untwisting, the nodus judice dignus. In the presence of the great oracles of the law, giving out their contradictory or ambiguous responses, a writer probably best consults his own reputation, by silence and submission. The subject itself is of unbounded extent. It travels into the undiscovered bourne of judicial discretion, whose extent is as un- Vlll PREFACE. definable, as the principles by which it professes to be governed are immutable. As far as judicial decisions, in given cases, have been adjudicated, so far it is Reasonably to be expected a work of this kind ought to classify them under their appropriate rules. Beyond this, it is the terra incognita of the profession, where the judge may answer every question as he of Byzantum did the spirited interrogation of the young advocate, " what have the laws ordered in such a case ?" " What I please," was the laconic reply. To aid in guiding and limiting this discretion, is all the en- suing work contemplates, and upon this, its sole pretensions to merit, if it have any, entirely rest. To what extent it ought to be appreciated, will appear by reflecting that whatever, in the administration of justice, is surrendered to judicial discretion, is conceded to be without law. And what is the substitute ? Let Lord Camden answer. " The discretion of a judge is the law of tyrants ; it is always unknown ; it is different in different men ; it is casual, and depends upon constitution, temper, passion. In the best, it is oftentimes caprice ; in the worst, it is every vice, folly and passion to which human nature is liable." GOKTEl^TS. INTRODUCTION. CHAPTER I. WAITT OP DUB NOTICE 01 TRIAL. Pag«- 1. Justice requires, if Jihere be no notice," or if it be insufficient, there having been in truth no trial, that the verdict be set aside, unless the defendant have appeared and made his defence, which will be construed into a waiver, ........ 11 2. So, where there are two or more actions depending between the same par- ties, should the notice of trial be for one case only, and the defendant thereby disconcerted iu preparing his defence, and the plaintiff take a ver- dict, a new trial will be granted, ..... 14 3. But upon a motion for a new trial, on account of the insufficiency of the no- tice, the court will inquire whether the defendant could reasonably be mis- led, and will grant or refuse the motion in their discretion, . . 16 4. Should injustice be done, however, by retaining the verdict, the inquest will be set aside, and a new trial granted, .... IT CHAPTER II. FOB IREBGUliABITT IN EMPANNBLma THE JORT. 1. The verdict has been set aside where some of the jurors have been noto- riously deficient in property, or the personal qualifications required by law, or when personated by others, . ' . . . . 19 2. But, if the juror be qualified in other respects, the verdict will not be set aside upon the ground of his personating another through misapprehen- sion, wben no injustice has been done, .... 24 3. A variance in the name of one of the jurors, and that whether Christian or surname, has been held fatal, and a new trial ordered, . . 27 4. And it has been held, that if one of the regular panel be challenged and set aside, and afterwards be sworn upon the jury as a talesman, especially If the party were ignorant of the fact, a new trial will be granted, . 33 X CONTENTS'. Page 5. It is a' general rule to refuse a new trial for the mistakes or omissions of officers charged with the summoning and erapanneling of the jury where no fraud or collusion is intended, or injury to the parties ensues, . 35 6i The objection to a grand juror, by reason of partiality and dislike, or want of the qualification of property, must.be taken before indictment found, otherwise it would not avail to quash the prooeedmga, much less to set aside the verdict, . . . ... . . 4* CHAPTER III. FOR MISCONDUCT Or THE PEBTAILINO PAETT, HIS ASBNTS OB COUNSEL, Oil THE TRIAL. 1. If papers, not previously submitted, be surreptitiously handed to the 'jury, bearing materially on the point at issue, it will avoid the verdict,. . 45 2. If the party, or any. one on his behalf, directly approach a juror on the sub- ject of the trial, a new trial will be granted, ... 48 3. But if insidious attempts of this kind be known to, and it be in th« power of, the other party to have it corrected, and he neglect, the objection will not avail to set aside the verdict, ..... 5^' 4. If indirect measures are resorted to, to prejudice the jury, although the party may disclaim all knowledge and participation, a new trial will be granted, 54 6. It is a general rule, that all disingenuous attempts to stifle or suppress evi- dence, or to thwart the proceedings, or to obtain an unconscionable ad- vantage, or to mislead the court and jury, will be defeated, by setting aside the verdict, ......... 5ft CHAPTER IV. rOR MISCONDUCT (W THE JUET. 1. If at any time intermediate the opening of the cause and their rendering of the verdict, the jurors suffer themselves to be approachei aiboth in England and this country, to reject the affidavits of jurors inculpating themselves, . Ill II. But for the purpose of explaining, correcting and enforcing their verdict, the affidavits of jurors will be received, on motion for a new trial, . 116 12. When the jury render a perverse verdict, or one manifestly the result of prejudice or passion, and especially if they refuse to give their reasons, the verdict will be set aside, . . . . . 121 13. But the court will not permit affidavits to be received, imputing improper motives to the jury, or tending to impeach their integrity, . . 126 CHAPTER '.v. BY EBASOW OP A VOrO TEEDICT. 1. If the jury find contrary to the record, the verdict is void, . . 132 2. If the verdict find a matter entirely out of the issue, it is void, . . 135 3. If the jury find only part of the issue, judgment cannot be entered on the verdict. It is void for the whole, .and a vmire de novo will be awarded, 140 4. If the verdict be defective or imperfect, so that no judgment can be entered on it, it will be set aside, ...... 145 5. If the jury find a verdict in the alternative, or in terms so imperfect and un- certain that judgment cannot be entered upon it, the verdict will be set aside, ........ 150 6. An argumentative verdict is void, and will be set aside on motion and a new trial gran'ed, . . , . . , . -Ibl xii CONTENTS. CHAPTER VI. NEW TEIALS, OOOASIONBD BY ABSENCE, SUEPEIgE, OE MISTAKE. Pag« 1. "When the party or his counsel are absent, through misapprehension or ne- cessity, and the cause goes to the jury undefended, and there are merits, the court jwiH relieve by setting aside the verdict, . . 162 2. "Where a party or his counsel are taken by surprise, whether Vy fraud or ac- cident, on a material point or circumstance, "Which could not reasonably have been anticipated, and when want of skill, care, or attention, cannot .be justly imputed, and injustice has been done, a new trial will be granted, ........ 168 3. But, to entitle the party to relief there must be merits, and the surprise must be such as care and prudence could not provide against. The slightest negligence will defeat the application, or occasion the imposition of rigorous terms, ....... 1'74 4. When, in the progress of the trial, the cause suffers injustice from the honest mistake of the party or his counsel, relief will be extended by granting a new trial, ........ 180 5. But the court will not relieve the party from the consequences of mere igno- rance, inadvertence or neglect, by granting a new trial, . . 18? 6. If evidence be not objected to when offered, it will be considered as waived, and cannot sustain a motion for a new trial, under the pretext of surprise or mistake, ........ 199 CHAPTER VII. NEW TRIALS OOOASIONED BY THE WITNESSES. 1. The non-attendance of a material witness, or the absence of a material piece of testimony, contrary to reasonable expectation, and satisfactorily account- ed for, will induce the court to set aside the verdict and grant a new triali • • . . . . . .209 2. The sudden indisposition, and the mistake and surprise of witnesses, have been held grounds for granting or refusing a new trial, according to the circumstances of the ease, ...... 214 3. Neither a direct impeachment of the veracity of the witnesses, nor aflSda- vils of perjury, nor even an indictment for conspiracy or perjury, unless the case is so gross as to make it probable the verdict was obtained by perjury, or that the false testimony occasioned a surprise upon the party, will be sufficient cause to set aside a verdict and grant a new tri.il, 221 4. Intimately connected with the preceding rule is this, that a new trial will not be granted, to furnish an opportunity to impeach a witness, upon a subse- quent discovery of his interest or turpitude, or general bad character, 228 CONTENTS. xiii CHAPTER YIII. KB"W" TRIALS, rOE THE ADMISSION AND REJECTION OF TESTIMONT. Page. 1. If the judge at the trial decide to admit illegal testimony on the merits, the verdict will be set aside and a new trial granted, . . 23t 2. If the judge, at the trial, exclude legal testimony on the matter in issue, the verdict will be set aside, and a new trial granted, . . 252 CHAPTER IX. NEW TRIALS FOR MISDmECTION OP THE JUDGE. 1. If the judge at the trial misdirect the jury ■on matters of law, material to the . issue, whatever may be the nature of the case, the verdict will be set aside and a new trial granted, ..... 262 2. "With a like scrupulous attention to the rules of law that ought to govern the coarg«, it has been held to be erroneous in a judge to instruct a jury, that they may indulge a presumption not warranted by the evidence dis- closed, ........ 211 3. The omission of the judge to charge the jury on questions of law, though not of itself a reason for granting a new trial ; yet if, in the absence of proper instructions, the jury should err, the verdict will be ,set aside, and a new trial granted, ...... 213 i. If the judge send the case to the jury when he ought to have non-suited, the verdict will be set aside, ..... 278 5. If the judge give in charge to the jury questions of law, or if, where the issue consists of a mixed question of law and fact, the judge submits the whole issue to the jury, a new trial will be granted, . . 288 6. In ordinary oases, notwithstandinga misdirection, if the court see that jus- tice has been done, and that a new trial ought to produce the same result, a new trial will not be granted, . . . . . 301 1. When the judge interposes his opinion strongly on the facts, and it is to be fairly presumed the influence of his opinion has misled the jury, and injus- tice follows, the verdict will be set aside, .... 310 8. Where the judge instructs correctly on points of law, a verdict will not be , set aside on the ground of misdirection, although he may casually express his opinion on the evidence, as he proceeds in his charge, . . 311 CHAPTER X. VERDICT AGAINST LAW. 1, It is a general rule, that if the finding of the jury be clearly against law, the verdict will be set aside and a new trial granted, . . . 326 xiv CONTENTS. Page 2. But if justice has been done, the court will not, against the equity of the case, disturb a verdict upon the ground of a technical objection, . 341 3. Nor will the court set aside the verdict in trifling actions, although the jury- may have found against law, ..... 347 4. But where an important principle is involved, and the verdict is to be fol- lowed by serious consequences to the party against whom it is found, if against law, a new trial will be granted, without regard to the amount or any other collateral inatter, . / . . . . . 350 5. It is a general rule, with but few exceptions, that in penal, and what are denominated hard actions, the court will not set aside the verdict, if for the defendant, although there may -have been a departure from strict law, in the finding of the jury, ...... 353 6. When the plaintiff would be entitled to the benefit of the verdict in another form of action, the court will not turn him round, by setting aside the ver- dict upon the ground that he hasr not framed his action with technical pre- cision, ........ 351 CHAPTER XI. VERDICT AUAINST BVrDBNOB. 1. Where the case has never, been fully submitted on its merits, or the verdict is bottomed upon a partial view of the testimony, and, therefore, clearly unjust, it will be set aside, and a new trial granted, . . 362 2. If the verdict be against the weight of evidence, especially if the justice and equity of the case is not with the verdict, it will be set aside, . 368 3. It is a general rule, that where in weighing the testimony, on a motion to set aside the verdict as against evidence, they are satisfied the evidence on the side against which the evidence preponderates, was not fully before the jury, they will, for that cause, incline to grant a new trial, that the , cause may be disposed of on its merits, .... 3H 4. But the verdict wiU not be set aside as against evidence, where there has been evidence on both sides, and no rule of law violated, nor manifest in- justice done, although there may appear to have been a pr^onderance of evidence against the verdict, ..... 380 5. A rule closely allied to the preceding, is, that a new trial will not be granted . on technical or doubtful grounds, especially in unimportant oases, if there be sufficient evidence on the merits to support the finding .of the jury, who are in all such cases the sole constitutional judges, . . . 388 6. In disposing of motions to set aside verdicts and grant new trials, on the ground of the verdict's being against the weight of evidence, the court will look into the merits, and will not grant the motion, against the equity of the case, . .^ ..... . 398 7. If the case be frivolous in itself, and attended with unimportant results, the. CONTENTS. XV Page verdict, although contrary to the weight of evidence, and even to the charge of the judge, will not be set aside, and a new trial granted, . 401 8. When the judge who tries the case expresses himself satisfied with the ver- dict, although against the weight of evidence, the court will seldom set it aside, and grant a new trial ; on the contrary, when he is dissatisfied, it is almost of course to grant it, . . . . . . 405 CHAPTER XII. BT REASON OP THE DAMAOES. 1. In personal torts and actions, generally sounding in damages, it being witbiu the strict province of the jury to estimate the injury, unless there be a manifest abuse, the court will not interfere, . . . , . 410 2. But even in personal torts, where the jury find outrageous damages, clearly evincing partiality, prejudice and passion, the court will interfere for the relief of the defendant, and order a new trial, . . . 442 3. In personal torts, and actions sounding la damages, the court will refuse new trials for smaVness of damages, for the same reasons that prevail on questions of excessive damages. To entitle the application to suoceedj the jury must have clearly manifested an abuse of their powe(r, . 448 4. But in actions where, by reason of the agreement of the parties, or from other causes, a rea3ona,bly certain measure of damages is afforded, no such latitude is allowed the jury, and the court will look into the circumstances, and grant or refuse a new trial, or correct the verdict themselves,- accord- ing to the justice of the case, ..... 453 CHAPTER SIII. rOK NEWLY DISCOVERED EVIDENOE. 1. The evidence that will induce thi court to set aside the verdict, and grant a new trial, must be new, that is, not" used on the former trial, but dis- covered newly, or subsequently to the trial, and must be material to the point at issue, so as probably to produce a different result, and the appli- cation must be accompanied with sufficient evidence of previous diligence, 463 3. The party applying, on the ground of newly discovered evidence, must make his vigilance apparent ; for if it is left even doubtful that he knew of the evidence, or that he might, but for negligence, have known and produced it, he will not succeed in his application, .... 4T3 3. On motions for new trials on newly discovered evidence, it is a well settled rule not to grant them, if the evidence is merely cumulative, or in corrobo- ration of testimony, to a point presented at the former trial, . 485 4. Closely allied to the preceding rule, is another, that if tha alleged newly dig- Xvi CONTENTS. Pag* covered evidence consists in an attempt to discredit witnesses who testi- fied at the former trial, a new trial will not be granted, . . 496 CHAPTER XIT. IN HARD ACTIONS. 1. In convictions for felonies, on the gro'ind of irregularity, the court will inter- fere and grant or refuse a new trial, as may best subserve the ends of justice, . . . . . . . ' . 507 2. In misdemeanors, the court has the aolcnowledged right to grant new trials, on the merits, as well as for irregularities; but it is held, as a principle of almost universal application, that a verdict for the defendant will not be disturbed, ........ 616 3. In hard actions, a new trial will not be granted, especially if the verdict be for the defendant, although against evidence. Nor unless some rule of law be violated. Not in actions ex delicto, .... 523 4. In penal actions, unless there be some palpable violation of law, the verdict will not be set aside, if for the defendant, .... 528 6. The same rule extends to cases in their nature penal, whether the forms of proceedings be by action or indictment, .... 631 6. But in penal, and oven criminal actions, if the conviction be against law, or the direction of the judge, being conformable to law, a new trial will be granted, ........ 634 CHAPTER XV. AFTER TWO TEIAiS, AND TRIALS AT BAR. 1. It was formerly held, that after a trial at bar, a new trial would not be granted; but the modern practice knows no distinction, in this particular, between trials at bar and at Msi Prius. They will, in either case, be granted or refused a second time, for the same reasons, . . 538 2. After two concurring verdicts, the court will not grant a neyv trial, if the question to be tried wholly depend upon matters of fact, and no rule of law violated, although the verdict be against the weight of evidence, 641 3. After two verdicts, whether concurring or contradictory, a new trial will be refused, if the latter verdict appear, upon the whole, to answer the ends of justice; but if against law, and the justice of the case, the motion will be granted, ........ 6i1 4. But the courts have held, that there is no limit to their discretion in this respect; and that after two or more trials, whether .concurring or contra- dictory, they will grant another, and toiies quoties, so long as any settled rule of law is violated, or justice defeated, by the finding of the jury, . . 648 CONTENTS. xvii CHAPTER XTI. IN BQUITT, AFTEE TERDICTS ON FEIGNED ISSUES, AND ISSUES AT LAW. Page 1. Applications to a court of equity, to set aside verdicts at law, or open cases, will be denied, when the party applying fails or omits to present a case of diligence : a rule which will equally apply to feigned issues, . . 560 i. But when the plaintiff iu equity makes a clear ease of fraud and surprise, or subsequent discovery of evidence, or of any cause affecting the merits of which it was not possible he could have availed himself at the trial below, the court has granted a new trial, ..... 573 S. The object of issues, directed out of Chancery, being to inform the con- science of the court, if the-verdiot of the jury prove satisfactory, although the rules of strict law, in the admission or rejection of evidence, or direc- tions to the jury, may not have been complied with, a new trial will be re- fused, . . . . . . . . . .619 4. If the verdict on the feigned issue be decidedly unsatisfactory to the judge who tried the cause, or the court who directed the issue, it is a mat- ter of course to order a new trial, and toties quoties, although no rule of law may have been violated, nor the flndingof the jury against the weight of testimony, ......... 589 5. When the feigned issue is directed out of Chancery, the application for a new trial must be made to that court. It is intended to inform and to satisfy the court, and of this no other court can be the judge, . . i . 694 CONCLUSION. Terras of granting new trials, ...... 69T Costs for irregularity, &c. . . . . . . . ibid. Other terms superadded to costs on the merits, ... . . 604 TABLE OF CASES. Abbot V. Parsons Aokley v. Kellogg Ainsworth v. Sessions Allen V. Flook Allen V. Sawyer Allen V. Peshall Allen V. Toung Allen V. Craig . Alexander v. Jamieson Alexander v. Byron Alexander v. Barker Alsop V. Magill Amherst v. Hadley Anderson v. George Anonymous Case Applegate v. Ruble Apthorp V. Oomstook Archer v. Hubbell Arms V. Ashley . Arrington v. Coleman Ash V. Ash Ashe V. Ashe . Ashley v. Ashley 211 213, . 199 242, 384 . 216 154 309 f,343 235, 277 425 79 259 . 283 305 . 36 66, 589 . 556 169 . 415 134 . 198 210 . 541 262 . 473 381 . 389 389 . 389 410 . 402 419 . 586 205 . 207 199 121, 445 575 380, 407 Astley V. "Welden 454 Atkyna v. Drake . . 582, 592 Atterbury v. Pairmanner . . 175 Aubel V. Baler . 479 Aunoelme v. Aunoelme 142 Ayer v. Bartlett . . 441 Aylett V. Lowe . , 358 Aylett V. Jewell . . 110 Aylwin v. Ulmer 813 B. Bacon v. Callander 139 Bacot V. Keith 373 451 Baker's Case , 135 Baker v. Miles 118 Bakeru. Hart , 576 Baker v. Richardson , 396 Baker a. Brigga '. , 388 Bander v. Covill 16 Barker v. Elkina . 565 567 Barker v. Dixie 347 449 Barker v. Ray and others 5S4 Barksdale v. Brown , 320 Barnesly v. Powel , 679 Baronne v. Brent 560 Barrett U.Rogers , 544 Barrow v. Paxton . 291 Barrow v. Jones . 198 Bartlett v. PiokersgiU , 497 Bateman v. Willoe . 188 671 Bates V. Graves 581 694 Bates V. M'Carty , 340 Batten v. Harrison . , IS Baugh's Case . 146 Beardmore v. Carrington . , 422 Bear's Case' 633 XX TABLE OF CASES. Beazley v. Shapleigh Beekman v. Bemua Beers v. Root Bell V. ThottipsoQ Bellisli V. Arnold Benfield v. Petrie Bennett v. Howard Bennett v. Taylor Benson v. Frederick Berks v. Mason Bignall v. Devnish Bingleya. MoUison Berkett v. Willan Birkbeck v. Burrows Bird V. Pierpoint Bisliop V. Kaye . Bisaell v. Hopkins Bladen v. Dockey Blachfbrd v. Dod Blackhurst v. Bulmer Blaine v. Chambers Blake v. Howe Blake i). Millspaugh Blanks v. Fousliee Blythe v. Sutherland Bodington v. Harris Bod well V. Osgood Bohun V. Gaylor Booden v. Ellis Bootli V. Armstrong Bootle V. Blundejl Bond V. Cutler Boraston v. Hay Bourke v. Bulow Bowker v. Nixon BowniMn v. Cox Boyce v. Yoder Boyden v. Moore Bradley 11. Bradley Brandin v. Grannis Brant v. Fowler Brantinghara v. Fay Brazier v. Clap Breacli v. Casterton Briglit V. Byuou 4, 328, 342, Brill V. Lord Broadhead v. Marshall Bromley v. Holland Brook, qui tarn v. Middleton Brook V. Broome 1 Brown v Brown v Brown v. Brown v. Brown v. Bruce v. Branson Wood . '! Rice Henderson May McConnel , Tanner Ray ■ Rawlins V. Graham Page. 163 . 181 309, 501 . lie 111. . 221 64, 419 . 581 4.25, 443 . 405 252 13 600 461 608 152 291 115 298 175 50 . m 40 . 156 484 . 51 432 241 360 . 156 519, 5H9 . 411 146 . 458 594 . 310 185 . 268 65 81 102 . 348 303 . 166 539, 603 . 621 484 . 510 396, 530, 265 384 152 . 143 245 . 92 456 . 403 435 . 65 Buck V. Waddell Bullock V. Dommitt Bullock V. Beach Bunn V. Hoyt Surges V. Nightingale Burrill v. Phillips Burrows v. Unwin . Burt V. Place Burton v. Thompson Bush V. Critch field Buscall V. Hogg Butler V. Dorant Page. 392 . 612 310, 350, 492 . 94, 230 411 . 89 '0 . 300 , 348,450,603 . 360 600 . 281 Caddy v. Barlow- . 418 Cain V. Henderson . . 355 Calbreath v. Gracy 214 Calcraft v. Gibbs . " 265, 535 Camden v. Cowley 316 Campbell v. Spencer 400 Carstairs v. Stein . 383, 345 Carrington v. Jones 590 Cattle «. Andrews . 141 Center v. Stockton . 334 Chambers v. Robinson . "444, 540 Chambers v. Chambers 491 Cliambers 1). Caulfield 414, 442 Chambers v. Yaughan 426 Chatfield v. Lnthrop 500 Ciianellor «. Vaughn 425 Ohem V. Brigg . 413 Chlsvers v. Lambert 410 Claiborne v. I'arri* . 581 Clarke v. Dutcher 210 Clark V. Binney 431 Cli-eve V. Gascoigne 586 Ulemson v. Davidson 544 Clerk V. U.dall . * 442 649 Clugjiage V. Swan . 61 Cochran i). Street 120 Cock rill V. Calhoun . 118 Coad V. Codd 694 Coddrinirton v. Webb 613 Codwell's Case 30 Coe V. Givan 482 Coffin V. Coffin . ' 125 ,433 Oogaii V. Eliden . 117 Coffswell V. Brown 360 Cole V. Perry . . 31 , 430 Collcdge i>. Hone 320 Colgrave v. Juson 511 Culeinan v. Southwick . ' 428 , 430 Collins «. Brush . . 293 Collins V. Hare 683 , 587 C'>llitiS(>Ti V. Larkina 311 Coinlbrt V. Thompson . '• . ' 391 , 531 Commissioners of Berk i V. Kosa . 337 TABLE OF CASES. XXI Commonwealth v. " and Wife Commonwealth v. Bberle Commonwealth v. Purchase Commonwealth ». Green Commonwealth v. Parker Cook 11. iioveday Cooke V. Green Cooke V. Berry Opppin's Case Corbett v. Brown Corlles V. Oummings Costea V. Merest Cottle V. Cottle Cotton's Case . Countess of Rutland's Case Cowperthwaite v. Jones Cox V. Kitchin Crane v. Sayre . Crawford v. The State '. Creel v. Bell Crofts V. Waterhouse . Culver V. A.Yerj Curtis V. Smalridge Cotton V. Barnes Page. Malbone Briggs 367 379 509 . 514 513 . 145 127, 332 176, 196, 474 , 210 868 608 54 52 31 30 108 303, 344, 398 89 120 371 266 625 660 448 Dana v. Roberts . Dana v. Tucker Daniel v. Daniel . Daniel v. Rose . Davies v. Connop . Davies v. Morgan Davies v. Pierce . Davis V. Taylor Davis V. Moseley . Davis V. Daverell Davis V. Davis Davis V. Taylor D'Aguilar, v. Tobiu D'Ayrolles v. Howard 1)6 Tastet V. Baring De Roufigny v. Peale De Fonolear v. Shottenkirk De Giou V. Dover De Lima v. Glassell De Wutz V. Hendricks ' . Deacon v. Allen . Dean v. Hewit . Deerly «. Dutchess of Mazarine . 101 106, 112, 119 . 464 184 332 208 313 129 590 54 433 129 182, 218 362 399 179 392 217 479, 566 524 422, 482 287, 317 301, 129, 803, 341, 398 Den V. Emerson . ... . 321 Den n i;. Morrell and others _. ' 472 Den V. Wintermute . . . 492 Denu.Geiger . . . 203,491 Dennis v. Cummins . . . 454 Dent ». The Hundred of Hert ford .... 129, 104 Vol. I. Depeyster v. The Columbian Insu- rance Company . 216, 219, Dexter v. Taber Dillingham v. Snow Dinkios.D. Debruhl . Diaplyn v. Sprat . Divver v. McLaughlin Dixon V. Parmelee Dodge V. Strong Dodd V. Hamilton Doe V. Kightly • Doe V. Trapaud Doe V. Roe Doe V. Price Doe V. Roberts Doe V. Tyler Doe «J. Perkins Dole V. Lyon Douglass V. McAllister . Douglass V. Tousey . . 83, Dradge v. Brand . Drayton v. Thompson Drew's Case Drumgoold v. Home . Duberly v. Gunning . 418, Dutchess of Mazarine's Case Ducker v. 'Wood . Dudley v. Sumner Duff«. Budd ... Duke of Richmond v. Wise Duke of York v. Pilkington . Duncan v. Duboys Dunham v. Winans Dunkly v. Wade Dunlop V. Patterson Durham v. Baxter Durham v. Wood , Duryee v. Dennison . Dyer's Case .... Page. 323 395 339 341 288 391 566- 421 15 , 210 595 ib. 466 596 475 608 247 238 308 . 278 38S, 430 . 147 480 231, 482 24 443, 448 3, 398 425 269 377 97 427 242 662 353 276 180 443 497 133 Earl of Darlington u. Bowers . 576 Earl of Mountedgecombe v. Symons 631 Earl of Peterborough v. Sadler . 459 Earl of Kent's Case . . . 81 East ]*ndia Company v. Bazett and others 590 Edelin v. Thompson . 94 Edie V. East India Company . 169 329 Edmonson v. Machell 8, 343, 302 Edwards v. Evans 266 Edwards t). Sherratt . . 258 Edwin V. Thomas . . 676, 578 Klmalie D. .Wildmau . . 212 Elsworthy «i Bird . 281 XXll TABLE OP CASES. Page. Blwell V. M'Queen . 279 Estwick V. Caillaud 8, 308 Evans v. Rogers 473 Evertson v. Sawyer 456 Evett's Case .. 146 Ewing V. Price . 463 Ex parte Bailey 350 Ex parte Hill 87 Ex parte Caykendall 112 Ex parte Holyland E. Pabrilius v. Cock 685 224 499 Pabrigas v. Mostyn 423 Pairfax v. Fairfax 149 Farewell v. Chaffey 343 Parmer v. Darling 415 Parrant v. Olmius . . 331 364 Paulconberg v. Pierce 691 Peeter v. Whipple . 349 309 Pehl V. aood . 408 Peise V. Randall . 602 Fen wick v. Lady Grosvenor 639 Permor v. Dorrington . . 27 Pinch V. Elliott 323 Fisher v. Duncan . 316 Fitch, qui tarn v. Nuun 629 Fleming v Gilbert , 307 Fletcher v. Dyche 454 Ployd 11. Jayne . 567 Ployd V. Bethell 31 Fonnereau v Bennett . 396 530 Foot V. Sabin 279 Ford V. Tilly 495 Foster v. "Wood 567 Poster V, Smith 241 Pourdrinier a Bradbury IM 598 Fowler v. The Mtna, Fire Ins lurarice Company 386 543 Fox V. Clifton , 550 Poxoraft V. Devonshire 357 Powkes V. Ohadd . 594 Francis v. Baker , 390 Freeman v. Arkell , 252 Freeman v. Price 124 , 602 Frost V. Brown 545 Purman v. Gilman 646 G. Gainsford v. Blachford . 124 Gardner v. Mitchell . 490 . 493 Gay V Cross 638 George v. Pierce 234 Gerbier v. Emery . . 346 , 607 Germond v. Germond . 593 Gerrish v. Train . 168 Gibbons v. Phillips . 334 Page. Gilbert v. Burtenahaw . • 416 Gill V. Warners' Admr. 198 Gist V. Lybrand . 394 Gist V. Mason 197, 474 Glover v. Miller . . 210 Goddard's Case 132 Goddard v. Grey . . 440 Goldsmith v. Lord Sefton . 442, 444 Goodtille v. Clayton . 234 Goodman v. Cotherington . 46 Goodwin v. Gibbins 338, 549 Gorgerat v. MeCarty 186 Gorton v. D'Angelia . 299 Gough V. Parr . 441 Gramvel v. Rhobotham . 169 Gravenor v. Woodhouse, Thomas and Wife .... 252 Graves v. Short . . 47 Greatwood v. Sims . m Green v. Speakmain . 366 Grey v. Sir Alexander Grant 424, 443 Griffith V. Willing . 379 Griffith V. Williams . 609 Grinnell v. Phillips . 106 Grovernor v. Penwiok 65 Gurnee v. Dessies . 253 Guyot V. Butts . 493 Gwilt V. Crawley . . 194 H. Hackley v. Hastie . . 74, 80 Hagar v. Weston . 457 Halhead v. Abrahams 606 Hall V. Tuttle . 291 Hall 0. Stothard 193 Hale V. Cove 104, 601 Hale V. Vaughan 97 Hallelt V. Cotton . ' . . 603 Halsey v. Watson 467 Hambleton v. Veere . . 151 l-Iammond v. Wadhams 231 , 387, 498 Hampson v. Harapson . . 581 Hankey v. Trotman . 377 Harding v. Brooks . 394 Hare v. Groves 672 Harford v. Wilson . 247 Barker v. Reaves 366, 372 Harris v. Wilson . 271, 337 Harrison v. Harrison 189 Harrison v. Rowan 98, 407 Hurry v. Watson 444 Hartwright v. Badham . 126, 382 Harvey ». Rickett . 105 Hashbrouck v. Tappen . 465 Haskell v. Becket 34 Hassett v. Payne . . 28 Hayward v, Newton 449 Hazard v. Israel . . 437 TABLE OP CASES. XXUl Head v. Head . Hennel v. Kelland Herbert v. Shaw Hernandez v. Garetage Hewlett V. Cruchley . Hewlett V. Cock . Heyler », Hall Hyckraan v. Shotbolt . Higden v. Higden High V. Wilson Hill and "Wife v. Yates Hindle v. Birch Hindle v. Blades ', Hix V. Drury . • . Hodgson V. Richardson Hodgson V. Barvis HoUiday v. Atkinson Hoar V. Mill Hollister v. Johnson Hollingworth v, Napier Holtzapffel v. Baker Hope V. Atkins Hoplsins' Case Hopkins «,. Meyers Hooper v. Shepherd Hopper V. Smith Horfbrd v. "Wilson Hortonj; Horton Howard v. Aikin , ■ Hoyt V. Dimon • . Hoyt«. Gilman How V. Strode Howland v. Gilford . Huekle v. Money Hudson «. Williamson Hugo V. Payne Huish V. Sheldon Hunt V. Bell Hunt V. Burrel and others Hunter v. Dickerson Hurtin v. Hopkins . Hutcliinson v. Coleman Hutchinson v. Brice Hutchinson v. Piper Hyatt V. "Wood Hyckman v. Shotbolt Hylliard v. Nichols 291 I. Irwin V. Dearman Jackson v. Cannon Jackson v. "Warford" . Jackson v. "Williamson Jackson v. Dickenson Page. 587 . 673 52 . 469 219,418 . 253 4G . 326 482 . 401 22, 24 . 128 . 128 . 71 330 . 602 267 . 606 272 . 476 572 . 475 504 332, 458 146 191 247, 248 86 394 306 280 262 37 421 367 31 498 317 403 310 349 370 282 8 306, 332 326 60 420 . 154 58, 173 . 118 119 Page. Jackson v. Cody . ^181 201 Jackson v. Christman 206 Jackson v. Duchaire 602 Jackson v. Rowland 227 Jackson v. Osborne 227 Jackson v. Kinney . ' 230 494 Jackson v. Lomas , 602 Jackson v. Leggett . 286 Jackson v. Roe 176 Jackson v. Davis 206 Jackson v. Malin 213 Jackson v. Peck 289 Jackson v. Timmerman 290 Jackson v. Packard . 319 Jackson v. Parker . 335 365 Jackson v. Scott 366 Jackson v. Sternbergh 375 Jackson v. Douglas . 393 Jackson v. Hooker . 495 Jackson v. Jackson . 201 Jarvis v. Hathaway 334, 395 526 Jennings v. Warne 63 Jervois, qui tarn v. Hall 529 535 Jessup V. Cook , 470 Johnson v. Davenport 371 Johnson v. Scribner . 373 383 Johnson v. Caulkins 440 Jolinstone v. Sutton . 294 ,301 Jones V. Sparrow 443 Jones V. Dareh 345 Jordan v. Meredith . 33 Jordan v. James . 321 K. Keate v. Temple . . 604 Keble v. Arthurs . . . 554' Keen v. Sprague . . 232 Kegwin v. Campbell . . 147 .Kellenu. Bennett . . . 218 Kemp V. Maekrell . . 570 Kennedy v. "Williams . . 33 Kindred v. Bagg . . .282 Knight V. The Inhabitants of Free- port . . . . . 49, 64 Knox V. "Work and others . . 478 Kohne v. The Insurance Company of North America . . .369 Langley v. Payne . . . 145 Lansing v. Tan Alstyne . . 286 Lansing v. Eddy . . 566, 567 Lavel V. Cromwell . . . 381 Le Fleming v Simpson . 171, 180 Leeman v. Allen . . .421 XXIV TABLE OF CASES. Lee V. Tapsoott Leith V. Pope Lessee of Oaiu v. Henderson Lessee of Barkart v. Buoher Lstgoe V. Pitt Levi V. Milne . . 123, Levingsworth v. Pox Lewis V. Stevenson Lewis V. Pealje . , Lincoln v. Hapgood Lister v. Muudell Lisher u. Parmelee Livingston v. Harman Lloyd V. Monpoey Lloyd V. Newell Lonsdale v. Brown Lopez V. De Taatet . Lord St. John v. Abbott Lord Gr r «. Heath Lord Sliande's Case Loval V. Cromwell Lovat V Parsons Lave V. Jarret . Lowe V. Peers Ludlow V. Parke M. Maby v. Shepherd Maokalley's Case Mackie v. Cairns ISIaopherson v. Petrie Macrow v. Hull Malin v. Malin Mann v. Parker Markham v. Middleton •Marquand v. Webb Marsh v. Bower . Marshall v. The Union Ina. Co. Maraham v. BuUer or Bulwer Martin v. M'Knight Martyii v. Podger Hasten v, Deyo Masters v. Barnwell Matthews w. West Mattison, qui tarn v. Allanson Maupin v. Whiting Maurioet v. Brecknock Mayfield v. Wadsley Maynard v. Hunt M'AUiater v. Barry . M'Connell v. Hampton M'Dermott v. The IT. S. Ins. Co, M'Kie V. Garlington M'Kle V. Nelson M'Cormick v. Slsson M'Intire v. Clark M'Dowalla. Murdook . Page. 246 , 417 407 55.S 212 406 350 450 273 . 195 382 , 139 2S3, 499 14 360 232 425 366 48, 78 1 609 85 449 . 46 381 376 18 , 454 257, 465 328 133 365 222 397 603 154 369 461 239 251 347 449 468 448 515 178 401 296 300 167 438 397 529 673 411 450 358 207 198 125 ,446 . 187 394 441 295 148 442 M'Neish v, Stewart M'Vickar v. Woloott Mellish V. Arnold Means v. Moore . Mercer v. Sayre Meredith v. Johns Merest v. Harvey Metealft). Dean Meyer v, McLean Page. 186 566 104 369 260 . 573 436 48, 63, 77 256 Middlesex Canal Corporation v. Mc- Gregore . . . 254' Miller «. Hower . . . .153 Miller v. Tresta ' . . . 141 Mitchell V. Mitchell . . . 554 Mirwan v. IngersoU . . 155 Montgomery v. The Attorney-Gene- ral 557 Montpesaon v. Eandle . . 55 Moore v. Cherry . . 339, 556 Moore v. The Philadelphia Bank 464 Moran v. Dawes . . . 421 Morrell v. Kimball . . 225, 467 Morris v, Brickley . . 324 Morris v. Davies . . . 592 Morris 'o. Morria . . . 235 Morrice v. Prince . . . 151 Morriaon v. Muspratt . . 274 Morton v. Fairbanks . . .314 Mulock V. Mulock . . , 587 Mumford v. Smith . . . 364 Munsou's Caae ... 97 Murray v. Judah . . . 285 Myers v. Brownell . . . 469 N. Nathan v. Buckley . 248 Neal V. Lewis 433 Newell V. Wright . 277 Nichols V. Goldsmith 321 Nicholson v. Coghill . 301 Niles V. Brackett 69 Noland v. Cromwell . 568 Noble V. Adams 607 Norman v. Beaumpnt . 20, 25 Norris v. Badger 243 Norris v. Freeman . 374, 484 Norris v. Tyler 396 0. O'Connor v. Cook . . ' . 589 Oliver v. Trustees of Springfield 102 Olmsted v. Miller . . 337, 366 Onions v. Naish . . . 126 Osgood V. The Manhattan Com- pany .... 240, 251 Oswald V. Tyler . . . .190 TABLE OP OASES. XXV Page. Owen V. Warburton 112 Overton v. Ross . P. Paddock v. Salisbury- . 571 395 Page V. Pattee . 275 Palmer v. Hyde 391 Palmer v. Popelstono . . 185 Palmer v. HuUigau 477 Pangburn v. Bull 295, 401 Parr v. Seames 104, no l*arker «. Thornton . 33 Parker v. Ansel , . 548 Parr v. Purbeek . 458 Parsons v. Lanoe .. 571 l*attersoa v. The United States . 144 Payne v. Trezevant . 655 Peay V. Briggs . 546 Peay v. Picket . . 340 Peebles v. Ralls . 163 Peebles «. Vaughan and Overton 214 Pemberton v. Pemberton . 585 Perkins v. Knight . . 65 Peters v Phoenix Insurance Company 203 Peterson v. Barry . . 173 Petrie v. Miles . 222 Pettibone v. Gozzard . 153 Phillips V. Fowler 109, 111 Phillips V. Stevens . 572 Phillips, qui tarn v. SeuUard . . 528 Pickering's Case 77 Pickering v. Dowson . 192 Pierce v. Woodward 338 Pierce v. Chase . 501 Pike V. Evans " 487 Pochiu V. Pawley . . 600 Pleydelli;. The Earl of Dorchester HI, 609 Pollard V. ShaaEfer . 572 Pomeroy v. The Columbian In- , surance Company . 485 Pomfret v Smith 675 Ponsonby v. Adams . 454 Porter o. Talcott 463 Post V. Wright . 168 Pott V. Parker . 224 Pralt «. Hull . . 278 Preston v. Harvey . 244 Price V. Fuqua . 194 Price V. Warren 68, 111 Price V. Everitt . 348 Price V. Brown 197 Price V. Severn . 445 Prior V. Powers 110 Prince v. Shepherd . 249 Pringle V. Gaw 356 Proctor V. Simmons . 226 Purinton v. Humphreys . 69, 99 Pym V. Blackburn . 572 354, B. Rafael v. Verelst Ramadge v. Ryan . Kamadge v. Wakley l^ands V. Tripp Raiistou V. Etteridge Ravenga v. Mcintosh . Reavely v. Mainwaring Redshaw v. Brooks and others Reed v. Dawson Reed v. Davis Reed v. Magrew Reed v. Landford . Reel V. Reel Reigal v. Wood Remington u. Congden . Rex V. Bear Rex V. Bell .... Rex V. Bennett Rex V. Burdett Rex V. Maiden Rex V. Edwards . Rex V. Reid Kex V. Penwicke and Holt . Rex V. Bowden Rex V. Francis Rex V. Furzer . Rex V. Gray . . > . Rex V. Hayes . Rex V. Mann Rex V. Parish of Sylverton Rex V. Roberts Rex V. Simmons Rich V. Penfield • . Richards v. Symes Richards v. Syms Rickards v. Hammond . ^^ . Richardson v. Backus Richardson v. Fisher Richmond v. Tayleur Richmond v. Talmadge . Riley V. Emerson Ringrose v. Todd Ritchie v. Holbrooke Rixie V. Ward Roane v. Drummond Robbins v. Wendover . Roberts v. Karr Robinson, qui tarn v. Luquesne Robinson v. Cook . , Roe V. Devys Rogers v. Brooks and Wile Root V. King . . . . Ross 1!. Rouse .... Eoy ai. The Duke of Beaufort Ruffners v. Barrett Ruggles V. Hall . . 171, Rundell B. Butler . . 431, I'age. 8 130 130 406 530 . 299 354 . 434 518 . 439 494 . 387 325 . 578 304, 322 . 11,517 . 633 372 55, 77 363 . 531 517 . 517 517 . 534 522 . 55 141 . 533 531 . 162 520 204 579 189 214 470 218 579 137 186 583 51 451 138 113 848, 402 529 194, 282 29, 32 284 116, 563, 429 336 575 564 211 626 XXVI TABLE OF OASES. Russell V, Ball . Russell V. XJnion Ins. Co. Ryekinan v. Parkins . Page. 21,453 . 203 431 Sampson v. Appleyard 341 Sanilwell v. Sa'ndwell 239 SarL'ent v. Deniston 172 420, 112 Savage v. Carroll 5S5 Saville V. Lord Parnham 116 Sawyer v. Merrill 3'24 Sayer v. Pinok 164 Scott V. Lunt . 277 Scott V. Watkinson 602 Seeley v. Mayhew . 223 Selsea v. Powell 634 Sella V. Hoare . 229 Sergeant v. Roberts 75 SevviTd V. Jackson 289 292 Sewell V. Freeston 591 Seymour y. Day 628 Sharpe a.'Brioe 426 436 Sheaffw. Gray . 74 Shelley v. Alsop . 158 Sheppai-d v. Sheppard 473 Shei-look V. Barned 600 Sherman v. Crosby . 200 Sherrard v. Olden and oth ers 165 Shillito V. Theed . 210, 698 Shillftoe V. Claridge 601, 606 Shobe V. Bell 107, 111 Shumway v. Fowler 230, 471 Shute V. Good - 515 Shute li. Barrett 432 Silva V. Low . 334, 551 Simpson v. Hart 567, 569 Sir Christopher Musgrave v. Nevin- son ... 539, 541 Sir Joseph Tyley v. Roberts . . 540 Slade's Case . . . . 2, 3 Smelling!). TJtterbaok . . .235 Smith and Meade v. Lowry 562, 566, 567 Smith V. Parkhurst . 390, 541 Smith V. Cu£f . , 182 Smith V. Frampton 523 Smith V. Morrison 198 Smith V. Brush 486 Smith V. Harmanson . 249 Smith V. Hicks 386 Smith V. Boucher 423 Smith iJ.Huggins . . 390, 408 Smith V. Elder . 369 Smith V. Page 301 Smith ii. Raymond . 147 Smith V. Gheetham . 105, ho. 114 Striith V. Thompson 85 Smith V. Surber 310 Page. Solarte v. Melville . . . -318 Southwick V. Stevens . . 429, 430 Soulet V. Loiseau . . . 229 Sparks v. Spicer . . . .363 Spencely v. De 'Willot . . 54 Spong V. Hog .... 192 St. John V. Abbott . . .85, 89 Stace V. Mabbot 576, 679, 587, 589 Stainton v.' Beadle ... 20 Standen v. Edwards . . 664, 681 Starkweather v. Loomis . 183, 391 State «. Fisher . . . .377 State V. Babcook . . . 87 State V. Allen . . . .246 State of Connecticut v. Tudor . 305 Steinbach v. The Columbian Insurance Company .... 486 Steel, qui tarn v. Roach . .631 Stevenaw. Albridge . . . 348 Stiles V. Tilford . . .251 Stone V. Marsh .... 595 Stuart 1J. Simpson . . . .279 Sturtevant v. Ballard . . 291 Su^lla. Timbrell . . .63 Suttrell «. Dry .... 121 Sutton V. Mitchell . . .699 Snyder v. Fiuley . • . 391 Swain v. Hall . . • .381 Swift V. Stevens . . . 319 Swinnerton v. Marquis of Stafford 642 Talcottj). Commercial Insurance Com. pany, and also Marine Ins. Co. 542 Talmadge v. Northrop . . 69 Tastet V. Bordenave . . . 589 Taunton Manufacturing Co. u- Smith 460 Taunton v. Coster . . . 332 Taylor v. Willans ... 300 Taylor v. Bradshaw . . . 482 Ten Broeck «. Woolsey . . 162 Terrell «. Dick . . . .573 The Attorney-General v. Good 311 The Attorney-General v. Stevens and Prall 12 The Case of a Juryman . 22, 26 The Commissioners of Berks County V. Ross .... 337, 654 The Commonwealth v. Drew . 121 The Commonwealth v. McCoul . 91 The Countess of Gainsborough v. Gif- ford 574 The Inhabitants of "Warren i;. The Inhabitants of Hope . . . 218 The King v. Bennett . . 373, 533 The King v. Teal and others . 256 The King v. Reynell . . 632, 533 The King v. Pritohard . . • . 35 TABLE OF CASES. XXVIX The King «. "Woodfall . . 118 The King v. Davis and others . 515 The King «. Poole . . .122 The King v. Heydon . . 221 The King v. Bear . 11, 515, 517, 522 The King v. Hunt ... 35 The King v. Mawbey . . 396, 506 The King v. Joliffe . . y 55 The King v. Mann . . 398, 533 , The King v. "Woolf and others '. 82 The King «. Francis . . .372 The King «. Price . . . 518 The King v. Sutton . . .67, 323 The King «. Tremaine . . 21 The Marine Insurance Company i>. Hodgson 572 The New Torlc Fire Insurance Company ». Walden . . 311 The People v. Ransom 38, 504, 513 The People v. Jewett . . 43, 41 The People v. Barker ... 42 The People w. Douglass . . 101 The People v. Holmes . . 205 The People v. The Columbia Com- mon Pleas .... 113 The People v. The N. T. Common Pleas 191 The People v. The Superior Court of New York The People v. Comatook The People v. Denton . The People v. Goodwin The People «. M'Kay . The People v. Grays . The People v. Mather . The People v. Oloott . The People v. Townsend The People v. The Sessions of Chenango 515 The People v. Vermilyea 43, 129, 521 The Queen v. Bewdley . . 2 The Queen v. The Inhabitants of Wilts 237 The Queen ». Corporation of Helston 352 The Queen u. Coke . The Queen v. Sir Jacob Banks The State v. Hopkins . The State v. Babcock The State «. Bunten The State v. Garrigues The State v. Carstaphen The State v. Caleb Jones . The State v. Harding The State v. Hayward 488 506, 515 . 609 508 . 511 513 . 516 519 519 611, 522 522 515 87 143 92 92 143 .• .481 340, 615, 520 The Supervisors of Chenango v. Birdaall . . . . 250 The United States v. Fries 129, 504, 515 The United States v. Haskell and Francois 511 126, Thermolin v. Cole Thelluson v. Fletcher . Thomkins a. Hill Thompson v. Thompson Thompson v. Mallett . Thurtell v. Beaumont Thwaites v. Sainsbury Tilly V. Wharton Tillotson V. Cheetham Tindal v. Brown . Torre v. Summers Townsend v. Hughes Train v. Collins . Triplett v. Micou . Trubody v. Brain Trumbull v. Rivers Tufts V. Seabury , TuUidge v. Wade . Turner v. Lewis Turner v. Meymott Turner v. Pearte Turpin v. Thomas . Tuttle V. Cooper Tutton V. Andrews U. Page. 11 . 453 237 . 199 49 170, 226, 496, 598 605 . 573 427, 430 . 330 415 . 426 322- . 149 58, 599 . 365 314 246, 419 351 . 332 228 . 566 467 . 237 Utica Insurance Company o. Bad- ger 313 Utiited States v. Coolidge . . 191 United States v. Perez . 61 " 515 HI, Taignear v. Kirke Taise v. Delaval Tale V. Bayle Vaughan v. Overton . Taulx V. Shelley . Tan Benthuysen v. De Witt Tan Slyck v. Hogeboom Tan Rensselaer v. Dole Tandervoort v. Smith . Tanlear v. Tanlear . Ternon v. Hankey Ticary v. Farthing W. Wait V. Maxwell . . . 202 Wait ». McNiel . . . .392 Waite's Case . . . 231, 499 Wakeman u. Robinson . . .317 Walker v. Leighton . . . 246 Walker v. Long . ... 607 Walker v. Smith . 337, 379, 457, 546 578 112 . 600 214 . . 570 142 . 359 335 . 465 592 360, 404 . 77 XXVUl TABLE OF CASES. "Wallace v. Prazier "Ward !). Center Warden v. Hughes and Moore "Wardens of St. Paul w. Morris Warner «.. Robinson Warren v. Hope Warren v. Fuzz Warwick v. Bruce Wats V. Brains . . Watkins v. Oliver Watson V. Gowar . Watson J). Delafleld Watson V. Sutton . Weak V. Callaway Welsh V. Dusar West!). Munson Wheatly v, Edwards Wheeler v. Pitt Whitbeck v, Whitbeck Whitney v. Whitman Wilbor V. McGrilliouddy Wildbeam v. Ashton "Wilfordw. Berkley "ffilkie V. Roosevelt Wilkinson v. Payne Willard v. Wetherbee Willing «. Swasey Williams «v Smith . Page. 370 .378 269 578, 585 . 105 464 . 210 223, 497 . 100 327 14 494 474 183 60.6 136 222 405 487 71 483 454 412 551 344, 398 . 191 114 •600 WHlfams v. Baldwin . Williams v. Bacon . ' Williams v. Cheeseborough Williams «. Lee Williams v. Pratt Willis V. Farrer Wilson «. Bastall i, 263, Winchell v. Latham Winans v. Brooks Winn V. Young WInslqw V. Draper . Wits V. Polehampton . "Wolfe V. Horton Wood V, Hyatt Woodard v. Paine Woodbeck v. Kellar Woodcock V. Nuth . Woodford v. Eades Wood V. Gunston . ' 3 Woodworth v. Tan Buskerk Wrey v. Thorn . T. Tates V. Foot . Yate V. Swaine Young V. Spencer Page. 485 . 589 321 570, 571 60S 356, 591 396, 634 . 315 422 . 18& . 85, 90 I . 185 IS . 332 384, 437 . 309 399' . 459. , 445, 540 . 561 2* 311 11 26% NEW TRIALS. NEW TRIALS. INTEODUCTIOK A TRIAL is the examination of an issue in fact, and taken in its largest acceptation at common law, embraces an examination of the facts by the record, by attaint, by certificate, by witnesses, by wa- ger of battle, by wager of law, and by jury. (1) A new trial is a re- examination of the issue, and has not only reference, as the terms import, to a previous trial, but to the last of the above enumerated kinds, that by jury; for it is believed few instances, if any, caij be adduced of a re-examination of the issue directed by any other mode of trial. The superiority of the trial by jury, recommends itself so forcibly to every reflecting mind, as to preclude all argu- ment. Although derived from a barbarous age, it has been, and continues to be, the boast of modern nations, most distinguished for intelligence and refinement. It is a subject of such univer- sal interest, as not only to be incorporated with the jurisprudence of most of the nations of Europe, and of these United States, but to be defined with unusual precision, and guarded by every precaution that the collected wisdom of ages, embodied in legis- lative enactments, can provide for its durability and perfection. Trials by jury in civil cases at common law, are of two kinds, extraordinary and ordinary. To the former belong the inquest of the grand assize, and of attaint, the latter of which, in Eng- (1) 3 Blacks. Com. 330. 2 INTRODUCTION. land,(l) and both of which, in the state of Few York, have been abolished; so that with us, the ordinary trial by jury, that by referees, being so nearly allied to it, as to require no separate consideration, alone remains.(2) When, in what court in particular, and for what causes new trials originated, are subjects involved in impenetrable obscurity by the lapse of ages. It would appear, that as early as 1351, a venire de novo was directed for the misbehavior of the jury. A second instance is found in the year books about 1410, occa- sioned by the misconduct of the prevailing party in tampering with the jury.(.3) During a period of about 250 years that suc- ceeded, scarcely a vestige of the practice of the court respecting new trials remains. Lord Hardwicke, in the Qiieen v. Bewdley,{^ in accounting for this silence, says, " One reason why we do not find this practice more ancient may be, that there are no old reports of motions." Be that as it may, it is certain, that down to 1598, whatever was alleged as cause for a new trial, must have appeared of record. (5) The first inroad upon this practice was made by the Common Pleas, upon certificate of the judge that the verdict passed against his opinion, as appears from Slade^s case,(6)in which Bacon, J., stated, that judgment had been arrest- ed in the Common Pleas on such certificates. And EoUe, J., held, the judgment ought not to be stayed,, though it had been done in the Comcaon Pleas. Up to Sladeh case in 1648, it would appear that in the King's Bench no attempt had ever been made to stay a judgment, or direct a venire de novo, except for matter of record, and consequently, until then, new trials upon errone- (1) 6 &eo. IV; 3 Chitty's Blacks. 36t, m notis. (2) 2 R. S. 409, 410. (3) 3 Blacks. Com. 388. (4) 1 P. Wms. 213, (6) Cro. Eliz, 616. (6) Style, 138. INTEODUCTipiir, 3 ous verdicts, or for any other cause than gross misbehavior of jurors, or of the parties, was a thing unknown. (1) It is conceded, that the first cause in which a new trial is reported to have beeti granted on the merits, is Wood v. Gunston in 1655, after a trial at bar, in a case of slander, and on the ground of excessive dam- ages.(2) All the subsequent decisions, where the judges have taken occasion to refer to the origin of new trials for erroneous verdicts, point to this case.(3) Shortly before this, in the case of Slade, Bolle, J., had observed, that though it had been done in the Common Pl^as, it was too arbitrary for them (in K. B.,) to do it. And he adds, " you may have your attaint against the jury, and there is no other remedy in law for you ; but it were good to advise the party to suffer a new trial for bet.ter satisfaction." But a precedent having once been established, the rigid prac- tice of the court suddenly gave way. That relief which had been hitherto regarded as unreasonable to ask, and too arbitrary to grant, became a favorite with the judges, and a system of ju- dicial decision gradually followed, built up upon liberal and enlightened principles, greatly tending to the advancement of justice. (4) Prior to this, the party suffering injustice by a verdict, might resort to his writ of attaint, founded upon an allegation of per- jury in the jury, having found against law or evidence — a remedy given against the recognitors of assize alone in the first instance, but extended subsequently by various enactments to other in- quests. It consisted in trying the jury who rendered the alleged erroneous verdict, by another jury of double their number, whose verdict, if it falsified the former, was followed by infamy, fine, (1) 3 Blacks. Com. 388; 2 Str. 995; 11 Mod. 119. (2) Style, 466. ' (3) Vide 10 Mod. 202 ; 2 Salk. 648 ; 1 Str. 392 ; 1 Burr. 394. (4) 2 Term. Bep. 113. i INTEODUCTION. imprisonment, forfeiture of goods, with other severe penalties, affording at the best, a barbarous and ineffectual remedy.(l) In cases not provided for by attaint, the complainant was compelled to resort to equity, where a new trial was directed, under the penalty of a perpetual injunction if the adverse party should refuse ; an expensive, cumbrous, and awkward expedient. But when the courts of law began to interfere, and the practice of new trials acquired consistence and facility, the writ of attaint fell instantly into disuse, and courts of equity became gradually less frequented. What bestowed additional value upon this amelioration of the practice was, the multiplicity and intricacy of causes, originating in the extension of commerce, and its necessary consequences, luxury and refinement. It is evident then, that new trials originated, not in any over- weening anxiety of the courts to monopolize power, or extend a jurisdiction to which they had no claim. On the contrary, they resisted the change, until they were driven from their po- sition by the accumulated force of public opinion, relative to an evil for which neither the law nor practice of the courts had provided any remedy. Under .the changed aspect of society, had the trial by jury continued, without a competent power to correct its erroneous results, it must have proved a source of intolerable mischief. To use the language of Lord Mansfield, in Bright v. Uynon, " Trials by jury in civil causes could not sub- sist now, without power somewhere to grant new trials. If an erroneous judgment be given in point of law, there are many ways to review and set it right. Where a court judges of fact upon depositions in writing, their sentence or decree, may, in many ways, be reviewed and set right. But a general verdict can only be set right by a new trial, which is no more than having the cause more deliberately considered by another jury : (1) 3 Blacks. Com. 402. INTEODTTOTION. 5 when there is a reasonable doubt, or perhaps a certainty that justice has not been done. The writ of attaint is now a mere sound in every case ; in many it does not pretend to be a remedy .(1) There are numberless causes of false verdicts, with- out corruption or bad intention of the jurors. They may have heard too much of the matter before the trial, and imbibed pre- judices without knowing it. The cause may bei intricate, the examination may be so long as to distract and confound their attention. Most general verdicts include legal consequences as well as propositions of fact : in drawing these consequences the jury may mistake, and infer directly contrary to law. The par- ties may be surprised by a case falsely made at the trial, which they had no reason to expect, and therefore could not come pre- pared to answer. If unjust verdicts obtained under these and a thousand like circumstances, were to be conclusive forever, the determination of civil property, in this method of trial, .would be very precarious and unsatisfactory. It is absolutely neces- sary to justice that there should, upon many occasions, be oppor- tunities of reconsidering the cause by a new tria]."(2) Of the acquisitions to justice occasioned by an impartial and enlightened use of the power of granting new trials, there can be no doubt. Its utility is not to be measured by necessity alone, but by its beneficial results, contrasted with the evils, which, but for this, the system of trial by jury must have entailed. To bor- row the classical language of Sir William Blackstone, " If every verdict was final in the first instance, it would tend to destroy this valuable method of trial, and would drive away all causes of consequence to be decided according to the forms of the imperial law, upon depositions in writing, which might be reviewed in a course of appeal. , Causes of great importance, titles to land, and (1) Since abolished; stipra, p. 2. (2) 1 Burr. 394. 6 INTRODTJCTION. large questions of commercial property, come often to be tried by a jury, merely upon the general issue, where the facts are com- plicated and intricate, the evidence of great length and variety, and sometimes contradicting each other, and where the nature of the dispute very frequently introduces nice questions and subtle- ties of law. Either party may .be surprised by a piece of evi- dence, which (had he known of its production) he could have ex- plained "or answered ; -or may be puzzled by a legal doubt, which a little recollection would have solved. In the hurry of a trial, the ablest judge may mistake the law, and misdirect the jury ; he may not be able so to state and arrange the evidence, as to lay it clearly before them, nor to take off the artful impressions which have been made on their minds by learned and experienced ad- vocates. The jury are to give their opinion instanter, that is, be- fore they separate, eat or drink ; and, under these circumstances, the mpst intelligent and best intentioned men may bring in a ver- dict, which they themselves, upon cool deliberation, would wish to reverse. Next to doing right, the great object in the adminis- tration of public justice should be to give public satisfaction. If the verdict be liable to many objections and doubts in the opin- ion of his counsel, or even in, the opinion of bystanders, no party • would go away satisfied, unless he had a prospect of reviewing it. Such doubts would, with him, be decisive. He would arraign the determination as manifestly unjust ; and abhor a tribunal which he imagined had done him an injury without a possibility of re- dress."(l) ' It followed, as a necessary consequence, that the causes of new trials were no longer confined to the record. As the modern practice called into exercise a power of courts of law that former- ly lay dormant, it proceeds upon new grounds, being matters de- hors the record : — a circumstance tending strongly to discriminate (1) 3 Blacks. Com. 390. INTRODUCTION. 7 between a venire de novo, awarded upon reversing a judgment for error on the record, and a new trial founded on incidents devel- oped in the course of what is technically called a trial, beginning with the summoning of the jury, and ending with their verdict. The former comprises writs of error with the subsequent proceed- ings, is confined to the record, and contemplates an avoidance of the judgments. The latter consists of mere motions, on circum- stances out of the record, and having for its object to set aside the verdict. The writ of error is the strict right of the party re- lying on the law, and appealing to the legftl convictions of the court; but motions to avoid verdicts, take a wider range, and are, for the most part, addressed to the discretion of the judges, upon the equity Eyid conscience of the case. The action of the courts upon applications for new trials, con- sists in a proper exercise'of discretion, not arbitrary but legal, forming and moulding their decisions in each case according to some precedent, or upon its own particular circumstances, so as best to subserve the purposes of substantial justice. This is the distinguishing characteristic of this head of practice, in which it evidently approaches the province of equity, acting upon a rule of universal application, neither to grant nor refuse a new trial' against the conscience of the case. . This salutary principle runs through all the cases, and every rule will be found either more intimately or remotely connected with it, and controlled by it. While the courts exercise the utmost caution, lest they interfere with the province of the jury, they avow their readiness to in- terpose, when the justice of the case demands it. This is clearly put in the leading case. Wood v. Qunston, by Glynn, Ch. J. : " It is in the discretion of the court, in some cases, to grant a new trial, but this must be a judicial and not an arbitrary discretion." In granting new trials, say all the justices in Allen v. Peshall, " regard is- to be had to the true merits of the case."(l) " An (1) 2 Blacks, nil. Vol. I. 3 8 INTRODUCTION. application for a new trial," says Ashhurst, J., in Edmondson v. Machell, " is an application to the discretion of the court, who ought to exercise that discretion in such a manner as will best answer the ends of justice."(l) And JBulkr, J., in Estwich v. Caillaud,{2) " On an application for a new trial, the only question is, whether, under all the circumstances of the case, the verdict be or be not according to the justice of the case, for though the judge may have made some little slip in his directions to the jury, yet if justice be done by the verdict, the court ought not to in- terfere and set it aside." Again in WilMnsony. Payne,{3) Buller, J., "If the verdict be consistent with the justice, conscience and equity of the case, we ought not to grant a new trial." And speaking of the case of the Duchess of Mazarine, he says, " There can be no doubt but that was the case of a verdict against law, yet the court said, as the justice and conscience of the case were clearly with the verdict, they would not interfere." And in Cox V. Kitchin,{i) where the learned judge held this language, he adds, "The defence is dishonest and unconscientious, and on that ground I think the court ought not to interpose." And per Gibbs, J., in Hutchinson v. Pyper, " a motion for a new trial is not a matter of right."(5) Once more, per Nares, J., in Rafael v. Verelst, " Everything that can be done, should be done, to remedy an injury received, and for that purpose boni judicis est ampliari jurisdictionem suam."{S) It is to be remarked in this case. Chief Justice Be Orey uses this observation — " In exer- cising "the jurisdiction of granting new trials, the cotirt is not arbitrary, nor has any discretionary power." To make this con- sistent with the uniform declarations of the judges, the chief (1) 2 Term. Sep. 4. (2) 6 Ibid. 425. (3) 4 Ibid. 470. (4) 1 Boa, & Pul. 339. (5) 4 Taunt. 555. (6) 2 Blacks. 987. INTRODUCTION. 9 Justrae must be understood as using the term discretionary as equivalent to arbitrary, and intending to recommend the exercise of a sound judicial discretion. Indeed, it is impossible to resist the conviction, upon a close examination of the cases, that m ■deciding upon motions for new trials, courts of law are com- pelled to assume a power approximating to that of equity juris- diction, and not unfrequently to put themselves in the place of the legislator, the more effectually to defeat injustica To not a few instances of this exercise of discretion, the observations of the profoundest philosopher of antiquity will apply: "It is equity supplying the defects of strict legal Justice, and deciding as the legislator himself would have done, had the whole subject been in his contemplation ] for many particulars escape the notice of the legislator, and occasion the enactment of unjust laws, much against his will: even with his will and consent, laws good in general are enacted, but which, because they are general, may be found unjust ia particular cases ^ and it is altogether impossi- ble to comprehend all that indefinite variety of circumstances and conditions which, in each particular application, would ren- der law conformable to the dictates of substantial justice."(l) But notwithstanding the difficulty of reducing the exercise of discretion to rules,,<.and the utter impossibility of doing it in every case, this department of the practice is not deficient in this respect. Strongly marked cases have sprung up in succession, admitting the application of some well defined principle, and furnishing a precedent for all cases reducible to that class; and in branches of practice, attempts have been made to classify the cases, and present each class with its appropriate rules and illustrations. In conclusion, whatever tends to detract from the true merits of a case, or to impair the rights of a party, so far tends to pro- mote injustice. To correct this injurious result is the object of (1) Arist Ehet. by Gillies, pp. 23'6, 236. 10 . INTRODUCTION. new trials. The causes contributing to it occur at every stage of the proceedings, and in every instance the wrong complained of, properly presented to the court, will receive attention, and if well founded, obtain relief. The injurious verdict will be set aside, for want of notice of trial-^irregularity ia empanneling the jury — misconduct of the prevailing party — misbehavior of the jury ' — a void verdict — absence, surprise, and mistake of parties — absence, surprise, and infamy of witnesses — improper admission and rejection of testimony — misdirection of the jury — verdicts against law — against evidence — excessive or reduced damages — f newly discovered evidence — for erroneous verdicts in hard ac- tions — after two trials — and in feigned issues. In all these cases new trials will be granted or refused, in accordance with the dictates of justice. To illustrate the principles governing the coutts in their de- cisions on applications of this kind, is the object of the following work. That this may be accomplished with greater perspicuity, the various causes of new trials will occupy each a distinct chap- ter, and be taken up in the order above mentioned. OF NEW TEIALS. CHAPTER I. WANT OF DUB NOTICE OF TRIAL. I. Where there is either no notice, or the notice is insufficient. II. Where there are two or more actions, and the notice is for one only. III. The court.wiU inquire whether it is prooable the defendant has been misled. • IV. If injustice should be done by retaining the verdict, it will be set aside. It is a principle pervading our free institutions, that no one is to be condemned unheard. "Wherever justice is fully and im- partially administered, it must be a fundamental rule, that the party impleaded shall have due notice of when, and where, and against what, he is to defend himself "What constitutes a suffi- cient notice, depends upon the rules of the different courts, which are, in some degree, arbitrary, but, when once adopted, beconie the law of the court.(l) I. Where there is either no notice, or the notice is insufficient. Justice requires, if there be no notice, or if it be insufficient, there having been in truth no trial, that the verdict be set aside, unless the defendant have appeared and made his defence, which will be construed into a waiver. (1) Vide as to notice, 1 Chittj's Arch, 223—226 ; Gra. Prao. 225, 226. 12 NEW TEIALS. [Chap. I. "Where there is either no notice, or the notice is insufficient. Want of due notice, therefore, has been held to be a proper ground for a motion for a new trial ; but the defendant is pre- cluded if he appear at the assizes and make defenee.(l) So ruled in Thermolin v. OoIe.{2) In Bex v. Bear, upon an indictment for a libel, the defendant was acquitted, and upon mo- [*12] tion for a new trial, it was held, *tbat in cases of that de- scription, new trials were never allowed, unless the defend- ant's acquittal were procured by fraud or mal-practice. " In indictments of perjury," say the court, " we never do it, beqause the verdict is against evidence ; but if yoti prove a trick, as no notice, &c., it is otherwise."(3) The eiFect of this irregularity is illustrated in a late case in the Exchequer ; The Attorney- General v. Stevens and Bvall.{^), The defendant's counsel had obtained a rule, calling on the attor- ney-general to show cause why the verdict should not be set aside, and a new tri^ granted under these circumstances. The affidavit of Prall stated that the defendants were in partnership, in the trade of wine merchants: that Stevens was very old and^ infirm, and left the entire management of the business to Prall, and that a joint information was filed against them, on a charge of mixing Cape with other wine, and for smuggling brandy : that they were both served with svJypeenas, to which they ap- peared and pleaded, each by a different solicitor, and clerk, in court : that he had instructed his solicitor to prepare his de- fence : that the information had been tried, and the crown had recovered a verdict for £400 for the said offence, although nei- ther the deponent, nor his said attorney, had received notice of trial : that he was prepared for his defence, and that Stevens, re- lying on him, had taken no steps in the cause ; that he had never heard from any one that notice of trial of the information had been given to Stevens, and that, for want of notice being given to deponent, no steps were taken for his defence, or for that of Stevens. Prall's attorney deposed, that after having pro? (1) Bull. N. P. 327. (2) 2 Salk. 646. (3) 2 Salk. 646. (4) 3 Price, 12. Chap. I.] WANT OF DUB NOTICE. 13 "Where there is either no notice, or the notice is insufficient. cured a copy of the information, he never had notice of aay further proceedings being had in the cause, till the day before the trial, when he heard from the agent *of the [*13] attorney of Stevens, that the cause was to be tried the next day. That neither he, nor his clerk in court, had received notice of trial ; that he never had any communication with Stevens on the subject of the information, or with his attorney or agent, till the day before the trial ; and that if he had received due notice of trial, he should have been prepared for the defence of Prall, which wpaild have been also the defence of Stevens, who, he be- lieved, had a good defence. The attorney for Stevens deposed, that he was employed to appear and plead for his client only, but that, having understood that Prall's solicitor was preparing for his defence, which would also be that of the defendant Stevens, he therefore deemed it unnecessary to take any further steps on his behalf; and that, when notice of trial was received by his agent, as attorney of Stevens, he was not aware that the defendant . Prall had. had no notice. The agent of Prall's attorney swore, that he had directed his clerk in court to appear for Prall, which had been done : and that a separate plea was afterwards put on the roll on the part of Prall ; and that neither he, nor his clerk in court, had received notice of trial in the cause. It was urged against the motion, that inasmuch as the defendants were part- ners in trade, and the offence charged affected them jointly, no- tice to the clerk in court of either, should be deemed good notice to both. To this it was answered, that Stevens had a right to his several defence, that he might have a remedy over against Prall, if it turned out that he had, by his misconduct, led him into the difficulty. The court decided that, under these circumstances, each defendant was entitled to a separate notice of trial, and Prall not having been served, they made the rule absolute as to both defendants. It has likewise been held, that on a new trial ordered, a fresh notice of trial is necessary ; otherwise a second new trial 14 NEW TEIALS. [Chap. I. Where there are two or more actions, and the notice is for one only. [*14] will be directed. Binghy v. Mollison.{l) " New *trial from the nortiiern circuit. The point determined was, that on a new trial a fresh notice of trial is necessary. Foi" want of such notice in this case, a new trial was granted." So where , a defendant had entered a cause in the marshal's book, with a mark of ne renipiatur ; and the plaintiff brought the case on to trial on such entry, without notice as an undefended cause, and obtained a verdict, the court set aside the verdict for irregu- larity.(2) II. Where there are two or more actions, and the notice is for one only. So w;here there are two or more actions depending between ihe same parties, should the notice of trial be for one case only, and the defendant thereby disconcerted in preparing his defence, and the plaintiff take a verdict, a new trial will be granted. One Lisher had commenced two suits against each of the de- fendants, Parmelee, Mygatt and Stebbins,(3) one for slander as a clergyman, the other as a merchant. A nf)tice of trial was served in the three causes, one against each defendant, nine days before the circuit. The defendants' attorney applied to the plain- tiff's counsel, who resided near, to know which three 'causes were intended to be tried, who answered, he was not informed ; but two days after acquainted him, the plaintiff would try the suits in which he had declared for slander of him as a clergyman, if he could obtain his witnesses, otherwise he would try the other suits. The defendants' counsel had procured a stay, with notice of motion tb set aside the notice as vague, which, after the cir- cuit, he countermanded, and the plaintiff's attorney gave notice of motion for costs, for preparing his causes for trial, and of the motion. The court denied the plaintiff's motion with costs, and (1) 3 Boug. 402. (2) Watson V. Gowax, 8 Dow. & Ryl. 456. (3) Lisheir v. Parmelee, 1 Wend. 22. Chap. I.] WANT OF DUE NOTICE. 15 The court will inquire whether it is probable the defendant has been misled. in remarking upon the notice say : " Under the peculiar circum- stances of these cases, the notices of trial were insuffi- cient, as not *apprising the defendants of the causes in- [*15] tended to be tried. The plaintiff had held the defendants to the strictest practice, by giving notice at the latest possible moment, and he should have seen that the notice thus given was perfect'as to the end for which notice is given." III. The court will inquire whether it is probable the defendant has been misled. But upon a motion for a new trial, on account of the in- sufficiency of the notice, the court will inquire whether the de- fendant could reasonably be misled, and will grant or refuse the motion in their discretion. Thus, in Batten v. Harrison, a rule nisijuad been obtained, call- ing upon the plaintiff to show cause why a writ of inquiry ex- ecuted in this cause should not be set aside for irregularity. The irregularity complained of was for " Tuesday, the 14th day of January instant," whereas the lith of January fell on a Thurs- day, and on which day the writ of inquiry was in fact executed. It appeared, that on the morning of Thursday, the 14th, the plain- tiff's attorney met the defendant, who told him that his notice was irregular, and he should not attend the inquiry, but did not point out to the attorney what the irregularity was. In showing cause, the counsel cited Doe v. Knightly,{l) where the Court of Kjbg's Bench held a notice to quit at " Lady-day, which will be in the year 1795," the same being delivered at Michaelmas, 1795, to be sufficient to support an ejectment, the year 1795 being re- jected as impossible. Lord Alvanley, Ch. J. — " It is clear that the defendant was not misled by this error in the notice, but that, Irelying on the irregularity, he neglected to attend the execution of this writ of inquiry. But though Tuesday was, by a clerical * (1) 1 Term. Rep. 59. 16 NEW TEIALS. [Chap. I. The court will inquire whether it is probable the defendant has been misled. mistake, introduced instead of Thursday, yet the notice being for 'Tuesday, the 14th of January instant,' a given day does [*16] seena to be thereby pointed out. *The case of the notice to quit, appears to me a very strong authority in favor of our rejection of the word ' Tuesday,' and thus making it a regu- lar notice of a writ of inquiry to be executed on the 14th of January. Therefore, as the defendant is not stated to have sus- tained any injury by his non-attendance, at the execution of the writ of inquiry, I think it ought not to be set aside." (1) So in Wolfe v. Eorton.{2) On certiorari to the mayor's court, after issue joined, the plaintiff, without declaring de novo, served a notice of trial for Tuesday, the 18th of April, and took an in- qnest. The defendant moved to set aside the inquest, and urged, among other things, that the notice of trial being for Tuesday in- stead of Monday, the 18th, was insufficient, and therefore, on this ground, as well as the others, the application ought to be granted. Per Curiam — " The last objection is a captious attempt to take advantage. The period at which the sittings were held was a matter of general notoriety. The day of the month was right ; -and though that of the week was wrong, it could not, as the plaintiff's counsel have remarked, mislead, and must, there- fore, be rejected as surplusage, for it was not necessary to state it." In Bander v. Govill,{Z) the plaintiff's attorney noticed this cause for trial and inquest by a notice dated November 3, 1824, that it would be tried at the next circuit court to be held in and for ^he county of Bensselaer, at, &c., on the third Monday of No- vember instant, whereas the circuit was appointed for, and com- menced on the next day, the third Tuesday of that month ; but it appeared, by various conversations between the counsel of the parties, which took place in the course of the circuit, that the de- fendant's counsel oi; attorney was not misled by the mistake. (1) 3 Bob. & Pul. 1. (2) 3 Caines, 86. (b) 4 Oowen, 60. Chap. I.] WANT OF DUE NOTICE. 17 If injustice aliould be done by retaining the verdict, it will be set aside. The plaintiff's counsel took an inquest by default, which the defendant *moved to set aside, for the defect in the [*17] notice. Sedper Our. — " In determining the sufficiency of this and the like notice, it is a general rule, that we will' inquire whether the attorney or party was misled by the defect. Now though these circuits are not appointed by law, yet notice is re- quired to be published, and^the attorneys, especially where, as here, they live directly in the neighborhood of the circuit, must look to it. But we will also examine the question whether the party, his attorney, or counsel, have, in fact, been misled : and it appears clearly, in this case, that they have not. The motion must be denied." lY. If injustice should he done hy retaining the verdict, it will he set 4. Should injustice be done, however, by retaining the verdict, the inquest will be set aside, and a new trial granted. As, in Yate v. Swaine.{V) A rule was obtained to show cause why the writ of inquiry of damages and inquisition thereon should not be set aside. Two objections were made ; one that the notice > was served uppn the defendant himself, and not his attorney ; and the other, that the time appointed by the notice for executing the writs of inquiry was between the hours of ten and five. It was admitted for plaintiff that both objections were good ; but it was insisted that both of them were cured, by one Eussel, an attor- ney's clerk, attending at the execution of the writs of inquiry on the part of the defendant, cross-examining plaintiff's witnesses, and producing a witness for defendant. The damages were £250. No special damages being laid, and it appearing that plaintiff was confined for no longer tinie than twenty-six days, and plaintiff himself making no affidavit ^ about the damages or imprison- ment, the court thought the damages excessive, and ordered the inquiry to be set aside upon payment of costs, and a new (1) Barnes, 233. 18 NEW TEIALS. [Chap. I. If injustice sliould be done by retaining the verdict, it will be set aside. writ of inquiry to be executed before a judge at next as- [*18] sizes. So in Love v. Jarret.i^ Defendant had time to plead by a judge's order rejoining gratis. Plaintiff delivered a paper book containing a bad replication, and an issue joined by defendant. Defendant's agent's clerk received and paid for the paper book : but his master perceiving the replication to be bad, returned the book to plaintiflf's agent, and gave notice of the mistake, notwith- standing which, plaintiff went on to trial and had a verdict with- out defence, and rule absolute to set aside the verdict without costs. (1) Barnes, 451. Chap. II.] EMPANNELING THE JURY. 19 G-eneral remarks. CHAPTER II. FOR IRREGULARITY IN EMPANNELING THE JURY. /. Deficiency of juror in property, or in personal qualifications. II. Where a juror has personated another but no injustice lias been done. III. Variance in the name of one of the jurors. IV. Where a juror has been challenged and set aside, and afterwards sworn as a talesman. V. Mistakes or omissions of officers. VI. Objection to grand jurors. By the laws of this State, it is provided that " No member of this State can be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers."(l) These peers consist of twelve good and lawful men {probi et legates homines) possess- ing such qualifications, and convened and empanneled by such formalities as the law prescribes.(2) It is a provision derived from Magna Oharta, and introduced into the several consti- .tutions of the different-states and of the United States.(3) If, therefore, these forms ^be disregarded, and the case tried by in- competent persons, irregularly summoned and empanneled, or one man personate another, the verdict will or will not be set aside, according as the party complaining may or may not have sustained injury by the irregular proceeding.(-i) The former practice was strict in this respect. The compe- tency of jurymen was rigidly scanned, and even inquests set (1) 1 R. S. 93, sec. 1. (2) Vide 2 R. S. 413, 414, and Gra. Prac. 245. (3) Vide 3 Peters, 446. (4) As to the qualifications of jurors, see 2 N. Y. R. S. 411, sec. 13. (Banks, Gould & Go's Ed. 1852,) p. 666, see. 5. 20 NEW TRIALS. [Chap. II- Defloiency of juror in property, -or in personal qualifications. aside for what would now be disregarded as slight irregularities unless actual injury ensued. /. Deficiency of juror in property, or in personal qualifications. The verdict has been set aside where some of the jurors have been notoriously deficient in property, or the personal qual- ifications require^ by law, or when personated by others. [*20] *In Stainton v. Beadle, a rule had been obtained to show cause why the inquisition should not be set aside, on the ground that the writ of inquiry had been executed at the time of the assizes before jurymen, some of whom were debtors taken out of prison for the purpose. This was opposed on the ground that the defendant's attorney had attended the execution of the writ ; but, per Lord Kenyan, Ch. J. " My doubt at first was, whether the defendant had not waived taking advantage of this objection by appearing before the sheriff: but for the pre- cedent's sake, we ought to set aside this inquisition." His lord- ship also hinted that, if the sheriff had been made a party to the rule, perhaps the court would have made him pay the costs of the application. (1) So when a juror, although regularly sugamoned and returned, personated another. In Norman v. Beaumont,{2) Richard Greater, summoned and returned as a juror, did not attend the assizes ; but one Richard Sheppard, who was verbally summoned to serve as as a juror on the crown side, did attend: when Richard Geater was call,ed, Richard Sheppard (thinking himself called) answered and was sworn as a juror. Defendant insisted, that the verdict was null and void, the trial not having been by twelve but by eleven j urors only. Neither party knew anything of the mistake till after the trial. It was urged for plaintiff that defendant ought to have (1) 4 Term Rep. ilS. (2) "Willes, 434; S. 0. Barnes, 453. Chap. II.] EMPANNELING THE JUEY. 21 Defloiency of Juror in property, or in personal qualifications. challenged Sheppard; that after recording the verdict no aver- ment can be admitted against the record ; that Sheppard's place of. abode was different from that of Geater, which would have been good matter ,of challenge, and if defendant could aver against the record, yet the defect is cured by the statute. The verdict was for plaintiff, damages one shilling ; and Lord Ch. Justice Lee, who tried the cause, had certified to entitle ♦plaintiff to costs. Per Gur.—Bj the Statute 3 Geo. II, [*21] all the twelve jurors ought to be drawn out of the box,(l) and the name of Eichard Sheppard was never put into the box. The court are not bound by the record. Here has been no trial, nor is the defect cured by the statute. The rule to show cause why the verdict should not be set aside was made absolute. So, in Russell v. BaU,{2) defendant paid twenty-five pounds into court on the common rule ; plaintiff refused to accept the money, proceeded to trial, and on a full hearing of the merits, had a veidict for £25, the exact sum paid into court, (in conse- quence whereof plaintiff not having recovered more, was, by the rule, liable to pay costs to defendant.) To avoid which, plain- tiff moved to set aside the verdict, objecting that the cause was tried by eleven jurors only. It appeared that one John Pearce, summoned on the jury, did not appear, but his son of the same name, not qualified, attended the assizes, and when the father was drawn, and called, answered for him, and was sworn on the jury. Per Cur. — " The verdict by eleven jurors only is no ver- dict : it is null and void." And the same rule has been held to apply where the juror is destitute of the necessary personal qualifications. > The wisdom of the law declaring that a juror be omni excep- tione major, contrasted with the evil consequences that might result from a too rigid adherence to the rule, was strongly tested (1) Accord. 2 N. T. E. S. 420, see. 60, 61. (Banks, Gould & Go's. Ed, 1852,) p. eST, sec. 1Q-12r. (2) Barnea, 455. 22 NEW TEIALS. [Chap. II. Deficiency of juror in property, or in personal qualifications. in a recent case, the King v. Tremaine.iy) A new trial was or- dered, it appearing that a juror regularly summoned had been personated by mistake under the following circumstances. A special jury had been directed, but all the special jurymen sum- moned not being in attendance, a tales was prayed on the [*22] part of the *crown. In the taks panel annexed to the re- cord was the name of " John Williams," and that name being called by the associate, a person who answered thereto went into the box, and being sworn of the jury, joined with the rest in returning the verdict. After the trial was concluded, it was discovered that the name of the person who thus answered was Eichard Henry Williams, the son of John Williams: that he was an infant under the age of twenty-one, being only of the age of twenty years and six months : that he had not been sum- moned on the jury, and that he was not qualified in respect of property to serve, being possessed of no freehold or copyhold estate whatever. It appeared from the affidavit of the young man himself, that his father had been summoned to attend as a juryman at the assizes ; but that being unable, from illness, to appear, he had requested the deponent to attend for him : that he attended accordingly, and that upon hearing the name of John Williams called, he answered thereto, and went into the box, and took the juryman's oath, not knowing that there was any harm in so doing. All collusion between the deponent and ■ defendant was denied. Against the motion, it was urged, that the objection ought to have been taken at the trial, and the juror challenged, and the great injury that must iresult to the administration of justice, should the objection be entertained ; and Hill v. Yates,{^) and " The case of a Juryman,"{3) which will be noticed hereafter, were cited. The judges delivered their opinions seriatim, two of which are selected as illustrative of the rule. 0) 7 Dow. & Ryl. 684. , (2) 12 Bast, 229. (3) Ibid, in noiis. Chap. IT.] EMPANNELING THE JUEY. 23 Deficiency of juror in property, or in personal qiialifieations. Abbott, Oh. J. — " I am of opinion that there ought to be a new- trial. I do not see how a challenge, properly so called, could have been taken to this person, he not having been sum- moned as a juror. If he had been returned on *the panel, [*23] then a challenge would have been the proper mode of ob- jecting to him. No person on either side of this case appears to have been aware that this young man, who had thus intruded himself into the box, was not the party really returned upon the jury. The cause being to be tried by a special jury, the tales, if prayed, would be to be taken from some other list, and a tales being prayed, this person is siipposed to be taken from that other panel. I am aware of the difficulty mentioned by Lord Ellen- borough, in Sill V. Yates, that this objection would afford an opportunity for practice ; that by underhand contrivance, a party might get a person who is disqualified to answer for another, and to serve on the jury, reserving to himself the power of bringing the objection forward, if the objection should be against him. There is that difficulty certainly, and it is necessary to guard as well as we can, against such practices : but I do not know that we should be justified, merely from the apprehension of mischief that ma:y arise in some cases hereafter, by reason of illegal prac- tices of that kind, in going the length (which we must do if we refuse this rule) of saying, without any practice on either side, that a verdict pronounced by a jury, on which a person incom- petent, both by reason of non-age and want of qualification, has served, ought to stand, particularly in a case so highly penal. I think we must not suffer ourselves to be influenced on the present occasion by an apprehension of ill consequences that may arise in other cases hereafter. Indeed, it is not very likely that such practices can be of frequent occurrence, or that many per- sons would be likely to interpose and serve on a jury to whom such an objection as this woiild arise. Considering the way in which this objection has occurred, and that we are not restrained by any technical rule of law, I think we are bound to look to the facts of this particular case, and say that the only mode of correcting this error, is to make the *rule abso- [*24] Vol. I. 4 24 NEW TEIALS; [Chap. n. "Where a juror has personated another, but no injustice has been done. lute for a new trial. It is quite clear that it cannot be cor- rected in any other way." Holroyd, J. — " It appears to me, that in this case we could not pronounce a judgment upon the verdict against the defendant. The affidavits acquit the defendant of all fault in the transaction, and discharge him of any privity to this young man's serving on the jury. The verdict has been found by eleven competent jury- men only. The twelfth is by law incompetent, he not having attained the age at which the law considers him of capacity to judge on matters of this kind ; and that being so, we ought not to pass judgment upon a verdict so found, particularly in so serious a crime as perjury. To support a judgment, it must be founded on a verdict delivered by twelve competent jurors. This man was incompetent, and therefore there has been a mis-trial." So, in Drumgoold v. Home, where a special jury was directed, and the whole panel neglected to attend, and the cause was tried by talesmen, a new trial was granted upon the ground that the cause had been tried by a jury altogether different from that which the law provided. " Such a proceeding, if sanctioned," say the court, " would directly defeat the object contemplated in cases of importance and intricacy, by securing to the party a more complete jury."(l) //. Where a juror has personated another hut no injustice has been done. , But if the juror be qualified in other respects, the verdict will not be set aside upon the ground of his personating another through misapprehension, when no injustice has been done. The case of Sai v. Fafes,(2) the weight of which was so much (1) 1 Hud. & Broojce, 412. (2) 12 Bast, 229. Chap. II.] EMPANNELING THE JITEY. 25 Where a juror has personated another, but no injustice has been done. felt in the last cited case, was' this: the plaintiff had ob- tained a verdict which the defendant moved to set *aside, [*25] because the son of one of the jurymen returned upon the panel, had answered to his father's name when called, and had served upon the jury- which fact was now verified by the affi- davits of the son, and of the defendant's attorney, and also of the sheriffs ofiicer who summoned the jury, and who swore to having summoned the father and not the son, and he referred to the case of Norman v. Beauraont.{l) The court, however, con- sidering the extreme mischief which might result to the public from setting aside a verdict upon a motion for a new trial on such ground, inasmuch as the same objection might happen to lie against every verdict on the civil and criminal sides at the assizes, refused to entertain the motion ; but said, that if, upon consideration and consultation with the other judges, they found themselves bound to grant it, they would of their own accord award the rule prayed for. And afterwards, towards the end of the term, Lord EUenhorough, Oh. J., after adverting to the motion which had been made, and to the two cases which were then mentioned, observed, that in the latter of them the court appeared to have considered the application as a matter within their dis- cretion ; and no injustice having been done, they had refused to interfere. His lordship then said, that he had mentioned this case to all the judges, and they were all of opinion, that it was a matter within their discretion to grant or refuse a new trial on such a ground ; and that if no injustice had been done, which was not pretended in this instance, they would not interfere in this mode, but leave the party to get rid of the verdict as he might: that if they were to listen to such an objection, they might set aside half the verdicts given at every assizes, where the same thing might happen from accident and inadvertence, and possibly sometimes from design, especially in criminal cases. *The two cases, although apparently, are not in reality [*26] at variance. In both instances a son personates his (1) "WUles, 484. 26 - NEW TEIALS. [Chap. II. Where a juror has personated another, but no injustice has been done. father : but in the one it seems to have been taken for granted the juror was qualified, and the objection went to the irregularity of his not having been summoned : in the other he was disquali- fied, being a minor and destitute of property, and therefore legally incompetent. This was something more than a mere formal objection. Had he been returned agreeably to all the forms, but no opportunity allowed to challenge him, his incom- petency had remained, and the objection been entitled to the same consideration. Upon this distinction the court lay great stress in Tremaine^s case, and thus avoid collision with the prin- ciple established in Hill v. Yates ; and the rule to be extracted from both is, that when in empanneling the jury there is blame- less omission or misapprehension of the forms, it will not vitiate the verdict, but if, in addition to this, the juror be legally dis- qualified, and no. opportunity given to challenge him, the verdict will not'cure the defect, and a new trial will be granted. The " case of a juri/man,"{l) referred to in Bill v. Yates, and Bex V. Tremaine, was this : after the business on the crown side, at the summer assizes for the county of the town of Newcastle, was finished, it was discovered that Robert Curry, who served upon the jury, had answered to the name' of Joseph Curry in the sheriffs panel, and had been sworn by that name. Upon further inquiry, it appeared that there was a person of the name of Joseph Gurry belonging to Newcastle, but not at that time resident within the town or county ; that Robert Curry was qualified to serve on juries, and had been summoned by the bailiff to attend on the crown side as a juryman at this assize. All this was [*27] mentioned to Mr. Baron Eyre, *who conceiving it to amount to nothing more than mere misnomer in the panel • of the jurymen intended to be returned, and who did serve, and that it was but cause of challenge, which on being stated would have been irs'.antly removed by altering the panel : and that after judgment it could not be assigned as error, did not incline to interpose upon the ground of a supposed, irregularity in the (1) 12 East, 231. Chap. IL] EMPANNELING THE JUEY. 27 Tariance in tlie name of one of the jurors. proceedings : but Mr. Chamber and Mr. Villers, (counsel,) having afterwards, in the iVm Pnws Court for the county of Northumber- land, stated these facts to the baron, and pressed them as amount- ing to a mis-trial, the baron thought fit to respite the execution of a convict for forgery, that he might have an opportunity of advising with the judges upon this occurrence. On the first day of MichaelmasTerm, 1783, the judges were unanimously of opinion that this was no ground of objection, even if a writ of error were brought; much less on a summary application. In this case the juror was duly qualified. All the forms had been complied with, and being the person intended, he answered to the call of Joseph Curry without correcting the mistake, thus presenting a case of the slightest imaginable informality, and clearly falling within the province of judicial discretion. III. Variance in the name of one of the jurors. A variance in the name of one of the jurors, and that whether Christian or surname, has been held fatal, and a new trial ordered. Thus, in Fermorv. Dorrington.(l) Action for words, which were, " I will prove Fermor to be a perjured knave:" after verdict it was alleged that in the venire facias and distringas, one Taverner was named one of the jurors, but in the return of the distringas in lieu of Taverner one Tumor was returnedj and was sworn, and tried the matter ; *so, say the court, it is a mis- [*28], trial, being tried by one that was not returned in the venire facias, and Coke cited a precedent in this court between Dousby and Willot, where a juror was returned by the name of Gregory Willot, and in the distringas he was named George W. and he with others passed upon the inquest, and for this cause the judgment' was stayed ; and another precedent in the Exchequer, where one Mizael was returned upon the venire facias, and upon the distring- as one Michael, and both these were returned for surnames : and (1) Cra Bliz. 222. 28 NEW TRIALS. [C&ap. IL Variance in the name of one of the jurors. because Michael was sworn, &o., the judgment, was stayed, and so it seemed to the court ; but they at first doubted if the vari- ance in the surname be a cause to stay judgment, but for variance in the Christian name they agreed clearly the judgment shall be stayed, but one may have two surnames i but afterwards it was Resolved the judgment should be stayed. So in a case of attaint, Hassett v. Payne,{iy Coke showed to the court, that in the first venire of the petit jury, one George Ellin- ger was returned, and upon the distringas Gregory EUinger was returned, and appeared in lieu of George Ellinger, and was sworn and tried the matter i so the trial was by eleven, and then no at- taint lieth • and of this opinion was the whole court, and for this cause the attaint was stayed. A distinction was early taken between the Christian and sur- name. Thus in Displyn v. Sprat.i^) In the venire facias one of the panel was named Tho. Barker of D. and in the distringas jura- iorum he was left out, and Tho. Carter de D. put in his place : and at the NisiPrius, Tho. Carter was sworn, and with others tried the issue. Coke alleged that in arrest of judgment ; for now there were but eleven of the panel, Tho. Carter being mistaken, and falsely named for Tho. Barker, as in a venire facias a ^aror [*29] was returned *by the name of George Thompson, and in the distringas jurat, he was named Gregory Thompson, and sworn at the Nisi Prius ; and this was held a void verdict. But the court said, there is a great difierenoe between a mistake in the name of baptism and in the surname ; for a man can have but one name of baptism, but may have two surnames. At common law, however, both names stood upon the same foot ; but by 21 Jac. I, to provide against mistakes in the sur- name it was specially enacted, that " no judgment shall be stayed or arrested after a verdict, because any of the jury who tried the issue is misnamed, either in the surname, or addition in any of (1) Oro. Eliz. 256. (2) Ibid. 67. Ghap. II.] EMPANNBLING THE JUEY. 29 Tariance in the name of one of the jurors. the jury process, or in any return thereupon, so as upon exami- nation it appears to be the same person who was meant to be re- turned." This settled the point as to surnames, but left the Christian name as before. B lit it has been since lield in Roe v. Devys,{l) that though the Statute 21 Jac. I, extended only to surnames, Christian names were amendable at common law, as being on misprisions of the clerk. it obtained as a general rule, therefore, as well before as since the Statute of James, that when the juror who serves has been summoned by his right name, and is the same person returned and sworn, although by a mistaken name, the irregularity is amendable, and will not be allowed to prevail either on motion in arrest of judgment, or for a new trial. Thus in Wrey v. Thorn.{2) This was an action for breaking and entering plain- tiff's close, &c. Defendant justified in right of a way — plaintiff replied extra viam; whereon issue was joined, and a special jury and view applied for and granted. The name of Henry Luppin- cott of Alverdiscott, Esq., was taken out of the freeholder's book, and he stood as a juryman, and was returned among the other jurors, in the panel annexed to the writ of venire facias ; *and was summoned, and did attend both on the view and [*30] at the trial. After a verdict for the plaintiff" on the merits of the cause, defendant moved to set aside the verdict, Mr. Luppincott's Christian name being Barry, and not Henry ; and produced an affidavit thereon from two persons. Per Cur. — " This affidavit ought not to be received in a motion for a new trial. The record and all the jury process are, uniform. Mr. Luppincott is the real person returned, and intended to be a juror, and there is no pretence that the verdict is unjust. It is commonly understood, that Henry and Harry are the same name: or that Harry is the same name as Henry corruptly spelled. The rule to show cause why the verdict should not be set aside was discharged." (1) Ore. Car. 563. (2) Barnes, 464. 30 NEW TEIALS. [Chap. II. Variance in tlie name of one of tlie jurors. And in the Countess of Rutland's c«Se.(l) In debt on a bond of £500, brought by the Countess of Eutland, the defendant pleaded to issue, and it was found for the plaintiff. And now in arrest of judgment it was showed, that one Robert Moore was re- turned on {he venire facias, and so named in the distress, but in the panel before the justices of Nisi Prius, by misprision he was named Robert Mciwre, and so on the postea : upon which it was said, that a stranger who was not returned, was sworn and gave a verdict; for which cause judgment should not be given. But it was resolved by the whole court, that if it could appear by examination, that his right name is Eobert Moore, so that he is well named in the panel on the venire facias, and also that he is the same man who was returned and was sworn, there, the postea should be amended. But if a juror be misnamed, in the panel oi venire facias, though' he be well named in the subsequent process, it cannot be amended. * So in GodweWs case.{2) In an appeal of mayhem between John Codwell, plaintiff, and Thomas Parker, defendant, [*31] *lhe parties came to. issue, 'and the jury found for the plaintiff: and now it was moved in arrest of judgment, that there was a variance between the panel of the venire facias, and the distringas and ^osfea, in the name of one of the jury, who appeared and gave a verdict: for in the panel of the venire facias he was named Palus Oheal, and in the distringas and postea he was named Paulus Gheah ; and because the name of the juror was misnamed in the venire facias, and especially in his Christian name, therefore the judgment was arrested ; but if he had been well named in the panel of the venire facias, and misnamed in - the distringas or in ih.Q postea, there, on examination, it should be amended. So in Gotion^s case.(3) Action for words. In the veriire facias a juror was returned by the name of J. S. of Abhotsan, and in (1) 5 Co. 42. (2) Ibid. (3) Cro. Eliz. 268. Chap. II.] EMPANNELING THE JURY. 31 Variance in the name of one of the jurors. the distringas he was returned by the name of J. S. of Ahbasan: and it was awarded to be amended ; so in the same term between Mortimer and Oger, a juror in the venire facias was named De Bust, and in the distringas De Hurst, and this was alleged in ar- rest of judgment, and awarded good, and the plaintiff had judg- ment. * So in Hugo v. Payne,{1) where Tippet, the true name, was re- turned on the venire; but, in the habeas corpora and' distringas, he was named Typper; yet, if he be sworn and try the issue by his right name, it shall be amended : and in the case- oi Fbyd v. Bet/>eU.{2) In the distringas the juror was Ap Pell, and one Ap Bell was sworn, and held that it could not be amended, by the court after the death of the sherifl': for it cannot be intended to be the same man, for they are different names in Wales where this trial was; but that if the sheriff who made the return had been living, he might have amended it. Several more *cases are there cited, showing that where the mistake is [*32] in the surname, but if right in the return to the venire, the court would amend it. So in Boe v. Devys.{3) In the return to the venire a juryman was named Samuel, and so in the distringas ; but, in the panel annexed, he was called Daniel, and sworn by that name as ap- pears by the record, and gave a verdict for the plaintiff: though this was not within the statute, yet it appearing upon the exami- nation of the juror himself that he was the person returned, and that his right name was Samuel, and that there was no other per- son of that name in the parish, and by the examination of the sheriff, of his clerk, that it was the misprision of the clerk, who, though he had the distringas before him, wrote Dajiiel for Samuel in the panel ; and the juror likewise swearing that there being a great noise in the court when he was sworn, he answered sup- posing himself to be called by his right name of Samuel, the (1) Danv. Abr. 330. (2) Ibid. 331. , (3) Cro. Car. 563. 32 NEW TEIALS. [Chap. II. Where a juror has been challenged and set aside, and afterwards sworn, &c. record was ordered to be amended, and the judgment was not stayed. In England, the correctness of the rule has been tested even in Capital cases, since Hill and Yates, and " The case of the jury- man^;'''' and therefore may be regarded as settled. In the state of New York, mistakes of this kind are cured by the statute. It is provided that " When a verdict shall have befen rendered in any cause, the judgment thereon shall not be stayed : nor shall the judgment upon such verdict, or any judg- rrient upon confession, default, nihil dicit or non suvi ivformdtits be reversed, impaired, or in any way affected by reason of a mistake in the name of any juror or ofBcer."(l) , And should a question arise upon this defect, it is further provided " The omis- sions, imperfections, defects and variances in the prece- [*33] ding section *enumerated, and all others of the like nature, not being against the right and justice of the matter of the suit, and not altering the issue between the parties, or the trial, shall be supplied and amended by the court where the judgment shall be given, or by the court into which such judg- ment shall be removed by writ of error."(2) IV. Where a juror has been challenged and set aside, and afterwards sworn as a talesman. And it has been held, that if one of the regular panel be challenged and set aside, and afterwards be sworn upon the jury as a talesman, especially if the party were ignorant of the fact, a new trial will be granted. In Parher v. Thornton,{Z) after a verdict for the plaintiff, a new trial was granted, because one Hooper, who was challenged (1) 2 R. S. 425, sees. 7, 11 ; snperseded by see. ITS of the Code. (2) 2 R. S. 42B, sec. 8; superseded by sec. 173 of the N. T. Code of Procedure. (3) 2 Lord Raym. 1410. Chap. II.] EMPANNELING THE JUEY. 33 Where a juror has been challenged and set aside, and afterwards sworn, &o. ~ upon the principal panel, and the challenge allowed, was after- wards sworn upon the jury as a talesman by the name of Hook ; although it was insisted upon, by the counsel for the plaintiff, that the verdict was given to the satisfaction of the- judge who tried the cause. So where the cause of challenge is not known. (1) As in ICennedy v. WiUiams.{2) In Ihis case the objection could not be taken, because the facts were not known till after the verdict. A sufScient number of jurors did not appear, and talesmen were summoned and returned, and sat on the trial, who had not been drawn according to the statute, and a new trial was directed. But it would seem if the party objecting were not misled, as he probably was in the case from Lord Raymond, by the misno- mer, but neglected his challenge, the verdict would not be dis- turbed.(3) In Jordan v. Merediih,{4:) where a talesnian was sworn on the jury after being struck off *the list of [*34] special jurors, the court held that the objection came too late.. " The defendant should have challenged the juror before he was sworn. He has slipped his time by postponing his ob- jection till this period. If he has been guilty of inattention he alone should suffer for it. And so is ths current of authorities in the books. Motion for a new trial demed."(5) In Haskell v. Becket.{6) The petitioner prayed for a review of a suit heretofore decided between him and the respondent, in which he represented that the verdict was improperly returned against him, because one of the jurors did not stand impartial between the parties, but, had, before the trial, formed and ex- pressed a decided opinion against the petitioner's right to recover; (1) 6 Bao. Abr. 661. (2) 2 N6tt & M'Cord, 19. (3) Vide 1 Vent. 30 ; Style, 129. (4) 3 Teates, 318. (5) It has been so ruled in South Carolina, in a capital case. 2 Bay, 160. (6) 3 Greenl. 92. 84 NEW TRIALS. [Chap. II. Mistakes or omiaaiona of olBcera. and had also manifested and expressed sentiments of prejudice and hostility against the petitioner, inconsistent with that fair- ness and impartiality which by law is required of jurors. The facts set forth in the petition were proved, and the juror himself was called on to explain in open court.- He admitted he had spoken on the subject, but denied prejudice and bad feeling to the petitioner. Per Gwriam. — " It is alleged by the petitioner, that the trial of his cause was not .a fair one, because one of the jurors entertained feelings of hostility against him, resulting from supposed injuries which the petitioner had offered him. How far this fact, if unexplained, might go, it is not necessary now to determine; yet of itself it might probably induce the court to send the cause to another jury. But it seems to have been as well known to the petitioner before the trial as now ; and if he would object to the juror for this cause, the objection should have been taken at the trial : not being taken then, it is waived." [*35] *Y. Mistakes or omissions of officers. It is a general rule to refuse a new trial for the mistakes or omissions of officers charged with the summoning and empannel- lug of the jury where no fraud or collusion is intended, or injury to the parties ensues. Thus, in The King v. Hunt.{l) Where a special jury was or- dered and only ten jurymen appeared, two of those named in the panel not having been summoned, and two talesmen were sworn on the jury, on motion for a new trial, it was contended that it was indispensable the whole panel shouldbe summoned ; that the statute is imperative, and that if two may be omitted, so may any other number, and so a selection of particular persons to try the cause. But per Abbott, Ch. J. "No case has been cited which is a direct authority on this question, so as to form a ground for our decision : we must, therefore, look to the principle on which this application is founded. There has in this 'case been an omis- (1) 4 Bam. & Aid. 430. Chap. II.] EMPANNELING THE JURY. 35 Mistakes or omissions of officers. sion to summon two of the special jurymen. The court is not, without proof, to suspect any fraud on the part of its officers. ■ It is not suggested in this case that the omission has been in conse- quence of collusion with any other person. If then, on these affi- davits, we were to grant a rule, we should intimate it to be our opinion, that in every case which may be tried, whether civil or criminal, if the party against whom the verdict passes chooses to apply, he will be entitled, as of right, to a new trial, in case he shows to the court that any one juryman has not been duly sum- moned to attend. This would be going a great deal too far. I think, therefore, that we ought not to grant this rule." With this result the other judges concurred, delivering their opinions sma- tim, and the rule was refused. (1) *In Amherst v. Hadley.{2) Verdict for the plaintiffs. [*36] The defendants moved for a new trial, because one of the jurors was chosen and drawn more than twenty days before the sitting of the court at which the venire facias was returnable, con- trary to the statute, which fact did not come to the knowledge of the defendants, or of their counsel, until after the verdict. Per Curiam. — " The court are of opinion that the motion to set aside the verdict cannot be sustained. No objection is made to the personal qualifications of the juror. It is admitted, or not de- nied, that his name was regularly in the jury box of the town of Enfield, and that he was what the law terms liber et hgalis homo. This is a sufficient answer to the cases in which the juryman was from a wrong vicinage, or was a non-juror. Had any fraud be'en proved, or had the defendants suffered any real prejudice, with- out their fault, no doubt the verdict should be set aside. ' Had it , been shown that the jury had been tampered with, which it was the object of the statute to prevent, in requiring the jurors to be drawn not more than twenty days before the sitting of the court, this would be a good reason for granting a new trial. But here is a mere question of law, whether the defect appearing on the record would be sufficient to sustain a writ of error. The case (1) Vide Ihe King v. Pritchard, Ridgway's Cases, Hard. 144. (2) 1 Pick. 38. 36 NEW TEIALS. [Chap. II. Mistakes or omissions of officers. comes before us, indeed, on a motion for a new trial, which is a summary proceeding, and does not preclude the party from bring- ing his writ of error if decided against him, but if the court were of opinion that error will lie, they would grant the motion in or- der to save troijbleand expense." A question somewhat similar, and receiving a similar decision, but for a different reason, that the objection ought to have been taken before the verdict, came before the same court, and [*37] is thus reported in a note to the case from *Pickering.(l) ~~" At the previous March Term of the Court of Common Pleas for the county of Bristol, two jurymen de talibus circumstandibus were returned, to complete the panel for the trial of a cause then before the court, and were sworn to give a true verdict in all causes between party and party that should be committed to them. The same jurymen afterwards sat in the cause of Hbwiand v. Oif- ford, without being again returned or again sworn'. After the verdict the defendant moved for a new trial on this ground, but the judge overruled the motion, and the defendant filed his ex- ceptions. After argument in support of the exceptions, and e contra, this court said that it was no doubt irregular for the tales- men to serve in any cause except that for which they were re- turned ; but the objection should have been made before the verdict. The judgment of the court below was therefore af- firmed. So, in what might be considered a case of gross carelessness, Ook V. Perry,{2) but no abuse nor injury to the party appearing, a new trial was refused. It was moved that the verdict be set aside on the ground of irregularity in drawing the petit jurors. The names of the jurors summoned and empanneled at the cir- cuit were written on several and distinct pieces of paper, being all as near as might be of equal size, and put into boxes open at the top by an orifice of about' five inches in diameter, from which they were drawn to compose the several juries : that they were (1) 1 Pick. 43. (2) 6 Cowen, 584. Chap. II.] EMPANNELING THE JUEY. 37 ^ Mistakes or omissions of ofScers. not rolled or folded together, and that the names of the jurors were easily and distinctly visible to the person drawing. But Per Cur. — " The statute relied upon, is merely directory to the officer drawing the ballots. We have often holden this in rela- tion to statutes of a similar character. • No abuse or injury to the defendant being pretended, and no objection made at the time, the mistake *of the officer is not ground for setting [*38] aside the proceedings." , It would then appear, that in mere matters of form in empan- neling a jury, the courts, both in Great Britain and this country, have refused to interfere, when points merely technical, and un- productive of any injury, have been presented ; and have, by a series of decisions, placed all applications of this kind within the principle of judicial discretion. This, with us, does not depend on judicial decisions merely, or legal inferences from any given statement of facts. It is ex- pressly provided by statute, that no verdict shall be affected for any imperfect or insufficient return of any sheriff or other officer, or that the name of such officer is not set to any return actually made by him.(l) Nor for any other default or negligence of any clerk or officer of the court, or of the parties or their counsellors or attorneys, by which neither party shall have been preju- diced.(2) And that all such omissions and defects, and all others of the like nature, shall be supplied and amended by the court.(3) In the recent case of The People v. Pa7>som,{i) the court took occasion to review the principal cases, with the grounds of irregu- larity in empanneling the jury, and refused a new trial under the following circumstances : motion to set aside a verdict for irregularity in empanneling the jury. The prisoner, who was indicted for murder, was put upon his trial at the New York Oyer and Terminer, on the 2id September, 1831. The general (1) 2 R. S. 425, sec. 1, (3) ; N. T. Code of Procedure, sees. 173, 176. (2) Ibid. (3) Ibid. (4) 7 Wendel], 417. 39 NEW TEIALS. [Chap. IL Mistakes or omissions of officers. panel of petit jurors was called over, and a juryman of the name of Bobert Smith answered when his name was called. The [*39] clerk then proceeded to draw the jury *for the trial of the prisoner, by taking ballots containing the names of the jurors returned from the box in which they were contained. When twenty-eight jurors had been called, eleven of whom were sworn, and seventeen peremptorily challenged by the prisoner, the clerk announced that no more ballots remained in the box. The counsel for the prisoner stated that the name of Bobert Smith bad not been called. The clerk searched for the ballot contain- ing his name, found it, and informed the court that it had not beeu put into the box with the names of the other jurors pre- vious to cailling the jury in this case, and explained the omission in the following manner : On the first day of the session of the court, to wit, the 19th September, when the panel of petit jurors was called, Robert Smith did not appear,, and therefore his name was not put into the box. On the 21st September, Smith ap- peared in court, excused his default, and was sworn as a juror in the Circuit Court, but the clerk neglected to put his name into the box. On that day there was no trial in either the circuit or Oyer and Terminer. Upon this statement being made, the district attorney moved the court, that the eleven jurors who had been sworn should be discharged, that the names of all the jurors should be returned to the ballot box, and that the drawing com- mence de novo as if no jury had been drawn ; which motion was resisted by the counsel for the prisoner. The court, after con- sultation, ordered the ballot with the name of Robert Smith upon it to be put into the box, and to be drawn out of it as a juror in that case. To this order and decision the prisoner's counsel ex- cepted. Upon the name of Smith being drawn from the box, the district attorney challenged him for cause, and after he was examined on oath, the challenge was withdrawn, and he was sworn and empanneled as a juror. The prisoner was found guilty, and the Court of Oyer and Terminer respited his sentence, until the advice of this court could be obtained in the premi- ses. An affidavit of the clerk of the Oyer and Terminer [*40] *was submitted, stating the omission to place the ballot Chap. II.] EMPANNELING THE JUEY. 40 Objections to grand jurors. containing the name of Smith in the box was not designed, but owing entirely to neglect. In commenting on this case, Sutherland, J., who delivered the opinion of the court, observes, that the true rule to be collected from all the ca.ses is, that to entitle the defendant to a new trial, he must sh-ow himself to have been prejudiced by the irregularity, and concludes, "Whatever irregularity, therefore, there may have been in this case, it is most evident that it has not affected or prejudiced in any manner the rights of the prisoner, and that he is not, according to the best established principles, entitled to a new trial." So, if the judge overrule a challenge to a juror, after declar- ing he has formed an opinion, as in Slake v. Millspaugh.{l) On Kxrtiorari from a justice's court. On the jurors being called, the defendant below objected to one of them, alleging, as a cause of challenge, that the juror had previously expressed his opinion, that the roll so taken by the defendant was unlawful and- not authorized by the act, and, at the same time, offered to verify by proof, the truth of the exception ; but the justice overruled the objection, and allowed the juror' to be sworn, and a verdict was found for the plaintiff. Per C%riam. — " We think the chsil- lenge was well taken. That a juror had previously given an opinion on the very question in controversy, was a valid excep- tion to his being sworn to try the cause ; the defendant's proceed- ing to trial on the merits, afterwards, is no waiver of the excep- tion, nor does it preclude him from alleging the misdirection of the judge as error."(2) Yt. Objections to grand Jurors. The objection to a grand juror, by reason of par- tiality *and dislike, or want of the qualification of pro- [*41] (1) 1 Johns. Rep. 316. (2) Vide 8 Johns. Rep. 445 ; 6 Cowen, 565 ; 4 WendeU, 232, and 1 Burr's Trial, 419. Vol. I. 5 41 NEW TEIALS. ' [Chap. IL Objections to grand jurors. perty, must be taken before indictment found, otherwise it would not avail to quash the proceedings, much less to set aside the verdict. The former of these objections was overruled, on a motion to quash the indictment, in The People v. Jewett.il) The defendant, in support of his motion, among other things, showed that Ben- jamin Wood, one of the grand jurors, had, before the finding of the bill of indictment, in repeated conversations, declared that the defendant was concerned in the abductiop of Morgan ; aided in carrying him off; was guilty thereof; and ought to be pun- ished therefor. And that in such conversations Wood discovered great malignity of feeling, and bitter hostility against the defen- dant. Savage, Ch. J., commenting on this part of the case, observes : " As to Wood, the other juror, good cause of challenge existed: There are causes of challenge to grand jurors, and these may be urged by those accused, whether in person, or out on recognizan- ces; and it is even said, that a person wholly disinterested, niiiy, as amicus curiae, suggest that a grand juror is disqualified. But such suggestion, to be availing, must be made previous to the jury being empanneled and sworn." Again, "I cannot consent, that, after an indictment found, the party charged may urge an objection of this kind, in avoidance of the indictment. The books are silent on the subject of such exception, after indictment found; and, in the absence of authority, I am inclined to say, in consideration of the inconvenience and delay which would un- avoidably ensue in the administration of criminal justice, was a challenge to a grand juror permitted to be made, after he was sworn and empanneled, that the objection comes too late." [*42] *Marcy, J., remarks, " I have had more difficulty in disposing of theobjection made to Lacey and Wood. What is urged against Wood particularly, would have been sufficient to exclude him, on a challenge upon the ground of favor; though .averiU,{2) in a motion for a new trial, on a suggestion, that the defendant arrested and impri- soned *one of the plaintiff's witnesses until the trial was [*55] over, it was adjudged to be good cause of granting a new trial. And a verdict was set aside where a material witness for the defendant concealed himself in the plaintiff's house. Mbntpesson V. Randle, thus noted by Buller. " A material witness for the de- fendant concealed himself in the plaintiff's house to avoid being served with a subpoena, by which means the plaintiff obtained a verdict, but the court set it aside without costs, it being unrea- sonable for the plaintiff to carry the cause down to trial when she knew the defendant could not make a defence."(3) But it would appear, that if a party were libelled by a mere stranger, it would be sufficient cause for postponing the trial, but not for setting aside the verdict. So ruled in Bex v. £urdelt,{i) Bex V. Oray,{p) and The King v. JolUffe.{6) So, if means are adopted which have the effect of preventing witnesses from attending, that cannot be traced to the party or (1) 1 East, 108. (2) n UoA. 141. (3) Bull N. P. 328. (4) 2 Salk. 645. (5) 1 Burr. 510. (6) 4 Term. Rep. 285. 55 NEW TEIALS, [Chap. III. Eule as to attempts to mislead court and jury. his agents, it would appear a new trial would not be granted^ In Orovenor v. Fen'wick,{\) after a trial at bar, and verdict for lessees in ejectment, a new trial was moved for upon the merits of the cause, and also upon an affidavit containing, in substance; that the defendant's witnesses were kept back by a report spread in Holjand, when they were on their way to England, and that the witnesses that were already come over had been laid by the heels ; but it did not name any one who had spread the 'report, or that it was by the agents or persons employed by Fen wick. And though the court were dissatisfied with the verdict for several reasons, one of which was, that the trial lasted above sixteen hours, and abundance of evidence was given on [*56] *both sides, and the jury were agreed on their verdict in half an hour's time ; yet the court would not grant a new trial, but declared, that after a trial at bar they would not easilv grant a new trial, more especially in ejectment, where the first verdict is not peremptory, and where there is no foul practice made to appear in the jury or party for whom the verdict was, as keeping back of witnesses, &c., in which cases alone it was discretionary in the court to grant it. V. Rule as to attempts to mislead court and jury. It is a general rule that all disingenuous attempts to stifle or suppress evidence or to thwart the proceedings, or to obtain an unconscionable advantage, or to mislead the court and jury, will be defeated, by setting aside the verdict. Thus, in Anderson v. George{2) upon a rule for the plaintiff to show cause " Why a verdict should not be set aside and a new trial ordered upon payment of costs." The plaintiff had sold goods to the defendant, who paid for them by a promissory note of one Hopley ; which the defendant indorsed. The plain- tiff demanded the money of Hopley, but indulged him with further day of payment several times, till he failed. The only (1) 1 Mod. 156. (2) 1 Burr. 362. Chap. Ill] MISCONDUCT OF THE PAETY. 56 Rule as to attempts to mislead court and jury. dispute between the parties was, " Which of them ought to bear the loss of this note ;" for the plaintiff was paid, if the loss ought to fall upon him, through his neglect or indulgence in giving further credit to Hopley. There were two counts in the declara- tion : one for goods sold, the other against the defendant as in- dorser of the promissory note. When the cause came on to be tried, though both parties came to try the real merits of the ques- tion between them, viz. : " Which should bear the loss of the note.occasioned by Hopley's failure," and the plaintiff's agents had the note in court, *yet finding upon their own [*57] evidence, that the plaintiff had given repeatedly' further credit to Hople;f, they resorted to a trick, and rested their case upon proving the sale and delivery of the goods, which never was disputed. The defendant could not produce the note ; it was in the plaintiff's custody. Eelying upon its being the only ground of the plaintiff's case, the defendant had not given him notice to produce it. The court having ruled it could not be given in evidence, and the defendant had not entitled himself to prove the contents for want of notice to produce it. Lord Mans- field told them it was an improper artifice ; that no verdict could stand which was so obtained. But the plaintiff refused to pro- duce the note ; and had a verdict of course. It was contended, for the plaintiff, that the verdict was regular, and the plaintiff in no fault; for without notice he was not obliged to produce the note. Therefore the verdict ought not to be set aside. But^;he court thought the plaintiff had taken an unfair advantage, contrary to justice and good conscience ; that the rules of practice must be general ; but he who abused them in a particular case, should not shelter a trick by regularity. The plaintiff did not want notice to produce a note he had in court, and which he had laid in the declaration as his ground of action. Besides, he took a verdict for the price of the goods, though, he had received satisfaction, the evidence of which was in his. own custody, and suppressed ; and they not only set aside the verdict, but without costs, and declared the next time that a party should obtain a verdict in the like manner, by an unfair, Vol. I. 6 57 NEW TEIALS. , [Chap. III. Rule as to attempts to mislead court and jury. unconscionable advantage, without trying the real question, they would set aside the verdict, and make hina pay the costs. The sanae principle governed in granting the motion in Bod- ington v. Harris.{l) This was an action for a nuisance, [*58] *and was defended by the landlord of the defendant. The attorney of the landlord told the defendant he need not attend the trial ; and without the consent, and against the express directions of the defendant, he entered into a consent rule to abate the nuisance. The landlord being also dissatisfied dis- missed the attorney, and told the defendant he must thenceforth employ an attorney for himself An attachment having issued on the consent rule, a rule was obtained to show cause why the attachment should not be set aside, and a new trial had. The court thought there ought to be a new trial under all the cir- cumstances, as it could form no precedent, except a case should arise precisely similar in all its points. So, in Trvhody v. Brain.{2) One Eobert Brain was examined as a witness, who, on being asked if he had not had a conversa- tion with Eichard Haynes, the. attorney of the plaintiff, on the subject, denied he ever had. Haynes being called on the part of the plaintiff, directly contradicted Brain, and swore to a conver- sation. Brain was committed for perjury, and Haynes directed to prosecute him, who next day stated to the judge he had mis- taken the person of the witness, and Brain was discharged. Upon these grounds the defendant obtained a rule nisi. Per Cur. — " We think this is a case which calls on us in making this rule absolute, also to furnish the wholesome example of order- ing that the plaintiff's attorney shall pay the costs of the former trial." In the recent case of Jackson v. Warford,{S) where the silence of the plaintiff's attorney misled the defendant's counsel, the court appear to have decided on the same principle. (1) 1 Bing. 181. , (2) 9 Price, 76. (3) 1 Wendell, 62. Chap. III.] MISCONDUCT OB' THE PABTY. 59 Evile as to attempts to mislead couTt and juryv This was an action of ejectment, and verdict for tlie plaintiff. The defendant moved for a new trial, as well *on [*69] account of the ruling of the judge, as on the ground of sur- prise, arising from the fact that the attorney forthe plaintiff, on be- ing called on to produce, in pursuance of a subpoena and notice, a deed of the premises in question from the wife of Constantine to Eouse, found by him among the papers of Eouse, and admitted by him after the commencement of the suit to be in his posses- sion, stated that he had dqjivered the deed to a son-in-law of Rouse, who had sent it to counsel at Troy, but without apprising the defendant's counsel. Upon this point the court remark— - " There can- be no question but that a new trial should be granted ■on the ground of surprise. From the conversations had with the plaintiff's attorney on the subject of a conveyance for lot No. 60, and from his silence as to the disposition he had made of it, the defendant and his counsel had every reason to suppose that the plaintiff's attorney had the deed in his possession and would produce it. In Niks V. Brackeft.{l) Assumpsit on the warranty of a horse, which died soon after it was purchased. The question at the trial, before Parker, Ch. J., was, whether the disease of which the horse died existed before the sale, or was acquired afterwards ; and the chief justice stated, that the fact was rendered very doubtful by the testimony. One Eichardson was offered as a witness by the defendant, and testified in the cause, which being so nicely balanced, the chief justice observed, his testimony was undoubtedly material. No otgection was made when he was offered, but after the trial it appeared that he was dne of the de- fendant's bail in this suit, which fact was not known to the plain- tiff, or his counsel, until after the trial. On this ground a motion was made by the plaintiff for a new trial, a verdict having been obtained by the defendant. For the defendant it was contended, tha,t the objection *cametoo late, and that the [*60] defendant had been negligent. But a new trial was (1) 15 Mass. S1&. 60 NEW TEIALS. [Chap. III. Bule as to attempts to mislead court and jury. granted, it appearing that the interest of the witness was not known to the plaintiff until after the trial, and that it was known to the defendant, who produced him. So, in Hylliard v. Nichols.{V) Petition for a new trial in an action brought by Hylliard against Nickols, upon the statute en- titled an act -to prevent the slave trade — alleging that said Nickols, at a certain time, had transported out of this State, into the State of Virginia, two negro children, contrary to the force and effects of said statute. And vAdict for defendant. It fur- ther appeared, that to show he had carried the children with him as a part of his own family, he produced false depositions and documents. It was contended, for the defendant, that it was in the nature of a criminal prosecution, and a new trial could not be granted. But, per Our. — " This is not a criminal prosecution, but a civil aption, brought on a remedial statute to recover the penalty enacted, to prevent the exportation of .persons of a cer- tain description, out of this State into another State, for the pur- pose of selling them. But, was it a criminal prosecution, an ac- quittal obtained by forgery and perjury, by the procurement of the prisoner, would be set aside in favor of the public." (1) 2 Root, 176. Chap. IV.] MISCONDUCT OF THE JUEY. *.61 General remarks. *CHAPTER ly. FOR MISCONDUCT OP THE JURT. 1. General remarks. 2. Suffering themselves to h? tampered with ly the parties. 3. Heceiving papers not submitted in evidence. 4. Taking papers out with them by mistake, but not reading them. 5. Carrying away papers without consent of counsel, under the direction of the court. 6. Separation after being charged, before verdict. 7. The court will inquire whether injury has ensued from the separation. 8. Dispersing, with or without leave, and abusing the privilege. 9. Effect of act indicating a destitution of moral principle. 10. Resorting to chance to determine verdict. 11. When affidavits of jurors will be ry'ected. 12. When affidavits of jurors will be received. 13. Rendering a perverse verdict. 14. Affidavits tending to impeach jury. 1. General remarks. If there be any one right we value more than another, it is trial by jury. It is thus emphatically provided for in our bill of rights ; — " The trial by jury in all cases, in which it has hereto- fore been used, is to remain inviolate forever. "(1) It is also secured to the citizens generally, in criminal cases, by article 6th ;(2) and by article 7th of the constitution of the United State's, " in suits at common law, where the value in controversy shall exceed $20. "(3) It is of the utmost importance that so valuable an institution, to which is committed the life, liberty and property of every citizen, should be not only preserved, but (1) 1 U. S. 93, sec. 8. (2) Ibid. aeo. 21. (3) Ibid. sec. 22. 62 NEW TEIALS. [Chap. IV. General remarks. preserved in purity, uninfluenced by ignorance, caprice, popular excitement, fear or favor. To provide against every contingency tending to affect a right so sacred, and to secure an intelligent and impartial verdict, the jurors are to be selected from among persons of property and integrity, drawn, summoned and returned by forms as unex- ceptionable as the collected wisdom of ages has been able to devise. When convened, they are again to be drawn, called, sworn and empanneled in the presence of the court, the counsel, the parties, and the public. By all these forms and solemnities, they are separated from their fellow citizens, placed under the direction of the judges, their constitutional advisers, and [*62] *clothed for the time being with high judicial powers. In their presence, witnesses detail the facts, counsel sift the testimony, and the court' recapitulate and distribute it, apply- ing the principles of law. No freedom with the panel is per- mitted ; the avenues to the jury box are shut against intrusion, and attempts to influence them, by excited litigants, -prohibited under the severest penalties. When they retire in charge of the case, the vigilance of justice is redoubled ; and with such mys- terious reverence does the law regard their decision, calling it, by way of eminence, the verdict, (veredictum,) that it will not permit it to be impugned by themselves on any terms, nor by others upon slight pretences. For it is considered more condu- cive to public justice that the mistakes, or even turpitude of the jury, should remain undiscovered, and slight defects overlooked, than that a door should be opened to tampering, or their deci- sions be jeoparded, by allowing jurors to become their own accu- sers' Still, however, the injustice they may occasion is not with- out remedy. In most cases, where the interposition of the law is required to correct their misconduct, it can be done by an appeal to the discretion of the court upon a given statement of facts ; and it may be regarded as a general rule that, wherever the misconduct of the jury has resulted to the injury of a party, relief will be granted directing a new trial.(l) (1) 1 Chit. Archb. 256; Gra. Prac. 2T2— 274. Chap. IV.] MISCONDUCT OF THE JURY. 63 Suffering themselves to be tampered with by the parties. The duty of the jurors, being ertipanneled, is to listen impar- tially to, and carefully to weigh, the evidence ; to avoid all inter- course with the parties, their counsel, and even strangers, on the subject they are sworn to decide ; not to separate, unless by. per- mission of the court and consent of parties, while the trial is in progress; to take the law from the court, and after the testimony is concluded, and they are charged with the cause, to re- tire to some convenient *place, and their to confine them- [*63] selves to the evidence submitted to them in the presence of the court ; to admit neither persons nor papers to their retire- ment ; neither to eat nor drink, at least at the expense of either party, nor to disperse until they have agreed upon their verdict, or be discharged by order of the court. If, in any of these particulars, they wilfully violate the law, especially if abuse ensues upon their misconduct, it will subject them to punishment as for a misdemeanor, and in many instances will also vitiate their verdict. II. Suffering themselves to he tampered with hy the parties. If, at any time intermediate the opening of the. cause and their rendering of the verdict, the jurors suffer themselves to be approached and labored. by the parties or their agents, and find for that party, their verdict will be set aside. The rule is thus put, by way of example, by Lord Hale : " If the prevailing party, or any in his behalf, say to a juryman after his departure from the bar, and before verdict given, the case is clear for the plaintiff, this will avoid the verdict if given for the plain- tiff, for it is new evidence. But not if, after the jury are sworn, he speaks with a juryman, but nothing touching the business in issue ; this doth not avoid the verdict given after for him."(l) We have seen in Metcalf's case,{2) that when the jury examined a witness ex parte, although to the same matter he had testified in court, the verdict was set aside, and a venire de novo awarded.(3) (1) 2 Hale's P. 0. 308. (2) Cro. Bliz. 189. (3) St vide 2 Bay, 94. 64 NEW TEIALS. [Chap. IV- Sufifering themselves to be tampered with by the parties. So in Jennings v. Warne. Motion for a new trial, because one of the jurors, after they retired, came from his fellows and spoke to the attorney of the other side, and received a [*64:] bundle of papers from him which he carried to *the rest. It was pretended it was no more than a map of the pre- mises which the judge had held in his hand at the trial. But, per Hardwicke, Ch. J., "It will depend only on this, whether it was delivered to the jury by the consent of both parties, for if that appeared, it would prevent the parties alleging anything against it; but as no such consent appears here, the verdict must be set aside."(l) The same rule prevails in Massachusetts. In Knight v. Inha- bitants of Freepori,{2) a new trial was granted, because the plain- tiff's son-in-law said to one of the jurors, that the cause was of great consequence to him ; that he should have to pay the costs if the cause should go against the plaintiff, and that the defence of the action was a spiteful thing on the part of the defendants. So, in Connecticut, in Bennett v. Howard, in error. (3) Action on the case, and verdict for plaintiff. Defendant moved in arrest of judgment, and showed for cause, among other things, for that one of the jurors empanneled in the cause, and who joined in the verdict, freely conversed about the case, while, it was on trial, with other persons not of the jury, publicly declaring that the defendant's conduct could not be justified ; and gave his opinion in favor of the plaintifi', before the testimony had been received and the cause argued. Upon which the court remarks : " The oath of jurors obliges them to speak nothing to any one concern- ing the matters they have in hand, but among themselves, nor suffer any one to speak to them about the same, but in court, until the verdict is delivered up in court. In this case, the court below found that oneof the jurors conversed freely with persons not of the jury about the case, while it was on trial. This was (1) Lee's Rep. Tem. Hard. 116. (2) 13 Mass. Rep. 218. (3) 3 Bay, 223. Chap. IV.] MISCONDUCT OF THE JURY. 65 • ' — 1 Suffering themselves to be tampered with by the parties. directly contrary to his oath. To suffer such practice to obtain would be *of very dangerous tendency, by open- [*65] ing the way to corrupt the streams of justice, and would destroy all confidence in the trial by jury." In New Hampshire, where, after a caus'e opened to the jury, one of the parties made statements to a juror, out of court, favorable to his own cause, and the jury found a verdict accord- ingly, it was set aside.(l) So, in Pennsylvania, in Branson v. Oraha'm.{2) Case, for non- performance of a contract respecting the transfer of stock, and a verdict for the plaintiff. A rule was obtained to show cause why the verdict should not be set aside and a new trial granted, which rule was now made absolute by consent, without argu- ment. It was adrhitted, that the jury retired from the bar, and conferred together for some time without coming to a decision, and then broke up late at night. Next morning, one of the jurors applied to a broker for information, respecting the prices of certificates at a particular period, and having obtained the in- telligence he wanted, communicated the same to his fellow jurors. A venire facias de novo was awarded. And in Bradley v. Bradley,{B) in ejectment, a new trial was granted on a similar principle, for the singular reason that some of the jurors gave testimony to the rest after they retired. In proving title the principle question agitated in the court was, whether the deed for life was genuine? But when the jury withdrew, two of them testified to their brethren, that although the defendant had bought the land, yet the bonds which she gave for the purchase money were unpaid when she married with the testator, and that the testator had been obliged to discharge them. On this representation, several of the jury, who were before in favor of the defendant's title, concurred in finding (1) Perkins v. KnigU, 2 N. H. Rep. 4'74. (2) 2 Teates, 166. (3) 4 Dall. 112. NEW TEIALS. [Chap. IV. Beoeiving papers not submitted in evidence. [*66] a verdict for *the plaintiff. On arguing the motion for a new trial, the defendant produced the depositions of two of the jurors, setting forth that after the jury had withdrawn, two other jurors had affirmed certain matters of fact, which had induced the deponents to find a verdict for the plaintiff; and also the depositions of two witnesses, contradicting the facts that had been so affirmed. The plaintiff produced the depositions of six of the jurors, explaining their conduct, and averring that the whole twelve were of opinion, that another deed conve^'ing the premises in fee had been executed. In granting the motion, the court took no notice of a point that seems to have been made by the counsel, as to the admissibility of the depositions of the jurors, to establish the misconduct of the jury, but without hesi- tation made the rule absolute. No case precisely in point appears to have occurred in our own courts, of an attempt to labor the jury. But there can be little doubt, should such a case occur, it would meet with a similar treatment, although it is probable that the question of a new trial in such a case, would be disposed of, rather as a question of judi- cial discretion, than of strict law or right. The law of the State against embraceo-y,{l) which is sufficiently severe, shows with what jealousy all attempts upon jurors are to be regarde'd ; but whether in any given case it would avoid the verdict, would probably de- pend on the abuse presumed, or proved to have followed, and the substantial justice of the case, III. Beceiving papers not svhmitted in evidence. If the jurors receive papers not submitted, or partially sub- mitted in evidence, the verdict will be set aside, if found for the party committing the irregularity. The rule is thus put : If the party deliver a scroll to a juror, in proof of what he afterwards attempts to "establish at the trial, and the juror [*67] shows it to his fellows, and they find for the party *who (1) 2 R. S. 683, (Banks, Gould & Co.'s Ed. 1852, p. 866,) and see 5 Cowen, 503. Chap. tV.]. MISCONDUCT OP THE JUEY. 67 Receiving papers not submitted in evidence. delivered it, it will avoid the verdict.(l) But not if the juror have a piece of evidence in his pocket, and after the jury are sworn and gone together, he showeth it to them ; this is a mis- demeanor, finable in the jury, but it avoids not the verdict,' though the facts appear upon examination.(2) If this mean anything more than that facts or papers in the knowledge or possession of jurors, maybe referred to in illustrg,- tion of the evidence given at the trial, it is presumed it would not be law at this day. By no rule of modern practice can any evi- dence, material to the issue, be legally noticed by the jury, un- less first submitted to them in the presence of the court. This is well illustrated in a recent case. The King y. Sutton,{3) for a sedi- tious libel, tending to instigate public outrages. The king's pro- clamation and the preamble to two acts of Parliament, were offered in evidence and objected to," but admitted, and the defen- dant was convicted. A new trial was moved for, on the ground that improper evidence was admitted, for deficiency of proof, and because the judge had misdirected the jury, in stating to them they were at liberty to refer to their own personal knowledge, if they saw any of the outrages committed ; which doctrine, it was contended, was exploded. The case was elaborately argued by eminent counsel, and the judges delivered their opinions sen'aim. Thechargeof the judge at the trial, as to the use to be made by the jurors of their jsersowr al knowledge, is coinmented on with great clearness, and pre- sented in its true point of view, by Lord Ellenborough;. " If, in this case," says he, " I had been able to detect any particle of proof that ought not to have been offered to the consideration of the jury, I should have thought such vicious proof would have *corrupted the verdict, and avoided it. But after [*68] the utmost attention, I am unable to discover that there is any vice in any particle of this evidence. The material objec- « (1) Bro. Abr. Judgment, pi. 143 (2) 2 Hale's P.. 0. 306. (3) 4 Maule & Sel. 532. 68 NEW TEIALS. [Chap. IY. Receiving papers not submitted in evidence. tion upon which the rule was obtained, was founded upon a sup- posed misdirection of the learned judge at the trial, viz. : that he had referred, in aid of some defect of evidence, to the personal knowledge which the jurors might possess, for proof of the fact that outrages had been committed in Nottingham ; for, as to their having been committed in the neighborhood of Nottingham, I do not think that it is material to prove both. It now appears, how- ever, from the report, that the judge did not lay any stress on the personal knowledge which the j ury might be supposed to possess, in order to aid any defect of evidence. On the contrary, it ap- pears that he considered the evidence as fully sufficient to estab- lish a verdict in favor of the crown ; only he made the observa- tion with reference to what they knew as a matter of illustration, that it formed a part of the history of the county, that such out- rages had been committed; as if he had said, every one must be aware of what has passed before their own eyes, and at their own doors ; but he did not advise them to rely on that as a source of information on which they were to found their verdict, but only that it might make the proof more satisfactory to their minds, if they knew what had passed, because no one can have any reason to doubt what he knows and sees. It is conclusive, I think, upon the report, that the judge did not leave this to the jury as form- ing a branch of evidence of itself." A case in Virginia, Price V. Warren,{V) will further illustrate the only justifiable use to which the jurors may put their person- al knowledge, and how far the court will indulge them in [*69] mixing it w.ith the testimony adduced in *open court. It was an action on a bond due more than twenty years, and the presumption of payment was relied on. A verdict being found for the plaintiff, the defendant moved for a new trial, sta- ting that two jurymen had declared that one of their own body, who was not examined, said in the jury room, that he knew the testator of the defendant, and that he was so accurate a man in his affairs, that he would have taken a receipt on the bond, if it (1) 1 Hen. & Mun£ 385. Chap. IV.] MISCONDUCT OF THE JUEY. 69 Receiving papers not submitted in evidence. had been. paid ; and the said two jurors had further declared that this circumstance alone influenced them to find for the plaintiff. The plaintiff's counsel admitted these matters in like manner as if proved by af&davits of the two jurymen. But the court below overruled the motion for a new trial, on the ground that it would be dangerous to grant a new trial on such information from the jurymen, and that the new trial would have been against the yi«- tice of the case. In the Court of Appeals, the judgment was af- firmed. So, in Purinton v. Humphrey s,{l) where the jury, after they re- tired to deliberate on a cause, received and were influenced by the declarations of one of their fellows, discrediting a material witness of the plaintiff, it was held to be no good cause to set aside the verdict. But it would be otherwise, if the statements made by the juror to his fellows were material to the issue. As in Talmadgev. Nor- throp.i^) Action in deceit. Plea, not guilty, and verdict for de- fendant. Motion in arrest of judgment; that one Patterson, a juror, gave evidence to his fellows, while they had the cause un- der consideration, which was not given in court, viz. : that he was coming through Warren, the place where the horses were sold, when Talmadge, the defendant, and his brother, were selling them to the defendant's partner, Bishop, and he wondered *that Talmadge trusted him, as he lived within six miles [*70] of him, and must hq^e known his circumstances. And also, for that said Patterson would not trust said Bishop himself. The court inquired of the jury, and found the facts alleged in the motion to be true ; and the verdict was set aside, and the cause continued for another trial. The rule is thus laid down by Coke: "If the plaintiff, after evidence given, and the jury have departed from the bar, or any for him, do deliver any letter from the plaintiff to any of the jury concerning the matter in issue, or any evidence, or any escrowle, (1) 6 Greenl. 379. (2) 1 Root, 522. 70 ■ . NEW TRiAtS. [Chap. IV. Eeceiving papers not submitted in evidence. touching the matter in issue, which was not given in evidence, it shall avoid the verdict, if it be found for the plaintiff, but not if it be found for the defendant, et sic e cowwer50."(l) Accordingly, it has been held, if the jurors send for a book after departure from the bar, and read it, the verdict is void.(2) In conformity with the spirit of this rule, the court, in a recent case, Burrows v. Unwin^(2>) refused to send the jury a book, although the counsel on|,bothsides'consented. Action on'the case, for negligence of the defendant's servant. Lord Tenterden, Ch. J., had summed up the evidence, and the jury had retired, when they sent a message to his'lordship, desiring to have " Selwyn's Law of Nisi Prius " sent them from the library of the court. Lord Tenterden asked the counsel on both sides, if they objected to its being sent, and they 'answered that they had no objection. However his lordship observed, " The regular way is for the jury to come into court and state their question, and receive the law from the court ; and for the sake of precedent, that covirse should be adopted now." So, if after the evidence given, where divers papers are read on both sides, and the clerk is making up his bundle [*71] *of papers, that were under seal, to deliver to the jury, the solicitor for the plaintiffs deliver a bundle of depositions . to the jury, some whereof were read, and some not read, and upon examination this appeared, though the jury swore they opened not the bundle delivered by the solicitor ; yet the verdict for the plaintiff was for this cause avoided, and a venire facias awarded, for great inconvenience may be by such a practice. And the oath of the jury, that they never looked into them was not regarded, for possibly it may be a misdemeanor in them to look into them, which they shall not excuse in this manner.(4) So, in Massachusetts, where a paper not read in evidence had (1) Co. Lilt. 22'?. (2) Vin Abr. Trial, pI.18. (3) 3 Oarr. & Payne, 310. (4) 2 Hale's P. 0. 308. Chap. IV.] MISCONDfrCT OF THE JURY. 71 Receiving papers not submitted in evidence. been given to the jury by mistake, a new trial was granted. On examining the paper, it appeared to the court to furnish ma- terial evidence in favor of the party prevailing. But he moved the court to examine some of the jurors, to prove that they were not influenced by it in finding their verdict. The other party had also summoned other jurors to prove the influence. The court refused to examine any of the jurors, and observed, that the court must be governed by the tendency of the paper appa- rent from the face of it ; that it was not pretended that the jury had not read it, and it would be difficult for jurors, where, as in this case, there was much evidence of different kinds, clearly to decide in what manner their minds were influenced in forming their verdict. As it was received by the jury among other writ- ten evidence, and read by them, it must be presumed that they considered it as evidence, and gave due weight to it.(l) But in a subsequent case, Hix v. Drury^i^) a new trial was refused by the same court,. and the jurors permitted to *explain, under circumstances very similar to those, of [*72] the case last cited. Case for slanderous words. It ap- peared, after the jury had returned a -verdict for the plaintiff, that two depositions, which had not been read on the trial, were put iip with the other papers and delivered to the jury, and were returned by them- vjrith their verdict. It did not appear by whom these depositions were put up ; the irregularity was entirely ac- cidental. The question being put to the jury, whether these de- positions were read by any of them, they retired to inquire of each other, and on their return, the foreman stated that none of the jury had any distinct recollection, that either of the deposi- tions had been read by them, but they recollected that part of one of them had been read in court. On the next day, some of the jury having suggested that the answer of the foreman was not sufficiently explicit, the question was again put to him, and he stated that the jury had intended to answer, that they were satisfied that neither of the depositions was read by them in their (1) Whitney v. Whitman, 5 Mass. Rep. 405. (2) 5 Piclj. 296. 72 NEW TEIALS. [Chap. IV. Receiving papers not submitted in evidence. room. They were then asked if they all agreed in that answer, and they assented. Upon this the court observes : " It appears that the two depositions went to the jury by accident. We think it is sufficiently proved that they were not read, and that although the eleven jurors were not sworn to testify, yet, that by their oath to give a true verdict, they were as much bound to make true answers in court, touching their verdict, as if they had been sworn specifically for that purpose. These papers then having gone to the jury by accident, and not having been read by them,, the question is, whether there shall be a new trial. We are all of opinion, that if a paper not in evidence is delivered to the jury by design, by the party in whose favor the verdict ia re- turned, the verdict shall be set aside, even if the paper is imma- terial ; and this is a proper punishment for the party's miscon- duct. But that is not the present case. So where a paper is capable of influencing the jury on the side of the prevail- [*73] ing party, goes to the jury by *accident, and is read by them, the verdict will be set aside, although the jury may think that they were not influenced by such paper, for it is im- possible for them to say what effect it may have had on their minds. But where a paper which might influence the jury is not read, it is the same thing as if it had not been delivered to them. The verdict, therefore, is not liable to objection on this ground." This, and the former case, do not differ in the principle, that the jury are not to read a paper not submitted in evidence, but simply in the mode of the court's arriving at a knowledge of the fact. In the one case, it is ascertained from the jury, that the depositions were not used ; in the other, no inquiry appears to have been made, and in the absence of proof, the court pre- sume, as they had a right to do, that the jury used the papers. It ;s proper to observe, that the mode adopted by the court, in th&iast cited case, to possess themselves of the fact by examin- ing the jury in open court, is more conformable to the ancient practice, and it may be added more satisfactory, and much less CttAP. IV.] MISCONDHCT 01^ THE JURY. 78 Taking papers out with them by mistake, but not reading them. liable to abuse than proceeding by afi&davit. The rule is thus expressed by Lord ffah-^" If, after the jury sworn, eitheB party deliver a piece of evidence to the jury, and the verdict is given for him that delivered it, it shall avoid the verdict ; but then this must appear by examination, and be indorsed upon the postea or verdict, so as it appears of record, and it must not be barely by affidavit made after."(l) The modern practice generally is to read affidavits on the motion. TV. Taking papers out With them by miMahe, hut not reading them. It would appear to follow, as a necessary inference, that if the jury take out papers by mistake, but do not read them, and to that they may be exam/'ied, the verdict would not be dis>- turbed. * With this agrees 5acHe?, V. 5asfe(2) The defendants [*74] moved to set aside the verdict given for "the plaintiff in this cause, for irregularity. They read an affidavit stating that at the trial of the cause, the jury, when they went out to con- sider of their verdict, took with them a commission for the ex' amination of certain witnesses, with the interrogatories and de- positions annexed, a paper attached to which had been read in evidence on the trial of the cause, and that no consent of the counsel was given for the purpose. For the plaintiff were read the afiidavits of three of the jurors, who tried the cause, that the papers mentioned were not readby the jury. Per Curiam. — " The decisions on this subject to be found in the books are contradic- tory. Some of the ancient cases are very strict, but of late years courts have been inclined to be less rigid, and to decide according to the real justice of the case. If the jury have never looked at the papers, nor have been influenced by them, there can be no just cause for setting aside the verdict." (1) 2 Hale's P. C. 30T. (2) 3 Johns. Eep. 252. Vol L 74 NEW TEIALS. [Chap. IV. Taking papers out with them by mistalse but not reading them. In Pennsylvania, the same rule, as to jurors carrying off papers without permission, has been adopted. In Sheaff v. Oray,{\) there was a verdict for plaintiff, and o;i a rule to show cause, it appeared that a paper was delivered to the jury, containing an account of expenditures respecting a house built on the lands of the defendant, said to be with the knowledge of the defendant, refer- ring to the bankrupt's books and their several pages, without the consent of the adverse counsel. The books were not delivered to the jury, and the account given to them varied from that be- fore furnished to the defendant. For the plaintiff, it was con- tended that the paper was a mere estimate, and shown to the jury by way of calculation, and therefore immaterial. But, [*75] By the Court — " This paper cannot be called an *estimate or calculation. It goes to substantiate the demand of the plaintiffs. It is a dangerous precedent, and may lead to ill con- sequences, though we do not suppose there was any intention here of doing wrong. All the cases agree that a party deliver- ing papers to the jury without consent or the leave of the court, a new trial shall be granted. We know not what effect this paper may have produced in the minds of the jury ; but we well know they should not have had it delivered to them. Solely on this ground, and without expressing our sentiments as to the merits of the case, a new trial is awarded." So rigidly. is the rule adhered to in Massachusetts, as to have been held, in a recent decision, that a correspondence of the jury with the judge, after thfjy retire from the bar, will avoid the ver- ■ diet, as in Sergeant v. Boberts.{l) The trial of this action lasted three days. After the jury had been out six hours, the foreman wrote to the judge at the chambers, that they could not agree, and that they waited for his directions. The judge returned an answer in writing, saying, that he was unwilling, after so much time had been consumed in the cause, to permit them to separate, and giving such directions, as would enable them to consider the cause in a more systematic manner. He added, that the officer (1) 2 Teates, 213. (i) 1 Pick. 337. Chap. IV.] MISCONDUCT OP THE JUEY. -75 Taking papers out with them by mistake, but not reading them. had directions to take them to a more convenient apartment, if they desired it. The judge also directed the jury to bring his letter into court with them, in order that it might be filed with the papers in the case. After this they agreed upon a verdict in favor of the defendants, and the plaintiff moved for a new trial, among other reasons, because of this communication from the judge to the jury. Parlcer, Ch. J., delivered the opinion of the court, and after observing at large upon numerous in- stances of a similar nature, amounting almost to the settled *practice of the court, concludes, " We are all of opinion, [*76] after considering the question maturely, that no commu- nication whatever, ought to take place, between the judge and the jurjl, after the cause has been committed to them -by the charge of the judge, unless in open court, and where practicable, in presence of the counsel in the cause. The oath administered to the officer seems to indicate -this as the proper course. He is to suffer no person to speak to them, nor to speak to them him- self, unless to ask them whether they are agreed ; and he is not to suffer them to separate until they are agreed, unless by order of the court. When the court is adjourned, the judge carries no power with him to his lodgings, and has no more authority over ,the jury than any other person ; and any direction to them from hini, either verbal or in writing, is improper. It is not sufficient to say, that this power is in hands highly responsible for the pro- per exercise of it. Tlie only sure way to prevent all jealousies and suspicions, is to consider the judge as having no controlwhat- ever over the case, except in open court, in presence of the par- ties and their counsel. The public interest requires that litiga- ting parties should bave nothing to complain of, or suspect, in the administration of justice, and the convenience of jurors is of small consideration, compared with this great object. It is better that every body should suffer inconvenience, than that a practice should be continued which is capable of abuse, or at least of being the ground of uneasiness and jealousy."(l) (1) Vide 6 Green. 141. 76 NEW TEIALS. [Chap. IV, Carrying away papers without consent of counsel, under the direction of the court. V. Carrying away papers without consent of counsel, under the direction of the court. But however irregular it may be in the jury to carry away papers without consent of counsel under the direction of the court, yet if not furnished by the prevailing party, and wholly immaterial to the issue, it will not avoid a verdict, in other re- spects regular. [*77] Thus, in Vicary v. Farthing ;{l) the parties were at issue, and at the trial, to prove the non-age o'f the plaintiff^ a church book was given in evidence. After the jury's departjire from t^ bar, and before they had agreed upon their verdict, the plaintiff's solicitor delivered to the jurors the said churcn book, and afterwards they found for the plaintiff. All this matter was returned upon the joostea ; and for this cause it was moved that judgment should be stayed, and in proof thereof Metcalf's case was cited.(2) Wiatt, J., said, that it had been ruled in one Pich ering's case, where letters patent were given in evidence to the jury, while they were conferring upon their verdict, by the plain- tiff, without the court's direction, delivered them the said letters pa- tent, that judgment should be stayed upon the verdict. Oawdy and Popham denied that case ; and a distinction was taken be- tween writings and parol proof, but chiefly it was urged it would be mischievous to the party for whom a verdict passed, if the^ delivery of evidence by the contrary party, or, peradventure, by a stranger without his privity, should stay his judgment. But Fenner, e contra, objected, because there might be some matter in this book to induce them otherwise than they intended before ; and because it was delivered on his part for whom the verdict passed. Wherefore it was adjourned ; bi^t afterwards, the fact appearing to be immaterial, it was adjudged for the plaintiff. So, in Rex v. Burdeit.{3) Information was brought against Burdett, farmer of Newgate market, for extortion ; and the ex- (1) Oro. Ellz. 411. (2) Ante, p. 48. (3) 1 Lord Raym. 148. Chap. IV.] MISCONDUCT OF THE JURY. 78 Carrying away papers without tonsent of counsel, under the direction of the court. tortion was assigned, for that he had taken divers sums of money of the market people for rent, for the use of the little stalls in the market, and divers great sums for fines. At Nisi Prius, upon the general issue pleaded, the *defendant was found [*78] guilty. It was moved to set aside the verdict. And one of the irregularities assigned was, that the jury took with them out of court an order of the common council, without the leave of the court, or consent of the parties. And they cited the case of Lady Joy, where a verdict was set aside,- because the jury took with them a map of the premises out of court. But as to this point he said, that it was irregular to take the act of the common council ;,but the matter of the act being evidence on both sides, it would not set aside the verdict. So, in a recent case in Pennsylvania, Lonsdale y. Brown.{l) A new trial was moved for, because the jury took out with them a deposition, part of which was objected to and overruled at the trial. The court put their denial of the motion, as to this point, upon the ground that the parts of the deposition that had been overruled by the judge, and read by the jury, were altogether irrelevant and immaterial to the issue. A distinction has been taken between sealed and unsealed papers. The former, it has been held, the jury may have, by permission of the court, but not the latter, except, by consent. Yet, should the jury violate the rule in either, or even in both instances, it would not avoid the verdict. It is thus laid down by Judge Bulhr — " The jury, after going out of court, shall have no evidence with them, but what was shown to the court as evi- dence, nor that without the direction of the court. The court may permit them to take with them letters patent, and deeds under seal, and the exemplification of witnesses in Chancery, if dead ; but not a writing without seal, unless by consent of parties. But though the jury take with them patents, deeds, &c., without leave of the court, or writings without seal, books, &c., without consent of court or party, it shall not avoid (1) 4 Wash. 0. o! Rep. 148. 79 NEW TEIALS. [Chap. IT. Carrying away papers without consent of counsel, under the direction of the court. [*79] *the verdict, though they be taken by the delivery of the party for whom the verdict was given."(l) If the distinction between writings with and without 'seal ever existed in this country, it has been long since exploded. Yet in a late case in Pennsylvania, Alexander v. Jamies(m,{^) it was put forward, ineffectually to be sure, as the only cause for reversing a judgment. The reasons for the distinction originally, and its inapplicability to modern times, and especially to the tribunals of these United States, are contained in the very learned decision of the court, delivered by Tilghman, Ch. J. — This was an issue directed to try who were the heirs of a certain John Alexander. The defendant gave in evidence a manuscript book found in the trunk of the said Alexander, after his death. When the jury were about to retire, the counsel for the plaintiffs objected to their being permitted to carry this book out with them ; but the court were of opinion that the jury should have it, to which opinion an exception was taken, upon which the chief justice observes : " It is no longer a question whether the book was legal evidence; but the naked point is, whether, having been given in evidence, the court might permit the jury to take it out with them. It is undoubtedly laid down as a principle, in some of the English cases, that the jury are to take no papers not un- der seal, without the consent of both parties ; yet the same cases say, that if the court permit them to be taken, it shall be no cause for setting aside the verdict. We are somewhat in the dark as to the reason of this distinction between sealed and un- sealed writings, but it is certain that it originated under circum- stances not applicable to the present times. The best account of it is to be found in the writings of Lord Hale and Lord Gilbert. They say that in ancient times, men of rank and property [*80] had *seals, by which their families were distinguished. Those were not numerous ; and as causes were tried by men in the neighborhood, it was supposed that the seals were so (1) Bull. N. p. 308. (2) 5 Binn. 238. Chap. IV.] MISCONDUCT OF THE JUEY. 80 Separation after being charged, before verdict. notorious as to be well known to the jury. Papers under seal, therefore, carried their own evidence along with them ; and, in- deed, it is probable, that in many instances it was thought suffi- cient to affix a seal without any subscribing evidence, so that the instrument was affixed to- the seal alone.. But the notoriety of seals has long ceased. Every man now takes what seal he pleases. It does not appear that the point has been brought be- fore any court for the last half century, during which period, the commerce of the world has been prodigiously enlarged, and commercial people make very little use of seals in their transac- tions. I have never known this question expressly- decided in Pennsylvania ; but I take it, that in practice the English rule has not been extended here." In the state of New York the practice is, not to allow the jurors to have the papers produced in evidence, without the con- sent of parties. Yet there appears to be no good reason why the judge at the trial should not exercise his discretion in giving or withholding the papers, as may best promote the ends of justice. And should he exercise such a discretion, and an exception be taken, there is little doubt, that, following up the intimation in Hackley v. irastie,{i) the court would meet the question upon the ground of sound discretion, rather than of strict right. VI. Separation after being charged, be/ore verdict. It was formerly held that if the jury separated, after being charged with the case, and before they rendered their verdict, except by permission of the court and consent of parties, or from necessity, it avpided their verdict; but the modern rule is different. *The nature, duration and privations of the confine- [*81] ment of the jury, after they retire, are thus stated by ^ Lord Coke: "By the law of England, a jury, after their evi- dence given upon the issue, ought to be kept together in some (1) 3 Johna Bep. 253. 81 NEW TRIALS. [Chap. IV. Separation after being charged, before verdict. convenient place, without meat or drink, fire or candle, which some books call an imprisonment, and without speech with any, unless it be the bailiff, and with him only if they be agreed. After they be agreed, they may, in causes between party and party, give a verdict, and if the court be risen, give a privy ver- dict before any of the judges of the court, and then they may eat and drink, and the next morning, in open court, they may either af&rm or alter their privy verdict, and that which is given in court shall stand. But in criminal cases of life or member, the jury can give no privy verdict, but they must give it openly in court."(l) • In the Earl of Kenis case,(2) the jury being sworn at the bar, retired to the open street, and there came such a tempest, that some of the jury departed without leave of the justices. One of the jurors came into a house, where he was cautioned by divers persons to take care what he did, for the matter was better for the Earl of Kent than for the bishop, and was asked to drink, and did drink. And after the storm ceased, the jurors rejoined each other, and found for the bishop. The Earl of Kent had the whole matter certified to the court. The point of the jury's dis- persion, was argued and re-argued in the Exchequer Chamber, and after much deliberation, the court stood six to four, sustain- ing the verdict. Upon a like principle of necessity, it has been gravely held, what would not in modern practice bear to be dis- puted, that a separation of the jury by reason of a sudden affray, fire, or a house about to fall, and the like, would not avoid the verdict, nor would the jury be amerced.(3) [*82] *The modern practice in England is to permit the jury to separate, even in criminal cases, in the discretion of the judge ; and where there is no ground to suspect they have Jaeen practiced upon during the interval of their dispersion, it will not vitiate their verdict. This has been so recently and so fully il- (1) Co. Litt. 22Y. (2) Bro. Ab. Verdict, pi. 19. (3) Bro. Ab. Yerdlot, pi. 19. Com. Dig. Enquest F. Chap. IV.] MISCONDUCT OF THE JUEY. 82 Separation after being charged, before verdict. lustrated in the case of The King v. Woolf and others,{l) as to settle the practice on this point, if any doubt existed before. The defendants were indicted for a conspiracy to obtain goods by undue means. At the trial before Abbott, Ch. J., the defend- ants, Mozely, Woolf, Levy and Kinnear, were found guilty. They moved for a rule to show cause why the verdict should not be set aside, -on the ground that the finding of the jury was void, the jury having dispersed, during the interval of an ad- journment, before they delivered their verdict. The affidavits, in support of this motion, stated in substance, that the trial had lasted two days ; that in the morning the trial commenced, and about 11 o'clock at night, the case being then unfinished, the court adjourned until the following morning ; and the jury sepa- rated and retired to their respective homes. The next morning they assembled again, and the case being concluded at a late hour in the afternoon of that day, they found the defendants guilty. The defendants and their 'attorneys were wholly ignorant of the fact of the jury having separated, until after they had found their verdict. The judges delivered their opinions seriatim ; but that of Abbott, Ch. J., will sufficiently illustrate the- modern rule. — " I am of opinion that there is no sufficient foundation for the present application. The application is grounded upon the sug- gestion of these two facts: First, that the jury had dispersed during the night. /Secondly, that that fact was not known to the defendants until after the trial was over. Now the trial *began between nine and ten in the morning ; it had pro- [*83] ceeded until eleven o'clock at night or later, before the evidence on the part of the prosecution was closed. Learned counsel were employed separately for several defendants. It must be assumed, that in that stage of the case, evidence would be laid before the jury on the part of the defendants. It became matter, therefore, of necessity, that the trial should be adjourned, and an adjournment accordingly took place from the necessity of the case, the jury being fatigued both in mind and body; and it would have been most injurious to the case of the defendantsj (1) 1 Ohitty'sRep.401. 83 NEW TEIALS. [Chap. IV. Separatiou after beiug charged, before verdict. even if the judge and jury had had strength enough to go on till the trial came to a close ; I say most injurious to the case of the defendants, if their case was heard by persons whose minds were exhausted with fatigue, as it would have been, if an ad- journment had not taken place. An adjournment of this nature is not necessarily followed by the dispersion of the jury, for in many cases, they are kept together till the final close of the trial. But I am of opinion, that in a case of misdemeanor, their disper- sion does not vitiate the verdict ; and I found my opinion upon the admitted fact, that there are many instances, of late years, in which juries upon trials for misdemeanors, have dispersed and gone to their abodes during the night for which the adjournment took place, and I consider every instance in which that has been done, to be proof that it may be lawfully done. It is said, that in some of those instances, the adjournment and dispersion of the jury have taken place with the consent of the defendant. I am of opinion, that that can make no difference. I think the consent of the defendant in such case ought not to be asked ; and my reason for thinking so is, that if that question is put to him, he cannot be supposed to exercise a fair choice in the an- ■ swer he gives, for it must be supposed that he will not oppose any obstacle to it : for if he refuses to accede to such an [*84] accommodation, it will excite that *feeling against him which every person standing in the situation of a defend- ant would wish to avoid. I am also of opinion, that the consent of the judge would not make, in such case, that lawful, which was unlawful in itself; for if the law requires that the jury shall at all events be kept together, until the close of a trial for misde- meanor, it does not appear to me, that the judge would have any power to dispense with it. The only difference that can exist between the fact of the jury separating with or without the ap- probation of the judge, as it seems to me, is this, that if it be done without the consent or approbationof the judge, express or implied, it may be a misdemeanor in them, and they may be liable to be punished ; whereas, if he gives his consent, there will be no such consequence of a separation. But, though it may be a misdemeanor in them to separate without his consent, it will Chap. IV.] MISCONDUCT OF THE JUEY. 84 Separation after being charged, before verdict. not avoid the verdict, in a case of this kind, as it would, if the law required the jury to be absolutely kept together. It seems to me, that the law has vested in the judge the discretion of say- ing, whether or not, in any particular case, it may be allowed to the jury to go to their own homes, during a necessary adjourn- ment throughout the night. For these reasons it appears to me that there is no ground for the present application, and I con- ceive, we ought hot to give any reason to suppose that any doubt exists, when none really exists in our minds." No case precisely in point has occurred, defining the power of the judge at the trial, and settling the American practice on the subject of the separation of jurors, at least in criminal cases. The uniform practice it is believed in this country is, not to per- mit'the jury to separate in any stage of the progress of a crimi- nal suit, after the case is given them in charge by the court, without consent of counsel. But there is little doubt, should the question arise upon a similar state of facts, as in the King v. Woolf, the decision woufd be similar. In a late [*85] case from Massachusetts, where the judge authorized the jury, without consent of counsel, to separate, after they should agree upon their verdict, and to return and render it at the opening of the court, it was held, upon motion to set aside the verdict, that it was not vitiated by the separation of the jury.(l) It was early held, that if the jury separated from inadvertanee, and no abuse followed, although punishable by fine, it would not avoid the verdict. Thus, in Lord St. John v. Ahbott.{^) After the evid'ence was summed up in the forenoon, the jury retired to consider of their verdict. Before the rising of the court they came into court, attended by the bailiff, to ask a question, which was answered, and tljey were sent back. At the sitting of the court in the afternoon, the judge was informed, that some of the jurymen were in court ; whereupon being asked by him what they did there, answered they could not agree, and were there- (1) Winslov) v. Draper, 8 Pick. 110. (2) Barnes, 441. 85 NEW TEIALS. [Chap. IV. The court will inquire whether injury has ensued from the separation. upon sent back to their fellows, and afterwards a verdict was brought in for plaintiff. The judge did not certify the verdict to be contrary to evidence. The court was of opinion, that this was a misbehavior in the jury, for which they were finable; but not a sufficient cause to set aside the verdict. VII. The court will inquire whether injury has ensued from Hie separation. Upon this point the practice in this country appears to have resolved itself into the exercise of a judicial discretion, confiriing the motion for a new trial to the question of abuse, and invari- ably (fenying the application, where no injury has ensued. Thus, in Smith v. Thompson:{V) Motion to set aside the ver- dict, for irregularity in the conduct of the jury. After they had retired, and remained from 6 P. M. to 3 A. M., With- [*86] out *being able to agree on their verdict, two of the jurors, eluding the care of the constable, left the jury room, and one of them remained at a neighboring tavern during the night; the other went to his own house, -which was near by, ate his supper there, and staid all night. Both jurors returned, however, and the whole were together and went into court' the next morning. They informed the court that they had not agreed, stated the point to the court wherein they differed, took their advice, retired, and found a verdict for the plaintiff. No improper communication with the jury appeared ; and no pro- bability that their absence had produced any effect upon their minds, in making up their verdict. Per Curiam. — " It was clearly irregular in the two jurors to separate from their fellows. But this does not affect the merits of the case, as between the parties. The ancient strictness, in relation to the conduct of jurors, is somewhat relaxed. Whether the verdict is to be set aside, must depend upon circumstances, and the real justice of the case. If there is a probability of abuse, we then notice it; but here is none." (1) 1 Oowen, 221. Chap. IV".] MISCONDUCT OF THE JtlRY. 86 The court will inquire whether injury has ensued from the separation. So, in Horton y. Horton.{V) Motion for a new trial, on the ground of the misconduct of the jury, who agreed upon their verdict while the court were at dinner, and without the consent or knowledge of either party, dispersed^ and obtained their own dinners, and returned into court at the opening thereof in the afternoon. Against the rnotion, it was contended, that though the dispersion of the jury may be a contempt of court, for which the j ary are punishable, it is not such an irregularity as to avoid the verdict, and of this opinion were the court, adding, that if the slightest su^icion had appeared that the privilege which the jury had taken had be n abused, to the injury of the party, the verdict should be set aside. *So, in Mc parte Htll,{2) a mandamus was granted to va- [*87] cate a rule, setting aside a verdict for irregularity in an action between Hill, plaintiff, and one Clark, defendant. The verdict was for Hill ; and the court below set it aside on Clark's motion, because one of the jurors, during the trial, left the box without permission of the parties or the court, went out of doors, and was absent some minutes, returned and took his seat, and joined in the verdict against the defendant. Neither of the par- ties knew of his absence till he had been gouQ some time ; but no testimony was given to the jury while he was gone ; and he spoke with no one except to tell the constable, who came after him and brought him back, that he was one of the jury. Per Curiam. — " It is the settled .doctrine, that though such conduct as this is a contempt of the court, yet it is not a ground for avoiding the verdict." In Connecticut, a statutory provision on the subject, couched ■ in strong terms, apparently prohibiting, under any circumstances, the separation of the jury, has received a construction conform- able to the general practice. In The State v. Babcock,{3) in error, where the jury had separated before they agreed, the court say : — (1) 2 Cowen, 589. (2) 3 Cowen, 355. (3) 1 Conn. Rep. 401. 87 NEW TRIALS. , [Chap. IV, The court will inquire whether injury has ensued from the separation. " As to the objection that the jury, after the cause was committed to them, were permitted to separate before they agreed on a ver- dict, it may be said that such has been the immemorial usage in this state ; and the practice has been sanctioned by a decision of this court." The case to which the court alludes, is Brandin v. Orannis,(l) in error, a slander case. The defendant moved in arrest, on the ground that the jury, immediately after the cause was committed to them, dispersed into different parts, and so remained till next morning, when they convened at the jury room, consid- [*88] ered the cause, and agreed on their *verdict. The court denied the motion, and the defendant brought a writ of error. Baldwin, J., the other judges concurring, except /Smith, J. — " The question presented by this record is, whether consist- ently with the act, a jury may separate, after a cause has been committed to them, and before they have agreed on a verdict. The only clause applicable, is in these words : ' When the court have committed any cause to the consideration of the jury, the jury shall be confined under the custody of an officer appointed by the court, until they are agreed on a verdict.' Whatever might have been laj opinion of the effect of this statute, had I been called to decide upon it without the aid of practical con- struction, I do not feel myself now at liberty to oppose a uniform practice under it for a century, unless the construction shall appear unreasonable, and the practice in pursuance of it be foU lowed with greater mischief, than would flow from a literal com- pliance with what is claimed to be the letter of the statute. I have never known in our courts a jury confined in the manner claimed. Eeliance has always been placed on the guard set upon jurors by the peculiar form of their oath. It is evident from that, ' that our ancestors did niot mean to introduce the system of starv- ing a jury into agreement, but that their verdict might be the result of cool deliberation. The statute now in question is to be construed that the jury should be attended to and from court by an officer ; should deliberate by themselves under his direction ; (1) Ibid. 402. Chap. IV.] MISCONDUCT OF THE JUEY. 88 The court will inquire whether injury has ensued from the separation. and that he should guard them from intrusion. But it does not require that they should be otherwise restrained, nor that they should be prevented from adjourning and separating when occa- sion requires. This construction of the statute does not appear to me unreasonable. It is certainly conformable to the temper of the times, and the habits of our citizens. And I am n6t con- vinced that we are now bound to abandon it after it has been sanctioned by so long and quiet usage ; nor that the advantages would overbalance the inconveniences resulting from a change." *So, in Ehode Island, in Burrill v. Phillips.{l) Before [*89] the verdict agreed upon, one of the jurors separated by mis- take, and afterwards ^ejoined his fellows, who rendered their ver- dict ; and upon motion it was held, to be in the discretion of the court to allow the verdict to" stand. And, per Story, J. — " It is admitted on all sides, that the conduct of the jurors, in the pre- sent case, was through mere simplicity and ignorance. At first I was struck with the inconvenience of allowing a verdict, after a separation of the jurors, and when opportunity had been given to tamper-with them. And, without doubt, as this is an appli- cation to the discretion of the court, the verdict ought to be set aside, unless the conduct of the juror be free from un*favorable presumption. I am perfectly satisfied with the verdict in this case ; indeed, I do not see how it could have been otherwise upon the evidence before the jury, and I should feel great reluc- tance in setting aside a verdict, so well founded in law and justice, I am glad to be relieved from all doubt by authority. The case • of St. John V. Abbot is directly in point, and the distinction assumed by the plaintiff's counsel seems, in general, well supported. I overrule the motion to set aside the verdict. Let judgment be entered for the plaintiff." So, in New Jersey, Orane v. Sayre.{2) "While an argument was pendipg before the justice, as to the competency of certain testimony, some of the jurors left the room, and returned again (1) I Gall. 360. (2) 1 Halst. 110. NEW TElALS. [Chap. IV, The court will inquire whether injury has ensued from the separation. without leave or consent, and without an officer to attend them. Per Cur. — "A juryman who leaves his fellow jurors without notice or leave, certainly treats the court with great contempt, for which a fine ought to be imposed on him, as soon as the verdict is rendered; and he ought to be committed till the fine is paid. It would retard the trial extremely, and work great [*yO] *confusion to the parties, if the court had to call the list of jurors every few minutes, to be sure they were all pre- sent, as must be done if jurors may go off without notice or leave. But a verdict is never set aside for a juror's misbehavior towards the court, unless it is prejudicial to one or other of the parties, and no such thing appears in this case." . So, in Massachusetts, Winslow.Y. Draper. {V) Action on the case for deceit, in Representing one Hall as worthy of credit, The jury retired at about one o'clock for the purpose of making up their verdict, and separated at about four in the afternoon of Saturday, the judge having authorized them to separate, when they should have agreed upon and sealed up their verdict. On the following Monday morning they appeared in court, and ren-' dered in a verdict, " that the defendant did not say that Hall was perfectly good, knowing it to be false, and with intention to defraud the plaintiff." The verdict was objected to, as not find- ing the issue one way or the other, and the court directed them to retire again, informing them that the issue was, whether the de* fendant was or was not guilty. The jury then retired, and came* in again with a similar verdict, with the addition of these words, "and they thereupon find that he is not guilty in manner and form," &c. The plaintiff moved for a new trial, among other reasons, be- cause the jijry separated before they found a verdict on the issue submitted to them ; and because, after they had separated, and a whole day had intervened, they were sent out again tQ,agree upon a verdict. But, Per Curiam. — " It seems to be settled, that a mere separation of the jury of itself, does not vitiate a verdict ; but in (1) 8 Pick. 170. Chap. IV.] MISCONDUCT OP THE JURY. 91 The court will inquire whether injury has ensued from the separation. the cases where this principle was established, the separation was probably for a short time, and we should not be willing to adopt it, where the *separation should be for so long a [*91] time, as from Saturday to Monday. But here the jury agree on a verdict in substance before separating." In "Virginia, it would appear from the case of The Oommon- wealth V. Ji^Oaut{l) that the courts take a distinction in criminal «ases, and will not put it upon the party moving to show, but will presume, abuse, in order to avoid the verdict. The trial continued four days; on each of which the court adjourned for about two hours, giving orders that in the meantime the jury should be kept together in a room by themselves, where they were allowed refreshments. On their way to the jury room, at the second adjournment, one of the jurors having been unexpect- edly sworn on the jury, separated from his fellows for about twenty minutes, to attend to some necessary business. His pre- tence was, that he wished to dine at home. His departure was opposed by the sheriff, who admonished him not to go, and took hold of his arm to prevent him. He went, however, unattended by an officer, there being nope in waiting who could conveniently attend him. The juror stated that he believed the court, at that time, did not instruct the jury to remain together; and he un- derstood the design of the adjournment was, with the view, that the jury might obtain some refreshment. He ate his dinner at his boarding-house, and rgturned. Several persons asked him if the trial of M'Caul had ended, to which he answered in the negative ; but he had (as he stated) no- further conversation with any one on the subject of the trial ; denied that he had been practiced with, and no abuse appeared. Another juryman was absent a few minutes on a visit to his sick child, with an officer, from whom he was separated about five minutes on going into bis chamber to see the child. The jury rendered a verdict of guilty. *In setting aside the verdict, the court, among other [*92] (1) Virginia cases, 2f 1. Vol. I. 8 92 FEW TEIALS. [Chap. IV. The court will inquire whether injury has ensued from the separation. things, well observe: "The old rule was that the jury on no occasion should separate. But it has been relaxed, in cases of imperious, or perhaps of unavoidable, necessity. By allowing that a jury may separate without necessity, and that the verdict shall stand, unless the party accused, who in these cases is in the custody of law, can show that the jury not only have separated, but that they, or a member of it, has also been tar^pered with, or held communication on the subject, this great barrier against oppression may gradually be sapped and undermined, and the bulwark cannot long remain. Such a precedent would be pro- ductive of evils incalculable, and too great for the court, by its decision, to allow a door to be opened for." So in North Carolina, in The State v. Garrigy£s,{l) where the . jury separated without permission of the court, before verdict rendered, their misconduct was held to be fatal, and the prisoner was discharged. But in a subsequent case, The State v. Oarsta- .phen,{2) on an indictment for perjury, it was held that if jurors retire from the court without permission, or ah officer, and re- turned immediately, without speaking to any one, the verdict shall stand. And in Kentucky, in ^rown v. M' Connel,{S) it was held that the separating of the jury before rendering their ver- dict, though it be a misdemeanor, for which they may be punished, does not vitiate their verdict. So that the rule may be regarded as of universal application at this day, that the separation of th'e jury, in civil actions, with or without permission, or the consent of parties, where no abuse is shown or suggested, will not avoid the verdict. And that the rule will apply to criminal cases, where the separation is by per- mission of the court, or where, from their inadvertence and [*93] misapprehension, a *momentary separation occurs, when it is clear no opportunity to practice upon the juror could have been presented. (1) 1 Hayw. 241. (2) 2 Hayw. 238. <2) 1 Bibb, 265. Chap. IY.] MISCONDUCT OP T^E JUEY. 93 The court will iuquire whether injury has ensued from the separation. Perhaps the only thing that looks like an exception to the rule, will be found in some late cases in the Circuit Court of the United States for the state of Connecticut,(l) where the court give a more rigid construction than the state courts, to tha section of the statute providing, that where " the court have committed any case to the consideration of the jury, the jury shall be confined under the custody of the officer appointed by the court, until they are agreed on a verdict.(2) According to these decisions, the separation of the jury, under any circumstances, ipso facto avoids the verdict. As to the separation of the jury, after they have agreed upon their verdict, the practice in the state of New York appears to be settled thus : In criminal cases the jury are not permitted to seal their verdict and separate ; but in civil cases the uniform practice is, to permit the jury, with consent of parties, which will be presumed, if not objected to, to seal their verdict, if the court be likely to adjourn in the meantime, and thereupon to separate, and to return at the opening of the court to render their verdict. And should, as sometimes happens, some of the jurors dissent, the jury will be directed to retire, and the verdict being finally agreed upon, will not be avoided for the irregularity. All this was ruled in the recent case of Douglass v. Tousey.{3) The plain- tiff had a verdict, and the defendant moved for a new trial, on the grounds sufficiently explained in the opinion of the court. Per Ouriam. — "The defendant also asks to have the verdict set aside on the ground of irregularity. It was late in the evening when the ca,use was committed to the jury. The judge, without the expressed *consent of the counsel, directed [*94:] them to seal up their verdict, and bring it into court the • next morning. They presented their sealed verdict according to the direction of the court, and when polled, one of them refused to agree to it. When asked why he signed the verdict, he said he was unwell, and unable to sit up all night. The judge sent (1) Vide 3 Day, 28T, and in noUs, 310, 311. (2) Fidel Conn. Rep. 401. (3) 2 Wendell, 352. 94 NEW TEIALS. [Chap. IY. The court will inquire whether injury has enaued from the separation. the jury out again, and they finally brought in the same verdict which they had signed and gealed the evening previous. The juror who had dissented from the sealed verdict, stated to thjc court that he had received such explanation of the testimony from his fellows, that he was satisfied with the verdict. The an- cient strictness in regard to the conduct of jurors has, of late years, been somewhat relaxed. In the case of Bunn v. J36yi,{l) a question arose very similar to that now before the court. The jury retired, deliberated several hours, sealed their verdict, sepa- rated, and the next morning brought it into court. On being polled, one of them disagreed to it. The judge sent them out again, and the disagreeing juror ultimately assented to the verdict, which had first been brought in under seal. In this case the trial closed at a late hour at night, and the judge directed the jury to seal their verdict, and gave them permission to separate. There being no objection to this course on the part of the defend- ant, he must be deemed to have tacitly assented to it. The ver- dict cannot, therefore, be set aside for the alleged irregularity in receiving it." A similar case and decision occurred in Edelin v. Thompson.{2) The parties agreed that the jury might give their verdict to the clerk of the court after the adjournment for the day, and the jury having signed and sealed a verdict, delivered it to him, but on being called to the bar the next morning, before it was recorded, they were sent back to their chamber by the court, to cor- [*95] rect it, as it did *not determine the issues joined in the cause to their full extent, and they found a new verdict which did : Held, that the first verdict might be compared to one received by a judge out of court, or to a sealed verdict retained by the foreman of the jury in his pocket; in neither of which cases is the verdict binding upon thejiary, but is liable to be changed and varied from by them in open court ; and that a judgment entered on the second verdict was correct. (1) 3 Johns. Rep. 253, (2) 2 Har. & Gill. 31. Chap. IY.] MISCONDUCT OF THE JURY. 95 Dispersing with or without leave, and abusing the privilege. VIII. Dispersing, with or without have, and abusing the privilege. But if the jury, before agreeing, have dispersed, whether with or without leave or consent, and abuse the liberty thus taken or allowed, their verdict will be set aside, and a new trial granted. Instances of abuse tending to vitiate the verdict, such as con- ferring with the parties or their agents, or receiving papers from theno, relative to the matter at issue, or examining witnesses apart, have already been noticed. (1) • It was formerly held, that if the jury ate and drank between the charge and the verdict, it would avoid the verdict. Thus, as early as the 24:th of Edward III, (1351,) the jury were sworn and committed to the care of the sheriff, and when the justices would have taken the verdict, certain persons deposed, that victuals and drink were brought to the jurors after their charge, and that they were suffered to go out; for which reason the jus- tices refused to take their verdict, because it was suspicious, and complaint was made of this to the king by bill, which he indorsed to the justices in banco regis, to do right and reason; and the under sheriff by his servant confessed that he admitted them to go at large ; and because this appeared of record, his misde- meanor, and he was an officer, a capias was awarded against him ; and because their going at large, and victuals and drink being carried to them was only a *surpiise, a venire [*96] facias was awarded against the jury and the trespassers, and between the parties a venire facias de novo was awarded. (2) So, in the 35th of Henry YI, (1457,) it was adjudged, that if jurors eat and drink after they are together, by which they agree to their verdict the sooner, they shall make fine, and the verdict is void, and a new venire facias shall be awarded. (3) In like manner, in the 14:th of Henry YIII, (1503,) the jury found for (1) Ante, chap. 3. (2) Bro.. Abr. Verdict, pi. 1'7. (3) Ibid. 96 NEW TEIALS. [Chap. IY. Dispersing with or without leave, and abusing the privilege. the plaintiff, and, the defendant came and said, that the jury, be- tween their charge and their verdict, had taken meat and drink. A new venire facias was awarded, and the verdict adjudged void. • But the jury might partake of refreshments, by permission of the court, without affecting their verdict, providing no abuse of the indulgence followed. The law is thus laid down by the author of "The Doctor and Student," — "I take not the laW;;0f the realm to be that the jury, after they be sworn, may not eat nor drink till they be agreed of the verdict; but truth it is, there is a maxim, and an old custom in the law, that they shali not eat nor drink after they be sworn, till they have given their verdict, without the assent and license of the justices. And that is or- dained by the law for eschewing of divers incQuveniences that might follow thereupon, and that specially if they should eat or drink at the costs of the parties ; and therefore if they do con- trary, it may be laid in an arrest of the judgment; but with the assent of the justices they may both eat and drink. As if any of the jurors fallsick before they be agreed of their verdict, so sore that he' may not commune of the verdict, then, by the assent of the justices, he may have meat and drink, and also such other things as be necessary for him, and his fellows also, at their own costs, or at the indifferent costs of the parties, if they so [*97] *agree, or by the assent of the justices, may both eat and drin.k."(l) It soon became necessary to extend this rule farther, and a more convenient practice succeeded. So early as Henry IV, it was held, that if the jury eat and drink at their own expense, though punishable for it as a misdemeanor, it would not avoid the verdict.(2) So in Hall v. Vaughan, the jurors ate and drank at their own costs before verdict, and after their departure from the bar, and this was certified upon the postea, yet the verdict was held not to be void, but that the jurors were finable. It seems otherwise if at the costs of either of the parties. (3) (1) Doctor and Student, 2Y1. (2) Bro. Abr. Jurors, pi. 12. (3) 2 Morgan, 20. Chap. IV.] MISCONDUCT OF THE JURY. 97 Dispersing with or without leave, and abusing the privilege. So Lord Coke, "If the jury after their evidence given unto them at the bar, do at their own charges eat or drink, either be- fore or after they be agreed on their verdict, it is finable, but it shall not avoid the verdict ; but if before they be agreed on their verdict, they eat or drink at the charge of the plaintiff, if the verdict be given for him, it shall avoid the verdict ; but if it be given for the defendant it shall not avoid it, et sic e converso."{l) In Munson's case, the jury having retired to confer on their verdict, and some of them having carried fruit with them, and before they were agreed, having eat of the fruit, these latter were committed to the Fleet and fined, and it was moved to set aside the verdict, for this misdemeanor ^of these jurors; but because it appeared that they did not eat by the aid, procurement, or means of the plaintiff or defendant, the verdict was sustained.(2) In Duke of Richmond v. Wzse.(3) It appeared, the jury had conveyed to them bottles of wine, which, with other things, were put in a bill afterwards, and paid by *the [*98] plaintiff's solicitor. The judges all agreed, that if the jury eat or drink, at the charge of the party for whom they find the verdict, it disannuls the verdict. But here it did not appear that the wine they drank was had "by order of the plaintiff, or any agent for him. It was true, in regard, his solicitor paid for it afterwards, it did induce a presumption that he bespoke it ; but that again was extenuated by its being put into a bill with other things that were allowable, and it was not proved, that the wine was provided by him; the verdict was accordingly sus- tained, and the jury fined. So, in Harrison v. iSoM;an.(4) The jury having found in favor of the plaintiff, the defendant now moved the court for a retrial of the issue, upon the following grounds: 1. That the jury, be- fore they had agreed on a verdict, ate and drank at the expense (1) Co. Litt. 227. (2) 1 Ander. 183. (3) 1 Vent 124. (4) 4 Wash. 0. 0. Eep. 32. 98 NEW TRIALS. [Chap. IV. Dispersing with or without leave, and abusing the privilege. of the plaintiff, in whose favor they found, without the leave of the court. There were other grounds. It appeared, that the jury were furnished with refreshments of meat and drink, more than once before they had agreed upon their verdict ; but not provided at the request, or with the knowledge of the plaintiff. After the jury had delivered in their verdict, and were discharged, the plaintiff ordered a breakfast to be prepared for them, at the same inn where they had been confined, of which they partook ; after which the innkeeper made a gross charge against the plain tiff, in which he included in one sum the cost of the breakfast, and of the refreshments before furnished to the jury ; but with- out distinguishing them, and the bill was paid by the plaintiff. It does not appear that the plaintiff knew at the time that the refreshments were so charged. Washington, J. — "The rule long established and uniformly observed is, that the jury are guilty o£misbehavior, if, after they are sent out, and before their verdict is rendered, they eat [*99] or drink without the permission of the *court ; but the verdict cannot be impeached for that reason, unless it ap- pear that the refreshments furnished were at the expense of the party in whose favor the verdict is found ; and where this is the case, the court will only grant a new trial. But neither the rule nor the reason of it applies to this case. The refreshments were not provided at the expense of the plaintiff, nor with his privity or consent. Nor does it even appear, that when they were fur- nished, the innkeeper intended to charge the plaintiff with them, or that he supposed he was authorized to do so, in consequence of any custom prevailing in this state in similar cases. Neither does it appear, that when the bill was paid, the plaintiff knew that refreshments had been furnished the jury; although, if the fact had been otherwise, the court is not prepared to say, that that circumstance would affect the verdict." And in the recent case of Pwinton v. Humphreys, iX) it was held that a verdict will not be set aside, because the jury, with- (1) 6 Greenl. 319. Chap. IV.] MISCONDUCT OF THE JURY. 99 Effect of act indicating a destitution of moral principle. out the privity of the prevailing party, and being fatigued and exhausted with the length of the trial, were furnished with some refreshments at their own expense, during their deliberations on the cause, however liable the jurors might be to personal admo- nition from the court. for such misconduct It will be seen frpm the cases cited, that eating and drinking at the expense of the prevailing party has been always held to vitiate the verdict, and that, whether alleged before verdict re- ceived or afterwards, by affidavits on motion, or even after mo- tion in arrest of judgment.(l) IX. Effect of act indicaiing a destitution of moral principle. Indeed, any act of jurors who have separated from, or while in consultation with their fellows, clearly indicative of a destitution of moral principle, and the absence of *a [*100] due consideration of the solemnity of their oath, will avoid the verdict. The principle contained in this rule, cannot be better illustra- ted than in Wats v. Brains.{2) It was an appeal of murder. The defendant set up, as a justification, that the 'deceased had, when passing his shop, made a wry mouth and mocked him, and it was contended there was not evidence of malice prepense. But the judges-gave their opinions, " that if one make a wry or distorted mouth, or the like countenance upon another, and the other immediately pursues and kills him, it is murder; for it shall be presumed to be malice precedent ; and that such a slight provocation was not sufficient ground or pretence for a quarrel, and so delivered the law to the jury." Notwithstanding the evi- dence was pregnant against the defendant, eight of the jury agreed to find him not guilty. But the other four withstood them, and would not find it other than murder. On the next morning, two of the four agreed with the eight to find him not guilty ; and (1) Vide 2 Lev. 140 ; Barnes, 441, 443. (2) Cro. Bliz. IIS. 100 NEW TEIALS. [Chap. IV. Efifeot of act indicating a destitution of moral principle. afterwards the other two consented in this manner, .that they should bring in and offer their verdict not guilty, and if the court disliked it, that they all should change the verdict and find him guilty. Upon this agreement they came to the bar, and the foreman pronounced the verdict, that the defendant was not guilty ; which the court much disliking, exapiined every one of them by the poll, whether that was his verdict. Ten of the first part of the panel, severally affirmed their verdict. But the two .last discovered the whole manner of their agreement. Wiiere- upon they were sent back again, and returned and found the defendant guilty. And for this practice the foreman was after- wards fined iSlOO. And the other seven who agreed [*101] with him at the first, every of them was fined *£40. And the other two who agreed with the eight, although they, affirmed that it was because they could not endure or hold out any longer, yet for that they did not discover the practice, being examined by poll, but affirmed the verdict, were fined each of them £20, and all of the.m imprisoned. But the other two were dismissed, yet blamed for consenting in abuse of the court. In Dana v. yIioberts.(l) Verdict for the plaintiff. Motion in arrest of judgment, that one of said jurors, while they had the cause under consideration, related to a Mr.- Merrils the full state of the case, and of the evidence on both sides ; the facts being proved, the court set aside the verdict. By the Gcourt. — " The principal .guard upon jurors in this state is, their oath and their virtue. If they are suffered to enter into conversation with people respecting the causes they have under consideration, the purity of trials by jury, the great barrier of liberty and justice will be corrupted ; it ought, therefore, to be guarded with the most vigilant attention. So, if the jurors, being charged with the cause, indulge in spirituous liquors, as in The People v. I)ougIass.{2) The jury (1) 1 Root, 134, et vide 429, and 2 Boot, 461. (2) 4 Oowen, 26. Chap. IY.] MISCONDUCT OF THE JUEY. Eflfeot of act indicating a destitution of moral principle. empanneled to try the prisoner upon an indictment for murder, were allowed to leave the court-house during the trial, under the charge of two sworn constables. Two of them separated from their fellows, went to their lodgings, a distance of thirty rods, ate cakes, took some with them on their return, and drank spirituous liquors, though not enough to affect them in the least, and one of them conversed on the subject of the trial. They returned and heard the trial through, and joined in a verdict of guilty. Held, that the mere separation of a jury, though empanneled to try a capital offence, and though *they [*102] separate contrary to the directions of the court, will not of itself be a sufficient cause for setting aside the verdict. But if there be the least suspicion of abuse, the verdict should be set aside ; and for this cause a new trial was granted. And in Brant v. Fowlei:{\.) After the judge had concluded his charge, several of the jurors requesting permission to go out, the judge told them they could go accompanied by an officer. One of them misunderstanding the charge of the judge, wbile out, separated himself from the of&cer, and drank about one- third of a gill of brandy. There was a verdict for the defend- ant, and on motion of the plaintiff to set aside the verdict for irregularity, the affidavit of the juror was produced, showing his mistake ; and that he drank this small quantity of brandy to check a diarrhoea, which he had incurred by drinking new cider. The affidavit of anotheif juror was also produced, showing that' the juror who had drank joined them for deliberation, in due season ; conducted himself with great propriety ; was chosen foreman, and delivered their verdict. But Per Guriam, — " We cannot allow jurors thus of their own accord to drink spirituous liquor while engaged in the course of a cause. We are satisfied that there has been no mischief; but the rule is absolute, and does not meddle with consequences, nor should' exceptions be multipliec^. We have set aside verdicts in error for this cause, even where the jjarties consented that. the jury should drink. (1) 1 Cowen, 562. 102 NEW TRIALS. [Chap. IV. Effect of act indicating a destitution of moral principle. The People v. Douglass, though a criminal cause, is in point, for the principle of this motion, which must be granted." So when the jurors have resorted to artifice to'get rid of their confinement. As in Oliver v. Tlw Trustees of Spring- [*103] field.{l) The jury told the constable they had *agreed, and dispersed The next morning they delivered a pa- per, purporting to contain their verdict, which was, on opening it, found to contain these words : " The jurors, after due delibera- tion, do not agree ;" and signed by all the jurors. Before the jury re-assembled to deliver the paper, some of them were seen in a bar-room, where the cause was much talked of. On the paper being delivered, the judge, after explaining certain testi- mony, as to which the jury disagreed, directed them to retire and reconsider the case, which they did, and afterwards returned a verdict for the defendants. Upon motion for a new trial, the court observe : . " In the cases cited of verdicts sustained, not- withstanding the separation of the jury, there was no suspicion of abuse ; and indeed it appeared affirmatively, that there was nothing that followed their separation, which could be -injurious to the party seeking to get rid of the verdict. The present case is far different. After practicing a fraud on the constable, several of the jurors are found in a public bar-room, where the subject of the suit is much talked of in their presence ; and it is not pre- tended that they did not listen to the conversation, and might not have been influenced by it. This*is not to be tolerated.. Here is not only suspicion of abuse, (and we have uniformly held, that the slightest suspicion of this sort will vitiate the ver- dict,) but we think the circumstances of this case amount to posi- tive abuse. They evince that want of respect in the jury, to the obligations imposed upon them by their situation, which cartnot be sanctioned consistently with the rights of parties. They pro- cured their separation by a yerj. unbecoming artifice ; thus pla- cing themselves in a situation to be practiced upon, and influenced by conversation out of doors. Such conversation was carried on (1) 6 Oowon, 283. OSAP. IV.] MISCONDUCT OF THE JUEY. 108 Resorting to chance to determine verdict. in the presence of some of them. Indeed, it is difl&cult to see how the suspicions, which attach to this case, could be explained away. The motion must be granted." X. Besorting to chance to determine verdict. *If the jurors, unable to agree, resort to the determina- [*104] tion of chance, it will avoidthe verdict. Thus it has been held to cast or draw lots, to shuffle half-pence in a hat, or play " cross and pile, to find a verdict, will avoid it. In Mellish v. J.rnoM,(l) an action against an officer for a seizure absque prohahili causa. A new trial was granted because the jury threw up cross or pile, whether they should give the plaintiff three hundred pounds or five hundred pounds damages, and the chance of five' hundred pounds came up. So, in Parr v. rial, and that the cause be con- ducted with knowledge, vigilance and skill in presenting the case, arranging the testimony, and improving the movements of the court and of the adverse counsel, to the advantage of the party. But it may sometimes happen, that the party and his counsel cannot attend, that when they do, notwithstanding all their vigilance, they may be taken by surprise, or suffer by mis- take, or be misled by the suggestions of the court. And that by these and other occurrences, equally reconcilable with integrity and ability, their cause may be prejudiced and injustice done. To obviate this, when a clear case is presented, the courts will correct the evil, by setting aside 'the verdict. But they will as invariably refuse to interfere, where the cause suffers through the negligence of the party, or the inattention and iocapaoity Chap. VI.] ABSBNOE, SUEPEISE, MISTAKE. 162 Absence of party or counsel. of the counsel. This general principle may be dis- tributed into minor rules with their *corresponding [*162] examples, illustrative of the modern practice granting new trials in cases of absence, surprise, or mistahe, and refusing them by reason of negligence or mismanagement. II. Absence of party or counsel. When the party or his counsel are absent through misapprehen- sion or necessity, and the cause goes to the jury undefended, and there are merits, the court will relieve by setting aside the verdict. In Hex V. Roherts,{l) the defendant having traversed an inqui- sition, whereby he was found to be a lunatic, the attorney-general filed the common replication ; and it was sent from the petty- bag office to the King's Bench. The prosecutor of the commis- sion made up the record and carried it down to trial. Eoberts, being ill, did not appear, and no defence was made, and the jury found in favor of the inquest. Upon this a new trial was moved for upon two points. The second point was upon the illness of Eoberts, who" could 'fiot attend, and which was made out by affidavits. The court thought it reasonable to grant a new trial for this, upon the foot of accident, and because the Lord Chancel- lor and the former jury had both had an inspection, which might be of great use to a second jury, who otherwise would be left to judge upon less evidence than the others had, and a new trial was granted. So in Ten Broeck v. Woohey^) In scire facias, to revive two judgments, inquests had been taken. Motion to set them aside on affidavits, stating that the defendant lived at a great distance, had been discharged under the insolvent law, which fact was noticed under his plea. The attorney had written, urging him personally to attend, and was answered, that in conse- quence of a fractured leg, he *could not travel, and wish- [*163] (1) 2 Str. 1208, and Mod. Gas. 22. (2) 3 Gaines, 100. 168 NEW TEIALS. [Chap. YI. Absence of party or counsel. ing an adjournment of the cause. He did not attend, the causes were not adjourned, and inquests were taken. And on motion to set them aside on these facts, the court observed — " In this case the defendant lives remote, and was, from that cir- cumstance and infirmity, prevented from attending to these suits at an earlier period. The moral obligation under which the de- fendant is supposed to labor, of paying his debts, is not to operate with the court, unless a new liability has been incurred. From the misconception of counsel, the remote distance of the defend- ant, his infirmities, and his having a meritorious defence, the court grant the application, upon payment of costs." So, in the absence of counsel, in an anonymous case, a new trial was granted because the counsel were absent, not thinking the cause would come on, and no defence was made.(l) In Beazky y. Shaphigh,{2) cause shown against a rule obtained on the behalf of the defendant, for a new trial, on affidavits by defendant's attorney and another person, stating that the cause stood No. 17 in the paper — that No. 14 was a question of right of way, and expected to occupy considerable part.of the day— that the solicitoi^ having new matter to add to his briefs was at home, making the necessary additions, when the cause was called on, as it had been in his absence, in consequence of having been taken out of course. No. 14 being postponed till next day ; and that a verdict of damages was found for the plaintiff. The action was case on a warranty of an unsound horse. Under the particu- lar circumstances, the court made the rule absolute. « In Ped)hs v. Jialls,{3) it appeared that Peebles was not present at the trial, and his motion for a new trial was grounded [*164] *on an affidavit stating that on Tuesday, the day before the trial was Ijad, the daughter of Peebles was at the point of death, in Bath county, so that he could not leave her (1) 2 Salk. 646. (2) 1 Price, 201. (I) 1 Littell, 24. Chap. YI.] ABSENCE, SUEPEISE, MISTAKE. 164 Absence of party or counsel. to attend to the suit, and procure a oonjiauance ; that Eobert Marrow, John Peebles, jun., Jared Ervvin and George Hawkins, (all of whom were summoned as witnesses a reasonable time be- fore the trial,) were material witnesses for him in his defence ; that said Jared Erwin, owing to the sickness of his wife, could not attend ; that said Morrow could not attend, owing to his having an appointment to execute a survey ; that John- Peebles, jun., was in Fleming county, and could not attend owing to high waters. By the Court. — " If in his affidavit Peebles has shown a sufficient apology for not attending the trial, and failing to apply for a continuance, a new trial should most indisputably have been awarded ; for he has not only shown that he had, previous to the trial, exercised proper vigilance in causing his witnesses to be summoned, but he has moreover alleged in his affidavit, the materiality of their evidence for his defence, and given satis- factory reasons for their failure to attend the trial. That Peebles has made out a good excuse for his non-attendance at the trial,, and not causing an application to be made to the court for a con- tinuance, is equally clear. It is no doubt incumbent on all sui- tors to be vigilant in preparing and attending on the trial of their causes ; and after a verdict against any, his negligence should never form a ground for overturning the verdict and awarding a ne^ trial. A new trial should, therefore, have bben awarded." « So in Sayer v. Finck.{\) Motion to set aside the inquest taken in this cause, on an affidavit by two persons, that the debt for which the action was brought had been paid, and on [*165] another affidavit by the defendant's *attorney, stating that' he did not attend when the cause was called on, because from a conversation with the partner of the plaintiff's attorney, and who he thought was attorney also for the plaintiff, he was led to imagine the trial could not be had on that day, as there were eighteen prior causes on the day docket, and that the plaintiff's attorney himself would not attend. Per Omiam. — " Let the inquest be set aside on payment of all costs. The court grant this only under the peculiar circumstances of the case. It ap- (1) 2 Cainea, 336. 165 , NEW TEIALS. [Chap.- VI. Absence of party or counsel. pears that the defendant's attorney thought he was conversing with a person who was acting as attorney for the plaintiff. This belief might easily be induced from this circumstance, that the attorney on record, and the person spoken with were in partner- ship. It was, however, but an opinion of the adverse attorney that the cause would not be heard. We shall in future expect more explicit reasons for thinking a cause will not be brought on. The affidavit of merits is very strong. Taking this together with the misapprehension of the defendant's attorney, that the partner of the plaintiff's attorney was absolutely concerned in the suit, are the grounds of our present determination." So in Sherrard v. Olden and others.{l) The cause had been marked for trial,' and regular notice had been served on the at- torney of the defendants. Neither of the parties defendant, however, attended the court, and when the cause was called on for •trial, the counsel for the defendants applied for a postponement, upon an affl'davit that Gardener, one of the defendants, was sick in Philadelphia, and that James McCorkle was a material witness for the defendants, that he had sailed for 'the East Indies in the month of June preceding, and before the-cause was at [*166] issue, but was expected to return, &c. *Notwithstand- ing this affidavit, however, the court ordered on the trial, and no further opposition. being made by the defendants, a verdict passed for the plaintiff for £800. A rule had been ob- tained to show cause why a new trial should not be granted. Per Curiam.-^" At the trial of this cause the request for post- ponement was refused, not because there did not actually exist sufficient reasons to warrant the court in putting it off, but be- cause sufficient grounds did not appear. It was not yet shown that the defendants had used due diligence. But we now know that the reason why these matters were not proved was, that one of the parties lay sick in Philadelphia, and the other, who resided in Princeton, was unable to attend. That each was ignorant of the situation of the other. That they did what, undar the pa,r- (1) 1 Halet. 344. Chap. VI.] ABSENCE, SURPRISE, MISTAKE. 166 Absence of party or counsel. ticular circumstances in which they were placed, it was reasonable to require of them, and that no exertions on their part would have availed to bring M'Corkle, who is sworn to be a material witness, to the trial. Considering therefore all these circum- stances, that the defendants have been guilty of no laches, but that a verdict has gone against them for a large amount in an action to which they swear they have a good and substantial de- fence, we think the interests of justice require that they should have an opportunity to try the question upon its merits by another trial." But if the absence be occasioned by neglect, or not satisfac- torily accounted for, the court will not grant a new trial. Thus : In Breach v. Gasterton.{\.) The cause was undefended, and a verdict having been found for the plaintiff against one of ithe de- fendants, and a* verdict in favor of the other three, Taddy, sergeant, obtained a rule nisi for a new trial, on payment of costs, upon an affidavit that the *defendant's attorney had [*167] been obliged to go to Ireland, and that in his absence the cause had, through the inattention and misconduct of his clerk, baen called on as an undefended cause, although there was a good defence on the merits. Wilde, sergeant, who showed cause, ob- jected that before the motion could be made, the consent of the three defendants in whose favor the verdict had been given, ought to be shown ; and that they ought not to be put to the inconve- nience of a new trial on account of the attorney's neglect. Per Ounam. — " If we were to make this rule absolute, every cause might be tried, twice over, as defendants would lie by to specu- late on the amount of the first verdict. "We have this term decided against such an application." In Masters v. BarnweU.(2) Action for crim. con. The case came on and a verdict was taken for the plaintiff — no one appear- ing for the defendant. An application was made for a rule to (1) 1 Bingham, 224. (1) 7 Bingham, 224, in noiis. 167 NEW TKIALS. [Chap. YI. Absence of party or oounael. show cause why a new trial should not be granted, on affidavits setting forth a number of instances of violence on the part of the plaintiff. It was alleged that he followed the defendant from England to France, from France back again to England, thence to Brussels; that in the latter place, (the defendant and the plaintiff's wife living there together,) ihe plaintiff in^tuted crim- inal proceedings against the defendant for the adultery ; that the defendant had been sentenced to six months' imprisonment ; that he had been repeatedly challenged to fight the plaintiff, and that by these, and by a variety of other proceedings of the same sort, by which he was kept in fear of his life, he had been prevented from giving proper instructions to his attorney ; and that if he had not been so prevented, he should have been able to present to the jury a case that would at least have reduced, in [*168] a material degree, the amount of the *damages. Affida- vits were produced to resist the motion, and the hard- ship of the case urged. But the court thought it was plain the defendant had ample time to consult with his attorney, while he was confined in prison ; that the charge against him was of the most aggravated nature, and that it would lead to the worst results if a party could] lie by, take tiie chance of a judg- ment by default, and then demand a trial in the hopes of better success ; and denied the motioh. The same practice obtains in this state. In Post v. WrigM,{].). an inquest had been taken in the cause. A motion was now made to set it aside, on two affidavits, one from the counsel, who stated that he was counsel for the Humane Society of New York, and in that capacity, obliged to visit the jail on Monday in every week ; that this cause being noticed for trial on a Monday, he came into court instantly after discharging his duty to the society, when he found an inquest had been taken in the suit ; that he on tl;ie same day wrote to the attorney of the plaintiff, offering to pay all the costs of the inquest, and to engage to try the cause in the then sittings, if the plaintiff would abandon his inquest, (1) 1 Oaines, 111. Chap. VL] ABSENCE, SUKPEISE, MISTAKE. 168 Injustice done by fraud or accident. whicli he refused to do. The hardship of the case was urged; but Per Curiam. — "All reasonable notice to attend and defend the suit was given. The cause was on the docket, and there is no kind of excuse why the defendant was absent. He had a counsel in court, and might have been there himself, with his witnesses. The defendant, therefore, can take nothing by his motion."(l) III. Injustice done hy fraud or accident. Where a party or his counsel are taken by surprise, whether by fraud or accident, on a material point or circum- stance, which could not reasonably have been *antici- [*169] pated, and when want of skill, care, or attention can- not be justly imputed, and injustice has been done, a new trial will be granted. So ruled in an early anonymous case. If there be a fault in a declaration on which the plaintiff must be non-suited, and the defendant taking notice of it, do prepare no defence for the trial, but depends thereon, and the plaintiff amends his declaration without rule for so doing, and so surprises the defendant and gets a verdict, the court will set such verdict aside and will grant a new trial.(2) . In Edie v. East India Company.{S) Action on two , bills of exchange, and one indorsed without adding the words or order. The defendants accepted both bills, but refused to pay after in- solvency of the payee. The jury found a verdict for the defend- ant on the bill indorsed without the words or order, apprehend- ing that by the usage of merchants it was not assignable, A motion for a new trial was principally put upon the plaintiff's surprise, not being prepared to give, evidence of the custom of merchants, as mere matter of opinion. Lord Mansfield, in de- livering his opinion, observed — " Upon the best consideration I (1) Etvide 2 Gaines, 379, 384. (2) 2 Show. 164. (3) 1 W. Black. 295. 169 NEW TEIALS. .[Chap. VI. Injustice done by fraud or accident. have been able to give this matter, I am very clearly of opinion, that at the trial I ought not to have admitted the evidence of usage. But the point of law is here settled, and when once solemnly settled, no particular usage shall be admitted to weigh against it. This would send everything to sea again. It is set- tled by two judgments in Westminster Hall, both of them agree- able to law and to convenience. Upon this ground, .that the point is settled both by King's Bench and Common Pleas, and well settled, I think there should be a new trial, otherwise also I should be of the same opinion. Certainly the suggestion [*170] *of surprise is not in all cases a reason for a new trial ; ' but in particular cases sucji as the present, it may be." In Thurtell v. Beawmont^i).) on affidavits, proving a clear case of surprise, by the disclosure of a conspiracy, a new trial was granted. It was an action of assumpsit on a policy of insu- rance against fire. The defence set up was, that the plaintiff had wilfully set fire to the premises. Positive testimony was adduced, and inconsistencies were pointed out in the plaintiff's evidence, tending to substantiate this charge. The learned judge directed the jury, that before they gave a verdict against the plaintiff, it was their duty to be satisfied, that the crime of wilfully setting fire to the premises was as cJearly brought home to him, in this action, as would warrant their finding him guilty of the capital offence, if he had been tried before them on a criminal charge. The jury found a verdict for the plaintiff. But on affidavits being produced from a respectable warehouseman, and from Joseph Hunt, (who, together with John Thurtell was a prisoner in Hertford jail on a charge of murder,) showing that the plain- tiff's demand had been supported by a tissue of unparalleled and audacious fraud, the circumstances attending which, although he vehemently suspected them, the defendant had no means of un- ravelling till after the trial ; so that with regard to the plaintiff's case, he was in effect taken by surprise. And the court, on this ground, granted a rule nisi for a new trial. (1) 1 Bingham, 339. Chap. VI.] ABSENCE, S'URPEISE, MISTAKE. 170 Injustice done'ty fraud or accident. So where, upon the plaintiff's evidence, the judge intimates a strong opinion in favor of the defendant, upon a point decisive of the cause, and in consequence of such intimation, the defend- ant's counsel omits to call evidence in support of a different point, intended to be raised by way of defence, the court will direct a new trial. Thus in *Le Fleming v. Simp- [*171] son.(l) Trover for oak trees. Plea not guilty. It ap- peared the defendants had carried away the trees with the inten- tion to use them in a barn. The plaintiff endeavored to show a custom for the lord to enter and cut and take timber for his own use ; and the judge suggested, and called the attention of the jury to this custom, as the sole question. The plaintiff elected to be non-suited, and the jury at the request of the judge found against the custom. A new trial was moved for, chiefly on the ground that the plaintiff^s counsel had been prevented by the in- timation of the court, from going into the question as to the plaintiff's right, by the custom of the manor, to take timber for building or repairs. Andjper Lord Teiiterden, Ch. J.^ — "If the counsel for the defendant states he was instructed to prove the right of the tenant, we take that from him, and grant a new trial.'' The other judges concurring, the rule was made absolute. So in Qreatwood v. SiTns.i^) Action on a surety bond. A verdict at the sittings was found for plaintiff, the cause being un- defended at the trial. The aflSdavit stated, that the cause was a long way off, and was called on, and the attorney not attending, it was undefended. That the defendant had a good defence, and was ready to pay the money into court. Ellenhormigh, Ch. J., granted a new trial on the terms that the money should be brought into court; that judgment should be given of the term, in case plaintiff again obtained a verdict; and that defendant should forthwith pay the costs of the former trial, and of this application. And in Ricggles v. EaU,{3) where a material witness had been (1) 1 Man. & Eyl. 269. (2) 2 Ohitty's Rep. 269. (3) 14 Johns. Eep. 112. 172 NEW TEIALS. [Chap. VI. Injustice dona by fraud or accident. regularly subpoenaed by the defendant and attended at [*172] the circuit, and shortly before the cause was called *on, absented himself without the knowledge or consent of the party or his attorney, and his absence was not discovered until after the jury was sworn, by which means a verdict passed against the defendant. By the Court. — " The motion is for a|new trial, upon the ground that a witness subpoenaed, and who had been attending on the part of the defendant, unexpectedly ab- sented himself about the time the cause was called on to trial, his absence not being known until after the jury was called. The affidavit of the witness accompanies this application, and shows very clearly the materiality of his testimony. The defend- ant cannot be charged with such negligence as to preclude himself on that ground. Knowing that the witness had been attending for several days, the defendant had good reason to be- lieve he was still there, and his suddenly absenting himself was matter of surprise. A new trial must be granted on payment of So in Sargent v. Deniston.iV) Case for seduction. The principal witness laid the seduction upon a day which the defendant had no reason to anticipate, and could Tiot be prepared to meet, when in fact he was 30 or 40 miles distant. And upon this ground, among others that the defendant was taken by surprise and could clearly prove an aMi, it was moved to set aside the verdict and for a new trial, which was resisted principally on the ground that it went to impeach the witness. The court granted a new trial, and upon the main point say that the defendant was guilty of no laches, upon the supposition that he never had conneqjiion with the witness; and that her whole story is a fabrication. He could not have anticipated that she would allege the connection ' to have taken place, at a period subsequent to his leaving the neighborhood, and consequently was not, in the exercise [*173] *of ordinary diligence and' discretion, bound to be pre- pared to show when he did leave it. Nor is the effect (1) 6 Cowen, 106. Chap. VI.] ABSENCE, SURPRISE, MISTAKE. 173 Injuatifce clone by fraud or accident. of the testimony merely to impeach the witness. It establishes a fact which shows conclusively that the defendant could not have been the father of the child. It does not contradict her in an incidental circumstance, but it disproves, or has a direct ten- dency to disprove, the existence of the main fact itself. So in Jackson v. Warford.(^) Held that a new trial will be granted on the ground ipf surprise, where the attorney of one of the parties had in his possession a deed, important to the rights of the other party, and, before the trial, delivered it to a third person, without apprising his adversary, who subpoenasd the attorney and also gave notice to him to produce the deed, and on the trial first learnt that it was not in his possession. So in Peterson v. Barry.{2) Action in assumpsit and verdict for plaintiff, who now moved for a new trial upon an affidavit, stating that the jury had found too little for him by 500 dollars and the interest ; and that the plaintiff had been surprised at the trial, by an allegation that the defendant had paid him a check for 500 dollars, on the Farmers' and Mechanics' Bank, which was sworn to by two witnesses, who were perjured. The affida- vit proceeded, to deny the payment most explicitly. These affi- davits were corroborated by the testimony of several witnesses, who were examined on the motion, and Per Curiam. — " This is a case of an extraordinary nature, in which the character of both parties is very much concerned. The circumstances proved to- day are material. The defendant paid Wright 600 dollars in six notes for one hundred dollars each, of the Farmers' and Me- chanics' Bank. This sum with twenty dollars drawn . by the defendant afterwards *from that bank, made 620 [*174] dollars, the wljole of his credit in the bank. We wish to know from whence these 600 dollars came, and the defendant will have an opportunity of showing this on another trial. On the whole we are of opinion that the case requires further ex- planation, and therefore, that there should be a new trial." (1) f ■Wendell, 6J. (3) i. Binn. 481. 174 NEW TEIALS. [Chap. VI. Negligence will prevent relief. lY. Negligence will prevent relief. But to entitle the party to relief there must be merits, and the surprise must be such as care and prudence could not provide against. The slightest negligence will defeat the application, or occasion the imposition of rigorous terms. In Fourdrinier v. Bradbury,{V) it appeared upon the affidavits that the cause had been entered, as a catise ready for trial, for several days, in the lists put up on the outside of the court. On the day of the trial, the special jury causes having been disposed of, this was taken, out of its course, as an undefended cause. The defendant's attorney swore, that thirty causes then stood before it in the paper, and that he always meant to defend the cause, that he had delivered a brief to counsel ; and that on the morning in question, he was present at the sitting of the court, and finding several special jury causes appointed, and so many common jury causes, which in their regular order, must have been tried before this, he went away, and returned again at two o'clock, when he found that this cause had been tried. And^er Abbott, Ch. J. — " The circumstance of the cause being in the list, of the day, is sufGicient notice that it may be tried in the course of the day, at any time, or in any order, that circumstances might render most convenient. As it is not sworn at what time the brief was delivered to counsel, and as the defendant was bound to be ready at any tirrie in the day, on which the [*175] *cause might have been called on, a new trial can only be granted, upon the terms of paying the costs of the former trial." In Blachhurst v. Bulmer,{2) the case stood No. 90, in the printed list at the sittings in term. The defendant's counsel ob- jected to its being tried out of its turn, and declined to appear for the defendant. The written list of causes, affixed in the usual way on the outside of the court, did not extend beyond No. 26 (1) 3 Barn. 4; Aid. 328. (2) 1 Dow. & Byl. 551. Chap. Vi.] ABSENCE, SUEPEISE, MISTAKE. ■ 175 Negligence will prevent relief. of the printed list. The cause, however, was tried by Best, J., oa the ground stated to him, that there was no substantial defence to the action, and that there were witnesses for the plaintiff re- maining in town on purpose, whose residence was in Lancashire. No affidavit of merits was now produced in support of the appli- cation. Ahbott, Oh. J. — "There is no injustice in the particular case, inasmuch as the defendant does not venture now to swear to merits. Nor is there in the present instance any inconvenience, either to the counsel or the attorney for the defendant, for both were in fact present at the time of the trial ; but the counsel, as a matter of policy, did not choose to appear. With respect 'to the general rule, it may be doubted, whether the modern practice of putting up written lists, has not done more harm than good ; but at all events it cannot be permitted, that a defendant in any case shall prevent a judge from trying a cause, in the printed paper, that he may think proper, merely for the purpose of delay, or at least without showing some substantial ground, either of of justice or convenience." And rule refused. So in Atterhurry v. Fair manner. {V) Assumpsit on warranty of a horse. Plea, general issue, and verdict for plaintiff. Motion for a new trial, op the ground that the defendant had been taken by surprise, as to the species of *unsound- [*176] ness of the horse set up by the plaintiff, and on affidavit of a veterinary surgeon, that there was no such disease known. But per Guriam. — " The plaintiff made out a prima facie case, that the horse was not sound, and the defendant should have been prepared to meet or rebut it at the trial. The veterinary surgeon, who' has since made the affidavit, might have been then examined, or the horse might have been previously shown to him. At all events, it was peculiarly a question for the juVy ; and if the defendant had wished to ascertain the nature of the unsoundness, he should have taken out a. summons for that pur- ' pose." In Bell V. TIiompson,(^) the attorney-general moved to set aside (1) 8 Moore, 32. (2) 2 Chitty's Rep. 194 176 NEW TRIALS. [Chap. VI. Negligence will prevent relief. a verdict given for the plaintiff, and to be let into a new trial on terms. He stated that a witness, on the part of the plaintiff, had proved a fact to the great surprise of the defendant, and that he had omitted to cross-examine him, or observe on his evidence i and on this he grounded his present motion. Lord JEllenborough, Ch. J. — " We cannot on that ground grant a new trial. The witness was not impeacjied at all, and no evidence was called to contradict him, nor were there any questions asked of him." A similar rule of practice exists in New York. Jackson v. Roe.{l) Motion to set aside a non-suit, and for a new trial, on the ground that at the trial the defendant denied the title set up by the plaintiff, who was not prepared to meet it, and that he was surprised by the defence. Per Guriam.—^" It is a well settled rule, that a new trial will not be granted, because the party came to trial unprepared, and this rule applies with at least as much force to the plaintiff as to the defendant. In [*177] GooJce v. Berry,{2) the *plaintifF did not come prepared to meet the defendant's plea, because he took it to be a sham plea, as he had a letter under the defendant's hand, ac knowledging the debt, but that letter he was not prepared to prove, and the defendant had a verdict ; and on motion for a new trial, it was denied. That was a much harder case than this, for there the plaintiff lost his debt forever ; but here he was only non-suited, and whether he was non-suited or had a verdict against him, he is equally at liberty to bring a new suit, and is only punished in costs, for his neglect or carelessness. The general rule is too well established to be questioned, and too useful to admit of innovation. "(3) In Vermont, it has been ruled that the party must expressly show he has sustained m/MJ-y, and set forth the evidence in detail, which he would have had but for the surprise, otherwise the motion would be denied. As in BlaJce v. irowe,{4.) in ejectment. (1) 9 Johns. Rep. 11. (2) 1 Wils. 98. (3) Mvide 2 Gaines, 129, and 8 Oowen, 273. (1) 1 Aikens, 306. OSA?. TI.] ABSENCE, SITEPEISE, MISTAKE. 177 Negligence will prevent relief. Plea not guilty, and verdict for the plaintiff. Motion for a new- trial, on the ground of surprise, and upon exceptions taken at the trial. Upon the point of surprise, the court remark — " The court have already suggested that this question is addressed to their sound discretion, for the purpose of doing justice between the parties. Now, the defendant ought not only to show a surprise, but to show that he is injured by it; to show that, upon a new hearing, he can make out such a title as would probably be, not only a legal, but equitable defence to the action. If he would claim anything on account of title, he should show to the court what that title is. That, when adduced, may appear but another link in the same chain of title under the plaintiff — or it may ap- pear so wholly defective as to amount to no title whatever." *So, in South Carolina, it has been ruled, a new trial [*178] will not be granted where the surprise originates out of the face of a paper, on which alone the right of the plaintiff to recover depended. Cockrill v. Calhouh.{l) Action in partition. The principal question turned upon the fact, whether the widow of the testator, through whose will the plaintiff claimed, was since married to one M'Oonnell. The Weight of evidence was with the defendant, and the jury found accordingly. The plaintiff moved to set aside the verdict, on the ground of surprise, as to the de- fendant's testimony to that point. But, by the Court. — " There may be cases where the court would grant new trials on the ground of surprise ^lone ; but it must arise out of facts, which are in their nature calculated to produce that effect, and against which a party could not be reasonably expected to be prepared. But that can never be the case where it arises out of th« face of a paper, on which alone the right of the party to recover depends. To grant a new trial on such grounds, would be to do so at the will of the party, until they were weary of litigation. The mo tion must therefore be dismissed." But notwithstanding the disinclination of the courts to relieve against surprise occasioned by negligence, yet where justice dc (1) INott&M'Cord, 285. Vol. I. 13 178 NEW TEIALS. [Chap. VI. Negligence will prevent relief. mands, it will be done; and, if the negligence be really attribu- table to the attorney, he will be directed to pay the costs. Thus, In Martyn v. Podger.il) Trespass for carrying away goods. Plea not guilty. The plaintiff claimed the goods by a bill of sale from his son. The defendants justified as bailiffs, on a writ of fieri facias, on a judgment against the son, "William Martyn, by one Pullin. Owing to inadvertence, the defendants had not the judgment to produce at the trial, and there was therefore [*179] a verdict for the plaintiff. *But for this there had been a verdict for the defendants, it being a case of gross fraud. Upon a motion for a new trial, Lord Mansfidd observed : " The bailiffs are only nominal; the plaintiff in the original action, Hugh Pullin, is to be considered as the creditor of William Martyn, the son of the present plaintiff. The copy of the judg- ment ought to have been produced. But the verdict arises from a slip and inadvertence; it is against law and justice. The plaintiff has no merits. The bill of sale was fraudulent ; the son remained in possession. The recovery is manifestly contrary to reason and justice." Therefore his lordship and the court were unanimous that there should be a new trial.(2) As illustrative of the other branch of the rule, De Boufigny v. Peale,{8) on a motion for a new trial, may suffice. This cause had stood first in the cause paper for trial at a sit- tings in term. When the cause was called on, the defendant's attorney had delivered no brief to his counsel, although he had had a consultation with him the preceding night; and the cause being thus undefended, a verdict passed for the plaintiff. Soon after the verdict had been recorded, the defendant's attorney came into 'court with the brief, to instruct his counsel to defend his cause. The court held that it would be only encouraging the negligence of attorneys, to grant such an indulgence in the ordi- (1) 6 Burr. 2631. (2) Et vide 4 Monroe, and 5 Ibid. 440. (3) 3 Taunt. 484. Chap. VI.] ABSENCE, SUEPEISE, MISTAKE. 179 Honest mistake of party or counsel. nary way, at the client's expense j attorneys onght to know that they are amenable to their clients for the consequences of such neglect ; neither would it be putting the plaintiff in the same situation, if they were to grant the rule on the payment of costs between party and party ; they therefore granted a rule nisi, which, on a subsequent day, was made absolute for a new trial, upon payment by *the defendant's attorney, [*180J put of his own pocket, of all costs, as between attorney and client. V. Honest mistake of party or counsel. When, in the progress of the trial, the cause suffers injustice, from the honest mistake of the party or his counsel, relief will be extended by granting a new trial. Thus, where the counsel were misled by an intimation of the court, as in Le Fleming v. Simpson,{l) already cited. The judge intimated a strong opinion, and the counsel having therefore omitted to call evidence, the court, for that reason, directed a new trial. So in Durham v. Baxter.{2) Action in assumpsit. The plain- tiff had submitted, his proof, and the defendant's counsel was proceeding to examine witnesses, but was stopped by the court, who stated to the jury that the evidence exhibited by the plain- tiffs was insufficient for them to recover upon ; that all which appeared was, that the plaintiffs had purchased the bill, trusting to the signature of the drawer and indorser ; that, as they had not required the indorsement of Baxter, he was not liable, if it should be returned, unless he had, at the time of its transfer to the plaintiffs, by an affirmation that it was a good bill, induced them to take it. The jury nevertheless returned a verdict for the plaintiffs for 600 dollars. A motion was made by the defend- (1) 1 Man. & Ryl. 269. (2) 4 Mass. Bep. 79. 180 NEW TEIALS. [Chap. IV. Honest mistake of party or counsel. aDt's counsel for a new trial, — and upon the aforegoing report being read, the court said they were all satisfied, without con- sidering the legality of the judge's direction, that the cause must again be sent to another jury. The defendant, without any fault on his part, had not been heard, and although a review was open in this case, they did not require him to waive it, as in fact he had had no trial. But it would appear the intimation of the court must' [*181] be *something more than a mere suggestion. If the judge manifestly intends that the counsel should, notwith- standing the intimation, exercise his own discretion, and take the risk, and he elects to acquiesce in it, a new trial will not be granted. In Beekman v. Bemus.{l) After the plaintiff rested his cause at the circuit, on the trial of a question of fact, the defendant's counsel called a witness on his part, who was sworn ; but the judge intimated an opinion in favor of the defendant on the question, and the counsel forebore to examine the witness, or in- troduce any further testimony, and this though the defendant urged him to go on with his proof. The jury found for the plaintiff. The defendant moved for a new trial, among other causes, for this, that he had not a full and fair trial, owing to its interruption by an intimation from the judge. Upon this point the court say, " After the plaintiff rested his cause, the defend- ant called a witness who was sworu ; but before he gave any evi- dence, the judge intimated to the counsel for the defendant, that it Fas hardly necessary in the then state of the cause, for the de- fendant to give any evidence ; and no evidence was offered on the part of the defendant. The judge did not exclude any testi- mony. He gave the counsel to understand that his impressions were favorable to the defendant, not that the cause was directly in their favor. They offered no farther evidence, reposing on that already given ; and, undoubtedly, satisfied that, with the in- timation from the court, they might safely submit their cause. (1) 1 Cowen, 29. Chap. VI.] ABSENCE, SURPEISE, MISTAKE. 181 Honest mistake df party or counsel. They did submit the cause under these circumstances, and thereby assented to incur the risk, if any, of not adducing farther evidence." So, in Jackson v. Gody,{\) in ejectment. After the testi- mony on both sides had closed, and when the counsel for *the defendant rose to address the jury, his honor, the [*182] judge, remarked, that he considered the case as depend- ing on questions of law and not of fact, and that he should so charge the jury ; and that he should also charge them that, upon the whole matter, the plaintiff was entitled to recover five-ninths of the premises in question ; upon which the defendant's counsel omitted to sum up the cause, and his honor directed the jury to find a verdict for the plaintiff, which they accordingly did. On motion for a new trial, this ground, among others, was taken, that the counsel were not permitted by the judge to address the jury. Upon which the court observe : " The counsel were not precluded from going to the jury. The case states that the counsel for the defendant rose to address the jury, when the judge stated his views of the case, and remarked, in conclusion, that he should charge the jury that the plaintiff was entitled to recover five-ninths of the premises in question ; upon which the defendant's counsel omitted to sum up the cause. This was a voluntary, not a compulsory, relinquishment of his right to ad- dress the jury. The motion for a new trial must be denied." And should the mistake arise from any other cause, and be such as may happen to parties or their counsel exercising ordi- nary care and prudence, the court will relieve them, by setting aside the verdict, where injustice would otherwise be done. In Smith v. Guff.(^) New trial granted on payment of costs where plaintiff was non-suited on the ground that there was no special memorandum, and the writ was not in court to prove the (1) 9 Oowen, 140. (2) 2 Chitty's Rep. 2n. 182 NEW TEIALS. [Ohap. VI. Honest mistake of party or counsel. commencement of tlie action, and the cause of action accrued after first day of term. In D'Aguilar v. Tobin.{l) Various actions on policies of in- surance and verdicts for the plaintiff. A rule to show [*183] *cause why the verdicts should not be set aside was ob- tained, on an affidavit, which stated, that the clerk of the admiralty had omitted by mistake to bring with him the ne- cessary documents, and also stating a letter, from the secretary to the admiralty, informing the defendant that those documents should be produced on a second trial of the cause. Lord Chief Justice GHbbs. — " We will confine the defendant to the point which he has raised ; but in such a case as this we cannot refuse to permit his going into this defence. The money should how- ever be brought into court, because this is a defence which does not go to the merits. But only in the present action ; for though there are circumstances under which we should direct the money to be paid into court in all the actions, yet where a defendant has been deprived, by mistake, of a part of the evidence, I think that this is a condition which should not be imposed." And in Weak v. Callaway, (2) in ejectment. On the trial, the lessors of the plaintiff failed in proving their case ; because when they had shown that he was married to a woman of the name of Joanna Forrest, the defendants proved that Joanna Forrest had been married to another person. They afterwards discovered,^ by the register, which they had not been able to find before the trial, that the grandfather had been married to Ann Forrest, and upon that they moved for, and obtained a rule, to show cause why there should not be a new trial, on an affidavit stating the above facts. The court saying that this was a case in which the making absolute the rule which had been granted for a new trial, could not operate to the injury of the defendants, and might as- sist the justice of the case, under the circumstances, made the rule absolute. (1) 2 Marshall, 266. (2) 1 Price, 677, Ohap. VI.] ABSENCE, SUEPRISB, MISTAKE. 184 Honest mistake of party or counsel. In a case in Vermont, Starkweather v. Loomis,{l) *a new trial was granted as for surprise, where evi- [*184:] dence was excluded, which was offered in reliance upon a reported case. The action was debt on a justice judgment of a neighboring state, and the defendant pleaded nil debet, relying upon the case of King v. Yan GHIder,{2) that it was to be treated as a foreign judgment. On the trial, however, it was held other- wise ; and he was prevented from going into evidence of the merits of the original judgment, which he had had no opportunity of inquiring into in the other state. The court held that he was surprised by the case reported, and no laches being imputable to him, granted a new trial on payment of costs. So in Daniel v. i3ose.(3) Where, on the argument of a case, in the Constitutional Court of South Carolina, it was discovered that a conveyance was made by A. and his daughter B., who in the argument below, had been considered as the wife of A.j a new trial was granted. The court, putting their decision on this ground, observe, " the object of gradting new trials is, that jus- tice may be done between the parties ; and when the court clearly sees, that a case has not been fairly tried upon the merits, and that without fault of the party, justice and reason require that a new trial should be granted. Now the discovery made for the first time on the argument of this case — that Rosanna is called the daughter, in the deed to Alexander Eose, and not the wife, of Henry Brpwn-^raises the strongest presumption that there was some mistake in the parol evidence adduced on the trial below. And it is extraordinary, (bat most certainly true()» that this fact had escaped the observation of the court, and the counsel on both sides, on two trials in the Circuit Court, and a previous argument in this court ; for until now she has been uniformly regarded *as the wife, and not the [*185] daughter of Henry Brown, which, in my mind is a fact of the first importance in the case." (1) 2 Vermont Rep. 513. (2) Chipman, 69. (3) 1 Nott & M'Oord, 33. 185 NEW TEIALS. [Chap. VL Honest mistake of party or counsel. So, in North Carolina, in Palmer v. Poppleston,{l') where an ob- jection was taken on the trial to a bill of sale, because registered in the wrong county, and on a former trial between the same parties, the bill of sale had been read without objection, the court set aside a non-suit founded on the objection, upon payment of costs, on the ground of surprise, and to promote the justice of the case. Upon the same principle, also, in Kentucky, in Boyce v. Yo- der,(2) a new trial was granted on the ground of surprise, pro- duced by the rejection of a deed which the party believed, and had a reasonable ground to believe, from the circumstances, was admissible. So, where counsel sulfered a verdict to pass against his client, without a trial, clearly by mistake, and to his prejudice, the Su- preme Court of New Hampshire, in JRileyv. ^'merson,{3) granted a new trial. And in Winn v. Young,{4:) in Kentucky, the same principle has been adopted. And it has been held, that where a verdict is not the result of a compromise of doubtful rights, but of the error of the court, or the mistake of the counsel transcend- ing his powers, a new trial will be granted. But the court will not allow motions grounded on mistake, to prevail against the justipe of the case, nor unless the mistake be wholly free from blame. This rule presents the true grounds, blameless mistake, and injury to the party ; and if the latter, in seeking relief, do not satisfy the court in both respects, the motion will be 'denied. A motion for a new trial, on the ground of mistake, was therefore refused, in Wits v. Polehampton,{b) being con- [*186J trary *to justice. It was moved for a new trial, because (1) 1 Hawks. 30'?. (2) 2 J. J. Marsh. 515. (3) 5 New Hapupshire Eep, 531. (4) 1 J. J. Marsh. 52. (5) 2 Salk. 647. Chap. VI.] ABSENCE, SUEPEISE, MISTAKE. 186 % Honest mistake of party or counsel. the defendant having pleaded a composition, had forgot to carry down witnesses to prove the subscribers' hands ; and the motion was denied because the debt was honest. And Holt, Ch. J., remembered where debt on a bond was brought against an heir, who pleaded riens per descent, but the verdict went against him, by omitting to bring the settlement to the trial ; and the court being moved, refused to grant a new trial, because it was an honest debt. So, where a defendant, by the mistake of his attorney, pleads a plea which does not cover his defence, and, on trial, a verdict is therefore against him, the Supreme Court will not,, for that rea- son, grant a new trial. McNeish v. Siewart.{).) It was an action on covenant of'seisin. Plea non est factum, and verdict for plain- tiff. Motion to set the verdict aside on an affidavit, stating that the plea was put in under a mistaken supposition by the attor- ney for the defendant, that the plaintiff must prove a breach, and the defendant might show, in his defence, any matter which would go to defeat or diminish the amount of the plaintiff's re- covery, and that the plaintiff- did not pretend a failure of title, as to all the land conveyed. But, per Ouriam. — " We cannot re- ceive this excuse as a ground for the relief sought. Though it appears to be founded in good faith, yet a contrary practice would lead to endless excuses founded in mere pretence. After the de- fendant has gone to trial upon pleadings which do not cover his defence, and has a verdict against him, it is too late for him to move for an amendment. He must go down to trial prepared."(2) So, in Qorgerat v. McCdrty,{S) held, that the mistake of the party or his counsel, is no ground for a new trial. What the court meant by mistake, is explained in their *opin- [*187] ion, and is reconcilable with the cases cited in support of the preceding rule. " The plaintiff was non-suited for want of testimony, the ordinary case, not so much of mistake, as the (1) 1 Cowen, 414. (2) Et vide 1 Cowen, 369. (3) 1 Teatea, 253. 187 NEW TEIALS. [Chap. YI. Ignorance or inadTertenoe will not be relieved. absolute want of evidence." And, upon this, they say, "We know of no case in the books, where a non-suit, entered for want of testimony on the part of the plaintiff at the trial, has been ta- ken off; nor do we apprehend the mistake of the party or his counsel, to be a ground for a new trial." YI. Ignorance or inadvertence will not be relieved. But the court will not relieve the party from the consequejices of mere ignorance, inadvertence or neglect, by granting a new trial. Thus, if the party, or his counsel omit to put forward a claim at the trial. So ruled in McDermotty. The United-States Insurance Company.iV) Action upon a policy, and verdict for the defend- ants, with points reserved, one of which was, as to whether an award which had been made between the parties was final. The parties had offered evidence on the present claim, and the arbi- trators had indorsed upon their submission, that, "having exam- ined all the evidence offered by the parties^ they are of opinion, that proof has not been produced, sufficient to establish a claim against the United States Insurance Company, for loss on the policies, Nos. 2,268 and 2,269, dated 6th December, 1809, per schooner Emily, Captain De Weeve." Held, that an award in a suit on a policy of insurance, that proof had not been produced sufficient to establish a claim against the defendant, is as much as saying that the plaintiff had no cause of action, and is final and conclusive, and the court will not grant a new trial on the ground of a claim which the party might have brought forward at the trial, and did not.(2) [*188] *So, if the party neglect to apply in time to a court of law for a new trial, it will be refused in equity. In Bate- man V. TR7?oe.(3) The defendant had a verdict. Bateman, conceiv: (1) 3 Serg. 4; Rawl. 604. (2) Et vide 6 Monroe, \i1. (3) 1 Soh. & Lef. 201. Chap. VI.] ABSENCE, SUEPEISE, MISTAKE. 188 Ignorance or Inadvertence will not be relieved. ing that he had good grounds to impeach this verdict, directed a motion to be made, and filed an ai36.davit for the purpose, but, by some mistake, notice of the motion was not given until after the period, within which, by the rules of the Court of Exchequer, it was competent to him to give it, and the court, therefore, on that ground, and without going into the merits of the applica- tion, refused to disturb the verdict. Thereupon, the present bill was filed, stating that there were unreasonable charges in the plaintiff's bills. The bill prayed an account and injunction. The Chancellor, Eedesdale, dismissed the bill, remarking, among other things : " Whether Willoe had a right to the charges or not, was a matter capable of being laid before a jury, and if Bateman had shown that he ought to have credit for these sums, credit must have been given him, if he took the proper means for that purpose. Then, an application is made to the Exchequer for a new trial, which I understand to have been grounded on the same matters that are made the ground of the present suit, but the notice was too late, and the court refused a new trial. That court has established a rule necessary for the purposes of justice, and being so, it would be contrary to those purposes if I should break through it. I should render that rule nugatory and defeat justice, if, in every case, where the party has neglected to apply in due time to the court of law, he should be at liberty to come into equity for a new trial." In cases of surprise, the situation of the plaintiff differs from that of the defendant. When he is surprised by the production of unexpected evidence at the trial, he may submit to a non- suit, and, if he neglects it, he will not be relieved, unless he *was prevented from being non-suited by fraud or ac- [*189] cident. Thus, in an issue, out of Chancery, upon a motion for a new trial, because the defendant had produced evidence, by surprise, which the plaintiff, if prepared, could have answered, one main reason for denying the motion was, that the plaintiff suffered a verdict to be given when he might have been non-suited.(l) (1) Richards v. Syms, Buller's IT. P. 326. 189 NEW TEIALS. [Chap. VL Ignorauoe or inadvertence will not be relieved. In Harrison v. Harrison,^}.) which was an action for the bal- ance of an account for work done, the jury believing the defend- ant's witnesses, who proved an acknowledgment on the part of the plaintiff, that he had been paid, found for the defendant Peake, sergeant, obtained a rule to show cause why there should not be a new trial on the ground of surprise, on affidavits stating that the witnesses on the part of the defendant at the trial, who swore that the plaintiff had acknowledged having received money from the defendant, had since been heard to say, that they had been in effect suborned by the defendant, and had sworn what was not true. It was also sworn that the defendant had applied to several persons, endeavoring to induce them to state at the trial, that they had been present at conversations wherein the same acknowledgments had been made. There were other affi- davits in which it was stated that the defendant's witnesses had, after the trial, acknowledged that they had been suborned, and had perjured themselves; detailing minutely various conversa- tions wherein they had done so. Affidavits were submitted on the part of the defendant, denying these facts. Wood, Baron. — ' " It would be a very bad precedent, if we were to make this rule absolute. The consequence would be, that we should have a vast number of new trials applied for, charging the witnesses of the succeeding party with perjury. There are besides [*190] other reasons *in this case for discharging the rule. The ground of the application was surprise. I have no doubt that the plaintiff was surprised when the defendant proved his acknowledgment, of having received money fromt him for which he had not thought proper to account, and was proceeding to recover by this action. If that had not been true, he should have requested to he non-suited, that he might have become better pre- pared in another action ; but he chose, notwithstanding, to go on and take the chance of a verdict, by letting the case go to the jury, in the hope, perhaps, that they would disbelieve the defend- ant's witnesses. Now suppose we should grant a new trial, the plaintiff might again take the chance of being believed, and if (1) 9 Price, 89. Chap. VI.] ABSENCE, SURPRISE, MISTAKE. 190 Ignorance or inadvertence will not be relieved. not, he might apply to the court again on the same grounds. It would become a common course on all occasions of failure, if this were to be tolerated, for a plaintiff instead of choosing to be non- suited, as he ought to have done in this case, for that is the only proper course— to try first what the jury will do for him, and if he should fail, he will then apply to the court out of which the record issues for a new trial. It is impossible to grant or listen to such an application. "(1) So in Oswald V. Tyler.(2) Appeal from the decree of the Court of Chancery denying a new trial. The grounds of the applica- tion are contained in the opinion of the court, who affirmed the decision, two out of three. By the President. — " Upon the facts in the c&se, it does not appear that any fraud was practiced by the defendants, by which this negligence on the part of the plaintiffs was produced, nor does it appear that there was any obstacle imputable to the defendants, to prevent their counsel, after the testimony was disclosed, from suffering a nonsuit. He freel}' submitted the case to the jury, and took the chance *of a verdict in his favor. The application then [*191] for relief is solely on the ground that great injustice has been done them in the trial at law. It seems to me very clear, that if a party neglects to avail himself of his remedies for injus- tice done, a court of equity ought not to interfere. This doctrine is the more reasonable in its application to plaintiffs at law than to defendants. The former always have it in their power, in a case like the present, to be relieved against surprise on the trial, if any, by suffering a non-suit. They are not compelled, as de- fendants are, to submit their case to the jury." And in Willard v. Weiherbee.{3) Held, that when a party is surprised at a trial by the evidence upon a particular point, it is a good cause for motion to delay the trial, but where no such (1) Et Vide 6 Moore & Payne, 229. (2) 4 Randolph, 19. (3} 1 New Hampshire Cases, 118. 191 , NEW TEIALS. [Chap. VI Ignorance or inadvertence will not be relieved. motion is made, it is not a good ground for a subsequent motion for a nevr trial. A still stronger reason exists iu this country for refusing a new trial to a plaintiff, upon the ground of surprise or mistake, where the practice has been introduced, of allowing a juror to be with- drawn and retaining the cause upon the calendar, instead of non- suiting a plaintiff for a defect in his proof.(l) This rule has been held to apply also to criminal cases.(2) And although in Eng- land the plaintiff cannot be permitted to withdraw the record, (3) yet he has a right, upon his cause being called on, to request the swearing of the jury to be suspended until his witnesses have been called ; and if they be absent, the counsel may withdraw the record, and thus avoid a non-suit, which,, if the jury h«,d been first sworn, he must have submitted to.(4) [*192] *The same rule applies, where counsel, from motives of prudence, omit evidence which, upon reflection they think if introduced, would have benefited their cause. As in Spong v. Hbg.{5) The plaintiff had sued the defendant in trespass and in slander. The latter case was first called and tried, and the counsel declined giving any evidence that might look like a justification, and so swell the damages. The jury found a verdict of £100 damages. The trespass came on, and upon a full disclosure of the circumstances, there was a verdict for the defendant. The defendant then moved for a new trial in the slander suit, on the ground of evidence he had thought proper to suppress, and of excessive damages. But, Per de Qrey, Ch. J. — "The only grounds upon which this rule can be sup- ported are, either first, because the defendant might have given (1) Gra. Prac. 252. Et Vide The People v. The New York Oornmon Pleas, 8 Cowen, 127. (2) Vkifed States v. OooUdge, 2 Gallison, 364. (3) 1 Chit. Arch. 273. (4) Hopper v. Smith, 1 Moody & Malkin, 116. (5) 2 W. Black. 802. Chap. VI.] ABSENCE, SUEPEISE, MISTAKE. 192 Ignorance or inadvertence will not be relieved. evidenc : in mitigation of damages, which then it appeared pru- dent to omit. This was never a ground for a new trial. Hardly a case happens where evidence of, some kind or other, is not, in discretion, kept back. And it would be of fatal consequence to give the parties an opportunity of introducing new evidence when they see where the cause presses." So, if the leading counsel at Nisi Prius, take one line of case contrary to the opinion of his junior counsel, the court will not permit the junior counsel to obtain a new trial, upon the ground that he was prepared with evidence to support another line of case, which his leader repudiated. Thus held in Pickering v. Dowson.{l) Action for deceit in the sale of a ship. The judge was of opinion upon the evidence, that the defendants were not liable in law, and directed a non-suit. Motion for a rule nisi, to set aside the non-suit, and for a new trial. The counsel on the argument took a different line of case from that adopted at the *trial, on which Gibhs, J., observed : — " My broth- [*193] er Best, who led the cause, used his discretion at the trial and did not go on this line of case. If the counsel who leads the cause takes one line, and the judge and jury decide on the line taken by the leader, the junior counsel also must confine himself to the line taken by the leader. This matter was stated, and I repeatedly called for evidence of this sort, and, under the direction of the leader, none such was produced." For a client is bound by the conduct of his advocate. Hall v. Stoihard.{2) Verdict for defendant, and motion to set it aside, and for a new trial. The action was brought for refusing to receive some linseed, which the plaintiff had contracted to de- liver within fourteen days, the price being payable at the time of delivery. A portion of the linseed had been delivered, and the question was, whether the defendant was obliged to receive the remainder, an alteration having taken place in the price of the article. The action was resisted on the ground, that the de- (1) 4 Taunt. 779. (2) 2 Chitty's Rep. 267. 198 NEW TRIALS. , [Chap. VI. Ignorance or inadvertence will not bo relieved. fendant had applied for the delivery of the remainder of the 'linseed, and that the answer was, that plaintiff had not got it all to deliver. It was now observed in support of the motion for a new trial, that the plaintiff's clerks, to whom this application had been made, were in court, and thfe plaintiff's attorney wished them to be called, but that the counsel declined to pursue that course, and that ultimately the verdict passed for the defendant. Lord jEllenbm'ough, Oh. J. — "The client must be bound by the conduct of his counsel, otherwise there would be no end to ap' plications to the court for new trials. Where the parties wish one course to be adopted, and the counsel take another, the par- ties must, neverthele-'S, abide by the acts of their counsel, how ever contrary to their wishes ;" 'and rule refused. (1) [*194] *So in Gwilt v. Grawhy.{2) The defendant's attor^ ney knew a week before the cause was called on, that it was set down for trial, but had neither delivered a brief nor examined his witnesses. When the cause was called on, no one appeared for the defendant, and a verdict was taken for the plaintiff. The court refused a new trial on any ground, though it was sworn that the defendant was taken by surprise, and had a good defence.(3) And where an executor, being sued on a bond of his testator, of more than twenty years' standing, was advised hy Ms counsel to rgly on the presumption of payment arising from the length of time, and supposing such presumption a sufficient defence, neg- lected to fortify it by other testimony, which was in his power, in consequence of evidence given by one of the jurors in the jury-room, a verdict was found against him. He moved for a new trial on that ground, but was refused. (4) The rule applies with equal force if the counsel acquiesce in the decisions of the court. He will not be permitted to urge (1) Et vide 20 Maft. Louia. Rep. 18t. (2) 8 Bingham, 144. (3) Etvide 10 Mod. 202. (4) Price v. Fuqua, 4 Munf. 68. Chap. VI.] ABSENCE, SURPRISE, MISTAKE. 194 Ignorance or Inadvertence will not be relieved. objections upon an after thought, to disturb the verdict. In Robinson v. Gook,{i) in replevin on a distress for rent and tender before suit brought ; but objected to, because the precise sum was not tendered, and the tender was coupled with a qualifica- tion deducting the property tax, and so fatal. The plaintiff's counsel took no otber distinction, and the judge held both ob- jections valid, and directed a verdict for the defendant, in which the plaintiff's counsel acquiesced. Motion to set aside the ver- dict, upon the ground that the tender of a greater sum was a good tender, taking up the objections made at the trial, but abandoned. The court inclined to think both objec- tions good, *but peremptorily refused, after the points [*195] had been abandoned by the plaintiff's counsel at the trial, and the defendant thereby precluded from going into his case, to permit them to be now even mooted.(2) So in Lewis v. Stephenson.i^) A verdict was taken, subject to the opinion of the court. The judgment of the court was founded principally upon the fact, that the defendant had not, in receiving the goods of the mortgagor, acted, with a sufficient de- gree of caution, and had not made due inquiry as to the right of the party in possession, to pledge property which had been pre- viously conveyed to the plaintiff. The defendant moved for a new trial upon the ground of surprise, on an affidavit, setting forth that at the trial, neither himself nor his counsel supposed that any question of fact, as to his vigilance, in receiving the property, would be raised, and that he could have produced tes- timony upon that point which would have satisfied the jury, if he had supposed that such a question was to arise in any stage of the cause. That after the evidence had been closed, it was assumed by the judge, who tried the cause, and by the counsel for both parties, that the result would depend entirely on ques- tions of law ; and that, therefore, the defendant's counsel were willing that a verdict should be taken for the plaintiffs, subject (1) 6 Taunt. 336. (2) Et vide 7 GreenL 204. (3) 2 Hall's Rep. 248. Vol. I. 14 195 NEW TEIALS. [Chap. VI. Ignorance or inadvertence will not be relieved. to the opinion of the court, upon a case to be made, not supposing that the judgment of the court would rest upon a question of fact. The affidavit then stated, that the defendant was taken entirely by surprise, and that upon a new trial, he could make the question of caution clear in his favor. Per Curiam. — " The defendant has no cause of complaint. He might have submitted all questions of fact to the jury at the trial, if he had been dis- posed to do so, and there was no attempt to influence [*196] him to the contrary. By putting the *whole question to the court, he took no higher risk than the plaintiffs did, and can have no greater rights. If the opinion of the court had been adverse to the plaintiffs, upon' the question of fraud, whether in fact or in law, or upon any of the other questions presented by the case, their judgment would have been final. The plaintiffs could not have moved again in the matter, but would have been concluded by their own acts. The defendant's- rights in these particulars are the same with the plaintiffs, and he has concluded himself, by voluntarily putting all questions of fact, as well as law, to the court." Much less will the court grant a new trial to admit evidence which might have been produced by exercising ordinary dili' gence at the trial.(l) In Cooke v. Berry.{2) Assumpsit upon a promissory note. De* fendant pleaded that the plaintiff accepted of some chests of tea in satisfaction, upon which issue was joined, and there was a verdict for the defendant ; it was noW moved on behalf of the. plaintiff for a new trial, upon an affidavit that the plaintiff took this to be a sham plea, and that he had a letter under the de- fendant's own hand, wherein it appears the defendant had dis- posed of the tea to another person, and wherein the defendant says he will pay the plaintiff his money due upon the note, which letter the plaintiff did not produce at the trial, thinking the plea was a sham, and the defendant could not possibly prove it. But (1) Vide 5 Wendell, Ul. (2) 1 Wils. 98. CHAi>. VI.] ABSENCE, SlTBPRISEl, MISTAKE. 196 Ignorance or inadvertence will not be relieved. per Ouriam. — " New trials are never granted upon the motion of a party where it appears he might have produced and given material evidence at the trial, if it had not been his own default) because it would tend to introduce perjury^ and there would never be an end of causes if once a door was opened to this* Suppose in a scire facuts upon a judgment, the defendant has a release^ he is summoned, *and has an opportunity [*197] of pleading it atid does not, he shall never have an audita querela ^ this is a very strong case at bar^ for the plaintiff has notice of the defence of the defendant in his pleaj and ought to have come prepared to falsify, it at the trial." And Dennison^ J., said he remembered a case of a horse plea, where the defend- ant pleaded he gave the plaintiff a horse in satisfaction ; plaintiff looked upon it as a horse (or sham) plea indeed, but the defend- ant at the trial proved it to be a true plea. So in Price v. Broti)n.{V) Upon payment after the day^ and before bringing the action, it was pleaded to be a payment of the principal and all interest then due. On evidence, it appeared a gross sum was paid, which upon computation did not amount, to the full interest) but it was sworn that the plaintiff accepted it in full. It was objected that they o&ght to prove it as they had pleaded ; but the chief justice thought it well enough) upon which there was a verdict ; and the next term it was moved on affida- vits of the falsity of the defence, and that no defence was ex- pected, and therefore that the plaintiff was unprepared to contra' diet the single witness who swore to the payment of the money* But the court would grant no new trial, saying it would be of dangerous consequence, to suffer people to be setting up new evidence, after they knew what was sworn before. So in Gist v. Mason.(2) It was contended at the trial, that certain policies were on an illegal trade; but the judge being of opinion that they were not so on the face of them, directed a verdict in support of them 5 and a motion for a new trial to let (1) 1 Str. 691. (2) 1 term. Bep. 84. 197 NEW TEIALS. [Chap. VI. Ignorance or inadvertence will not be relieved. tbe defendants into evidence, to prove the trading so notoriously illegal that the plaintiff must have known it, (which was not of- fered, on a presumption that the jury must have drawn that con- clusion) was refused ; as the defendant made the appli- [*198] cation to supply his own *negligence, when it was evi- dent that he was not taken by surprise at the trial.(l) , So in an Anonymous case.{2) A similar application on behalf of a party who had made a mistake on the trial, in a point of evidence -which would have encountered the evidence given against him, which mistake was discovered since the trial, was refused. So, in out V. Warner^s Adm''r,{3) where a party knowing a witness to be absent, voluntarily risked a trial, it was held that no new trial should be granted, on account of alleged surprise arising from the absence of such witness, no matter how import- ant the facts might have been, which the w^itness would have proved. And in Smith v. Morrison,{4) where it was alleged that the pHTty was surprised, by the production of accounts anterior to an alleged settlement, which he could have met by memoranda and teceipts in his possession, but which he could not prove at the trial, a new trial was refused, on the ground that by the declara- tion in the case, the party was apprised to be prepared to meet the previous accounts, inasmuch as the plaintiff was not pre- cluded by it from going into the original accounts, and that therefore in this respect he had been guilty of laches, which deprived him of the right to a new trial. So, also, in Barrow v. Jones,{5) it was held that the attorney of the party going into the trial unprepared, and suffering a verdict (X) Mvide 2 Term. Rep. 113, 718. (2) Portesoue, 40. (3) 1 J. J. Marsh. 590. (4) 3 Marsh. Kent. Rep. 81. (5) IJ. J. Marsh. 470. Chap. VI.] ABSENCE, SUEPEISE, MISTAKE. 199 Bvidenoe not objected to will be eonaidered waived. against his client in his absence, furnished no ground for a new trial.(l) So, in JSTorth Carolina, in M'AUister v. Barry,{2) where a plaintiff, supposing himself ready, pressed for trial, *and [*199]: it was found on the trial that the testimony he relied on could not be given in evidence as he expected, and he was non- suited, a new trial on the ground of surprise was refused. And in Thompson v. Thompson.{3) The plaintiff's counsel moved to set aside a non-suit which was suffered, because on the trial, the plaintiff offered an attested copy of a bill of sale for a negro, instead of the original, and did not account for the ab- sence of the original. The plaintiff's counsel said that the papers were shown to them oh the day before the trial, and it did not occur to them that the original would be required; nor did, they remember that it would be wanting, till the trial came on, and that therefore the plaintiff was surprised, in consequence of their overlooking the objection that was made against them. But, per Guriam. — " This is not surprise, but it is sua negligentia, . and the non-suit ought not to be set aside." So, also, in ArringtomJs Admr. v. Co?eman.(4) When the trial came on, the plaintiff was about to read two depositions of one Philips and his wife, which were essential in the cause, and it' was objected that Philips, the witness, was a surety for the costs of the suit, whereupon his testimony was rejected. The plain- tiff moved for a new tria}, on the ground of surprise, and M^Oay, J., rejected his motion without hesitation. YII. Evidence not objected to will he considered waived. If evidence be not objected to when offered, it will be con- sidered as waived, and cannot sustain a motion for a new trial, under the pretext of surprise or mistake. (1) Et vide 2 J. J. Marsh. 86. (2) 2 Hayw. 290. (3) 2 Hayw. 405. (4) Ibid. 300. 200 NEW TRIALS. [Chap. VI. Evidence not objected to will be considered waived. So held in Abbott v. Parsons.{l) Assumpsit for work and labor. Defendant pleaded an off-set. ." Cash to Mann, for flour, £18 6s." At the trial before Qaselee, J., the evidence in [*200] support of this item was, that flour to that *amount had been furnished by Mann to the plaintiff; that Mann, many months before the action, sent his bill into the plaintiff, when the plaintiff's wife complained to Mann, and told him to look to the defendant ; since which time no demand had been made on the plaintiff. When the judge was summing up, and not before, the counsel for the defendant objected that this evi- dence did not support the particular of set-off. The learned judge, however, left it to the jury to say whether Mann had been paid, and a verdict was found for the defendant. On motion for a new trial, on the ground, among others, that the evidence did not support the above item of off-set, per Tindal, Oh. J. — " It has been objected, on the part of the plaintiff, that the defendant's claim, in respect of the payment to Mann, has not been so de. scribed in the particular of set-off as to entitle the defendant to take advantage of it under the evidence which he has given. But it is of the first importance to the administration of justice, that objections of this kind should be made when the evidence is offered, and that the party should not lie by to speculate on the accidents of the cause. Here the objection was not .taken till the judge began to sum up to the jury, and the plaintiff's coun- sel began to feel the effect of his observations. It is clear from the evidence, that Mann can make no demand on the plaintiff, and the cause ought not to go down again." Park, J. — " Thg objection ought to have been made when the witness was called to prove the set-off, because then the evidence might have been admitted or rejected-, as the case required.(2)" The same rule was adopted in this state in Sherman v. Crosby.{3) Assumpsit on a promissory note. The defendant pleaded non- assumpsit, with notice of set-off. In support of the set-off (1) 1 Bingham, 663. (2) Etvide 2 Taunt. 217, innotis; 6 Pick. 211; 6 Monroe, 111. (3) 11 Johns. Rep. TO. Chap. VI.] ABSENCE, SUEPEISE, MISTAKE. 201 Evidence not objected to will be considered waived. the defendants proved the plaintiff •^had authorized- [*201] Crosby, one of the defendants, to settle a suit he had against one Bennet, and that he, the plaintiff, would account to Crosby, and produced in evidence a receipt of Bennet,, to which the plaintiff's counsel objected, insisting that Bennet ought to have been produced. The plaintiff submitted to a non-suit ; and on motion to set it aside, among other grounds, took as a new point, that the defendants could not avail themselves of the pay- ment by one as an off-set against a joint debt. Thecpurt having overruled the objection taken at the trial proceed to say : " There was no other point raised at the trial or arising on the case, for it is too late for the plaintiff now to object to the off-set, on the ground that it was setting off the separate debt of one of the de- fendants, against the joint debt of both of the defendants. That objection might have been good if made at the trial." The motion was denied. In Jackson v. Jacfcow,(l) illegal evidence had been admitted without objection at the trial. But upon the argument, on mo- tion for a new trial, the objection was taken and overruled. Per Sutherland, J., who delivered the opinion of the court : — " It was made a point in behalf of the defendant, upon the argument, that the evidence, to show that the widow of Jackson claimed to hold the premises, while she continued in possession, in right of her dower, and also the evidence in relation to the death of Jackson, were improperly admitted. The evidence was not objected to upon the trial, and the propriety of its admission cannot now be questioned." And in Jackson v. Gody,{2) it was held that the court would intend what was not objected was received by consent. The plaintiff, among other things, produced a deed covering the lot, purporting to have been executed by "William Patterson, descri- bing him, however, in thejfore part of the deed asWilliam Patterson, late a soldier in *the revolutionary war, in [*202] (1) 5 Cowen, 173. (2) 9 Cowen, 140. 202 NEW TEIALS. [Chap. VI. Evidence not objected to will be considered waived. ' Hazen's -regiment, to John Blanchard, of the city of New York, gentleman, bearing date the 6th day of December, 1790; on the back of which was indorsed, " Eegistered 30th April, 174(5," and an entry of the registry was read in evidence from the book of registry of filed deeds, kept in the office of the clerk of Cayuga; which book was produced by the witness, Grridley, who testified that it was the book remaining in his office of such entries. It was received without objection. There was a verdict for the plaintiff, and on motion for a new trial, among other tiauses, it was objected, the deed from Patterson to Blanchard was not proved. After commenting on the proof as applicable to this point, Suihethnd, J., concludes with' this remark : "But whether competent or not, as it was not objected to, it must be considered as received by consent."(l) So in Massachusetts. Wait v. MaxweU,(2) in action on covenant of seisin. Defendant pleaded his intestate was seized and had good right to convey ; and issue thereon. The defendant, to prove seisin, offered a deed to the intestate from Dorothy Kemp. The plaintiff offered certain proceedings in the Probate Court to prove the deed void, and introduced testimony to show- that Dorothy was non compos at the time of executing the deed. A verdict was taken for the plaintiff, subject to the opinion of the court, and if against the plaintiff, a new trial to be granted. The principle presented was, the inadmissiblity of the proceedings of the Court of Probates as evidence. Upon this Parlcer, Ch. J., who delivered the opinion of the court, observes : " Probably the proceedings of the Probate Court would have been rejected from the evidence, if a motion to that effect had been made at the trial. They were objected to only as proving conclusively the incapacity of Dorothy Kemp, and the objection was [*203] sustained by the court ; *but the proceedings remained in the case and made part of the evidence committed to the jury. A new trial is not necessarily to be granted because (1) Vide 3 Littell, 78. (2) 5 Pick. 211. Chap. VI.] ABSENCE, SUEPEISE, MISTAKE, 203 Evidence not objected to ■will be considered waived. evidence has been introduced into a cause, which, if liable to ob- jection, ought upon motion to have been rejected, not even if such evidence is commented upon by the judge ; for it sometimes happens that evidence, which would be inadmissible if objected to, is admitted by consent ; and if the judge is not called upon to decide on its competency, it ought to be considered as tacitly assented to." So, also, in Pennsylvania, in Russell v. Union Insurance Gom- pany.{l) This cause came on upon a rule for a new trial. The ground was, that the court was mistaken in point of law, in sta- ting that the papers which respected the interests of the plaintiff, in the record of the Admiralty Court at Halifax, was evidence, and therefore that the plaintiff, not having proved his interest by other evidence, ought not to recover. Washington, J., after ex- pressing his regret that the defendant should have urged an ob- jection which had the appearance of being captious, disposes of the point thus: "If an objection was intended to be made to the evidence of the papers found on board and set forth in the record, it ought to have been taken when an attempt was made to read them, or at any rate before the counsel for the plaintiff had fin- ished his opening. Were a different rule to be pursued, great inconveniencies and irregularities would follow." And in Peters v. Phoenix Insurance Company.{2) The court said they would not grant a new trial on a point of law not made at the trial, unless the ,party would be without remedy if the ver- dict should stand. In like manner, it has been ruled in New Jersey, Den v. Geiger, that a party is not permitted to impugn a ver- dict *in consequence of the introduction of testimony to [*204] which, on the trial, he raised no objection.(3) The rule, however, has its exceptions. In Rich v. Penfield,{^ (1) 1 Wash. 0. 0. Rep. 440. (2) 3 Serg. & Rawle, 25. (3) 4 Halst. 225. (4) 1 Wendell, 380. 204 NEW TEIALS. [Chap. VI. Evidence not objected to will be considered waived. it was held, that though an objection was not specifically takem at the trial, if, on a case made, it appears that the plaintiff ought not to have recovered, on grounds which if they had been taken, could not have been obviated, the verdict will be set aside. This was an action on the case for diverting waters from certain milia. After the testimony was closed, the defendant's counsel insisted the plaintiff was not entitled to recover, because the interest in the mills was either joint ipthe plaintiff and one' Gelston, or in (jelston alone. The judge decided the plaintiff was entitled to recover in his own name alone, and so- charged the jury, who found a verdict for the plaintiff. Motion for a new trial on vari- ous grounds, and especially that taken by the defendant's counsel on the trial. Upon this, Sutherland, J., who delivered the opinion of the court, remarks : " The only interest alleged in the declara,- tion was the possession of the plaintiff, and the only evidence of interest, upon the trial, was that which went to the fact of pos- session : when the defendants objected, therefore, that the plaintiff could not recover because the injury proved was, for a part of the period, exclusively to Gelston, the tenant of the term, it was sub- stantially objecting that the plaintiff's proof varied from his de- claration, but it was not necessary to put the objection in that specific form. This is not a bill of exceptions, but a case ; and if it appears that the plaintiff ought not to have recovered on grounds which, if they had been specifically taken at the trial, could not have been obviated, the verdict should be set aside. Upon this ground, therefore, I am of opinion that a new trial should be granted." [*205] *And, in a more recent case, Archer v. HubheU,{l) the court intimated, if not expressly ruled, on this distinction, that in arguing a case on a motion for a new trial, the counsel were not confined to the objections taken at the trial. In this case, it was urged by the defendant's counsel, that objections to the charge of the judge could not be made on the argument, it not appearing by the case, that the charge was excepted to on the (1) 4 Wendell, 614, m notis. Chap. VI.] ABSENCE, SUEPEISB, MISTAKE. 205 Evidence not objected to will be considered waived. trial. In answer it was said, and apparently acquiesced in by the court, that such was the rule as applied to bills of exceptions, but not to cases which were substituted, in the place of reports of trials made by the judges, and consequently every objection might be urged on a case, which heretofore could be urged on a report made. But, it would, appear, objections to the evidence and to the charge of the judge, stand upon a different footing. That as to the latter, exceptions need not be taken to entitle the party to the benefit of them, on a motion for a new trial, especially if he has excepted to the matter upon the introduction of the evidence, which constitutes the exceptionable part of the charge. So ruled in The People v. Holmes,{].) by Marcy, J., who, delivering the opinion of the court, observes — " It is said that Williams and Merrill cannot now object to the charge of the judge, because they took no exception to it on the trial. If they had stood by in perfect silence, and heard the judge submit to the jury a matter of defence, which was excluded by the pleadings, the court might not listen to them on a motion for. a new trial for that cause. Such, however, is not the predicament of these plaintiffs, their counsel having objected to the defence which was not em- braced in the issue, when it was offered to be proved, and the judge having admitted it, an objection to the charge, when the judge submitted such defence to *the jury, [*206] was not required to give to the party the right to object to the charge on this motion. To have complained of the charge on the trial, would have been but a repetition of aa objection once overruled." • To make the rule consistent and just in its application, objec- tions to evidence that might have been obviated if taken, must be excepted. It was accordingly ruled in Jackson v. Davis,{2) that if an objection which can be obviated by further proof, be not taken or not persisted in at the trial, it will not be received as the ground of a motion for a new trial. (1) 5 Wendel], 192. (2) 6 Gowen, 123. 206 NEW TEIALS. [Chap. VI. Evidence not objected to will be considered waived. So, in Jackson v. Ghristman,{i) the same ground w.as taken and again ruled in relation to the proof of a will, where the objection was confined to the non- production of the living subscribing witness. Upon this point urged against the verdict, Sutherland, J., who delivered the opinion of the court, remarks: — "This being a verdict subject to the opinion of the court, the court are authorized to draw the same conclusions which the jury would have been jastifled in drawing from the evidence; and if they would have been justified in finding in favor of the will, even if the witness had been produced and had sworn that it was not subscribed by the witnesses- in presence of the testator, the fact may be considered as found by the jury. But I am inclined to think the objection at the trial was not suiSciently specific to raise this question. The reading of the will was objected to on the ground that one of the subscribing witnesses wag still living, and ought to be produced. No allusion was made, in corroboration of this objection, to the fact that the attestation was defective. The objection, independently of that fact, was clearly unfounded. The witness may have been in court, and if the substan- [*297] tial ground of the objection had been stated, the *plaintiff might voluntarily have produced him, or the judge have compelled his production." This distinction has been taken in Massachusetts, in Maynard v. Hunt.{2) "Writ of entry. Demandant declared upon his seisin in himself, and a disseisin by the tenant. The tenant pleaded several pleas, and had a verdict. The demandant moved for a new trial, because no evidence had been introduced sufficient or proper to maintain either of them, on the part of the tenant, and because all the evidence in the case, the three last pleas, and the admissions of the tenant's counsel, showed that the finding of the first issue for the tenant, was a consequence of finding the other issues in his favor, and that if that issue had stood alone, it would have been found for the demandant. The sufficiency of the testimony was reserved for the consideration of the court. (1) 4 Wendell, 278. (2) 5 Pick. 240. Chap. VI.] ABSENCE, SUEPRISE, MISTAKE. 207 Evidence not objected to will be considered waired. Parker^ Ch. J., delivered the opinion of the court; and, among other things, upon the point how far objections not taken below are available, observes: "The tenant's counsel has reminded us since the argument, that no objection was taken at the trial to the time of the supposed tender, and he refers us to the case of Arms V. Ash,ley,{\.) to show that it could not afterwards be raised. But the cases are wholly different. In the case cited, the point was, that a fact capable of proof, but omitted to be proved or called for at the trial, was, on the hearing of the questions re- served, stated as a ground of objection to the verdict. In this case the point on which the cause turns, appears on the record and in the proceedings, and from the tenant's own showing, no other evidence touching it could have been produced had the question been made at the trial, for the tenant's right *to tender did not exist until long after a tender could [*208] have defeated the demandant's title at law."(2) Another exception is, where, from defect of evidence, whether objected to or not, the party was not entitled to a verdict. Thus, in Davies v. Mbrgan,{3) upon an application by the defendant for a new trial, it was held it ought not to be granted if there be an essential defect in the defendant's evidence, although no objection was made by the plaintiff at the trial upon that point. This was an action of trespass de bonis asportatis for seizing shoes. Plea, not guilty, and justification under a by-law, founded on a custom for the exclusion of foreigners, cordwainers. The jury found for the plaintiff, negativing the custom. It was not ob- jected at the trial by the plaintiff, that the defendant had not proved a demand and refusal of the penalty before the distress was levied : but upon the judge's report, the court raised the question whether a new trial could be granted in the face of such a failure of proof. And the decision of the court, delivering their opinions seriatim, refusing the motion, is put distinctly on (1) 4 Pick. 11. (2) Vide 4 "Wendell, 544. (3) 1 Cromp. & Jervis, 587. 208 NEW TEIALS. [Chap. VL Evidence not objected to will be considered waived; this ground, that the defendants were bound to make out their defence, by showing a demand and refusal before levying the distress, that there was no such evidence to sustain the justifica- tion put on the record, and that although no objection was taken to it upon the trial, it was available on the motion for a new trial ; and the court was unanimous in the opinion that they ought not to disturb the verdict. Chap.VIL] occasioned by witnesses. 209 General remarks. *CHAPTER VII. New Trials occasioned by the Witnesses. I. General Rsmarhs. II. Absence of material witness or testimony. III. Indisposition, mistake, or surprise of witness. lY. Impeachment of witness. V. Interest of turpitude of witness. I. General Remarks. When the jury is empanneled, and the judge, the parties and the counsel ready to proceed, the testimony comes next in order. Witnesses constitute a most important class in the trial of a cause. The verdict, if just, must repose upon the evidence, and therefore, whatever tends to withhold, suppress, derange, falsify or verify the facts, enters into the verdict, and either promotes or subverts justice. It would be in vain to prescribe rules for the government of the parties, their counsel, the jurors and the judges, and leave the witnesses uncontrolled. In the practice regulating new trials, they occupy a distinguished place. Their non-attendance, their mistakes, their interests, their infirmities, , their bias, their partial or perverted views of facts, their veracity, their turpitude, pass in review, and in proportion as they seve- rally bear upon the merits, avoid or confirm the verdict. Upon this subject, as upon the others, the rules appear to have varied at different periods. According to the modern practice, they may be regarded as defined and settled, and reducible to those that follow. II. Absence of material witness, or testimony. The non-attendance of a material witness, or the absence of a material piece of testimony, contrary to reasonable expectation, and satisfactorily accounted for, will induce the court to set aside the verdict, and grant a new trial. ThuSj 210 NEW TEIALS. [Chap. VII. Absence of material witness or testimony. [*210] *In Warren v. Fuzz,{l) it was held, a new trial ought not to be granted for want of evidence, which the party might have had at trial, and had not, but if it be proved that en- deavors have been used, but prevented by some unforeseen acci- dent, as sickness of the witness, &c., it may be good cause of new trial. Ih an early anonymous case, the court say that when any un- foreseen accident happens, oir some sudden impediment, as sick- ness, &c., to a witness, and a trial is had, and- a verdict given for the plaintiff, which might have been given for the defendant, had that witness been produced ; the court will grant a new trial on terms. (2) So ruled in Coppin^s case.(3) The cause came on at seven in the morning, and an old witness could not rise to be there time enough ; but a new trial was denied, unless he would make affi- davit of what he knew, and would answer so that the court might judge of it, and how it was material. So in Doe v. Trapaud.{4:) The attorney-general moved for a new trial, on the ground that a witness was called on his subpoe- na, and did not appear at the moment, but came just before the verdict was given in, and rule granted. In ShilUio v. Theed,{5) the plaintiff having been non-suited in consequence of the accidental absence of a witness whom he had subpoenaed, the court set aside the non-suit, and granted a new trial, on payment of costs ; although Wilde, sergeant, objected, that the non-suit not having been occasioned by any misconduct on the part of the defendant, he was entitled to retain his judgment. So, in Glover v. Milkr,(6) the court being satisfied, from the (1) 6 Mod. 22. (2) 11 Mod. 1. (3) 2 Salk. 645. (4) 2 Cliitty's Rep. 195. (5) 6 Bingham, 753, and 4 Moore and Payne, 576. (6) 1 Harp. Const. Rep. S. 0. 267. Chap. VIL] OCCASIOKSD BY WITNESSES. 211 Absence of material witness or testimony. affidavit furnished in the case, that it was not in the power of the plaintiff to produce the receipt against *part [*21 1] of the account on which the defendant claimed a set-off on the trial, were of opinion, that a new trial ought to be granted. That this is the practice in New York, appears from Buggies V. Hall,{y) where the witness had been regularly subpoenaed by the defendant, and attended at the circuit, and, shortly before the cause was called on, absented himself without the knowledge or consent of the party, or his attorney, and his absence was not discovered, until after the jury was sworn, by which means a verdict passed against the defendant. In this case, a new trial was granted, the defendant having shown diligence and the wit- ness to have been material. Some stress was laid upon the fact, that aeither the witness nor the parties answerabl« over were solvent. Yet, in Alexander v. Byron,{^) where a witness. Who was regu- larly subpoenaed by the defendant, was out of the way when the trial of the cause commenced, and did not appear in court, until after the testimony on both sides had closed, and the counsel for the defendant had proceeded to sum up the evidence. He was then offered to be examined, but was refused by the judge, and a verdict was found for the plaintiff. It was held, that the admission of the witness offered, was altogether discretionary with the judge, who acted reasonably in refusing to admit him under the circumstances, and that a new trial ought not to be granted. The question, however, directly passed upon in this case, was the exercise of the discretion of the judge on the trial, who refused to open the case. The rule adopted in Buggies v. Hall, would, no doubt, under similar circumstances, be regarded as the praC' tice of the court.(3) . But where the party must know that a material witness is (1) 14 Johns. Bep. 112. (2) 2 Johns. Gas. 318. (3) Et vide 1 Tyrwrhitt, 49. Vol. I. 15 212 NEW TEIALS. [Chap. YII. Absence of material witneaa or testimony. not to be expected, he ought to apply to have the trial [*212] *postponed ; and if he proceeds with the trial he must take the consequences ; for, on the ground of the absence of the witness, the verdict will not be disturbed. Thus — In Letgoe v. Pitt,{\) in ejectment. This cause was trjed before the lord chief justice at the sittings, and a verdict obtained by the lessor of the plaintiff, which the defendant moved to set aside, upon affidavits that some material witnesses for him absented themselves, and did not appear upon the trial ; and also prayed the chief justice's certificate, suggesting that the verdict was , con- trary to evidence. The court rejected the affidavits relating to the witnesses absenting as immaterial. In Elmslie v. Wildman.i^) Action on a policy of insurance on goods from Jamaica to London. The ship, during her stay at Jamaica, had been so much exposed to the heat of the sun, that her timbers had shrunk ; and shortly after she sailed on her voyage, she leaked, though there had been no storm, or other probable cause of injury. After pumping, the leak subsided ; the ship made less water every day, and arrived at home in a sound state. The cargo, upon delivery, was found to be dam- aged. The question at the trial was, whether the loss arose from unseaworthiness, or from the perils of the sea. The defendant called no witnesses, but insisted that he was entitled to a verdict on the plaintiff's case. The jury found for the plaintiff. It was now moved that this verdict should be set aside, and a new trial granted, on the ground that the captain, a material wit- ness for the defendant, had arrived on the day after the trial. But, per Otbbs, Ch. J. — " In this case an action was brought against the defendant, in whose option it was to apply to put off the trial from the absence of a witness, on the usual terms. That he has neglected to do — and it is fit from justice to the [*213] • plaintiff, to refuse the present application, *because the (1) Barnes, 4.39. (2; 8 Taunt. 236. Chap. VII.] OCCASIONED BY WITNESSES. 213 ■ Absence of material witness or testimony. defendant would have an unfair advantage, in knowing what was the case intended to be set up on the part of the plaintiff, and the evidence to be adduced in support of it."(l) In Alexander v. Byron, cited above, the sole ground upon which the court put their decision in refusing the motion, is, that the parties must come to trial prepared, at their peril. And, if either party has any good excuse for not being prepared, he is entitled of right to a postponement of the trial. " It has, there- fore, repeatedly been held," say the court, " that the subsequent allegation of a party, that he was not prepared, is no reason for granting a new trial, unless it be founded on the discovery of which the party was not at the time apprised. (2)" The practice, in this respect, was fully recognized in Jaclcson v. MdUn.{3) Action in ejectment, and verdict for the plaintiff. The defendant moved to set aside this verdict, and that a new trial should be granted, on a case containing the evidence given on the trial, and also on the ground of surprise and newly-dis- covered evidence, supported by affidavits, that William Stewart was a material witness to negative any alteration in the will, and that having been subpoenjed, he did not attend the trial. Upon the ground of the absence of the witness, Piatt, J., delivering the opinion of the court, observes: " The affidavits on the part of the defendant, show no grounds for a new trial. There is no newly-discovered evidence, nor was there any surprise. The de- fendant was fully apprised before the trial, of what William Stewart now swears, and actually subpoenaed ' him ; and instead of moving to postpone the trial for the want of his testimony, she voluntarily chose to take her chance without him. Unless there be other grounds, therefore, the defendant must abide by the verdict." *So, in Peebles and Vaughan v. Overton,{4:) the Supreme [*214] (1) Et vide 1 J. J. Marsh. 590. (2) n vide 1 Gaines, 154. (3) 15 Johns. Rep. 293. (4) 2 Murphy, 384. 214- • ' NEW TEIALS. [Chap. VII. Indisposition, mistake, or surprise of witness. Court of North Carolina refused a new trial on the affidavit of the absence of a material witness, under such circumstances as would have induced them to refuse a postponement of the cause, for the absence of the witness. III. Indisposition, mistake, or surprise of witness. .The sudden indisposition, and the mistake and surprise of witnesses, have been held grounds for granting or refusing a new trial, according to the circumstances of the case. In case of sudden indisposition of a witness, or unaccountable confusion of intellect, if there be any ground to suspect practice or imposition in the witness, or speculation on the part of the counsel, the application for a new trial on that ground will be refused, otherwise it will be granted. This is well illustrated in a recent case in England, as to the first branch of the rule, Richards v. Hammond.iX) Action on a promissory note. The defendant's attorney had called for the account and procured payment. Defence that the note was void, founded upon an illegal exaction of pQundage, on an execution by the plaintiff's testator, sheriff of the county. The defendant's attorney gave evidence to that effect, admitting on cross-exami- nation that he had always known the facts he swore to. The learned judge, in summing up, animadverted on the conduct of the witness, but said, that if the consideration was originally il- legal, the defence must prevail. That the question was, whether the jury would not be disposed to pay greater attention to what the attorney had written, than to the hurried and confused evidence which he had there given. Verdict for plaintiff. And [*215] now it was moved for a rule to show cause why the *ver- diet should not be set aside and a new trial had, and that all proceedings in the meantime be stayed. On a joint affi- davit of the defendant and his attorney, stating, on the part of the former, that he had never given his attorney any direction to (1) 1 M'Olelland,- 119. Chap. VII.] OCCASIONED BY WITNESSES. 215 Indisposition, naistake, or surprise of witness. pay the note, or settle it with the plaintiff's attorney. And on the part of the latter, that about an hour before this cause com- menced, he was attending a trial at 'the Crown Court, when he was suddenly attacked in the throat and left hand with a paralytic affection, which compelled him to leave it. That he went to his kdgings, and sent immediately for medical assistance, having at that time lost the use of his hand and arm as far as the elbow. That by means of embrocations and warm flannel, he obtained relief; but that before the effects were removed, he was obliged to return into the court, in consequence of this cause being called on ; and was soon ordered into the witnesses' box, in a most per- turbed state. That he was hurried ; but it was in consequence of the attack which he had just before experienced ; and that he had no pique or enmity against the plaintiff or his attorney. It was submitted that this showed there had been an injurious de- cision, not attributable to the person to whom the injury had been caused, which furnished sufficient ground for granting the rule. Garrow, Bavon. — ^" The jury might have presumed that this gentleman had confounded or mistaken some things." Ludlow, Baron. — " The note was for poundage, and an excess was made out." Hulhch, Baron.—" Prima facie, the note was evidence of a debt. Therefore, in order to make out a defence on the ground of vicious consideration, you would have been obliged to show that poundage exclusively was the consideration ; but the jury might have presumed that there were other con- siderations." Per Curiam. — "This was a case for a jury, and no ground has been laid to induce the court to grant the rule." Rule refused. So, if a plaintiff examine his witness and deliver him *over to the defendant to cross-examine, and before any [*216] opportunity offer to enable the plaintiff to ask him any questions in explanation, the witness fall down in a fit, and the plaintiff go on to examine other witnesses and try the cause, the court will not afterwards grant a new trial, to give the plaintiff an opportunity of letting in the further testimony of the same 216 NEW TRIALS. [Chap. VII. Indisposition, mistake, or surprise of witness. witness. In Depeyster v. The Columbian Insurance Oompany,{V) on a policy of insurance. On the trial, the master, while on his cross-examination by the defendant, was seized with a fit, and could no further testify ; but neither party desired the trial to be put off on that account. There was a verdict for the defendants ; and flow it was moved to set it aside, and one ground taken was, the sudden indisposition of the witness. Upon which, Idvings- ton, J., delivering the opinion of the court, observes : "A motion for a new trial is made on the following grounds, 1. Because the plaintiffs were deprived of the full benefit of the testimony of one of the witnesses, by reason of his sudden illness. This wit- ness was not seized with a fit until the plaintiffs had examined and given him over to the defendants ; but had it been other- wise, they should have suffered a non-suit. Instead of this, they proceed with the trial, examine other witnesses, and take the chance of a verdict on the testimony then in their power. After this they come too late for a new trial." It is quite clear from this case, that, should the plaintiff sub- mit to a non-suit, or the party apply to the judge immediately for relief, and be refused, the court would extend relief In Ainsworth v. Sessions,{2) a petition for a>new trial was pre- sented, on the ground that one Payne, who was relied upon as a principal witness in the cause, through surprise, or some [*217] unaccountable cause, was so disconcerted *and confused in his evidence, that neither court nor jury could un- derstand him, whereby the petitioner lost his case ; and that said Payne is now able to testify in the clearest manner. Plea in abatement. That said Payne is not a new evidence, and to grant new trials upon the after recollection and additional testimony of former witnesses, would open too wide a door, and be of danger- ous'consequence. J3y the Court — " Where a party is deprived of his most material evidence by some unaccountable cause, as by being panic struck, or by a paralytic stroke or other affection, (1) 2 Caiues, 85. (2) 1 Root, 115. Chap. VII.] OCCASIONED BY WITNESSES. 217 Indisposition, mistake, or surprise of witness. which for that time had deranged the recollection of the witness, so that the party loses the benefit of his testimony, reason and justice require, that the party should be relieved against such a misfortune, by a new trial, as much as when he is deprived of his evidence by sickness or absence ; but in such cases the court ought to be extremely cautious that they be not imposed upon." So, the court will relieve against the Tnistake of a witness ma- terially affecting the issue ; as in De GHou v. Dover.{V) Action against the owner of a stage coach for the loss of goods. The coach set out from the Swan with Two Necks, Lad-lane, at which there is a board stuck up, to give notice that the proprietors will not be responsible for any parcel above the value of five pounds,, unless entered and paid for accordingly. The goods were entered at the Gloucester coffee-house, in Piccadilly, which is a receiving house for this and many other coaches. No intimation was given to the plaintiff that this was not the original of&ce of the coach. The bookkeeper of the Gloucester coffee-house, swore, at the trial, that there was not in his office any notice similar to that in Lad-lane. A verdict was accordingly found for the plaintiff. Plumer and Dauncey moved for a new trial, on an affi- davit of the *bookkeeper, that he had been mistaken [*218] at the trial, and that such notice had been fixed up in his office. Piggott and 0. Moore objected, that this would be a new trial, merely to supply a defect in the evidence, which the defendant ought at first to have provided against. But, per Mac- donald, Chief Baron : " Since the argument of this case, we have consulted with Lord Kenyan and several of the other judges, as to the practice, and we find, that where an evident mistake has happened, it is usual to grant a new trial." So in D'Aguilar V. Tobin,{2) cited above; and in Richardson V. Fis?ier.{S) A new trial had been moved for in this case, partly on the ground, that the verdict was contrary to evidence, but (1) 2 Anst. 511. (2) 2 Marshall, 265 ; supra, p. 182. (3) r Bingham, 145. 218 NEW TEIALS. [Chap. VIL Indispoaltion, mistake, or surprise of witness. chiefly on an affidavit from a material witness, that he had made a serious mistake in giving his testimony. Vaughan, sergeant, showed cause against the rule. Per Ouriam. — "If there were nothing else in this case, there must be a new trial on the import- ant affidavit, that the witness has made a mistake." And, in The Inhabitants of Warren v. The Inhabitants ofHope,{l) it was held, that a new trial will be granted, where a material witness, whose testimony at the trial was against the interest of the petitioner, has since discovered that he testified incorrectly by mistake. But, in Kellen v. Benneit,{2) the court refused to grant a new trial on an affidavit, that a witness (called on the part- of the de- fendant, and who had refused to release an interest which ren- dered him incompetent) had misapprehended the effect of the release, and was now ready to execute one. Action for seaman's wages. On the trial, the captain of the ship was called as a wit- ness for the defendant, who refused to release his inter- [*219] est, and a verdict, therefore, passed for *the plaintiff. Motion for a new trial, upon an affidavit by the captain, that he did not, at the trial, understand the meaning of releasing his interest ; that he was now ready to release it ; and that, in truth, he had no interest. It was urged, that the defendant had not sworn to merits ; that the captain's interest was clearly estab- lished, and.that it would be a most dangerous precedent to permit a witness thus to retract what he had said at the trial. And, Best, Ch. J., having intimated, that the nature of the required release was repeatedly explained to the captain at the trial ; The Court thought it would be too much to disturb the verdict, upon such an affidavit, when, from the absence of any deposition to merits, it was probable the result of a second trial would not differ from that of the first, and when the witness in question must be placed in the box, under circumstances so suspicious. (3) (1) 6 Greenl. US. (2) 4 Bingham, 111. (3) Vide Sayre, 21. Chap. VIL] OCCASIONED BY WITNESSES. 219 Indisposition, mistake, or surprise of witness. With this agrees the spirit of the decision in Depeyster v. The Columbian Insurance Company,{l) and cannot be said to be at variance with the general principle that, on all such applications, ought to govern the discretion of the court, inclining them to re*lieve whenever the mistake, surpri.se or accident occurs, without blame or suspicion, in a material part, and the party has merits, and would be otherwise without relief. Upon this principle the court acted, and furnished a strong example in Hewlett v. Gruchley,{^2) where the defendant was sur- prised by the evidence of a witness. Action for a malicious prosecution. The defendant was an attorney. The plaintiff had been for fourteen years his clerk, whom he afterwards had in- dicted in seven bills for embezzlement, but decliiied to give evi- dence, and the plaintiff was, of course, acquitted. Upon this, the present suit was brought, and upon the part of the defendant, to show that there was *a probable cause for [*220] the prosecution, it was proved that a case had been laid by the defendant before a barrister, who was examined as a wit- ness, upon the subject of preferring the indictment. He however stated that he believed that the case exhibited to him at the trial, was not the whole of the case laid before him for his opinion ; that more papers had been laid before him, and that a strong case had been stated. He mentioned having given an opinion in writing, which was not annexed to the case then produced ; and that the case on which he advised, stated the names of the parties, which this paper did not contain. The court charged there was no probable cause, and verdict for the plaintiff, £2,000 damages. Motion for a new trial ; and one of the grounds urged was, that the evidence given, with respect to the case, was completely dif-' ferent from that which the defendant had reason to expect, and was a surprise on him ; that the witness before whom the case had been laid for. his opinion, previous to the prosecution, had been mistaken in his recollection, and that no other case or written paper had ever been laid before him, than that which was pro- (1) 2 Caines, 85. (2) 3 Taunt. 277. 220 NEW TEIALS. [Chap. VII. Impeaohment of wittteas. duced on the trial, which was annexed to the affidavit. And, per Mansfield, Oh. J. — " As to the ground of surprise, was it ever put to the decision of a court, that when-the defendant has called witnesses, and thej proved contrary to his expectations, what was false and contrary to truth, the defendant should therefore ask a new trial ? Such a thing was never heard of." Heath, J. — "As to the evidence of the barrister, if it clearly appeared to my satisfaction that' the witness was surprised, and gave evidence contrary to the expectation he had raised, I would send it to a new trial ; but no such a thing appears." Ghamhre, J. — " I en- tirely agree that the court ought not in this case to interfere with the province of a jury ; although there are cases in which the court may properly do that, but this is not one of them."(l) [*221] *IY. Impeachment of witness. Neither a direct impeachment of the veracity of tlfe witnesses, nor affidavits of perjury, nor even an indictment for conspiracy or perjury, unless the case is so gross as to make it probable the verdict was obtained by perjury, or that the false testimony oc- casioned a surprise upon the party, will be sufficient cause to set aside a verdict, and grant a new trial. (2) In the King v. S'eydon,{3) it was held, that a witness indicted for perjury was not a reason to postpone judgment against the person convicted. The defendant was convicted of bribery, ancl it was now moved to postpone judgment, till an indictment, which he had preferred against one Burbage, for perjury in his evidence, was determined. Norton, Solicitor-General, and Morton, showed for cause, that this was a motion of the first impression, and of very dangerous consequence, merely to delay justice. , That the perjury assigned in the indictment is not in respect of the fact, for which Heydon is convicted, but a collateral circumstance : — that Burbage offered to take his trial immediately after the indict- (1) Et vide 3 Marsh. Kent. Eep. 85. (2) 2 Tidd, 9U. (3) 1 W. Black. 404. Chap. VII.] OCCASIONED BY WITNESSES. 221 Impeachment of witness. ment found, but the defendant refused to consent to it; and, after deliberation had, per Lord Mansfield, Ch. J.^" I am clear, that Heydon can be no witness in this case, if they mean by this indictment to alleviate the judgment of the court for the bribery, because he is swearing in his own cause. And the witnesses on the indictment having all been previously examined at the for- mer trial, makes an end of this motion ; for their credit has already been weighed by a jury, and found wanting." In Berfield v. Peine.{l) Action of debt on the statute against bribery, and verdict for plaintiff. A rule to show cause why there should not be a new trial, had been obtained on an afiadavit of the defendant, which stated that *two of the [*222] plaintiff's witnesses at the trial, whose names were Wilks and Shilling, had been indicted for perjury in this cause on the evidence of several persons, and that true bills had been found. Lord Mansfield. — " This is an action for bribery. All the facts given in evidence go on the ground, that two persons were agents, and that the bribery was committed by them. Evidence of these facts was given by seven or eight persons besides the parties in- dicted, and both the persons, who bribed, were examined for the defendant at the trial. The jury found a verdict for the plaintiff, against the evidence of these two persons, on grounds which impeach that evidence. The judge, who tried the cause, is satis- fied with the verdict, and, therefore, it stands as a verdict with the weight of evidence in its favor. The motion for a new trial rests solely on the ground, that two of the witnesses have beea indicted for perjury. It is not an established rule, that it is of course to stay a verdict, because the witnesses in support of that verdict have been indicted for perjury."(2) So in Wheatly v. Udwards.{3) Action of crim. con. and ver- dict for plaintiff. On a motion for a new trial, there was strong evidence of perjury in the witnesses to the criminal conversation, (1) 3 Doug. 24. (2) Et vide Mcu^Jierson v. Peirie and Peirie v. Miles, 3 Doug. 26 and 2'?. (3) Lofft, 81. 222 NEW TEIALS. [Chap. VII. Impeaohme'nt of witness. on express testimony against them. Lord Mansfield particularly observed, there was direct testimony of subornation of perjury by the plaintiff's consent, of the witnesses; andthig in different places, by three different witnesses. On the other side, four per- sons swore to the character of one of the witnesses who was liv- ing, and who swore the other dead, and that he had seen him in his coffin, and there was a witness who swore that this man was alive ; and yet his lordship said, that there appeared no [*223] ground on the evidence for granting a new *trial ; but that they might proceed by indicting the witnesses for perjury. And with this the modern practice agrees. In Warwick v. £i-uce,{V) the plaintiff obtained a verdict for £150, and had judg- ment, upon which the deYendant brought error, and after argu- ment, judgment was affirmed. ' But before the case came on to be heard in error, the defendant preferred an indictment against two of the plaintiff's witnesses for perjury in their evidence at the trial, and on a former day in this term, obtained a rule nisi, for staying execution upon the judgment until the trial of this indictment, upon an affidavit made by himself, charging the said witnesses with perjury. But per Lord Mknborough, Ch. J. — "It would be highly dangerous to allow this rule to be made absolute, for this would be a receipt to every person, after verdict and judgment against him, how to delay the fruit of such judgment, by indicting some of the plaintiff's witnesses for perjury. And should this rule be made absolute, it would, perhaps, prevent the plaintiff from being a witness at the trial of the persons in- dicted." And because this seemed to be a new and dangerous experiment, the court directed the rule to be discharged with costs. (2) So, also, in Seeley v. Mayhew.(3) Assumpsit against the defend- ant, as acceptor of a bill of exchange, drawn by T. Parish. The (1) 4 Maule & Selw. 140. (2) Vide 4 Taunt. 640. (3) 4 Bingham, 561. Chap. VILJ OCCA'SIONED BY WITNESSES. '223 Impeachment of witness. defendant's handwriting having been proved, the defence was, that the bill had been given for a horse sold by Seely to Parish, which was warranted sound, but was ill a't the time, and shortly afterwards died. The jury having found a verdict for the de- fendant, Addoms, sergeant, now moved for a new trial on the ground of surprise, the defence not having been anticipated, and true bills for perjury having since been found against the wit- nesses, who spoke to the warranty, and the property of the *horse being in Seeley. But the court thought that [*224] was a circumstance of which they ought not to take notice ; and observing that Lord Mansfield and Lord Erskine had expressed the greatest disapprobation of indicting witnesses while a cause was yet pending, refused the tule. And in Poit v. Parker.{l) Motion to set aside verdict for plaintiff. There was a sale of wheat, and the only question was, whether the price of it had been paid. There was contradictory evidence, and an indictment for perjury had been found against the witnesses for the plaintiff, and the character of the defendant was at stake. And per Lord Ulknborough, Oh. J. — -" It was a question upon the credit due to the witness, and it was left to the jury. To grant a new trial on the ground that an indictment for perjury has been found, would be new and dangerous. The only thing possible would be, to stay execution, during the find- ing of the indictment for perjury, but that we cannot grant.*'(2) And it has been held, that even a conviction for perjury will not induce the court to stay proceedings, much less to set aside the verdict.(3) ' To, the universality of the rule, there have been cases held as exceptions. Of this kind is Fahrilius v. Cbc^.(4) But there the whole case resolved itself into a fiction, to the entire satisfaction of the court.' The case was this. The plaintiff sued in trover for (1) 2 Chitty'3 Rep. 269. (2) Sedvide, contra, 1 Greenl. 322. (3) 2 Price, 3. Et vide 9 Price, 89. (4) 3 Burr. 1771. 224 NEW TRIALS. - [Chap. YII. Impeaohment of witness. 6,000 pagodas. The defendant always denied the whole story, but was not able to contradict the proof at the trial. The jury, to the satisfaction of Lord Mansfield, found a verdict for the plain- tiff for £2,400, the value of the pagodas. THe defendant moved for a new trial, upon th^ ground that the whole was a fiction supported by perjury, which he could not be prepared [*225] *to answer. That ■ since the trial, many circumstances had been discovered to detect the iniquity, and to show the subornation of the witnesses. The court, after a very strict scrutiny, granted a new trial on payment of costs. The justice and propriety of this determination appeared in a very strong light to many persons, who thought the whole story to be mani- festly a scheme of villany supported by perjury. And the plaintiff never dared to try it again. So, if the perjury or conspiracy is rendered probable, and the testimony must have operated as a surprise, as in Thurtell v. Beau- mont.{\) In the first instance the court refused to grant a rule nisi for a new trial, on the ground that subsequently to a verdict for the plaintiff, the grand jury had found a bill against him and others, for a conspiracy to defraud the insurance company. But on affidavits disclosing the conspiracy itself, and showing that the defendant did not obtain a knowledge of it till after the trial, so that the plaintiff's case was in effect a surprise on him, the court granted a rule nisi for a new trial, on payinent of costs. And in Morrell v. KimhaU.(2) A new trial was granted, on the ground of the perjury of the party's own witness, evidently a strong example of surprise. The reasons and the ground taken in opposing the motion are sufiBoiently explained in the opinion of the eourt, by Weston, J. — " It has been made to appear in the present case, highly probable, that in the action originally tried between these parties, the petitioner for a review would have prevailed, but for the testimony of Daniel Philbrook. It further appears that in giving this testimony, Philbrook was guilty of (1) 1 Bingham, 337. (2) 1 Greenl. 322. Chap. VIL] OCCASIONED BY WITNESSES. 225 Impeachment of witness. wilful and corrupt perjury, of which he has since been convicted, and is now suffering the punishment awarded against him. Upon these facts the petitioner appeals to the legal *discretion of this court, praying that a writ of review [*226] may be granted him, that the cause may be again exam- ined upon its merits, and that j ustice may be done between the parties. If the judgment rendered against the petitioner was ob- tained by perjury, he is not the less injured because it was not committed, in consequence of the procurement, subornation, or even privity of the adverse party. Though the latter may have been innocent of any charge of this nature at the time, it is more than questionable whether he can, inforo consQientice, continue to enjoy'the fruits of the perjury, after it has been made apparent. As to the last objection, it is clearly a rule of law, that the party calling a witness shall not be permitted to attack his character by general evidence ; yet he may, by other witnesses, disprove the facts to which he testifies. If, therefore, the facts thus testi- fied to are directly proved to be false, there is no principle of law or of justice which prevents the party from availing himself of the trgth of his case, although the credit of his own witness may thereby be impeached. New trials have been frequently granted, where there has been strong reason to suspect that perjury has been committed ; much more ought they to be where the perjury has been clearly demonstrated." But there being no allegation of surprise, the motion was re- fused in Proctor v. Simmons.il) Action for an assault. At the trial, the plaintiff called two of her children and her sister as wit- nesses, to prove that'the defendant had been guilty of an outra- geous assault, in order to entitle her to large damages. The jury, however, found a verdict for her, damages one shilling only. On motion for a new trial on affidavits, that two of the witnesses had been guilty of gross perjury at the trial, the court observed, " That as the defendant had not sworn that he had been taken by surprise at the trial, there was no ground for the appli- cation; *and that it would be a dangerous precedent to [*227] (l) 9 Moore, 581. 227 NEW TEIALS. [CHAt. 'ttL Impeauliraent of witness. grant a new trial on the naere affidavit of the one party, that the witnesses of the other had been gailty of perjary.** So far the principle of the rule has been adopted in New York. In Jackson v. Iiowland,{l) in ejectmentj witnesses were called on the trial to inipeach the character of one Hay, for truth and veracity, a witness for the plaintiff. The jury found for the de' fendant on a case reserved. One point urged for setting aside the verdict, was, that Hay was discredited, and it was held that a subsequent impeachment of a witness cannot be insisted on in support of a motion for a new trial. " The character of the wit' ness," say the court, " should have been attacked before the parol evidence was given; for should the judge have discredited his testimony, the plaintiff, for aught appearing to the court, might have offered other proof to the same point." It is to be presumed that objections to a witness, on the ground of an indictment for a felony, would be at least as unavailing on a motion for a new trial, as- an attempt to impeach him for that cause was held to be at the trial. In Jackson v. Osborne, ex dem, (jHbbs,{2) in ejectment, one Joel Wood, a subscribing witness to a deed, was called to prove it. The defendant, for the purpose of impeaching the testimony of Joel Wood, upon whose oath the deed to Gibbs had been proved before the commissioner, of' fered to prove that two bills of indictment were found by a grand jury against him, one charging him with perjury, and the other with forgery, committed by him in relation to the premises in question ; that he had absconded, and had ever since remained out of the territory of the United States, for which reason he had not been tried ; that subsequent to the indictments, [*228] and before the *commencement of this' suit, Gibbs in person procured Wood, to make the proof, before the commissioner, certified on the deed. This testimony was ob' jected to, by the plaintiff's counsel, and rejected by the judge. There was a verdict for the plaintiff, and on motion to set it (1) 6 Wendell, efifi. (2) 2 Wendell, 565. ChAp.VIL] OCCASIONED'BY witnesses. 228 Interest or turpitude of witness. aside, one of the points taken was, the rejection of the testimony offered to impeach Wood. Upon this the court observe : " The evidence offered to impeach the witness to the deed, was properly rejected. That he had been indicted for perj,ury and forgeryj did not affect his competency, not having been tried and con- victed. The credibility of a witness is not to be impeached by proof of a particular offence, but by evidence of general bad character. If it was not competent to prove that the witness had perpetrated the offences for which he had been indicted, , (of which there could be no question,) it follows of necessity that the fact of his having been indicted was inadmissible evidence/'(l) y. Interest or turpitude of witness^ Intimately connected with the preceding rule is tliis, that a hew trial will not be granted, to furnish an opportunity to im- peach a witness, upon a subsequent discovery of his interest or turpitude, or general bad character. Thus in Turner v. Fearte.{2) Action for withdrawing suit from mills of plaintiff, and verdict for defendant. Motion for a new trial upon two grounds : — Mrst. That it was a verdict against evidence. Secondly. Upon an affidavit, that it had been discdvered since the trialj that five oUt of nine of the witnesses on the part of the defendant were interested in the event of the cause, andj tlierefore, were incompetent, and ought not to have been received. The court, being of opinion that the weight of evidence was in favor of the verdict, discharged the rule on that ground ; but first gave their opinions Upon the other point, seriatirii. Ashhursi, J. — "The regular time for objecting to the competency *of witnesses is at the trial. The [*229] ancient doctrine on this head was so strict, that if a witness were once examined in chief, he could not afterwards be objected to on the ground of interest. Perhaps that strictness (1) Et vide 2 Marsh. Kent. Eep. 130: (2) 1 Term Rep. tit. YoL. L 16 229 NEW TRIALS. [Chap. VII. Interest or turpitude of witness. may, in some degree, be relaxed, by the custom of suffering wit- nesses tp be examined conditionally, which is only waiving the objection for the time. But still the objection must be made at the trial." BuUer, J. — " There has been no instance of this court's granting a new trial, on allegation that some of the wit- nesses examined were interested, and I should be very sorry to make the first precedent. Anciently, no doubt, the rule was, that if there were any objection to the competency of the wit- ness, he should be examined on the voir dire; and it was too late after he was sworn in chief. In later times that rule has been a little relaxed ; but the reason of doing so must be remembered; It is not that the rule is done away, or that it lets in objections which would otherwise have been shut out. It has been done principally for the convenience of the court, and it is for the fur- therance of justice." Orose, J. — " If this objection had been made before me at the trial, perhaps I might have admitted it ; but then, by the rule of law, objections of this nature must be made at the trial. And if the plaintiff will insist upon the strict rule relative to the incompetency of witnesses, the defendant has an equal right to avail' himself of the rule that the objection now comes too late."(l) So, in Sells v, Hbare,{2) Yaughan, sergeant, for the defendant, moved for a new trial in this cause, on the ground, among others, that a person calling himself Joseph Manning, had been duly sworn on the gospels, as a Christian ; whereas, it had been discovered since the trial, that his real name was Solo- 1^230] mon Money, that he was a Jew before and *at the time of the trial, and that he was still a regular attendant at the synagogue. The learned sergeant urged that the jury, in coming to. the conclusion which they had done, must have be- lieved the testimony of this witness, who had given his evidence' under a sanction, which he could not, from his religion, consider binding. But the court held that the objection came too late, (1) M vide Soukt v. Loiseau, 6 Mart. Lou, Rep. 612. \%) 3 Brod. & Blng. 232. Chap. YII.] OCCASIONED BY WITNESSES. ' 230 Interest or turpitude of witness. and that it would be productive of great danger and confusion, if such affidavits were received. In this state, the rule has been adopted. ■ In Bunn v. Ebyt,{l) a motion was made to set aside the verdict. One ground was on newly discovered evidence, tending to impeach the credit of the material witness. But, Per Ouriam. — " A verdict is never set aside to give the party an opportunity of impeaching the credit of witnesses sworn at a former trial. The evidence should be of some material fact, which would induce the belief, that if proved to the jury, it would so far influence their minds, as to produce a different verdict." So in Shumway v. Fowhr.(2) Seduction case, and verdict for the plaintiff. After the trial, evidence tending to discredit the daughter of the plaintiff, the principal witness was discovered, and a motion made to set aside the verdict and grant a new trial. But refused, the court reiterating the rule — " A new trial is not to be granted merely on the discovery of new evidence, which would impeach the character of a witness at the trial. There would be no end of netv trials on that ground. "(3) To this there has been an exception, in Jackson v. Kinney, {^ where it was held that, although in general a new trial will not be granted on the ground of newly-discovered evidence, when it goes merely to impeach the testimony of *a wit- | *231] ness at the former trial, yet in causes concerning the title to military lands, where the identity of the original patented is in question, a new trial may be granted, to give the defendant an opportunity of impeaching the character of the principal wit- ness for the plaintiff, especially when the defendant has been a long time in possession.(5) (1) 3 Johns. Rep. 255. (2) 4 Johns. Rep. 425. (3) Et vide 6 Johns. Rep. 248. (4) 14 Johns. Rep. 186. (5; Accord. 3 Greenl. 92. 231 NEW TEIALS. [Chap. VII. Interest or turpitude of witness. So, in Waiters case,(l) in Massachusetts. The defendant was indicted and convicted of forgery. He moved for a new trial, on the ground of an improper conviction. The facts appear in the opinion of Parsons, Ch. J. — "-Richardson, whose receipt the de- fendant is charged with forging, was sworn as a witness, and as he could neither gain nor lose by the event of the trial, as it then appeared, he was properly admitted. The motion is therefore rested on two grounds. — That the defendant has since obtained evidence that Richardson was incompetent; or, if he was com- petent, that the defendant now has evidence further to discredit him. As to any further evidence against Richardson's credibility, it cannot in this case avail the defendant. At the trial, he must have expected that Richardson would be called by the solicitor- general, and he does not pretend that he was then surprised by the testimony of this witness. He expected it, and he attempted by the testimony of witnesses to destroy his credit, by proving that his general character as to truth was bad. To give time to the defendant to scrutinize a neighborhood, and discover some who may testify to a witness' general had character, which, if the testimony be true, must be generally known, would be prepos- terous and dangerous. "(2) So, in Hammond v. Wadhams^i^') where a witness on a trial was not unexpected by the party against whom he was produced, and his ■ character was discredited, the court would not [*232] grant a new trial on the ground that the party *had since the trial, discovered further evidence of his want of credit. Parsons, Ch. J. — "It is not suggested by the demandant that he was surprised by Panning's testimony. On the contrary, he came prepared to discredit him, which he efifectually did, in the opinion of the judge. To grant a new trial to give further opportunity to discredit a witness, whose testimony was not un- expected, and who had in fact, been discredited, would be unpre- cedented, and productive of mischievous consequences. ' We (1) 5 Mass. Rep. 261. (2) Et vide Drew's case, 4 Mass. 399. (3) 5 Mass. Rep. 353. Chap. VII.] OCCASIONED BY WITNESSES. 232 Interest or turpitude of witnesa. cannot, therefore, grant a new trial on the second ground on which it was moved." So held in Maine, in Keen v. Spragv£,{l) say the court, " A new trial will not be granted for the purpose of discrediting a witness by showing contradictory testimony from his own depo- sition given at an early stage of the same cause, the deposition being on the files of the court, but accidentally omitted to be read. The court, in denying the motion, lay stress upon the fact that the counsel for the defendant knew of the existence and contents of the deposition, and in. communicating the facts to the counsel who tried the cause, it was incumbent on him to have stated this also." And in South Carolina, in Lhyd v. Monpocy,(^) where a new trial was moved for on the ground that one of the witnesses was bribed, who swore to the fact, the motion was, notwithstanding, denied, the court observing : " But the most substantial ground, and indeed the only one on which the court has had any diffi- culty, is the sixth : the facts stated in>that ground are attempted to be supported by the affidavit of the witness herself, that she had been bribed, and had sworn falsely on the trial. It would be a sufficient objection to the admission of this affidavit, that a copy of it has not been given to the person accused of the subornation *of perjury, that the charge might be [*233] rebutted. But even waiving that objection, I do not think it ought to be received. The discovery of parol evidence after a trial, has never been admitted in this state, as a good ground for a. new trial. The tampering with witnesses to which it would lead, the frauds and perjuries which it would introduce, and the endless litigation which would ensue, admonish us to be careful how we depart from that long settled, and, I think, safe and necessary rule." But when the iacts, on which the witnesses found their testi- mony, are clearly falsified by affidavit, the verdict will be set (1) 3 Greenl. 11. (2) 2 Nott & M'Oord, 446. 233 NEW TEIALS. [Chap. VII. Interest or turpitude of witness, aside. The reason of this distinction is manifest; tampering with witnesses may pervert the truth, but cannot change facts. In Lister v. Mundell.{l) In this case a writ ol fieri facias issued against the defendant, a bankrupt, before certificate obtained, but, not executed till after. . To invalidate the effect of the certificatej it was stated, that the defendant had lost more than £5 on one day by horse-racing, and to try this a plea of bankruptcy was directed. At the trial, to prove the money lost, the plaintiff pro- duced three witnesses, all of whom . swore to the fact of the money having been lost in 1793f and two of them founded their testimony on particular circumstances within their recollection, viz. : Thomas Dinnis, that, till 1793, he had lived at Hunmanby, in Yorkshire, and on his leaving that place, had come immedi- ately to Scarborough ; and William Dove, that a child of his died about a month before the race in question took place. Yerdict for the plaintiff. And now a rule n%s\ for a new trial, was moved for, on affidavits contradicting the particular circumstances on which the two witnesses, above-mentioned, founded their testi- mony. The court observed, that though it was unusual [*234] to grant a new *trial on evidence contradicting the tes- timony on which the verdict had proceeded, discovered subsequent to the trial, yet as the very facts on which these wit- nesses had founded themselves, were falsified by the afiSdavits produced, they thought it afforded a sufficient ground for a new trial, and accordingly granted a rule nisi. Against this, Le Blanc was now to have shown cause, but on a question from the court, he admitted that he could not contradict the afl&davits which had been produced ; and therefore the court made the rule absolute. And it would appear, that if a party admitted his having bribed a witness, or the witness himself should put that by affi- davit before the court, it would avoid the verdict,, but not if the witness should only declare it. In Oeorge v. Pierce.. In order to a new trial an af&davit was (1) 1 Bos. & Pul. 42Y. Chap. VII.] OCCASIONED BY WITNESSES. 234 Interest or turpitude of witness. read, that one of the witnesses had declared that he had gotten, a guinea to stifle the truth. Gould. — " An af&davit of him who had the guinea were something, but his saying is nothing. A witness' laying a wager in the cause is no hindrance to his being a witness, for the other has an interest in his evidence, which he cannot deprive him of."(l) So, in a clear case of the infamy of a witness, on whose testimony the case chiefly turned, to prevent palpable injustice, a new trial will be granted, to allow an opportunity of eliciting the merits of the case, and correcting the suspected evidence. As in Goodtith v. Glayton,{2) where an attesting witness to a will had sworn against her own attestation. A new trial was. directed, Lord Mansfield observing — " I have several cases, both upon bonds and wills, where the attestation of witnesses has been supported by the evidence of the other witnesses, against that of the attesting witnesses *who denied their own [*2B5] attestation. It is of terrible consequence, that witnesses to wills should be tampered with to deny their own attestation. Therefore, let the rule be made absolute, for setting aside thia verdict." , And in Alien v. Young,{S) a new trial was granted upon the ground that the verdict was founded upon the testimony of a witness of infamous character. The testimony was as to the ad- missions of the defendant. " The species of confession deposed to by Caldwell," says Bibb, Ch. J., " is in itself the weakest and most unsatisfactory of all testimony deemed competent in law, on account of the facility with which it may be fabricated, and the difficulty of disproving it, if false, by direct negative proof. But the confession of Allen is deposed to by William Caldwell, who, by his own account, was at the time engaged in counter- feiting and fabricating a letter, as if from a man in Alabama, to Young, who, by .the deposition of himself, had escaped from (1) 1 Mod. 31. (2) 4 Burr. 2224. (3) 6 Monroe, 136. 235 NEW TRIALS. [Chap. VH. Interest or turpitude of witness. jai], under a prosecution for passing counterfeit money, and was then under the impending prosecution— who by his own con- fession, and by general reputation, was associated with a band of counterfeiters, and by the testimony of respectable witnesses, is of infamous character. It is due to the pure administration of justice, to example and effect in society, that a verdict based ex- clusively upon the testimony of a confession, sworn to by such an infamous witness, should not stand. It would be vain to at- tack the credibility of a witness, if evidence of such depravity and infamy is to be of no avail with the court. The juries will do their duty, and exercise their powers ; the court must do theirs in supervising the verdicts of juries."(l) * (1) St vidt SmeUmg v. Utterback, 1 Bibb, 611, and Morris y. Morris, 2 Bibb, 311 , Chap. VIIL] ADMISSION OF TESTIMONY. *236 General remarks. *CHAPTER VIIL ADMISSION AND REJECTION OP TESTIMONY. I. General remarks. II. Admitting illegal testimony. III. JExcluding illegal testimony. I. General Bemarks. In the distribution of a trial, it is the province of counsel to manage the cause ; of the jury to find the facts, and of the judge to dispense the law. In the progress of the trial, questions of law upon the evidence spring up in constant succession, and in the charge of the judge, the attention of the jury is called to the principles of law, applicable to the facts upon which they are to pass. In the hurry of a. trial, where rules of law pass in rapid review, it is not unusual, for the most enlightened judges, to mistake the point presented, or the precise extent to which the principle of law ought to apply. They are compelled to decide rapidly, — seldom with the advantage of enlightened argument ; often upon a confused statement, and always upon their own resources. The consequence is, that testimony is frequently ad- mitted that ought to have been rejected, and vice versa. The true legal principle is mistaken, and that unerring precision, essential to a perfect administration of justice, cannot be attained. Not unfrequently ignorant, inattentive and partial judges, for such will be found in every community, misapprehend or pervert the law, and occasion gross injustice. To remedy this evil, the law has confided to the court in bank the power of setting aside the verdict, in which all the errors of the trial finally meet and concentrate. The errors of the judge at the trial, are resolvable into three classes : the admission of illegal testimony, the rejec- tion of legal testimony, and the misdirection of the jury in mat- ters of law. The two former will constitute the subject of the present chapter. 237 NEW TEIALS. [Chap. VIII. Admitting illegal testimony. [*237] *IL Admitting illegal testimony. If the judge at the trial decide to admit illegal testimony on the merits, the verdict -will be set aside and a new trial granted. Thus, In The Queen v. The Inhabitants of Wi7te,(l)' upon debate on a motion for a new trial, where the issue was, whether the county of Wilts at large, or the town of L., within the county, was obliged to repair the bridge of L., in that county. An order of sessions, formerly made upon the inhabitants of L. to repair, was offered in evidence for the county at the former trial, and rejected upon this reason, that the justices of peace have no jurisdiction over highways, but upon a presentment, and none had been, to warrant this order. It was declared by the court, that it is a good cause to grant a new trial, that the judge who tried the cause overruled good, or admitted that which was no evidence, and that, although the other party has a remedy by Ijill of exception. In Thomkins v. niU,{2) it was agreed by the. court, that if any judge of Nisi Prius allow, or overrule evidence, which he ought not to do, upon application to the court they will grant a new trial ; for all writs of Msi Prius are under the control of the court, out of which they issue. And in Tutton v. Andrews,{2i) where the sheriff, on the execu- tion of a writ of inquiry of damages, admitted improper evidence to be given by defendant, whereby the damages were lessened, the court ordered the inquisition to be set aside, and gave plaintiff leave to execute a new writ of inquiry. The court added, " A notion has prevailed, that where damages are excessive, a new trial, &c., may be granted,, but not where damages are less than they ought to be, though there is as much reason for a new trial, &c.,. in the one case as the other." (1) 6 Mod. 301. (2) 7 Mod. 64 (3) Barnes, 448. Chap. VIII. ADMISSION OF TESTIMONY. . 238 Admitting illegal testimony. *In Doe V. PerJcins,{Xj in ejectment, the only question [*238] at the trial was, at what time of the year the annual holdings of the several tenants expired. One Aldridge was pro- duced as a witness for the plaintiff, who stated that he went round with the receiver of the rents to the different tenants^ whose declarations, respecting the times when they severally be- came tenants, were minuted down in a .book at the time, some of the entries being made by Aldridge, and some by the receiver. When Aldridge was examined^ the original book was not in court. He spoke concerning the dates of the several tenancies, from extracts made by himself out of that book, confessing upon cross-examination, that he had no memory of his own upon those specific facts ; but that the evidence he was giving, as to those facts, was founded altogether upon the extracts which he had made from the above-mentioned book. This evidence was ob- jected to, at the time, upon the ground that, as the witness did not pretend to speak to those facts from his own recollection, he ought not to be permitted to give evidence from any extracts, but that the original book from whence they were taken, ought to be produced. The evidence was admitted, and the plaintiff had a verdict. A new trial was moved for, on the ground of the admission of this testimony. After argument, the court did not appear to entertain much doubt, as to the inadmissibility of the evidence ; but they said that it was a matter of such general practice, they would consider of it, that the rule might be finally settled. At a subsequent day, Lord Kenyan, Ch. J., said, " That the rule appeared to have been clearly settled, and that every day's practice agreed with it. And that, comparing this case with the general rule, the court were clearly of opinion, that Aldridge, the witness, ought not to have been permitted to speak to facts from the extracts *which he made use [*239] of at the trial." And Per Curiam. — " Eule absolute for a new trial."(2) • This rule has been held in the state of New York, to apply to (1) 3 Term Rep. 749. (2) Vide Sandwell r. SandweU, Holt, 295. 239 NEW TEIALS. [Chap. VIII. Admitting illegal testimony. a judgment in error, where improper evidence has been admitted, although only accumulative. In Marquand v. Webb,{l) which was an action of repairs to a certain vessel, the plaintiff produced one Gromez as a witness, who being sworn on his voire dire, testi- fied, that he was a part owner of the vessel when the repairs were made. The defendant's counsel objected to the witness, as interested ; but the judge permitted him to be sworn in chief, and being sworn he gave material testimony against the defend- ant. Spencer, J., to counsel arguendo, that there was sufficient legal testimony left, " suppose improper evidence has been ad- mitted, and though the evidence was, in our opinion, fully suffi- cient to entitle the plaintiff to recover, are we authorized to say that the jury disregarded the improper evidence?" And de- livering the opinion of the court, he remarks — " The whole case turns on the competency of the witness, Benjamin Gomez; and although the fact proved by him, was proved by two other witnes- ses, we cannot say, the' case coming before us on a writ of error, that his evidence may be rejected as unnecessary. The witness being confessedly, by his own admissions, on the voire dire, a part owner, would be answerable in contribution, and his interest in making the defendant below an owner, was promoted, by in- creasing the number of those chargeable, a,nd thereby mitiga- ting his own loss. I have inet with no case directly in point. My opinion proceeds on the principle, that whenever a fact is to be proved by a witness, and such fact be favorable to the party who calls him, and the witness will derive a certain advantage from establishing the fact, in the way proposed, he cannot be heard, whether the benefit be great or small." [*24.0] *So in Osgood v. The Manhattan Oompany,(2) in error from the Supreme Court. Evidence was produced at the trial, to show that, at the time of a certain conveyance to her daughters, Mrs. Osgood was insolvent ; and for that purpose the plaintiffs produced the petition of her executors to the surrogate, stating, that the personal estate of the testatrix was insufficient (1) 16 Johns. Rep. 89. (2) 3 Cowen, 612. Chip. VIII.] ADMISSION OF TESTIMONY. ' 240 Admitting illegal testimony. ■ to pay her debts ; to which was attached an account between the executors and the estate, and of ihe personal property -and debts of the testatrix. These accounts were sworn to by the executors ; but before any order was made b}' the surrogate upon the petition, they bad declined proceeding farther. The admission of this testimony was objected to, but received by the judge. Verdict for the plaintiff, and judgment. The cause came before the court on a bill of exceptions, containing, among other things, the point on the admission of evidence. And "per Sudani^ Senator, who delivered the leading opinion, in which the mem- bers of the court unanimously concurred, " It is well settled, that, if improper evidence bev given, although it may be cumulative only, the judgment must be reversed; for we cannot say what effect such evidence may have had on the minds of a jury." And after applying this rule, and commenting • upon the excep- tionable nature of the testimony objected to, he concludes — "On the whole, I am of opinion that the evidence was improperly admitted ; that the judgment must therefore be reversed ; that the record be remitted, and a venire de novo issue from the court below."(l) But where the evidence is clearly inadmissible and goes to the merits, not supported or subsequently supplied by legal testi- mony, no question can arise. It presents a case so flagrant, as to induce the court to grant relief even to the setting aside of the verdict, on the application of the *party in whose [*241] favor it has been found, if manifestly prejudiced by the admission of the illegal testimony. (2) As in Foster v. Smith.{3) It was an action of trespass. The defendants had' suffered judg- ment by default. On the inquest before the sheriff and a jury they offered evidence to show, that in fact, the defendants had committed no trespass, which was objected to, but admitted. The jury found a verdict for the plaintiff, with nominal damages, who now moved to set it aside on the ground of the admission (1) Et vide 2 Hall's Rep. 40. (2) Vide Bohwn, v. Gaykn-, 6 Co wen, 316 (3) 10 Wendell, 377. 241 NEW TEIALS. [Chap. VIII. Admitting illegal testimony. of illegal testimony. And per Nelson, J., delivering the opinion of the court : " We are of opinion the testimony was inadmissible. The default admitted all the material averments properly set forth in the declaration, and of course the false imprisonment, and everything essential to establish the right of the plaintiff to recover. The only debatable question left, for the examination or consideration of the jury, was, the amount of damages, and that ought to have been examined and decided, on the assump- tion that the false imprisonment had been committed by the de- fendants. Any evidence tending to prove that no right of action existed, or denying the cause of action, was irrelevant and inad- missible. If this practice was tolerated, it would enable defend- ants to have substantially the benefit of a justification in every case, in which evidence could be procured to establish it, without notice to the plaintiffs of such defence ; for if admissible, and the justification should be proved, the least effect that could reason- ably be given to it, would be, to reduce the inquest to nominal damages. This would be the standard of damages in all cases upon such proof."(l) But it would appear that where a witness was objected to, as interested, and in the course of proving his interest, [*242] *the judge allowed evidence which was objected to by the party offering the witness, but admitted him, with the remark that he should leave his credibility to the jury, the verdict would not, for that reason, be disturbed. In Achley v. Kelhgg^i^) the defendants were sued as common carriers. The plaintiff's first and most important witness, on the trial, was objected to by the defendants, as interested ; and various witnesses examiaed to prove his interest, to whom seve- ral questions were allowed to be put, notwithstanding objections to them, as improper, by the plaintiffs. The judge admitted the witness, with the remark, that he should submit his credi- bility to the jury, who thereupon found a verdict for the defend- (1) Vide Barnes, 448. (2) 8 Cowen, 223. Ohap. VIII.] ADMISSION OF TESTIMONY. 242 Admitting illegal testimony. ants. And now a motion was made in behalf of the plaintiff for a new trial, upon several grounds, and among others, that im- proper questions were allowed to be put, touching the interest of the plaintiff's principal witness ; and per Sutherland, J., " It is said the judge admitted improper evidence, to establish the inte- rest of Standish, the plaintiff's witness. But as he held the witness competent, the evidence, conceding that it was inadmissi ble, produced no effect, and as it was addressed exclusively to the court, affords no ground for granting a new trial. Nor can we regard the remark of the judge on closiDg the inquiry, that he should submit the credibility of the witness to the jury. • Upon the case, therefore, the motion for a new trial must be denied." Nor will a new trial be granted on a mere technical, objection, such as, to the admission of a printed statute book in evidence, when it appears that the printed statute was correct, and an ex- emplification of it on a new trial, wOuld be the same evidence. Duncan v. Duboys.{X) Debt on bond. The plaintiff offered in evidence, an act of Congress, from the printed statute *book, which was objected to, but admitted by the judge. [*243] A motion was made, on the part of the defendant, for a new trial, on the ground of the admission of improper testi- mony, and for the misdirection of the judge. Per Curiam. — " The general rule undoubtedly is, that the printed statute book is not evidence of private acts, although there are instances in which the printed statute book has been admitted as evidence of a private act. But, without giving any definitive opinion on the admissibility of the statute book, it was shown on the argument for a new trial, that the printed book was correct, by a produc- tion of an exemplification of the private act. There would, therefore, be no use in a new trial on that ground, merely, be- cause the evidence, on such new trial would, in that respect, be precisely the same. This is a peculiar case, in which it would be of no use to the parties, now to discuss the technical objection. "(2) (1) 3 Johns. Cas. 125. (2) Tide 2 Term Rep. 2'i6- 248 HEW TRIALS. [Chap. VJIt, Admitting illegal testimony. And when the objectionable testimony is such as cannot pos- sibly mislead, or has been waived impliedly, by the party intro- ducing it, the court will not for that cause disturb the verdict. In Norris v. Badger.il) Assumpsit against the defendants, ad joint indorsers of a promissory note. Plea, the general issue^ and a judgment confessed by the holder to the plaintiff and one of the defendants. At the trial, the plaintiff asked a witness if there were not incumbrances or liens, previous to the judgment confessed. The question was objected to as improper under the pleadings, or if admissible, that the facts inquired of could not be established by parol. The judge overruled the objection, and the witness was allowed to state large previous incumbrances by mortgage and judgment,- and sales thereon. The plaintiff then offered to show regularly,- by records,- and executions, [*24:4] *incumbrances having preference to the judgment and execution mentioned in the defendant's plea, sufficient to exhaust Gumaer's property. This was objected to as not ad- missible under the pleadings ; but the proof was received, and the facts proposed to be shown, were fully established by exem' plifications, executions, &c. Verdict for the plaintiff; and motiot for a new trial, for this cause, among others, that parol proof of incumbrances was inadmissible, and the records ought to have been produced. But per Sailage, Oh. J. — "The judge erred in receiying parol evidence of the amount of incumbrances" ;■ and this would be cause for a new trial, had it not been immediately shown by proper documentary evidence, viz. : exemplifications, &c,, that the older liens on Gumaer's property greatly exceeded its value. The parol evidence was unnecessary therefore. The verdict was fully sustained without it. Its admission might be error, had it been possible that the jury placed any reliance upon it, or could have been misled by it.(2) Going into the documen- tal proof, was equivalent to a waiver of the parol evidence, which take* away the error. The motion for a new trial must, there* fore, be denied." (1) 6 Oowen, 449. (2) 16 Johns. Eep. 92, and 3 Oowen, 621.- CiiA?. tut] ADMlSSlOIf Of TSSf MOl^Y. 244 Admitting illegal testimony. So, in Preston v. 3'arvey,{l) on appeal. The plaintiff in the court below, introduced seeondary evidence of a survey, objected to by the defendant, but admitted by the court. The objection'' able testimony, however, was afterwards supplied by primary evidence, consisting of the verdict of a jury, where the same point came up between the same parties, and in the same right. Tucker', J., delivering the opinion of the court, observes—" It is in gene- 4"al true, that if the court admit any irhptoper evidence, upon a trial, which is made to appear by a bill of exceptions, there *must be a new trial. I was at first inclined to £*245] suppose, that the present case furnishes an exception, •and probably the only exception, to the rule. For the etror ap' parent from the first bill of exceptions was, I conceived, com- pletely cured, by the matter contained in the second bill of ex- "ceptions; the evidence excepted to in both instances being ad- "duced to prove one and ihe same fait, upon which fact the merits nf the case entirely depended ; viz. : whether Preston's warrant Was exhausted by prior entries. And although the court admit- ted improper evidence as to that fact at first, yet as further evi- dence, and that conclusive, between the parties, was also adduced \o the same fact, I thought that it would be a vain thing to re- verse' the judgment for the first error, and to direct a new trial to be had, in which the verdict should be admitted as conclusive evidence of the fact in question, since the result, except as to xjosts, must be precisely the same, as if we should affirm the judg' ment." And for this reason the court overruled the exception, 'and refused a new trial on that ground. The principle, as to the admission of illegal testimony, has been recognized in Virginia, and for the saine reasons as in the state of New York.(2) Iq Broion v. Jitay,{S) in trespass, for beating the plaintiff's slaves. Plea, not guilty. Verdict for plaintiff and ■appeal, ^he bill of exceptions stated, among other things, that on the trial the defendants offered, in mitigation of damages, the (1) 2 Hen. & Munf. 5S . (2) Vide ante, pp. 239, 240. <3) 1 Munf. 288. Vol. I. If 245 NEW TRIALS. [Chap. VIII Admitting illegal testimony. testimony of a -witness, tending to prove that the plaintiff had given a general permission to Brown, one of the defendants, to. visit his negro quarters, and to chastise any of his slaves, who might be found acting improperly. But the judge declared such testimony improper, on the plea of not guilty, although the beat- ing by the defendant Boisseau was in the presence, and [*246] with the assent of the other *defendant. Brown, since both defendants had joined in the same plea, and the beating had been committed by Boisseau, to whom it was ad- mitted no such permission had been given. On the argument, the counsel of the appellants took the ground that the evidence was immaterial. But, per Tucker, 3. — •" I admit that it is an in- variable rule, that every defence which cannot be specially pleaded, may be given in evidence upon the general issue at the trial. But I hold it to be a rule of law no less certain, that ille- gal or improper evidence, (however unimportant it may be to the cause,) ought never to be confided to the jury ; for if it should have an influence upon their minds, it will mislead them, and if it should have none, it is useless, and may at least produce per- plexity.'"(l) And upon the same principle, in Massachusetts, in Walker v. Leighian,(^) where in an action against two defendants in assump- sit, it was offered to prove, by way of off-set, a demand of otie of the defendants against the plaintiff, and overruled and excepted to. The court held that the evidence offered for the defendants was irrelevant and impertinent to the issue on trial, and evidence is as well to be rejected for its impertinence as for its incompe- tency. But in the English Common Pleas, the rule appears to be some- what different. There, it has been held that, although there may 'be exceptionable testimony, yet, if there bo sufBcient legal evi- dence without it, and justice has been done, the verdict will not be set aside. (1) M vide Lee v. Tapscott, 2 Wash. 276, and State v. Allmt 1 Hawks, 6. (2) 11 Mass. Rep. 140. Chap. VIII.] ADMISSION OF TESTIMONY. 246 Admitting illegal testimony. In Tullidge v. Wade,^!) trespass for seduction of plaintiff's daughter. At the trial, the judge permitted evidence of promise of marriage to be given. Yerdict for plaintiff, and a motion to set it aside for this cause, among others, that illegal tes- timony was admitted. And, per Bathurst, J. — *" To be [*24:7] sure, the giving the promise of marriage in evidence, at the trial of this cause, was very improper; but as the jury were cautioned not to take notice of it, I am inclined to think they did not, for if they had, I think they would have given more than £50 damages. In actions of this nature, and of assault, the cir- cumstances of time and place, when and where the insult is given, require different damages ; as it is a greater insult to be beaten upon the Eoyal Exchange, than in a private room. I am of the same opinion with my lord chief justice, and my brothers." The court unanimously refused the rule. So in Horford v. Wilson.{2) Action on a bill of exchange, verdict for plaintiff; and on motion for a new trial, for this cause among others, the admission of parol evidence to prove the contents of a letter, written to the defendant, for the purpose of informing him of the dishonor of the bill, although no notice had been received for the production of the original. Mansfield, Ch. J. — " I do not remember that any such objection was made upon the trial. Neither will the court set aside a verdict on account of the admission of evidence which ought not to have been received, provided there be sufficient without ib, to autho- rize the finding of the jtary." And, in Doe v. Tykr,{B) in ejectment. The question raised was, whether Lord Teynham was of sound mind when he suf- fered a recovery in 1789. There was conflicting evidence on the point ; but in the opinion of the court and jury, the evidence in favor of his lordship's being of sound mind preponderated, and on that ground a verdict was found for the defendant. A great (1) 3 "Wils. 18. (2) 1 Taunt. 12. (3) 6 Bingham, 561, 248 NEW TRIALS. [Chap. VIII. Admitting illegal testimony. number of witnesses spoke to bis lordsbip's competency to trans- act all ordinary business, and among other evidence to this effect, the accounts of a deceased steward were put in, [*248] which, it was *assumed, his lordship had examined and I J settled. These accounts were handed to the jury, and , commented on by the counsel for the defendant, as being im- portant to his case. Jones, sergeant, obtained a rule nisi for a new trial, on the ground, among other objections, that those accounts had been improperly received in evidence. The court, upon hearing the report of the trial read, stopped Wilde, ser- geant, who was to have shown cause, and called on Jones, to show that there was not enough to sustain the verdict, indepen- dently of the evidence objected to, who contended that it was impossible for the court to discriminate between the effects pro- duced by each parcel of evidence on the mind of the jury, or to determine that the verdict was not altogether occasioned by the very evidence now objected to. Tindal, Ch. J. — "This rule must be discharged. I will assume, for the' purpose of this dis- cussion, though I give no opinion on the point, as' we have not heard the other side, that the evidence in question ought not to have been received. But the court will not close their eyes to the rest' of the evidence ; and, if they see that there is enough, not merely to make the scales hang even, but greatly to prepon- derate in favor of the defendant, they will not send the cause to a jury again. It has been contended that we are to analyze the evidence by a difficult process, and to discriminate the precise effect produced on the mind of the jury on each portion of the proof; but we have a much plainer course ; and, that is, to hear the report of the trial, and to sustain the verdict, if we all are satisfied that there is enough to warrant the finding of the jury, independently of the evidence objected to. On this principle the decisions in Eorford v. Wilson, and Nathan v. Buclcley,{l) are quite in point ; and we cannot send the cause to a new [*249] trial, when the jury are *right upon that portion of the evidence which is unimpeached." (1) 1 Taunt. 12 ; and 2 Moore, 163. Chap. VIII.]- ADMISSION OF TESTIMONY. 249 Admitting illegal testimony. So, in Massachusetts, a sitnilar distinction has been taken. In Prince v. Sheph£rd,{l) it was held, that where a point in a cause is clearly proved bj competent evidence, and found bj'-the jury, a new trial will not be granted, because of the incidental admis- sion of improper, and not very important evidence tending to prove the same point. Action in assumpsit. Upon the trial, one Prince testified, through inadvertence, to certain declara- tions of the plaintiff, at other times than those inquired of by the defendants, and, upon a motion for a new trial, this point was taken. And, by Parker, Oh. J., delivering the opinion of the court. — " In regard to the testimony of Prince, relative to the declarations of the plaintiff, this seems to have fallen from the witness incidentally, without any fault of the plaintiff or his counsel, and it was considered in the order in which it was intro- duced, as a part of the res gestce ; as a complaint made to an at- torney in the course of business. This may admit of doubt ; but if the evidence was not strictly competent, still it was not material, and could have no improper influence with the jury. For the plaintiff's proof of his debt, to a certain amount, is per- fectly satisfactory, and a verdict ought not to be set aside for a slight slip, when the verdict is clearly right." The same result will follow, if, on application, it should appear' that the testimony objected to, operated favorably to the party seeking to disturb the verdict. As in Smith v. Rarmanson.{2) Leave had been given at the trial, to submit special matter in evidence to the jury, from which they had ' inferred, that they might render an aggregate verdict of principal and interest, on a bond for which the suit was brought. It was favorable to the defendant below ; *yet the defendant had it re- [*250] versed in the District Court, from which the plaintiff in his turn, appealed. The Court of Appeals reversed the judg- ment of the District Court, and affirmed the judgment betow, although it was admitted, improper testimony had been offered (1) 9 Pick. ITS. (2) 1 Wasli, Rep. 6. 250 NEW TEIALS. [Chap. VIII. Admitting illegal testimony. to the jury, by the defendant below, but being for his benefit, they would not, for that reason, disturb it. The principle of the above cases has not been recognized in the state of New York, in express terms ; although from the language of the court, in The Supervisors of Chenango v. Bird- saff,(l) it might be inferred. In that case Eandall, one of the sureties of the treasurer, and a co- defendant, was called as a wit- ness on the part of the plaintiffs. The other defendants objected to his being sworn as a witness, but the objection was overruled- In the progress of the trial, the same facts testified to by him ' were testified to by other witnesses, or appeared by the admis- sions of the defendants. A motion was made by the defendants for a new trial, on the ground of his admission. Marcy, J., de- livering the opinion of the court on this point, observes — "It is contended by the plaintifis, that if Eandall was improperly ad- mitted as a witness, a new trial ought not to be granted ; because the facts to which he testified were abundantly made out by other evidence in the cause." And in the sequel of his opinion, the learned judge seems to admit the force of this argument, by proceeding to -show that the facts proved by Eandall were in some respects material, and confined to his statement. And upoB that ground, he being an incompetent witness, a new trial was awarded. But however strong the inference from the ground taken in this case might be, it would go to show merely that the rule was not fully settled, but would not overrule the [*251] express adjudication of the court in *ifargt et vide 2 Str. 899, and 1258, and 3 Johns. Bep. 180. (3) 3 Bingham, 319. Chap. IX.] MISDIRECTION OF THE JUDGE. 266 Misdirection on matters or law. of a stage coach gathered a bank, and upset the coach. He had passed the spot where the accident happened, twelve hours before ; ■ but, in the interval, a landmark had been removed. In an action for an injury sustained by this accident, the judge told the jury, that as there was no obstruction in the road, the driver ought to have kept within the limits of it ; and the action having been occasioned by his deviation, the plaintiff was entitled to a verdict. A verdict was found for the plaintiff, £150 damages. A new trial was moved for on the ground of a misdirection, for that it ought to have been left to the jury to ascertain whether the deviation had been occasioned by negligence, or by unavoidable accident. And per Best, Oh. J.' — " The coachman was bound to keep in the road, if he could; and the jury might, from his having gone out of the road, have presumed negligence, and on that presumption have found a verdict for the plaintiff. But the learned judge, instead of leaving it to the jury to find whether there was any negligence, told them that the coachman having gone out of the road, the plaintiff was entitled to a verdict. This action cannot be maintained unless negligence be proved ; and whether it be proved or not, is for the determination of the jury, to whom, in this case, it was not submitted." The court were unanimous in directing a new trial. *And in Young v. Spencer.{l) Case by the owner of a [*267] house against his lessee for years, for opening a new door, whereby the house was weakened and injured, and the plaintiff prejudiced in his reversionary estate and interest in the premises. Plea, not guilty. The jury found that the lessee did open the door •without leave ; but that the house was not in any respect Weakened, or injured by it. The learned judge, thereupon, directed a verdict to be entered for the plaintiff, with nominal damages, subject to a case. The case being argued. Lord Tenterden Ch. J., after stating the facts of the case, now delivered the judgment of the court. — " We cannot take upon ourselves to say, that there was not any injury to the plaintiff's reversionary right. It might have (1) 10 Bam. & Ores. 146. ■267 NEW TRIALS. [Chap. IX. Misdirection on raattera of law. been left to the jury to say whether there was or was not an in- jury to the right. The old authorities upon this subject are not reconcilable with each other. It seems to be clearly established however, that if anything be done to destroy the evidence of title, an action is maintainable by the reversioner. We cannot say that the opening of the door, in this case, affects the evidence of the plaintiff's title. That is a question of fact. All that we can do is to grant a new trial, in order that the question may be submitted to the consideration of the jury." But it is to actions arising ex contractu^ the rule emphatically applies, acknowledging no exception or restriction, unless where the matter in controversy is too trifling to bear protracted litiga- gation, or the court incline to sacrifice a technical objection to substantial justice. Thus, In Holliday v. Aikinson,{l) where a promissory note, expressed to be for value received, was made in favor of an infant, aged nine years, and in an action upon the note by the payee, against the executors of the maker, no evidence of consideration [*263] being given, the learned judge told *the jury that the note being for value received, imported that a good con- sideration existed, and that gratitude to the infant's father, or affection to the child, would suffice. There was a verdict for the plaintiff, and a rule Nisi obtained. And on motion, per Abbott, Ch. J. — " I think that this case must be sent to a new trial. I agree that where a note is expressed to be for value received, that raises a presumption of a legal consideration, sufficient to sustain the promise ; but that is a presumption only, and may be rebutted. Now we find that this note was given to a boy only nine years old, whose father was living, and that the donor was in a state of imbecility, and not far from his death. It then be- came a question for the jury, whether the note was given upon any legal consideration, and I think that the direction given to them, as to the sufficiency of gratitude to the father, or affection to the son, was improper," (1) 5 Barn. 4 Ores. 601. Chap. IX.] MISDIEECTION OF THE JUDGE. 268 Misdirection on matters of law. ■ The rule, and to the same extent at least, has been adopted in Massachusetts. In their practice, a slight misdirection will avoid the verdict ; as in Boyden v. Moore.{l) Assumpsit on certain promissory notes. Money was paid into court, and taken out, but not in satisfaction, and the suit went on. Upon a report of the case by the judge, it appeared he had found, by his calculation, there would' be due to the plaintiff fourteen cents and four mills, if the defence were just, and the" evidence in support of it be- lieved ; and he charged the jury, therefore, that if upon calcula- tion they should find that the money brought into court did not fully pay every cent which was due, yet if they were satisfied that the defence set up by the defendant was just, although a small balance was still due, if that balance appeared to them a mere trifle, their verdict ought to be for the defendant. On motion for a new trial, upon this point of *misdirec- [*269} tion. Parsons, Ch. J., who delivered the opinion of the court, after recapitulating the charge of the judge, proceeds — " When the mistake arises from the misdirection of the judge on a point of law, the court ought, in all such cases, to relieve the party suffering by it, although he may be indiscreet in ma- king his motion. The law is our only criterion of right and wrong in the decision of causes, and if it be mistaken by the court, whose duty it is to declare the law, the consequences of the error may be extensive, reaching beyond the action in which it was committed ; and it may affect other legal principles. We Jiave looked with some attention into books, to find some case where, in a misdirection of the judge, the court have declined to interfere, by setting aside the verdict found in consequence of the misdirection. We have not been able to find a single case." With this agrees Dudhy v. Sumner,{2) argued afterwards in the same court. The principles contended for in that case were such as to call forth the most elaborate discussion : and the opin. ion of the court, granting a new trial, was finally put upon the misdirection of the judge. (1) 6 Mass. Sep. 366. (2) 6 Mags. Bep. 438. 269 NEW TEIALS. [Chap. IX. Misdirection on matters of law. In New York, the rule has been so fully reooghized as to pre- vail where a misdirection might have affected the verdict,' and the chances were equal that it produced such effect, as in War- dull V. Hughes and Moore.{\.) This was an action on a joint prora- issory note, by the defendants, " payable and negotiable at the Bank of Ontario, in Canandaigua." The judge charged the jury that, by the terms of the note, its»negotiability was restricted to the place where it was made payable ; and that, if they should be of opinion that the note was applied by HTighes to the pay- ment of an individual debt, without the assent of Moore, his partner, the plaintiffs were not entitled to recover. The [*270] *jury found for the defendants. A motion was made to set aside the verdict, and it was contended, the note was restricted in its operation. But, per Many, J., delivering the opinion of the court, " I think the judge erred in telling the jury that, by the terms of the note, its negotiability was restricted to the place where it was made payable. The jury found a ver- dict for the defendants ; whether on the ground that the note had been negotiated at a place different from that contained in the body of the note, or on the ground that it had been passed by Hughes, for his individual debt, and that the assent of Moore had not been shown, it is impossible for us to determine. If the verdict was found on the first ground, it ought to be set aside for the misdirection of the judge ; if on the latter, the evi" dence being of such a character that it might be regarded as in- sufficient to show the assent of Moore, it should not be disturbed. Inasmuch, therefore, as the verdict may have resulted from the error of the judge, and I think there is an even chance that it did, a new trial ought to be granted." According to this decision, even a reasonable doubt as to the effect of the erroneous charge, will be sufficient to avoid the ver- dict. In a prior case, Glarhe v. I)utcher,{2) the coflrt had showfi with what astuteness they seize upon errors of law that creep in at the trial. It was conceded in that case, that a cbarge of the (1) 3 Wendell, 418. (2) 9 Cowen, 614. Chap. IX.] MISDIRECTION OF THE JUDGE. 270 Instruction not warranted by the evidence. judge, ehtirely abstract or out of the case, so as not to affect it, though erroneous, cannot be insisted on as error by exception ; but, it was added, the court in error, will look through the case, and if they find that it might have been affected by the charge or opinion, injuriously to the plaintiff in error, the judgment will be reversed. This was an action in assumpsit for over payment by mistake, and verdict for plaintiff. The charge of the judge below, which was excepted *to, jeferred to a sub- [*271] sequent promise, -taking the case out of the Statute of Limitations, and consisted in the common error of confounding law and fact, and- not sufficiently discriminating the province of the court and jury. It was noticed, and corrected by granting a new trial, and is illustrative of the rule. Siitherland, J., deliv- ering the opinion of the court, observes, " Where there is any dispute as to the facts which go to prove the making of a new promise, there, whether a sufScient acknowledgment or promise has been made to take the case out of the statute, is a mixed question of law and fact, to be passed upon by the jury. But when the facts are undisputed, it is for the court to determine whether they take the case out of the statute or not. Here it was not denied, that Clarke made the declaration relied upon as evidence of an acknowledgment of the debt. Whether it amounted to a sufficient acknowledgment or not, was an un- mixed question of law. The opinion expressed by the court was erroneous, and properly excepted to." Again, "It is un- doubtedly true, that a judgment will not be reversed on account of an erroneous opinion expressed, or decision made by the court, where it clearly appears that the error did not and could not have affected the verdict or the judgment. But this very posi- tion implies that we are to look beyond the letter of the excep- tion, into the case itself, to ascertain what the effect of the error III. Instruction not warranted by the evidence. With a like scrupulous attention to the rules of law that ought to govern the charge, it has been held to be erroneous in a judge 272 NEW TEIALS. [Chap. IX. Instruction not warranted by the evidence. to instruct a jury, that they may indulge a presumption not warranted by the evidence disclosed. As in Harris v. Wilson.{l) Action in assumpsit, on a joint and several promissory note. Plea, general issue, and that [*272] the not ehad been made by the defendant and one *Judd, and that the claim had been settled by arbitration.^ — At the trial, the defendant's counsel insisted that the award was a bar to the plaintiff's right of recovery on the note. The judge decided, that in the absence of all proof as to what the note was given for, the award was not broad enough to cover it, but that the defendant's counsel might go to the jury upon the question of a presumption of payment, previous to the award, under the circumstances of the case, and to that effect charged the jury, who found for the defendant. A motion was made to set aside the verdict. And per Sutherland, J. — ^" I think the judge erred in submitting it to the jury to determine, upon the evidence be- fore them, whether the note had not been paid or satisfied by some arrangement between the parties previous to the arbitration. There was no evidence from which any such conclusion could legitimately be drawn. The defendant did not pretend that the note had been paid or satisfied in any other manner than by the general settlement of the partnership concerns by the arbitrators. He did not attempt to ptove any fact or circumstance from which such payment could be inferred."(2) And in HoUister v. 'Johnson.{3) Action for false imprisonment against a constable, who had taken plaintiff's body in execution. The judge charged the jury, among other things, that the fact of the plaintiff's having property was not conclusive evidence ihat the execution might be satisfied, for it appeared that the premises were leased, and it might reasonably be presumed that the land- lord had a claim for rent, which might have defeated the execu- tion ; and that if the defendant had not taken the body of the (1) 1 "Wendell, 511. ■ (2) Vide, 10 Wendell, 461. (3) 4 "Wendell, 639. Chap. IX.] MISDIEECTION OF THE JUDGE. 273 Omitting to charge on questions of law. plaintiff, and it had turned out that he'had not sufficient property to satisfy the execution, the defendant would have been *liable. The plaintiff excepted to the charge, and the [*273] jury found a verdict for the defendant. The court, per Sutherland, J. — " The charge of the judge appears to me to have been wrong in two essential particulars : — in stating to the jury, that it might reasonably be presumed that the landlord of the plaintiff had a claim or lien on the property, which was shown to have been in his possession, for rent, which might have de- feated the execution. Now there is not a particle of evidence in the case upon the subject of rent, except the simple fact that the plaintiff lived on a farm, for which he was to pay, or had paid, $60 per annum. No claim on the part of the landlord was shown, nor any other circumstance from which an inference could be drawn, that there was any rent in arrear; and unless such pre- sumption exists in judgment of law in all cases between landlord and tenant, there was no foundation for it 'va. this." And new trial granted for this cause. So in Levingsworth ad. Fox.i).) This was an action of trespass, to try titles to land on Savannah river, in which ^the jury took upon them to find, that a release produced and given in evidence by defendant, was fraudulent, without any proof of its being so, or of any circumstances from which it could be strongly inferred. Upon this ground the court, after argument, ordered a new trial, as fraud is never to be presumed, unless the circumstances are so strong as to leave no doubt to the contrary. From the silence of the reporter in this case, the judge had not charged the law. It falls therefore within the rule. IV. Omitting to charge on questions of law. The omission of the judge to charge the jury on questions of law, though not of itself a reason for granting a new trial ;. yet if, in the absence of proper instructions, the jury should err, the verdict will be set aside, and a new trial granted. (1) 2 Bay, 520. 274 NEW TEIALS. [Chap. IX. Omitting to charge on'questions of law. [*274] *Iii Morrison v. Muspratt.iV) Action on a policy of insurance on the life of one Mrs. Elgin. At the trial, it appeared that a surgeon who had attended Mrs. Elgin for several years prior to February, 1821, but who had not seen her profes- sionally in the interim, was applied to just before the policy was effeted, to certify as to her state of health. He accordingly ex- amined her on the 19th March, and afterwards certified that she was in good health, and was not afflicted with any disease which would tend to shorten her life. The insurance was therefore effected in April, 1823. Mrs. Elgin died of a pulmonary disease in April, 1824. Subsequently to February, 1821, and before the date of the certificate, Mrs. Elgin was under the care of an- other medical man, a Mr. Bland, who thought her consumptive. During this period, she had been twice alarmingly ill. The facts of the attendance of Mr. Bland, and the illness of Mrs. Elgin, were not communicated to the defendants at the time of the ex- ecution of the policy. The j udge left it to the jury to say whether there had been any misrepresentation, but omitted to call their attention to the facts of Mrs. Elgin's illness, and the consequent attendance of Mr. Bland. The jury found for the plaintiff — damages £1,000. And per Burrough, J. — " A material point in this case was not left to the jury, nor observed upon by the judge. The assurers were not informed that Mrs. Elgin, whose life they were about to insure, had been attended by Mr. Bland, who thought her extremely ill. Had they known this fact, they might have examined him." So in Galbreath v. Grracy.{2) An action on a policy of insu- rance of goods, where the important questions of charter-party, capture, abandonment and loss were involved. No charge was given to the jury, who found for the plaintiff. A rule [*275J to show cause why a new trial should *not be granted, being obtained. Washington, J. — " Important points of law were involved in this case, and the court ought to have charged the jury upon them. Though their not 'having done so, (1) 12 Moore, 231. (2) 1 Wash. 0. 0. E, 198. Chap. IX.] MISBIEEOTIOJT OP THE JUDGE. 279 Omitling to charge on questions of law. is no reason per se for granting a new trial, yet there is reason to apprehend that, under the circumstances of the case, justice has not been done. As the case now appears to me, the verdict doea not seem to consist with legal principles ; although I mean not to give any decided opinion. I think the ends of justice will be most likely to be attained, by granting a new trial." So in Page v. Pattee.{l) Action on the case, and verdict for defendant. The plaintiff moved for a new trial, alleging that the verdict was given against evidence, which is reported by the judge who sat on the trial. It is agreed by the parties, that after the evidence on each side was given to the jury, the counsel for neither party summed up his evidence, but left it to the judge to sum up and to give to the jury the necessary instructions. The judge reports that the evidence to support the plaintiff's demand was contained in certain depositions, which accompany the report, which were unimpeached, uncontradicted and unexplained, and were sufficient in the opinion of the judge, if believed by the jury, to support the plaintiff's declaration so clearly, that he ap- prehended no instructions were neciessary, and accordingly none were given, but such as related to the allowing of interest to the plaintiff. By the Court. — " It is our opinion that either party can lawfully claim from a judge trying his cau^e, the benefit of his instructions to the jury ; and when such instructions are not given, on the ground that the case is too clear for one of the parties to render them useful, and the j ary find for the other party, a new trial ought to be granted, that the jury may be assisted by the direction of the court."(2) *So, if the judge comment on a piece of testimony, [*276] and leave it generally to the jury, without adding such views as to its credibility as the law requires the jury to consider, As in Dunlop v. Paiterson.(3) One Fuller had been produced as a witness, and strongly impeached. The judge below had stated (1) 6 Kass. Rep. 469. (2) Vie/e 6 Monroe, 61. (3) 6 Coiren, 243. 276 NEW TEIALS. [CfiAP. IX. Omitting to charge on questions of law. to the jury that Fuller's testimony was competent, and that they might give it such weight as they thought it deserved. Upon which, the court, by Woodworih, J., observes,- — " After an atten- tive consideration of the evidence given by Fuller, it seems to me that this part of the charge was manifestly erroneous. The jury, it is true, are judges of fact, and the credibility of witnesses • but, in the exercise of this power, they naust be governed by the judgment of law on the facts. If the law has adjudged that certain facts render a witness unworthy of credit, the jury cannot rightfully give credit to his testimony, or found a verdict upon it. They have no arbitrary discretion. It is their duty to follow the advice of the court as to the law. In this case, the charge gave them the most extensive range. Their attention was not called to the fact that Fuller, by his own admission, had sworn falsely. He was not, therefore, a credible witness, unless sup- ported as to the material fact which he attempted to establish. The law will not permit either life or property to be put in jeop- ardy by such testimony. If it would, there must be but little security for either. When the court instructed the jury to give the evidence the weight they thought it deserved, this implied that they had an uncontrolled discretion to do as their judgments might direct, without, any legal restraint as to the manner of ex- ercising it. The court ought to have charged the jury, that the testimony of Fuller was so strongly impeached as to justify them in disregarding it altogether ; that the unsupported [*277] ■*testimony of a single witness, who Swose, at one time, in direct contradiction to the testimony given by him at another, in relation to the same transaction, was not entitle!! to credit, and ought not to be regarded. If the charge had been of such a character, it is probable the result of the trial would have been different. My opinion is, that this exception is well taken ; that the judgment be reversed, and a venire de novo issue in the court below."(l) And it is the right of a party to have the charge of the judge (1) VideAUeny. Tomg, 6 Monrofe, 136; Ante, p. 235; 2 S. 0. Con. Rep. 323; Neweliy. Wright, 8 Conn. Rep. 319. Chap. IX.] MISDIEECTION OF THE JUDGE. 277 Omitting to charge on questions of law. on questions of law, and if he refuse, and the jury err, a new- trial will be granted, as in Scott y. Lunt,{l) in error, to the Circuit Court of the United States, in the District of Columbia. Action of covenant, to recover sundry rents, under a deed executed by Greneral George Washington and wife, to the defendant's intestate, by which a lot of ground was conveyed to Lunt, subject to the pay- ment of an annual rent of seventy-three dollars. One of the cove- nants reserved to the grantor a right of re-entry on non-payment of the rent, and the defendants below set up the fact of re-entering, as one of his pleas on which issue had been taken. At the trial, the plaintiff prayed the court to instruct the jury, that at thctime at which the re-entry ought td be made, depended upon the lease given in evidence by the plaintiff, and could not be varied by the evidence ; and that if the jury found a re-entry, it must con- form to the deed. The court refused to give the instruction, being of opinion that it was competent for the actual tenant to waive any of the formalities required by law for his benefit. By the Court. — " The instruction prayed has reference to the pleadings in the case. The averment there is, that the plaintiff entered on the premises, under and by virtue of the condition of re-entry in the original deed mentioned, for non-payment of the rent; and, upon the issue joined, this *was the [*278j material inquiry. It is clear that, upon such an issue, no entry not conforming to that deed, and no evidence of an entry varying from it, would be admissible to support it. The sufiaciency of the evidence before the jury to support the issue, was properly left for their consideration. But the defendant had a right to the instruction, that- the proof must conform to the allegations in the pleadings. For these reasons, we are of opin- ion that the Circuit Court erred in refusing the above instruction ■ and the judgment must, on this account, hp reversed, and a. venire facias de novo be awarded."(2) But the judgment will not be reversed, if the jury, notwith- (1) 7 Peters, 596. (2) Vide 3 Hawks, 5. 278 NEW TKlALS. [CfiA?. IX. Improperly negleeting to non-suit. standiDg the omission to charge them on the point requested, find a correct verdict, and such as in justice it must have been, had the charge been given.(l) F. Improperly neglecting to non-suit. If the judge send the case to the jury, when he 6ught to have non-suited, the verdict will be set asidei Although, by the English practice, a plaintiff cannot be nou' suited against his will, but may insist upon carrying his case to the jury,(2) with us a difiEerent practice prevails. Even an infe' rior court may non^suit, where the plaintiff entirely fails to make out his case. In Pratt v. Hull,{3) in-error, from a court of oom- mon pleas, where the court were of opinion that the plaintiff ought to have been non-suited, but doubted their power, and scQt the case to the jury, the Supreme Court, upon a bill of exceptions, reversed the judgment, observing upon the power to non-suit! " This must be a power vested in the court. It results, necessa* rily, from their being made the judges of the law of the case, when no facts are in dispute. What the evidence before the court was, or whether they were correct in their judg- [*279] ment, *or not, are questions not now before us. We must assume that there was no dispute about the facts before the court, or any weighing of testimony falling within the province of the jury ; and therefore it was a pure question of law, whether, under a given state of facts, the plaintiff was, in law, entitled to recover. And, unless this was a question for the court, there is no meaning in what has been considered a salutary rule in our courts of justice, that, to questions of law, the judges are to respond, and to questions of fact, the jury." , And in a subsequent case, iStuart v. Simpson,{4:) it was held, that a court may, and it is their duty to non-suit a plaintiff, if the (1) Douglass v. M'AliBter, 3 Cfaneh, 298. (2) 1 Chit. Aroh. 300. (3) 13 Johns. Bep. 334. ■ (4) 1 Wendell, 376. ClHAP.lX.] MlSBmECTtOH Off THE ^UDGE. m Improperly negleoting to non-suit. ■evidence, in their opinion, will not authorize a jury to find a ver^ iJict for the plaintiff, or if they would set aside a verdict, if so found^ as contrary to evidence. The right of a court of record, or even of a court not of record,(l) to direct a non-suit peremptorily in their discretion, is with us no longer to be questioned. This principle being clearly ascertained, a refusal to non-suit, when it ought to be granted., is equivalent to a misdirection, and will be treated as error. In Foot V. Sabin{2) in error. A bill of exceptions was taken^ stating that the plaintiff below> proved that a note then produced^ made by Lemuel Holmes, Abel Wilson, and William B. Foot, was signed by L. Holmes, in his own proper hand, and with his name^ that the names of " Wilson and Foot, sureties," sub' scribed to the said note, was in the proper handwriting of the said Abel Wilson, and that the said Wilson and William B. Foot, at the time of making the said promissory note, were partners, as by the said plaintiff alleged, and there rested. The defendants bad moved for a non-suit, on the ground, that the plain- tiff had not proved *the authority or consent of Foot to [*280] the making of the note. But the court were of opinion, that although the plaintiff was bound to prove the authority or consent of Foot to the making of the note, yet he had already -done it, and thereupon directed the parties to proceed to the jury. Upon the point of refusing the non-suit, the court, having recognized the principle that a court of common pleas has the power to compel a non-suit, conclude thus — "On the ground^ then, that the Court of Common Pleas refused to non-suit the plaintiff below, when the evidence adduced entirely failed to make out his case, the judgment must be reversed, and a venire ■de novo isued from this court. "(3) And the true test of the propriety of the non-suit is, that if the >case had gone to the jury on the evidence, and the jury had (1) Vide EkoeU v. ItQueen, lO Wendell, 519. {i) 19 Johns. Rep. 154 <3) Tide 10 WendelJ, 461. Voi. L 19 28q KEW TEIALS. [CfiAP. IS, Improperly neglecting to non-suit. found for the plaintiff, the court would have set aside the verdict, as in Royt v. Gilman.{V) On the trial of an action on a policy of insurance, the judge directed a non-suit on the ground that there had been a fraudulent concealment of material facts, at the time of effecting the insurance ; and the court refused to set aside the non-suit, and grant a new trial. It was urged, upon exceptions taken to the non-suit, that it was the proper province of the jury to have settled the facts, about which there was contradictory evidence, especially upon the question of fraudulent intention. It was conceded, that the judgment of law upon the facts was for the court. But, per Curiam. — "Whether fraud be a question for the court or jury, yet if, upon the facts in evidence in this case, the jury had given the plaintiff his premium, we should not have hesitated to set aside the verdict." But although, by the English practice, the plaintiff cannot be non-suited against his will ; yet. if he does not elect [*281] *to go to the jury, but acquiesces in judgment of non- suit, he waives the right of motion to set it aside. As in Msworthy v. Bird.{2) Assumpsit against a husband, for not carrying into effect an agreement, alleged to have been entered into by him at the general quarter sessions of the peace, on be- half of his wife, being a compromise to pay and satisfy the prosecutor. The .judge, at the trial, after the plaintiff rested, observed, that he could-find nothing to leave to the jury in sup- port of an action on such an agreement, and directed a non-suit, plaintiff's counsel not objecting thereto. And on motion to set aside the non-suit, the court discharged the rule, on account of the acquiescence at the trial. (3) Much less will a new trial be granted, on the ground of mis- direction, if, upon an intimation from the judge, the counsel elect to be non-suited. (4) (1) 8 Mass, Eep. 336. (2) 1 M'Clelland, 69. (3) ride 2 Ld. Eaym. 1370 j 1 W. felack. 631 (4) Gra. Prac. 269. Chap. IX.] MISDIRECTION OF THE JUDGE. 281 Improperly neglecting to non-suit. Buthr V. Dorant.{V) Action in assumpsit. Upon the trial, and after the parties had closed their respective cases, the judge was proceeding, in his summing up, to direct the jury that the plaintiff, not having distinctly proved any special damage arising from the breach, was entitled to nominal damages only : where- upon Best, sergeant, for the plaintiff, elected to be non-suited. He now moved for a rule nisi to set aside the non-suit, and have a new trial, for a misdirection of the judge. Lawrence, J. — " His lordship did not say you should be non-suited ; he directed the jury that you should have nominal damages only; but you did not choose to trust your case with the jury. If there were a misdirection, you should have abided by the verdict, and have reserved the objection for a motion for a new trial. I believe this has never been done, that a counsel shall lie by until he hears the opinion of the judge at NisiPrius, and *that [*282] if he thereupon chooses to be non-suited, he shall come to the court to set aside his own act." Eule refused. So in the King's Bench. Rutchinson v. Brice.{2) The court refused to set aside a non-suit, voluntarily suffered by the plain- tiff, and to, give him leave to reply de novo. He had replied — " That the cause of action arose within six years," which fact he could not prove. He wanted, therefore, to set aside the non- suit, and reply de novo ; which, if he had succeeded in, he would have replied— "That the writ of latitat issued within the six years." But the court said— "That that would make a quite new question ; which the plaintiff had before pretermitted, and had put the issue upon quite another foot, and upon a point, which he could not establish." Rule discharged.(3) Nor will the court set aside a non-suit on the ground that the- case ought to have been submitted to the jury, unless this waS: desired on the part of the plaintiff, at the trial of the cause. (1) 3 Taupt. 229. (2) 5 Burrows, 2692. (3) £;t vide Bobinson v. Cook, 6 Taunt. 336. 282 iSTBW TRIALS. [Ohap. IX. Improperly neglecting to non-suit. In Kindred v. Bagg,{l) an action to recover for board and lodging, the plaintiff was non-suited, and now moved for a rule to show cause, why the non-suit should not be set aside, and a new trial granted. Upon the motion, the court, interposing, in- quired whether the counsel for the plaintiff_^ had expressed a desire that the question should be submitted to the jury ; for, un- less that were the case, they could not in fairness accede to the present application. Shepherd said, he was not instructed to state that they had desired it, and accordingly the rule was refused. And yet, it has been ruled in the Exchequer, that submissioa to the opinion of a judge, declared by him at the trial to be for a non-suit, does not estop a motion for a new trial, if his opinion be incorrect. [*283] '^Alexander v. Bar7cer.(2) Assumpsit for money lent and paid. The plaintiffs proved that credit was given by them to the company, for ^200, and the defendant was debit- ed in a like sum, for two further calls on his shares. It was con- tended, that this was a payment by one of the company, and not by the firm of Alexander & Co., out of their own money, Oarrow, B., who presided, being of opinion that the action should have been brought by Dykes, one of the firm, alone, non-suited the plaintiffs. On motion to set aside the non-suit, and for a new trial, Lord Lyndhurst, C. B., on the general question, was clearly of opinion, that the plaintiffs ought not to have been non-suited. " As to the argument, that the learned judge was not applied to, to let the case go to the jury, cases have been cited in which the courts have refused to set aside non suits, when the counsel ac- quiesced at the trial, and did not insist on the case going to the jury. But as in those cases the courts above coincided in opin- ion with the judge at Nisi Prius, the principle on which they turn is not applicable where, as in this case, the opinion expressed by the learned judge at the trial, is held by the court to be incor- (1) 1 Taunt. 10. (2) 2 Tyrwhitt, 140. Chap. IX.] MISDIRECTION OF THE JUDGE. 283 Itaproperly neglecting to non-suit. rect, K a counsel assents to a non-suit, on hearing from a learned judge, that if the case goes to the jury he shall direct them in a manner which the court above afterwards thinks incor- rect, we are bound to consider the case as if it had gone to a jury with that direction, and a verdict had been found accord- ingly ; and in such a case, the court may interfere, and grant a new trial." The other judges concurring, the non-suit was set aside, and a new trial granted. Should the judge, howev^, permit the plaintiff to go to the jury, when the evidence is wholly insufficient, and the jury find for the plaintiff, the court will set aside the verdict, *In Brook v. Wbod.{l) Action in assumpsit. Plea, [*284] insolvency, and discharge; replication, a subsequent promise, and verdict for plaintiff. On moving for .a rule nisi, it had been submitted, that it ought not to have been left to the jury ; for that the subsequent promise proved, was not such a clear and explicit promise to pay, as would revive the demand, and render the defendant again liable to be sued on it, notwith- standing his discharge under the insolvent act : — that an absolute promise was in all such cases necessary, to revive the liability of the party — and that a mere admission would not have that effect ; and on that principle the court granted the rule. Graham, Baron. — "I think that under the circumstances, this rule should be made absolute. The evidence was extremely. weak, and in my opinion, not sufficient /or the jury to have proceeded on, and consequently ought not to have been left to them." HuUocJs, Baron. — " I am of opinion that there was not sufficient evidence of such a promise, as it was necessary for the plaintiff to prove, in order to bind the defendant anew after he had been discharged, and consequently this verdict cannot be sustained." But if there be any evidence, and the judge send the case to the jury, the verdict will not for that reason'be set aside. As in Sogers v. Brooks and wife.{2) Action on the case, disturbance of (1) 13 Price, 667. (2) 3 Morgan, 240. 284 NEW TRIALS. . [Chap. IX. Improperly neglecting to non-suit. a pew, by defendant's wife, and verdict for the plaintiff, one penny. At the trial, the plaintiff proved possession for thirty- six years, and notice to the defendant's wife not to sit 'there. The judge told the jury that after so long a possession as thirty-six years, they might presume a legal title in the plaintiff. The jury, without hesitation, found a verdict for the plaintiff. Motion for a new trial, on the ground that there was no evidence to [*285] be left to a jury ; because from the plaintiff's own *wit- nesses it appeared that the seat was common forty years ago. Lord Mansfield. — "The question in this case. is, whether there was any evidence at all to be left to the jury. The plaintiff's title to this pew is, that it has immemorially belonged to the house which he possessed. The defendant has set up a joint title in right of the house, enjoyed by himself and another per- son. The plaintiff, in support of his claim, proved that he was put in possession of this pew by the rector and churchwardens, thirty-six years ago. The question is, whether this act of the rector was to give possession under an old immemorial right, or in consequence of a new gift. There are strong reasons to induce us to suppose it was not a gift. They would not make a gift of that which other people claimed." And, per Ouriam, rule dis- charged."(l) But the error, in refusing to non-suit, will be cured by proof, Subsequently supplied, whether by plaintiff or defendant. As in Murray v. Judah.{2) Action in assumpsit. After the plaintiff had rested, a motion was made for a non-suit, which was over- ruled by the judge, and an exception taken. The case went on, and the requisite pvidence was afterwards supplied. Upon which the court observe — " The first point made on the part of the de- fendant is, that the- motion for a non-suit ought to have been granted, no demand of payment of the check at the bank having been then proved. It is a sufficient answer to this point, that a demand was subsequently proved. That such demand was neces- sary to entitle the plaintiff to recover from the drawer is well es- (1) Et iiide 2 Gill & Johns. 382. (2) 6 Oowen, 484. Chap. IX.] MISDIRECTION" OF THE JUDGE. 286 Improperly neglecting to non-suit. tablished. A check is, in form and effect a bill of exchange. It is not a direct promise by the drawer to pay money ; but it is an undertaking, on his part, that the drawee shall accept and pay ; and the drawer *is answerable only in the [*286] event of the failure of the drawee to pay." And this proof having been subsequently supplied, by the plaintiff, a new trial was denied. So in Lansing v. Van Alstyne.il) Plaintiff declared on a lease for rent due by the defendapt, as assignee. The defendant pleaded that all the estate of the assignor did not come to him by assignment. On the trial of the cause, the plaintiff- insisted' that he was entitled to recover without offering any proof, the pleadings admitting his right, and the presiding judge ruled ac- cordingly. It would appear, from the opinion of the court, the judge had been asked to non-suit the plaintiff, and refused, and the defendant afterwards supplied the evidence that was wanting, and per /Shua^e, Ch. J. — "The defendant takes issue upon one fact only, viz. : the assignment to himself This averment then is denied, and as to this, it seems to me plain, that the plaintiff must prove the facts. The judge erred, therefore, in refusing, to ■ non-suit the plaintiff. But it has often been decided, that al- though the judge err in refusing to non-suit a plaintiff, still, if the evidence which ought to have been given by the plaintiff, is given in the course of the trial, a new trial will not be granted fpr sufch error. That principle is applicable here, Proof that the defendant Is in possession of the demised premises, is prima facie evidence that he is assignee. The plaintiff ought to have given that proof if he did not choose to show the defendant as- signee in any other manner ; yet as the defendant himself proved that fact, a new trial must be denied." And in Jackson v. Leggeit.{2) Action in ejectment. At the trial, the plaintiff produced a record of incorporations of religious denominations in the city of New York, by one of which, a deed (1) 2 "Wendell, 561. (2) 1 Wendell, 377. 287 NEW TEIALS. [Chap. IX Improperly neglecting to nan-suit was given, conveying title to the premises in question. P287] The counse> for the defendant *insisted, that the record produced was not evidence of the fact of ineorporatiojj, and that the original certificate of incorporation ought to be produced, which objection was overruled. The plaintiff rested, and the defendant moved for a non-suit, which was denied, but afterwards supplied the testimony himself. The jury, under the charge of the judge, found a verdict for the plaintiff, subject to the opinion of the court. And ;per Savage, Ch. J. — " The first question is, whether the proper evidence was produced to prove the incorporation of the church. I am of opinion, the best evi^ dence was not produced. The defendant objected to the record; the original certificate was higher evidence, and should, have been produced, or its absence accounted for. As the cause stood when the plaintiff rested, he should have been non-suited; but if the defendant chooses to go into his defence, and supplies the evidence which the plaintiff ought to have produced, the reason for setting aside the verdict no longer eidsts. The defendant did so in this case ; he did not produce the certificate, but he proved by parol, without objection, that the congregation had Jong existed, and was incorporated anew in 1809. This is a sufficient answer to the objection to the plaintiff's evidence. It is an assertion by the defendant, that the fact was as stated by his witness." . And a new trial will not be granted, where, on motion for a non-suit, the judge declares the evidence to be sufficient to entitle the plaintiff to recover, and charges the jury to find for the plaintiff, if the evidence warrants the verdict. Thus, in Dean y. Hewit ;(1) action in assumpsit, on two promissory notes, by plain- tiff, as indorser. To a plea of the Statute of Limitations, the plain- tiff had replied a subsequent promise. After the plaintiff had rested, the defendant moved for a non-suit. Among [*288] other causes for that, *the promise being conditional, the plaintiff was bound to prove that the defendant was able to pay. The judge denied the motion for a non-suit, and (1) & Weudell, 26,1 Chap. IX.] MISDIRECTION OF THE JUDGE. 288 Erroneously submitting the is^ue. ruled that the testimony was sufficient to entitle the plaintiff to recover ; to which decision the defendant excepted. The judge charged the j ury to find a verdict for the plaintiff, for the amount of the notes, to which charge the defendant also excepted. The jury found for the plaintiff, and a motion was made to set aside the verdict. And per Many, J., delivering the opinion of the court. — " It is to be observed, that the testimony was not with- drawn from the j ury, but. was in fact submitted to them, although accompanied with a positive expression of opinion, that it was sufficient to establish the condition, which rendered the new promise effective. The judge viewed the testimony correctly.; it well warranted the verdict. We cannot, therefore, interfere with the finding of the jury on that ground. If the sufficiency of the evidence to establish the ability of the defendant to pay could be questioned, the party might have had reason to com- plain that the judge had thrown the weight of his decided opinion into the scale against him." VI. Erroneously submitting the issue. If the judge give in charge to the jury questions of law, or if, where the issue consists of a mixed question of law and fact, the judge submits the whole issue to the jury, a new trial will be granted. Questions of this kind are principally confined to negligence, usury, fraud and malicious prosecutions ; in which it is difficult, if not impracticable, to trace with precision the line of demarca- tion between the province of the court and the jury. To. all of these, the rule laid down in the Supreme Court, in Divver v. McLaughlin,{l) that upon a conceded state of' facts, the rest is a question for the court, *will apply. But what [*289] will constitute a conceded state of facts ; or how, where the facts are numerous and refined, and the statements contra" dictory, the case is to be distributed between the court and jury, (1) 2 "Wendell, 596. 289 NEW TEIALS. [Chap. IX. Erroneously submitting the issue. are vexed questions. And until subjected to general rules, these classes of cases must continue to furnish, as they have done, con- stant grounds of mistake and misdirection, and prove a fertile source of new trials. The question of fraud in the state of New York, has been greatly simplified by tecent decisions. The much agitated dis- tinction, being rather nominal than real, between fraud in law and fraud in fact, has been exploded, whether as it relates to sales or voluntary conveyances, and the whole at last resolved into its simple elements, fact coupled with intent, and assigned ' to its appropriate province, the jury. The overthrow of this most embarrassing distinction, was accomplished by the very elaborate and perspicuous decision of the court in Seward v. Jackson.{l) In Jackson y. Peck, that soon followed, the princi- ples deducible from the reasoning in the former case were recog- nized and applied by Sutherland, J., who, in delivering the opinion of the court, observed — " The distinction which had previously been supposed to exist between fraud in law and fraud in fact, or actual fraud, appears to have been entirely exploded." And adopting the language of Spencer, Senator, .in that case, pro- ceeds — "Strictly speaking, there is no such thing as fraud in law. Fraud or no fraud is and ever must be a fact. The evi- dence of it may be so strong as to be conclusive ; but still it is evidence, and as such must be submitted to a jury. No court can draw it against the finding of a jury." And applying the rule, he adds — " If the conveyance in question, therefore, were conceded to have been voluntary, the admission upon [*290] the trial, that *there was no fraud in fact, would seem to be sufficient to establish its validity ."(2) And upon this principle, the court decided the finding of the jury on the question of fraud, in this case, to have been conclusive. Again, in Jackson v. Timmerman,{^) whether a deed, executed (1) 8 Cowen, 406. (2) 4 Wendell, 300. (3) 7 Wendell, 436. Chap. IX.] MISDIEECTION OF .THE JUDGE. 290 Erroneously submitting the issue. by a parent to his child, in consideration of natural love and affection, is fraudulent or not, as against creditors, was held to be wholly a question of fact for a jury. The lessor of the plain- tiff claimed, as purchaser at a sheriff's sale, on a judgment against one Klock, in favor of one Haring. The defendant claimed by virtue of a deed, dated anterior to the judgment, made by Klock to his daughter, in consideration of natural love and affection. The j udge charged the jury, that the deed to the wife of the defendant being voluntary, was to be deemed in law fraudulent and void, as against Haring, who, at the time, was a creditor of the grantor, and as to the lessor of the plaintiff', who had suc- ceeded to his rights; and that the plaintiff was entitled to their verdict. The jury found accordingly. The defendant moved for a new trial. Sutherland, J., delivered the opinion of the court. — "The judge erred in deciding as a question of law, that the deed from Creorge Gr. Klock to his daughter, the wife of the defendant, was fraudulent and void against the then existing creditors of Klock, on the ground that it was voluntary. Whether fraudulent or not, was in this, as in all other casss, a questionof fact for the jury. There is no such thing as fraud in law, as distinguished from fraud in fact. What was formerly considered as fraud in law, or conclusive evidence of fraud, and to be so pronounced by the court, is now hai prima facie evidence, to be submitted to, and passed upon by the jury. And on this ground a new trial must be granted."(l) *These decisions have settled the rule as to the branch [*291] of fraud growing out of conveyances alleged to be vol- untary, and without consideration. The other class of frauds connected with sales, where the vendor continues in possession had been settled before, in Bissell v. J3opkins,{2) that possession' in the vendor was only prima facie evidence of fraud, and mit^ht be explained ; of the bona fides of which the jury, and not the court, wereto judge, examining the alleged fraudulent intent by the evidence. This was, in other words, saying, that, upon a (1) Et vide 8 Wendell, 9 ; 1 Dallas, 234 ; 2 Binn. 108, 495. (2) 3 Co wen, 166. 291 NEW TEIALS. [Ghap. IS. Erroneously submitting the issue. disclosure of facts explanatory of the transaction, the jury might by their verdict repel the presumption of law. The case came before the court on a special verdict, was ably argued, and upon a review of the cases, the much agitated question, how far pos- session by the vendor shall be evidence of fraud as to creditors, was put in as definite and enduring a position as it is probable it ever can be. Savage, Ch. J., delivered the opinion of the court. "I do not think it necessary to enter upon a minute review of the cases. Kent, Ch. J., has examined many of them, in Sturte- vant V. BaUard,{l) and comes to the conclusion that a voluntary sale of chattels, with an agreement, either in or out of the deed, that the vendor may keep possession, is, except in special cases, and for special reasons to be shown to and approved of by the court, fraudulent and void as against creditors. The learned judge, no doubt, intended to say here, as in Barrpw v. Paxton,{^) that possession continuing in the vendor is only prima facie evi-, dence of fraud, and may be explained." The subject was reviewed, and the former decision re-estab- lished in Hall V. Tuttle.{3) Action in replevin of a sloop, [*292] which was taken by the defendant, as sheriff, on *afi execution against one Hatch. The question at the trial was, whether the title wa's in the defendant or in Hatch. It had been agreed, that Hall should become the surety of Hatch in the purchase of a sloop, to be the property of Hall, and under his control, until Hatch should pay the purchase-money, when and not before, it should become the property of Hatch ; and Hatch took a bill of sale of the vessel, in his own name, and took pos- session thereof, and subsequently assigned the bill of sale to Hall, retaining the possession of the vessel, the money for which Hall had become bound, remaining unpaid by Hatch, and the original agreement as to the eventual ownership, continued. The judge charged the jury, that the assignment of the bill of sale vested the title to the vessel in Hall ; that being absolute in its terms, (1) 9 Johns. Eep. 338. (2) 5 Johns. Rep. 261. (3) 8 ■Wendell, 376. OflAP. IX.] MISDIRECTION OF THE JUDGE. 292 Erroneously submitting the issue. the question was presented, -whether the possession of the vessel by Hatch, subsequent to the assignment, did not avoid the assign- ment on the ground of legal fraud— -that the continuance of poS- session was susceptible of explanation— that there was no fraud in law, and that whether there was fraud' in fact, was a question for the jury. The jury found for the plaintiff, with six cents damages and six cents costs. The defendant moved for a new trial, which was denied. Savage, Oh. J., delivered the opinion of the court. Having noticed the finding of the jury, repelling the fraud in fact, and repeated the language of Mr. Spencer, Sen- ator, in Seward v. Jachson,{\.) " that strictly speaking, there is no such thing as fraud in law ; fraud or no fraud is, and ever must be, a fact ; the evidence of it may be so strong as to be conclu' sive ; but still it is evidence, and as such must be submitted to a jury, no court can draw it against the finding of a jury." The learned judge proceeds — " It has often been said by this court, that when there is no dispute about facts, fraud *is [*293] a question of law ; whether any given transaction be fraudulent or not, is a question of law ; the court prono"Unce the intention as inferable from the facts and circumstances. The question is generally a mixed one of law and fact. The court declare the law to the jury, and they, under the instruction of the court, find the fact and inient. If the instruction of the court to the jury in this case was correct, the verdict ought not to be disturbed. The judge stated to the jury, that the transaction between Hatch and Hall amounted to a mortgage, and therefore the possession in the mortgagor was consistent with the rules of law; that possession by Hatch was susceptible of explanation, and was not fraudulent in law. The rule, as I understand it, is, that possession by the vendor or mortgagor, after forfeiture, is prima fack evidence of fraud, but that such possession may be explained, and if the transaction be shown to have been upoil sufficient consideration, and lonafide, that is, without any intent to delay, hinder, or defraud creditors or others, then the conveys ance is valid, otherwise not."(2) (1) 8 Cowen, 435. (2) Ei vide 1 Burr, 4T4 j 2 Burr, 937, 293 NEW TEIALS. [Chap. IX. Erroneously submitting the issue. The principle Las been reiterated in the recent case of Collins V. £riish.{l) Action of trespass. On the trial, it appeared the vendor had been permitted to remain in possession three months, and had given no explanation. The judge charged the jury, that the only question was as to the fairness of the sale to the plain- tiff; that if that was a fair and honest transaction, the property- belonged to the plaintiff; if otherwise, the creditors of Ayres, the vendor, had a right to take and hold it ; but to entitle them to do so, it must be made to appear, that the sale was fraudulent, which was a question of fact for the jury. The jury found for the plaintiff. The defendants moved for a new trial. [*294] By the Court, Sutherland, J.—" The judge fell into *an error, in his charge to the jury, the property not having been taken possession of by the vendee, but having been left in the possession of Ayres, the vendor, from November, 1829, to March or April, 1830, the sale was prima facie fraudulent, as against the creditors of Ayres ; and it was incumbent upon the plaintiff Collins, .to repel that presumption, by showing some satisfactory reason for his omission to take it into his possession. It is not sufficient to show that the sale was upon a valuable con- sideration ; some reason must be shown which the court can ap- prove, for leaving the goods in the possession of the vendor; none was shown by the plaintiff. Indeed, the judge ruled that it was for the defendants to prove the fraud. In this he erred ; they proved all that was necessary in their case in the first in- staijce, when they showed that the possession of the goods was not changed. It was for the plaintiff to show an excuse for it."(2) New trial granted. From a review of these cases, it is clear, that should a judge on a question of fraud, now charge a jury to find merely whether the conveyance were voluntary and without consideration, or goods after a sale remained in possession of the vendor, reserving to himself the right to pronounce the law conclusively upon such a finding, the verdict would be set aside, and a new trial granted. (1) 9 "Wendell, 198. (2) Etvide 3 Cowen, 189, in notis. Chap. IX.] MISDIRECTION OP THE JUDGE. 294 Erroneously submitting the issue. Actions for malicious prosecutions, and the question of prob- able cause, have given rise to innumerable applications for new trials, being mixed questions of law and fact. It has been well settled, that probable cause is a question of law to be decided by the court, upon the truth of a given state of facts, as found by the jury. The principle laid down in Johnstone v. Sut- ton,(l) has never been questioned. *" The question of [*295] probable cause, is a mixed proposition of law and fact. Whether the circumstances alleged to show it probable, or not probable, are true and existed, is a matter of fact ; but whether, supposing them true, they amount to a probable cause, is a ques- tion of law." If the judge, therefore, leave the question of probable cause to the jury, the verdict will be set iaside, and a new trial granted. Thus in McCormich v. Sisson.{2) Case for a malicious prose- cution. The judge submitted to the jury upon the evidence, whether there was probable cause, and verdict for the plaintiff. The defendant moved for a new trial, and one of the grpunds taken was, that the judge should not have submitted the ques- tion of probable cause to the jury, it being a mixed question of law and fact. And per Wbodworth, J., who pronounced the opin- ion of the court. — "The judge erred in submitting to the jury the question whether there was probable cause. "Whether the circumstances alleged are true, is a matter of fact; if true, whe- ther they amount to probable cause, is a question of law. The verdict must be set aside and a new trial granted." And in Panghurn v. Bull,{Z) in error. Action for malicious prosecution. Plea, not guilty. The court charged the jurv, if from the testimony before them, they should be of opinion that the prosecutions before the justice were malicious, and without probable cause, and that the defendant knew the facts to be so before and at the time of such prosecutions, they ought to find (1) .1 Term Rep. 493. (2) 7 Cowen, 715. (3) 1 ■Wendell, 345. NEW TKIALS. [Chap. IX' Erroneously submitting ttie Issue. damages for the plaintiff, otherwise, they shouldfind the defend- ant not guilty. The defendant excepted to the charge, and the jury found a verdict for the plaintiff. Several points were taken, but the principal one urged on the argument was, that [*296] the question *of probable cause was erroneously sub' mitted to the jury. By the Court, Woodworth, J. — > " The question of probable cause, is a mixed question of law and fact. Whether the circumstances alleged, to show it probable or not probable, are true, and existed, is a matter of fact ; but whether, supposing them true, they amount to a probable cause, is a question of law. The court below erred in submitting both the law and the fact to the jury. This was necessarily the con* sequenca of the charge." It is deserving of notice, that in this case the judgment was affirmed, upon the ground, that if, upon looking into the case, the court find justice has been done, though the jury may have erred in assuming to pass upon the law, in pursuance of an erroneous charge, they will not reverse the judgment. In. Masien v. Deyo,{l) the plaintiff counted upon slander and malicious prosecution. The judge charged, that as to the count for malicious prosecution, he was inclined to believe there was eyi'. dence enough given of probable cause to protect the defendant, but that it was the province of the jury to decide upon it under the evidence given,- and if there was not sufficient evidence, to take it into consideration in their verdict. Verdict for plaintiff, and motion for a new trial, on the ground of misdirection. Mar' cy, J., in delivering the opinion of the court, treats the principle so as", at first sight, to induce a belief that it was the intention of the court to change or modify the rule, but, in his application of it, the learned judge's views do not appear to materially differ with the decisions cited above. After reviewing the authorities, he proceeds' — " Where the circumstances relied on as evidence of probable cause are admitted by the pleadings, it belongs to the court to pronounce upon them ; and where' these circum' stances are clearly established by uncontroverted testimony, (1) 2 "Wendell, 424. Chap. IX.] MISDIEEOTION OF THE JUDGE. 297 Erroneously, submitting the issue. or bj the conce.ssion *of the parties, and they fally es- [*297] tablish a probable cause, the court may refuse to submit the cause to the jury, and order the plaiptiff to be non-suited." Applying this principle, the learned judge adds — "I think the judge erred in not giving the defendant the benefit of his expo- sition to the jury, of the law relative to what constituted proba- ble cause, in an action for a malicious prosecution. He should- not have taken the cause from the jury, if there was the least doubt as to the existence of the circumstances alleged, as the probable ground of the criminal proceedings agai,nst the plain- tiff; but he ought to have instructed them as to the law involved in the question, and as to what constituted a legal excuse for the defendant, and also whether the facts relied on in the defence, on the supposition tha;t they should be found true by them, made out a probable cause." And the rule equally applies to all cases where probable cause forms the gist of the action. Thus, in actions of trespass and false imprisonment, the question of reasonable and probable cause,' if left to the jury, will vitiate the verdict. Hill and wife V. Yates.il) Trespass for assault and imprisonment. Plea, not guilty, and justification. Gfarrow, B., after the testimony was closed, told the jury, that if the defendants had shown that they had any reasonable or probable cause, they were entitled to a verdict. The jury found a verdict for the defendants. Bur- rough, ,T. — " What the judge left to the jury was, nut whether they suspected, but whether they had reasonable and probable cause, which ought never to be left to the' jury." Dallas, J. — " Eeasonable and probable cause being matter of law, was matter on which the learned judge might have decided ; but it ought not to have been left to the jury, and they ought not to have been asked whether they thought there was reasonable and probable cause. I think there must be a new *trial, in order that [*298] the judge may distinctly say, whether he holds that (1) 8 Taunt 182. Vol. I. 20 298 mw TKIALS. [CHAf. IX, Erroneously submitting tlie issuer there is ground for reasonable and probable cause, and pronounce his direction thereon.''(l) ' It seems to follow, as a necessary infei^nce, that, probable cause being a mixed question of law and fact, and a rule of uni- versal applicationy if on a conceded state of facts, the judge as- sume to dispose of the whole case, and non-suit the plaintiff, the court will refuse a new triaL In Blackford v. Dod.{2) Action by an attorney for malicious'' ly, and without probable cause, indicting him for sending a threatening letter, It appeared, that his clients having inquired of the defendants as to the truth of a representation made by a person who had. offered to buy goods of them, the defendants re- plied, that they would not be responsible , for the price of the goods, but believed the person had the employment he repre- sented. ' The goods were then supplied to him. His representa- tion turned out to be false, aud the plaintiff, by direction of his clients, wrote a letter to the defendants, demanding payment of them, of the price of the goods obtained from his clients through the defendants* representation, and stating that the circumstances made it incumbent on his clients to bring the matter under the notice of the public, if the defendants did not immediately dis- charge the amount, and that he had instructions to that effect. The defendants were then summoned' before a magistrate, to an- swer a charge of obtaining goods under false pretences. The plaintiff served the summons, and attended with his clients, and the complaint was dismissed. The defendants indicted the plaintiff for sending a threatening letter, and he was acqtiittedj He then brought this action, and the judge, without leaving any question to the jury, decided that there was reasonable" [*299] *and probable cause for preferring the indictment, and non-suited the plaintiff. On motion for a new trial, the opinion of Lord Tenterden, Oh. J,, with whom the other judges con-' (1) Bit Vide \ Wils. 232; 1 Greenl. 136; 16 Mass, Eep. 243; 3 Wash, C.Gi Kep. 82, (2) 2 Barn, & Adol. 119, Chap. I3t.] MISDIRECTION OF THE JUDGE. 299 Erroneously submitting the issue. curred, unanimously, in denying the motion, presents the general rule in an exceedingly clear point of view. " The first question," says his lordship, " ;s, whether I ought, under the circumstances of this case, to have decided that the defendants had or had not rea- sonable or probable cause for preferring the indictment against the plaintiff, or to have left that wholly or in part to the jury. I have considered the correct rule to be this : if there be any fact in dispute between the parties, the judge should leave that ques- tion to them, telling them, if they should find in one way as to that fact, then, in his opinion, there was no probable cause, and their verdict should be for the plaintiff; if they should find in the other, then there was, and their verdict should be for the de- fendant. There being, therefore, no fact in dispute, it becomes a pure question of law, whether, under the circumstances of this case, the defendants had reasonable or probable cause for prefer- ring the indictment against the plaintiff."(l) Motion deTiied. With this agrees Qortbn v. De Angelis,{2) which was an action for malicious prosecution. After the plaintiff had rested, the defendant moved for a non-suit, on the ground, that no evidence of want of probable cause had been given. The judge decided, that on the evidence before him, the question of want of probable cause was a question of law, and that in his opinion, the plaintiff had failed to establish this essential ground of his action, and directed a non-suit to be entered, which the plaintiff now moved to set aside. By the Court, Marcy, J. — "It is said that probable cause is a mixed question of fact and law, and the facts in this case should have been submitted to *the jury, for [*300] them to infer a want of probable cause. What is meant by the expression that probable cause is a mixed question, and when it is proper to submit it to the jury to pass on, is explained in Masten v. Deyo.{)i) If the facts, which are adduced as proof of a want of probable cause, are controverted, if conflict- ing testimony is to be weighed, or if the credibility of witnesses ^ is to be passed on, the question of probable cause should go to (1) Et Vide Ravenga v. Macintosh, 2 Barn, k Ores. 693. (2) 6 Wendell, 418. <3) Suipra, p. 296. 800 NEW TRIALS. [CkAP. IX; Erroneously submitting tlie issue. ' tte jury, with proper instructions as to the law ; but where there is no dispute about the facts, it is the duty of the court, on the trial, to apply the law to them. In this case, there was no contest about thefacts, noconflict in the testinnony, no impeachment of the witnesses. We cannot therefore say the judge erred in assuming to himself to pronounce upon the legal effect of the evidence."(l) But the motive of the defendant is open to the examination of the jury as a question of fact, and the giving it in charge to the jury will not be such a misdirection as to induce the court to grant a new trial. In Taylor v. Williams, (^) in error. Action for maliciously in- dicting the plaintiff for perjury. The judge, in his direction, told the jury, that if the defendant did not appear at the trial as a witness, from a consciousness that he had no evidence to give which would support the indictment, then there was a want of probable cause, and they should find for the plaintiff; but if his non-appearance did not proceed on that ground, then there was no proof of want of probable cause, and. they should find for the defendant. The defendant offered no evidence, and the jury found for the plaintiff J a bill of exceptions was taken, and the objection stated to the summing up was, that the judge himself [*301] ought to have determined upon the facts whether *lhere was probable cause, without leaving any question to the jury. Lord Tenterden, Ch. J. — " The motives of parties can only be ascertained by inference drawn from facts. The want of probable cause is in some degre^ a negative, and the plaintiff can only be called upon to give some, (as Mr. J. Le Blanc, a most accurate judge, says,) slight evidence of such want. As then, slight evidence will do, why might not the circumstances of this case be left to the jury as grounds for a conclusion of fact? What conclusion they would draw is another thing. The ques- > tion of probable cause is, indeed, a mixed question of fact and of law, and the rule as expressed in Johnstone v. /Suilo7i,{3yis correct. (1) Vide Burt v. Place, 4. Wendell, 691, (2) 2 Barn. & Adol. 845. (3) 1 Term Rep. 493. Ghap. IX.] MISDIREGTIOlSr OF THE JUDGE. 301 Verdict not disturbed where justice has been done. The judge is to give his opiaion on the law, and to leave the jury- to determine the facts, which include the motives of the parties'; and where he tells them, if they think the prosecutor had a cer- tain motive for his conduct, then there was probable cause ; but if he had not that motive, then there was no probable cause, I think such a summing up does properly separate the law from the fact, and is conformable to the rule." The other judges concurring, the judgment was affirmed. (1) VII. Verdict not disturhed where justice has been done. In ordinary cases, notwithstanding a misdirection, if the court see that justice has been done, and that a new trial ought to pro- duce the same result, a new trial will not be granted. Thus in Smit/i V. Page,{2) in ejectment. The plaintiff was a mortgagee and claimed by surrender, whereas the land was not copyhold; and the defendant claimed only by a voluntary conveyance. The Verdict was for the plaintiff, and the court would not set it aside and grant a new trial against the honesty of the cause.(3) *In Edmondson v. MucheU.{4:) Action of assault and [*302] battery, for beating the plaintiff's niece, per quod ser- vitium amisit. At the assizes. Another cause stood next for trial, brought by the niece against the same defendant, for the same assault. The counsel for the plaintiff declared their inten- tion of not trying that cause, and withdrew the record. The defendant's counsel contended that the jury could only give damages in this cause for the loss of service. The learned judge thought the aunt stood in hco parentis: and, as in actions brought by a father for deflowering his daughter, whereby he lost her service, large damages had been often given ; he thought this case bore an analogy to that; and that the jury had a right to give such damages as they thought just. Verdict for the plaintiff, and motion for a new trial, on the ground of (1) Et vide Nicholson v. CogMll, 4 Barn. & Ores. 21. (2) 2 Salk. 644. (3) M vide Deerly v. Dutchess of Matsarme, 2 Salk. 646. (4) 2 Term Rep. i. 302 NEW TRIALS. [Chap. IX. Verdict not disturbed wliere justice tias been done. misdirection. Ashhurst, J. — "An application for a new trial, is an application to the discretion of the court, who ought to exer- cise that discretion in such a manner as will best answer the ends of justice. It does not require much penetration to see what are the ends of justice, in the present case. It is certain that the girl herself ought to have some satisfaction for the injury she received ; and as she consents not to try her action, the ques- tion is whether justice has not already been done; for it was ad- mitted at the bar, that if the injury she sustained could be taken into consideration, in this action brought by the aunt, the da- mages which the jury have given are by no means excessive. Then there does not appear to be any ground for the defendant to call on the discretion of the court to send this cause down to be retried, on a technical objection in point of law. And all the judges are unanimously of opinion, that, as complete and sub- stantial justice has been done, there is no reason to grant a new trial." ft [*303] *So in Cox v, Kitchin.{l) Assumpsit. Plea', general issue. It appeared at the trial, that the work was done for the defendant, living separate and apart from her husband, and in a state of adultery. The judge directed the jury, in case they should be of opinion that the defendant was living in a state of open adultery, at the time of the contract made, to find a ver- dict for the plaintiff; for as the husband, under those circum- stances, would not then be liable, he thought that the wife must be liable herself. A verdict was accordingly found for the plain- tiff. Motion for a new trial, on the- ground of misdirection. Buller, J. — " This case comes before us without any point saved, and therefore we must look to the general justice of the case be- fore we interpose by granting a new trial ; nor is it necessary that we should nicely examine whether the defendant be strictly liable in point of law. The leading reported decision, on the subject of granting new trials, is that of the Dutchess of Maza- rine.i^l) There can be no doubt but that was the case of a ver- (1) 1 Bob. & Pul. 338, and in noiis. (2) 2 Balk. 646. Chap. IX.] MISDIRECTION OF THE JUDGE. 303 Verdict not disturbed where justice has been done. diet against law ; yet the court said, that as the justice and con- science of the case were clearly with the verdict, they, would not interpose. Here it is perfectly clear, that the husband was not liable. Whether the wife be strictly liable or not, it appears she has lived as a feme sole, that she has represented herself as such, and has obtained credit under that character. The defence, therefore, is«dishonest and unconscientious, and on that ground I think that the court ought not to interpose." The other judges concurring, the defendant took nothing by her motion.(l) In Brazier v. Olapp.{2) Upon a policy of insurance on a ship and cargo. The only questions submitted by the charge of the judge to the jury, were, whether the *defendant [*304] deviated from the course specified in the policy, and if 80, whether it was from necessity. There was a verdict for the defendant, No objection was made to the charge at the time; but on the sitting of the court by adjournment, about a fortnight %,fter the trial of the cause, a motion was made by the plaintiff's counsel for a new trial, for a misdirection to the jury. Sedgwkh J., delivering the opinion of the court, after commenting fully on the testimony, concludes — "Even if fault could justly be found with the judge's direction, I do not think that in this case a new trial ought to be granted. A new trial ought never to be granted, when the court is perfectly satisfied that on a second trial, the same verdict must by law be given, although there might have been some mistake in the judge at the trial."(3) So in Semington v. Cbngdon.{4:) Action for a libel. Plea, general issue. At the trial, the defendants offered and read to the jury several depositions, stating what the plaintiff had sworn to before certain referees, and that what he had sworn to was false. The judge instructed the jury, that a complaint made against a member of a church, in the way of church discipline was excusable, if there was probable cause for making it ; that (1) Vide 6 Taunt. 336. (2) 5 Mass. Rep. 1. (3) Vide 1 Greenl. 442. (4) 2 Pick, 310. 304 NEW TEIALS. [Chap. IX. Verdiutnot disturbed where jualioe has been done. the decision of the church sastaining the complaint was prima facie evid^ce of probable cause ; that if there was probable cause, it was incumbent on the plaintiff to show express malice, and that he had shown no evidence of that. The jury having found a verdict for the defendants, the plaintiff filed his excep- tions to the instructions of the judge. By the Court.^—" It is true, one of the objections to the verdict is, that the^udge stated to the jury that there was no evidence of express malice. This cannot be complained of, unless it is shown that there was evi- dence of that nature. We must suppose the plaintiff's [*305] counsel have made the best of their case in *the excep- tions drawn up by themselves, and as these contain no evidence of malice, we must suppose there was no such evidence in the case. Had there been competent evidence of malice, al- though in the opinion of the judge, not of much weight, so that the declaration that there was no evidence might be construed into an opinion of the effect of such as was offered, this might be incorrect. But even upon that supposition, if the evidenc^ should now appear to us to be slight, a new trial, in a cause of this nature, would not be granted for that reason alone ; for it would be idle to send a cause to a new trial upon evidence which, if received, would not be sufficient to support a verdict."(l) And in Aslop v. Magill.i^l) Assumpsit for money had and re- ceived. Plea, general issue. The defendants became entitled to the proceeds of a certain brig and cargo, awarded to them by commissioners, under the treaty with Great Britain, as to prizes. The defendants had been allowed by the commissioners $257 16, for the board and expenses of the plaintiff, as their agent, but which they had disallowed on his own account. The judge, directed the jury, that the verdict ought to be in favor of the defendants, unless the jury should find that the sum claimed had been particularly awarded to the plaintiff by the commissioners, and receiyed by the defendants. The jury found a verdict for the defendants, and the plaintiff moved for- a new trial, which (1) Et vide Ibid. Ii5. (2) 4 Day, 42. Chap. IX.] MISDIRECTION OF THE JUDGE. 305 Verdict not disturbed where justice liaa been done. motion was reserved for the consideration pf the nine judges. By the Court, after recapitulating the facts. — " Whether the charge of the court was perfectly correct in point of law, it is unneces- sary to determine. Justice is done, and a new trial ought not to be granted." So, also, when the sole eflfect of correcting the misdirection would be to settle the question of costs, as in Slate of Cvn- necticut v. Tudor.{\) Information in the nature of *quo [*S06] warranto, against the defendant. It appeared on the trial, that the term of office of the defendant had expired, and a new election had taken place. By the Court, Ingersoll, J. — " Though my opinion is, that the charge, in the present ca'se, was incorrect, and the verdict wrong, yet I would not advise a new trial of the cause. The relator is not now kept out of any office, nor does the defendant now hold the office of first director, to deprive him of which the prosecution was commenced. A new annual election of officers has taken place, and it is but a matter of costs between the litigating' parties, that a new trial would settle. This object is not of sufficient magnitude to demand a new trial." In Eoyt V. I>imon.{2) Action of disseisin. Plea, general issue. The defendant claimed by both a mortgage and an abso- lute deed, from one Nichols, against whom the plaintiff had issued an execution. The judge instructed the jury, that the only material fact for them to find was, whether the mortgage deed from Nichols to one Norton, was fraudulent. Verdict for the defendant. The plaintiff moved for a new trial, on the ground of a .misdirection. Baldwin, J., after recapitulating the evidence and applying the law, concludes — "If this reasoning is correct, thq plaintiff' has no reason to complain, that the only question submitted to the jury, was, the validity of the mort- gage deed ; for, having established that, their verdict must have been for the defendant, whether the absolute deed was fraudulent or not." And new trial refused. (1) 5 Bay, 329. (2) 5 Day, 479. 806 NEW TRIALS. [Chip. IX. Verdict not disturbed where justice has been done. The sarfie rule has been held to apply in all cases of a frivolous or litigious character, and where it is manifest the parties contenfl from motives of pride or vindictiveness, rather than of justice. Ihusin Hyatt r. Wood.{]) Action of assault and battery. [*307] The plaintiff and the defendant *were in a meadow, which each claimed as his own, and each ordered the other to go out, when the defendant struck the plaintiff with a stick, and a scuffle enstied. The judge charged the jury, that if, at the time of the assault and battery, the defendant had not only the right of possession, but the actual possession of the lot, on which the assault was committed, the defendant was justified in using as much force as was necessary to prevent the plaintiff from trespassing upon him, and if the force or violence used was no more than was necessary for that purpose, they ought to find a verdict for the defendant. Verdict for the defendant, and motion to set it aside, on the ground of misdirection. Per Curiam. — " It has frequently been decided in this court, that in cases where the damages are trifling, a new trial will not be granted, after a ver- dict for the defendant, merely to give the plaintiff an opportu- nity to recover nominal damages, and when no end of justice is to be attained by it, though there may have been a mfedirection of the judge. The principle stated by the judge in this case was incorrect, but the action is of too little importance to grant a new trial for that reason."(2) And in Fleming v. GilhertSB) Debt on bond. Plea, general issue and notice of special matter. The jury, under the direction of the judge, found a verdict for the plaintiff of six cents. The judge had ruled out evidence, as a defence, but suffered it to go to the jury, in mitigation of damages. By the Court. — "There was a misdirection at the trial, in overruling the testinjony offered as a defence to the suit, but as the recovery is but nominal, and the only contest is now respecting the costs of the suit, it cannot be advisable, that there should be a new trial, merely to give the (1) 3 Johns. Eep. 239. (2) Vide 1 Johns. Cas. 250 ; 6 Johns. Eep. ISt. (3) 3 Johns. Bep. 628. Chap. IX.] MISDIRECTION OF THE JUDGE. 308 Verdict not disturbed where justice haa been done. defendant an opportunity to obtain, by a verdict, the *costs already accrued, together with the costs of such [*308] new trial. It appears, therefore, to be proper that the motion for a new trial should be granted, with this proviso, that the plaintiff may elect by the first day of the next term to dis-* continue without costs."(l) So, in a libel case, Dole v. Lyon.{2) The judge charged, among other things, that the defendant had been put on his guard against printing the libel, by the note of the author prefixed, stating that another printer had refused to publish it ; and that the jury might presume from this circumstance, that the defendant had been backed by the author or some other persons. The jury found a verdict for the plaintiff. A motion was made to set it aside, and for a new trial, and one of the grounds urged was the misdirec- tion of the judge. Upon which, Kent, Oh. J., delivering the opinion of the court, observes — "The charge to the jury has been deemed erroneous, because it was observed, that the jury might presume from the circumstances, that the defendant had been backed by the author or some other, person. The circum- stance from which this might have been inferred, was the note to the defendant, with which the libel was introduced, which stated the libel had been refused a place in another gazette, put- ting him on his guard. The court are bound, on this subject, to judge how far the observation was material, as well as erroneous. It was said by Mr. Justice Butler,(B) that though the judge may have made some little mistake in his directions to the jury, yet if justice be done, the court ought not to interfere. The court are always bound, in the exercise of a sound discretion on the subject of new trials, to determine how far the observation of the judge was material, and affected the merits of the case. Otherwise, as this court observed, *in Fleming v. [*309] &ilbert,{4:) there would be no end to new trials, and (1) Vide Ibid, 533, in noiis. (2) 10 Johna. Rep. 447. (3) Estwick V. CaiUand, 6 Term Bdp. 425. (4) 3 Johns. Bep. 628. 809 • NEW TEIALS. [Chap. IX. Verdict not disturbed where justice has been done. the remedy would be worse than the disease." New trial re- fused. The principle was strongly tested in the recent case of Wood- .heck V. Keller.il) Slander, for accusing the plaintiff of perjury. Plea, general issue and notice of justification. The judge charged the jury, "that the two witnesses for the defendant, being con- tradicted by four witnesses on the part of the plaintiff, as to what the plaintiff did swear, the former were not to be believed. Also, that to sustain the justification, the defendant must prove the perjury by two witnesses; or by one witness, and circumstances tantamount to another witness. Verdict for the plaintiff; and motion for a new trial for the misdirection of the judge. Suther- land, J., who delivered the opinion of the court, sustained the judge upon the part of his charge as to the justification. Upon the other, he observed — "The judge ought to have left it to the jury to decide between the witnesses. But if the jury ought to have come to the same conclusion, the strong charge of the judge in an action of this description, is not sufBcient cause for granting a new trial. On the whole, I am of opinion that a new trial should be denied. "(2) The same rule applies in Pennsylvania, as in Allen v. Saw- yer.(2>) Kennedy, J., observed — "'It has been long since well settled by numerous authorities, that when the plaintiff has only entitled himself to claim nominal damages, and the jury find a verdict for the defendant, that the court will not set it aside and grant a new trial, unless the question of right or title to property of value should be involved in the suit, and affected by [*310] the verdict. Suits are *not to be encouraged for the purpose of gratifying a mere litigious disposition, but to promote justice, by restoring parties to the enjoyment of those rights of which they have been deprived, and redressing those real injuries which they shall have sustained. It would be even (1) 6 Oowen, 118. (2) Vide Feeder v. Whipple, 8 Johns. Rep. 369; Beers y. Soot, 9 Johns. Kep. 264. (3) 2 Penn. Rep. 325. CfiAP. IX.] MISDIRECTION OF THE JUDGE. 310 • Giving weiglit to particular evidence. an injury, or at least attended with a loss to the plaintiff, to grant him a new trial when the jury have found a verdict against him in a case in which, at most, he is only entitled to recover nominal damages." The same principle has also been sanctioned in Vermont, in Bullock v. Beach,{l) and in Kentucky, in Smith v. Surber,(^2,) and Hunter v. Dickerson.{3) YIII. Oiving weight to particular evidence. Whether, and how far, the judges may transcend the limits as- signed them, on questions of law, and express their opinions on the truth or weight of the testimony in their charge to the jury, has not been reduced to any fixed rule. It would appear from the practice in England, and in this country, in most, if not all of the states, a large discretion is allowed, and unless abused to the subversion of justice, the courts are disinclined to interfere. In other words, when the judge interposes his opinion strongly on the facts, and it is to be fairly presumed the influence of his opinion has misled the jury, and injustice follows, the verdict will be set aside. The general rule laid down in the English courts, and promulgated in a recent case, is, that the due degree of weight to be given by a.judge directing the jury to particular evidence, which has been properly admitted, must be left to his own dis- cretion, and his direction in that respect will not be revised by the court above. The case will best illustrate the rule. * The Attorney General v.Good.{4:) Information against *[3H] defendant for having customable goods with guilty knowledge. The declaration of the wife, denying the husband to be at home when search was made, and which was untrue, was permitted to be given in evidence ; and the chief baron, in his (1) 3 Vermont Hep. 73. (2) 2 Marsh. Kent. Kep. 460. (3) 2 Marsh. Kent. Eep. 546. (4J 1 M'Clell. & Young, 286. 811 NEW TEIALS. [Chap. IX. Giving weight to particular evidence, address, directed their attention to it as a circumstance tending to prove guilty knowledge. The jury retired to consider of their verdict, and after an absence of nearly two hours, returned, and asked the court whether they were to consider the conversation of the wife, as received in evidence. The learned j udge answered in the affirmative, upon which they found a verdict for the crown. On motion for a new trial, it was contended that the judge ought not to have directed the jury to the wife's declara- tion as a proof of guilty knowledge. But the court unanimous- ly discharged the rule, and per JIullock, B. — " I think that the evidence was admissible, and ought to have been left to the jury. If that be so, and the case was sent down again for trial, it would be again admitted ; therefore the only ground remaining is, that too great effect was given to the evidence in the learned judge's direction. I apprehend that that would be a new ground for granting another trial, and would open a door to applications for that purpose to an extent incalculable. I am at a loss to know by what rule, the precise quantum of force, which should be attached by a judge to a particular piece of evidence, on a trial, is to be measured." Eule discharged. But if the judge abuse the discretion reposed in him by the law, and not contented with expressing his opinion, undertakes to dictate to the jury on questions of fact, ihe verdict will beset aside and a new trial granted ; Thus, In The New- York Fire Insurance Company v. Walden^il) in error, from the Supreme Court, The ground of mis- [*312] *direction of the judge at the trial, and the reasons for reversal, are contained in the Chancellor's opinion which prevailed. The Chancellor. — "The question is, whether there was error in the charge which the learned judge delivered to the jury. This charge was, that the several matters given in evidence on the part of the plaintiffs, were, in his opinion, con- clusive evidence of the barratry of the master of the vessel on the voyage, and that the plaintiffs were not bouad to communi- (1) 12 Jolins. Rep, 513. Chap. IX.] MISDIRECTION 01? THE JUDGE. 312 Giving weiglitto particular evidence. cate or disclose to the defendants, any of the letters, matters or circumstances, which were at the time of the insurance in their possession, relative to the master ; and thkt the matters given in evidence, on the part of the defendants, were not sufficient to maintain the issue on their part, or to bar the action of t]\e plaintiffs; and that if the jury agreed with him in opinion, they ought to find a verdict for the plaintiffs, and with that charge he left the matter to the jury." After a very learned opinion as to the information that ought to have been disclosed by the answers, and the materiality of such a disclosure, as an important fact in the cause that belonged to the province of the jury, the Chancel- lor returns to the judge's charge, and having established the position that it must have been regarded as a direction in point of law, he proceeds^" All that I feel it my duty to contend for is, that whenever the judge delivers his opinion to the jury on a matter of fact, it shall be delivered as mere opinion, aed not as direction, and that the jury shall be left to understand, clearly, that they are to decide the fact, upon their own view of the evidence, and that the judge interposes his opinion only to aid them in cases of difficulty, or to inspire them with confidence in cases of doubt. It is for this principle that I feel solicitous, and not for anything that may have taken place in this particular cause. The case before us is comparatively of trifling conse^ quence ; but the distinction I have suggested goes to the very root and essence of trial by jury, and may, indeed, become of inestimable value, and perha,ps, *of perilous [*813} struggle, when the present generation shall have ceased to exist." There was judgment of reversal, on the ground that the jury had been prevented from exercising their judgment on the whole of the question.(l) * So in the Utica Insurance Company v. Badger.{^) It was held, that proof of handwriting of the iudorser of a note, going no far- ther than that the witness believed it to be the handwritino- of the indorser, founded upon the facts of having seen him write (1) Vide Davies v. Pierce, 2 Term Rep. 53. (2) 3 Wendell, 102. 813 NEW TEIALS. [CfiAP. IX. Giving weight to particular evidence. his name two months before the trial, and also having seen him write five years before the trial, stating at the same time tbat he would not have been able to have testified to the handwriting from the fact alone of having seen him write five years ago, and expressing doubts as to a part of the signature, would scarcely be sufficient to uphold a verdict, if the question as to its suffi- ciency had been properly submitted to a jury. It was also held, that where a judge, upon such evidence, in an action by the indorsees of a promissory note, charged the jury that the plain- tiffs were entitled to a verdict, instead of leaving it to them, under" proper instructions, to say whether the indorsement was or was • not the handwriting of the party, a new trial must be granted. And in Massachusetts, in a case where the judge, in his charge to the jury, had pronounced decisively upon the insufficiency of the testirrfcny ; Aylwin v. Ulmer.{l) Case against the defendant, as sheriff, for a false return. After the plaintiff had rested, the chief justice of the Common Pleas instructed the jury, that the same was not, upon the whole case, sufficient in law to maintain the issue for the plaintiff. Under these instructions, the jury re- turned a verdict for the defendant. The plaintiff there- [*314] upon tendered *his bill of exceptions to the said direc- tions, which was allowed and sealed. Per Ouriam. — " The charge of the chief justice of the Common Pleas was calcu- lated to make the jury understand that the evidence offered was wholly insufficient. He stated correctly, that it was necessary they should be satisfied that the property was so received. But he also stated, that the evidence offered was not sufficient to maintain the action. This was undertaking to judge for the jury, and amounted to a declaration to them, that any considera- tion of the evidence was wholly unnecessary. They must thus have received the impression, that by law they could not, on that evidence, find a verdict for the plaintiff. And for this cause, the judgment must be reversed, and a venire facias de novo awarded." (1) 12 MasB. Rep. 22. CSAP. IX.] MISDIRECTION OF THE JUDGE. 314 Giving weight to particular evideoce. In Tufis V. Seahury.^V) Action in assumpsit, and verdict for defendant. There was testimony on both sides. But the judge instructed the jury, that if they believed the testimony of one Chamberlain, a witness, they ought to find for the defendant. To this charge, on tlie ground of misdirection, the plaintiff's ex- cepted. And^er Ouriam. — "Taking the bill ofexceptions as it stands, a new trial should be granted. The judge is represented to have told the jury, that if they believed Chamberlain, they ought to find for the defendant ; whereas the proper instruction would have been, that they should find for the defendant, if upon the whole evidence they believed that a credit had been given. The verdict, therefore, will be set aside, though we are inclined to think that justice has been done.(2) So in a later case, Morton v. FairbanJcs.{B) Action on the case for a fraud in the performance of a special contract, as to the manufacture of a certain quantity of *shingles. [*815] Among other evidence, a trunk full of what were alleged to be shingles, was brought into court, which upon inspection, the judge pronounced not to be shingles and so charged the jury, who found for the plaintiff. The defendant excepted to the charge, on the ground of misdirection. And, per Curiam. — " The defendant contended that whether they were shingles or not, was a question of fact for the jury, and that his rights were not to be affected by the circumstance of the evidence being more or less strong on that question ; but it was ruled that as the point was clear upon inspection, it was to be decided by the court. As the jury would have the whole case before them, this may seem to be a speculative objection ; but we think that in strictness, the point thus decided was a question of fact, and the jury may have been unduly influenced, for they may have considered them- selves not at liberty to find contrary to the decision of the court." So, also, if the judge charge the jury on one or other of seve- (1) 11 Pick. 140. (2) Et vide, Ibid. 162. (3) Ibid. 368. YoL. I. 21 815 NEW TRIALS. [Chap. IX, Giving weight to particular evidence. ral grounds, inconsistent and repugnant. As in Winchell v. Latham.iV) Action on a promissory note. The plaintiff proved first, ttiat tlie consideration was work and labor and cash lent. When that was impeached, he proved it was for several smaller notes, work, and a book account. And finally insisted upon cer- tain declarations of his, given in evidence by the defendants, showing both of the considerations were unfounded. The judge was called upon to charge that any of the grounds would entitle the plaintiff to recover. And he charged accordingly. The court commenting on the charge, and especially on that part •which directed the jury to find for the plaintiff, on his own de- clarations, offered in evidence by the defendant, that the note was given as surety for certain provisions to be inserted in a will, say — "Ought they not rather to have been charged, [*316] that the witnesses effectually destroyed each *other ; and that neither were entitled to credit? That the plaintiff, by taking two contradictory grounds, had deprived himself of the benefit of both ? — If the plaintiff had acquiesced in the evi- dence given by the defendant, as to the consideration of the note, and had reposed himself upon it, as a legal consideration, there would have been no objection to it. But instead of that, he de- nies that that was the consideration, and produces a multitude of witnesses to establish another, and entirely different one. He maintains, and he labors by his evidence to prove, that the de- clarations which he is shown to have made, as to the considera- tions were false ; and yet the jury are instructed, that if they believe those declarations, the plaintiff is entitled to recover, To permit those declarations, under such circumstances, to be used in this way, appears to me to be subversive of all morals. In this respect, therefore, we think the judge erred ; and that a new trial must be granted. "(2) So in Virginia. Fisher v. Duncan,{S) on appeal. One of the questions decided in this case was, how far a court may instruct (1) 6 Cowen, 682. (2) ride 2 W. Blacks. 1249. (3) 1 Hen. St, Muaf. 663. Chap. IX.] MISDIEEGTION OF THE JUDGE. 316 Expressing an opinion on the testimony. the jary, as to the sufficiency of evidence. Upon this point, the opinion o? Fleming, J., appears to have expressed the mind of the court. " It appears to me that the county court erred in having instructed the jury, that, from the whole testimony be- fore them, the demand of the plaintiffs was not barred by the act of limitations, which I conceive to have been an improper interference, and an infringement on the privileges of the jury, whose right it was to judge of the sufficiency or insufficiency of the evidence adduced, to establish any fact or facts in issue before them. The province of the court being to see that all proper evidence offered be submitted to their consideration, without saying what effect such evidence ought to have in the causs." The judgment was reversed, and a venire facias de novo directed. *ZZ". Expressing an opinion on the testimony. [*317] Where the judge instructs correctly on points of law, a verdict will not be set aside on the ground of misdirection, although he may casually express his opinion on the evidence, as he proceeds in his charge. Thus, in Hunt y. Bell.{].) Action for a libel against the plain- tiff, as proprietor of a building called the Tennis Court, appro- priated to pugilism and other sports. At the trial, Dallas, Ch. J., first put it to the jury, to consider whether the plaintiff's exhibi- tions were not illegal, as tending to form prize fighters, declaring such to be his opinion at the moment, although he was unwilling to decide the point, without further time for deliberation, and he then recommended the jury to find a verdict for the plaintiff, which the defendant might afterwards move to set aside, and so fully discuss the question ; but the jury found a verdict for the defendant. Upon motion for a new trial, the court unanimouslv sustained the view taken by the judge. Richardson, J.—" If the question were merely whether it is lawful or unlawful for persons to learn the art of self-defence, whether with artificial weapons, {1) 1 Bingbam, 1. 817 NEW TRIALS. [Chap. IX. Expressing an opinion on the testimony. or such only as nature affords, there can be no doubt that the pursuit of such an object is lawful ; but public prize fighting is unlawful, and anything which tends to train up persons for Such a practice, or to promote the pursuit of it, must also be unlawful. The jury have found that the exhibitions in question have such a tendency, and I see no reason for disturbing their verdict."(l) In Waheman v. Iiohinson.{2) Trespass for driving against plaintiff's horse and injuring him with the shaft of a gig. The judge directed the jury, after a full summing up, that, this being an action of trespass, if the injury was occasioned by an imme- diate act of the defendant, it was immaterial whether [*318] that act was wilful or accidental. He *did not direct them to consider whether the accident was occasioned by any negligence or default on the part of the defendant, or was wholly unavoidable, nor was he requested to do so by the defen- dant's counsel. The jury found a verdict for the plaintiff. And on motion to set it aside, Dallas, Ch. J. — " If I had presided at the trial, I should have directed the jury, that the plaintiff was entitled to a verdict ; because the accident was clearly occasioned hy the default of the defendant. The weight of evidence was all that way. I am now called upon to grant a new trial, con- trary to the justice of the case, upon the ground that the jury were not called on to consider, whether the accident was una- voidable, or occasioned by the fault of the defendant. There can be no doubt that the learned judge who presided would have taken the opinion of the jury on that ground,, if he had been requested so to do ; and under all the circumstances, I am of opinion, that a new trial ought not to be granted in this case." So, in a recent case of usury, Solarte v. MelviUe.{3) Tbe judge stated to the jury, that, in his opinion, no usury had been com- mitted, but left it to the jury to draw their own conclusions. The jury found against the usury. Motion to set aside the ver- (1) Vide Tate» v. Foot, 12 Johns. Rep. 1. (2) 1 Bingham, 213. (3) 1 Man. & Ryl. 198. Chap. IX.] MISDIRECTION OF THE JUDGE. 318 Expressing an opini'ou on the testimony. diet for misdirection, and as against evidence. Lord Tenterden, Oh. J., now delivered the opinion of the court. — " I left it to the jury whether Bramley thought himself under an honorary en- gagement to pay the bankrupt ; and that if he did, it was not usury. A new trial was moved for, on the ground that I ought to have intimated my opinion to the jury, and that I ought to have done so in a different way. I still think, and I believe one or two of my learned brothers are of the same opinion, that if Bramley thought himself under an honorary obligation, what was done was not usury. We all, however, *think [*319] that, as notwithstanding my intimating such an opinion, I left it to the jury to draw their own conclusions upon the whole matter, we cannot disturb the verdict, in a case involving such penal consequences."(l) ISTor will the verdict be disturbed, if the opinion of the judge upon the sufficiency or insufficiency of the testimony be clearly correct, however strongly it may be expressed. As in Dean v. Hewitt, it was held — A verdict will not be set aside, where on a motion for a non-suit, the judge declares the evidence to be suflfi- oient to entitle the plaintiff to recover, and charges the jury to find for the plaintiff, if the evidence warrants the verdict.(2) Nor because the judge, in his charge to the jury, attempts to reconcile a discrepancy between the testimony of a witness on the stand and his former statement as to the same fact. As in Jackson v. Packard,{B) in' ejectment. On the different relations given of the transaction by one Baker, a witness, the judge re- marked, in his charge to the jury, that the discrepancy between his testimony and former statements, seemed naturally enough accounted for. The jury found for the plaintiff, and the defend- ant moved for a new trial. And, on motion, one of the grounds was, that the judge misdirected the jury in relation to the credit to be given to the witness. Upon which Sutherland, J., deliver- (1) Vide Swift v. Stephens, 8 Conn. Rep. 431. (2) 5 Wendell, 251. (3) 6 Wendell, 416. 319 NEW TEIALS. [Chap. IX. Expreaaing an opinion on the testimony. ing the opinion' of the court, remarks — " The observation of the judge, that the discrepancy between the testimony of Baker, and his former statements, seemed naturally enough accounted for, can hardly be considered a misdirection. It was nothing more than the expression of the opinion of the judge upon that point ; but it in no respect assumed to take from the jury the right to judge for themselves upon the matter." [*320]' So in Golhdge v. Eone.il) Assumpsit for goods sold. The defendant pleaded the Statute of Limitations ; in an- swer to which a letter was produced, addressed by the defendant to the plaintiff's attorney, as follows — " I this day received your's respecting T. O.'s (the plaintiff's) demand : it is not a just one. I am ready to settle the account whenever T. 0. (the plaintiff) thinks proper to meet me on the business. I am not in his debt £90, nor anything like it. Shall be happy to settle the differ- ence, by his meeting me in London, or at my house. I shall write Mr. 0. (the plaintiff) on the subject." The lord chief baron, in summing up to the jury, told them that after the letter pro- duced, the Statute of Limitations was entirely out of the question, and the jury accordingly found a verdict for the plaintiff. A rule nisi was obtained, that this verdict might be set aside. One ground was, that it should have been left to the jury to say whether the defendant's letter to the plaintiff's attorney, applied to the demand for which the present action was brought, or whe- ther it amounted to an acknowledgment of an existing debt. The opinion of Mr. Justice Park, illustrates the rule in a brief space. — " Whether the meaning of the defendant's letter had been left to the jury or not, or whether in terms it applied to the transaction in question or not, appears to me to be immaterial, as it is manifest on the face of it, that the defendant admitted that something was due from him to the plaintiff. It is, there- fore, absurd to say, that it does not import an acknowledgment of an actually existing debt." Nor will the mere loose observations, or speculative opinions (1) 10 Moore, 431. Chap. IX.] MISDIRECTION OF THE JUDGE. 320 Bxpreasing an opinion on the testimony. of the judge, by way of illustration, affect the verdict. Barks- dak V. Brou)n.{l) Action to recover the proceeds of rice. The judge charged, among other things, that the rolling of the rice out of the store, was a delivery of it *to the [*321] purchaser ; and that the defendants could not have re- taken it without subjecting themselves to an action. But, that, if in such a case, it could he made to appear to a jury, that the purchaser was insolvent, and intended a fraud on the seller, they would probably give only nominal damages. On the contrary, if he should appear to h^e been trustworthy and honest, they might give very heavy damages. And per Nbit, J. — With re- gard to the exceptions taken to the opinion of the court, it is suffi- cient to observe, it is admitted that the law was correctly stated to the jury ; and the mere speculative opinion of a judge, by way of illustrating any position, or in answer to the arguments of Counsel, can never be a good ground for a new trial.(2) And should the judge direct a verdict, without submitting the sufficiency of the evidence to the jury, when it is competent and uncontradicted, it will not be set aside. In Nichols v. Ooldsmith,{2i) in assumpsit. The plaintiff made out his case, and objections were raised by the defendant, but no proof offered. The judge overruled the objections, and directed the jury to find a verdict for the plaintiffs, which they did. The defendant moved to set aside the verdict, and it was insisted the judge ought not to have directed the jury to find for the plain- tiffs, but should have submitted to them the question of the suffi- ciency of the evidence. But, per Savage, Oh. J. — The evidence offered was competent, and, prima fade, sufficient. There is very little danger to be apprehended from such testimony, as the oppo- site party may rebut it, if it is incorrect. Being competent evi- dence, if uncontradicted, it is sufficient to warrant the verdict of the jury." Motion for new trial denied. (1) 1 Nott & M'Oord, 517. (2) Vide Jordan v. Jmn£s, 5 Ham. Ohio Rep. 9Y ; Dm v. Emerson, 5 Halst. Eep 219 ; WiUiwrns v. Cheeseiarough, 4iConn. Rep. 566. (3) 7 Wendell, 160. S22 NEW TRIALS. [Chap. IX., Expressing an opinion on the testimony. [*322] *So in Train v. Collins.{l) Assumpsit on a promis- sory note, made by one Hyde, to Samuel Learned, and by him indorsed to the plaintiff. One ground of defence was, that the note was for a usurious consideration. One of the jury, when about retiring with the cause^ having asked what would become of the notes passed to Hyde, in case they should avoid the note in suit, the judge answered that they would remain the property of Learned, or of his assignee of this note. The verdict being for the defendant, the plaintiff moved the court to grant a new trial. The remark of the judge ^ the juror as above, was principally urged as a misdirection, in support of the motion. Commenting upon this, the (hurt observe — "No doubt many things are said by a judge in the course of a trial, which will not bear scrutiny, and which pass wholly without notice. It would be a bad practice to allow these matters to be brought up some days after the cause is decided, as the ground of a new trial. Even when the jury returned their verdict, stating the ground upon which it was given, had there been any previous intimation that stress was laid upon this incident, the jury might, and prob- ably would, have been sent out again with the mistake corrected. We think it would be going too far, in a case where legal and equitable justice appears to be done by the verdict, to grant a new trial on account of a mistake, which did not probably, al- though it might possibly, have operated upon the minds of some of the jury."(2) So, in a libel case, if the judge should state to the jury, that there was no evidence of express malice, when there was slight evidence of it, but not sufl&cient to sustain a verdict, this would not be a sufficient reason for granting a new trial. So ruled in Remington v. Gongdon.iZ) [*323] *]Sror is it a misdirection for which the verdict will be set aside, if the judge refer the jury to their own know- (1) 2 Pick. 145. (2) Vide 1 S. 0. Con. Eep. 216t 6 Mass. Rep. lOl; 6 Mass. Rep. 350. (Z) 2 Pick. 310. Chap. IX.] MISDIRECTION OF THE JUDGE. 323 Expressing an opinion on the testimony. ledge of any particular facts which have been proved, as matter of illastration only, and not as matter of evidence. As was held in The King v. SuUon.{V) Nor will the court disturb the verdict for a misdirection upon a collateral matter, or upon an abstract question out of the case, or but slightly connected with it. Thus in Depeyster v. The Co- lumbian Insurance Gompany.i^') Action on a policy. A verdict was given for the defendants, to set aside which the court was now applied to, on the ground of a misdirection of the judge, stated in the decision denying the motion. By the Court. — " It is said the jury were misdirected on a point of lawi In calcu- lating the cost of repairs, they were told that if they believed any were necessary on account of injuries received from worms prior to the vessel's sailing, the expense of such repairs should not be included in the estimate. This direction is supposed to be incorrect, inasmuch as it prescribes a rule difficult, if not imprac- ticable, to follow. But admitting a mistake in the judge's charge, a new trial ought not always to be the necessary consequence. It is not for every misdirection in point of law, that the parties should be put to the expense of further litigation. If the result from the testimony would probably have been the same, whether a particular direction had been given or not, it can be no reason for granting a new trial. Here, if the jury had taken into the estimate the expense of all repairs, without any deduction for old or former injuries, their verdict must have been the same. If, tben, there be good reason to think the plaintiffs have not been, injured by the judge's mistake, they ought not to be indulged with a new trial."(3) *Nor is it a ground for a new trial, that the judge, [*324] after having summed up the cause, instructed the jury, on motion of counsel, upon a point arising out of the facts in the case, but not previously suggested, such course of proceeding (1) 4 Mauls & Selw. 532; Swpra, p. 6Y. (2) 2 Caines, 85. (3) Etvide 9 Co wen, 614; Mneh v. Elliott, 4 Hawks, 61. 824 NEW TEIALS. [Chap. IX. Expressing an opinion on the testimony. being a matter within the discretion of the judge. As in Sawyer V. Merrill.il) Action of trespass. After the judge had ended his charge, the defendant's counsel moved to have the jury in- structed, that if they were satisfied the articles claimed by the plaintiff were so intermingled with other property liable to attach- ment, that the defendants could not distinguish what had been attached, and if the plaintiff made a general claim of the whole, without designating, the articles which he had attached, so that the defendants could have no means of knowing which had been attached, and which not, then that the defendants were justified in attaching the whole. This motion was objected to by the plaintiff's counsel, because this point had not been stated^ during the trial, and he had no opportunity to comment upon it. The judge so instructed the jury, and a verdict was returned for the defendants. Per Curiam. — '' The instruction to the jury was, in itself, correct. The objection is, however, rather to the time than to the matter of the instruction. It is said the plaintiff had not an opportunity to comment on the point made by the defendants, and to produce counteracting evidence. But the judge may think of some point which the counsel did not, or vice versa; and if it is based on the facts in the case, stating it to the jury will not be a ground for a new trial ; and as no injustice appears to have been done, a new trial cannot be granted."(2) So, in Morris v. Brickley,(3) it was held, where a plaintiff offers no testimony, to the jury, or such as is so slight and [*325] *in6bnclusive that a rational mind cannot draw the con- clusions sought to be deduced from it, it is the right of the court, and their duty when applied to for that purpose, to instruct the jury that the plaintiff is not entitled to recover. But a positive and absolute direction to the jury will not be sanc- tioned, if it obliges them to discredit a witness ; to do that, the intervention of a jury is peculiarly necessary. (4) (1) 6 Pick. 418. (2) M vide 4 Day, 403. (3) 1 Har. & Gill, 101. (4) Vide Beel v. Beel, % Hawk?, 63. Chap. X.] VEEDICT AGAINST LAW. *326 General remarks. *CHAPTEE X. VERDICT AGAINST LAW. I. General remarks. II. Rule where the finding is against law. III. Technical objection not regarded. IV. Where the action is trifling. V. Where an important principle is involved. YI. In penal and hard actions. YII. Technical precision inform of action not required. I. General Bemarks. After all reasonable precaution and care on the part of the counsel and the court, and the best intentions on the part of the jury, they may err in their finding. Through ignorance or mis- apprehension of /the law, they may agree upon a verdict subver- sive of law. With a view to promote what they may conceive to be the justice of the case, and swayed more by their own views of equity than the unyielding principles of law, or hurried away by thejr own feelings, they are apt to overlook the princi- ples of justice applicable to the case, and thus give rise to a new class of applications to the court, on the ground of verdicts against law, It might appear at first sight gratuitous labor to illustrate this head of practice ; as it is to be presumed the rule would be, in- variably to set aside verdicts against law. But however this may be as a general rule, it is far from being universal. This renders it proper to treat of it, as the preceding causes for new trials have been treated, giving the general rules, with their ex- ceptions and modifications, and adducing examples illustrative each."(l) (1) Vide " Perverse Verdicts," rapro, p. 121-126. 327 NEW TRIALS. [Chap. X. Rule where the finding is against law. II. Bule where the finding is against law. It is a general rule, that if the finding of the jury be clearly against law, the verdict will be set aside and a new trial granted, thus, In Mychman v. Shotbolt.{V) One "William Shotbolt [*327] was *bound in an obligation to one Hyckman, and in the obligation he was called John Shotbolt, which was a mistake. But William Shotbolt, well perceiving his misnomer, sealed and delivered the bond as his deed. In debt brought upon this bond against him by name of William Shotbolt, other- wise called John Shotbolt, he pleaded non est Jactum ; and this special matter was found by verdict. Whether he should be charged by this bond and plea, was the doubt. The postea was special ; and^er Curiam. — " The plaintiff shall not recover upon this verdict, but it had been better for him to have brought the action by the name of John, as he is named in the bond, and then if he had appeared to it, and pleaded as above, non est factum, he should be concluded by the bond." So in Watkins v. 0Kver,{2) in error. The plaintiff declared in debt against Edmund Watkins, otherwise Edward Watkins, that he, by the name of Edmund, was bound in an obligation for the payment of one hundred pounds, and for non-payment the action was brought. The condition was, that Roger Watkins pay fifty pounds to the plaintiff at such a day. The defendant pleaded payment by Roger Watkins, at the day ; and issue being taken thereupon, it was found for the plaintiff, and judgment accord- ingly. Error was brought, for that Edward Watkins is obliged, and Edmund is sued, which cannot be intended one and the same person ; and no averment can help it, for one cannot have two Christian names, and there cannot be any estoppel. And of that opinion were all the judges. But if the condition had been, if Edward Watkins paid the fifty pounds, and the issue had been (1) Dyer, 279. (2) Oro. Jao. 558. CSAP. X.] VERDICT AGAINST LAW. 828 Rule where the finding is against law. that the said Edward Watkins paid, and the verdict had found for the plaintiff, then the verdict should make it an estoppel ; and the court should be ascertained that they were one and the same person. But as it is here *a stranger paying [*328] the sum which is so found, it cannot help the plaintiff. Wherefore, for this cause, the judgment was reversed. And in Moby v. Shepherd.{l) Debt upon an obligation for forty pounds, by Edmund Shepherd. The defendant demanded oyer of the deed and of the condition which was entered m hceo verba " noverint universi per prcesentes me Edwardum teneri, &c., in forty pounds," and he subscribed it by the name of Edmund Shepherd, which was his true name. The defendant pleaded non est factum testatoris. The jury found that it was the deed of the said Edmund Shepherd, the testator. It was moved, that notwithstanding the verdict is found for the plaintiff, yet the judgment ought to be given against the plaintiff, for he declares upon a bond of Edmund Shepherd, and shows a bond of Edward Shepherd, which is another person ; and they never were the same, but distinct names. And although it be subscribed by the name of Edmund, yet that is no part of the bond ; which being apparent to the court, the plaintiff cannot have judgment. The whole court were of that opinion ; and although the jury found it to be the deed of the said Edmund, yet that would not help it, for he ought to have brought his action according to the bond. In Bright v. Eynon.{2) Action by the plaintiff, as executor of one Hannah Crisp, upon a promissory note by the defendant to the testatrix. The defendant set up a discharge, in writing, by the testatrix. The body of the discharge was all his own hand ; but he called two witnesses who said they believed the name Hannah Crisp subscribed, to be the hand of the testatrix ; but their knowledge of her hand was very slight, one of them • having only seen her sign a receipt. It appeared from the re- port, that there were conceded facts sufficient to induce the (1) Cro. Jac. 640. (2) 1 Burr. 390. ' 329 NEW TRIALS. [Chap. X. Rule where the finding is against law. [*329] jury to draw the conclusion *of law, that the discharge was fraudulent and void ; they, however, found for the defendant. Motion for a new trial, on the ground that the jury found against legal conclusions, directly inferable from the facts. Lord Mansfield, after expatiating at large upon the utility and practice of granting new trials, consented to a new trial, the other judges concurring, observing — "What I go upon is the apparent manifest fraud and imposition in obtaining the dis- charge from the testatrix, if she really signed it. Fraud or covin may, in judgment of the law, avoid every kind of act. What circumstances and facts amount to such fraud or covin, is always a question of law. The writing upon the face of it speaks im- position. It purports being for consideration. She releases the principal, in consideration of £5 per cent, during her life, which is only legal interest, and the precise rate he was obliged to pay by his note. I left the question of fraud to the jury, without any express direction that the circumstances spoke fraud apparent." So, in Edie v. East India Gompany,{].) in assumpsit on two bills of exchange by the indorsers. Both bills were indorsed by the payee ; but the words " or order" were originally omitted in the indorsement of one of them. On the first bill there was a verdict for the plaintiff, and on the second, for the defendant. It was now moved to set aside the verdict found for the defend- ant, on the ground that the jury had found directly contrary to the settled law, and had founded their verdict uuon the custom of merchants, of which evidence was improperly permitted to be given at the trial ; for the custom of merchants is part of the law ; and the law being fully settled on this point, no evidence in con- tradiction to it ought to have been admitted, nor could any find- ing of a jury alter it. Lord Mansfield. — " I thought at the [*330] trial, that the defendants might be at liberty to go *into the usage of merchants upon this occasion — I told the jury, that by the general law, (laying the usage out of the case,) the inc^orsement would follow the nature of the original bill, and (1) 2 Burr. 1216 ; Ante, 169. CSAP. X.] VEEDICT AGAINST LAW, 380 Bule where the finding is against law. be an absolute assignment to the indorsee or his order. And after having told them that this was the general law, then I left to them upon the particular evidence of the usage that had been laid before them. Since the trial, I have looked into the cases, and have considered the thing with a great deal of care and at- tention, and thought much about it, and I am very clearly of opinion that I ought not to have admitted any evidence of the particular usage of merchants in such a case, for the law is already settled."(l) And, in Hodgson v. Richardaon,{2) where the jury found a ver- dict for the insured against an underwriter — though a material fact as to the commencement of the voyage was not disclosed and therefore the contract different. Lord Mansfield, for this cause directing a new trial, took this distinction — " The question is, whether here was a sufficient disclosure ; i. e., whether the fact concealed was material to the risk run. This is a matter of fact ; and if material, the consequence is matter of law, that; the policy is bad." In Tindal v. Broion.{B) Acti on on a promissory note, against the indorser. The reasonableness of the notice of non-payment to the indorser, became the most material question. Two juries had found for the plaintiffs, on the ground of the notice having been sufficient. It was now moved, that the second verdict should be set aside, as against law. .Erskine, for the plaintiffs, admitted that it was not now to be disputed, that what should be considered to be a reasonable time was a question of law • but contended that in this case the plaintiffs had used due diligence, and relied *upon the fact that the sum in ['^381] controversy was small. The counsel for the defendant were stopped by the court, who referred to their former decision, and added—" That though it was true in general, that the court would refuse to grant a new trial when the sum in litigation was (1) M vide 2 Burr. 931. (2) 1 W. Blacks. 463. (3) 1 Term. Rep. 167. 831 NEW TEIALS. [Chap. X Rule where the finding is against law. small, yet that rule did not apply where a verdict had been given against law." On the third trial, A special verdict was found, containing the same facts, on which the court gave judg- ment for the defendant; and that judgment was afterwards unanimously affirmed in the Exchequer Chamber.(l) So, also, in Farrant v. Olmius.{2) Covenant by lessor against lessee. The lease set out in the declaration contained, besides a common reservation of a certain fixed annual rent, the following redendum — " Yielding and paying the further yearly rent of £50 for every acre of the lands and hereditaments thereby demised, except certain fields mentioned in the former reservation, which the said defendant should plough, dig up, or convert into tillage. There were also covenants for repairing, and for delivering up the premises in repair. The judge directed the jury to find such damages for the breach of the covenant to repair, as in their judgment would be a compensation to him for the actual damage he had thereby sustained ; and as to the other breaches, he di- rected the jury, that the plaintiff was entitled to recover damages at the rate per annum mentioned in the redendum. The jury brought in a verdict for £1,100 damages, and being desired by the learned judge to specify how much they allowed for the repairs, and how much for the land, they stated that they found £500 damages for the repairs, and £600 in respect of the injury done to the land. A rule nisi was obtained for a new [*382] trial, on the ground that the jury were bound to *give the increased rent. Abbot, Ch. J. — " The jury, in this case, have given, by their verdict, a compensation for what they consider to be the actual damage sustained, when, in point of law, they ought to have given the increased rent. It is said, however, tliat the court ought not to disturb such a verdict, because it is consistent with justice. If that argument, however, were to prevail, it would encourage juries to commit a breach of duty, by finding verdicts contrary to law, and would enable them to set aside the contracts of mankind. In this case there (1) Vide 2 Term. Rep. 186; 3 Burr. 1663. (2) 3 Barn. & Aid. 692. Chap. X.] VERDICT AGAINST LAW". 832 Rule where the finding is against law. is an express contract for stipulated damages, and the jury have given a verdict for arbitrary damages. I am, therefore, of opin- ion, that there should*be a new trial."(l) In Turner v. Meymott,{2) a tenant having omitted to deliver up possession when his term had expired, after a regular noticer to quit, the landlord, in his absence, broke open the door, and resumed possession. The tenant having obtained a verdict against the landlord, irj trespass for this entry, the court granted a new trial on the ground that the landlord had a right to enter, and the verdict was against law. Dallas, Ch. J. — "The question is, whether the landlord has a right to enter in the manner the de- fendant did, under the circumstances of the case, in which the tenant held over after his right to possession had ceased, and the landlord's right to enter, had accrued. It must be admitted he had a right to take possession in some way. The case of Taunton v. Oostar,{3) is in point to show that he might enter peaceably, and that no ejectment was necessary."(4:) In Cooler. Green.ip) The plaintiff brought this action *of trespass against the defendant, for breaking and en- [*333] tering a certain close, and choking and filling up a pond therein, and erecting a fence thereon ; and a verdict was found for the defendant. The Chief Baron directed the jury that it had been proved that the plaintiff was owner of the adjoining land, and that the rule of law was, that the owners of land adjoining a road, were entitled to claim property to half the soil of the road, unless a contrary right were proved; and that he con- sidered the weight of the evidence in this case was in favor of the plaintiff, but the jury found a verdict for the defendant. Richards, Lord Chief Baron. — "In a case of this sort, we are of opinion that the verdict of the jury, under the circumstances in (1) Vide Hopkins v. Myers, 1 Harper's S. 0. Rep. 56. (2) 1 Bingham, 158. (3) 7 Terra. Rep. 427. (4) Et vide navies v. Gonnop, 1 Price, 53 ; HyaU v. Wood, 3 Johns. Rep. 150 Wood V. Hyatt, Ibid. 239. (5) U Price, 736. Vol. I. 22 833 NEW TEIALS. [Chap. X. Rule where the finding is against law. evidence, ought not to conclude the court, where the true object of the action is, the determination of a right, which it would be the effect of the verdict to decide conclusively. For the same reason, we think the extent of the trespass, and the damage, can- not be taken into consideration by the court, as an objection to our granting the plaintiff a new trial. We are all of opinion that there ought to be a new trial in this case." The same readiness to correct verdicts against law, has been manifested by the courts in this country as in England, although probably not to the same extent. The genius of our free institu- tions inclines rather to the popular views of a jury, than to the un- bending rules of law in the mouth of a judge. In those states, however, that keep close to the path of English jurisprudence, the rigid principles of the common law .are allowed to predomi nate, and few instances occur, permitting illegal verdicts to stand. In New York, as in England, the law controls the verdict. If, therefore, the judge, in his charge to the jury, state the princi- ples of law correctly, and the jury disregard them, the verdict will be set aside, and a new trial granted. [*334] *As in Jarvis v. Hathaway,{V) where, although the motion for a new trial was refused, the court test the validity of the rule, by making it an exception to that class of cases commonly called hard actions. " In penal actions," say they, " in actions for a libel and for defamation, and other actions vindictive in their nature, unless some rule of law he violated, in the admission or rejection of evidence, or in the exposition of the law to the jury, or there has been tampering with the jury, the court will not give a second chance of success." In a prior case, Silva v. Low,{2) the court had, in conformity with the 'rule, granted a new trial. The case came up .afresh on (1) 3 Johns. Rep. 180. (2) 1 Johns. Caa. 336. Chap. X.] VERDICT AGAINST LAW. 334 Rule wliere the finding is against law. a motion for anew trial, after the second trial, in which the jury had given a verdict for the plaintiff, as before, upon evidence substantially the same. On the part of the plaintiff, it was in- sisted, that this was a second verdict on a question of fact, and ought to be conclusive. For the • defendant, it was contended, that the evidence being materially the same, the finding of the jury was an attempt to overrule the decision of this court, on the questions of law formerly determined, and therefore ought not to prevail. And Per Guriam, Lansing, Oh. J., and Lewis, J., dissentientihus. — " The jury, in finding this verdict, must have in- tended to disregard the determination of this court' on the ques- tions of law previously settled, and their verdict must therefore be considered as against law. It could not have been found in conformity to the opinion of the court, as formerly delivered, unless we suppose the jury to have been governed by conjec- tures, or circumstances too trivial to be mentioned. We there- fore think that the verdict ought to be set aside."(l) *In Van Bensselaer v. I>ok.{2) Action for slander, [*335] charging the plaintiff with being a highwayman and murderer. It appeared, on the day previous to the speaking of the words, there had been a public procession ; that one Keating commanded a company, which formed part of the procession, attended with music ; that a Mr. Bird claimed one of the instru- ments of music, but it was refused to be delivered ; that upon this an affray ensued, in which Bird received a dangerous wound ; and that the terms " highwaymen and murderers " were used, in reference to the transactions. The judge was of opinion that the words were fully explained, and therefore not actionable. The jury nevertheless found a verdict for the plaintiff. The defend- ant moved for a new trial, on the ground that the verdict was contrary to law. Per Guriam. — " We agree in opinion with the judge at the trial. The words spoken by the defendant were clearly understood to apply to the transactions of the preceding (1) GihUns v. FhMps, 8 Barn. & Ores. 437 ; Center v. Stockton, 8 Mart Louis. Rep. 208 I 9 Bingham, 115. (2) 1 Johns. Cas. 279. 365 KEW TEIALS. [Chap. X, Rule where the finding is against law. day, and these were known not to amount to the charge which the words would otherwise import. Let the verdict, therefore, be set aside ; and there being no question upon the evidence, the finding of the jury must be considered as contrary to law." In a more recent case, Jackson v. Parker,{l) in ejectment. It clearly appeared from the evidence, that an assignment set up by the defendant in support of his title, was fraudulent in law. The jury, notwithstanding, found for the defendant. A new trial was moved for, chiefly on the ground that the verdict was against law, the assignment being void ; and per Savage, Ch. J., deliver- ing the opinion of the court, granting the motion. — " So far as the defendant Parker was influenced by motives of filial duty in un- dertaking to support the family of his profligate father, [*336] he should be commended ; but if one object was, as *some of the witnesses stated, to prevent the judgment credi- tors from taking his father's farm, in satisfaction of their honest demand, such object is fraudulent. But it is, perhaps, unnt-ces- sary to impugn the motives of the defendant. If the object was purely to support his mother and the family, and that was to be done by means of his father's property, which his creditors had a right to have appropriated to the payment of his debts, then the assignment was fraudulent in law." So in Eoss ad. Rouse.{2) Action of slander. The plaintiff was a witness in a case submitted to arbitration between the defend- ant and one Timothy Eouse, and whilst he was testifying, the de- fendant addressing him, said, "Every word you have sworn to is false." And immediately after the arbitration, in the bar- room of the house where the arbitration was holden, added, " A. Eouse has sworn to a lie, and I can prove it." The plaintiff, it was clear, had sworn to matter wholly immaterial to the issue between the parties. ' The judge at the trial ruled that, although the arbitrators held the testimony immaterial, yet as they heard it, accompanied with the declaration that they could decide (1) 9 Cowen, 73. (2) 1 Wendell, 476. Chap. X.] VERDICT AGAINST LAW. 336 Rule where the findiug is against law. better by hearing the whole story, and as the witness testified, under the belief that he was giving material testimony, the words spoken were actionable, and so charged the jury, to which the defendant excepted. The jury found for the plaintiff. The de- fendant moved to set aside the verdict, on the ground that the words were not actionable ; and per Sutherland, J. — " If the whole testimony given upon that trial by the plaintiff was imma- terial, then no action can be sustained against the defendant for having said it was false. The evidence alleged to have been false, must be shown to have been material. The test is not whether the witness believes his testimony to be material, but whether, if false, he can be indicted for perjury. If it is in *fact immaterial, whatever may be the opinion of the [*337] witness, though it be false, it is not perjury. The charge was erroneous, and a new trial must be granted."(l) In Pennsylvania the rule prevails, and to the same extent. Walker v. Smith.{2) Eule nisi for a new trial. The court at the trial had laid down, as the rule for estimating the damages, the loss which the plaintiff had sustained by the misconduct of the defenda,nt, in violating Iris orders. The jury had given only the principal sum due, without interest ; and in this and other re- spects had, as was alleged, disregarded the charge of the court. And, although the motion on this ground was refused, the prin- ciple is thus laid down by Washington, J. — "If, indeed, the ver- dict were against the charge, we would not hesitate to do it, and would continue to do so, as often as such a verdict should be given. For, whilst we always respect and secure to the jury the privileges to which they are entitled, which is to decide upon the facts, we will take care that the rights of the court to decide the law shall never be impaired by the jury ; and new trials will be granted so long as the verdicts are against law."(3) In The Commissioners of Berks v. iSoss,(4) on appeal. The ac- (1) Vide Olmstead v. Miller, 1 'Wendel], 606; Sams v. Wilson, Ibid. 511. (2) 1 Wash. C. 0. Rep. 202. (3) El vide 4 Wash. C. C. Rap. 32. (4) 3 Binney, 620. 33T NEW TRIALS. [Chap. X. Rule where the finding is against law. tion was for debt on bond. There was no dispute about facts, and the charge of the court was in favor of the plaintiffs. But the jury, as another jury had done before, found for the defend- ants ; and Judge Brackenridge, although the verdict was decidedly against his opinion, overruled a motion for a new trial, that it might be heard in bank upon appeal. Tilghman, Oh. J. — " Here is no dispute about facts. There was no discordance or diffi- culty in the evidence, but two juries have differed from [*338] *the court in the law resulting from the facts. It is said by all the court, in the case of Goodwin v. Gib- bons,{l) that there is no rule of law against granting a new trial after two verdicts. If there was such a rule, there would no longer be any certainty in the law. Principles the most firmly established might be overturned because a second jury were ob- stinate and rash enough to persevere in the errors of the first, in a matter confessed by all to be properly within the jurisdiction of the court ; I mean, the construction of the law arising from undisputed facts. This is a state of things which no man would wish to see. I believe, that in this instance, the two juries have erred from a principle of humanity. On one side, they saw a rich county, to whom the object of dispute, though in itself con- siderable, was not of much moment. On the other, a few unfor- tunate individuals exposed to ruin. But, when it is reflected that a precedent is about to be set, which may have a pernicious effect on those regulations on which the peace and security of' the country depend, I feel it a duty incumbent on the court, to sub- mit the matter to the deliberate consideration of another jury. "(2) So in Massachusetts. Pierce v. Woodward.{3) Action upon a parol contract not to set up the business of a grocer, within a certain limited distance in the city of Boston. There was much evidence tending to prove, that a principal inducement for tha plaintiff to purchase, was the succeeding to the business which had been carried on in the same store, and it was proved to the (1) 4 Burr. 2108. (2) M vide i Binney, 180. (3) 6 Pick. 206. Chap. X.] YEEDIOT AGAINST LAW. 338 Bule where Ihe finding ia against law. satisfaction of the jury, that in order to induce the plaintiff to purchase, the defendant agreed not to engage in the same busi- ness. The jury found for the plaintiff, with $100 damages. And on inquiry upon what principle they proceeded, the foreman *stated that they could not ascertain the dam- [*339] ages for the precise time, it being very difficult to get a knowledge of the degree of injury done, and that they gave the sum of $100, upon an expectation that it would settle the whole matter. Per Curiam. — "Anew trial must be granted, because the jury, in assessing damages, did not confine themselves to the period before the action was commenced. It is said, that we cannot interfere with the verdict, Upon the declarations of jurors in regard to their proceedings, but that the evidence should come aliunde. The court are not disposed to disturb verdicts by making unnecessary inquiries; but where the judge is surprised by the verdict, it is not unusual to ask the jury upon what principle it was found. Here the principle upon which they proceeded was incorrect."(l) And in South Carolina. Moore v. Cherry.{2) Motion for a, third trial, and to change the venue. This was a case tried to determine the right of property to a negro man slave, taken during the war, and sold to the defendant. The property was admitted to have been in Moore before the war, and immediately previous to the capture. Grimke, J., who sat at the first trial, gave a charge decidedly against the defendant. The jury, how- ever, returned a verdict in favor of the defendant ; in consequence of which a new trial was moved for, and granted. At the second trial, JBurJce, J., sat and charged in favor of the plaintiff, and the jury, notwithstanding the judge's direction, again found for the defendant. And now, per Bay, J.—" Wherever the jury find a verdict against the plain and obvious principles of the law, and against the directions of the judges who tried the cause twice, as well as against the opinions of the judges at bar, there ought to be a third trial ; otherwise *there can be no [*34:0] (1) Vide DUUngTiam v. Stmui, 6 Mass. Eep. 54T. (2) 1 Bay, 269. 840 NEW TRIALS. [Chap. X. iiule where the finding is againat law. certainty in the principles of the law. In cases sounding in damages, which properly come within the province of a jury, the court will seldom or never grant a third trial ; or in matters where law and facts are, in a great measure, blended together. But wherever the principles of law are outraged by these ver- dicts, we ought uniformly to grant a new trial, so as to give the party a chance for justice." A new trial was graiited.(l) So in Peay ad. Picket.{2) This was an application for dower. The declaration, as usual, stated the marriage and seisin of the husband ; issue was joined, and the jury found a verdict for $200 for the plaintiff. A motion was now made to set aside the veir diet. Colcocic, J., delivered the opinion of the court. — " The jury had no power to find such a verdict. The issue submitted to them was whether the demandant was married, and whether her husband was legally seised. The verdict is therefore irregular, and must be set aside. If the jury had found the issue for the plaintiff, a writ of dower would then have been issued to com- missioners, whose duty it would have been to have admeasured dower, or assessed a sum of money in lieu thereof, and then it may be made a question, whether she is to be endowed according to the improved value, or according to the value at the time of aliienation; but in the proceedings had in this case, the question eould not be involved." And in The State v. Hayward,{3) where there had been a con- viction for perjury, and the words stated in the indictment did not, from the face of the indictment, appear to be material, by averment, or by the context of the indictment, or by their own import, judgment was arrested. And in Bate$ v. McCariy,{4:) in an action of trover [*341] against two defendants, where a conversipn had *been proven against but one, and a verdict found against (1) Et vide 2 Bay, 23, 133, and 2 Nott & M'Oord, 184. (2) 1 Nott & M'Oord, 16. (3) 1 Nott &, M'Oord, 546. (4) i Nott & M'Oord, 84. Chap. X.] VERDICT AGAINST LAW. 341 Technical objection not regarded. both, a new trial was directed, unless the plaintiff discontinued as tc) the defendant, against whom no conversion was proved. Si), also, in Dinkins v. Dehruhl,{\) in an action for an assault and battery, where an actual battery was proven, and there was a verdict for the defendant, it was set aside, the court holding,, that the jury could not be permitted to find manifestly against law. Upon another occasion, the same court recognized the rule ia its utmost latitude, saying — " It is the province of the court to determine the law, and if juries will take it on themselves, and decide differently from the court, a new trial will be granted, toties quoties."{2) III. Technical ohjection not regarded. But if justice has been done, the court will not, against the equity of the case, disturb a verdict upon the ground of a tech- nical objection. In Deerly v. The Duchess of Mazarine.{B) Upon non assumpaii pleaded, the jury found for the plaintiff, though the dutchess gave evidence of coverture. But the court would not grant a new trial, because there was no reason why th^ dutchess, who lived here as a. feme sole, should set up coverture to avoid the payment of her just debts. So in Sampson v. Appleyard.{4:) Trespass quare clausum freg^. The defendant pleaded not guilty, and prescribed for a certain way, leading from a common highway into, through, and over the plaintiff's closes, in which, &c. The plaintiff", by his replica- tion, traversed the prescription, whereupon issue was joined. At the trial of this cause, the counsel for the ^defendant hav- (1) 2 Kott&M'Cord, 85. (2) 1 S. 0. Con. Rep. 328 ; etvide 2 Ibid. 103, 169. (3) 2 Salk. 646. (4) 3 Wilson, 272. 842 NEW TRIALS. [Chap. X. Technical objection not regarded. [*342] ing admitted the trespass, *olearly proved the defend- ant's right of way. But, it appeared upon the evi- dence, that this way did not lead from a common highway, but from a certain private way. It was therefore objected, that the defendant had not proved his prescription to the way. But the right to the way over the plaintiff's closes being clearly proved, Oould, J., before whom the cause was tried, left it to the jury, who found a verdict for the defendant, for his right of way. A new trial was moved for, on the ground that the defendant had failed in proving his case, and the jury bad found against the law. Lord Chief Justice De Grey. — " This is a motion for a new trial) because the defendant, in his plea, has mistaken one abuttel of the way. If a new trial was to be granted, the defendant would amend his plea according to the evidence, and would have an- other verdict, in all human probability, having given such clear proof of his right by many witnesses." Nares, J. — " I am of the same opinion ; and the court never grants a new trial, when they see clearly the merits have been fully and fairly tried." New trial refused per totam curiam.{l') This principle is clearly stated in the leading case. Bright v. EynonJ^) where it was said by Denison, J., " That it would be difiicult, perhaps, to fix an absolute general rule about granting new trials, without making so many exceptions to it, as might rather tend to^arken than explain it ; but the granting a new trial must depend upon the legal discretion of the court, guided by the nature and circumstances of the particular case, and di- rected with a view to the attainment of justice." Being an application to the discretion of the court, who ought to exercise that discretion in such a manner as will best answ^ the ends of justice, where they perceive complete and [*343] substantial justice has been done, they will not *discuss the question of law, nor suffer it to prevail to work in- justice, This is the reason of the rule. (1) Vide 2 Term. Rep. 185. (2) 1 Burr. 390. Chap. X.] VERDICT AGAINST LAW. 343 Teelmical objection not regarded. ■ As in Edmondson v. Machell,{V) therefore, where an action was brought by the aunt for a violent assault on her niece, for loss of service, and the judge held that the aunt stood in loco parentis, whereon large damages were given ; the plaintiff undertaking to pay the damages to the niece, and the niece not to proceed in the action which she had brought for the assault, the rule for a new trial was discharged. So, in Farewell v. Ghaffey,{2) a new trial was denied upon the nature of the action, the value of the matter in dispute, and other circumstances of the case. Lord Mansfield said a new trial ought to be granted, to attain real justice, but not to gratify litigious passions upon every point of summum jus, and cited a number of cases where the verdicts were against the strict rule of law ; but the court would not give a second chance of success to a hard action or unconscionable defence. There- fore, the court, upon the same principle, refused to grant a new trial in the present case, and discharged the rule. And in Allen v. Peshall,{S) held by all the judges, that, in granting new trials, regard is to be had to the true merits of the case ; and, when substantial justice appears to have been an- swered, the court will not suffer the chance of its being defeated.(4) This is forcibly put in Estwiclc v. Caillaud,{5) where the defence set up was fraud, and verdict for plaintiff. The court say, on an application for a new trial, the only question is, whether, under all the circumstances of the case, the verdict be or be not accord- ing to the justice of the case ; for, though the judge may have made some little *slip in his directions to the jury, [*344] yet, if justice be done by the verdict, the court ought not to interfere and set it aside." In Wilkinson v. Payne,{6) the principle was strongly te-ted. The action was on a promissory note, in consideration that the (1) 2 Term. Rep. 4 ; Ante, p. 302. (2) 1 Burr. 64 (3) 2 W. Black. 1111. (4) FicfeLofift, 521. (5) 5 Term. Rep. 420. (6) 4 Term. Rep. 468. 344 NEW TEIALS. [Chap. X. Technical objection not regarded. plaintiff would marry the defendant's daughter. The defence set up was, that though there was a marriage, in fact, it was not a legal one, because the parties were married by license ; the plaintiff was under age, and no consent of parents or guardians. It also appeared, that when the piaiqtiff came of age, his wife was in extremis, and died three weeks after. Upon these facts, the judge left it to the jury to presume a subsequent legal mar- riage, which they did, and found for the plaintiff. And, upon motion to show cause why the verdict should not be set aside, the court denied the motion ; and per Lord Kenyan, Ch. J. — " In the case of new trials, it is a general rule, that, in a hard action, where there is something on which the jury have raised a pre- sumption agreeably to the justice of the case, the court will not interfere by granting a new trial." Butter, J. — " If the verdict be consistent with the justice, conscience and equity of the case, we ought not to grant a new trial." In Cox V. Kitchm.{\) The wife of one Wells, but living in a state of open adultery with a man of the name of Kitchin, was sued for work and materials in fitting up a hotel for her use. The judge directed the jury to find a verdict for the plaintiff, in case they should be of opinion the defendant was living in a state of open adultery at the time of the contract. A verdict was found accordingly, and on a motion to set it aside, on the ground that the defendant was not answerable as a feme sole, the court held this language : " Motions for new trials are governed by the discretion of the court, and therefore we must look [*345] to *the general justice of the case, before we interpose for granting a new trial. Whether the defendant be strictly liable or not, she has lived as a, feme sole, represented her- self, and obtained credit, as such. The defence, therefore, is dis- honest and unconscientious, and on that ground the court ought not to interpose." In Carstairs v. S/ein,{2) where the question arose, whether a commission of one half per cent, upon a banking account was (1) 1 Bos. & Pul. 337] Supra, 303. (2) 4 Maule & Sel. 192. Chap. X.] VERDICT AGAINST LAW. 345 Technical objection not regarded. usurious or not, it was held to be a question for the jury, depend- ing on whether it may be ascribed to a reasonable remuneration for trouble and expense, or a color for the payment of interest above five per cent, upon a loan ol money. Verdict for plaintiff, and motion for new trial. And per Lord Mknborough, Gh. J. — "The verdict ought to' have effect given to it, unless it appears clear that the jury have drawn an erroneous conclusion. The court, in granting new trials, does not interfere, unless to remedy some manifest abuse, or to correct some manifest error in law or fact." Pointing to this case, a rule governing the general prin- ciple, in its application to particular cases, has been expressed with great precision. The rule as laid down is substantially this: it must clearly and manifestly appear, that the jury have given their verdict under a misconception of the law, or have given it believing what they ought to have disbelieved, or dis- believing wliat they ought to have believed. The rule of law which ought to govern a particular ease, can always be ascer- tained ; the state of facts is frequently doubtful, when it is pecu- liarly the province of the jury to decide the question; and wherever there is room to doubt,, the court will not grant a new trial, because the inclination of their opinion is at variance with the verdict of the jury. Jones V. Darc7i.{l) This was an action on a bill of *exchange, drawn by Thomas Aspull on the defend- [*346] ants, and accepted by them, in favor of William Aspull, and by him indorsed to one Booth, and by him to the pLiintiffs. The defence set up was, that in point of law, the payee, who was of course the first indorser of the bill, being an infant both then and now, was not entitled to indorse, nor could, by his indorse- ment, give currency to the bill, or render it legally negotiable. But the cause being suffered to proceed, it appeared that all these circumstances were known to the acceptors, (the defendants,) and that the bill had been indorsed before they accepted it, and there- fore the jury found a verdict for the plaintiffs. And the court refused a rule riisi to set it aside, saying, that as far as these de- (1) 4 Price, 300. 346 NEW TEIALS. [Chap. X, Where the action is trifling. fendants were concerned, who were proved to have known all the circumstances, before they accepted the bill, and as it ap^ peared from the evidence, which the jury believed, to have beeg. their object to get all the money they could by means of such bills ; they ought not now to be permitted to avail themselves of the objection, whatever weight it might have had in a case of different circumstances. So in Qerhier v. Emery,{l) the court refused to grant a new trial because the defendant would, in the event of the same being granted, compel the plaintiff to submit to a non-suit, in conse- quence of a defect in the declaration, and thus defeat the justice of the case. "If we were," say the court, "to grant a new trial, it would be upon the terms of permitting the plaintiff to amend, and to add a new count, so as to omit that part of the case which states a promise by the defendant — And it is obvious the new trial could be of no use to the defendant on these grounds."(2) [*347] *IV. . Where the action is trifling. Nor will the court set aside the verdict in trifling actions, although the jury may have found against law. By the Eng- lish practice, in addition to other suits frivolous in their na- ture, an action is considered as trifling when the sum to be reco- vered is under £20.(3) This of course is not meant to compre- hend penal, nor what are called hard actions, sounding only in damages. And, although in this country no particular class of cases, nor any specific sum is designated, except in equity, as infra dignitatum curiae; yet numerous cases have occurred, so utterly frivolous, as to fall within the principle of the rule. In Barker v. 'I)ixie,(4:) case for a malicious prosecution of an (1) 2 "Wash. C. 0. Rep. 4 13. (2) Et vide 1 Peters, 183 ; 4 Day, 42 ; 1 Hayw. 14 ; 2 Hayw. 122 ; 4 Ham. Ohio Eep. 513. (3) Vide 2 Tidd. 916 ; 2 Oromp. & Jer. 14 ; 5 Price, 334 1 9 Price, 59, and 1 Tyr" whitt, Index, " New Trials." (4) 2 Str. 1051; Etvide Ibid. 940. Chap. X.] TEEDICT AGAINST LAW. 348 Where the action is trifling. indictment for felony, the jury found for the plaintiff, and gave 5s. damages. And upon motion for a new trial, on account of the smallness of damages, the court held there could be no new trial on that account ; for this was not a false verdict, as finding for the defendant would be, and would subject them to an attaint. In. Marsh v. Boiuer.{V) Action for words. The defendant's wife had said to the plaintiff's wife, who had been a witness on a writ of inquiry, " You have forsworn yourself, and your ears ought to be nailed to the pillory." The words were fully proved on the trial; but the jury found a verdict for the defendant. Lord Mansfield, who tried the cause on the home circuit, reported that he expected a verdict for the plaintiff, but with very small damages, as the words were spoken in heat and passion, and never afterwards repeated. The court unanimously declared that they would not grant a new trial for the sake of sixpence dama- ges, in mercy to the plaintiff, as well as the defendant. And therefore a rule having, been obtained to show cause *why a new trial should not be awarded ; they, with- [*348] out hearing the defendant's counsel, discharged the rule.(2) So in Burton v. Thompson.{%) On showing cause against a rule for a new trial, Mr. Justice I'oster reported, that it was an action for a libel ; that the charge was proved by the plaintift ; that the injury done to him. thereby appeared upon the evidence to be so very inconsiderable, that if the jury had found for the plaintiff, he should have thought half a crown, or even a much smaller sum, to have been sufficient ; but that the jury had gone too far, and, instead of giving the plaintiff very small damages, had found a verdict against him. Lord Mansjield.—" It does not follow, by necessary consequence, that there must alwavs be a new trial granted, in all cases whatsoever, where the verdict is (1) 2 TV. Blacks. 851. (2) Vide Price v. Everitf, 1 East, 683, m noUs. (3) 2 Burr. 664. 349 NEW TEIALS. [C^ap. X. Where the action is trifling. contrary to evidence ; for it is possible tilat the verdict may still be on the side of the real justice and equity of the case. Here the jury have found for the defendant, and the plaintiflfmust pay the costs before he can have a new trial. I do not think that we ought to interfere, merely to give the plaintiff an oppor- tuniiy of harassing the defendant, at a great expense to himself, where there has been no real damage, and where the injury is so trivial as not to deserve. above a half crown compensation."^!) In Brantingham v. Fai/.{2). Where, in an action of debt for a penalty in a special agreement, though the court were of opinion that the plaintiff was entitled to a verdict, but no damages were shown, nor any rule by which the jury could ascertain the dam- ages, they refused to set aside a non-suit and grant a new trial, merely to give the plaintiff an opportunity to recover nominal damages.(3) [*3-i9] *And in Feeter v. Whipple.{'i) Case against defend- ant as sheriff for an escape. The plaintiff ma<]e out his case, and the judge charged the jury, that the plaintiff was enti- tled to recover in damages, as much as he had, lost by the es- cape ; and that they would be warranted to find a verdict for the plaintiff for $45, the amount of property sold on the execu- tions. The jury found a verdict for the defendant. A motion was made to set aside the verdict, which, was submitted to the court without argument. Per Curiam. — " The action is sound- ing in tort, the sum in controversy small, the value of the prison- er's property, uncertain, and the evidence on that point contra- dictory ; it is not a case for a new trial." So in Hurtin v. RopJnns.(p) Action for a libel, and proof for the plaintiff complete. The judge charged the jury that the publication was libellous, and that the defendant, having wholly (1) Vide Stevens v. Aldridge, 5 Price, 334. (2) 1 Jolma. Cas. 255; Elvide 3 Johns. Rep. 239. (3) Vide Roberts v. Karr, 1 Taunt. 495. (4) 8 Johns. Rep. 369. (5; 9 Jolins. Rep. 36, Chap. X.] VEEDICT AGAINST LAW. 350 where an important principle is involved. failed in his justification, the plaintiff was entitled to a verdict- The jury found a verdict for the defendant. A -motion was made to set aside the verdict and for a new trial. Per Guriam. — " The general rule is not to grant a new trial, in actions of this nature, when the verdict is for the defendant, and there is no othpr ground for the motion than that the jury have misunder- stood or disregarded the evidence. The case before us was not that of a very aggravated libel, nor were the cases, in general, of that character to which the rule has been applied. A jury would rarely, in a gross case of defamation, find a verdict against the plaintiff; if they did, it would be pretty good evidence of prejudice, partiality or corruption. The court do not mean to lay down a rule for such extreme cases, but they cer- tainly would not be *justified, by the precedents, to in- [*350] terfere in the present case."(l) And in Ex parte JBaily,{2) on an application for a mandamus, the court having intimated that they would hold the courts below to the discharge of their duty in extreme cases, and would correct their decisions, where their discretion has been abused, say, in con- clusion — "Even where a verdict is, plainly against law, the court may many times properly deny a new trial ; as, if the controversy be very trifling in its nature, or contemptible in amount."(3) In Vermont, in Bulloch v. Beach,{i) the court adopts.these po- sitions, that a new trial will not be granted on the ground of new discovered evidence, if such evidence be merely cumulative ; neither will a new trial be granted, unless the court be of opinion that injustice has been done by the verdict ; nor will a new trial be granted where the amount in controversy is trifling.(5) V. Where an important principle is involved. But where an important principle is involved, and the verdict (1) Vide 4 Marsh. Kent Eep. 450, 546. (2) 2 Cowen, 479. (3) Vide 5 Johns. Rep. 137 ; 10 Johns. Eep. 447. (4) 3 Term. Rep. 73. (5) Vide post, " Smallness of Damages," Chap. XII, Vol. I. 23 851 NEW TEIALS. [Chap. X, Where an important principle is involved. is to be followed by serious consequences to the party against whom it is found, if against law, a new trial will be granted, without regard to the amount, or any oihev -collateral matter. This rule is suf&ciently illustrated in the case of Leviy. Miln,{l) where the jury found for the defendant, although the plaintiff's case was clear. Burrough, J., cites, with approbation, a saying of Justice Bulhr, that the courts would not permit a jury to find contrary to the facts of the case. *[35r] *So in Turner v. Lewis.{2) Gurney moved for a tiew trial, on the ground that the yerdict was against evi- dence, and the opinion of the learned judge before whom the cause was tried. It was an action of trespass for entering the plaintiff's close, and cutting down trees. Defendant pleaded the general issue, and liberum tenementum, which was denied in the replication. The question upon the trial was, as to the exact line of boundary in a fence between the plaintifif]s and the de- fendant's land, and whether the trees were on the plaintiff's or the defendant's side. The jury, after a view of the locus in quo, found a verdict for the plaintiff, for the value of the trees cut down, and taken away by the defendant. The court, after in^ quiring what was the amount of the damages found by the jury, and ascertaining that they were under £20, suggested that the smallness of the damages might afford an answer to the applica- tion ; but, upon Gurney's observing, that as the action was brought for the purpose of trying a right of a permanent nature, and which might become the subject of future litigation, this case was not affected by the general rule, that a new trial is not to be granted where the damages are under £20 ; the court as- sented to that proposition, and granted a rule nim. And the court will order a new trial on questions deciding important rights, w'here the judge expressed an opinion on the trial contrary to the verdict, although he afterwards report, that he was not dissatisfied with the finding of the jury. As in the (1) i. Bingham, 195; Supra, p. 123. Mtvide Vernony. Eamlcey, 2 Term. Eep.'H3. (2) IChitty'S'Rep. 265,- Chap. X.] VERDICT AGAINST LAW. 352 Where au important principle is involved. Earl of Mountedgecomle v. Symons.{l) The plaintiff had brought an action on the case for diverting a water-course. The jury found a verdict for the plaintiff. The defendant obtained a rule nisi for a new trial, on the ground that the finding by the jury was adverse to the direction of the judge. The judge reported *that on the part of the plaintiff, it was proved [*352] that the ancient bed of the water lay between the two estates. The defendant answered that, by proof that the stream had been diverted since the year 1790, and proved that he had 'Used it to work a lead mine till 1803, when the work ceased ; and that as soon as the mine was re-opened, he again employed the water as before. The judge then observed, that during the trial, his inclination was in favor of the defendant, and that had he been on the jury, he should so have found; but he added that he was not dissatisfled>with the verdict as it stood. Thomp- son, Chief Baron, having stated the case. — "This question is, whether the property in this water belongs to one party or the other, and is certainly one of very considerable importance to their interest, as the verdict of the jury will have the effect of conclusively deciding the right on all future occasions ; and there- fore we think that it ought to go down to another trial."(2) And, although in ordinary cases, the ignorance or neglect of coun- sel will be visited on their client, as we have seen, yet where the verdict would prove decisive of his rights, to the irreparable in- jury of the party, the court will interpose, unless the counsel expressly waive the principle of law, which would have pro- tected his client. As, ■ In- the Queen v. Corporation of ffekton,{3) the question was, whether, if upon a trial, a point in law be started by the judge, and the counsel do not take it up, but insist upon other facts, which are found against them, whereas, had the counsel insisted upon the matter of law stirred by the judge, the verdict must have passed for them,, this is sufficient cause to move for a new (1) 1 Price, 278. (2) Vide 11 Price, 136; (3) 10 Mod. 202. 353 NEW TEIALS. [Chap. X, In penal and hard actions. trial. Parker, Ch. J. — " The question in this case I take to be this, whether we are so bound down by forms of law, as that, though we see a verdict given contrary to a point of [*353] law, which the judge *himself took notice of, and yet for want of the counsels' doing their duty to their cli- ents, was not insisted upon, we cannot grant a new trial. When a point of law arises, whether the counsel insist or do not insist upon it, the judge is bound to direct the jury accordingly. But yet, if the supporting of this verdict be of no more ill conse- quence than in point of costs, and the party has another remedy left him, then I am of opinion that the party ought to suffer for the neglect of his counsel. But if the verdict binds and_ con- cludes the right of the party, then I think it hard that the party should lose his right by a mistake or slip of the counsel. There must be no new trial, and I so far assent to my brothers, that though a verdict should leave the party remediless, yet if the counsel do not only not insist, but expressly waive it, that then there ought to be no new trial." Yl. In penal and hard actions. It is a general rule, with but few exceptions, that in penal, and what are denominated hard actions, the court will not set aside the verdict, if for the defendant, although there may have been a departure from strict law, in the finding of the jury.(l) Thus, In Sparks v. Spicer.(^) One was ordered by the judge of assize to be hanged in chains; the of&cer hung him in privato solo. The owner brought trespass ; and upon not guilty, the jury found for the defendant ; and the court would not grant a new trial, it being done for convenience of place, and not to affront the owner. So in DunMy v. TFa&,(3) in case for negligently keeping his (1) Vide post, " Hard Actions," Ohap. XIV, (2) 2 Salk. 648. (3) Ibid. 6&5. Chap. X.] VERDICT AGAINST LAW. 354 In penal and hard actions. fire. A verdict was found for the plaintiff, and a new trial gi'anted. But jier Curiam. — "Had a verdict been *for the defendant, we would hardly have granted a [*354] new trial, because it is a hard action." In Beavely v. Mainwaring.il) Action for taking plaintiff's ap- prentices away forcibly. It appeared the boys had been picked up by a press gang, headed by Walker, one of the defendants, but went with their own consent. A question arose, whether an action trespass vi et armis would lie, for it was said there was no force. On the other hand, it was urged the sending the press gang, was sending a force. The jury found all the defendants not guilty. On a motion for a new trial, Lord Mansfield, who tried the cause, said, " I thought then, and now think, that Walker was liable to this action, because he sent a force, a press gang to take them. As to the justices, there was no color to maintain the action against them. A special jury of gentlemen found all the defendants not guilty. I think they ought to have found Walker guilty, upon the evidence. Yet it would have been very hard if Walker had suffered for his behavior on this occasion, because he seems to have acted with good intentions. Therefore I think there ought not to be a new trial." And by the whole court a new, trial refused. In Ranston v. Mteridge.{2) Action against a postmaster, for penalties. The plaintiff's case was clearly established, but the jury found for the defendant ; and on motion for a new trial, on the ground that the verdict was against law, per Abbott, Ch. J. — " Without saying that the hands of the court are in all cases tied down, I must say thus much, that the court will not interfere without express proof of misconduct in the jury, and none such is here. I think they were mistaken, but that is not sufficient. They were mistaken, because this was a matter of direction in re- venue law, and the provisions of that law were intended, and have been always held, to exclude all questions of intentio n (1) 3 Burr. 1306. (2) 2 Chitty's Rep. 2'73. 355 • NEW TEIALS. [Ohap. X. In penal and hard actions. [*355] *That was their object. Perhaps the jury thought there was no intention of fraud ; that was wrong, but was no misconduct." A new trial was refused.(l) It may be proper to add, that of this class of cases, slander is emphatically 9ne, wherethe court will rarely disturb the verdict, if for the defendant, although against law. Indeed, it appears to have been regaj-ded at one time as a rule so general, as hardly to admit of au exception. " The court," says Holt, Oh. J., " never, or very rarely grant new trials in actions for words."(2) This subject will be more fully discussed in its proper place.(3) In all cases, however, much stress is laid on the opinion of the judge who tried the case ; if he is satisfied with the verdict upon reflection, although against his charge, a new trial will generally be refused. As in Green v. Speakman."{4:) Action of assump- sit for use and occupation, and verdict for the defendant, con- trary to the opinion of the judge, who expressed his surprise at the result. Vaughan .applied for a rule nisi, that this verdict might be set aside, and a new trial granted. One ground was, that the verdict was directly contrary to the opinion of the learned judge. But the judge having manifested no dissatisfac- tion, upon reflection, the court observed, that although it was a general rule, that they would not interfere in cases where the damages did not exceed £20; and that, notwithstanding that rule might be dispensed with on particular occasions, still as the verdict in question did not appear to have been given ou a mis- take of law, although in opposition to the charge, there was no ground whatever for the present application. And in Gain v. Henderson.ip) The defendant moved [*356] *for a new trial in the Circuit Court, which was refused, and he appealed for various causes. Judge Yeates, upon (1) Tide 3 "Wils. 59 ; 4 Maule & Sel. 331 ; 1 Barn & Aid. 63. (2) 2 Salk. 644. (3) Vide post, " Hard Actions," Ohap. XIT. (4) 8 Moore, 339. (6) 2 Binney, 108. Chap. X.] VERDICT AGAINST LAW. 35& Technical precision in form of action, not required. reporting the case, said that he was not dissatisfied with the ver- dict ; and the court thereupon remarked, that' as to the point, that the verdict was against evidence, it must be a very strong case indeed, which' would induce them to order a new trial, where the judge who tried the cause was not dissatisfied with the verdict.(l) But if the judge who presided at the trial expresses his dis- satisfaction with the finding of the jury^ it will induce the court, at least in doubtful cases, to direct the cause to be sent to another jury /or reconsideration. In Willis V. Farrer,i^l) there was a verdict for the plaintiff, and the defendant moved for a new trial. One ground was, that the finding of the jury was against the opinion of the judge, who was about to comment upon the evidence in favor of the defend- ant, when stopped by the jury, who instantly rendered a verdict against his opinion ; and for this cause a new trial was granted. So in Pringle v. Gaw.{S) Action in ejectment brought for eight inches of ground. The case before the jury turned en- tirely on matters of fact involving a question of boundary. The verdict was for the defendant, and the plaintiff now moved for a new trial, on the ground that it was against the evidence and the charge of the court. GHbson, J., before whom the case was tried at Nisi Prius, having declared that, in his opinion, the verdict was greatly against the evidence and the justice of the case, the court, after having heard counsel in behalf of the defendant, ordered a new trial, without hearing plaintiff's counsel in support of the motion. ' VII. * Technical precision, in form of action, not required. [*357] When the plaintiff would be entitled to the benefit of the ver- dict, in another form of action, the court will not turn him round, (1) Etvide 2 Serg. & Eawle, 119; 1 Ibid. 467. (2) 3 Tounge & Jervis, 264. (3) 6 Serg. & Eawle, 298. 357 NEW TEIALS. [Chap. X. Technical precision in form of action, not required. by setting aside the verdict, upon the ground that he has not framed his action with technical precision.(l) Foxcroft V. Devonshire.{2) This matter came before the court upon a motion for a new trial, on the ground of a misdirection by the judge who tried the cause. It was an action of assumpsit, brought for moneys had and received by the defendants, to the use of the plaintiffs as assignees of a bankrupt. The defendants pleaded non assumpsit, and issue was joined thereon. The cause was tried before Mr. Justice Noel, and a verdict found for the plaintiffs, with which the judge declared himself satisfied. Lord Mansfield, in delivering the opinion of the court, on a motion to set aside the verdict, said, that the counsel for the plaintiff had urged as a preliminary point, that the defendants were guilty of a fraud in paying bills of exchange, drawn upon them by the bankrupt. — " Upon this preliminary point, only," observes his lordship, " it was left to the jury, and upon this point, only, they found their verdict. Upon hearing all the evidence they were of opinion, that the transaction was fraudulent on the part of the defendants, and they gave a verdict for the plaintiffs for the whole money, deducting only the commission due to the defend- ants, and the expenses of the sale of the goods. Though the ground of the verdict should be wrong, yet, if it clearly appeared to us now, that, upon the whole, no injustice had been done to the defendants, or, if it clearly appeared tons now, that the plaintiffs, by another form of action, could recover all they have got by this verdict, we think the court ought not to grant a new trial." [*358] *The rule was recognized and illustrated in Aylett v. Lowe.{3) Debt on mutatus, for £200, and nil debet pleaded. On the trial, before De Grey, Ch. J., there was proof that the loan was for £100, and on motion for a new trial, the court refused to grant it, on the ground that, though the verdict was irregular, justice had been done. (1) Vide swpra, p. 341. (2) 2 Burr, 931. (I) 2 W. Blacks. 1221. Chap. X.] VERDICT AGAINST LAW. 358 Technical precision in form of action, not required. And where the plaintiff has recovered a verdict for a sum of money, composed of several items, some of which he was not in strict law entitled to recover under the declaration in that form of action, but which he would be clearly entitled to recover, by declaring in a different form, the court will not reduce the damages. Mayfield v. Wadsky.iX) Indebitatus assumpsit. Plea, general issue, and verdict for plaintiff. A rule nisi was obtained for entering a non-suit, on several grounds — that no evidence of part performance of the contract, by the defendant, had been shown ; and that if even there were part performance, still this action was not maintainable within the fourth section of the Statute of Frauds, the contract being subsidiary to a contract relating to the sale of an interest in land. On the latter point, Abbott, Ch. J., after disposing of the question of non-suit, observes : " Supposing that the plaintiff cannot recover the residue on a de- claration, for crops bargained and sold, founded on the original contract, on the ground that it. is void by the Statute of Frauds, yet I think he may recover on a declaration, stating that the defendant was indebted for the value of crops sown by the plaintiff on land in his possession, and which the de- fendant was allowed to take, and for which he promised to pay. If the plaintiff" is, in strict law, entitled to recover part of his demand in this action, and in another form of action would be entitled to recover the residue, we ought not to reduce the damages in this case, for this would only have the effect *of putting both parties to further expense, when the [*359] final result must be the same."(2) So in Smith v. Mder.{B) Special action on the case, brought against the defendant for putting on board of an American ves- sel, bound from New York to Scdtland, goods, which, by the laws of Great Britain, were prohibited from being imported into that country in foreign vessels, in consequence of which the plain- tiff's vessel' was seized, and the master compelled ^to pay a large (1) 3 Barn. &, Ores. 351. (2) Vide 8 Mass. Rep. 336 ; 1 Ham. Oiiio Rep. 168. (3) 3 Johns. Rep. 105. 359 NEW TEIALS. [Chap. X. Technical precision in form of action, not required. sum of money to procure her release. There was a verdict for the plaintiff, and a motion for a new trial, one ground of which was, that as the plaintiff had declared in tort, the evidence was not sufficient to prove it, inasmuch as an action for a misfeasance, or tort cannot be maintained for an act done merely in contraven- tion of the revenue laws of Great Britain. Upon this point, the court, per Van Ness, J., observes — " The defendant cannot avail herself of the first ground on a motion for a new trial. If the plaintiff has not disclosed in his declaration, a cause of action, cognizable by this court, that must be taken advantage of in an- other way. But I think, if this objection were permitted to be urged, on a motion for a new trial, that it comes too late." So in Yan Slych v. Hogehoom.{V) Action of debt for the es- cape of one Van Alstyne, who had been surrendered by his bail, not in execution ; the defendant was permitted to show the in- solvency of Van Alstyne in mitigation. The jury found a ver- dict for the plaintiff, not for the debt, but for six cents damages and no more. Per Ouriam. — " The action here was misconceived under the statute ; debt for an escape lies only, when the prisoner is in execution. The action, therefore, for the escape, in this case, ought to have been an action upon the case, in [*360] which the measure of ^damages is open to the investi- gation of the jury, and not in action of debt, in which the whole judgment is to be recovered, or nothing. But as the defendant was here permitted to avail himself of every defence, equally as if the action had been case, and not debt, and as only nominal damages have been recovered, it is unnecessary to set aside the verdict, merely for the sake of giving the defend- ant an opportunity of getting rid of the suit ; for, as the verdict stands, the defendant will recover costs." So in Oogswell v. Brown,{^) cited above, where the objection was taken to the form of action, insisting it ought to have been trespass and not assumpsit. The court say substantial justice has (1) 6 Johns. Rep. 2T0. (2) 1 Mass. Bep. 23T. Chap. X.] VEEDIOT AGAINST LAW. 360 Teolanioal precision in form of action, not required. been done, and the court will not turn the party round upon a formal objection. And in Booden v. Mlis.{l) Trover for cord-wood. The evi- dence clearly showed the action was misconceived ; but the court said, that although the form of action adopted in this case was liable to many objections under the particular circumstances, they were all agreed, that when justice had been done in the form of an action, upon which the verdict had been found, it was not in their discretion, nor were they required by the agreement of the parties, to disturb the verdict upon a question of form only, and especially where, in adjusting the demand, the defend- ant had every advantage which he could have had, under any other form of action.(2) (1) 1 Mas3. Eep. SOY. (2) Vide Livingsiori v. Ba/rman, 9 Mart. Iiouia. Rep. 657, and Bush v. OritchfieU, 4 Ham. Ohio Rep. 117. 361 NEW TRIALS. [Chap. XI. General remarks. *CHAPTER XI. TBRDICT AGAINST EVIDENCE. I. Oeneral remarks. II. Where hut a partial view of the testimony has been taken. III. Where the justice and equity of the case is not with the verdict. IV. Where the evidence was not fully before the jury. V. Where there is a preponderance of evidence against the verdict. VI. Where the grounds of the motion are technical or doubtful. VII. Motion not granted against the equity of ihA. case. VIII. Where the case is frivolous in itself. IX. Where the judge is satisfied. I. Oeneral remarks. Facts are peculiarly the province of the jury. Whether the proof offered be competent, is for the court — whether it be sufficient, -when produced, is for the jury. Ad quesiionem legis, judices, ad quesiionem facti,juratores, respondent. But, in weighing the testimony, the passions and prejudices of the jury are apt to mingle, or from ignorance or misapprehension, or mere obstinacy, they may arrive at a result, directly at variance with the truth of the testimony. The verdict ought to be, as the name implies, the very enunciation of truth, But it is not always so. It is frequently bottomed upon a superficial and partial examination of the testimony, and announces a result, directly repugnant to the evidence, as a whole. It is then a verdict against evidence, and calls for the interposition of the court. To permit it to remain, would be to sanction injustice; and to deny the court the power to correct the flagrant abuses of the jury, would be to br Eg the administration of justice into contempt, and render the boasted trial by jury, a great public evil. The courts have .the power to correct, and are in the constant habit of exercising it, on this ground, limited only by their own discretion, guided by such precedents as experience has furnished. Although, owing to the ever varying aspect of cases, it is impossible to reduce the Chap. XI.] VERDICT AGAINST EVIDENCE. S62 Where but a partial view of the testimony has been taken. practice on this head to rules of universal application, yet we are not without some well settled principles, forming the outlines, and giving consistency to this *very prolific [*362] source of judicial decision. These rules vary with the degrees of evidence, as they are graduated by successive deci- sions, from the point of incredibility to that of moral certainty ; and as the truth of the finding advances or recedes, the decision avoids, modifies, or affirms the verdict. > It may be regarded as a proposition, containing a rule of uni- versal application, and one instar omnium, that where an issue of fact is fully and fairly submitted upon its merits, and the jury, in the free exercise of a sound judgment, pass upon it, their verdict shall stand.(l) The converse of the proposition holds, that where the merits are not fully submitted, or are wholly overlooked, or but partially noticed by the jury, and they find manifestly against evidence, or the weight of evidence, or the equity of the case, justice requires that the verdict should not be permitted to stand. The great difficulty that presents itself in every attempt to en- force these general positions is, to sufficiently guard the province of the jury against encroachment, to leave them in possession of their rights uncontrolled, on questions of fact, and yet prevent the triumph of injustice. To accomplish this, and at the same time to- extend relief, numerous distinctions have been taken, accompanied with decisions constituting the outlines of a practice, intended to govern the courts in all similar cases. II. Where hut a partial view of the testimony has been taken. Where the case has never been fully submitted on its merits, or the verdict is bottomed upon a partial view of the testimony, and therefore clearly unjust, it will be set aside, and a new trial granted. (1) 2 Aroh. Prac. 222 ; Gra, Prac, 614, 863 NEW TEIALS. [Chap. XL Where but a partial view of the testimony has been taken. UAyroUes v. Hoivard.(X} Trespass by the lord of a [*363] manor against the commoner for spoiling hisf^ea^. *Plea, a justification under a right of common. Eeplication, de injuria sua propria absque tali causa. The principal question at the trial was whether the plaintiff, could, upon this issue, give in evi- dence that there was a sufficiency of common left. The judge was of opinion that on this issue he could not. The court now con- curred in the same opinion. But, however, as it appeared that the merits had never been fully tried, they thought that the present verdict for the defendant should be set aside, and a new action brought by the commoner against the lord, in which all the matters insisted upon might be given in evidence ; for both sides declared a desire to have the real merits fairly and fully tried. So Bex V. Mdlden.{2) Information in the nature of a quo war- ranto, to show by what authority the defendant claimed to be bailiff of Maiden, and verdict against defendant. It was now moved to show cause why the verdict should not be set aside, and a new trial granted. There were in all five issues ; but the two first were quite out of the case. The present question turned upon the third, fourth and fifth issues ; which were found for the prosecutor, by the judge's opinion ; but were, at the trial, agreed to be subject to the opinion of this court, the judge giving the defendant leave to move for a new trial. It appeared that a majority of the aldermen and burgesses were present, and that the defendant was sworn into office before the presiding officer, and also before two others, who had no au- thority to swear him, and this became the chief point on the defendant's motion. This point was urged, on the ground that the swearing, which was not in the issue, had been put forth as the main issue, to the exclusion of the election of the defendant, which ought to have been the only issue ; and upon this [*364] , ground, that the true question *had never been sub- mitted to the jury, a new trial was granted.(3) (1) 3 Burr. 1385. (2) 4 Burr. 2135. (B) Vide 1 Monroe, 262 ; 4 Ibid. 48. CflAP. XI.] VERDICT AGAINST EVIDENCE. 864 Where but a partial view of tlie testimony has been taken. So, in Farrant v. Ohnius,{i) where the jury found arbitrary damages, instead of the increased rent, which was the measure of damages by agreement, and to which the evidence properly applied. It is true, the verdict was against law, but it was also against evidence : atid both causes combining, although it was urged that the motion should be granted on payment of costs, the court made the rule absolute generally. And in Mumford v. Smith.{2) Action on a policy of insu- rance, on the cargo of the sloop Mary, and claim for a total loss, and the jury rendered a verdict accordingly. The defendant moved for a new trial. The opinion of the court, delivered by Livingston, J., sufficiently states the testimony at the trial. — "It is conceded that the right to recover cannot exist, unless the vessel, at the time of sailing on the voyage insured, was sea- worthy ; that her not being so will affect, as well an innocent shipper of goods, as the owner of the vessel. This is certainly so, and however hard the law may bear on persons of this de- scription, the underwriter is entitled to the full benefit of it, and ought not to be held to payment when this implied warranty has been violated. Whether such has been the case is princi- pally a question of fact, and we would not willingly disturb a verdict given against an assurer of goods on a defence of this kind, where there had been a contrariety of testimony, or where the proofs were nearly in equilibrio; perhaps not, unless their de- cision was most manifestly against the whole of the evidence-^ such we think is the case here. No one who reads the testimony can hesitate in saying, that the breaking up of this voyage was not occasioned by *any one of the perils in- [*365] sured against. The Mary must then either not have been sea-wol'thy when she left New York, or so far decayed as to require repairs at an intermediate stage of the voyage, which it was either impracticable to give her, or which would have cost more than she would, when repaired, have sold for. In either case, the defendant is not liable. Our opinion is, that this is a (1) 3 Barn. & Aid. 692 ; Supra, p. 331. (2) 1 Gaines, 520. 865 NEW TRIALS. [Chap. XI, Where but a partial view of the testimony has been taken. Verdict palpably against evidence, which established) beyond a doubt the innavigability of the vessel, and that a new trial must therefore be had."(l) , In Jaclcson v. Parker.{2) A new trial was granted, as well because the verdict was against evidence as against law. It ap- peared that Parker, the elder, being in failing circumstances^ transferred the property in question to the son, the defendant, for an alleged valid consideration; and shortly thereafter the judg- ment creditor sold all the right, title and interest, of the elder Parker in the premises, to the lessor of the plaintiff. The judge charged, and the jury found for the defendant. Motion for a new trial. The principal'question urged was, that the assignment was fraudulent. It was admitted that question had been properly left to the jury. In answer to the motion. Savage, Ch. J., ob- serves — " Was the assignment fraudulent either in fact or in law ? It has been decided that a failing debtor may prefer one creditor, or set of creditors, by an assignment of his property; but if, in that assignment, a provision is made for the debtor or his family, the whole assignment is void. (8) It is in evidence that both the Parkers knew of this debt and spoke of it, and of their deter- mination that the creditors should not have the farm ; and as no other consideration is pretended but the support of the [*366] *family, it seems to me the assignment is fraudulent and void, as to creditors. If I am correct in this position, then the case is precisely within that of Jaclcson v. Scott,{4:) and the plaintiff is entitled to recover. I am of opinion that a new trial be granted." And in Olmsted v. MiUer,{5) in error. Slander; verdict for plaintiff, and motion for a new trial, on the ground that the proof did not sustain the plaintiff's case, and the verdict was without, and contrary to, evidence. Savage, Ch. J., delivering the opinion (1) Vide n-umtullY. Rivers, 3 M'Cord, 132. (2) 9 Cowen, 13 ; Supra, p. 335. (3) MacMe v. Cairns, 5 Cowen, 541. (4) 18 Johns. Rep. 94. (5) 1 Wendell, 606. Ghap. XL] YEEDICT AGAINST EVIDENCE. 366 Where but a partial view of the testimony has been taken. of the court, after commenting on the proof introduced by the plaintiff in support of the words, proceeds — " These words, al- though they may be said to be equivalent to the charge, yet within the rule heretofore established, they are not the same in substance. The same remark is applicable to the other charges. The same idea is conveyed in the words charged and those proved ; but they are not substantially the same words, though they con- tain substantially the same charge, but in different phraseology. The special damage shown, is probably sui5cient.(l) The plain- tiff was refused civil treatment at a public house, in consequence of the slanderous words spoken by defendant. She was also re- fused the hospitality and protection of a friend, in consequence of similar slanders ; but that loss is not proved to have been the consequence of the words spoken by the defendant. On the whole, I am constrained to say, that the plaintiff in, the court below did not prove the words laid in her declaration, and there- fore ought not to have recovered." Judgment reversed, and a venire de novo awarded.(2) '5 And in Lloyd v. Newell.{S) Upon the first trial of this *cause before Justice Ford, a verdict was rendered for [*367] the defendant, which afiferwards, at the instance of the plaintiff, was set aside, and a new trial ordered. A second trial took place, and a verdict was found for the plaintiff". The defend- ant obtained a rule to show cause, why this verdict should not be set aside. The plaintiff claimed a balance due on a purchase, and bis deed having the usual acknowledgmentof payment of the consideration money, put on him the burden of proof to rebut the presumption raised by that receipt, in which it appears he entirely failed. Upon this point, the court were unanimous that the jury had drawn erroneous conclusions in point of fact from the proofs before them, and that the verdict was without evidence to sus- tain it. The verdict was set aside, and a new trial granted.(4} (1) 1 Taunt. 39; 8 Terra Rep. 130. (2) Vide infra, "Sliinder," Uliap. XIT.; Earker v. Reavis, N. C. Law Kep. 216. (3) 3 Halsl. Rep. 296. (4) Vide Butsoa V. Williamson, 1 S. C. Con. Rep. 193. YOL. 1. 24 367 NEW TRIALS. [Chap. XI. Where tRe justice and equity of tlie case are not witli the verdict. So iii Gommonwealth v. Malbone Briggs and wife.{l) The de- fendants were jointly indicted for receiving stolen goods. The indictment set forth the record of a former conviction of Malbone of a similar offence, with the usual allegations of identity. Upon the trial the identity was not denied, nor was any evidence offered to prove it. No question was made to the j ury upon the point. The jury returned a general verdict of guilty against Malbone, who moved for a new trial. One ground was, because there was no evidence of the identity of the Malbone Briggs, named in the former conviction, and the present defendant, to support the ver- dict. Per Guriam. — " Upon this point, it is said that the prisoner did not deny his identity with the person formerly convicted. But the plea of not guilty is a denial. No presumptions are to be made againfst the prisoner. The government must prove every essential allegation. It was the right of the prisoner to [*368] take advantage *of the omission on the part "bf the gov- ernment. The attorney-general refers to the statute, allowing, in some cases, an acquittal of part of the offence charged, and a conviction of the residue ; but that is to be done by the jury. Here they have convicted of the whole charge. The court cannot separate the part improperly found, and punish for the residue.(2) Verdict set aside. III. Where the justice and equity of the case are not with the verdict. If the verdict be against the weight of evidence, especially if the justice and equity of the case is not with the verdict, it will be set aside. The distinction between a verdict against evidence, and against very weak evidence, must, in many instances, appear scarcely perceptible, and the granting of new trials in such cases entirely discretionary. It seems as if the several cases upon the subject warrant the conclusion, that the courts will grant a new trial where the verdict is manifestly against the weight of evi- (1) 5 Pick. 429. (2) SmdeSayer, 264; SWila. 38; 4 Oonn. Rep. 426; 7 Halat. Rep. 163, 191; 2 Marsh. Kent. Rep. 195, 522; 6 Littell, 185; Hardin's Kent. Rep. 639. Chap. XI.] VERDICT AGAINST EVIDENCE. 868 Where the justice and equity of the case are not with the verdict. dence, although some proof has been adduced on the other side, provided injustice seems to have been done by the verdict, and the cause is of sufficient value ; as in Gorbettv. Brown.{V) Action in deceit ; plea, not guilty, and issue thereon. At the trial, be- fore Tindal, Ch. J., it appeared that H. Brown applied to the plaintiffs for a supply of goods upon credit ; and upon inquiry as to his circumstances, he stated that he had a capital of £300 to begin with. The plaintiffs were particular in their inquiries, and H. Brown referred to his father, (the defendant,) for the truth of this statement, who assured them the information given by his son was perfectly correct. In consequence of this, the plaintiffs trusted Henry Brown, who shortly after became insolvent, with a deficit in the plaintiff's books of near £400. The £300 defendant had lent to H. Brown *about three [*369] weeks before his letter to the plaintiffs, the defendant taking, at the time of the loan, H. Brown's promissory note for the amount, payable on demand, with interest at 5 per cent. ; but the defendant declined to prove the £300 as a debt under his son's commission. The jury found for the defendant. A rule nisi was obtained, to set aside this verdict as contrary to the evi- dence, the plaintiffs having requested to know, whether the de- fendant's son had £300 capital of his own property, and the de- fendant having stated such to be the fact, when he knew his son had none but borrowed capital. Tindal, Ch. J. — "We think there ought to be a new trial in this case on payment of costs, the jury having drawn a conclusion from the defendant's letter, ■which, it seems to the court, its contents do not warrant."* AMer- son, J. — " The question is whether, from the statements being false within the defendant's knowledge, the court must not infer fraud." Rule absolute.(2) So in Rhone v. The Insurance Company of North America.i^) Motion for a new trial, upon the ground that the verdict was against evidence, on a policy of insurance. It was contended, (1) 8 Bingham, 33. (2) Vide Means v. Moore, 3 M'Oord, 282 ; Mann v. Pa/rker, 2 Murphy, 262. (3) 1 Wash. 0. C. Rep. 123. S69 NEW" TEIALS. [Chap. XI. "Where the justice and equity of the case are not with the verdict. that the court having left it to the jury to say whether the trade was direct or not, and they having found that it was not, the court had precluded itself from interfering with their finding; and that jury trials must be done away, if the court shall under- take to set aside their verdict upon the ground that it was given against evidence. But by Washington, J., who delivered the opinion of the court — " I certainly shall always respect the opin- ion of the jury, so far as not to set aside their verdict in a doubt- ful case, because I might have drawn a conclusion different from what they have done. But if the verdict be plainly against evidence ; or if in a case of great consequence, [*t570] as *this' certainly is, where some doubt might exist, as to the correctness of the conclusion drawn by the jury, it would seem right that the case should be more deliberately argued, and considered by another jury ; it is certainly most con- sistent with the objects of justice to afford such an opportunity. I cannot conceive how the granting of a new trial can impair the benefits of a jury trial. If, by setting aside the verdict, the con- sequence would be a judgment contrary to it, the position would be correct ; but this is not the case. The cause is merely re-heard before a new jury, when it may be more deliberately considered." New trial awarded.(l) And in Hutchinson v. CoUman.i^) Action on the case for flowing water back on the plaintiff's mill, and verdict for de- fendant. Drake, J., after a minute recapitulation of the testi- mony-r-" This, in some cases, would not be sufficient to disturb a verdict. But in this case the controversy is important ; there is much reason to believe that justice has not been done. The evidence is flatly contradictory on points where the truth is ca- pable of being shown with certainty, which the parties on a second trial may be able to do, and which, on the first, they have not been prevented from doing by negligence, each. having made a reasonable preparation for the trial ; but each, no doubt, being disappointed in the adverse testimony, especially upon (1) Etvide Bowman v. CoX, Peck's Tenn. Rep. 364. (2) 5Halst. Rep. 74; Chap. XT.] VERDICT AGAINST EVIDENCE. 37& Where the justice and equity of the case are not with the vordiot. several points wbere the evidence is so contradictory that the witnesses, upon one side or the other, must have grossly mistakea or wilfully misrepresented the facts. Let the rule for a new trial be made absolute." So in Wallace v. Frazier.{l) Assumpsit on a written warranty of the soundness of a negro. At the trial, the plaintiff's proof was conclusive. Th^ jury found one cent *for the [*371] plaintiff; and on motion for a new trial, on the ground it was a verdict substantially for the defendant, and clearly against evidence : Nbtt, J., delivered the opinion of the court, concluding-T-"The difference between the value of the negro, if sound, and his value in the situation which he was, became the rule by which the damages ought to have been estimated. The testimony on the point was clear and uncontradicted, and the jury were not authorized to disregard it, and adopt an arbitrary rule of their own, unsupported by any 'testimony. The ver- dict was clearly against evidence, and a new trial must b§, granted."(2) Even hard actions form no exceptions to this rule, for if the verdict be manifestly against evidence and the justice of the case, the court will set it aside and grant a new trial. It will be granted in fraud. Thus, in an Anonymous case.(S) The underwriter had sued the defendant for an insurance fraudu- lently obtained. The cause had been tried, and a verdict found, by a special jury of merchants for the defendant. The question turned principally on when the ship to be insured was to sail, whether it was in port or no at the time of the insurance pro- cured, and whether the defendant knew of the loss when he wrote for an additional insurance. Motion for a new trial. Lord Mansfield — "It is very proper that all matters, especially of this nature, should be so conducted, that the party guilty of (1) 2 Nolt & B'Cord, 516. (2) Mt vide Joknson. v. Davenport, 3 J. J. Marsh. Eep. 391 ; Creel v. BeU, 2 Ibid- 310. (3) Lofft, 212. 871 NEW TRIALS. [Chap. XI. Where the justice and equity of the case are not with the verdict. fraud may see they are not likely to gain by it. It is always by circumstance that fraud is discovered. And it'is very remarkable here, that this gentleman insured in London, from Poole to New- castle, £1,000 only ; and that, after the time when the account came to Poole of his ship being lost, he writes for a further in- surance. It may be discovered, whether he did not ac- [*372] tually read the paper which gives this *account ; and when this letter was put into the post, which it was strange a man of business should send when no post went out, and without waiting for what news that or the next should bring, and that on the next day's intelligence, he did not correct his notice. Something too may be collected from any indorsing that may appear to have been made by the office, importing the time on which the letter went out. I remember a case at Poole, which turned on that only. I never have any difficulty in alter- ing my opinion. At first, I thought the matter suspicious ; after- wards I doubted ; and am now returned to my former opinion." Rule made absolute for a new trial.(l) So in quo warranto. It was once doubted whether, under any circumstances, a new trial could be granted in a case in the na- ture of a quo warranto, where the verdict was against evidence. In Bex V. BenneU,{2,) upon the trial of an information, in the nature of a quo warranto, for exercising the office of Mayor of Shaftesbury, the jury found a verdict for the defendant ; and upon a motion for a new trial, great doubts arose whether, after a verdict for the defendant, there could be any new trial, though the judge should certify (as he did in this case) that it was a ver- dict against evidence. After the point had been twice spoken to, it was adjourned propter difficuUatem, to be argued before all the judges of England. Afterwards, in the King's Bench, Pratt, Ch. J., declared — " That they had called in the assistance of the other judges, and that, upon the whole, they were equally di- vided ; so no rule for a new trial could be made." (1) V0e Barker v. Reaves, N. 0. Law Rep. 2161 Ayde, "Perverse Verdicts," p. 121. (2) 1 Str. 101. Chap. XL] VEEDIOT AGAINST EVIDENCE. 373 Where the justice and equity of the cage are not with the verdict. But in The King v. i'Vawc?s,(l) a verdict having been found for the defendant, in a quo warranto information, to show by what authority he claimed the office of *A1- [*373] derman of Cambridge, a new trial was moved for, on the ground that the verdict had been given against the weight of evidence. It was objected, on showing cause, that no new trial could be granted in an information in the nature of a quo war- ranto : for which The King v. Bennet was cited. But the court granted a new trial, saying, that of late years a quo warranto in- formation had been considered merely in the nature of a civil proceeding ; and that there were several instances, since the case in Strange, in which a new trial had been granted. And in an aggravated case of assault and battery, where there was a nominal verdict for the plaintiff, but substantially for the defen'dant, as in Bacot v. Keith,{2) a case of a cruel and unpro- voked assault on the part of the defendant, who had fired a gun at the plaintiff, loaded with buckshot, which had nearly taken off an arm ; and for this injury the jury had only given him one dollar damages. On a motion for a new trial, the judges were unanimously of opinion, that the jury in this case had behaved shamefully, and deserved the severest reprehension of the court for such glaring partiality and injustice. They observed, that although it was not usual to grant new trials on account of the smallness of damages, yet this was so extraordinary a case, in which every principle of justice had been outraged, that they could not hesitate a moment in ordering a new trial. And in slander, Johnson v. Scribner.{3) Three witnesses for the plaintiff, in an action of slander, testified explicitly to the speak- ing of the words charged, in a ball-room where there was a dan- cing assembly, with the music of a violin, and where a fracas, with much confusion, took place, at or about the time referred to ; and eleven witnesses for the defendant testified that they were in the room, and heard *no such words as the [*374] (1) 2 Term. Rep. 484. (2) 2 Bay, 4G6 (3) 6 Conn. Rep. 185. 374' NEW TRIALS. [Chap. XL Where tlie evidence waanot fully before the jury. plaintiff's witnesses had sworn to, and that, in their opinion, they should have heard them if they had been spoken ; and a verdict was found for the defendant. A new trial was granted, on the ground that the verdict was clearly against the weight of evidence.(l) IV. Where the evidence was not fully before the jury. It is a general rule, that where, in weighing the testimony, oa a motion to set aside the verdict as against evidence, they are satisfied the evidence on the side ag dnst which the evidence pre- ponderates, was not fully before the jury, they will, for that cause, incline to grant a new trial, that the cause may be disposed of on its merits. In Nbrris v. Freeman.{2) Debt on bond. Plea, general release. Eeplication non est factum, and joinder inde. A verdict was found for the defendant, and a new trial was moved for, upon an afli- davit that very strong circumstances, of forgery and perjury appeared upon the trial. The release produced by the defendant bore to be executed the 10th of October, 1768. One Albert aad one Goth appeared to be subscribing witnesses. Albert was called by the defendant, but Goth was not. Albert swore that he saw the plaintiff seal and deliver the release, which was done about one o'clock that day, at the plaintiff's house, thirty milea distant from Worcester. Two respectable witnesses swore they had often seen the plaintiff write, and that his name subscribed to the release was not of his handwriting, as they believed, and that on the 10th and 11th of October, the plaintiff and the wit- nesses were at Worcester all day. A witness swore he heard the defendant say, he would let judgment go by default in this cause, and that he did not then pretendhe had a release. In reply, the defendant called several witnesses, who swore the name [*375] *subscribed to the release to be the plaintiff's hand- writing. On cduse being shown against a new trial, the (1) Vide 1 Serg. St Rawle, 45T ; 2 Hayw. 224. (2) 3 Wils. 38. Chap. XI.] VBEDICT AGAINST EVIDENCE. 875 Where the evidence was not fully before the jury. court, without hearing the counsel for the plaintiff, were of opin- ion there ought to be a new trial. They said — " There are many cases where the court will grant new trials, notwithstanding there was evidence on both sides — as where all the light hath not been let in which might and ought to have been. We think the other subscribing witness, Goth, ought to ha've been called and ex- amined." So in Jackson v. Sternhergh,{V), in ejectment. The plaintiff deduced a title to a certain piece or tract of land lying in Schuy- ler's patent, and which was known and distinguished by lot No. 156. The only inquiry on the trial was, whether the premises in question were comprised within the boundaries set out in the plaintiff's declaration. The jury found a verdict for the plaintiff, and the defendant moved for a new trial, on the ground of the verdict being against the weight of evidence. Thompson^ J. — " The testimony is certainly very contradictory, but none of the witnesses appear to have been impeached. Their testimony, however, may make a very different impression when pat on paper, from what it would to hear them examined. Judging only fjfom the case, the weight of evidence is with the defendant. And although this of itself is not a suflBcient ground for granting a liew trial in all oases, yet from the whole that appears, there is well founded reason to believe justice has not been done ; and thai another examination of the cause ought to be made before the ^possession is changed. "We are therefore of opinion that a new \rial ought to be granted." Bu\if no additional light is to be expected, explanatory of the doubtful points of the testimony, and the evidence be suflBcient to susti^in the verdict, it will not be disturbed. 1 * Camden v. Cowley. {2) Motion for a new trial; the -[*376] verdict \emg (as was suggested) contrary to the sense and mealing of the parties. But Lord Mansfield, Ch. ^T., staled (1) 1 Cain»3, 163. (2) 1"W. Backs. 418. 376 NEW TRIALS. [Chap. XL Where the evidence was not fully before the jury. to the court, that it was an action on a policy ; that the ship in question was what is called a general ship, advertised at Lloyd's coffee-house as bound to the island of Jamaica, generally, and by the course of trade to touch at the several ports of the island, there to deliver some goods, and take in others ; that it was insured at and from Jamaica, and warranted to depart with convoy. The policy was very inaccurately worded, in not defining what was meant by being at Jamaica, which he left to the jury, which was a very capable one. The inclination of his opinion was a con- trary way ; but his lordship thought the case was thoroughly tried, that no new light could be thrown on it, and, therefore, was against granting a new trial, which, if the verdict should be contradictory, must, in the end, produce a third ; and the motion was denied. (1) In Lovat v. Parsons.{2) Trover for a cask of indigo, which Allen, the assignor of the defendants, had ordered previous to his insolvency. The question was, whether, under thecircumstances, the' indigo was the property of Allen, or of the plaintiff, the ven- dor ? The jury found a verdict for the plaintiff. On motion for a new trial, it was urged that it was Allen's, and ought to have been divided among his creditors, with his other property. Lord Mansfield — " Allen refuses to receive the indigo, and next objects to the shortness of credit. Subsequent to this, the defendants ap- ply to Allen for an assignment of his effects for the benefit of all his creditors, and being apprised of the dispute relative to tbe in- digo, request him to assign that among his other effects. This Allen positively refuses to do, saying he would sooner [*377] rob on the highway, for that *he had never accepted it. After this declaration, the assignees, with full notice that it was not Allen's property, bribe the carrier to deliver t'le indi- go to them, and now insist they are entitled to it, as claiming un- der Allen, though he has renounced all claim or right to it what- soever. I really never saw a case so void of pretence or law. "(3) Rule dispharged. (1) Et vide 2 Blacks. 1221. (2) 1 Cowp. 61. (3) Vide Bankey v. Trotman, 1 W. Blacks. 1. Chap. XI.] VERDICT AGAINST EVIDENCE. 377 "Where the evidence was not fully before the jury. So in CoUinson v. Larkins.{l) Case for running foul of, and injuring plaintiffs' ship. The jury found a verdict for the plain- tiffs. A new trial was moved for, on the ground that there was not sufficient evidence before the jury to entitle the plaintiffs to recover. Mansfield, Oh. J. — " I should have no objection to the cause being tried again, if I thought any new light could be thrown upon it ; and had I been on the jury, I should have made such allowances for the darkness of the night, that I should have found for the defendant, attributing the cause to mere accident, and a dark foggy night. There was some contradiction between the witnesses, as to the distance at which the ships first discover- ed each other and hailed. It was attempted to insinuate that the defendants tried to delude the plaintiffs by concealing the name of their ship ; but this insinuation was afterwards done away." And Per iotam Curiam ; rule refused.(2) So also in Buff v. Budd.{B) Case against a carrier for negli- gence. He had directions to deliver goods to one Parker, but while in the defendant's office, a stranger claimed them, paid the carriage, and took them away. The defendant submitted, in evidence, a notice exempting him from answering for the value of parcels more than £5 in value. Dallas, Ch. J.,, di- rected the jury to consider *whether, under the circum- [*378] stances, the defendant had been guilty of gross negli- . gence or not, explaining to them, that if the defendant and his servants had not taken the same care of the property, as a pru- dent man would have taken of his own, he had been guilty of gross negligence. The jury found a verdict for the plaintiff. A motion was now made to set the verdict aside, and for a new trial, on the ground that the verdict was against evidence," Burrough, J. — "Carriers are constantly endeavoring to narrow their responsibility, and to creep out of their duties, and I am not singular in thinking that their endeavors ought not to be favored. The question here is, whether there was gross negligence. I (1) 3 Taunt. 1. (2) Vide State v. Fisher, 2 Nott & M'Cord, 261 ; 2 Dallas. 56. (3) 3 Bred. & Bing. 177. 378 NEW TEIALS. [Chap. XI. "Where the evidence was not fully before the jury. think there was, and I am of opinion, that the case was properly left to the jury, and that they have given a proper verdict."(l) So in a case of deceit. Ward v. Center.{2) The plaintiff de- clared against the defendant for having recommended one Brown to credit, as a solvent man, knowing him to be otherwise. Plea, the general issue. There was evidence on both sides, and the whole merits of the case exhausted. The chief justice charged the jury, that the only inquiry for them was, whether the de- fendant had fraudulently recommended Brown ; that it was a question of fact, on which he should give no opinion, but leave it with them to decide. The jury found a verdict for the plain- tiff. A motion was made by the defendant to set aside the ver- dict, as being against evidence. And, per Van Ness, J. — " This is an application for a new trial on a case made, and the only question now to be determined is, whether the court can deem the verdict so much against the weight of evidence, as to justify the setting it aside." After commenting on the evidence, [*379] the learned judge concludes thus : — " Upon the *whole, though with reluctance, I am of opinion, that it is not expedient to interfere with the verdict. The question of fraud has been fairly submitted to the jury, and they have found against the defendant. They, had a right to do so ; though I may wish that they had done otherwise." And in Walker v. Smith.{3) The plaintiffs sued the defendant for the price of goods, consigned to him to sell. The defendant set up various grounds to excuse himself from paying more than he had actually received. The court in their charge to the jury, expressly declared, that on the evidence, the plaintiffs were en- titled to recover the full amount of the original debt, with such reasonable compensation for the delay of payment, as the jury should think proper. The j ury, however, gave a verdict for only 468 dollars, 44 cents, which was the amount of the plaintiff's de- (1) Vide 2 Marsh. Kent. Eep. 195 f 1 S. 0. Con. Rep. 165. (2) 3 Johns. Rep. 271. (3) 4 Dallas, 389. Chap. XI.] VERDICT AGAINST EVIDENCE. 379 "Where the evidence was not fully before the jury. mand, estimating the sterling money at par, §,nd after allowing the defendant a commission, and deducting the interest. The plaintiff's counsel then moved for a new trial, because the ver- dict was against law, evidence, and the charge of the court ; but after argument, the motion was overruled, and it was said, per Washington, J., that although he was not satisfied with the ver- dict, nor should he have assented to it as a juror<5 yet the ques- tion of damages, or of interest in the nature of damages, be- longed so peculiarly to the jury, that he could not allow himself to invade their province ; while he felt a determination to prevent, on their part, any invasion of the judicial provinceof the court.(l) • So in Griffilh v. Willing.i^) Action in account against the defendants, as bailiffs and receivers. Plea, ne ungues bailiff or receiver, and fully accounted. The chief justice charged the jury, that the plaintiff's claim rested upon the *princi- [*380] pie of his being jointly interested with the defendants, and if he was rightin that, of which they would judge, the actlfcn would be sustained. The jury found for the plaintiff; and now, upon motion for a new trial, as well upon the merits as upon the propriety of the action, Tilghman, Ch. J. — " The great point in dispute was matter of fact, viz., whether or not the plaintiff and the defendants had undivided interests ii* a quantity of hides, received by their agent at Buenos Ayres, and shipped, part to Philadelphia, in the defendants' ship Canton, and part to Bor- deaux, in the plaintiff's ship America. This fact depended on a mass of testimony, written and parol, which it is unnecessary now to consider. I confess that neither at the trial, nor since, ou further reflection, has it struck me in the same point of view in which it appeared to the jury. But that is not sufiScient ground for awarding a new trial. I cannot clearly discern any principle of law which the jury have violated, nor will I undertake to say, that they have gone so decidedl}' against the evidence, as would justify the court in- setting aside the verdict."(3) (1) Vide Commonwealth v. Eberle, 3 Serg. & Bawle, 9. (2) 3 Binney, 311. (3) Et vide 3 Wash. 0. C. Rep. 68. 880 NEW TKIALS. [Chap. XI. Where there is a preponderance of evidence against tlie verdict. V. Where there is a preponderance of evidence against the verdict. But the verdict will not be set aside as against evidence, where there has been evidence on both sides, and no rule of law viola- ted, nor manifest injustice done, although there may appear to have been a preponderance of evidence against the verdict. Ashley v. Avhky.{l) The judge who tried this cause, (which was upon a promissory note for £5,000, which the defendant in- sisted was forged,) certified, that the weight of the evidence was with the plaintiff, and he thought the jury would find for the plaintiff, but they found for the defendant. Et per Curiam. — • " As there was evidence on the part of the defendant, [*381] the jury are the proper judges which scale *prepon- derates. It cannot be said to be a verdict against evi- dence, and therefore we will grant no new trial." Sp in an Anonymous case.(2) On a motion for a new trial, in an action by the owner of the inheritance for making a dam across an ancient water-course, the judge who tried the cause, cer- tified that six witnesses were examined at the trial, on each side; that the jury found for the defendant, which was against his opinion ; but that he could not take upon himself to say that this was a verdict againit evidence, because there was evidence on both sides. And a new trial was refused. And in Swain v. IIaU.{3) Covenant on a lease. The judge, in summing up tothe jury, intimated that he thought the weight of evidence was with the plaintiff; but they found a verdict for the defendant. A new trial was moved for, and on showing cause, the chief justice made his report, stating there were two issues. He had laid the first entirely out of the case, as being clearly with the defendant. As to the second issue, he said the plaintiff called and examined three witnesses. And per Wilmot, Ch. J. — " Where verdicts have been given contrary to evidence, or where (1) 2 Str. 1142. (2) 1 Wils. 22. (3) 3 Wils. 45. Chap. XL] VERDICT AGAINST EVIDENCE. 381 Where there is a preponderance of evidence against the verdict. there hath been no evidence at all to support such verdicts, the court hath granted new trials ; but if there hath been a con- trariety of evidence on both sides, the courts have never granted new trials, notwithstanding the judge, before whom the cause was tried, hath been of opinion that the strength and weight of evidence was against the verdict. In the present case, there was a contrariety of evidence on both sides ; and although I am still of opinion that the weight of evidence was with the plaintiff, yet I disclaim any power to control the verdict of the jury, who are the legal constitutional judges of the fact."(l) *So also in Lewis v. PeaJce.{2) Action on the war- [*382] ranty of a horse, and verdict for plaintiff. Motion for a new trial, upon the ground of the weight of evidence being against the verdict. Q-ibbs, Ch. J. — " This application stands on two grounds ; as to the first, there is no doubt, on the defend- ant's own statement, but that there was evidence on both sides; it is like a case that was before us last term, tried before Wood, Baron, who said that if the verdict had been the other way, he should have been better satisfied ; but we held that it was a question peculiarly fit for the consideration of a jury, and we refused to interfere." Sule discharged. And in Hartwright v. Badham.{S) Trespass quare clausum fregit. Plea, not guilty, and justification by right of way. Th& jury found for the plaintiff, negativing the right of way. Mo- tion for a new trial on various grounds, and among others, that the verdict was against evidence. Baron Oarrow reported, that the whole case was left to the jury, who found for the plaintiff; that, according to his recollection, he had directed the jury to find according to the conclusion to be drawn from the evidence, . as to whether the acts of user proved were referable to permis- sion and indulgence or negligence, on the one hand, or to the exercise of an adverse right on the other. Per Richards, Lord (1) Vide 2 S. 0. Con. Rep. 431, 337 ; Lavaly. OromweU, Con. Bep. Tread, ed. 517. (2) 7 Taunt. 163. (3) 11 Price, 383. 882 NEW TRIALS. [Chap, XI. Where there ia a preponderance of evidence against the verdict. Chief Baron.™" The single questioa in this case is, whether we shall direct a new trial ; and that question will depend on whether the verdict, which has been obtained, be supported by the evi- dence which was given on the trial or not. If it were not, we certainly ought to send the cause down to be tried again. There was much contradiction in the evidence given on both sides no doubt ; but that must have been well considered by the [*383] jury, who were the most proper persons to decide *be tween the parties in that respect, for it was their pecu- liar province to do so. And, per totam Curiam. — New trial refused. (1) The principle of the rule is expressed with great clearness in Garstairs v. Slem.{2) Assumpsit for work and labor by the bank- rupts before their bankruptcy. Plea, non assumpsit. The chief difficulty at the trial was occasioned by a charge of a commission of one-half per cent., which was alleged to be usurious. Lord Mlenborough, Ch. J., directed the jury upon the evidence, that it the commission could be fairly set to the account of trouble and inconvenience, it was not usurious : otherwise, if the commission overstepped the bona fide trouble, and was mixed with an ad- vance of money, as mere pretext, his lordship inclined to the conclusion that this commission was usurious, but left that ques- tion upon the evidence to the jury, who found for the plaintiffs. And on motion for a new trial, the court, per Lord Ellenhorough, Ch. J., after commenting very fully upon the case, concludes — "These circumstances certainly laid a foundation for suspecting, that the high rate of commission contracted for was a color for usury upon loans which were stipulated not to be required, but which were, in fact, required, and made from the beginning to the end of this business. But this, whether color or not, was a question for the consideration of the jury ; and to their consider- ation it was fully left, with a strong intimation from the judge, that the transaction was colorable, and the commission of course usurious. The jury have drawn a different conclusion, and which (1) Vide Johnson Y. Scribnei; 6 Conn. Kep. 185; 2 Miller's Louis. Rep. 12, 21, 449 ; 3 Ibid. 68. (2) i Maulo & Sel. 192 ; Sapra, 315. Chap. XI.] YERDICT AGAINST EVIDENCE. 384 Where there is a preponderance of evidence against the verdict. conclusion, upon the view they might entertain of the facts, they were at liberty to draw ; and they having done so, for the reasons already *stated, we do not feel ourselves, as [*384] a court of law, and acting according to the rules by which courts of law are usually governed in similar cases, at liberty to set aside that verdict and grant a new trial." The principle, so fully illustrated in the above cases, has re- ceived the repeated sanction of the courts of this state. Thus in Woodward v. Payne,{^) Trespass against a justice of the peace, who had proceeded to trial, judgment and execution, in a case in which he had no jurisdiction. The judge charged the jury that the plaintiff was entitled to recover, as the justice had no juris- diction in the cause which he tried, and therefore his judgment was void, and all acting under it were trespassers ; that if the jury believed that the justice had acted from ignorance merely, they ought to give such damages only, as would compensate the plain- tiff for the actual loss that he had sustained. The jury found a verdict for the plaintiff, for two hundred and seventy dollars, which was about the value of the property in question. Motion for a new trial, and the ground was, the verdict was against evi- dence. P&r Ouriam. — " From' the nature of the cause, and the testimony that was given, there was room for an honest differ- ence of opinion as to the conduct of the defendants, and as to the damages sustained by the plaintiff. We are inclined to think that the better conclusion is, that the magistrate acted under an honest and real impression, that he had jurisdiction of the case before him. It was fairly submitted to the jury ; and we cannot say that they have so much erred as to warrant us in interfering, and setting aside the verdict."(2) So in AcMey v. KeUogg.{S) Case against the defendants as common carriers. The judge charged the jury, that the de- fendants were common carriers as far as Troy, where that (1) 15 Johns. Rep. 493. (2) Vide 3 Johns. Sep. 271. (3) 8 Cowen, 223. Vol. I. 25 385 NEW TKIALS. [Chap. XI, Where there is a preponderance of evidence against the verdict- [*385] *cliaracter ceased, and they became mere storers or forwarders; that the only question was, whether they had pursued, the plaintiff's instruction ; as to which the question was one of fact upon contradictory evidence, and of which the jury were the judges. Verdict for the defendants. A motiouf was made, on behalf of the plaintiffs, for a new trial, upon several grounds ; and among others, that the verdict was against the weight of evidence. Sutherland, J. — " There was much testi- mony on both sides. The captain of the defendant's sloop, which carried the goods to Troy, swears positively, that one of the plaintiffs, after the goods were put on board at New York, came on board the vessel, and directed him to forward the goods im- mediately on his arrival at Troy. The testimony of this witness was probably decisive with the jury, especially as the evidence on the other side was either of a negative or circumstantial char- acter. "We cannot, within the established principles which regu- late the discretion of the court, interfere with this verdict, as being against the weight of evidence." And in Douglas v. Tousey.{l) Slander, and verdict for the plaintiff, $500. The defendant moved for a " new trial, and one ground on which he mainly relied, was the verdict's being against the weight of evidence. Upon this point the court observed — " It is said the verdict is against the weight of evidence. The evidence presented in the case seems to be in favor of the defend- ant ; but whether it is so manifestly against the finding of the jury as to call on this court to grant a new trial, is a matter of some doubt. There was contradictory evidence as to the words spoken. This devolved upon the jury the duty of reconciling conflicting testimony, and in case that could not be done, of de- ciding upon the credibility of the witnesses. Their [*386] *decision was upon a matter peculiarly within their pro- vince, and the court ought not to review and reverse it." So, also, in Smith v. Etcks.{2) Action in assumpsit, for money 2 ■Wendell, 352. Wendell, 48-. Chap. XI.] VEEDIOT AGAINST EVIDENCE. 386 Where there is a preponderance of eridenoe against the verdict. had and received. The plaintiff had a verdict. The defendant moved for a new trial. One ground was, that the verdict was against evidence. After recapitulating the testimony, and dis- posing of the other objections,'the court observe — " To set aside a verdict, as contrary to evidence, there should be a decided pre- ponderance against the verdict ; but there is no such prepon- derance in the case. For the defendant, Imlay and Griswold testified. Griswold had testified differently before the first judge, on his own application for a discharge ; and it appears from the re- port in the case,(l) that he testified differently on the farmer trial. There is, then, only the oath of Imlay against that of the defend- ant. There is, therefore, no preponderance, and a new trial should be denied." A still stronger case presents itself in Fowler v. The Etna Fire Insurance Company.f^) Action in assumpsit, on a policy of in- surance. The chief question at the trial was, whether the house • that was burnt down was a frame house filled in with brick. The judge charged, that it was competent for the plaintiffs to have established a usage, and to have shown the meaning of the- words, " a frame house filled in with brick," as between assured and insurer, and it was for them to say, how far the evidence- went to establish such usage. The jury found a verdict for the plaintiff, and the defendants moved to set it aside. Two new trials had been granted, the first for the misdirection of the judge, and the second because the verdict was against evidence. Suth- erland, J. — " It was undoubtedly competent for the plain- tiffs to show that the words, " a *frame house filled in [*387] with brick," had, by the custom or usage of insurers and insured, acquired a particular technical meaning, different from that which the words might be generally understood to import. But the difiiculty in this case is, that the evidence to establish such usage is entirely defective, while the charge of the judge was perhaps calculated to make an impression upon the jury, that there was competent and sufficient evidence of such usage. I still think the verdict on this point is against the weight of evi- (1) 2 Wendell, 202. (2) 7 Wendell, 270. 387 NEW TRIALS. [Chap. XL Where there is a preponderance of evidence against the verdict. dence ; but after two concurring verdicts, in a case where there were many witnesses, and a great deal of testimony on both sides, upon a mere question of fact, (supposing there was no misdirec- tion,) I should not think it a discreet exercise of the power of this court, again to interfere with the finding of the jury."(l) So, in Hammond v. Wadhams.i^) Writ of entry. Greneral issue. Joinder, and verdict for the tenant. The demandant moved for a new trial, on the ground that the verdict was against evidence. By the Court, after noticing the evidence — " In this view of the subject, we do not feel ourselves authorized to de- prive the tenant of his verdict, and to send the cause to another jury for trial. There was evidence on both sides ; the credit of the witnesses can be weighed only by a jury. It must be presumed that they gave due weight to their testimony. We may, and we ought, to grant a new trial, when the verdict is against the evidence, or when it is manifestly against the weight of the evidence. In such cases, the facts ought to be inquired into by another jury. Whatever may be the inclina- tion of our opinions, as to the conclusions the jury have made from the testimony, it is their province, and not ours, [*388] to make those conclusions ; and we cannot say that *this verdict was given against evidence, or against the weight of evidence. It must therefore stand." And in Baher v. Briggs.{3) Assumpsit on a promissory note. One of the counts was against him as maker. The defendant had indorsed it, but not as payee. The question was, whether he was held by his indorsement, as an original promiser or maker, and being in the nature of a surety, he was not entitled to all the rights, by way of defence, of the acknowledged maker of the note. The jury having found a verdict for the defendant, the plaintiff* moved for a new trial on account of misdirection, and because the verdict was against evidence. ParJcer, Ch. J., deliv- ered the opinion of the court. — " It is moved to set aside this verdict on the ground that it is against evidence, notwithstanding (1) Vide JReid v. Lmidford, S J. J. Marsh. 421. (2) 6 Mass. Bep. 363. (B) 8 Pick. 122. Chap. XI.] VEEDICT AGAINST EYIDENCE. 388 Where the grounds of the motion are teohnioal or doubtful. there was a great deal of evidence on both sides so contradictory, that on a former trial the jury could not agree, and on this trial it was the subject of elaborate argument, and scrupulous compari- son of testimony. If, under these circumstances, a verdict can be set aside as against evidence, no action can be tried which may not be brought in review before the court upon the facts, and the trial by jury will be virtually superseded. Perhaps no cause, which really has two sides to it, can be determined with- out a serious belief in the party losing, and perhaps in his coun- sel, that the verdict was wrong, and' against the weight of evi- dence." New trial refused.(l) YI. Where the grounds of the motion are technical, or cbuhtful. A rule closely allied to the preceding, is, that a new trial will not be granted on technical or doubtful grounds, especially in un- important cases, if there be sufficient evidence on the merits to support the finding of the jury, who are in all such cases the sole constitutional judges. *Thus, in an Anonymous case,(2) on the warranty of [*389] a horse. The court did not choose to grant a new trial though the judge who had presided at the trial expressed himself rather inclined to the side of the plaintiff, and the jury had found for the defendant. Lord Mansfield said, the courts were usually enough troubled at the first trial in such matters ; that it was neither clear enough, nor important enough, to answer a second trial. — "It does not follow in every case, where the weight of evidence may seem rather against the verdict, that a new trial should be ordered. The plaintiff asks, that he may be at the expense of £20, at least, for the chance of twenty, which is the whole value of the horse. Uncertain justice hy a verdict is much letter than certain injustice ; which latter, I think, would follow by granting a new trial." (1) Et vide 3 Call. 216. (2) Lofft, 146. 889 NEW TEIALS. [Chap. XI. ■Where the grounds of the motion are technical or doubtful. And in another Anonymous case.(l) On a motion for a new trial, upon the ground that the jury found expressly against evidence. It was an action of trespass, breaking into the plaintiff's shop, where his goods were at auction, damaging his goods and obstruct- ing the sale. No damages were proved. Lord Mansfield s&xdi. he left it to the jury upon the damages on the trial. They found for the defendant.' He declared himself not dissatisfied, and said he thought they ought to waive their motion ; for if they went to it again, they might probably recover sixpence, which would be all they could deserve. In another case,(2) where a verdict had been found against evidence, but according to the merits. The court said they would not grant a new trial, where the jury have found according to the justice of the case, though they may have found against the form, and may have been wrong in so doing. " When the sub- stantial justice appears to have been answered, the court [*390] will not suffer the chance *of its being defeated, nor the parties to be turned round to a second trial, when the merits have been decided." And in Smith v. Huffgins,{B) the same rule as in Ashley v. Ash- ley{4:) was laid down, that the jury are the proper judges, which scale preponderates ; and a new trial was denied, though there was but weak evidence for the plaintiff, and the chief justice Hlid summed it up strongly for the defendant. In Smith v. Parkhurst,{5) upon a trial at bar in ejectment, the parties agreed to" a special verdict, as to a point of law arising flpon a family settlement. But there being a question of fact, in which they did not agree, that was left to the jury, who found it for the plaintiff, against the weight of the evidence. The defend- ant moved for a new trial, and several objections were made, which were disregarded by the court. But the main point on (1) LoSEt, 391. (2) Ibid. 521. (3) 2 Str. 1142. (4) Supra, p. 380. (5) 2 Str. 1105. Chap. XI.] VERDICT AC^AINST EVIDENCE. 390 ■Where the grounds of the motion are technical or doubtful. which the new trial was denied, was because the evidence was doubtful. So in Francis v. Balcer.{\.) Pratt, Ch. J., before whom the cause was tried, after reporting the evidence specially, said, that if he had been upon the jury, and had known no more of the witnesses than he did when this cause was tried, he should have thought the verdict ought to have been for the defendant ; but where there was a contrariety of evidence as to the principal matter in issue, and the characters of the witnesses on both sides stood unimpeached, the weight of evidence did not depend alto- . gether upon the number of witnesses ; for it was the province of the jury, who might know them all, to determine which witness they would give credit to, and no judge had a right to blame a jury for exercising their power of determining in such a case. Glive,.J. — "The granting of a new trial in this case, would be taking away that power, which is, by *the con- [*391] stitution, vested in the jury." Bathuyst, J. — " As there was, in this case, strong evidence for the plaintiff, a new trial ought not to be granted : although the weight of evidence was, in my lord chief justice's opinion, with the defendant." And per Oould, J. — "It is difficult to draw a line as to the granting of a, new trial ; and perhaps the granting or not granting of it, must always depend upon the circumstances of the case." And' Per totam Curiam. — rule discharged.(2) Palmer v. Hyde.{B) Action in assumpsit. The defendant claimed that he had paid the sum of seventy dollars. The plain- tiff admitted that the defendant had paid him that" sum, but de- nied that it was paid or received on the contract in question. Witnesses were introduced by both the parties, in support of their respective claims, and on their testimony, the jury gave a verdict for the plaintiff, disallowing the payment claimed by the defendant. The judge, thinking the preponderance of evidence (1) 6 Bacon Ab. 664. (2) Vide Dixon v. Farmelee, 3 Verm. Eep. 186 ; Starkweather v. Loomis, Ibid. 513. (3) 4 Conn. Bep. 426. 891 NEW TEIALS. [Chap. XL Where the grounds of the motion are technical or doubtful. to be the other way, returned the jury to a second and third con- sideration, but they adhered to their verdict. On motion of the defendant, the judge then stated the evidence upon the point in question, expressing his opinion thereon in opposition to the verdict. Hosmer, Ch. J. — " The granting of a new trial, merely because, in the opinion of the court, the verdict is rather against the weight of evidence, would reduce the trial by jury to an ex- pensive and useless form, and take away the power vested in the jurors by the constitution. The verdict ought to be manifestly and palpably against the weight of evidence, to authorize a ve- mire facias de novo, and this is the law of Westminster Hall." The other judges concurred, and a new trial was refused.(i) [*392] *So in Wail v. M'N'eil.{2) Assumpsit for goods sold. On the trial, before Parker, J., the plaintiff proved a delivery, and a regular charge in his books, as of goods sold in the usual course of business. The defence was, that the parties had engaged as partners in the manufacture of certain carriage boxes ; in which business 'the plaintiff was to advance all the stock, and the defendant to pay for all the labor ; and the boxes, when made, to be sold by the plaintiff, on their joint account. The jury found for the plaintiff, and the defendant moved for a new trial, as upon a verdict against evidence. Sedgwick, J. — " The objection in this case is, that the verdict is against evidence, and if it be clearly and manifestly so, it certainly ought to be set aside. The plaintiff, at the trial, having proved his case, the only positive evidence against him, was the testimony of the defendant's son. The court will pay all due respect to the testi- mony of a witness who stands uncontradicted and unimpeached ; but the credit of every witness must be taken into the conside- ration of the jury ; and this is peculiarly and emphatically within their province. As the burden of proof, respecting the partner- ship, was on the defendant ; if the jury did not pay full credit to young M'Neil's testimony, they did right in the'verdict which they returned. On the whole, we are all of opinion that we (1) Vide Snyder v. Finhy, 1 Coze, 298. Et vide Ibid. 18, 424. (2) 1 Mass. Rep. 261. Chap. XI.] VERDICT AGAINST EVIDENCE. 392 "Where the grounds of the motion are technical or doubtful. cannot say this verdict was so against evidence that it ought to be set aside."(l) De Fonchar v. Shoitenkirh.f^l) Assumpsit. The plaintiff count- ed on the agreement to take a negro on triaTJ and if the negro did not like him, he was to be returned ; and also for his price. The negro in the meantime had ran away. The judge charged the jury in substance, that if from the *evi- [*393] dence they should be satisfied the sale of the negro was absolute, the plaintiff would be entitled to their verdict ; but if it was a sale upon trial, then while the slave remained in posses- sion of the defendant, he was bound to take as good care of him as he would of his own slave, and if he had not done so, the plaintiff was entitled to a verdict, otherwise not. The jury •found for the defendant. A motion was made to set the verdict aside, and one ground taken was, that it was against evidence. The court, per Spencer, J.—" The negro was in the possession of the defendant, but whether as being sold to him, or put into his possession until he should signify his assent to buy, or return him, will depend on the facts of the case. The plaintiff rests on circumstances, from which to infer the fact ; these the defendant has rebutted, by circumstances and by positive proof of the acknowledgment of the plaintiff, that the negro was his when he ran away. I cannot see that the jury have decided against the weight of the evidence by finding for the defendant, and I am therefore unwilling to disturb the verdict."(3) So in Jackson v. Douglas,{4:) in ejectment. There was some ambiguity in the testimony, as to the boundary line. The jury, under the direction of the judge, found a verdict for the plaintiff. A motion was made to set aside the verdict, which was submitted to the court without argument. Per Curiam. — " There is not a sufficient cause for interfering with the verdict. There was no (1) Vide Buck v. Waddett, 1 Ham. Ohio Rep. 35^. (2) 3 Johns., Eep. 170. (3) Vide Cam. & Norwood, 104 ; 1 Hayw. 14, 132. (4) 8 Johns. Eep. 36T. 393 NEW TEIALS. [Chap. XI. Where the grounds of the motion are technical or doubtful. uncertainty originally as to the true location of the lots. It is ^very clear that the defendant possesses beyond the true line, and the single fact, that one of the lessors of the plaintiff, about eight years ago^ showed a mistaken line as the true line, is [*394] *not sufficient of itself to conclude him in this case. The motion is therefore denied. "(1) In all these cases, the proof fluctuated from doubt to certainty, but the credibility of evidence being universally conceded to the jury, the court will not interfere, unless in manifest cases of abuse, or when their own province of law is invaded by the jury. This appears to be the true boundary line, tending to preserve some- thing like order and consistency in the mass of apparently con- flicting decisions. The rule is peculiarly applicable to that class of cases usually designated " hard actions." Here the power of the jury is left almost uncircumscribed. The court will extend every fair presumption in aid of their verdicts. For example, in slander. The jury found that words, directly charging the plaintiff with being a murderer, and having murdered his brother, were spokea by the defendant, but not maliciously, on which a verdict was recorded for the defendant. The court would not grant a new trial, on the ground that it was a verdict against evidence, al- though it had been proved on the trial that the words were spgken in anger, and it appeared that the plaintiff had accidentally been the cause of his brother's death.(2) And in Harding v. Broohs,{3) in slander, charging the plaintifi" with being a liar, a knave, and a rascal. The defendant admitted the speaking of the words, and filed several pleas in justification. At the trial before Wilde, J., it was admitted that the plaintiff was a clergyman, and the trial proceeded upon the pleas in justi- fication. Questions were reserved for the court on all the pleas (1) Vide Gistx. Lyhrand, 3 Ham. Ohio Rep. 301 ; M'Kie v. GarUngton, 3 M'Oord, 276; Eowiwd y. Aikm, Ibid. 46t. (2) 2 Price, 282. (3) 5 Pick. 244. Chap.. XI.] VERDICT AG-AINST EVIDENCE. 395 "Where the grounds of the motion are technical or doubtful.- except the tenth, and this weat to the jury, who found for the plaintiff. The defendant moved for a new trial, on the ground that the verdict was against evidence. Parker, Ch. J. "The evidence *to support this plea is found in the tes- [*395] timony of Clark Thompson, who states that the plaintiff said ' he had ascertained that the person who signed the letter was not entitled to M. D., and if so, he was nothing better than a quack.' The words testified to on the trial varied from those in- serted in the plea, which probably had been taken from his rela- tion at a former period. A trifling variance in the expression from the form of words testified by the witness, would have ren- dered them wholly ^fcapt to prove the issue. The lie consists in " the plaintiff's having said, that he had ascertained that Mr. Smith was not entitled to the distinction of M. D. Now we do not think it was an illegal stretch of charity in the jury to doubt, in behalf of a minister of the gospel of good character, of his hav- ing lied, when the witness by whom the lie was to be proved intimated doubts of his own correctness, as to the words used, and when the exactness, and even the collocation of the words, might be important to settle their bearing upon the point in issue. We are therefore of opinion, that judgment must be rendered on the verdict." So in Paddock v. Salisbury.{V) The defendant had charged the plaintiff with arson and larceny. Plea, the general issue. The words were fully proved. The jury found a verdict for the defendant, and on motion for a new trial, it was urged the verdict was against evidence. Sutherland, J. — " As to the verdict of the jury, we cannot disturb it.(2) There was no misdirection of the judge, or any rule of law violated, and the general rule is un- doubtedly as stated by Mr. Justice Spencer, in Jarvis v. Hatha- way,{S) that in penal actions, and in actions for a libel or defa- mation, and other actions vindictive in their nature, un- less some rule of law be violated in the admission *or [*396] (1) 2 Cowen, 811. (2) Vide Dexter v. Taier, 12 Johns. Rep. 239. (3) 3 Johns. Rep. 180. 396 ■ NEW TRIALS. [Chap. XI. . "Where the grounds of the motion are technical or doubtful. rejection of evidence, or in the exposition of the ]aw to the jury, the court will not give a second chance of success."(l) So, in an action for malicious prosecution, Norris v. Tyhr.(^) The defendant had preferred a bill of indictment against the plaintiff, for forging a note of hand. Pour witnesses were called, to prove that the handwriting was not the plaintiff's,, and the judge directed the jury in his favor. But the jury found 'a ver- dict for the defendant. Upon a motion for a rule to show cause why the verdict should not be set aside, as being a verdict against evidence, and why a new trial should not be granted, the court said, the defendant had been sufficiently tried once, where the suit was of a criminal nature, and motion OTnied. So, in a_case of usury, Brook qui tarn v. Middleton.(3) The jury having found a verdict for the defendant, in an action for usury, Garrow moved for a new trial, with respect to one of the counts, as being a verdict against all the evidence. The usury consisted in taking a quarter jper cent, upon the loan, in the name df com- mission, the lender having nothing to do for it but to receive the money at the appointed time of repayment. Lord Ellenhorough referred to the case of Fonnereau v. £ennet,(4) where the court said that the rule had been laid down for fifty years past, not to grant new trials, on actions on penal laws, where the verdict was for the defendant. There, indeed, the doctrine was laid down rather too generally, as the court would certainly grant a new trial in case of the misdirection of the judge in point of law. But, in case of a verdict against evidence, the rule was now settled, that no new trial would be granted.(5) So in Baker v. Richardson. Debt for a violation of [*397] *the statute, in selling whiskey without license, and (1) Et Tide 1 Oowen, 613 ; 10 Wendell, 119. (2) 1 Cowp. St. (3) 10 East, 268. (4) 3 Wils. 59. (5) Tide The King v. Mawbey, 6 Term Rep. 619, and Wilson y. SastaU, 4 Term Eep. 753. Chap. XI.] VEEDICT AGAINST ETIDENCE. 397 Where the grounds of the motion are technical or doubtful. verdict and judgment for defendant. And on certiorari, Per Curiam. — " The only question was, whether these transac- tions were fair, or intended as mere evasions of the statute. Whether the verdict was such as we should have given, is not the point of inquiry. The question belonged to the jury, who have decided in favor of the defendant, and the court will not, in such a case, set aside the verdict."(l) And in Comfort v. Thompson.{2) Debt on statute to prevent injury by dogs, and verdict for defendant, and on certiorari, Per Curiam. — " The verdict is no doubt clearly against evidence ; but this being an action for a penalty, there is no new trial granted in such cases, on the ground of the verdict being con- trary to evidence, provided the verdict be for the defendant, and there be no irregularity in the case.(3) There is at least as strong reason for applying this rule to such trials in justice's courts, as in any other." So if the action be vexatious. Macrow v. Hull.{^ The de- fendant's counsel showed cause against the court's granting a new trial ; which had been moved for by the plaintiff's counsel, upon the foot of the verdict's being against evidence. Mr. Jus- tice Foster, who tried the cause, reported it to be an action of trespass, extremely frivolous, but sufficiently proved. He said that the d lence was a very strong one indeed, in mitigation of damages ; but yet was not a sufficient denial of the trespass : so that, in strictness, the verdict was undoubtedly against evidence. However, he thought the action so frivolous and vexatious, that he should have thought sixpence damages to have been enough. Whereupon the court held, that notwithstanding its being a ver- dict against evidence, yet they ought to refuse, and accordingly did refuse, to set aside the verdict. *So also for a nuisance. The King v. Mann.(p) The [*398] (1) 1 Cowen, 77. (2) 10 Johns. Eep. 101. (3) Yide MattUcm v. A^nscm, 2 Str. 1238. (4) 1 Burr. 11. (6) 4 Maule & Sel. 337. NEW TEIALS. [Chap. XI. Motion not granted against ttie equity of the case. defendant was acquitted upon not guilty to an indictment for a Duisance, in continuing a hut erected upon the highway. And now Blosset, sergeant, moved on behalf of the crown, for a new trial, on the ground that the verdict was against evi- dence. Dampier, J. — " In penal actions, where the verdict is for the defendant, the court, I believe, do not grant a new trial, ex- cept for a misdirection of the judge." And, Per Curiam. — rule refused. VII. Motion not granted against the equity of the case. In disposing of motions to set aside verdicts and grant new trials, on the ground of the verdict's being against the weight of evidence, the court will look into the merits, and will not grant the motion, against the equity of the case. The cases of the Dutchess of Mazarine and of Gox v. Kitchin, already cited, illustrate the rule. These cases, however, as well as others adduced above, showing how strongly the courts are inclined to overlook all objections, where justice is done, rather apply to verdicts against law than evidence. But for that reason they more strongly enforce the rule.(l) In Wilkinson v. Payne,{2) which may be regarded as the lead- ing case on the subject of new trials, where verdicts are clearly against evidence — the jury were permitted to indulge in a pre- sumption not only without, but against evidence, on the side of conscience and equity. This was an action on a promissory note for £180, given to the plaintiff by the defendant, in con- sideration of the plaintiff's marrying his daughter. The defence set up was, that though there was a marriage in fact, it was not a legal one. The whole defence was put on strictly technical grounds, against the conscience of the case. On the [*399] denial of the *motion for a new trial, the court, after seizing upon every circumstance in aid of the verdict, (1) 2 Salk. 646; 1 Bos. & Pul. 338; Supra, 303, 341. (2) 4 Term. Eep. 468; Siqira, 344. Chap. XI.] VEEDICT AGAINST EVIDENCE. 899 Motion not granted against the equity of the case. conclude — " In tljis case, the parties did not intend to elude tlie marriage act ; but all their friends were fully informed of, and concurred in the former marriage ; and we should ill exercise the discretion vested in the court, if after the jury had presumed a subsequent legal marriage, under all the circumstances of this case, we were to set aside their verdict." And in De Tastet v. Baring.{l) Action on two bills of ex- change. The only question to settle at the trial was, whether the plaintiffs were entitled to re-exchange. It was tried by a special jury, who found for the defendants. Upon motion for a new trial, on the ground that the verdict was against evidence. Lord Mlenborough, Ch. J., delivered the opinion, that the rule for a new trial should be discharged, on the ground that the ques- tion was properly put to the jury, to allow the plaintiff damages or expenses in the name of re-exchange, if the plaintiffs were either liable to pay, or had paid, re-exchange on these bills. And that, as it did not appear to have been clearly made out, that there was at the time any course of re-exchange between Lisbon and London, the court must presume that the jury, which was one particularly conversant in subjects of this sort, found for the defendant on that ground. And the rule was discharged. So, in an action for use and occupation, where the plaintiff sued under circumstances of hardship, and the testimony for the defendant was scarcely sufficient to raise a presumption. Wood- cock v. Nuth.(2) The judge having left it to the jury, to say whether the plaintiff had accepted one Lewis as his tenant, a verdict was found for the defendant, which the plaintiff moved to set aside. It appeared the premises in question were originally let to Nuth, and at *midsummer-day, 1829, [*400] precisely a quarter after his term had expired, he paid a quarter's rent deducting £10 for certain repairs ; that this was the only time he had been seen on the premises since the term expired ; that the rent had never since been paid upon the pre- (1) 11 East, 265. (2) 8 Bingham, 170. 400 NEW TRIALS. [Chap. XL Motion not granted against the equity of the case. cise quarter day ; and that all the subsequent payments had been made by Lewis. The court observed, upon this state of facts, they could not say there was not evidence to go to a jury ; that Lewis was really the tenant, and therefore refused the rule. So in Campbell v. Spencer,{V) in ejectment. The plaintiff had bartered a store of goods for a farm one morning, while drinking bitters at a tavern. The contract was marked by acts of indis- cretion on the part of the defendant, but with no positive evi- dence of such fraud on the part of the plaintiff as would avoid it. The judge told the jury that there was nothing in the evi- dence, which would authorize the court to say that the contract was void, however indiscreet it might have been on the part of the defendant ; but the evidence was for their consideration. The jury found a verdict for the defendant, which, upon a mo- tion for a new trial, was set aside ; and from this decision, the defendant appealed. Tilghman, Ch. J. — " It is said by the plain- tiff's counsel, that the jury undertook to pronounce the contract altogether void. If that was ascertained on the record, and the case could be reduced to that point, I should have no hesitation in saying, that there should be a new trial; but this is impos- sible. We cannot say on what point the verdict was founded. Suppose, now, the jury were of opinion, that the contract was so far binding as to make the defendant answerable in an action for damages, but that it was not a case in which the plaintiff was entitled to a specific performance ; I then ask myself whether I am clear, that on this ground the jury were wrong. [*401] I have thought *a good deal of it, and I cannot say that I am. It is one of those cases in which I would not interfere with the verdict."(2) And for a similar reason, the court will not grant a new trial, where they see plainly the result must be the same ; as in High v. Wifoon.(3) An action in trespass against the sheriff, for (1) 2 Bin. Rep. 129. (2) Vide 1 Brayton's Verm. Rep. 110. 3) 2 Johns. Rep. 46. Chap. XL] VEEDICT AGAINST EVIDENCE. 401 Where the case is frivolous in itself. taking and carrying away the goods of the plaintiflP. The de- fendant justified under the execution, but at the trial omitted to produce the judgment, on which the execution was issued. The jury found a verdict for the defendant, and the plaintiff moved to set it aside, on the ground of defect of evidence. Per Curiam. — " The defendant, in this case, did not produce the judgment at the trial. But we are all clearly of opinion that the plaintiff had no right of action, for the sale of the horse was evidently fraudulent. On the authority of the case of Martyn v. Podger,().) there appears to be no use or justice in granting a new trial, when the plaintiff is not entitled to recover. For that reason the rule is refused." And in Panghurn v. BuU,{2) already cited, the court held, that if, on a review of the case, it shall appear that, from the facts not disputed at the trial, there was evidently a want of pro- bable cause, the verdict ought not to be set aside, if they see that the jury have not erred in point of law, although the charge was erroneous, no injury having therefore been done to the de- fendant below, of which he had a right to complain. VIII. Where the case is frivolous in itself. If the case be frivolous in itself, and attended with unimport- ant results, the verdict, although contrary to the weight of evi- dence, and even to the charge of the judge, will not be set aside, and a new trial granted.(3) * Anonymous case. (4) Action in covenant. Defend- [*402] ant replied non f regit conventionem. The question turned upon repairs; and it appearing in evidence, that there were thirty-eight years to run on premises, out of a term of forty, the jury thought the injury was rather to the possession than to the (1) 5 Burr. 2631. (2) 1 "Wendell, 345 ; Svpra, p. 2&5. (3) Vide supra, p. 347. (4) Lofft, 529. Vol. I. 26 402 NEW TEIALS. [Chap. XL Where the case is frivolous in itself. landlord. They found for the defendant, whereupon the plaintiff moved for a new trial. At the trial, it appeared notice had been given to the tenant to repair. And it further appeared, lead had been stolen off the house, and the tiles to come at it. But the damage had been repaired in a great measure ; and the jury said they believed there was not above a shilling damages, upon what was left unrepaired. Mr. Justice Asian said, upon so small an occasion they would not, and the court never was used, to grant a new trial. (1) So in Roherts v. Karr.(^) Action of trespass, for breaking and entering the plaintiff's close, destroying his fence and two plants of ivy there growing, and for an injury done to a wall, by in- serting rafters into it. The defendant pleaded several pleas, in- cluding a right of way. Lord Ellenborough, Ch." J., who presided 'at the trial, directed the jury that the plaintiff was entitled to a verdict upon the last count of the declaration, upon the evidence given by one witness, who gave his opinion that the wall was damaged to the amount of four or five pounds. The jury found for the plaintiff on some issues, and for the defendant on others. Both moved for a new trial, on the ground of issues found being against the weight of evidence. Mansfield, Ch. J. — " The judge who tried the cause has intimated an opinion, though not very strongly, in favor of the plaintiff, but he rested it chiefly on the other issue, on which there was evidence of the plain- [*403] tiff's wall having been damaged *to the amount of five pounds. But as to that issue, the court will not grant a new trial for so trifling a sum as five pounds." And in Brown v. Ray.{2>) Action of replevin for taking the plaintiff's cattle. The defendant avowed they were in his close un- lawfully, and that he took them under a distress, damage feasant. Plea in bar, that they escaped into the defendant's close, through a defect of a fence, which the defendant ought to have repaired. (1) Et vide 2 Blacks. 851. (2) 1 Taunt. 493. (3) 9- Moore, 583, Chap. XI.] VERDICT AGAINST EYIDENOE. 403 Where' the case is frivolous in itself. The jury found a verdict for the plaintiff. Damages, four guineas. A rule nisi was applied for, on the groiind that the verdict was against the weight of evidence. Lord Chief Jus- tice Best. — " If we were to grant a new trial, it is quite clear, it must be on the terms of the payment of costs by the defend- ant, and he might eventually be put to the expense of £50, to get rid of the trifling sum of four guineas, for which the plaintiff has obtained a verdict. Although the rule that the court will not grant a new trial, on account of trifling damages, may not extend to an action of replevin, still it appears to me to be so far salutary, as not to be entrenched on in the present instance, or induce us to disturb the verdict."(l) So in Hunt v. Burrel and others.{2) Action in trespass, quare chusumfregit. The defendants justified at the trial, by virtue of an execution against the plaintiff. One of them acted as the deputy of the under-sheriff, and upon offering the deputation in proof, it was overruled by the judge as a justification, but per- mitted in mitigation. The jury found a verdict for the plaintiff of $5 damages. The question, whether the deputation ought to have been received, was submitted without argument. The court *held that it was competent testimony, but [*404] denied a new trial, concluding thus : — " But, though the evidence ought to have been received, this case will not justify a new trial. As the plaintiff recovered but five dollars, he must pay full costs to the defendants, as no certificate of the judge has been given, and as the title did not in any wise come in ques- tion. It certainly, then, would not be fit to award a new trial, and create all that additional expense, merely to save five dollars to the defendants, and on that ground only the motion is denied."(3) Nor, on the contrary, are value and importance of themselves sufficient to procure a new trial, unless coupled with some de- (1) Vide 2 Verm. Rep. 185 ; Brayton's Venu. Eep. 110. (2) 5 Johns. Rep. 137. (3) Vide 3 Johns. Eep. 231. 404 NEW TEIALS. [Chap. XI. Where the judge ia satisfied. parture from law, or a finding against the evidence, *as in Vernon V. Sankey.{l) Action for money had and received. Plea, gene- ral issue, and verdict for plaintiff, £16,930. The court granted a rule to show cause why there should not be a new trial. The judge reported that one Tyler had committed a clear act of bank- ruptcy, on the night of the second of May, 1785, which was well known to the defendants, who were her bankers ; and it appeared by their books, that so much as the verdict was taken for, had been received by them on account of the bankrupt after that time. On a motion for a new trial, the case was elaborate- ly argued, and much stress was laid on its importance, by reason of the amount of the verdict. The judges delivered their opinions seriatim, and discharged the rule. Buller, J., best illus- trates the rule : " The grounds which have been mentioned by ,the defendants' counsel, have frequently been allowed, and ought always to govern the court in granting rules to show cause why there should not be a new trial. But there is a wide difference between the reasons which ought to induce the court to [*405] grant such rules, and those which are sufficient to *grant new trials. It is well known that in this court, a rule to show cause why there should not be a new trial, is granted for little more than asking, if any plausible doubt can be stated ; but if this were to be followed up by making the rule absolute on the same grounds, it would be great injustice to the parties, and would tend to multiply litigation to an enormous degree. Value alone is not a ground for granting a new trial, although it frequently weighs in granting a rule to show cause."(2) IX. Where the judge is satisfied. When the judge who tries the case expresses himself satisfied with the verdict, although against the weight of evidence, the court will seldom set it aside and grant a new trial ; on the con- trary, when he is dissatisfied, it is almost of course to grant it. (1) 2 Term Bep. 113. (2) Vide Infra " Small Damages," Chap. 12. Chap. XI.] VERDICT AGAINST EVIDENCE. 405 Where the judge is satisfied. , _ ^ ^ The rule is thus laid down by Judge Bulhr. — " Upon a motion for a new trial, the way is to grant a rule to show cause, and then the puisne judge of the court speaks to the judge who tried the cause, (if it be not one of the same oourt,)and obtains a report from him of the trial, and also a signification of what tis senti- ments are upon it. If the judge declare himself satisfied with the verdict, it hath been usual not to grant a new trial, on ac- count of its being a verdict against evidence. On the other hand, if he declared himself dissatisfied with the verdict, it is pretty much of course to grant it."(l) In one case, Wheeler v, Pitl,{2) the verdict was for the plain- tiff, but on the report of Willes, Ch. J., before whom the cause was tried, that the weight of evidence was, in his opinion, with the defendant, a new trial was granted. In Berks v. Mason,{3) Ryder, Ch. J., before whom the case was tried, reported that there was evidence on both sides ; *but that the evidence for the party in whose favor the [*406] verdict was, was so very slight that the jury ought not, in his opinion, to have regarded it, and that the evidence for the other party was very strong, and he added that he was dissatis- fied with the verdict. A new trial was granted. In Rands v. Tripp.l^^ The plaintiff was a tobacconist, and lived near Gruildhall, London. He married the daughter of the defendant, who was an alderman in Hull, and had four hundred pounds portion with her. After the marriage the defendant spoke merrily before three witnesses, " That if his son-in-law would procure himself to be knighted, so that his daughter might be a lady, he would then give him two thousand pounds more, and would pay one thousand pounds, part thereof presently, upon such knighthood, and the other one thousand pounds, within a year after. The son-in-law, without acquainting the defendant, did, about nine months afterwards procujje himself to be knighted, (1) Bui!. N. P. 32T. (2) 6 Bao. Ab. 663. (3) Sayer, 264. (4) 2 Mod. 199. 406 NEW TEIALS. [Chap. XI. Where the judge is satisLed. and brought an assumpsit for the two thousand pounds, which was tried before North, Oh. J., at Guildhall, and the jury gave £1,500 damages. The chief justice thought it was a hard ver- dict, for he was not clearly satisfied that the agreenaent was good, it being T»nly for words which were spoken by the old man when he had but a weak memory. And thereupon a new trial was granted, because the chief justice thought it was fit so to be.(l) So in Letgoe v. Pitl,(^) in ejectment, and verdict for lessor of plaintiff. The chief justice certified, that the premises in ques- tion were copyhold, and both parties claimed under one George Cromwell, who had made two several surrenders. The question upon the trial was, whether Cromwell was compos mentis [*407] at the time of the *surrender under which the'defendant claimed ; that nothing was objected to Cromwell's insa- nity, till twelve years after such surrender, and that the chief justice was of opinion the strength of the evidence was with the defendant. The court ordered a new trial, upon payment of costs. In Lessee of Cain v. Henderson,{i) it was held, when the judge who tried the cause is not dissatisfied with the verdict, it must be a very strong case that will induce this court to grant a new trial. And in HarrisonY. Rowan.{4:) Verdict for plaintiff, and motion for a new trial, and one ground taken was, that the verdict was against evidence. Washington, J., delivering the opinion of the court upon this point, asks — "Is this verdict warranted by the evidence? or, in other words, ought we to be, or are we, satisfied with it ? Speaking for myself, I must declare, that I am satisfied. But my brother, who sat with me upon the trial of the issue, authorizes me to say, that he is not entirely so. This difference of opinion, upon a question which conscience alone can decide, is conclusive to induce my acquiescence in the motion. As a man, I am satisfied with the verdict ; but as a judge, I ought not to be satisfied, unless the courj; is so. Let a new trial be awarded." (1) Vide 3 Tounge 4; Jervis, 264. (2) Barnes, 439. (3) 2 Binu. 108. (4) 4 "Wash. 0. 0. R. 32. Chap. XL] VERDICT AGAINST EVIDENCE. 407 Where the judge is satisfied. But a new trial, when no injustice appears to have been done, will be refused, notwithstanding the verdict was, in the opinion of the judge before whom the cause was tried, contrary to the weight of evidence. In Ashley v. Ashleii,{\) the judge, before whom the cause was tried, reported that the weight of evidence was with the plaintiff, and that, in his opinion, the jury ought to have found a verdict for him. A new trial was refused, the court observing, that, as there *was evidence for the [*408] defendant, the jury were the proper persons to judge on which side the weight of evidence was. And in Smith v. II-uggins,(^) a new trial was refused, although Lee, Ch. J., reported, that the evidence for the plaintiff was very weak, and that he had summed up the evidence strongly for the defendant.(3) And held, in Fehlv. Oood,(4:) that though a verdict be against the opinion of the judge who tried the cause, yet if it turned upon the credit of witnesses, a new trial will not be granted, ex- cept in extraordinary cases."(5) It may be proper to add, that in most of the states a different practice prevails from what obtains in England. There, the case is reported by the judge who presided at the trial; here, gener- ally, it is made up by the counsel on both sides, and settled by the judge. Of course, where this practice prevails, it is not probable that the opinion of the presiding judge can have the same controlling influence as ia the English courts. With us in New York, not only does this practice in making up the case exist, but since the amendment of the constitution, the judges of the Supreme Court sit only in bank, and do not, as formerly, travel the circuit, and preside at Msi Prius. To them, therefore this last rule has strictly no application. (1) 2 Str. 1142. (2) Ibid. (3) Et vide 1 W. Blaolja. 1 ; 2 Str. 1105. (4) 2 Binn. 495. (6) Vide 2 Serg. k Eawle, 298; 2 S. 0. Ooq. Eep. 452, 323. *409 NEW TEIALS. [Chap. XII. Greneral lemarka. •CHAPTER XII. BY fiEASON OF THE DAMAGES. I. Oeneral remarks. II. In actions for personal torts. III. Exception to general rule in case of tort. IV. Where the objection is for inadequacy of damages. V. Power of the court to relieve. ■ I. General remarks. The object of an action being the recovery of a sum of money for a demand unjustly withheld, or a breach of contract or wrong committed, it is the special province of the jury to ascertain the justice of the demand, the terms of the contract, or the extent of the injury, and, by their verdict, to liquidate the amount. In actions on, or arising out of contracts, they are furnished by the evidence with a rule to measure the just amount; but in actions sounding in damages, or torts to the person, they are to be guided by their sense of justice. It is here, however, they are most liable to err. Their feelings and passions are appealed to and excited, and necessarily more or less mix up with the facts ; and hence their finding frequently betrays undue motives, and mani- fests an excess of feeling on one side or the other ; sometimes in a culpable excess of damages, and at others in an unjust dimi- nution. At one time, it was doubted whether, in cases of mere personal tort, the court ha(^ the power to interfere, on the ground of excessive damages, or the contrary.(l) But the practice has been long settled, conceding to the court the right to control ver- dicts in relation to damages, as well as to every other incident, in all cases without exception ;(2) with this difference, [*410] *however, that on questions of contract, or when an (1) y«eSayre'a Law of Damages, 210-238; 3 Anst. 808; 1 Term Eep. 277; 5 Taunt. 277. (2) Vide Sayre'3, ut supra; 2 Tidd, 917; Gra. Prao. 614. Chap. XII.] OCCASIONED BY DAMAGES. 410 In actions tor personal torts. ascertained test of the correct amount is furnished, the court interposes the correction with less reluctance than in cases of mere injury, when the damage is at large, and the finding on that point must of necessity be arbitrary. The practice, in this particular, is thus laid down by Justice Buller: — "In actions founded upon torts, the jury are the sole judges of the damages ; and therefore, in such cases, the court will not grant a new trial on account of the damages being trifling or excessive. But in actions founded upon contract, and where debt would lie, and before Slack's case would have been brought, the court will in- quire into the circumstances of the case, and relieve if they see reason.(l) To this part of the subject the subsequent rules will apply. II. In actions for personal torts. In personal torts and actions, generally sounding in damages, it being within the strict province of the jury to estimate the in- jury ; unless there be a manifest abuse, the court will not inter- fere. In its general acceptation, this rule applies equally to an unjust lessening of the damages, as to an intemperate excess — as well in inquests as contested cases. In an Anonymous case,{2) the defendant moved for a new writ of inquiry into London, and to stay the filing of the former, be- cause of excessive damages given ; but it was denied. Ghisvers v. Lambert.{B) Skinner moved for defendants to set aside the inquisition taken before the coroner, upon a writ of in- quiry for excessiveness of damages, which were £50. It was an action brought for a false return of a rescows, whereby the present plaintiff, one Cripple, having brought his action against the de- fendants for the false return, had recovered £20 dam- ages. The court made a *rule ; whereupon Eyre showed [*411] (1) Bull. N. p. 32V. (2) 1 Mod 2. (3) Barnes, 229. 411 NEW TRIALS. [Chap. XII. In actions for personal torts. cause, and produced affidavits, that plaintiff, who kept a tavern at Twickenham, was taken up by a writ of rescous, founded upon the said return, and carried to Newgate, where he was some time imprisoned and put to very great expenses ; and the counsel for the defendants attended before the coroner at the exe- cution of the writ of inquiry. The court discharged the rule. So in Surges v. Nightingale.^^) A writ of inquiry was execu- ted, and plaintiff moved to quash the inquisition, by reason of the smallness of damages, which was denied. Prince, for plain- tiff; Wright, for defendant. Tl^e court ruled that where the jury find any damages, the inquisition must stand ; aliler, had they found no damages. And in Mauricei v. Brecknoc7c.{2) Motion for a rule to show cause, why the inquisition taken upon the writ of inquiry in this cause, should not be set aside, on account of the smallness of.the damages. It was an action on the case, for maliciously suing out a commission of bankruptcy against the plaintiff, and also for maliciously holding him to bail for £1,020. The defendant let judgment go by default, upon which a writ of inquiry was exe- cuted, and the jury. gave only £5 damages. The affidavit upon which Baldwin moved, stated that the plaintiff's attorney had proved, before the jury, that his bill of costs to the plaintiff for superseding the commission of bankruptcy, amounted to upwards of £30, and that no evidence was produced on the part of the defendant. The court, after some difficulty, granted the rule. And, upon cause shown, Lord Mansfield. — "He has confessed malice in point of form, and merely for the purpose of [*412] letting the plaintiff in, *to prove the degree of injury he has received." And rule discharged. (3) These are cases on writs of inquiry, but they fall within the rule, the courts taking no distinction between inquests and ver- (1) Barnes, 230. (2) 2 Doug. 509. (3) Vide 2 Str. 1259. Cmp. XTI.] OCCASIONED BY DAMAGES. 412 In actions for personal torts. dicts,(l) and are well calculated to illustrate the principle em- braced in it, that the jury are the sole judges ; and so long as no abuse appears, their finding will be conclusive. As a further illustration, the decisions of the courts, in contested cases, may be adduced, in applications for new trials in every species of tort, on the ground of damages ; Exempli gratia, — Actions of crim. con., a species of personal tort, sui generis, from its nature placed almost beyond the control of the courts, and emphatically consigned to the province of the jury, in the matter of damages. Here the courts ^ill not interfere, without proof of the most flagrant abuse. In Wilford v. Berkley. {2) Motion for a new trial, for exces- siveness of damages. It was an action for criminal conversation with the plaintiff's wife, and the jury, a special one, had given £500 damages. The defendant was a clerk in the Exchequer, during pleasure, and at a salary of £50 a year only, which was his whole subsistence. The court were all clear and unanimous that, although there was no doubt of the power of the courts, to exercise a proper discretion in setting aside verdicts, for exces- siveness of damages, in cases where the quantum of the damage really suffered by the plaintiff could be apparent, or they were of such a nature that. the court could properly judge of the de- gree of the injury, and could see manifestly, that the jury had been outrageous in giving such damages as greatly exceeded the injury ; yet the" case was very different, where it depended upon circumstances which were properly and solely under the cognizance of the jury. They held the *case of criminal [*413] conversation, to be of this latter kind: for the injury suffered by the husband, and the estimate of the damages to be assessed, must, in their nature, depend entirely upon circum- stances, which it was strictly and properly the province of the jury to judge of, and in the present case, they could not say that £500 was too much, or that £50 would have been too little. (1) Vide 5 Johns. Eep. 138, m notis. (2) 1 Burr. 609. 413 NEW TRIALS. [Chap. XII. In actions for personal torts. The case of Chem v. Brig,{\) noticed bj the reporter, and sub- joined to the last cited case, before Lord Chief Justice Pratt, was exactly similar to this ; the same sum of £500 was given, and a like motion was rejected then, upon the same principle as the courts rejected the former one. In Dulerley v. Qunning,{^) an attempt was made to show the connivance of the plaintiff at the criminal intercourse : Lord Kenyan, in summing up the evidence, told the jury that, if they were of opinion that the husband had consented to the infidelity of his wife, it took away the ground of action, and they should find a verdict for the defendant ; or, if he had been guilty of gross negligence or inattention to her conduct, that would go far in mitigation of the damages, and to this opinion he himself most strongly inclined ; but they were to assess what damages, under all the circumstances, the plaintiff was entitled to. The jury found a verdict for the plaintiff with £5,000 damages. A rule was obtained to show cause why the verdict should riot be set aside, and a new trial had, as a verdict against evidence, and on the ground of excessive damages. It was pressed upon the court, that this question of damages being within the sole pro- vince of the jury, an application for a new trial, on the ground of excess, is an appeal from the proper jurisdiction, to another which has no cognizance of such a question. E>tt, per Lord Kenyan, Ch. J. — " This is by no means encroaching upon [*414] the jurisdiction *of the jury, nor drawing the question to the examination of a different tribunal from that to which the constitution has referred it, for it is not substituting a different judgment in the place of that which has been pro- nounced, but requiring the same jurisdiction to reconsider that opinion, which appears to be erroneous. Without this general power in the court, injustice would be done in many cases. Un- der all the circumstances, I think the damages were much larger Mihan ought to have been given. Bnt here I doubt what conclu- sion I ought to draw from all the premises. And my difficulty (1) I Burr. 609. (2) 4 Term Rep. 661. Chap. XIL] OCCASIONED BY DAMAGES. 414 In actiona for personal torts. arises from my being unable to fix any standard, by wbich I can ascertain the excess, which, according to my view of the case, I think the jury have run into. Where there is no such standard, how are the errors of the jury to be rectified ? What measure can we point out to them by which they ought to be guided ? I should have been satisfied even if nominal damages only had been given ; but, as the jury have formed a difierent judgment upon the evidence, I know not why my judgment should be pre- ferred to theirs upon such a subject." Audi per tatam Curiam. — The rule was discharged. (1) And in Chambers v. Caulfield^) Action of crim. con., and verdict for plaintifi", with £2,000 _ damages. Motion to set aside verdict, and one ground taken was, that the damages were exces- sive. It appeared that the plaintiff and his wife, by whom he had many children, had lived happily together, until his suspi- cions of the defendant began ; after which there had been differ- ences and occasional separations between them, from time to time, until their final separation, in consequence of the adultery. This was two or three years after a deed of separation had been entered *into between them, and after they had [*415] lived together again. After an elaborate argument. Lord Mknborough delivered the opinion of the court. — " As to the second ground upon which the new trial was moved for, that of excessive damages, if it appeared to us, from the amount of the damages given, as compared with the facts of the case laid before the .jury, that the jury must have acted under the influence either of undue motives or some gross error or miscon- ception on the subject, we should have thought it our duty to submit the question to the consideration of another jury ; but this does not, upon a review of the whole evidence, appear in the present instance to have been the case." And rule dis- charged. In Torre v. Summers,{3) a case of crim. con., tried before Mr. (1) Vide 2 Mod. 160 ; 1 Levi. 97 ; Comb. 110. (2) 6 East. 244. (3) 2 Nott & M'Cord, 267. 415 NEW TRIALS. [Chap. XII. In actions for personal torts. Justice Bay, at Charleston, in 1819, the jury gave $5,000 dama- ges ; and upon a motion to set the verdict aside, as excessive, the court refused it, giving as their reason, that it was a case pecu- liarly within the province of the jury, that it was not too much for the wounded feelings of a husband, nor by way of example to purify and sustain the public morals. So in actions for a malicious prosecution ; as in an Anonymous case.(l) Defendant moved for a new trial, and Mr. Justice Page certified the damages, which were £50, to be excessive ; but the action appearing to be brought for a malicious prosecution, and plaintiff having been imprisoned and tried for felony, the court were of opinion, that, in the nature of the thing, the damages ap- peared to be moderate, and therefore refused to grant a new trial. And in Farmer v. Darling.(^) Malicious prosecution, and damages £250. Motion to set aside the verdict on the [*416] *ground of excessive damages, and verdict against evi- dence. The defendant had maliciously indicted the plaintiff for two nuis9,nces, in defending which he had been put to great expense. Lord Mansfield. — " As to the excessiveness of the damages, it does not appear by the verdict, how far the jury gave it upon the hill, and how far, upon the whole circumstances of the case taken together. The end and tendency of these two indictments, was to drive this plaintiff from his business of a poulterer, after having long carried it on. This was sworn to have been the prosecutor's view in preferring ihem, and they might affect the man's credit. There are many circumstances which make it reasonable, not to indulge the present defendant in sending it to a new litigation, only to abate the quantum of the damages, when he has been so much in the wrong." There- fore, a new trial was refused. And, in Gilbert v. Burtenshaw,(B) for maliciously indicting the plaintiff for perjury, and verdict for plaintiff, with £-100 dama- (1) Barnes, 436. (2) 4 Burr. 1971. (3) Cowp. 230. Chap. XII.] OCCASIONED BY DAMAGES. 416 In actions for personal torts. ges. Motion for a new trial on the ground of excessive dama- ges. Lord Chief Baron Smythe, before whom the cause was tried, was very well satisfied with tljp verdict. Per Lord Mansfield, denying the motion. — " The whole ground of the application rests on the point of excessive damages. I should be sorry to say, that in cases of personal torts, no new trial should ever be granted for damages, which manifestly show the jury to have been actuated by passion, partiality or prejudice. But it is not to be done without very strong grounds indeed ; and such as carry internal evidence of intemperance in the minds of the jury. It is by no means to be done, where the court may feel, that if they had been on the jury, they would have given less damages, or where they might think the jury themselves would have completely discharged their *duty in giving a less [*417] sum. Of all the cases left to a jury, none is more empha- tically left to their sound discretion, than such a case as this ; and unless it appears that the damages are flagrantly outrageous and extravagant, 'it is difficult for the court to draw the line."(l) And, in Leiih v. Pope,(2) where the defendant had indicted a baronet for a larceny, under circumstances of great outrage, and with a view to screen himself from the charge of usury on loans made to the plaintiff, and the jury gave a verdict of £10,000 dam- ages. On an application to the court for a new trial, on account of the excessiveness of the damages. Lord Chief Justice De Grey, in his report of the case, added his opinion, with which the other judges concurred, that in cases of tort, the court will not inter- pose on account of the largeness of damages, unless they are fla- grantly excessive, as to afford internal evidence of the prejudice and partiality of the jury. That is, unless they are most outra- geously disproportionate, either to the wrong received, or to the situation and circumstances of either the plaintifl" or defendant. Applying this rule,, his lordship proceeded, "the plaintiff is a man of family, a baronet, an officer in the army, and a member of Parliament, which may render the value of an injury done to (1) Vid.ehoSt, in. (2) 2 W. Blacks. \U1. 417 NEW TRIALS. [Chap. XII. Iq actions for personal torts. him, especially when directed against his life, adequate to £10,000. The court cannot enter into stories of private scandal, which have been liberally propagated on botl^sides. The defendant appeared upon evidence to be exceeding wealthy, and well able to sus- tain such a verdict. In possession, upon record, of seventy -seven judgments, to the amount of more than £100,000, in the actual receipt of near £3,000 per annum, annuities for young}gentlemen's lives. This was not then, nor is now, contradicted by the defen- dant." And rule discharged.(l) [*418] ^Hewlett v. Gruchley^{2) for a malicious prosecution, for causing the plaintiff to be indicted for seven distinct felo- nies, and verdict for the plaintiff, with £2,000 damages. The principal ground, on motion for a new trial, was, that the dam- ages were excessive. Mansfield, Ch. J. — " As to that, it is ex- tremely dif&cult to estimate damages. You may take twenty juries, and every one of them will differ from £2,000 down to £200. I have always felt that it is extremely, difS cult to inter- fere and say when damages are too large. Nevertheless, it is now well acknowledged in all the courts of Westminster Hall, that whether in actions for criminal conversation, malicious prosecu- tions, words, or any other matter, if the damages are clearly too large, the court will send the inquiry to another j ury. There are some damages so large, that it is impossible but that every man must acknowledge they are too large. But in every case where the courts interfere, they always go into all the circumstances of the plaintiff and the defendant, and put themselves in their situa- tion, and enter into all their conduct." And after enumerating the sufferings of the plaintiff, his lordship adds : " Could any one say that any rational man of character, would for £2,000 put him- self in this situation ? If not, the damages are not excessive."(3) And in a recent case, Caddy v. Barhw,{^) for maliciously cau- sing the plaintiff, an infant, to be indicted for felony, and verdict £100 damages. Motion for a new trial, and, among other rea- (1) Tide 2 Str. 691. (i) 5 Taunt. 277. (3) Tide 4 Term Rep. 659, m notis. (4) 1 Man. & Eyl. 276. Chap. XIL] OCCASIONED BY DAMAGES. 418 In actions for personal torts. SODS assigned, was, that the damages were excessive. Lord Ten- terden, Ch. J. — " The damages which she has obtained, are larger, perhaps, than we may think altogether called for by the circum- stances of the case. But it is impossible to forget that the defend- ant's conduct has been, in many respects, extremely culpable ; and as the *whole transaction was fully before [*419] the- jury, I do not feel myself at liberty to say that they have exercised an improper discretion in awarding the damages they did. Upon the whole, therefore, I am of opinion, that no rule ought to be granted in this case." The other judges con- curred, and rule refused. In like manner, in actions for seduction. Thus Tullidge v. Wade.il) Trespass against the defendant, that he made an as- sault upon A. B., daughter and servant of the plaintiff, and got her with child, whereby he lost the benefit of her service. The defendant pleaded not guilty. Verdict for the plaintiff £50, dam- ages. Motion for a new trial, grounded upon an affidavit tend- ing to show, that under the circumstances of the case appearing at the trial, the damages were excessive ; and also that evidence of a promise of marriage was admitted. Wilmot, Ch. J., deny- ing the motion. — " Actions of this sort are brought for example's sake ; and although the plaintiff's loss in this case may not really amount to the value of twenty shillings ; yet the jury have done right in giving liberal damages. Brother OouU being satisfied with the verdict, if much greater damages had been given, we should not have been dissatisfied therewith, the plaintiff having received this insult in his own house, where he had civilly re- ceived the defendant, and permitted him to make his addresses to his daughter. "(2) So Bennett v. Ahock.{2>) Trespass for breaking and entering the plaintiff's house, debauching his daughter, and getting her with child, per quod servitium amisit. Plea, not guilty, and ver- (1) 3 Wils. 18. (2) Vide Applegate v. Ruile, 2 Marsh. Kant Eep. 130. (3) 2 Term. Rep. 166. Vol. I. 27 420 NEW TEIALS. [Chap. XII. In actions for personal torts. dict'for the plaintiff with 200Z. damages, which the learned [*420] judge thought were not excessive. A *motion was made to set this verdict aside, chiefly because the damages were excessive. Ashhurst, J. — " It is true, indeed, that the dam- ages are considerable, and if we had been on the jury, .we possi- bly might have been disposed to have given a smaller sum ; but in an action for this species of injury, the court will not try that fact, the judge who tried the cause having declared himself satis- fied with the verdict." And the rule was discharged.(l) And in Sargent v. Denision.{2) Case for seduction of the plaintiff's daughter and servant. Plea, not guilty, and verdict for plaintiff, $920 damages. Motion to set aside the verdict, upon the ground, among others, of excessive damages. Suther- land, J. — " I do not think we are authorized to interfere, on the ground of excessiveness of the damages, although they appear to us much larger than they should have been. There were no aggravating circumstances in the case ; no arts of seduction were used, for none were necessary. The character of the daugh- ter had long been considered loose and abandoned. There were no wounded feelings, or blasted reputation, to aggravate the moral impropriety of the defendant's conduct, and to call for ex- emplary damages. We should have been better satisfied with a verdict, barely sufficient to remunerate the plaintiff for her actual loss. But the damages are not so flagrantly outrageous and ex- travagant, as necessarily to evince intemperance, passion, partiali- ty, or corruption, on the part of the jury ; and where that is not the case, the court will not undertake to set their judgment on a question of damages, in an action of this nature, in opposition to the judgment of the jury. It is the judgment of the jury and not of the court, which is to determine the damages in actions for personal injuries. "(3) [*421] *It may be added, as worthy of remark, that, in Mb- (1) 3 Burr. 181S-, 2 Lord Eaym. 1032. (2) 5 Oowen, 106. (3) Tide Irwin y. Dearman,'!! East, 32. Chap. XIL] OCCASIONED BY DAMAGES. 421 In actions for personal torts. ran v. Dawes^i^ where the jury gave a verdict for the plaintiff, and $9,000 damages, the force of the rule was so felt by the de- fendant's counsel, that althcilgh they moved for a new trial on other grounds, they took no notice of the excessiveness of the damages. - Actions iov false imprisonment are within the rule, and furnish numerous strong examples of the inflexible determination of the court to uphold verdicts objected to on the ground of damages. As in Leeman v. Allen,{2) trespass, assault and imprisonment. Plea, the general issue ; and verdict for the plaintiff, with £300 damages. It appeared that the plaintiff kept a tavern in Chancery Lane ; that the defendants were called reforming constables, who, under pretence of a warrant from one Kinas- ton, a justice of peace, entered the plaintiff's house with staves, there seized and carried her into the yard, and threatened to send her to prison. Motion for a new trial, on account of vari- ance, and that the damages were excessive. Chief Justice Wil-r mot. — " As to the excessiveness of damages, courts should be very cautious how they overthrow verdicts that have been given by twelve men upon their oaths ; however, if damages be un- reasonable and outrageous indeed, as if £2,000 or £3,000 was to be given in a little battery, which all mankind might see to be unreasonable at first blush, certainly a court would set aside such a verdict. The court must be able to say the damages are beyond all measure unreasonable, though they cannot say exact- ly what damages ought to be given. I do not think the damages excessive in the present case." The whole court refused to set aside the verdict, and the plaintiff had judgment.(3) So in Hicckle v. Money.{^) Trespass, assault and im- prisonment, *issue joined, upon the general issue not [*422] guilty, tried before the lord chief justice, when it was (1) 4 Cowen, 412. (2) 2 Wils. 160. (3) Vide Doddy. Hamilton, 12 Price, 'JQ8. (4) 2 Wils. 206, 422 NEW TEIALS. [Chap. XIL In aotiona for personal torts. proved for tlie plaintiff that he was a journeyman printer, and was taken into custody by the defendant, a king's messenger, upon suspicion of having printed tie North Briton, number 45; that the defendant kept him in custody about six hours, but used him very civilly, so that he suffered very little or no dam- ages. Verdict for the plaintiff, £300, and motion to set it aside as excessive. Lord Chief Justice Wilmot denying the rule. — " The law has not laid down what shall be the measure of dam- ages in actions of tort. The measure is vague and uncertain, depending upon a vast variety of causes, facts and circumstances. Torts, or injuries, which may be done by one man to another, are infinite. In cases of criminal conversation, battery, impri- sonment, slander, malicious prosecutions, &c., the state, degree, quality, trade, or profession of the party injured, as well as of the person who did the injury, must be, and generally are, con- sidered by a jury in giving damages. The few cases to be found in the books of new trials for torts, shows that courts of justice have most commonly set their faces against them, and .the courts' interfering in these cases would be laying aside juries."(l) So in Beardmore v. Carrington, and otbers.(2) Action of tres- pass and false imprisonment. It appeared, at the trial, that the defendants entered the house of the plaintiff, who was an attor- ney, examined his file of letters, opened his desk, took out the books, looked into his ledgers, and finally carried the plaintiff away in a coach to prison', where he was detained six days in close custody, not being permiited to speak with his clients, or give directions as to his business ; and that pen, ink, and [*423] paper were refused, *and he prohibited from writing to his friends. The defendants attempted to justify, under a warrant of the secretary of state, which turned out to be illegal. The jury found a verdict for the plaintiff', of £1,000, damages. The defendant moved to set aside the verdict, and for a new trial, alleging that the damages were excessive. Per Curiam. — " "We are called upon our oaths to say, whether these are excessive (1) Vide Deacon v. Allm, 1 Southard, 338 ; Winans v. Brooks, 2 Ibid. 847. (i2) 2 Wils. 244. Chap. XIL] OCCASIONED BY DAMAGES. 423 In actions for personal torts. damages or not, and ought to have very clear evidence before us, before we can say they are excessive. There is a great differ- ence between cases of damages which be certainly seen, and such as are ideal ; as between assumpsit, trespass for goods, where the sum and value may be measured, and actions of im- prisonment, malicious prosecution, slander and other personal torts, where the damages are matter of opinion, speculation, or ideal. We desire to be understood, that this court does not say, or lay down any rule, that there can never happen a case of such excessive damages in tort, where the court may not grant anew trial : but in that case, the damages must be monstrous and enor- mous indeed, and such as all mankind must be ready to exclaim against at first blush. The court must consider these damages as given against Lord Halifax, and can we say that £1,000 are monstrous damages as against him, who has granted an illegal warrant to a messenger, who enters into a man's house, and pries ' into all his secret and private affairs, and carries him from his house and business, and imprisons him for six days? — "We can- not say the damages of £1,000 are enormous, and therefore the rule to show cause why a new trial should not be granted, must be discharged."(l) And in Fahrigas v. Mostyn.{2) Action of trespass and false imprisonment against the defendant, who was govern- or *of Minorca. The jury, on full proof of the facts, [*424] gave a verdict for the plaintiff, with £3,000 damages. The defendant moved for a new trial, and one ground urged was, that the damages were excessive. But the court were unanimously of opinion, that it was very difficult to interpose, with respect to the quantum of damages in actions for any per- sonal wrong — not that in no case of personal injury the dam- ages can be excessive ; some may be so monstrous and excessive as to be in themselves an evidence of passion or partiality in the jury. And in this case, the rule was discharged ; the court ob- (1) Vide Smith v. Bomher, Ibid. 250, in notds; 2 Taylor's N. C. Rep. 31. (2) 2 W. Blaks. 929. 424 NEW TEIALS. [Chap. XII. In actions for personal torts. serving, that " the jury, not the court, are to estimate the ade- quate satisfaction."(l) And so it has been adjudged in cases of outrageous assault and battery. Orey v. Sir Alexander Grant.{2) Action of assault and battery, and a verdict for the plaintiff, with £200 damages. It was moved to have the verdict set aside, and a new trial, for excessiveness of damages. A turtle, intended for the plaintiff, had been delivered, through mistake, to the defendant; the plaintiff went to him and demanded it of him ; but he said he had invited some friends to dine with him upon it, and refused to deliver it, or to pay for it, and pointing at the plaintiff, said : "If that man was to ask a turtle of me, I would give him one." The plaintiff answered : " This is is very ungenteel ;" and the defendant shoved the plaintiff out of his house with his elbow, who thereupon asked the defendant if he would waive his privi- lege of parliament, but he refused. The plaintiff then said to him : "You are a scoundrel ;" and the defendant gave him a blow on the face, which caused him a black eye. Per Ouriam. — " The plaintiff has been used unlike a gentleman by the defen- dant, in striking him, withholding his property, and insisting upon his privilege, all of them tending to provoke him [*425] to seek his revenge in *another way than by law, and therefore we think the damages are not excessive." So, Benson v. Freclerich,{B) an action brought against the de- fendant, who was colonel of the Middlesex militia, for ordering the plaintiff, who was a common man therein, and had a fur- lough from the major, to be stripped, and to receive twenty lashes from two drummers. The jury found for the plaintiff, £150 damages ; and now, for that reason, the defendant moved to set aside the verdict. Lord Mansfield said, in the present case, he was not dissatisfied with the verdict. The defendant had manifestly acted arbitrarily, unjustifiably and unreasonably. He (1) Vide Green's N. J. Eep. 294. (2) 2Wils. 252. (3) 3 Bur. 1845. Chap. XIL] OCCASIONED BY DAMAGES. 425 In actions for personal torts. had ordered this innocent man to be flogged, merely out of spite to his major ; because the major, who gave the man the furlough, had oflfendedjiim, in which he acted mob animo. His lordship acknowledged that he thought the damages were very great, and beyond the proportion of what the man had suffered ; and yet, under the whole circumstances of the case, he was not for granting a new trial. The court were unanimous in discharging the rule.(l) So in IhMcher v. Wood(2) Action of assault. Verdict for £150. Mingay moved to set it aside, on account of excessive damages. Lord Mansjield said, there was no doubt but that the court had the power of taking the opinion of a second jury, in any case where the damages were excessive ; but that all these questions depended on their own circumstances, on which the court would exercise their discretion. But in this case, upon hearing the report of the judge, the court thought fit to reject "the motion. So in GhaneUor v. Vaughn.{3) Assault and battery. *Verdict for plaintifi". It appeared to have been a very [*426] violent assault, and without provocation on the part of the plaintiff, in which the jury gave heavy damages; sum not re- ported. The present was a motion for a new trial, on the ground ofexcessive damages. But the judges unanimously refused it, on the ground that wherever an assault was wantonly committed upon the person of a peaceable citizen, without provocation, as appeared from the report of the judge who tried the cause, it was a very proper case for the consideration of the jury. It Was their province to weigh well, and consider all the circumstances of the case, and to assess such damages as they thought would be commensurate with the nature of the injury, and such as would effectually check such an evil. And the court added, they would never interfere in such cases, unless the damages were unreasonable beyond measure. (1) Vide Lhyd v. Monpoey, 2 Nott & M'Cord, 446; Allen, v. Craig, 1 Green, 294. (2) 1 Term Rep. 211. (3) 2 Bay, 416. 426 NEW TRIALS. [Ohap. Xn. In actions for personal torts. To libel and slander suits, the rule is peculiarly applicable. Motions for new trials in these cases are greatly discountenanced. Next to actions for crim. con., the courts have surr^dered thena to what Lord Chief Justice De Grey, on one occasion, citing Com- berbach, called the despotic power of the jury.(l) Thus, in scandalum magnatum, an action known in this coun- try only by name, but well adapted to illustrate the rule, and the reasons of which we have adopted in more humble instances of defamation. Lord Toionsend v. Hughes.{2)' The plaintiff brought an action of scandalum magnatum, for these words, spoken of him by the defendant — " He is an unworthy man, and acts against law and reason." Upon not guilty pleaded, the case was tried, and the jury gave the plaintiff £4,000 damages. Motion for a new trial for various causes; one of which [*427] was that the damages were excessive.. The *judges delivered their opinions seriatim. In denying the mo-, tion, North, Ch. J., said, that as a judge, he could not tell what Value to set upon the honor of the plaintiff; the jury had given four thousand pounds, and, therefore, he could neither lessen the sum nor grant a new trial, especially since by the law the jury were judges of the damages; and it would be very inconvenient to examine upon what account they gave their verdict. They, having found the defendant guilty, did believe the witnesses, and he could not make a doubt of their credibility. Wyndham,J., and Scroggs, J., accorded in omnibus. The latter added — that if he had been on the jury, he should not have given such a ver- dictj and if he had been plaintiff, jie would not take advantage of it, but would overcome with forgivenesses such follies and in- discretions, of which the defendant had been guilty ; but that he did not sit there to give advice, but to do justice to the people. (8) In an action for these words spoken of a tradesman, " thou art a beggarly rogue, go pay thy debts," the jury found a verdict (1) Sharpe v. Brice, 2 W. Blacks. 942. (2) 2 Mod. 150. (3) Vide Duke of Torh v. Pilkmgton, 2 Shower, 246. Chap. XII.] OCCASIONED BY DAMAGES. 427 In actions for personal torts. for the plaintiff, with £800 damages. A new trial being moved for, on account of the excessiveness of the damages, it was re- fused; because the judge, before whom the cause was tried, re- ported that the plaintiff had given the defendant no provocation, and that he believed the jury had done what they thought to be right.(l) The first case of note with us, in which the rule was laid down broadly, is Tillotson v. 0/ieetham.(2,) Action for a libel. A mo- tion was made, on the part of the defendant, to set aside the in- quisition, taken on the writ of inquiry in this case ; damages assessed at $1,400. The grounds of application were for irregu- larity, and for excessive damages. Kent, Ch. J., delivered the opinion of the court. — " The second ground of the pre- sent motion is, the excess of damages. We cannot in- [*428] terfere on account of the damages. A case must be . very gross, and the recovery enormous, to justify our interposition •on a mere question of damages, in an action of slander. We have no standard by which we can measure the just amount, and ascertain the excess. It is a matter resting in the sound discretion of a jury. The plaintiff, when libelled, was a high and confidential officer of government ; and by the libel he is held out to. the world as an object of reproach. He is repre- sented as being seduced into unworthy and dishonorable con- duct, by motives equally mean and unworthy. This was a printed defamation, which is regarded in law as the most injuri- ous and aggravated species of slander, because it has a wider circulation, makes a deeper impression, and has a more perma- nent existence."(3) Again in Gohman v. Southwich.{4:) Action for a libel impu- ting treasonable sentiments and acts to the plaintiff. The de- fendant pleaded the general issue, with notice of justification. The jury found a verdict for the plaintiff, with $1,500 damages. On (1) S. Jones, 200. (2) 2 Johns. Rep. 63. (3) M vide 5 Cowen, 119. (4) 9 Johns. Rep. 45. 428 NEW TEIALS. [Chap. XII. In actions for personal torts. motion for a new trial, it was contended for the defendant, that the damages were excessive. The court, by Kent, Ch. J. — " The question of damages was within the proper and peculiar province of the jury. It rested in their sound discretion, under all the circumstances of the case ; and unless the damages are so out- rageous as to strike every one with the enormity and injustice of them, and so as to induce the court to believe that the jury must have acted from prejudice, partiality or corruption, we can- not, consistently with the precedents, interfere with the verdict." Again, " The law has not laid down what shall be the measure of damages in actions of tort. ■ The measure is vague and uncer- tain, depending upon a vast variety of causes, facts and [*429] circumstances, as the *state, degree, quality, trade or profession of the party injured, as well as of the party who did the injury. The court cannot interfere unless the dama- ges are apparent, so that they can properly judge of the degree of the injury. In short, the damages must be flagrantly out-, rageous and extravagant, or the court cannnot undertake to draw the line ; for they have no standard by which to ascertain the excess." The motion was denied, /Spencer and Yates, Justi- ces, dissenting. Again, in Southwich v. Stevens.iX) Action for a libel, charging the plaintiff, who was an editor, with being a confirmed lunatic. The defendant pleaded not guilty, with notice that the paragraph complained of was mere irony. The jury found a verdict for the plaintiff, $640 damages. On motion for a new trial, it was urged the damages Avere excessive. But, Per Guriam. — "' The ground of the motion, on account of excessiveness of damages, equally fails. It was for the jury to determine how far the ridi- cule of the plaintiff was malevolent, and calculated to injure his feelings, or prejudice him in the eyes of the public. After the principles laid down on this question, in the case of Ooleman v. Southwick, there does not appear any reasonable ground for in- terference on this point. The motion on the part of the defen- dant is denied." , (1) 10 Johns. Eep. 443. Chap. XII.] OCCASIONED BY DAMAGES. 429 In actions for personal torts. Again, in a more recent, and what may probably be regarded as a more important case — Boot v. King.il) Case for a libel published by the defendant, as proprietor and editor of a news- paper, of, and concerning the plaintiff, at that' time president of the senate of this state. Plea, not guilty, and notice of justifica- tion. The jury gave a verdict for thqjplaintiff, with $1,400 dam- ages. A new trial was moved for on various grounds, and among others, that the damages were excessive. Savage, Oh. J., delivering the opinion *of the court. — " In the [*430] case of Tilbtsony. Oheetham,{2) the recovery was $1,400 in favor of the secretary of state, against a printer for a libel, im- puting to him corrupt conduct. The court said, " we cannot jnterfere on account of the damages. A case must be very gross, and the recovery enormous, to justify our interposition on a mere question of damages, in an action of slander. The same point ■was so decided in Goleman v. Souihw{ck,{5) and Southwich v. Ste- vens.{4:) These cases were between editors and printers of news- papers. In actions for libel, and for other defamation, unless some rule of law has been violated, or there has been some im- proper conduct by the parties or jury, a new trial will not be granted. So in Cole v. Ferry.{5) Slander, and verdict for plaintiff, $1,000. And, on motion, the excessiveness of the damages was urged. But, Per Ouriam. — " We cannot interfere with the verdict, on the ground that the damages are excessive. Though heavy, they do not 'afford evidence, either of partiality, preju- dice, intemperance, or corruption, on the part of the jury." And in Douglass v. Tousey.{6) Action for a charge of theft, and verdict, $590. Motion for a new trial, and the excess of the damages urged. Marcy, J.—" The amount allowed the (1) 1 Cowen, 613. (2) 2 Johns. Repl 63. (3)' 9 Johns. Rep. 45. (4) 10 Johns. Rep. 443. (5) 8 Coweu, 214. (6) 2 WendeU, 352. 430 NEW TRIALS. [Chap. XII. la actions for personal torts. plaintiff is certainly very liberal ; but the rule is, that in actions of slander, the court will not grant a new trial, on the ground of excessive damages, unless the amount is so flagrantly outrageous and extravagant, as manifestly to show that the jury acted cor- ruptly, or under the influence of passion, partiality or prejudice. The verdict, in this case d^es not warrant such an inference." But the strongest case reported in this state, is Ryclc- [*431] man v. Parkins,{l) where it may well be doubted whether the rule has not been pushed to its utmost verge. The plaintiff having obtained a verdict for $7,000 damages, in an ac- tion of slander, charging him with perjury, the defendant made a case with a view of moving for a new trial, on the ground of the excessiveness of the damages; and obtained an order from* the circuit judge, before whom the cause was tried, staying the proceedings until the case could be heard. But the plaintiff, on the facts set forth in the case, and on afl&davit of the great wealth of the defendant, now applied for a rule to vacate the order to stay proceedings. And the court, per Savage, Ch. J. — " The slander, in this case, was of a wanton and wicked character, im- puting to the plaintiff a crime of the most atrocious nature; and when the great wealth of the defendant is taken into con- sideration, there is nothing in the case to induce the suspicion of prejudice, partiality, or corruption on the part of the jury, in flnding a verdict against the defendant, to the amount of $7'000." The rule vacating the order to stay was granted, and the plain- tiff allowed to enter up judgment."(2) * The rule has been adopted in its full extent in Massachusetts, in Glark v. Binney.{S) Action for a libel contained in a pamph- let, charging the plaintiff, as a witness, with undue motives. The defendant pleaded a justification. The jury found a verdict for the plaintiff, with $1,000 damages. The defendant moved for a new trial, because the damages were excessive. Lincoln, J., delivered the opinion of the court. After adverting to the (1) 9 "Wendell, 470. (2) Vide Rimdell v. BvMer, 10 Wendell, 119. (3) 2 Pick. 113. Chap. XIL] ' OCCASIONED BY DAMAGES. 432 In aoUona for personal torts. prominent cases in England, and the decisions of our Supreme Court, on the question of extravagant damages in actions *of'this kind, the learned judge concludes: "A plea [*432] of justification deliberately made, and placed upon the public records, and which the jury found was unwarranted by the truth of the matter therein alleged, is to be regarded as a deep aggravation of slander ; and without regard to the extra- neous circumstances, of which the court cannot now be judicially informed, we are constrained to the conclusion, that if the dam- ages are not in exact conformity with the rights of the plaintiff, yet they are not, in the language of the books, so flagrantly out- rageous as manifestly to show the jury to have been actuated by passion, partiality or prejudice." So, in Bodwell v. Osgood,{l) for a libel, charging the plaintiff^ who, was a schoolmistress, with want of chastity. Plea, the gen- eral issue, and verdict for the plaintiff, with $1,400 damages. The defendant moved for a new trial, because the damages were excessive. Wi^de, J. — "As to the damages, they are certainly large, perhaps too large, but not so extravagant as to justify the interference of the court. We do not doubt our power to grant new trials, on the ground of excessive damages, in cases of per- sonal torts ; and, whgn they are clearly excessive, and greatly disproportionate to the injury proved, we are bound to interpose. But a stfong case must be made out, and this does not appear to us to be such a case, considering the aggravated nature of the charge, and the situation of the parties. The plaintiff, being an unprotected female, having nothing whereon to depend but an unblemished reputation, and the defendant being a man of wealth and influence, we cannot say that the damages are clearly exorbitant." And in a subsequent case, Shute v. Barreit.{2) Action for slan- der, charging the plaintiff with adultery. The plaintiff was superintendent of an alms-house, and the defendant, *a [*433] (1) 3 Pick. 319. (2) 1 Pick. 82. 438 NEW TEIALS. [Chap. XII. In actions for personal torta. man of property. The words were spoken at a town meeting, on a debate relative to the appointment of a new superinten- dent, and the verdict was for $707. The court refused to grant a new trial, on the ground of excessive damages. And in an action against the same defendant, by an unmarried female, who was an assistant in the alms-house, for the same slander, where the verdict was for $591 damages, a new trial, on the ground of excessive damages, was also refused. ParTcer, Ch. J., places the rea- son for refusing the motion, in a novel and imposing view. " It is impossible," says he," to extract any rule from the numerous decisions and dicta, which are so often cited as to become trite, ex- cept that any judge to whom the question is put, whether the ver- dict shall stand or not, must be satisfied, in his own mind, that the rule of fair compensation has been departed from ; that passion,'not reason, has decided, or that some undue influence has swayed the minds of the jury. And thisiconclusion-they can arrive at only by revising the facts in the case, under the presumption, in fa- vor of the jury, which the law will, in all cases, imply."(l) So in South Carolina, Neal v. Lewis.{2) Slander, for calling the plaintiff a rascal, villain, swindler and' thief, and verdict for the plaintiff, with $3,000 damages. Motion for a new trial, be- cause damages excessive. The Court, after reviewing the facts, conclude : — " Shall this court, therefore, take upon themselves to say, that $3,000 for such gross slanders were unreasonable or outrageous damages ? They have no such power. It was for the jury to determine upon that point, and they have done so. The court, therefore, sees no ground to order a new trial on that account." And in Davis v. Davis.{3) Action of slander, and [*434] verdict *for plaintiff, with $500 damages. Motion for a new trial. On the point of excessiveness of damages, Johnson, J., who delivered the opinion of the court, observes — "There are cases in which excessive damages alone have been (1) Vide Goffim v. Oofflii, i Mass. Eep. 1. (2) 2 Bay, 204. \ (3) 2 Nott & M'Cord, 81. Chap. XII.] OCCASIONED BY DAMAGES. 484 In actions for personal torts. made the basis of a new trial, but they are rare ; and I trust that this court will never add to the number, except in cases of the most imperious necessity. They are always a subject for the exercise of the sound discretion of the jury ; aad this court will never interfere, unless they so far exceed all proportion to the injury, as necessarily to strike every person at once with the con- viction that the jury have been led away, either by public pre- judice or private feeling." Motion denied. Upon the whole, it appears, that in actions for defamation, although the courts in every instance assert their power, no re- lief on the mere question of excessiveness of damages, in the present stat^of the practice, can reasonably be expected. In the vast range of this subject, and the numerous applications that have been made, the imagined case, of an outrageous verdict, has scarcely ever occurred. The rule has been held to apply to ajctions of trespass. Thus, in Bedshaw v. Brooks and others.{l) Trespass against the de- fendants, who were custom-house officers, for breaking and en- tering the plaintiff's house, and searching for prohibited and un- customed goods. Verdict for the plaintiff, and £200 damages. The defendant moved for a new trial, alleging the damages were excessive. Lord Chief Justice Wilmot, who tried the case, re- ported the evidence, that the defendants came to the plaintiff's house and desired to see every place, and to search for prohibited goods, which they did, and opened many bundles of goods, but found none such ; then they desired to go into the cellar, but the door thereof being locked, and the *plaintiff him- [*435] self being from home, and having the key of the cellar- door with him, his son sent for a blacksmith, and had the door opened ; whereupon the defendants entered the cellar to search for cambrics and prohibited goods, but found none. The plain- tiff's sons then told the defendants they had done the plaintiff great wrong, and would be brought to justice. The defendants continued the search about twenty minutes, and then departed. The chief justice further reported he was not dissatisfied with (1) 2 "Wila. 406. 435 NEW TEIALS. [Ohap. XII. In aotiona for pefaonal torts. the verdict. Clive, J. — "As my lord chief justice is not dis- satisfied, how can we say that these damages are too large ?" A rule to show cause why there should not be a new trial was re- fused, per totam curiam. So in Bruce v. Rawlins.{^). Trespass for breaking and enter- ing the plaintiff'^ house. The defendants suffered judgment by default. Upon executing the writ of inquiry, it was proved, that the defendants, who were custom-house officers, entered the plaintiff's dwelling-house, with a writ of assistance, to search for uncustomed goods ; the plaintiff's wife and daughter being only at home, were frightened and much surprised, delivered the keys of several boxes and drawers, which the defendants searched but found no uncustomed goods. They stayed in the house about an hour, and did very little or no damage. The jury gave a verdict of £100 damages. The defendant moved to set aside the inquisition, for excessive damages. Wilmot, Ch. J. — "This is an unlawful entry into a man's house, which is his castle, an in- vasion upon his wife and family, at peace and quietness therein, frightened and surprised by these defendants, who, under pre- tence of information received, and color of legal authority, de- mand the keys of, and search all the boxes and drawers in the house. — The plaintiff being a butcher or inferior person [*436] makes no difference *in the case. The suspicion of hav- ing run goods in his house is a very injurious imputa- tion upon him ; and though he is but a butcher, it is the same damage to him as if he was the greatest merchant in London. I am very clearly of opinion, that this is one of those cases where- in the court will not interpose." And, per totam Curiam — rule refused. And in Sharps v. Brice.{2) Trespass against a custom-house officer, for an unsuccessful search after prohibited and uncus- tomed goods. Yerdict for the plaintiff, with £500 damages. Perrot, B., who tried the cause, reported the damages to be very excessive, and that he advised an application for a new trial, which was accordingly moved for. £)e Grey, Ch. J. — "It has (1) 3 Wila. 61. (2) 2 "W. Blacks. 942. Chap. XII.] OCCASIONED BY DAMAGES. 436 In actions for petsonal torts. never been laid down, that the court will not grant a hew' trial for excessive damages in any cases of tort. It was held, so long ago as in Gomberbach,{l) that the jury have not a despotic power in such actions. The utmost that can be said is, and very truly, that the same rule does not prevail upon questions of tort as of contract. In contracts; the measure of damages is generally matter of account, and the damages given may be demonstrated to be right or wrong. But in torts, a greater latitude is allowed to the jury ; and the damages must be excessive and outrageous, to require or warrant a new trial." The court discharged the rule. And, in Merest v. Harvey.{2) Trespass qttare dausum fregit The evidence was, that the plaintiff, a gentleman of fortune, was shooting on his own manor, in a common field contiguous to the highway, when the defendant, a banker, a magistrate, and a member pf parliament, who had dined and drank freely, after taking the sam.e diversion of shooting, passed along the road in his carriage, and quitting it, went up to the plaintiff, and told him he would join his party, which the plaintiff positively declined, and gave him *notice not to sport [*437] on his land. But the defendant declared, with an oath, that he would shoot, and accordingly fired several times upon the plaintiff's land at the birds, which the plaintiff found, and used very intemperate language. The jury found a verdict fot the plaintiff, with £500 damages, which the defendant moved to set aside for excess. G%6s, Ch. J. — " I wish to know, in a case where a. man disregards every principle which actuates the con- duct of a gentleman, what is to restrain him except large dama- ges ? To be sure, one can hardly conceive worse conduct than this. What would be said to a person in a low situation of life,- who should behave himself in this manner? I do not know upon what principle we can grant a rule in this case, unless we were to lay it down that the jury are not justified in giving more than the absolute pecuniary damage that the plaintiff may sus- (1) Comb. 3BT. " (2) 5 Taunt. 442. YOL. I. 28 437 NEW TRIALS. [CHAP. XII. In actions for personal torts. tain." Heath, J. — " I remember a case where a judge gave £500 damages for mei'ely knocking a man's hat off, and the court re- fused a new trial. "(1) Motion denied. Woodward v. Pame.{2) Trespass for a pair of horses, wagon and harness. The defendant was a justice of the peace, and tried on an assault and battery, and issued execution thereupon, having no jurisdiction, of which he had been apprized, the jury rendered a verdict of $270, about the value of the property in question, which the defendant moved to set aside as excessive.. But the court, after reviewing the case, say — " Upon the whole, although the damages are higher than we think they ought to have been, yet, as it is an action sounding in tort, the verdict must stand." So in Hazard v. Israel.{3) Trespass against a sheriff, for misconduct of his officer in the execution of a writ. [*438] *The jury found, under circumstances of great aggrava- tion, a verdict for the plaintiff, with $750 damages. The defendant moved to set it aside, on the ground of excess. The court, per Tilghman, Ch. J., denying the motion. — " The last reason offered for a new trial, is, that the damages are ex- cessive. This is the only point on which there could be a doubt. A distinction has been taken between exemplary damages, and those which are only a compensation for the injury sustained. This distinction is certainly worthy of great consideration by a jury, when a principal, who has been no way to blame, is sued for the conduct of his deputy. But, in point of law, if the sheriff is answerable at all, he must be answerable for such dam- ages as the jury, on the whole circumstances, think proper to give. In the present instance, they have given exemplary dam- ages, for the actual injury was nothing; but as the jury have thought proper to make the conduct of the defendant's deputy an object of public example, I cannot say that I think them so altogether wrong that a new trial should be granted." (1) Vide 10 Serg. k Rawle, 399. (2) 15 Johns. Rep. 493. <3) 1 Binn. 240. Chap. XIL] OCCASIONED BY DAMAGES. 438 In actions for personal torts. And in Matthews v. West.i)) Action of trespass committed "with force, in taking and carrying away a load of peaches from off the land of plaintiff, of which she was in peaceable posses- sion, and, from the judge's report who tried the case, had been so for the space of thirty years. Yerdict for plaintiff, with $200 damages. The defendant moved for a new trial. The first ground was, that the damages were excessive. Mr. Justice Orant delivered the opinion of the court. — " In answer to the first ground, it is to be remarked that the presiding judge re- ports the trespass to have been wanton and aggravated, by the circumstance of its having been committed in despite of the feelings of the plaintiff, and in opposition to her author- ity. In *a complicated injury of this kind, the rule [*439] adopted by the jury, in estimating the damages, is not only correct and legal, but redounds much to their credit, as it evinces a feeling, on the part of the jury, friendly to the good order and well being of society, and hostile to acts of violence and force. On this ground, therefore, the court entertain the opinion, that the damages given are by no means to be considered as excessive." In Beed v. Davis.{2) Trespass, for breaking and entering the plaintiff's dwelling-house, putting out his household furniture, and forcibly turning out the plaintiff, his wife and children. Plea, the general issue, and soil and freehold in another. The jury found a verdict for the plaintiff, for $500 damages. The defendant moved for a new trial, because the damages were ex- cessive. The court, by Putnam, J. — " As to the question, whe- ther a new trial should be granted|because the damages are ex- cessive, the court are equally divided ; so, the motion for a new trial, upon that ground, cannot prevail. Those of the court who are against a new trial for this cause, think there was such a com- bination of oppression, and personal violence, and indignity, at- tending the trespass, as fully to justify the verdict. The jury seem to us to have manifested a strong sense of the security (1) 2 Nott &*M'Cord, 415. Et vide Ibid. 446. (2) 4 Pick. 216. 439 NEW TRIALS. [Chap,. XII. la actions for personal torts. which the dwelling-house should afford to its lawful possessor. They have preceded upon higher grounds of damages than those which arise merely from bodily wounds and bruises. They have discovered a determination to vindicate the rights of the poor against the aggressions of power and violence. These mo- tives are sound, and should be cherished ; and we ascribe the amount of the verdict to those considerations, rather than [*440] to partiality, or passion, or any unworthy *motive. The motion for a new trial cannot be sustained." The rule equally applies to all actions generally, sounding in damages. Ex. gr. Breach of promise. Ooddard v. Gray.{l) Action for breach of promise of marriage ; verdict, £700, and motion for a new trial, because damages excessive, the defendant being on a salary of £200 ^ yea^r. Lord Mansfield. — "No time being fixed for the marriage, no action could be brought until he had put himself in 'a situation not to be able to perform his promise. It is impossible for the court to control the jury in a case properly left to them. If the jury think a man ought to make satisfaction for an injury he has done, his not being able to pay is no reason for setting aside the verdict." So in Johnston v. Oaulkins.{2) Action on a promise of mar- riage. Plea, general issue, and verdict for plaintiff, with $1,000 damages. Motion for a new trial, and it was urged on the argu- ment that the damages were excessive. A new trial was granted upon another ground, Lansing, Oh. J. dissenting ; his opinion contains the only remarks of the court upon the point of exces- sive damages, with which, it is to be presumed, the other judges concurred. "Something was said," observes the chief justice, " respecting the damages which were alleged to be excessive. The jury are the proper judges of the damages, and though I am not prepared to say that there is no case, however outra- geous, in actions of this kind, in which the court will not inter- pose to correct a verdict on that ground, I think it ought certain- ly never to be done, unless the inequality between the injury (1) M. T. ni6. B. R. (2) 1 Johns. Oas. 116. Chap. XIL] OCCASIONEI) BY DAMAGES. 441 In actions for personal torts. and compensation is extreme. I am not perfectly satisfied with the verdict ; I think less damages would have been nearer the line of just retribution ; but *considering all [*441] the circumstances, I do not think them extravagant."(l) In a recent case, however, Ooiigh v. Farr,{2) where a doubt arose whether the breach of promise was sufficiently proved, and a verdict was taken, reserving to the defendant the right to move for a non-suit, the jury getve £250 damages. A motion for non-suit was afterwards made and refused, but a rule nisi was granted for a new trial, for excess of damages. So in trover, Ayer v. BartleU,{3) for machinery. Evidence was produced at the trial by the plaintiff, tending to show that the value of certain machinery, for which the action was brought, exceeded $1,900; and by the defendant, that it was sold at the sheriff's sale for as much as it was worth, and that the sale was well attended and properly notified. The jury found a verdict for the plaintiff for $1,900 damages. A motion was made for a new trial, on the ground of excessive damages. Putnam, J., delivered the opinion of the court. After disposing of the other point in the case, he proceeds — "The only remaining consideration is, whether the damages are excessive. The jury have found three times as much as was produced by the sheriff's sale of the goods by auction. The jury were to compensate in damages in this case, upon the principle of placing the plaintiff in as good a condition as if his property had not been taken ; and there is evidence to prove that it was worth a sum exceeding the amount of the verdict, as it stood connected with the factory. It is obvious that the auction sale in parcels, could not be conclusive against the plaintiff. And although we all think that this verdict is for a larger sum than we should have given, yet we cannot say that it is against the evidence, or even the *weight of evidence." The motion for a [*442] new trial must be overruled. (4) (1) Vide M'Kie v. Nelson, 4 Cowen, 356. (2) 2 Car. & Payne, 631. (3) 9 Pick. 156. ' • (4) Et vide M'DmaU v. Mv/rdock, 1 Nolt & M'Cord, 23'7. 442 NEW TRIALS. [Chap. XH. Exception to general rule ;n case of tort. III. Exception to general rule in case of tort. But even in personal torts, where the jury find outrageous damages, clearly evincing partiality, prejudice and passion, the court will interfere for the relief of the defendant, and order a new trial. Thus, in Olerh v. UdaU,{l) upon a trial at Nisi Prius, the jury gave excessive damages, and for this cause a new trial was granted. The second jury gave the same damages, anrd a second trial was moved for, and denied, because there ought to be an end of litigation ; but several cases were cited, which the chief justice allowed, that where, upon the second trial, the jury have dou- bled the damages, a third trial had been granted. The rule will apply to every species of personal tort. Although no case has actually occurred, it has been held, that even in crim. con., formerly thought to be an exception, if the court can perceive that the jury, in their finding, were actuated by undue motives, or even under the influence of gross errors, the verdict would be set aside, as is intimated in Chamhers v. Caulfield.(^) In cases of assault and battery. Goldsmith v. Lord Sefton.{S) The plaintiff, a sheriff's ofiicer, had arrested Colonel M., who immediately escaped into the defendant's house. The defendant coming home soon after, found the plaintiff there, watching Colonel M., who, however, contrived to make his escape. The plaintiff, some time after, retired to an ale-house in the neighbor- hood ; Lord Sefton followed him, and demanded to see his war- rant. This was at first refused. Some altercation took place, and Lord Sefton held out his horsewhip, in an attitude [*432] of menace to *the defendant, who opposed his stick, which Lord Sefton took out of his hand, and threw away. For this assault the action was brought, and the jury, on a writ of inquiry, gave £200 damages. A rule nisi was obtained, on the ground of excessive damages. And, per Macdonald, C. B. — (1) 2 Salk. 649. (2) 6 East, 244 (3) 3 Anst. 808. Chap. XII.] OCCASIONED BY DAMAGES. 443 Exception to general rule in case of tort. " By the whole current of authorities, it appears that we are bound to protect a party, where, by the improper warmth or worse pas- sions of a jury, damages glaringly and outrageously great have been given against him. We cannot say what the damages ought to be, but can only send it for the investigation of another jury." Hotham, Baron. — " It is as much the duty of the court to protect the party from injustice of the jury, as to submit to their finding in those things which are exclusively within their prov- ince. The present verdict is such as cannot be justified. It is an insult on the judgment of the court, to suppose it a fair ver- dict."(l) So m* Jones v. Sparrow.(^) Action of assault and battery, tried before Lord Kenyon, when it appeared in evidence that the plaintiff, who was a servant to the defendant, after having received a slight blow from his master for impertinent behavior, violently beat him. The jury gave a verdict for the plaintiff, with £40 damages, which the defendant moved to set aside, on the ground of excessive damages ; and Duherly v. Gunning was relied on in resisting the motion. Lord Kenyon, Ch. J.t-" It must be remembered that, although the case of Duherly v. Gunning was decided after a very full discussion of the subject, the court were not unanimous in the determination. But whether rightly or not decided, that is a case sui generis, and cannot govern the present." And motion granted. *And in Goldsmith v. Lord Sejbn.{3) Thompson, B., [*444] mentions a case in the Common Pleas, where, upon a writ of inquiry for an assault, £200 damages were given, and set aside as excessive. So in cases of malicioics prosecution. Chambers v. Rohinson.{^) Action for a malicious prosecution of an indictment for perjury. (1) Vide Grey v. Grrnit, 2 "Wils. 252; Benson v. Frederick, 3 Burr. 1845; Dwr, ham V. Wood, 1 Term Rep. 217. (2) 5 Term Eep. 257. (3) 3 An3t. 808. (4) 1 Str. 691. 444 FEW TEIALS. [Chap. XII. Exception to general rule in case of tort. The chief justice allowed the plaintiff to give in evidence an ad- vertisement put into the papers by the defendant, of the finding the indictment, with other scandalous matter, though an infor- mation had been granted for it as a libel, not (as be said) that the jury were to consider it in damages, but only as a circum- stance of malice. The jury found a verdict for the plaintiff of £1,000. The defendant moved for a new trial, on account of the excessiveness of damages ; and the court said it was but reasona- ble he should try another jury before he was finally charged with £1,000 — so a new trial was granted upon payment of costs ; and a new trial being had, the same damages were given again, upon which the defendant applied to the court, who said it was not in their power to grant a third trial. The latter clause, ft is pre. sumed, after so many repetitions of the remedial, power of the court, would not now be considered as law.(l) Indeed, the whole decision has been questioned. (2) And in Harry v. Wateow,(3) where £3,000 had been given in an action for a malicious prosecution, the Court of Common Pleas, on a motion to set aside the verdict for excessive damages, said, they had the power of granting a new trial, and inclined to grant it in this case; but the plaintiff agreed to accept £1,500, and so the matter ended. So in actions oi slander. It is worthy of remark, that [*445] this action in which the courts evince so strong a *disin- clination to interfere on either side, has proved to be the first regularly reported case in the whole class of torts, where the court granted a new trial on the ground of extravagant damages, and that, too, after a trial at bar. In Wood V. Ounston.{4:) Wood brought an action against Gunston, for speaking scandalous words of him, and, amongst other words, for calling him traitor, and obtaining a verdict against him at bar, with £1,500 damages. Upon the ground (1) Tide 4 Burr. 1108. (2) 2 Wiis. 249. (3) 4 Term Rep. 669, in notis. (4) Styles, 466. Chap. XII.} OCCASIONED BY DAMAGES. 445 Bxoeption to general rule in case of tort. that tbe damages were excessive, and that the jury favored the plaintiff, the defenda,at moved for a new trial. Qlyn, Ch. J. — " It is in the discretion of the, court, in some oases, to grant a new trial, but this must.be a judicial and not an arbitrary dis- cretiou ; and it is frequent in our books for the court to take no- tion of the miscarriages of juries, and to grant new trials upon them ; and it is for the people's benefit that it should be so ; for a jury may sometimes, by indirect dealings, be moved to side with one party, and not be indifferent betwixt them. But it cannot be so intended of the court ; wherefore let there be a new trial."(l) So, in actions for false imprisonment, new trials have been had because of outrageous damages: As In Ash V. Ash:(^) Action for false imprisonment, and verdict £2,000 damages, although the plaintiff had been confined by her mother only 'two or three hours. A new trial was granted on account of the excessiveness of the damages. And by Holt, Ch. J. — "The jury were shy of giving. their reason for their ver- dict, thinking they had an absolute power to find it as they pleased. This is a mistake, for the jury are to try the cause "with the assistance of the judge." So, in a recent case in the English Common Pleas, Price v. Severn.{d,) Action for false imprisonment. The plain- tiff; *claiming relationship to the defendant's wife, im- [*446] portuned him for pecuniary relief, until he was obliged to warn him off his premises. He still continued his importuni- ties, and having refused to quit the premises, the defendant di- rected a constable to take him into custody, and the plaintiff was taken to an inn for the night. Next morning he was Isrought to the defendant, and after spme little conversation, said he must have some money. The defendant went away, and returned in a few minutes with two sovereigns, which he told the plaintiff (1) Vide supra, 3, '7. (2) Oomb. 357. (3) 7 Bing. 316. 446 NEW TRIALS. [Chap. XII. Exception to general rule in case of tort. he might take, or go before a justice. The plaintiff consented to take the money, but said he must have something for the keep of his horse. The defendant gave him half a crown, and directed the butler to furnish some refreshment. The jury gave a ver- dict for the plaintiff, £100 damages. The defendant obtained a rule nid, on the ground that the damages were excessive. Tin- dal, Ch. J. — "I am as little disposed as any man to interfere with the province of a jury, and I should not be induced to send a case down again for excessive damages, except where those damages are enormous and disproportionate. I consider them such in this case, on account of the limit which the plaintiff him- self put on his demand in the first instance. And after recapitu- lating the facts, his lordship concludes — " It seems to me, that if accord and satisfaction had been pleaded, it would have been a bar to the action. A verdict for £100, as we cannot but see on the evidence of the plaintiff himself, is far beyond what he merits. The Case, therefore, must go before another jury." The other judges concurred, and the rule was made absolute. So in the Supreme Court of this State. McConnell v. Hamp- ton.il) Action for false imprisonment. The defendant [*447] was commander of the army of the United States, *at Burlington, when the plaintiff, a private citizen, was arrested and tried by a court martial. The plaintiff came to the defendant to make some communication relative to the enemy, and the defendant said the communication was false, and ordered the pluintiflf to be taken to the guard-house. The plaintiff was confined from Tuesday until Sunday, and lay on the floor of the guard-house without any bed, but was allowed to procure his own provisions and rations of a soldier, and was permitted to speak to others in the presence of the officer. The jury found a verdict for the plaintiff for $9,000 damages. A motion was made to set aside the verdict, and for a new trial, on the ground of excessive damages. The court, per Thompson, J., after re- viewing the testimony. — " It must strike every one, at first blush, that the damages given by the verdict are unreasonable, and, in- (1) 12 Johns. Bap. 234. Chap. XIL] OCCASIONED BY DAMAGES. 447 Where the objection is for inadequacy of damages. deed, outrageous. It is not, therefore, a case of the mere assess- ment of damages upon an undisputed state of facts, but where diflferent men might . very honestly draw different inferences as to the motives which influenced the conduct of the defendant. To refuse a new trial would, in effect, be saying that a new trial ought never to be granted in actions of this description." New trial granted. Van Ness, J., dissenting.(l) So in actions on the case, ex delicto. Thus, in PleydeU v. The Earl of Dor Chester. (^) Action oh the case for diverting the plain- tiff's water-course. The jury gave a verdict for £3,000, which this court, on a former day, set aside, upon motion, as being excessive, and not warranted by the evidence — it being a mere question of the deterioration of property, and, therefore, not like cases of personal injuries, as actions for adultery, slander, and the like. The court said, that having taken this mat- ter into their consideration, *since it was last mentioned [*448] in court, and having referred to several precedents, par- ticularly one in Sty. 466; by which it appeared to have been the practice, in such cases, to let in the defendant to a new trial, upon the terms of the former verdict ; standing as a security, in the mean time, for the damages, which might be given upon another trial, they thought the rule was founded in justice and convenience, and fit to be enforced, not only upon this, but upon all future occasions of the same kind.(3) lY. Where the objection is for inadequacy of damages. In personal torts and actions sounding in damages, the court will refuse new trials for smallness of damages, for the same rea- sons that prevail on questions of excessive damages. To entitle the application to succeed, the jury must have clearly manifested an abuse of their power. Thus, In Marsham v. Bulhr or Bulwer.{4.) Action of trespass. The (1) Et vide 3 Monroe, 145 ; 2 Southard, 84'7. (2) 7 Term. Rep. 525. (3) Ante, Uutton v. Barnes, Litt. Sel. Gas. 136. (4) 2 Eo. Rep. 21; Cro. Jac. 458 ; Jenk. 835. 448 NEW" TRIALS. [Chap. XII. Where the objection is for inadequacy of damages. jury found for the plaintiff, and gave half a farthing damages. Richardson, in arj-est of judgment, said, that- the damage which the jury gave ought to be valuable, and there is no such coin as half a farthing. Doderidg,e, J,, said to Richardson — " Your purse is full, but if you were at Oxford, yo,u would get a draught of beer for half a farthing,' Haughton, J., said, "You may have fieri facias, and levy half a farthing by an pgg.'' So the plaintiff had judgment. Lord Kenyan, in jpuberley v. Qunning,{V) recognizes the prin- piple — " If we can set aside a verdict in suth a case as this, for excess of damage^, I presume we shall be equally warranted in so doing vv;hera;we ih\n\ the damages too small ; and yet. in Lord ^S'lim^prc^'s case, although the court thought that on? [*449] shilling damages *given against him were much too small, they did not think themselves warranted in granting a new trial on that account, because they had no rule to go by ."(2) In slander, the court have refused to interfere on this ground. In Lord — r v. JBeath.{3) Action upon the statute of Scan. Mag. for the following words spoken of the plaintiff, " Gr — d d — n my Lord G — r, he is a rogue, and all on his side are rogues ; if the mob would stand by me, I'd drive them all, or lay the town in heap^." The ward's were proved upon the trial, notwithstand- ing which, the jury found only 12d. damages. Darnal, for plain- tiff, moved to set aside the verdict, by reason of the smallness of the damages ; but not being able to produce any instance of a verdict being set aside merely for that reason; though, for ex- cessive damages, verdicts have been frequently set aside, and in point of reason, there is the same cause for setting aside one as the other, yet as the difference had been always taken, and prac- tice long settled, the court said they would make no rule. So in Hayward v. Fewton.{i) An action was brought fot (1) 4 Term. Rep. 651. (2) EtvideBaWS. P. 27. (3) Barnes, 446. • (4) 2 Str. 940. Chap. XII] OCCASIONED BY- DAMAGES. 449 Where the objection is for inadequacy of damages. these wordsj spoken of the plaiotiif, as a wine merchant^— " You are a rogue, villain and rascal, and fill by short measure," and the jury gave twenty shillings damages: and though it was a thought a hard case, yet the court said it has always been denied to set aside a verdict for smallness of damages, and therefore de- nied it in this case. Qucere tamen ? Is it not within the reason of the rule setting aside a verdict for excessive damages ?(1) In cases of malicious prosecution, the court have refused to set aside the verdict on this ground, as in Barker y. Dixie.{2) Though the court, in that case; held, what *it is pre- [*450] sumed would not, construed strictly, be now regarded as law, that they could not grant a new trial on the account of the smallness of the damages. The court were evidently driven into this remark, by a process of reasoning limiting the extent of their remedial power to cases where attaint would have lain ; forgetting the large discretion with which it clothes them, ex- tending to all classes of cases, and which, on all other occasions, they uniformly assert. It is the only modern instance in which the court have suggested a doubt of their power. In Mauricet v. Brecknoch,{^) it is laid down, as a general rule, not that the court cannot, but that they will not, set aside a ver- dict, in an action for a tort, on account of the smallness of the damages.(4) This is not intended to apply to extreme cases. They form an exception. Wherever, therefore, the jury traascend their limits, and suffer themselves to be influenced by caprice, gross partiality, or pas- sion, it presents a proper case for the interference of the court, who will correct the perversity of the verdict, whether it appears in the shape of damages, or a finding intended to avoid damages entirely, and so to defeat justice.(5) (1) Vide Marsh v. Bower, 2 W. Blacks. 851 ; 2 Burr. 664; 5 Price, 334. (2) 2 Str. 1051 ; Supra, p. 347. (3) Supra, p. 411. (4) 2 Doug. 509. (5) Vide " Perverse Verdicts," Ante, p. 421. 450 NEW TEIALS. [Chap. XII. Where the objection is for inadequacy of damages. We have had occasion to notice a salutary application of this rule, in a recent case in England, Levi v. Milne,{l) where, for a gross libel, the jury would have given the plaintiff one shilling ; but that costs would have followed the verdict. Oasalee, J., ob- serves — " It is impossible to read this publication, without seeing its libellous tendency. The name given to the plaintiff is one commonly employed by the lower orders, as a term of reproach to persons in his station. The case in JBurrow,{2) does not lay it down as a general rule, that a new trial shall never be [*451] granted, *where it is probable the damages may be sjnall. In that case, the jury found for the defendant ; and Mr. Justice Foster, who tried the cause, reported that the charge was proved, but the injury was so inconsiderable, that half a crown, or even a much smaller sum, would have been suf- ficient damages. And it was for this reason, and not the proba- ble smallness of the verdict, in the event of a new trial, that the court denied the motion." The case of Bacoi v. Keith,{3) already cited, strongly recom- mends the rule. The jury, in so aggravated a case as the shat- tering of the plaintiff's arm with buck shot, having rendered a verdict with only one dollar damages, against the man who could be guilty of so atrocious an assault, furnished an example of that partiality and prejudice, to which the courts constantly refer as an exception to the general rule of not granting new trials in personal torts.(4:) In Virgiflia, it appears, the rule at common law was held so strictly against a motion of this kind, as to require the interpo- sition of a statute.(5) The present practice there, is thus laid down, illustrated by an example in slander, the action of all others requiring some liberality of opinion in motions for new (1) 4 Bingham, 195 ; Svpra, p. 1"23. (2) Bwrton v. J%ompson, 2 Burr. 664, (3) 2 Bay, 466; Ante, SIS. Et vide, Johns. Oas. 255; 9 Ibid. 36; 2 Cowen, 419; Ante, " Verdict against Evidence," Chap. 11. (4) Et vide N. C. Law Rep. 276. (5) Tide 1 Rob. Prac. 378. Chap, XII.] OCCASIONED BY DAMAGES. 451 Where the objection is for inadequacy of damages. trials. — "When a new trial is granted for such cause, it is not necessary to state on the record the grounds for awarding it, since it will be presumed that the order of the court upon a sub- ject which the statute has putwithin its jurisdiction, was correct, unless the contrary appeared." In Bixey v. WarcZ,(l) for slander, the jury assessed the danfages at $50. On motion of the plaintiff, on the ground of the smallness of the damages, for rea- sons, *appearing to the court to be sufficient evidence [*452] of the perversity of the jury, the verdict was set aside and a new trial ordered. At the second trial the jury gave $500 damages^ and the court rendered judgment on the verdict, from which the defendant appealed, and by the Court of Appeals the judgment was affirmed. From the preceding. cases, it is clear the reason for holding parties so tenaciously to the damages found by the jury in per- sonal torts is, that in cases of this class, there is no scale by which the damages are to be graduated with certainty. They admit of no other test than the intelligence of a jury, governed by a sense of justice. It is, indeed, one of che principal causes in which the trial by jury has originated. From the prolific fountain of litigation, numerous cases must daily spring up, calling for adjudication for alleged injuries, accompanied with facts and circumstances affording no definite standard by which these alleged wrongs can be measured, and which, from the ne- cessity of the case, must be judged of and appreciated by the view that may be taken of them by impartial men. To the jury, therefore, as a favorite and almost sacred tribunal, is committed, by unanimousconsent, the exclusive task of examining those facts and circumstances, and valuing the injury, and awarding com- pensation in the shape of damages. The law that confers on them this power, and exacts of them the performance of the solemn trust, favors the presumption that they are actuated by pure motives. It, therefore, makes every allowance for different dispositions, capacities, views, and even frailties, in the examina- tion of heterogenous matters of fact, where mo criterion can be (1) 3 Randolph, 52. 452 NEW TRtAtS. [Chap. XIl. Power of the court to relieve. supplied ; and it is not until the result of the deliberations of the jury appears in a form calculated to shock the understand- ing, and impress no dubious conviction of their prejudice and passion, that courts have found themselves compelled to interpose.- [*453] * V. Power of the court to relieve. But in actions where, by reason of the agreement of the par- ties, or from other causes, a reasonably certain measure of dama- ges is afforded, no such latitude is allowed the jury, and the court will look into the circumstances, and grant or refuse a new trial, or correct the verdict themselves, according to the justice of the case. The distinction is taken in Russell v. Ball.{l) One of the grounds moved upon for a new trial, was the smallness of the damages. Per Ov/ridm. — "Attaint will not lie against jurors for finding too sm^ll damages. Where a demand is certain, as by promissory note, the court will set aside a verdict for too small damages; but not where the damages are uncertain, as in this case, for curing a wound. In Thelluson v. Fleicher.{2) On a rule to show cause why the inquisition, on a writ of inquiry, in an action on a policy of insu- rance, should not be set aside. The plaintiff declared on a policy on goods on board divers vessels. The defendant had under- written £300, and, having suffered judgment by default, the jury, on the writ of inquiry, assessed the damages at that sum, without any proof of the amount or value, or any evidence whatever, except of the defendant's handwriting to the policy. Motion to set aside the inquest. Buller, J. — " It does not follow, because a writ of inquiry has been awarded, that the amount of the demand is uncertain. In actions upon a bill of exchange, or a promissory note, nothing but the instrument is to be proved before the jury^ the sum being thereby ascertained. Though even in cases where there is no necessity for a writ of inquiry, (1) Barnes, 446. (2) 1 Doug. 315. Chap. XII.] OCCASIONED BY DAMAGES. 454 Power of the court to relieve. that proceeding is of use when the plaintiff goes for interest, which the jury assesses in the name of damages." And the rule was discharged. The cases of this kind, in which the courts are called *upon more frequently to interfere on the ground of [*454] damages, are in covenant, where the parties provide a penalty, not as liquidated damages, but denoting the extent to which they are, in any event, to respond in damages. "When, in such cases, the jury find the penalty instead of the actual damages, the court will give relief by setting aside the verdict, and sending the cause to another jury. But the principle has been tested, rather by verdicts sought to be set aside for small- ness, than excess of damages. Thus, In Astley v. Welden.{l) Action upon an agreement between the parties for theatrical performances, binding each other to the fulfilment under a penalty of £200. The jury found a verdict with only £20 damages, but liberty was reserved to the plain- tiff to enter a verdict for £200, if the court should be of opinion that the sum of £200, mentioned in the agreement, was to be considered in the nature of liquidated damages. A rule 7i{si having been obtained, the court refused to consider it a case of stipulated damages, and, therefore, discharged the rule, observ- ing — " There is one case in which the sum agreed for must always be considered as a penalty, and that is, where the payment of a smaller sum is secured by a larger. In this case, it is im- possible to garble the covenants, and to hold that in one case the plaintiff shall recover only for the damages sustained, and in another, that be shall recover the penalty ; the concluding clause applies equally to all the covenants. If anything is to be col- lected from the form of this declaration, it should seem that the plaintiff meant tosu&only for the damages actually sustained."(2) So in Dennis v. Gummins.{3) Action of debt upon an (1) 2 Bos. & Pul. 346. (2) Vide Ponsonhy v. Adams, 6 Brown's Pari. Oas. HO. Fktchery. Vyche, 2 Tepm ^ep. 32 ; Lowe v. Peers, 4 Burr, 2225 ; Wildieam v. Asbton, 1 Cainpb. 76. (3, 3 Johns. Oas. 291. Vol. I. 29 455 NEW TEIALS. [Chap. XIL- Power of the court to relieve. [*455] *agreement with the sum of $2,000, to be forfeited in case of a breach. And the question submitted to the court was, whether that sum was to be considered in the nature, of a penalty or as damages liquidated, and agreed on between the parties to be recovered against the party in default. Thomp- son, J., delivered the opinion of the court. — "This is- a case of of strict penalty, and for which there does not appear to be any equivalent to the other party. To consider this $2,000 as the measure of damages in the case, would be excessive and unrea- sonable in the extreme. We are, therefore, of opinion, that it must be viewed only in the nature of a penalty, and that the plaintiff ought to assign breaches under the statute, and assess the damages by a jury."(l) But where the penalty is clearly in the nature of stipulated damages, liquidated by agreement, and the jury find the full amount of the penalty, the verdict will not be disturbed. As in Hasbrouck v. Tappen.(^) Action of covenant upon an agreement! by the defendant to convey, and, in case of failure, to pay $500. The jury found a verdict for the whole penalty. The defendant, upon an exception, brought the question before the court, who sustained the verdict, saying, " There was no question upon the trial, but that it was a case of stipulated damages. The agree- ment, with respect to that, is too explicit to admit any doubt. The parties bound themselves to each other in the sum of five hundred dollars, which, in the language of the covenant, they consented to fix and liquidate as the amount of damages to be paid by the failing party, for his non-performance to the other. The evidence, as appearing on the bill of exceptions, shows that the plaintiff was always ready, and did everything on his part required by the agreement ; and that the defendant did [*456] not, and could not perform on his *part, by reason of certain incumbrances on the land which he had cove- nanted to convey to the plaintiff."(3) (1) 2 Term Rep. 34; 8 Johns. Rep. 392 ; 9 Johns. Rep. 115. (2) 15 Johns. Rep. 200. (3) Vide 3 Term Rep. 592, in nods; 1 Esp. N. P. Rep. 63. Chap. XII.] OCCASIONED BY DAMAGES. 456 -» ■ Power of the court to relieve. Nor will the court set aside the verdict for an amount, either too great or too small, if it might have been prevented by- a due exercise of care on the part of the defendant. Thus, In Brown v. Tanner, {V) the jury included the expenses of ah award which had been made, but after the defendant had re- voked his submission. The verdict was in an action of assump- sit, brought on the revocation of the submission. A motion was made to set the verdict aside, on the grounds of its being il- legal and excessive ; " but the learned judge's report having been read, their lordships held, that the error in amount of the dam- ages ought to have been mentioned to the judge at the trial ; and it ought not to be made the ground of the great expense of a new trial, that the verdict was taken by mistake for 30s. or 40s. too much ; and the rule was refused. The rule is further illustrated in the alternative which is some- times presented to the parties, to render a new trial unnecessary, by reducing the damages, as in Evertson v. Sawyer.(2) Action for use and occupation of a fulling mill and carding machine. The presiding judge charged the jury, that if they were satisfied that the relation of landlord and tenant existed between the par- ties, to allow such sum, by way of rent, as to them it should appear the premises were worth ; that the plaintiff was entitled to recover rent only for the space of fifteen months. The jury found a verdict for $324 37, being fifteen month's rent, at $200 per annum, and the interest of same. The case came up on ex- ceptions to the judge's charge ; and, per Savage, Ch. J., who delivered the opinion of the court. — *" According [*457] to my views of this case, I see no necessity for a new trial, to do justice between the parties. The judge, in my judg- ment, was correct in the principles he laid down. The only error is, that the plaintiff has recovered for one quarter of a year too much. A new trial must be granted to correct this error, unless the plaintiff agrees to deduct the three months' rent and interest from the verdict." (1) 1 Car. & Payne, 651. (2) 2 Wendell, 607. 457 NEW TEIALS. [Chap. XII. — j_^ . Power of the court to relieve. Nor, where the jury have omitted some small item, to which the plaintiff in strictness may have been entitled, especially if their attention was not drawn to it particularly, . As in Hager v. Weston.{i) Action in assumpsit, tried upon the general issue, before Parker J., and a verdict for the plain- tiff, who, as appears from the judge's report, objected, and moved for a new trial, on the ground that the jury allowed interest on two certain notes declared upon, only from the date of the writ ; whereas interest ought to have been allowed from the date of those notes. It was contended, that although the difference in the amount was small, it was yet important, because, the jury having returned less than fifty dollars, the plaintiff was, by the statute, subjected to the payment of costs. Parsons, Ch. J. — " As the facts are stated, it appears to us equitable that interest should have been allowed from the negociation of the notes. This the jury have not done, probably through inattention. But we cannot say the verdict is against law or against evidence. ' It appears, that had interest been allowed by the jury from the negociation of the notes, the plaintiff would have been entitled to full costs, which she cannot now have. We do not inquire into the consequences of verdicts, as they may relate to costs. The costs are regulated by the verdict, and not the verdict by the costs." In Walker v. Smith, cited above, the jury rendered [*458] only *the principal sum without interest. A new trial was moved for on that ground, biit refused.(2) So in Bourke v. BuIow.(3) Upon a motion for a new trial, it appeared that the plaintiff had recovered a verdict in this case against the defendant, for £230 sterling, for a breach of contract enteredl into for delivery of flour and tobacco. The writing (1) 1 Mass. Rep. 110, (2) 1 TCash. 0. 0. R. 202. (3) 1 Bay, 49. Chap. XII.] OCCASIONED BY DAMAGES. 458 Power of the court to relieve. was in the nature of a note or memorandum, signed by tte de- _fendant, for £47,410 old currency. The jury, in estimating the damages, gave the value of the £47,410 old currency, at the time the contract was entered into, (1780,) agreeably to the scale. A new trial was moved for because the jury had given less damages than the plaintiff was entitled to. By the Court. — " The jury, in this case, seem to have exercised a very proper discre- tion, by .considering this rather in nature of an assumpsit for a debt due, than of a covenant for a specific performance. They have given the plaintiff what the defendant appears really to have fallen in his debt ; though, taking it upon the contract, they might have given larger damages. We do not think it proper to set aside a verdict because the damages are small, in order that a plaintiff may have another chance of getting more." But when the jury, through mistake, or undue motives, return a much less amount than in justice they ought, there being in the nature of the case a reasonable test by which to measure the damages,.(l) the court will set aside the verdict. Thus, In Parr v. Purheck.{2) Action of covenant for non-payment of rent, reserved upon a lease for years. There was judgment against the defendant by default; and, upon a writ of in- quiry executed, the jury gave the plaintiff but *one [*459] shilling damages, though he proved that the defendant owed him £150. Motion to set aside the verdict, on the ground of the smallness of the damages. By the Court — "It is admitted that in covenant, where damages are to be recovered, the jury, upon a writ of inquiry, are the proper judges of the quantum of the damages, and for that reason the court will not set aside their inquiry, where they give small damages ; but it is other- wise where the covenant is for payment of money, and the sum is ascertained, because, in such cases, the sum being certain, the jury cannot lessen the damages, and this is the constant differ- . (1) ^vide Hopkins v. Meyers, 1 Harper's S. 0. Rep. 56; IS. 0. Con. Rep. 366 (2) 8 Mod. 196. 459 . NEW TEIALS. [Chap. XIl. Power of the court to relieve. ence in such cases. It is the same as if an assumpsit had been brought for money upon a note under hand, for there the jury cannot mitigate the damages; if they do, the court will set their verdict aside." So, in Earl of Peterborough v. Sadler,{\) a trial being co^ern- ing the value of improvement made by Sadler, and a jury of farmers having given £200 damages, which was thought exces- sive, a new trial granted, and a jury of gentlemen ordered, who only gave £40; whereupon a new trial was moved for, for Sad- ler, because of smallness of damages. Holt, Ch. J., said, that one must not always conclude, because the court grants a new trial, that they are satisfied that the first verdict was bad ; but it is often because the thing may require a re-examination. A rule was granted. And in Woodward v. JSades.{2) On a contract for stock be- tween the plaintiff and J. S., they each deposit £200 in the hands of the defendant ; and J. S. not performing his agreement, the plaintiff sued for the deposit, had judgment on demurrer, took out a writ of inquiry, and proved his case. But the jury, on a motion that the defendant could not pay out the money [*460] without consent of both parties, gave *l(i. damages, which was now set aside ; the court saying that the rule of not setting aside verdicts for the smallness of the damages did not extend to this case, where the jury mistook in point of law • and the chief justice said, he knew no reason why the court should not interpose in the other case. So, in Markham v. Middleton.(S) The defendant owed the plaintiff £333 for an apothecary's bill, and suffered judgment to go by default; and the plaintiff's attorney, on executing the writ of inquiry, produced the foreman, who had told him he could (1) 12 Mod. 348. (2) 1 Str. 425. * (3) 2 Str. 1259. Chap. XII.] OCCASIONED BY DAMAGES. 460 Power of the court to relieve. prove the bill; but when the jury was sworn, he declined giving any evidence ; upon which the sheriff was desired to adjourn, which he thought he could not do, and the jury thereupon found •one penny damages only. The court thought it hard the plain- tiff should he paid so large a debt with one penny, as he would be if this verdict stood, or that his case should be worse for the defendant's letting judgment go by default; for, had he pleaded, the plaintiff could have suffered a non-suit. And, therefore, they set aside this, and ordered a new writ of inquiry. And in Taunton Manufacturing Company v. Smith.{V) Case for a breach of a special contract, in which the defendant undertook to bleach cotton cloths for the plaintiffs. At the trial, the super- intendent of the company's works testified, that the defendant omitted some of the processes requisite for good bleaching, and estimated the damages sustained by the company, in regard to one species of goods, at $1,652. His testimony was corroborated by that of other witnesses on the part of the plaintiffs. The de-. fendant offered no evidence. The jury returned a verdict for the plaintiffs for $337. The plaintiff moved for a new trial, on the ground that tTie dainages were too small. Parker, Ch. J., *delivere(J the opinion of the court. — " We think [*461] there is great reason to believe that the jury labored un- der some mistake in the estimation of damages, having given not more than one quarter part of what, according to all the evidence, the plaintiffs sustained. It is objected, however, that verdicts cannot be set aside on account of the damages being too small ; .but we are satisfied that this is a mistake. It is a power rarely exercised, especially in actions for personal wrongs, such as slan- ders, batteries and the like. But where the foundation of the action is a breach of contract, and the damages are capable of estimation, if there is a glaring deficiency, justice requires that the case shall be revised; and, judging from the evidence re- ported, this appears to be a case of the kind." And new trial gran ted. (2) (1) 9 Pick. 11. (2) Et vide Birheck v. Bwrows, 2 Hall's Rep. 51 ; White v. Green, 3 Monroe, 15^. 462 NEW TRIALS. [Chap. XIII. General remarks. [*462] *CHAPTEIl XIII. FOB NEWLY DISCOVERED EVIDENCE. I. General remarks. II. The evidence must not have been used on the former trial. III. Party must show diligence. IV. The evidence must not be cumulative. Y. The evidence must not go to discredit a witness. I. General remarks. It sometime happens that after the utmost vigilance, and the best directed efforts of the party and his counsel, the true merits of the case have not been submitted, by reason of the absence of facts which, had they been known and introduced, would have given a different complexion to the case. Or it may be that facts may have occurred subsequently to the trial, which tend to pre- sent the point at issue differently, and show that the verdict, if suffered to remain, would operate unjustly. When such apase happens, and the court becomes satisfied that, to promote the ends of justice, an opportunity ought to be allowed for the intro- duction of the new testimony, they will furnish an opportunity by setting aside the verdict, and directing a new trial. But to prevent abuse, practicing with the witnesses, careless preparation in the first instance, and harrassing the court with unfounded applications, the party moving on the ground of newly discov- ered evidence is required to conform himself to very strict regu, lations. The negligent are to expect no indulgence, and appli- cations, founded on light circumstances, will be promptly denied. Nothing but a clear case of injustice, occasioned by means beyond the control of the party, and the certainty of correcting it by those means since brought to light, and placed within the reach of the applicant, will answer the purpose. There is, therefore, no grounds on which motions for new trials rest, better ascer- Chap. XIII.] NEWLY DISCOVERED EVIDENCE. 463 The evidence must not have been used on the former trial. 1 tained or more clearly defined, so as to guard against practice and imposition, than that of newly *discovered [*463] evidence. By a series of well digested decisions, it is settled that the evidence which would warrant the court to set aside the verdict, must be new, material, and not cumulative, and that the party applying has used reasonable diligence. The essential requisites are laid down with brevity and perspicuity in Porter v. TalcoU,{l) by Mr. Justice "Woodworth. — " The appli- cation for a new trial," says he, " ought to be granted, on the ground that there has been reasonable diligence, that the new evidence is material, that it has been discovered since the trial, and is not cumulative."(2) 11. The evidence must not have teen used on the former trial. The evidence that will induce the court to set aside the" ver- dict, and grant a new trial, must be new ; that is, not used on the former trial, but discovered newly, or subsequently to the trial,, and must be material to the point at issue, so as probably to .produce a different result ; and the application must be accompa- nied with sufficient evidence of previous diligence.(3) The newness and the materiality, although perfectly distinct, are so intimately connected as to require to be considered together, for the better illustration of the rule. But first, as illustrative of the rule generally. In Ewing v. Pnce,(4) on motion for a new trial on the ground of newly discovered evidence, it was held necessary to show four things : — The names of the witnesses that had been discov- ered ; that the applicant has been diligent in preparing his case for trial ; that the new facts were discovered after the trial, and will be important ; and that the evidence discovered will tend (1) 1 Cowen, 359. (2) Vide 2 Aroh. Prao. 228 ; Gra. Prao. 511. (3) 2 Salk. 653; 2 Mod. 245; 6 Ibid. 22, 222 ; 9 Ibid. 328; 12 Ibid. 584. (4) 3 J. J. Marsh. 521. 464: NEW TEIALS. [Chap. XIII. The evidence must not have been used on the former trial. [*464] to prove facts *whicli were not directly in issue on the trial, or were not then known or investigated by proof.(l) And in Moore v. The Philadelphia Bank.{2) Action for a re- ward offered to apprehend a robber of the bank, and verdict for the plaintiff". A new trial was moved for, on the ground; of ma- terial evidence discovered since the trial ; upon which the court observes — " Motions of this kind are to be received with great caution, because there are few cases tried, in which something new may not be hunted up ; and because it tends very much to the introduction of perjury, to admit new evidence after the party who has lost the verdict has had an opportunity of dis- covering the points both of his adversary's strength and his own weakness. It is, therefore, incumbent on him who asks for a new trial on this ground, to satisfy the court, 1st, that the evi- dence has come to his knowledge since the trial ; 2d, that it was not owing to want of due diligence that it did not come sooner ; and 3d, that it would probably produce a different verdict, if a new trial was granted." And, upon a review of the facts at the trial, and the new evidence as submitted on the motion, the court became satisfied that the defendants failed to bring their case within the above rules, and a new trial was refused. In Warren v. IIope,{S) the court laid down the following rules, to govern them in applications of this kind — " The petitioner will not be permitted to offer testimony as to any newly dis- covered evidence, except that which may be stated in the peti- tion. No new trial or review will be granted on account of newly discovered evidence, which is merely of a cumulative na- ture. But the following kinds of proof may be considered as exceptions to the general rule, and furnish ground for a [*465] new trial or review. 1. That *a witness, whose testi- mony on the trial was in its tendency against the inter- (1) Et Vide Daniel v. Daniel, 2 J. J. Marsh. 52. (2) 5 Serg. & Rawle, 41. (3) 6Greenl. 479. Chap.XIIL] newly discovered evidence. 465 The evidence must not have been used on the former trial. est of the petitioner, has ascertained that he testified under a nfistake, and that the facts do not exist, as he testified that they did. 2. When the newly discovered evidence relates to confes- sions or declarations of the other party, as to some influential fact, unknown to the petitioner at the time of trial, and in-' consistent with the proofs adduced and urged by such party. 3. Where such newly discovered evidence was directly or indi- rectly placed beyond the knowledge or control of the petitioner, by means of the other party, and with a view to prejudice the petitioner's cause." In Lessee of Ludlow's Heirs v. Parh,{V) there was a verdict for the plaintiff. The defendant moved for a new trial, chiefly on the ground of newly discovered evidence, and on this point the court observe — " In considering the motion, the court will not inquire whether, taking the newly discovered evidence in con- nection with that exhibited on the trial, a jury might be induced to give a different verdict ; but whether the legitimate effect of such evidence would be to require a different verdict. In the trial of issues in fact, the court judge of the competency, the jury of the credibility and effect of testimony. But after verdict, when the motion for a new trial is considered, the court must judge, not only of the competency, but of the effect of evidence. If, with the newly discovered evidence before them, a jury ought to have come to the same conclusion they have done, it would be worse than useless to grant a new trial. The effect would be to add to the expense of the litigation, and delay parties in obtain- ing their rights." Again, in Yandervoort v. Smith.{2) Action, in assumpsit on a policy of insurance, the jury rendered a verdict for a *total loss. The defendant moved to set aside the ver- [*466] diet, and one of the grounds was, newly discovered evi- dence. On this point, Thompson, J., who delivered the opinion (1) 4 Ham. Ohio Rep. 6. (2) 2 Caines, 155. 466 NEW TEIALS. [Chap. XIII. The evidence nmst not have been used on the former trial. of the court, remarks — "The argument of this case has been accompanied with a motion for a new trial, on the ground^f the discovery of liew testimony. The testimony alluded to, is said to be a copy of the proceedings and condemnation at Para, against this vessel and cargo. In order to grant a new trial on this ground, it ought to appear that the testimony has been dis- covered since the last trial, or that no laches is imputable to the party, and that the testimony is material. In the present case, there are numerous objections .against granting the application. It does not appear, from the affidavit, that this testimony has been discouered since the last trial, but only that it arrived in New York since that time. From the nature of the evidence, it must have been discovered as soon as the cause of the loss was known, and of course there must have been either a want of due diligence in procuring it, or, if sufficient reasons for the delay could have been shown, application ought to have been made to postpone the former trial." So in Doe v. i?oe,(l) a feigned issue out of chancery. The defendant, at the trial, offered in proof, the record of a deed, with the affidavit of a witness indorsed upon it, but without pro- ducing the witness, or accounting for the ^original deed ; and upon a case made, showing the judge to have overruled the tes- timony, and affidavits of newly discovered evidence, the defend- ant moved for a new trial. Per Curiam. — " As it is suggested that further light can be thrown on the case, and new evidence appears to have been discovered, we think, without expressing any opinion on the merits of the case, that a new trial ought to be granted, on the payment of costs." New trial granted. [*467] *So in Hahey v. Watson.i^l) Motion for a new trial, on an affidavit of a discovery of new and material evi- dence. Per Curiam. — "This is a motion for a new trial, and comes before us on the ground of a discovery of material testi- mony since the trial of the cause. To see this, and judge whe- (1) 1 Johns. Cas. 402. (2) 1 Caines, 24. Chap. XIII.] NEWLY DISCOVERED EVIDENCE. 467 The evidence muat not have been used on the former trial. ther it be material or not, it will be necessary to state the for- mer testimony and nature of the suit." Having reviewed the testi- mony, to ascertain the materiality of that presented as the ground of the motion, the court proceeds — " We are to judge then, if the material evidence, as it is termed, that has been discovered since the trial, be really testimony of materiality. There is one person, who swears as to the directions given by the captain. The court are of opinion that is not material, so as to warrant granting a new trial. This in two points of view ; the testimony goes only to impeach the 'credit of what has been sworn, and not to establish any new fact. It is merely contradicting former evidence. In that point of view it is not material, nor can it be so in another, unless the defendants can go further." New trial refused.(l) Tuttle V. Cboper.(2) Assumpsit on a promissory note. The defence set up was, that the note was fraudulently obtained by Robbins, the payee. Verdict for the defendant. In the trial of the next cause, it was discovered that the note account in the company's books, did not contain any notes given by the com- pany, although many in their favor. In explanation of this, one Walsh testified, that the company never gave any notes on their account, except two, which were given for their real estate, and were secured by mortgage. The plaintiff moved for a new trial, because, at the time of the trial, he had no reason to sup- pose that the testimony of Walsh was not true, but, immediately after the trial, it was discovered by his counsel, and was *in fact admitted by Walsh, that there was not upon the [*468] books of the company, any entry of a promissory note given by the company, in thewholecourseof theirbusiness. Wilde, J. — "The supposed falsehood of this statement is, that in the account of notes, there were no notes found against the company. Nor did Walsh testify that there w,ere any such notes entered in the books. But suppose the jury did infer, as it is very prob- (1) Vide MbrreU v. Kimball, 1 Greenl. 32. (2) 6 Pick. 414. . 468 NEW TEIALS. Chap. XIII.] The evidence must not have been used on the former trial. able they did, that other notes had been entered in the books against the Company, whieh is not a fact, it seems to us that this mistake cannot be supposed to have had much weight, because, if the company kept an account of notes, and there was. only one note given by them, it would be as probable that that note would be entered in the note book, as in case they had given several. Certainly the mistake, if made, was not very material; and when we consider that the other evidence in the case is very strong in favor of the defendant, as we cannot but see that it is, we are all very clear ihkt a new trial ought not to be granted." So in Marshall v. The Union Insurance Company. {V) This was a motion for a new trial, on the ground that new and mate- rial evidence had befen discovered since the trial. The new evi- dence consisted of documents, from the custom-house at New York, tending to invalidate some of thB testimony given at the trial, and to show that the sale was not bona fide, but a mere cover, and the goods, in fact, not neutral property. By the Court. — " This is a rule to show cause why a new trial should not be granted, upon the ground of material evidence discovered since the trial. We are satisfied that the newly discovered evidence was not known at the time of the trial, although the defendant's counsel, upon seeing the New York commission, which only came to hand a few days before the trial, suspected from [*469] *some parts of it, that some useful information might be collected. But this would not have been a good reason for continuing the cause. As to the materiality of the evidence, we cannot positively decide ^ nor, perhaps, would it be proper now to give a positive opinion about it. It may be explained, but at present it appears to have a considerable bearing upon the point on which the cause turns, and we think it ought to be sub- mitted to a jury." Rule for a new trial absolTite.(2) And in Myers v. Brownell.{3) Action in ejectment, and ver- (1) 2 Wash. 0. 0. Rep. 411. (2) Vide Hernandez v. Qaretage, 16 Mart. Louis. Eep. 419. (3) 2 Ailcen, 407. Chap. XIII.] NEWLY DISCOVERED EVIDENCE. ,469 The evidence must not have been used on the former trial. diet for defendant. The plaintiff petitioned for a new trial on the ground of newly discovered evidence. The opinion contains, in detail, the facts, as sworn to by the witness from whom the newly discovered evidence was expected. Prentiss, J. — " To entitle a party to a new trial on the ground of new discovered evidence, it must appear that the evidence has been discovered since the trial, that no laches is imputable to the party, and that the testimony is material. The plaintiff swears that the testi- mony of Wright was wholly unknown to him at the time of the trial, and Wright himself says that the facts within his knowl- edge were not communicated by him to any one until after the trial. The evidence, therefore, appears to be new discovered, and we see no ground for imputing laches to the plaintiff. With respect to the materiality of the testimony, there appears to be as little doubt. It is testimony to the declarations of the defendant himself, as to the manner in which the mortgage was lodged in the town clerk's ofQce, and th-e purposes and objects for which it was left there. The new discovered tes- timony shows that the defendant explicitly declared that the deed was left With directions not to record it, and the reasons why such directions *were given. No [*470] objection is made to the credibility of the witness, and, on the whole, we think that a new trial ought to be granted." So also Jessup v. Coo^.(l) This was a rule to show cause why a new trial should not be had, on the ground liiat defendant had discovered new and important evidence since trial. It was an action of assumpsit ; plea, general issue, and verdict for plain- tiff. Boudinot, J. — " As at the trial both parties adduced evi- dence to this particular point, I think it would be introducing a new rule, and establishing an exceedingly bad precedent, to set aside the verdict and grant a new trial, because one party has since discovered evidence, which he thinks entitled to more weight than any which he had produced at the trial. The jury may very probably have thought, that all parol testimony ought to be disregarded, when set in opposition to the continued and (1) 1 Halst. 434. 470 NEW TEIALS. [Chap. XIII. The evidence must not have been used on the former trial. deliberate acts of the defendant himself; and I cannot bring my- self to dissent from this doctrine. If the law were established, according to the views of the defendant, not one verdict in ten would^stand. Some corroborating evidence may always be found or made, and, in deviating from the rules by which courts have heretofore been guided, the trial by jury would become the most precarious of all trials. I am, therefore, against the mo- tion." Eule discfiarged. In order to succeed in the application, it appears to be neces- sary that the party should mention the witnesses by name, and what he expects to prove, and that either the witness himself should state on oath the evidence he can give, or that the party should add his own belief to the statement made by the witness. Thus, in Richardson v. Baclcus,{\) action of slander. Upon a writ of inquisition, the jury assessed the plaintiff's dama- [*471] ges at $800. After '"notice of executing the writ of in- quiry, and before the jury had actually assessed the damages, the defendant discovered material evidence, before un- known to him, and which, he was advised, would fully justify the speaking the words charged in the declaration. The affida- vit further stated, that the evidence since discovered would prove the truth of the words spoken ; but it did not mention the names of the witnesses, nor the particulars of what he expected to be able to prove by them. Per Curiam. — " We think that the affidavit of the defendant ought to have disclosed the na;mes of his newly .discovered witnesses, as well as what he expected to prove by them. This would serve for a check against the abuse of general affidavits, after a trial. Let the proceedings, therefore,, be stayed until the first day of the next term, that the defendant may have an opportunity, if he thinks proper, to ainend his af[idavit."(2) And in Shumivay v. Fowler,{B) action of trespass on the case, for debauching the plaintiff's daughter, and a verdict found for (1) 1 Johns. Rep. 59. ^2) Vide 3 Marshall, 166. ' (3) 4, Johns. Rep. 425. Chap. XIII.] NEWLY DISCOVERED EVIDENCE. 471 The evidence must not have been used on the former trial. the plaintiff for $1,025. The plaintiff's daughter was a witness on the part of the plaintiff. Shepherd, for the defendant, moved to set aside the verdict, and for a new trial, on the ground of newly dis- covered evidence. He read afildavits, stating that since the trial the defendant had discovered a material witness, who told the defendant's attorney, that before the connection between the -de- fendant and the plaintiff's daughter, he, the said A. B., had criminal connection with her, and also informed him, that another young man had told him that he had previously had connection with the plaintiff's daughter; and that the defendant also ex- pected to prove the same thing to have taken place between her and another person. The court, having denied the motion on the ground of discrediting the witness, conclude — " There is another objection *to the aflSdavit in this case. [*472] It states merely, that the persons mentioned had told the party what they could say. There can be no reliance on such declarations ; nor could the persons, at the trial, be obliged to answer whether they ever had such criminal connection with the daughter. The motion must be denied." So in Denn v. Morrell and others,{l) in ejectment, and verdict and judgment for plaintiff. The defendants moved for a new trial, upon the ground of n-ewly discovered evidence. The affi- davit of Cannon, one of the defendants, set forth the particular facts which the defendants expected to prove ; and further, that upon a new trial, the deponent would be able to prove the facts upon which be relied, by Frederick Dibblee, who would testify that the lessor of the plaintiff had, at a certain period long since elapsed, executed a deed in his presence, either a quitclaim or a release, (the witness could not remember which,) whereby all the interest of the lessor in the premises was conveyed to one Maria H. Williamson. That said deed was delivered in the presence of Dibblee, but had never been in the possession of the deponent, and as he was informed, and verily believed, it had never been in the possession of the other defendants, but had (1) 1 Hall's Rep. 382. Vol. L "sa 472 NEW TRIALS. [Chap. XIII. Parly must show diligence. been lost or mislaid in the lifetime of the said Maria. Upon this- state of facts, the court held, that the party moving for a new- trial upon the ground of newly discovered evidence, was bound to produce the affidavit of the witness from whom such evidence was to come, setting forth the facts, or show that such affidavits could not be obtained. In the present case (they said) there was no ground to suppose thatDibblee would give the testimony detailed in the affidavit, except from the belief of the deponent j and the application was therefore refused. [*473] *&o in Shephardv. Shephard.{l) Trespass, and verdict for the plaintiff. The defendant moved to set aside the verdict on three grounds. One was, the discovery of new and ' important evidence, not known to- the defendant at the former trial. Ford, J. — "The newly discovered witness, (Irwin,) is to swear, as is soid, that he told the plaintiffs there was an execu- ■ tion levied on the property before he gave them the bill of sale. The evidence of it is, that a Mr. Harman swears he has heard Irwin say so. Facts newly discovered, ought to be laid before the court in the shape of legal evidence, and not hearsay. Many men say things which they dare not confirm under oath. We ought to hnve more substantial ground for setting aside a ver- dict, than a hearsay. I do not know a case where it was ever allowed, but there are many to the contrary." A new trial wag refused. (2), III. Party must show diligence. The party applying on the .ground of newly discovered evi- dence, muat make his vigilance apparent — for if it is left even doubtful that he knew of the evidence, or that he might, but for negligence, have known and produced it, he will not succeed in his application. (3) This is a well settled and comprehensive rule, running through all the cases on applications of this kind, (1) 5 Halst 25.0. (2) Et Vide 1 S. C. Con. Rep. 69, 143; Evans v, Rogers, 2 Nott & M'Cord, 663, (a) Vide "Surprise," supra, 174, 180. Chap. XIII.] NEWLY DISCOVEEED EVIDENCE. 473 Party must show diligence. and entering essentially into the practice of all courts, proceed- ing on the principles of the common law. In equity, new trials are awarded on different grounds.(l) Thus in an Anonymous case.{2) Per Curiam. — A new trial is never granted for want of evidence whereof the party was ap- prized, and which he might have had, at the trial. * Watson V. Sutton.(S) Debt against the marshal for an [*474] escape. At the trial a reddidit se, in discharge of the bail of the principal, and a committiiur in execution to the marshal, ■were produced in evidence; and, after a verdict, it was moved that it should be set aside, as the committitur was irregular ; for the course of the court is, that where any one upon a render is charged in execution, there ought to be a notice thereof to the marshal, without which it were hard to charge him with escape ; and the cause of giving such notice is by making an entry of the committitur in a book kept for that purpose by the marshal, who has an ofi&cer on purpose in the office to take notice of such en- tries, and it is not enough that the committitur be entered with the entering clerk. Gould, J., laid it down for a rule, that where a man has matter of defence, and, knowing thereof, goes to trial, and puts the plaintiff to the charge of proving his issue, he shall never after, in respect of that matter, have a new trial.(4) GooTce V. Berry^{b) cited above. The plaintiff had neglected to produce a letter at the trial, thinking the defendant had put in a sham plea. The court held that " New trials are never granted upon the motion of a party, where it appears he might have produced and given material evidence at the trial, if it had not been his own default, because it would tend to introduce per- jury, and there would never be an end of causes if once a door was opened to this." (1) VidB 2 Atk. 319; 2 Ves. sen. 552. (2) 6 Mod. 222. (3) 1 2 Mod. 583. (4) Et Vide 12 Mod. 667 ; 1 Salt 213. (5) 1 Wila. 98; Supra, 196. 474 NEW TRIALS. [Chap. XIII. Party must show diligence. And in Gist v. Mason and others,{l) on a policy. The defend- ants moved for a new trial, to let then! into new evidence ; as- signing, as the reason why this evidence was not offered at the trial, a presumption that the jury, of their own know- [*475] ledge, must have taken notice of the fact. *But per Ashhurst, J. — "The defendant makes this application to the court, in order to supply his own negligence, when it was evident he was not taken by surprise at the trial. If it do not appear on the face of the policy that it is void, it ought to have been shown by evidence ; but no such evidence was offered."(2) And in Hope v. AtJcins.{S) Assumpsit for the price of a quantity of barley sold to the defendant. There was a memo- randum of the sale in writing. The defendant attempted to in- troduce parol evidence to vary the memorandum, which the^ judge overruled. On this ground a new trial was moved for, and an affidavit was tendered to the court stating, among other things, that the barley had been injured by a thrashing machine ; but it was rejected, as an attempt to bring forward facts which should have been used at Nisi Prius only. So also in Doe v. Pnce,{i) in ejectment. It became a question whether a former marriage of one of the parties, being a minor, was with the consent of her father. The jury found the fact of consent, and a vprdict for the plaintiff, which the defendant moved to set aside, on affidavits stating various circumstances tending to negative the fact of consent. BayUy, J., (after con- sulting with the other judges,) — " We think that we should be working great injustice if we were to grant a new trial in this case, because we should be giving encouragement to parties to go to trial without duly preparing themselves with evidence, even on points which they knew beforehand would be made matters of dispute. It cannot be permitted that either party (1) 1 Term. Rep. 84 j Supra, 197. (2) Et ride 1 Str. 691. (3) 1 Price, 143. (4) 1 Man. & Ryl. 683. Chap. XIII.] NEWLY DISCOVEEED EVIDENCE. 476 .-~— » — ^ Party must show diliftence. shall prod ace just so much evidence as he thinks proper, and then stop short, and ultimately obtain a new trial, on the ground that he did, on the first trial, give all the evidence which *he then might, and has since found he ought to have [*476] given more. Indeed, it is one of the duties of the court to guard themselves strictly against falling into the practice, or entertaining the principle of granting new trials merely for the purpose of letting in evidence which might and ought to have been produced at the former trial. "We do not say that the questions now submitted to the court are not material, and wortjay of consideration ; we only say that they do not furnish grounds for granting a new trial." In Hollingworth v. Napier,{V) in trover, the principal question was, whether there had been a s'ale and delivery of the goods, for which the action was brought, to one Kenworthy, of whom, it was proved, the plaintiff bought them, and paid part cash, and the remainder in a check of one Peter Hyde. At the trial of the cause, the jury, under the direction of the judge that an order given in proof to the store keeper was a delivery, found for the plaintiff. The application now was to set aside this ver- dict as contrary to law, and on account of having newly discov- ered that no person of the name of Peter Hyde had ever kept any account with either of the banks in New York, and that the defendant hoped, from information, to prove a fraud in the sale. The court, by Spencer, J. — " It would be too loose to set aside the verdict on the mere expectation of a party's being better pre- pared. There has been abundant time for the defendant to lay before us the facts in the knowledge of his witnesses. This ought to be done on all applications for new trials on discovered testimony, or, if omitted, good reason ought to be given for the omission. To listen to the application on this ground, would be to grant new trials wherever the party was dissatisfied with the verdict. The facts ought to be strong ones, to in- duce the court- to *grant a new trial on the discovery [*477] of evidence, and the case should be free from laches. (1) 3 Gaines, 182. 477 NEW TRIALS. [Chap. XIII. Party must show diligence. In the present instance, the defendant is chargeable with delay." And motion denied. In Palmer v. 3fuUigan.{l) This was an action on the case for erecting and continuing a nusiance to the plaintiff's mills. The jury having found in favor of the defendants, application was made to set aside the verdict as being contrary to evidence, and on a discovery of new testimony, which, it appeared, might have been obtained on the first trial. The court, per Spencer, J. — " The second ground of the motion does not alter the case, even if the testimony could be considered as newly discovered, and that there had been no laches on the part of the plairmffs ; but, for aught thatappcars, one of the plaintiffs knew of this tes- timony, and neglected to procure it. I am averse, however, to putting it at all on that ground ; the testimony discovered is wholly irrelevant and immaterial. In my opinion, the plaintiffs take nothing by their raotion."(2) In like manner, a want of recollection of a fact which, by due attention, might have been remembered, is not such newly dis- covered evidence as will procure a new trial. In Bond v. Cutler.{3) Assumpsit on a promissory note, and a verdict for the plaintiff. The defendant, according to the prac- tice of the court, filed a petition for a new trial. One of the grounds was that since the trial the defendant had come to the knowledge of a material fact. The matter of the petition, and the answer of the court on this point, is thus given by Parsons, Oh. J. — " The note was supposed at the trial to be declared on as dated September 24, 1801. The defendant insisted that the date was the 4th of the same September; but the jury [*478] considered *it as a note, dated the 24th of September. Now, the petitioner says that it has come to his knowl- edge, that on the last mentioned day, he was absent in a remote part of the district of Maine, and so could not have the note on (1) 3 Caines, 301. (2) Et Vide 15 Johns. Rep. 293. (3) 1 Mass Eep. 205. Chap. XIIL] NEWLY DISCOVEEED EVIDEN-CB. 478 Party must show diligence. that day. The defendant cannot prevail on this ground, for he knew where he was on the 24:th of September, 1801, as well be- fore the trial as after; and a want of recollection of a fact which, by due attention, might have been remembered, cannot be a rea- sonable ground for granting a new trial; for a want of recollection may always be pretended, and may be hard to be disproved."(l) And in Knox v. Work and others.{2) Action in trespass, for breaking and entering the plaintiff's house, and committing an assault and battery upon him. On the trial the jury found a verdict against two of the defendants, $100 damages. A rule to show cause why there should not be a new trial, was obtained upon the ground, among others, of material evidence discovered subsequent to the verdict. On this part of the case, they pro- duced the afSdavits of two persons, that the plaintiff had told them he had no resentment against Work, and had sustained no damages by him; that he was desirous they should mention it to Work, and have the matter made up, and that he would pay his own costs, and Work would pay his. The defendants like- wise swore that they were ignorant of the matters set forth in the affidavit, until after the verdict. By the court, Bush, Presi- dent — " It is laid down as a general principle, and is said to be an established rule, not to grant a new trial on account of evi- dence discovered after the trial, which, by using due diligence, might have been discovered before, or which it was in his power to have been furnished with. It would be of most dangerous consequence to suffer one party, after he had heard the *evidence of the other, to give new evidence. Upon [*479] this principle a new trial has been refused, where an in- terested witness had been examined, and not discovered till after the trial."(3) So in Auhel v. Ualer,(i) a case of reference. The referees re- ported for the plaintiff. The defendant applied to set aside the (1) Yiie svpra, 187, 196. (2) 2 Binn. 582. (3) Vide 1 Term Rep. 111. <4:) 2 Bion. 682, m noHs. 479 NEW TEIALS. [Chap. XIII. Party must show diligence. report, on the ground that, since the report, he had found a re- ceipt, wfiich had been mislaid, in full from the plaintiff. Bushf President, after reviewing the facts of the case, and the leading authorities on the subject of granting new trials for newly dis- covered evidence, concludes thus — " Whatever doubts may pos- sibly be entertained on this subject, yet upon the whole we take the law to be as we have stated, and we have taken due pains to investigate the points. At all events, the decision of the cause this way, will tend to excite vigilance and attention, to prevent fraud and perjury, and to put an end to litigation — ob- jects of immense value in the administration of justice. It is infinitely better that a single person should suffer mischief, than that every man should have it in his 'power, by keeping back a part of his evidence, and then swearing it was mislaid, to des- troy verdicts, and introduce new trials at their pleasure. The idea is pregnant with alarming consequences, and would be a severe blow at the trial by jury." And new trial refused. In the Supreme Court of Appeals in Virginia, in a recent case^ the rule of law was recognised, where the party sought to escape from it by an appeal to equity. De Lima v. Olassell.{l) Action for not delivering a cargo of corn on boar^ a brig, according to contract. The jury rendered a verdict in favor of the plaintiff^ with £1,900 damages. A motion for a new trial was [*480] made in the court below, and *overruled, and judgment entered according to the verdict. The defendant filed a bill, and procured an injunction of the suifat law, which was dissolved upon the coming in of the answer. Evidence on both sides was taken, and the chancellor awarded a new trial, from which order an appeal was taken. Roane, J. — "The grounds on which the new trial was awarded by the chancellor, in this case, were, or might have been, submitted to the jury in the trial at law. It is stated, by the answer of Stone, that they were not only submitted, and copiously dilated on to the jury, but also to the court of law, on the motion for a new trial, which was re- fused. — The appellee ought to have assigned some reason for not (1) 4Hea.&Munf.369. Chap. XIII.] NEWLY DISCOYERED EVIDENCE. 480 Party must show diligence. having exhibited his evidence to the jury ; such as, that these facts came to his knowledge after the trial, or the like. Nothing of this kind being shown, as the ground of the application to the Court of Equity, this is, therefore, the naked case of moving for a new trial in equity, on grounds which, with ordinary diligence, the party might have availed himself of on the trial at law, and, therefore, I am for reversing the decree, and dissolving the in- junction." And such was the decree of the court.(l) In Drayton v. Thompson.(2) Debt on bond, assigned to one Gabel and Corre, and verdict for plaintiff, deducting four thou- sand pounds of ginseng. The plaintiff afterwards moved for a new trial, on the ground that he had since discovered evidence which would, on the trial, have disproved all the plaintiff's dis- count, except about £99 sterling ; that at the trial, he was sur- prised by a piece of evidence, a new agreement concerning the ginseng, by which the defendant had agreed that the plaintiff should ship the ginseng to Europe, and sell it for his account, and that the nett proceeds should be credited on the bond. The plaintiff's affidavit was also produced, stating this new *agreement, and the account sales of the ginseng ; that [*481] he had given the defendant notice of it, and had the ac- count sales in his possession, to have produced it on the trial, had he been called upon for that purpose. Waties, J. — " The dis- covery of new evidence has been rarely allowed as a ground for a new trial, and never where the party might, by using due dili- gence, have procured it before. This appears to be the present case. The single question is, whether Gabel and Corre, the as- signees pf the bond, might have procured, at the trial, the evi- dence they have since discovered. It is stated, that it was then in the knowledge and possession of Drayton, who would have produced it, if he had been applied to; but Gabel and Corre, al- though apprized of the account, gave no notice of it to him, but suffered the defendant to proceed ex parte, and are, therefore, guilty of laches." And for this cause, the motion was denied.(3) (1) Vide 4 Hen. & Munf. 405 . (2) IBay, 263. (3) n Tide iBay, 491. 481 NEW TRIALS. [Chap. XIII. Party must show diligence. The rule has been held to apply to criminal, and even to capi- tal cases. As in The Slate v. Hardir>g.{\) The defendant was convicted for horse stealing. His counsel moved for a new trial. One of the grounds was, that he had discovered new evidence since the trial, which, if it had been produced, would have evinced the prisoner's innocence. But the judges were unani- mously of opinion, that the discovery of new evidence after trial, without proof of diligence, was not a good ground for a new trial ; because, on a sufficient affidavit of the absence of witnesses in criminal, as well as civil cases, the court would always post- pone the trial ; that it would have a mischievous tendency to establish a precedent of this kind after a trial and conviction, as it was easy to foresee that a man, whose life was in danger, would, in every case, even to gain time, make use of a [*482] pretext of this kind to create delay ; more *especially, by the assistance of confederates, he might be enabled to procure unprincipled men to be witnesses, to contradict the evidence on the part of the state, and thereby defeat the ends of justice.(2) And held, in Taylor v. Bradshaw,{S) that even equity will not relieve a party from a judgment, upon the ground of a discovery of new evidence after the trial at law, where it appears that the party was not vigilant in searching for, and procuring the evi- dence which was within his reach before the trial. And, in Higden v. nigden.{^) If new evidence is discovered before the verdict is rendered, it should be submitted to the jury ; and if that is neglected, a new trial will not be granted for that cause. In Deacon v. Allen^ip) the court held this language, on a mo- tion for a new trial, upon the ground of new evidence, where (1) 2 Bay, 261. (2) Et Vide Drew's Case, 4 Mass. Eep. 399. (3) 6 Monroe, 145. (4) 2 Marsh. Kent. Eep. 42. (5) 1 Southard, 338. Chap. XIII.] NEWLY DISCOVERED EVIDENCE. 482 Party must sliow diligence. diligence did not appear : — "If the defendant has carelessly per- mitted himself to remain ignorant of the best means and instru- ments for his defence, shall this court interfere in his behalf, and save him from the effects of his own indolence and folly ? No case in the books, no principle of justice or reason would justify such a course." In Goe V. Givan.iX) Action of assumpsit. Verdict and set- off for a balance in favor of the defendant. Motion for a new trial, on the ground of a newly discovered evidence, overruled, and on appeal : Blackford, J. — " The motion for a new trial was founded upon an affidavit of newly discovered evidence, but un- accompanied with proof of diligence." Upon which the court observe — " What diligence was previously used by the plaintiff to obtain his proof, does not appear. In listening to such appli- cations, courts of justice have always been extremely cautious, and have *uniformly overruled them, where, [*483] upon using due diligence, the evidence might have been discovered before. (6 Bac. 672.) Much is necessarily left to the discretion of the courts below in motions for new trials, and it requires a case much stronger than the present, to induce us to interfere with them in questions of this kind." In Wilbor y. M' GilNcuddy.{2) Verdict for plaintiff, and motion for a new trial, because of newly discovered evidence. But it appeared the defendant had summoned the witness, whom he now wished to have another opportunity of examining, and dis- missed him from the trial without examination. Upon this the court, denying the motion, observe — " There is an admission on record, that this witness was summoned on the trial on the part of the defendant; that he attended during the greater part of it, and that he was dismissed by defendant's counsel without being examined. There had been other contracts between the parties, in relation to molasses hogsheads ; and it appears, by the evidence on record, that the witness was the person who, on each occa- (1) 1 Blackford's Ind. Rep. 361. (2) 3 Miller's Louis. Kep. 382. 483 NEW TRIALS. [Chap. XIII. •• Party must show diligence. sion, had the possession, and made delivery of them to the de- fendant. If the evidence was material, we think that ordinary diligence should have induced the defendant to inquire of this person, whether he had those also in possession which formed the subject matter of the present action. Not only would diligence have suggested the propriety of seeking information there before the trial ; but it appears to us it is just the quarter in which it would be sought. When we join, to this obvious reflection, the fact of the witness being summoned and dismissed without ex- amination, we cannot say the court below erred in refusing the application." In pne case, the court may seem to have departed from the strictness of the rule as to diligence, where the evidence [*484] *had been actually in the custody of the attorney, but without his knowledge. It was an action of assumpsit, brought by Broadhead v. Marshall.{l) The jury found a verdict for the plaintiff for £161. Motion for a new trial, on the affida- vit of Ramsden, the defendant's attorney, stating that the defend- ant sailed for Barbadoes on the first day of the term. That since the trial, he had discovered in a memorandum book of the defendant a receipt in full. He further swore, that at the time of the trial he did not know that he had such receipt in his cus- tody, nor that any receipt had been given by the plaintiff to the defendant, on any account whatsoever. The motion was op- posed ; but, on the special circumstances of the case, and the dis- covery of the new and very material evidence above stated, the court made the rule absolute for a new trial. (2) So, in another instance, the rule was somewhat relaxed. Morris v. 'Freeman. {3) Debt on bond. Defendant pleaded a general release, plaintiff replied non est factum, and thereupon issue was joined. The defendant had a verdict. The plaintiff moved for a new trial, upon an affidavit that very strong circum- (1) 2 W. Blacks. 955. (2) Vide Blythe v. SutherlanS, 3 M'Oord, 259. (3) 3 Wils. 38. Supra, p. 374. Chap. XIII.] NEWLY DISCOVERED EVIDENCE. 484 Party must show diligence. ^ Stances of forgery and perjury appeared upon the trial. The court naade a rule to show cause. The Lord Chief Justice said, he thought the evidence was very strong on the part of the plain- tiff, and that, if the cause had been tried before him, he would have called qut for Goff, the other subscribing witness, and if he* had not been produced, he should have thought it a very strong case for the plaintiff, and directed the jury to have found a verdict for him. Upon a motion on the ground of newly discovered evidence, the court, in order to be satisfied as to the credibility *of the witness relied on, will permit opposing affidavits [*485] to be read. Williams v. £aldwin.{l) Assumpsit on a promissory note, and verdict for plaintiff. Motion on behalf of the defendant for a new trial, on the ground of newly discovered evidence. Affidavits on both sides were submitted. Woodworth, J., delivered the opinion of the court. — " The defendant makes oath, that since the trial, and not before, he has discovered that Stephen Tappen was a material witness for him on the trial of this cause. It appears that the indorsement is in the hand- writing of Tappen ; that for five or six years last past, he has been in the service of the defendant, and resided near him at the time of the trial. These facts seem to establish great inattention in not procuring the testimony of the witness, or in not putting off the trial of the cause. They excite strong suspicion that the defence is colorable only. The plaintiff has proved, by a num- ber of witnesses, that Tappen is wholly unworthy of credit under oath. This it was competent for him to do. In Pomeroy v. The Golumbian Insurance Company,i2) the plaintiff was permitted to read affidavits to question the credibility of the witness newly discovered. On the whole, I am of opinion that there has not been proper diligence to obtain the testimony of Tappen, and there are strong grounds to believe his character is infamous. The motion for a new trial must therefore be denied. (1) 18 Johns. Hep. 489. (2) 2 Caiaes, 260. 486 NEW TEIALS. , [Chap. XIII. ^ The evidence must not be cumulative. lY. The evidence must not he cumulative. On motions for new trials on newly discovered evidence, it is a well settled rule not to grant them, if the evidence is merely cumulative, or in corroboration of testimony to a point presented at the former trial.(l) Thus, [*486] *Ia Steinbachv. The Columbian Insurance Compani/.(2) Action on a policy of insurance on the ship Catherine. The destination of the ship formed the principal question at the trial. There was a verdict for the plaintiff. The defendants moved for a new trial on various grounds, and, among others, that of newly discovered evidence. Livingston, J., delivered the opinion of the court, and upon the point of new evidence, thus: "It is said, that if a new trial be granted, there are two witnesses who were not known to the defendants at the time of the trial, who can testify as to the destination of the Catherine. This was the fact principally controverted on the former trial, and we are now applied to for another, merely because all the witnesses who knew something of the matter have not been examined. Every one must perceive the inconvenience and delay which will arise from granting new trials upon the discovery of new testimony, or other witnesses, to the same fact. It often happens that neither party knows all the persons who may be acquainted with some of the circumstances relating to the point in controversy. If a suggestion, then, of the present kind be listened to, a second, if not a third, and a fourth trial may always be had. There may be many persons yet unknown to the defendants, who may be material witnesses in this cause, and this may continue to be the case after a dozen trials." And new trial refused. And in Smith v. Brush.{B) Debt on bond for the penal sum of $4,000. Plea, general issue and usury. An attempt was made to (1) 2 Tidd, 938; 2 Arch. 224; Gra. Prao. SU. (2) 2 Caines, 129. . (3) 8 Jolins. Rep. 84. Chap. XIII.] NEWLY DISCOYEEED EYIDENCE. 487 The evidence must not be cumultative. * establish the defence of usury, by one Brush, a witness produced to a conversation between the parties. The jury found a verdict for the plaintiff. A motion was made to set- aside the verdict on grounds arising out of the case, and on affidavits of newly discovered *evidence. Per Curiam. — ^'' The new [*487] testimony alleged to be discovered, does not relate to any new fact, but goes merely to corroborate the credit of Brush's testimony. But it is against the general rule to grant a new trial, merely for the discovery of cumulative facts and circumstances relating to the same matter, which was principally controverted upon the former trial. It is the duty of the parties to come prepared upon the principal point, and new trials would be end- less if every additional circumstance bearing on the fact in liti- gation, was a cause for. a new trial." The motion was denied. So, in PUce v. Evans.{\) Assumpsit, upon a contract that the defendant should make up and deliver certain clothing to the plaintiff. A question arose at the trial, whether the clothes had been delivered by the defendant within the time contracted for. The jury found a verdict for the plaintiff. The defendant moved to set aside the verdict, and for a new trial; and one of the grounds was, newly discovered evidence, as to which affidavits were produced of testimony, the object of which was to substan- tiate the delivery of the clothes in due time. Per Curium,. — " The newly discovered evidence is material to make out the de- livery of the clothes by the time agreed on, and the only objec- tion to granting a new trial on this ground is, that it is merely cumulative testimony. This must have been known to the de- fendant, to be a material question on the trial. The newly dis- covered evidence does not relate to any new fact ; and it has been repeatedly decided by this court, that a new trial ought not to be granted, merely for the discovery of cumulative facts, re- lating to the same matter, which was principally controverted on the former trial." And in Whitbecle v. Whitheck.(^) Assumpsit, on money (1) IB Johns. Hep. 210. (2) 9 Cowen, 266. 488 NEW TRIALS. [Chap. XIII. The evidenoe must not be cumulative. [*488] *counts, and on a contract for a certain messuage or tenement and premises, with, the appurtenances, sold by the plaintiff to the defendant, at his instance and request. Also a count for goods sold, and on an account stated. The jury found for the plaintiff. The defendant moved for a new trial on various grounds, and, among others, of newly discovered evidence. Sutherland, J. — " There is nothing in the ground of newly discovered evidence. It is strictly curriulative upon one of the principal points in controversy upon the first trial. "(1) This rule has been illustrated with peculiar force and clear- ness in a recent case, which, from its nature, directed the atten- tion of the court, in a very special manner, to the subject. The People V. The Superior Court of New York.{2) Motion for a man- damus, to vacate a rule granting a new trial. An action of as- sumpsit was brought in the court below, in favor of Oebricks, against the president and directors of the Phoenix Bank, to re- cover the amount of a bill of exchange for $2,500, payable at sight, and indorsed by one Heckscher to the plaintiff. On the trial of the cause, Heckscher, the drawer of the bill, testified, that he left the bill at the bank on Saturday, the 30th May, 1829, a short time before 12 o^clock, and that he was at the bank but once on that day. He detailed a variety of circumstances, which induced him to speak with certainty as to the particulars of the tran.saction. Evidence was produced on the part of the bank, to contradict this witness, especially as to the hour of the day he left the bill at the bank. The judge charged, that if they believed that the bill in question had been left with the defend- ants before 12 o'clock, they ought to find for the plaintiff, other- wise for the defendants. The jury found for the plain- [*489] tiff. A motion *was then made for a new trial, on the ground of newly discovered evidence. The defendants produced an afiidavit of one Russell, tending to impeach Heck- scher, as to the fact of leaving the bill at the bank on the 30th (1) Vide, 2 Hall's Rep. 391 ; 3 Monroe, 403. (2) 5 Wendell, 114. Chap. XIII.] NEWLY DISCOVERED EVIDENCE. 489 The evidence must not be cumulative. of May, aad other affidavits, to show that the plaintiffs did not come to the knowledge of the facts until after the trial. The Superior Court granted a new trial, and an application was made to the Supreme Court for a mandamus, commanding that court to vacate the rule granting the new trial. Sutherland, J., delivered the opinion of the court. After a review of the lead- ing cases on the subject of new trials, growing out of questions of evidence generally, the learned judge proceeds : — " These observations are equally applicable to motions for new trials founded on newly discovered evidence. It has been shown that there are certain principles in relation to such applications, which are clearly settled and well defined, by long continued practice and an uninterrupted series of decisions, in our own and other courts. Those principles are : 1. That a party is bound and presumed to know the general leading points which will be litigated in his case. 2. That if he omits to procure evidence, which, with ordinary diligence, he might -have procured, in re- lation to those points upon the first trial, his motion for a new trial, for the purpose of introducing such testimony, shall be de- nied. 3. If the newly discovered evidence consists merely of additional facts and circumstances, going to establish the same points which were principally controverted before, or of addi- tional witnesses to the same facts and circumstances, such evi- dence is cumulative, and a new trial shall not be granted. In cases to which these principles clearly and unquestionably ap- ply, the granting or refusal of a new trial is not a matter of dis- cretion. The parties have a legal right to a decision conform- able to those principles. Where there is doubt upon the point of negligence, or as to the character of the evidence, or as to its materiality, it becomes a matter of discretion ; and the court will not — perhaps I *ought to say, cannot — right- [*490] fully interfere." The court overruled the decision of the inferior court, and directed a mandamus, on the ground that they had assumed to exercise a discretion upon a rule of prac- tice well settled. This cause came up afterwards on demurrer to the alterna- VoL. I. 31 490 NEW TEIALS. [Chap. XIII The evidence must not be cumulative. tive mandarmis.{V) The court, by Savage, Ch. J., took occasion to recognize all the rules governing applications of this kind, in the following clear and succinct manner : — " With respect to granting new trials on the ground of newly discovered testi- mony, there are certain principles which must be considered settled. 1. The testimony must have been discovered since the former trial. 2. It must appear that the new testimony could not have been obtained with reasonable diligence on the former trial. 3. It must be material to the issue. 4. It must go to the merits of the case, and not to impeach the character of a former witness. 5. It must not be cumulative." As to what consti- tutes cumulative evidence, the learned chief justice adds — "Ac- cording to my understanding of cumulative evidence, it means additional evidence to support the same point, and which is of the same character with evidence already produced. For in- stance : The defendants in the court below proved, by the third teller, that the bill in question was not delivered until after twelve o'clock — all subsequent witnesses, who prove the same fact, are cumulative ; their testimony is added to, or heaped up, upon that of the first witness." And upon the grounds that the defendants below were guilty of laches, and that the evidence was cumulative, and especially the latter, the demurrer was over- ruled, and a peremptory mandamus granted. The same rule of practice exists, and the same distinction pre- vails in Massachusetts. Gardner v. MitcheU.{2) The plaintiff recovered a verdict for $5,337, in an action brought [*491] *for an alleged breach of contract on the sale of two parcels of oil, one of 1,000 barrels, the other of 50,000 gallons, which was warranted by the defendant to contain twenty- eight parts of a hundred in head matter, and to be of a fair mer- chantable quality. The plaintiffs introduced evidence tending to show that the oil delivered was deficient in quantity and qua- lity, and that it did not contain the stipulated proportion of head matter. The defendant now moved for a new trial, on the ground (1) 10 "Wendell, 285. (2) 6 Pick. 114. Chap. XIII.] NEWLY DISCOVERED EVIDENCE. 491 The evidence must not be cumulative. of newly discovered evidence. This evidence appeared in the depositions of two witnesses, to certain conversations with the plaintiffs, changing very essentially the complexion of the case; and no attempt was made to impeach the depositions. Per Cu- riam. — "This is somewhat of a critical matter, as a party may so readily obtain new evidence to supply former deficiencies. Still the court ought not to shut their eyes to injustice on account of facility of abuse in cases of this sort. The evidence now brought forward is of confessions of the plaintiffs, and the question is whether it is new, or only cumulative. If only cumulative, it does not furnish a sufficient cause for a new trial. This is the ground taken in New York, and the reason is that the party should have taken care to produce evidence enough to establish his point. But this evidence is of a different character. As to the body oil, which is made a subject of complaint, there is a con- fession of one of the plaintiffs that it was as good as he expected. This is a new fact which was not before in the case. The verdict was general, and apparently injustice has been done."(l) New trial granted. So, in New Jersey. Ben v. Oeiger.{^) On a motion for a new trial, an affidavit was read to show that the defendant had discovered new evidence since the trial. This, *with [*4;92] the law, formed- the ground of the motion. The Chief Justice, who delivered the opinion of the court, after disposing of the other points, reviews the afiidavits read as to the new evi- dence, which he pronounces to be cumulative, and proceeds — •' Such being the character of the newly discovered evidence, it cannot sustain the present application. A new trial will not be granted to let in a party to the production of new witnesses, for the purpose of discrediting those examined by his adversary, nor on account of the discovery of new evidenceof a cumulative character. Both these rules have been decided in this court, and I shall rely on the cases here,, without a review of the decisions elsewhere, which, however, iti England, Massachusetts and New (1) Etvide Ghtmhers v Ghambers, 2 Marah, Kent. Rep. 349. (2) i Halst. 225 ; Supra, p. 203. 492 NEW TEIALS. [Chap. XIII. The evidence must not be cumulative. c ^ York, notwithstanding some apparent aberrations, are entirely accordant with our own."(l) And in Vermont, Bullock v. Beacl\, a case in which the ques- tion of evidence, as it bears on new trials, is examined at large ; it was held, a new trial will not be granted on the ground of new discovered evidence, if such evidence be merely cumulative, and tend to prove the same facts to which evidence was introduced on a former trial ; nor unless the court be of opinion that injus- tice has been done by the verdict, and that the new evidence would have occasioned a different result.(2) So, Den v. Wintermute,{^) in ejectment, and verdict for the plaintiff. The defendant moved to set aside the verdict, and for a new trial, on the ground he had discovered a witness since the trial, who could give material evidence. But it appeared it was to a fact that was in issue at the trial, and tending only to strengthen a presumption in favor of the defendant. The court regarded it as cumulative, and therefore refused the [*493] motion, observing — "A *nQw witness to character, credit, handwriting, dates, absences, violences and the like, might be found after half a dozen trials. It would render new trials endless, if every piece of cumulative evidence not known of before, was ground for setting aside a verdict. It ought to respect a new point — one that has come to light since the trial, on wliioh the party has never been heard-^such as the discovery of a release, or receipt for part payment, or some new ground of defence; and not further evidence in support of an old ground, that has been once contested already.(4) But, although the new evidence be intimately connected with soTjie parts of the testimony at the trial, yet, if it be specifically distinct and bear upon the issue, a new trial will be granted. (1) Et vide 1 Halst. 414; 2 Halst. 127 ; 1 gouth. 388. (2) 3 Vfrm. Rep. 73. (3) 1 Green's N. J Rep. 177. (1) Et vide Hardin's Rep. 345. Chap. XIII.] NEWLY DISCOVERED EVIDENCE. 49'3 The evidence must not be cumulative. This distinction was taken in the case of Gardner v. MitcheU,{l) cited above, and still further illustrated in Giiyot v. ButLs.{2) Motion for a new trial on the ground of newly discovered evi- dence. The plaintiff had obtained a verdicton a due bill of $300, by the testator, of the defendants. The defence set up was pay- ment, and evidence to that effect had been produced by the de- fendants. The affidavit of newly discovered evidence disclosed that Butts, the' acting executor of the will of Thompson, since the trial, had discovered that he could prove, by one Vickery, the admissions of the plaintiffs- made previous to the death of Thomp- son, that nothing was due upon the due bill in question, and that similar admissions would be proved by other witnesses, whose affidavits were not produced. Many, J., delivered the opinion of the court. — "The principal objection relied on in opposition to the motion is, that the newly discovered evidence is cumulative. I find no case in which a very *distinct [*494] definition is given of cumulative evidence. The courts have sometimes used expressions seeming to warrant the infer- ence that proof which goes to establish the same issue, that the evidence on the first trial was introduced to establish, is cumula- tive. If the evidence newly discovered, as well as that intro- duced on the trial, had a direct bearing on the issue, it may be cumulative ; but we are not to look at the effect to be produced, as •furnishing a criterion by which all doubts in relation to this kind of evidence are to be settled. The kind and character of the facts make the distinction. It is their jeserablance that makes them cumulative. The facts may tend to prove the same proposition, and yet be so dissimilar in kind as to afford no pre- tence for saying they are cumulative." l|Fpon this distinction, ap- plied to the newly discovered evidence, as stated in the defend- ant's affidavits, a new trial was granted. (3) In the state of New York, one exception to this general rule (1) 6 Pick. 114; Swpra, p. 490. (2) 4 Wendell, 579. (3) Vide Watson v. Delafield, 2 Gaines, 224; Reed v. JiPGrew, 1 Ham. Ohio Bep. 386. 494 NEW TRIALS. [Chap. XIIL , Tlie evidence mus^ not be cumulative. has been introduced, in relation to trials investigating the title to lands in the military tract, founded on considerations alleged to be peculiar to that class of cases. Thus, In Jackson v. Kinney,{V) in ejectment. The plaintiff's lessors claimed under a patent to one William Rullins, and produced two witnesses, Swartwout and Sherwood, to show that William > Rullins and William Rowley were the same person. At the trial a verdict was found for the plaintiff, which the defendant now moved to set aside, on the ground of newly discovered evi- dence. The affidavits which were read on the part of the de- fendant, were calculated to impeach the testimony of Sherwood, the principal witness for the plaintiff. Affidavits were read on the part of the plaintiff to support the character of Sher- [*495] wood. Per ''^Curiam. — "This is an application for a new trial on the ground of surprise,, and newly dis- covered evidence. The newly discovered evidence is for the purpose of impeaching the character of one of the witnesses, ex- amined on the part of the plaintiff. As a general rule, we have refused granting new trials on this ground. We have, however, repeatedly, in trials concerning the military lots, been more liberal in granting new trials, owing to the obscurity and multi- farious frauds attendant upon those titles, and especially when the question turns upon the identity of the soldier, from whom the title is claimed to be derived. Upon the whole, considering the length of the defendant's possession, upwards of nineteen years, and that the soldier is represented as having two names, and as considerable doubt rests upon the plaintiff's claim, we are inclined to think the ends of justice will be best answered by sending the cause back to a new trial."(2) So, in Jachaon v. IIooker,{3) in ejectment. A verdict was found for the defendant, and a motion was now made for a new trial, on grounds which are sufficiently stated in the opinion of (1) 14 Johns. Rep. 186. (2) Etvide 8 Jolins. Rep. 489; 12 Johns. Rep. 364. (3) 6 Cowea, 207. Chap. XIIL] NEWLY DISCOVERED EVIDENCE. 495 The evidence must not go to discredit a witness. the court. Sutherland, J. — " This is an application, on the part of the plaintiff, for a new trial, on the ground of surprise, and also of newly discovered evidence. The action was brought to recover possession of a part of a lot, patented to Eichard Gorman. The lessors of the plaintiff were the children of James Gorman, who, they contend, was the brother and heir at law of Eichard. Whether he was, or was not so, was the turning point in the cause. The evidence, on the part of the defendant, tended to show that the grandparents of the lessors never had but two children ; a daughter, named Molly, and James, the father of the lessor. The evidence was very *contra- [*496] dictory, and left it extremely doubtful what the fact was." After reviewing the testimony of one Hooker, which went to prove there was no such man as Eichard, in contradic- tion to one Sarah Gorman, the learned judge proceeds: — "The lessors of the pl&intiff are not chargeable with any negligence in not being prepared to repel the evidence of Hooker. They were not bound to anticipate, that a story so entirely irreconcilable with the deposition of Sarah Gorman, their witness, would be imputed to her. I am inclined to think the ends of justice will be best answered by giving the plaintiff an opportunity of repel- ling or explaining this testimony. It will not be going further than this court has repeatedly gone, in granting new trials rela- tive to military lots. That class of cases is considered peculiar, and as exempt from the ordinary rules in relation to granting new trials." F. The evidence must not go to discredit a witness. Closely allied to the preceding rule, is another, that if the al- leged newly discovered evidence consists in an attempt to dis- credit witnesses who testified at the former trial, a new trial will not be granted.(l) Thus, Ford V. Tilly.(2) An inquiry found four voluntary escapes, (1) Vide ante, 221-235. (2) 2 3alk. 653. 496 NEW TRIALS. • [Chap. XIII. The evidence must not go to discredit a witness. for which Ford, warden- of the Fleet, forfeited his office. Issues hereupon were tried in B. R. at the Vjar. Oue escape was proved bj a witness, who was asked if he was never burnt in the hand for stealing a tankard? He answered, no. A new trial was moved for upon producing the record of the conviction, and the court denied the motion : " 1st, because it was a trial at bar. 2dly, it is no reason for a new trial that you, for the defendant, came not prepared." , In Thurtell v. Beaumont.(\) There was a verdict for [*4^7] *the plaintiff, which the defendant moved to set aside, on the ground that the principal witness had been sub- sequently indicted with the plaintiff and others -for a conspi- racy to defraud the defendants. Park, J. — " On this point, I have looked into the books. I find many applications for new trials, on the ground of bills found by the grand jury, but none in which the application has succeeded. In one case, where the ground of the motion was that a bill for perjury had been found against the principal witness. Lord Mansfield said, that the grant- ing the rule for such a reason would have a most dangerous ten- dency, as it would open a door for constant scenes of perjury, and tempt a party to delay execution by indicting his adversary's witnesses. In Warwich v. JBruce,{2) Lord EUenborough dis- charged with costs a rule to stay execution till after the trial of an indictment against the plaintiff's witnesses for perjury ; and in Bartlelt v. PKlcersgill,[B) in Lord Henley's time, a plaintiff having petitioned for leave ,to file a supplemental bill, because the defendant had, on the evidence of the plaintiff, been indicted and convicted for perjury, on his answer to the original bill, Lord Henley dismissed the petition." Duryee v. Denmson.{4:) Assumpsit on a promissory note against the indorser. The defence set up was want of notice. (1) 1 Bingliam, 339 ; iStipra, p. 170. (2) 4 Maule & Selw. 140. . (3) 4 East, 5T7, n. (4) 5 Johns. Rep. 248 Chap. XIII.] NEWLY DISCOYERED EVIDENCE. 497 The evidence must not go to discredit a witness. A witness for the plaintiff proved the defendant had agreed to consider the demand and notice as made in time. A verdict was found for the plaintiff. A motion was made to set aside the ' verdict and for a new trial, for the misdirection of the judge ; and also on the ground of newly discovered evidence. From the affidavits, it appeared that the object of the newly discovered evidence, was to impeach the credit of the testimony given by one *Aikin, the principal witness of the plain- [*498] tiff, who had died since the trial. Kent, Ch. J. — "We are of opinion that the testimony of Aikin, as given at the trial, was sufficient to support the verdict. The rule is now settled, that if an indorser has not had regular notice of non-payment by the drawer, yet, if with knowledge of that fact, he makes a sub- sequent promise to pay, it is a waiver of the want of due notice, and assumpsit will lie. All this was made out by the testimony of Aikin, and the motion for a new trial is founded on affidavits which go to impeach the credit of his testimony. But this ought not to be permitted ; and the case of Huish v. Sheldon,{V) is strongly to the point. That was a motion for a new trial, on an affidavit impeaching the testimony of a material witness, and_ the court denied the motion, and said that it would be produc- tive of the most dangerous consequences, if a verdict should be set aside because a witness had made a mistake in giving his evidence."(2) So Hammond v. Wadhams,{^) cited above. The demandant moved for a new trial, because the verdict was against the evi- dence, and because testimony was given on the trial by one . John Fanning, which testimony, if credited by the jury, had a tendency to induce them to find a verdict for the tenant ; and the demandant would, on a new trial, be able to prove that the said John has declared that he Aoould swear falsely in any action for four pence halfpenny a time, and that he believed when he should die, that he would perish like a brute ; which evidence of the said (1) Sayer, 21 (2) Etvide 3 Johns. Rep. 255 j 4 Johns. Eep.,425. (3) 5 Mass. Rep. 353 ; Supra, p. -231. 499 NEW TRIALS. [Chap. XIII. The evidetioe must not go to discredit a witness. John's infidelity, was not known to the demandant until after trial. Parsons, Ch. J. — "It is not suggested by the de- [*499] mandant, that he was surprised by Fanning's *testirno- ny. On the contrary, he came prepared to discredit him,, which he effectually did in the opinion of the judge. To grant a new trial to give further opportunity to discredit a wit- ness whose testimony was not unexpected, and who had in fact been discredited, would be unprecedented, and productive of mischievous consequences. We cannot, therefore, grant a new trial on the second ground on which it was moved. "(1) Nor will even the confession of a witness, to his own discredit, be received as that kind of new evidence which will entitle the party to a new trial. (2) Thus, In Waiters Gase,[S) be moved the court for a new trial, on the ground he was improperly convicted, and submitted affidavits going to discredit Richardson, the principal witness, from his own confessions. Parsons, Ch. J. — " The confessions of a wit- ness as to his incompetency, cannot be admitted to disqualify him. If the law were not so, any unwilling witness for the com- monwealth might deprive the commonwealth of his testimony, by declarations of his interest in the presence of the friends of the defendant, who, by testifying to those declarations, might always prevent his being sworn. The objection founded on a subsequent discovery of the incompetency of Richardson, is, • therefore, not supported." To this rule, there may be found two exceptions ; one in the case of Fahrilius y. (7oc^.(4) This, however, was a case sui gene- ris, with so many circumstances peculiar to itself, as to render it improbable a case similar in alt its parts should ever occur, ad- dressing itself at large to the discretion of the court, who were (1) Et vide 1 Oaines, 24 ; 1 Halat. 434. (2) Vide ante. 234. (3) 5 Mass. Rep. 261 ; Supra, p. 231. (4) 3 Burr. 1771 ; Swpra, p. 224. Chap. XIII.] NEWLY DISCOVERED EVIDENCE. 500 The evidence must not go to discredit a witness. perfectly satisfied the whole was a fiction, supported by per- jury.(l) The other is Lister v. MundeU.{2) A question arose as to whether *the defendant, who was a bank- [*oOO] rupt, was entitled to the benefit of the act. The court directed a non-suit on a plea of bankruptcy, and there was a ver- dict for the plaintiff. But, upon motion for a new trial, on grounds impeaching the plaintiff's witnesses, the court took the distinction between the declarations of the witness, and the facts and circumstances, minutely detailed, for the purpose of giving his declarations credit; and being satisfied that the circumstan- ces were clearly falsified by the affidavits on which the motion was grounded, they unanimously directed the rule to be made absolute.(3) So, in a recent case in Massachusetts, Chatfield v. Zaihrop.{4:) This was a petition for a new trial. Chatfield sued Lathrop, to recover $63, which he had paid him. The verdict, which was in favor of Lathrop, turned upon the testimony of one Piper, who testified that he was present on *the 5th of March, when money passed from Chatfield to Lathrop, but that the sum of $63, which Chatfield contended he had paid to Lathrop at that time, was not so paid. Chatfield objected to Piper, on account of his interest, and the witness being put on the voir dire, the objection was overruled. The ground of the present applica- tion was, that Chatfield had discovered evidence since the trial, which would exclude Piper's testimony, and if he should fail in this, that he had discovered evidence since the trial, which would prove, by the declarations of Lathrop and Piper, that he did pay the sum of $63 to Lathrop. Per Curiam. — " On the part of the respondent, it is said that, as the witness was put upon the voir dire, the evidence now produced to show that he was interested is inadmissible. If this evidence had been known at the time of the trial, it would be so ; but as the case proceeds upon the (1) Vide 5 Johns. Rep. 250. (2) 1 Bos. &, Pul. 427 ; Supra, p. 233. (3) Vide 5 Dow, 273 ; 4 Littell, 118. (4) 6 Pick. 417. 501 NEW TRIALS. [Chap. XIII. The evidence must not go to discredit a witness. ground of newly discovered evidence, we think it ought [*501] *to be received. Still it might be questioned whether a new trial should be granted on account of the inadmis- sibility of the witness. The evidence, however, goes further. It shows, that the defendant and Piper both admitted that the plaintiff had paid the $63. Tha testimony of the new witnesses would contradict Piper, and, if he were discredited, would sup- port the action. It is then said that this evidence is cumulative ; bat we do not consider it to be so. Cumulative evidence is such as tends to support the same fact which was before attempted to be proved. Here the new evidence is to show, that Piper con- fessed he testified what was untrue. This was not in contro- versy at the trial. Justice requires that a nevy trial should be granted." This may seem at variance with Waiters Case, in the same court. But that case turned upon the confessions of the wit- ness; this of the party himself, as well as the witness,, and it has been held, that the pauty's declarations to the interest of the witness, will render him incompetent to be sworn. So ruled in this same court, in Pierce v. Chase.{l) Nor will the court allow a new trial, on the ground of new evidence, if the verdict is for the plaintiff, and the object be to •set up a hard defence. Beers v. Root.{2) This was an action of slander, brought against the defendant, for saying that the plaintiff had passed counterfeit bank notes. There were several counts in the decla- ration. The defendant pleaded not guilty, with notice of justi- fication. The jury found a verdict for the plaintiff. Amotion was made to set aside the verdict, and for a new trial, on the ground of newly discovered evidence. The affidavit of the de- fendant stated, that since the trial of the cause, he had discovered new evidence, which was unknown to him at the time of the (1) 8 Mass. Rep. 481. (2) 9 Johns. Rep. 264. Chap. XIII.] NEWLY DISCOVERED EYIDENCB. 502 The evidence must not go to discredit a witness. trial; the *iiature of which evidence was set forth [*502] in the af&davit. Per Curiam. — " The law will not allow a new trial to the defendant, merely to afford him an oppor- tunity to prove the plaintiff a,fehn. Such an indulgence would not have been granted to ihepmple, if the party so charged had been once tried and acquitted. If the defendant had discovered new evidence, which went to the plea of not guilty, and that only, it would have altered the case; but we cannot permit him to fish for further evidence to support his plea of a justification of such a charge. The motion must be denied." It may be proper to add, that by a general rule of the Supreme Court of New York,(l) motions of new trials will not be heard on affidavit alone. They must be accompanied with a case.(2) (1) 1 Wendell, 331. (2) On this sabject generally, vide ante, on Mistake, Surprise and Impeachment ofWitnesses, Cliap. 1,j)assim. *503 NEW TEIALS. [Chap. XIV. General remarks. ^CHAPTER XIV. IN HARD ^ACTIONS. I. General remarks, II. Irregular conviction of felony. III. In cases of misdemeanor. IV. Where tlie verdict is for Hie defendant. Y. Where there is no palpable violation of the law. VI. Huh where the case is in its nature penal. VII. Where the conviction is against law. I. General remarks. Proceedings at law, are by action or indictment. As these ternas stand contradistinguished, the former denotes suits be- tween individuals, or corporate bodies as individuals, in civil tribunals ; the latter, proceedings in courts of criminal jurisdic- tion, where the public is on one side invariably as the prosecu- tor, and individuals on the other. Hard actions strictly include only civil proceedings, involving in their nature some peculiar hardship, arising from the odium attached to the alleged offence, or the severity of the punishment which the law inflicts upon the offender in the shape of damages. To this belongs most ac- tions arising ex delicto. Trespass, slander, libel, seduction, ma- licious prosecution, criminal conversation, deceit, gross negligence, actions upon the statute, or qui tarn actions, prosecuted by in- formers, and penal actions, prosecuted by special public bodies, or the public at large, are ranged under this head. But as they partake, less or more in their nature and effect, of prosecutions in criminal offences, the rules that govern in granting or refu- sing new trials, and the reason of those rules, are drawn from criminal cases, rather than civil. In all proceedings by indict- ment, and in all offences partaking of a criminal intention, it is Chap. XIV.] IN HARD ACTIONS. 504 > ^. General remarks. a rule of universal application, that where the defendant has been acquitted on the merits, a new trial will not be allowed. This equally applies to misdemeanors, felonies not capital, or, in the language of the old common law, clergyable felonies, and capital crimes, or such as draw after them the punish- ment of death. In cases *of the fetter description, where [*o04] there is a conviction, the law is thus laid down by Chit- ty : — " In case of felony or treason, it seems to be completely settled, that no new trial can in any case be granted ; but if the conviction appear to the judge to be improper, he may respite the execution to enable the defendant to apply for a pardon. "(1) This rule is not to be construed to apply in all cases without ex- ception, where the defendant is convicted. It is settled, that for irregularity, the courts may iuterfere.(2) One case of high authority, The United Slates v. Fries,(^) shows that this is the true construction of the rule in this country. There the defendant was convicted of treason, atid upon the ground of a mis-trial, caused by the intemperate declarations of a juror before he was impannelled, a new trial was directed. la this instance, the court asserted, and acted on its power to inter- fere in the highest offences. In South Carolina, in Hopkins^ Case, (4) on a conviction for for- gery, the court granted a new trial, on the ground of misbeha- vior in one of the jurors, observing — " that the matter of fact set forth in the affidavit, if true, was a good ground for a new trial ; and it would be difiicult to say it was not so, even if the character of the witness was of a suspicious nature. At all events, it was a doubtful point, in which casfe it was the duty of the court to lean on the merciful side, and give the prisoner another chance for a fair trial." A new trial was accordingly ordered ; the prisoner was again tried at the ensuing sessions, and acquitted. (1) 1 Chit. Cr. Law, 654. (2) 6 Bao. Abr. 676"; (3) 3 Dallas, 515. (4) 1 Bay, 372. 505 NEW TEIALS. [Chap. XIV. General remarks. la the recent case of The People v. Ransom,{V) the Supreme Court of this state heard the motion for a new trial, and decided it, on the assumption of competent power to grant a new trial had a proper case been presented. [*505] *There can be no doubt that the courts of supreme jurisdiction have the power, and are in the habit of ex- ercising it, when proper cases occur, of granting new trials in capital, and all other felonies, where an irregular and unjust con- viction has taken place.(2) And it appears to be equally well settled, as well in England as in this country, that where the de- fendant is acquitted, no new trial will be granted ; although it must be conceded that the same power which interposes in cases of conviction, is equally competent to interfere in cases where the acquittal is clearly illegal. But it is put upon a dif- ferent ground. It is the humane influence of the law, mingling justice with mercy, in favorem vitce et liberiatis. As to misde- meanors, it is conceded the court has a similar power, and may exercise it in unjust acquittals. "However," adds Chitty, "in all cases of misdemeanor, after a conviction, there is no doubt that the superior courts may grant a new trial, in order to ful- fil the purposes of substantial justice. "(3) Yet there are no in- stances of new trials after acquittal, unless in cases where the de- fendant has procured his acquittal by unfair practice. Thus, the rule is laid down by the same author : " A new trial cannot, in genera], be granted, on the part of the prosecutor, after the de- fendant has been acquitted, even though the verdict appears to be against evidence. But it seems to be the better opinion, that where the verdict was obtained by the fraud of the defendant, or in consequence of irregularity in his proceedings, as by keeping back the prosecutor's witnesses, or neglecting to give due notice of trial, a new trial may be granted."(4) But the rule has never been extenided to new trials upon the merits, either in England (1) 1 Wendell, 417. (2) Vide 5 Wendell, 39. (3) 1 (;hit. Cr. Law, 654. (4) 1 Chit. Or. Law, 651. Chap. XIV.] IN HAED ACTIONS. 505 General remarks. or this state, perhaps no part of this country, in causes above the degree of *misdemeaaor; certainly not in [*506] capital felonies. Cases of this kind are committed to the pardoning power, accompanied with the doubts of the judges, and the recommendation of the prisoner, by the jury, to mercy. (1) The rules in criminal cases would thus appear to be reducible to three. 1. That a new trial on the merits will not be granted in any case above a misdemeanor, whether the defendant be ac- quitted or convicted. 2. That for irregularity in all cases, whether misdemeanors or felonies, new trials may be granted, when there is a conviction. 3. ' That in misdemeanors, new trials may be granted on the merits, when there is a conviction, but not in cases of acquittal. These rules are all illustrated and en- forced in a recent case in our Supreme Court. The People v. Gom- stoch.{2) The defendant was tried on an indictment for grand larceny ; the indictment having been removed from the Oyer and Terminer into this court, by certiorari. The defendant was ac- quitted, and a new trial was moved for, on the ground of the al- leged misdirection of the jury by the- presiding judge. By the court, Sutherland, J. — " It appears to be perfectly settled, that in offences greater than misdemeanor, a new trial cannot be-granted on the merits, even where the prisoner has been convicted. Thus, in The King v. Mawbey and others,{2>) Garrow, argitendo, speaking of misdemeanors, says : ' If the defendant were unques- tionably guilty, and the jury acquitted him, yet the court can- not grant a new trial; on the other hand, if a defendant be con- victed of felony or treason, though against the weight of evi- dence, there is no instance of a motion for a new trial in such a case, but the judge passes sentence, and respites execu- ' tion till application can be made *to the mercy of the [*507] crown.' Lord Kenyon, in delivering his opinion in that case, ibid. 638, says,' 'In one class of offences, indeed, those (1) Vide 1 Ohit.Cr. Law, 654; 13 East, 412; 4 Chitty's Black. Com. 361, etin notis. (2) 8 Wendell, 549. (3) 6 Term Rep. 625. Vol. I. 32^ 507 NEW TRIALS. [Chap. XIV, Irregular conviction of felony. greater than misderneanoi's, no new trial can he granted at all: but in misdemeanors, there is no authority to show that we cannot grant a new trial, in order that the guilt or innocence of those who may have been convicted may again be examined into.' The whole scope of that case seems to warrant the opinion, that even in a misdemeanor, a new trial cannot be granted, where the defendant has been acquitted ; but in relation to felony and treason, it treats the proposition as unquestionable, that no new trial can be granted, even where the prisoner was convicted, a fortiori, after an acquittal. Mr. Chitty,(l) says: 'In cases of fel- ony or treason, it seems to be completely settled, that no new trial can, in any Qase be granted : but if the conviction is im- proper, the prisoner must be respited until a pardon be applied for. But, in case of misdemeanor, after a conviction, a superior court may grant a new trial.' "(2) After this general view of the subject, the following rules are submitted. II. Irregular conviction of felony. In convictions for felonies, on the ground of irregularity, the courts will interfere, and grant or refuse a new trial, as may best subserve the ends of justice. We have seen that irregularities in the summoning or im- pannelling of jurors, where no injustice to the defendant ensues, will be disregarded. (3) It is not within the scope of this work to enter into a minute illustration of this rule, as regards crim- inal proceedings. It is introduced rather for the purpose of tracing to it the reasons for granting or refusing new [*508] trials, in those designated "hard *actions," and thus to give effect to the work, without endangering its unity, SufiBce it to add a few cases of irregularity, in which the courts have directed the cause to a new jury, in illustration of the rule, (1) Chitty's Cr. Law, 654. (2) V'ide 13 East, 416 ; 3 Christ. Black. Com. 388, in notis. (3) Ante, chap. 2. Chap. XIT.] IN" HAED ACTIONS. 508 Irregular conviction of felony. As where the first jury has been discharged without a verdict. Thus in The People v. Ooodwin,{l) indicted for manslaughter. The jury having retired to consider of their verdict, at two o'clock in the morning of the fifth day, remained until six o'clock in the afternoon of the same day, (Saturday,) when they came into court, and being asked as to their verdict, answered, by their foreman, that they found the prisoner guilty, but begged leave to recommend him to the mercy of the court. Before the ver- dict was recorded, the counsel prayed that the jury might be polled ; and on being polled accordingly, the third juror answered, not guilty. The jury were then sent out to reconsider of their verdict. After remaining until a late hour, and having answered the court to a question put, whether they could agree within half an hour, being the latest period to which the court could sit actording to law, that there was not the least possibility of their agreeing, they were thereupon discharged by the court. A mo- tion was now made that the prisoaer should be discharged, hav- ing been once tried. Spencer, Ch. J.f delivered the opinion of the court. After reviewing the facts in the case, and examining the reasons and authorities urged in favor of the motion, the learned judge concludes: — "Upon full consideration, I am of opinion that although the power of discharging a jury is a deli- cate and highly important trust, yet that it does exist in cases of extreme and absolute necessity ; that it may be exercised with- out operating as an acquittal of the defendant ; that it extends as well to felonies as misdemeanors ; and that it exists, and may discreetly be exercised in cases *where the [*509] jury, from the length of time they have been considering a cause, and their inability to agree, may be fairly presumed as never likely to agree, unless compelled so to do from the press- ing calls of famine or bodily exhaustion. And in the present case, considering the great length of time the jury had been out, that the period for which the court could legally sit was nearly terminated, and that it was morally certain the jury could not (1) 18 Johns. Eep. 187. 509 NEW TRIALS. [Cha?. XlV. Irregular conviction of felony. agree before the court must adjourn, I think the exercise of the power was discreet and legal ;" and the motion was denied.(l) So in Commonwealth v. Purchase.{2) Purchase was set to the bar to be tried on an indictment for murder, and the cause was committed to a jury ; who, after having deliberated upon it more than two hours, returned into court without having been able fo agree on a verdict. The court, after instructing them on some pcints of law, sent them out again. The next day, after a further deliberation for sixteen hours, it appearing to the court that there existed a difference of opinion among them whick further deliberation would have no tendency to remove, the in- dictment was taken from them, and they were discharged. Purchase was afterwards tried on the same indictment, and con- victed of manslaughter; upon which he moved in arrest. of judgment, on the ground that his life had been twice put in jeopardy, for the same offence. The counsel for the prisoner urged the dictum of Lord Coke : — " A jury sworn and charged in case of life or member, cannot be discharged by the court, or any other, but they ought to give a verdict ;"(3) which was an- swered by Parker, Oh. J., who delivered the opinion of the court. — "The question to be discussed, therefore, is, whether by the common law, or by virtue of the constitution of the [*510] United States, *a second trial for the same offence is pro- hibited, when the first shall have failed on account of the disagreement of the jury. In regard to the doctrine of Lord Coke, it undoubtedly maintains the objection ; but the very universality of the rule laid down by him, has led great lumina- ries of the law to deny its correctness. Sir Michael Foster and Sir Matthew Hale, both of them as learned in the criminal law, at least, as Sir Edward Coke, have maintained a different doc- trine ; and numerous cases in the English courts have been de- cided against his opinion. If his opinion be-true, then if a juror drop dead in a fit, or if the prisoner be seized with insanity, or if (1) Et vide The People v. Denton, 2 Johns. Cas. 215. (2) 2 Pick. 521, (3) Co. LIU. 227. Chap. XIV.] IN HAED ACTIONS. 510 Irregular ooQviotion of felony. a female be taken with the pains of labor, or if one of the jurors abscond, so that he cannot be found, or, in short, if any circum- stance should providentially happen, to interrupt the trial after the cause is committed to the jury, the prisoner must go free ; for a mis-trial, under such circumstances, would amount to an acquittal ; and in all such cases jurors have been withdrawn, and the prisoner tried again. Many cases may be suggested, equally strong with those, which have been judiciously acted upon, for which there would be no relief, if the rule admits of no excep- tions, or if the court are limited in their discretionary authority, to those exceptions which have already been established. Sup- pose the court-room should suddenly take fire, or be suddenly struck with lightning, or a tremendous earthquake should hap- pen, so that the lives of all should be in jeopardy, and the jury, panic struck, should disperse, could not the judge order the pri- soner to be remanded, and commence the trial anew ? ■ Suppose the judge assigned to hold the sessions, should, while waiting the return of the jury, be seized with an apoplexy and die, and no other judge being present, the jury should separate; shall the prisoner go free, or shall there be a new trial ? These are cases which seem to leave no doubt, and yet they are not be found in any judicial decision. The truth is, that the cases re- corded are but examples to illustrate *the application of [*511] the rule, not rules themselves, by which future judges are to be limited and restrained." Motion overruled.(l) In The United States v. Haskell and Francois,{2) which was an indictment for making a revolt ; piratically and feloniously run- ning away with the vessel and goods to the valu^of $50 ; laying violent hands on the captain to hinder his fighting in defence of his vessel, and yielding up the vessel to a pirate. After the jury had retired to deliberate on their verdict, they returned to the bar, and being asked if they had agreed upon a verdict, an- swered by their foreman that they found the prisoners guilty (1) Vide ante, 80-95; 1 Howell's St. Tri. 315; Tlte People v. OlcoU, 2 Johns Cas. 301; 9 Mass: Eep. 494; 2 Gallison, 364. (2) 4 Wash. C. 0. Rep. 402. 511 NEW TEIALS. [Chap. XIV. Irregular conviction of felony. upon the first count, and not guilty upon the other counts. But being polled, one juror, after n^uch apparent agitation, and de- claring that he was not quite collected, answered, not guilty. The court being satisfied, not only .from the appearance and con- duct of this juryman, buj; from the declarations of many of the jurymen, as to the conduct and speeches of this person, that lie was insane, and totally unfit to act as a juryman, caused the fol- lowing entry to be made on the minutes. "The jury, Ijaving been kept together three days, and more than twenty-four hours without refreshments, and there being no prospect of their agreeing, and the court being satisfied of the insanity of one of the jurymen, discharges the jury without the consent of the counsel for the prisoners." The jury were discharged, and a plea interposed on behalf of the prisoners, declaring the dis- charge of the jury equivalent to an acquittal, which was over- ruled by the court, after argument, on demurrer.(l) In a capital case. The People v. i/''Zay,(2).it appeared [*512] *that the prisoner was indicted for the murder of his wife, by administering to her arsenic ; and he was tried and convicted. The prisoner moved in arrest of judgment, on the ground that no venire had been issued to the sheriff to sum- mon the petit jury, it appearing, after the prisoner was convicted, that the supposed venire was not under the seal of the court, and that no official return was made by the sheriff to the venire, with the panel of jurors annexed to the writ. Spencer, Ch. J., de- livering the opinion of the court. — "It has properly been con-' ceded by the attorney-general, that the paper purporting to be a venire, is to be regarded as a nullity, it not having the seal of the court impre^ed upon it. It has not been controverted, and it certainly could not be with effect, that at common law, a venire is essentially necessary to authorize the sheriff to summon a jury, and that an omission of that process would be a fatal de- fect. We are not of the opinion, that the prisoner's peremptory challenge of jurors was a waiver of his right to object now to (1) Vide United States v. Perez, 9 'Wheaton, 679. (2) 18 Johns. Rep. 212. Chap. XIV.] IN HARD ACTIONS. 512 Irregular conviction of felony. the want of a venire. It is a humane principle, applicable to criminal cases, and especially when life is in question, to consider the prisoner as standing upon all his rights, and waiving nothing on the score of irregularity. We are, therefore, clearly of opinion that the judgment must be arrested. His counsel has suggested a doubt, whether arresting the judgment does not en- title him to be discharged, without being subjected to another trial. It will be observed, that the judgment is arrested on the motion of the prisoner. An act done at the request, and for the benefit of a prisoner, we are clearly of opinion cannot exonerate him from anothertrial. A ease, analogous in principle, occurred in Ontario county, in 1814. A woman of color was indicted and tried for murder, and found guilty. The jury had separated after agreeing on a verdict, and before they came into court; and on that ground a new trial was granted, and she was tried again. We know of no case which contains the doc- trine that where a *new trial is awarded at the prayer [*513] and in favor of a person who has been found guilty, he shall not be subject to another trial."(l) So, in 77ie People v. Orays,{2) where an objection was taken to the judge not charging the jury, and a motion to set aside the verdict on that ground. The trial occupied four days, and was closed about ten minutes before twelve o'clock on Saturday night. It was conceded by the public prosecutor, that if the jury were of opinion that the defendants, or either of them, were guilty of manslaughter only, they might so find. The defend- , ants' counsel requested the presiding judge to charge the jury upon the law and the facts, who declined to do so, and submitted the cavSe to the jury without; any remarks. The defendants were convicted of murder. An exception was taken to the omission of the judge to charge the jury, and the case was brought up for the advice of this court. By the court, Savage, Ch. J. — " It is no doubt the duty of the judge to charge the jury, and state to them (1) Vide 2 Hale's P. 0. 260; 2 Curvvood'a Hawk. P. 0, 561; 1 Chit Cr. Law, 522 ; Commonwealth v. Parker, 2 Pick. 550. (2) 6 Wendell, 289. 513 NEW TEIALS. [Chap. XIV. Irregular conviction of felony. the law of the case ; but there may be good reasons for omitting to do so. In .this case, there was no dispute about the law, and the facts and intents were for the jury to decide. Had the judge undertaken to charge the jury, he could not have done so before the Sabbath morning, when the jury must have been discharged or kept together over the Sabbath. He therefore exercised his discretion, and submitted the case without a charge. The ver- dict ought not to be set aside on this ground, unless.it manifestly appears that the omission of the judge operated to ihe prejudice of the defendants.(l) That it had no such effect, appears [*514] from a *comparison of the evidence with the verdict. The testimony presents a clear case of wilful murder by James Gray, and of aiding and assisting by Elijah Gray. The verdict is fully supported by the evidence, and a new trial ought not to be granted." And, in Commonwealth v. Green,{2) the Supreme Judicial Court of Massachusetts have held the power of the court to grant a new trial, in a capital case, after conviction, upon the ground of the admission of illegal testimony. The prisoner was convicted of the murder of one Williams. On the trial, several witnesses, were produced and sworn on the part of the government, among whom was one Sylvester Stoddard, who had been convicted of larceny, and was under sentence for the same in the state prison at the time the murder of Williams was committed, but had been pardoned previously to the trial by the executive of the common- wealth, and was admitted by the court as a competent witness. The prisoner's council moved for a new trial, on the ground of the incompetency of the witness, propter delictum. Parker, Ch. J., after an elaborate reviqw of the practice in England and this country, concludes, that, in the highest species of crime, the court have the power and right to grant new trials where there has been a conviction, and denies the motion on the technical ground that the objection to the introduction of the witness had not been raised at the trial. This case, it must be noted, goes beyond the (1) Vide The People v. Ransom, 1 "Wendell, 411. (2) n Mass. Rep. 515. Chap. XIV.] IN HAED ACTIONS. 514 In cases of misdemeanor. usual ground of mere irregularity, and inclines to the practice of the court's interposing their power with equal ^effect on the merits. Whether to this extent it would be regarded as law in the sister states, may well be doubted. The converse of the rule is, that the court will grant a new trial in criminal cases, where the defendant has been *illegally convicted. "We have already noticed the case [*515] of Fnes,{l) and Gomsfock.{2) To these may be added, The People v. The Sessions of Chenango,{3) where the court claim the right to grant new trials upon the merits, to the excU sion of inferior courts ; but conceding to them the power of granting new trials for ir,regularity.(-±) The State v. 3'opMns,{5) The State V. ffayward,{Q) and The United States v. Perez,{7) already cited, and Shute v. Good,{8) and Martinv. McNight,{}ii) will further illus- trate the rule.(lO) III. In cases of misdemeanpr. In misdemeanors, the court has the acknowledged right to grant new trials on the merits, as well as for. irregularities; but it is held, as a principle of almost universal application, that a verdict for the defendant will not be disturbed. Thus, In cases of libel, as in The King v. Bear.{\V) Upon an indict- ment for a libel, the defendant was, by verdict, acquitted. Mr. Attorney-General moved for a new trial, but it was denied ; and the court said, that anciently it was never done in criminal cases (1) 3 Dallas, 5] 5 ; Supra, p. 504. (2) 8 ■Wendell, 549 ; Supra, p. 506. (3) 2 Oaines' Caa. Error, 319. (4) 1 Chit. Cr. Law, 654-658. (5) I Bay, 372. (6) 1 Nott & M'Oord, 346. . (t) 9 Wheaton, 579. (8)' 1 Hawks, 463. (9) 1 Tenn. Rep. 334. (10) Et vide 1 S. C. Con. Rep. 29 ; 1 Nott & M'Cord. 441. (11) 2 Salk. 646. 515 NEW TEIALS. [Chap. XIV. In cases of misdemeanor. where defendants have been acquitted. Latterly, where it has been a verdict- obtained by fraud or practice, as stealing away witnesses, &c., it has been done ; but never yet was done merely upon the reason that the verdict was against evidence. Nor in a case of riot, as in The King v. Davis and others.{l) Information for an assault and riot, and a verdict for the [*51'6] defendants. Tremain, sergeant, moved for a *new trial, upon affidavits of the fact, and that the judge's direc- tions were to find the assault. Shower opposed, because in a criminal proceeding, and no corruption or practice showed. And a new trial was denied, for that the court said there could be no precedent shown for it in case of acquittal. Nor conspiracy, as in The People v. Mather.{2) The defendant was indicted as a conspirator, in the abduction of William Mor- gan. Several questions arose upon the evidence, in the progress of the trial, to the judge's decisions; upon which, abd also to the charge of the juflge, •the public prosecutor took exceptions. The defendant was acquitted. After disposing of the several points urged by the counsel for the people, Marcy, J., who de- livered the opinion of the court, concludes: — "The right of a court to grant a new trial, in case the defendant has been ac- quitted, is called in question by 'the defendant. That such right does not exist, where the ground of the application is that the finding is against evidence, is conceded; but, whether a new trial can be granted; where the acquittal has resulted from the error of the judge in stating the law to the jury, seems to be involved in much doubt. It is a very important question, and not necessary to be now settled; the court have, therefore, deemed it discreet to forbear expressing an opinion on it, till a case shall arise requiring them to do so." Motion for a new trial denied. Although the learned judge, in this case, pronounced the point (1) 1 Shower, 336; 12 Mod. 9. (2) 4 Wendell, 229. Chap. XIV.] IN HAED ACTIONS. 516 In cases of misdemeanor. doubtful, but avoided a decision, it may be deemed proper to remark, that the courts have uniformly inclined against the exer- cise of the power in felonies ; and that to this class of cases, both in England and this country, we look in vain for a precedenl In the class of misdemeanors, quo warranto and fithe cases form an exception in *England, even where the [*517] verdicts are against evidence.(l) The other exceptions will be noticed hereafter. Nor in pases of perjury. Eex v. Bear.{2) " In indictments of perjury," say the court, "we never do it because the verdict is against evidence ; but if you prove a trick, as no notice, &c., it is otherwise," And in Bex v. Reid.{Z) Indictment for perjury, and the de- fendant acquitted ; and a motion was made for a new trial, on behalf of the king, because several witnesses were absent. Wyndham, J., held this grantable, not being touching life, to which it was answered, that new trials may'be, in criminal cases, at the prayer of the defendant, where' he is convicted, not at the suit of the king where the defendant is acquitted, any more than in criminal cases which are capital ; and where two cases were cited ex parte regis, Twisden said, this was, in the late troublesome times, et ex assentsu- partis. And Bex v. Bowden,{i) an information for perjury, and the defendant acquitted ; and motion for a new trial, upon afiBdavit that one of the witnesses was absent by reason of sickness. Per Curiam. — " A party being acquitted may not be tried again, but, after conviction, a new trial may be had for the defendant, upon good cause. And in Bex v. Fenwicke & H6It.{5) Information for perjury,. (1) Vide infra. (2) 2 Salk, 646; Supra, p. 515. (3) Levinz, 9. (4) Ibid. (5) Ibid. ' 517 NEW TKIALS. [Chap. XIV. In oases of misdemeanor. and defendant acquitted. Motion for a new trial, upon affidavit that some of the witnesses were kept away by the practice of the defendant. Wyndham, J., held this grantable, being only in a criminal case, not capital. Keelinge said, no precedent could be shown of a new trial in a criminal case, any more than in a capi- tal one, for the defendant's character shall not be drawn in ques- tion several times for the same thing, any more than his life." [*518] *So, in &ed v. Dawson.{l) Information for perjury, found for the king, it was moved on several a^idavits to have a new trial ; and it was doubted by the court, that although cause appeared to them for granting a new trial, if they had power to do this without the consent of the king's counsel, and it seemed to them that they had not ; but they agreed that in debt by an informer, the court might grant a new trial upon cause, without the consent of counsel, because there the party hath an interest. And in The King v. Pnce.(2) The defendant had been tried and acquitted upon an indictment for perjury, and the prosecu- tor, in person, now moved for a new trial, on the ground that the lord chief justice had refused to allow him to 'address the jury, and state the case for the prosecution. Per Curiam. — "In a criminal prosecution, instituted for the interests of the public in the name of the king, and not to gratify the objects of an in dividual, a prosecutor has no right to address the jury. Counsel indeed, who are in some measure under the control of the court, have this privilege allowed to them ; because, from their profes sional education and habits of business, it is to be expected that they will not state to the jury anything but what is fit for them to hear. Besides, the prosecutor may be, and generally is a wit- ness ; and it is very unfit that he should be permitted to state, not upon oath, facts to the jury which he is afterwards to state to them on his oath ; and Bayley, J., added, that he remembered a case where Lord Ellenborough had allowed the prosecutpr to (1) 1 Siderfln,. 49. (2) 2 Barn. & Aid. 606. Chap. XIV.] IN HAED ACTIONS. 518 Iti cases of misdemeanor. address the jary, and afterwards, on being spoken to on the sub- ject by the other judges, expressed his conviction that he had done wrong." New trial refused. The exceptions are, first, in the case of an insuflBcient verdict; as in *The People Y.Olcott.{l) Conspiracy. Verdict, " that [*519] there was an agreement between Eoe and the prisoner to obtain money from the bank of New York, but with intent to return it again." No other verdict could be had ; whereupon the court, without the consent of the prisoner, ordered a juror to withdraw ; and the rest being called, and only eleven answering, they were discharged. The counsel for the prisoner contended that he ought to be discharged ; and relied chiefly upon the alle- gation that the verdict was sufficient. Kent, J., on this point.— " This finding was so imperfect that, had it been received, the court could not have given judgment upon it, and would have been obliged to award a venire de novo. The jury ought to have found either a special verdict, stating the facts at large, and leaving the law to the court, or, by a general verdict, they ought to have affirmed or negatived the charge of a fraudulent intent. I am satisfied that this was no verdict of acquittal. If it had any operation, it would be against the defendant ; for, in answer to the indictment, the jury have found the fact that the defendant and Roe did agree together to obtain money from the bank, and they have not negatived the fraudulent intent. We are of opinion, therefore, on all the points, that the defendant ought not to be discharged." So where the verdict is clearly against evidence, and the judge dissatisfied. The People v. Townsend.{2) The defendant was convicted of perjury. Before judgment he absconded, and afterwards volun- tarily surrendered himself, but no judgment was pronounced. (1) 2 Johns. Cas. 301. (2) 1 Johns. Cas. 104. 519 NEW TEIALS. [Chap. XIV. In cases of misdemeanor. The judge, before whom the prisoner was tried, reported to this court that the verdict was given against evidence. .Per Curiam. " There must be a new trial ; and the judge who is to [*520] preside at the next *Oyer and Terminer, will communi- cate this opinion to the justices of that court. In the meantime, the prisoner must give bail for his appearance." So where the words stated in the indictment were not material, and such as would sustain a charge of perjury, the judgment was arrested. In The Stale v. Hayward,{l) speaking of the affidavit on which the perjury was charged, the court said the material- ity was not averred in the indictment, and therefore it was neces- sary to inquire whether it appeared otherwise from the face of the indictment. But it appeared from the indictment, that the affidavit was made to charge a felony on the defendant, acts which, unless they be referred to some act of guilt, were in themselves perfectly inilocent, and the indictment did not make any such reference. The words, therefore, did not appear, on the face of the indictment, to be material, either by averment, or by the context of the indictment, or by their own import. The motion in arrest of judgment was granted on that ground. And in Bex v. Simmons.{2) A new trial was granted for the defendant, in a criminal case, upon the report of the judge and affidavits of the jury, that the verdict was taken contrary to their meaning, and to the judge's direction in point of law. Denison, J., observed : — " The court will be very cautious how they grant new trials upon the affidavits of jurymen, because it would be of very dangerous tendency ; but in this particular case, which partly depends upon my brother's report, and partly upon the affidavits of all the jurymen, I am very well satisfied there ought to be a new trial, because it appears, both by the report and affi- ^ davits, that this verdict ought not to stand, and that the [*521] jury were mistaken in giving a verdict contrary to *the direction of the judge ; and that is what I principally go (1) 1 Nott & M'Cord, hil; Supra, p. 340. (2) 1 Wils. 329'; Svjora, p. 116. Chap. XIV.] IN HAED ACTIONS. 521 In oases of misdemeanor. upon, that it is a verdict contrary to the direction of the judge in a point of law. One of the jury said, " the defendant had no intent ;" then the judge said, " you must acquit him ;" some of the jury swear they did not hear, others that they did not under- stand the judge." In like manner where the defendant has been deprived of a fair opportunity of defending himself. As in The People v. Vermilyea and others,{l) where the defend- ants had been precipitately hurrried on to trial, and convicted of a conspiracy, and a postponement refused until they could pro- cure the attendance of material witnesses, although they showed due diligence, the court granted a new trial. The counsel for the defendants had been asked to state what their witness would prove, and upon the district att^ney's offering to enter into a stipulation to admit the witness would make the state- ment as alleged, if present and sworn, but not the truth of the statement, the court below had insisted upon the defendant's ac- ceptance of the stipulation, and upon their refusal had put them on their trial. In disposing of the question, Savage, Ch. J., de- livered the opinion. — " The practice of requiring concessions in such cases is novel, and I apprehend not well calculated to ad- vance justice. But, if it be encouraged, it seems to me that the prosecutor should admit all that the defendant can possibly ob- tain by the witness, which is the truth of the facts proposed to be proved. Such seems to have been the opinion of this court in Brill v. Lorcl.{2) Though this is comparing small things with great, still the principle is the same. The defendant before the justice by his oath was entitled to an adjournment. So were these defendants. The right of the defendant before the justice arose under the statute, and the right of these defend- ants, *by virtue of the common law. Both Taws are of [*522] equal obligation. When the defendants here and before the justice, had, by their affidavits, brought themselves within (1) T Cowen, 369. (2) 14 Johns. Rep. 341. 522 NEW TRIALS. [Chap. XIV. In cases of misdemeanor. the provisions of the law, there was no more discretion in the one case than in the other. The discretion of both was a legal discretion ; the very same discretion which we are now called upon to exercise in deciding the present motion. Under these views of the rights of the parties, and the power and discretion of the court, I feel bound to say that an error was committed in compelling the defendants to accept of the offered stipulation ; and of course, that a new trial must be granted. "(1) And if the defendant have resorted to trick or fraud to procure his acquittal, the verdict will be set aside. In opposition to this, it has been said, that if the acquittal in an indictment have been procured by a trick or fraud of the defendant, he may be pun- ished for the trick or fraud, but that the court cannot grant a new trial.(2) 9 But in Bear's case,(3) cited above from Salkeld, it was stated that if trick could be shown, it would avoid the verdict, in a case of perjury. And in a case in Sayer, Rex v. Furzer,{^) a new trial was granted, the cause having been brought on by surprise. And in The Queen v. Colte,{S) the acquittal being by surprise upon the prosecutor, for want of notice, it being brought on by the defendant, it was in Michaelmas term, in the third year of Queen Anne, on an indictment for keeping a common bawdy house, a new trial was granted. (6) And, in The Queen v. Sir Jacob Banks,{7) who was in- [*523] dieted at the quarter sessions for an assault upon *Mr. Culpepper, which was removed hither by the prosecu- tor, by certiorari; the prosecutor not carrying it down next as- sizes, the defendant carried it down and tried it, and was found (1) Vide 1 Chit. Or. Law, 490; Gra. Prao. 246-248 ; 2 Arch. Prao. 210. (2) 6 Bao. Abr. 675, (3) 2 Salk. 646. (4) Sayer, 90. (5) 12 Mod. 9. (6) Vide 1 Shower, 336. 1 Levinz, 124. (7) 11 Mod. 33. Chap. XIV.] IN HAED ACTIONS. 523 Where the verdict is for the defendant. not guilty. It was moved to set aside the trial, there not having been any laches in the prosecutor. Holt, Chief Justice, said it was his opinion, that where a prosecutor removes an indictment, it is very hard the defendant should, nolens volens,' OBLrry it down the next assizes and try it, when, perhi^ps, the prosecutor cannot be ready with his evidences. Suppose it was for treason or fel- ony, this would put the queen in a worse case than any subject. Powell, Powys and Oould, Justices, agreed to what Holt, Chief Justice, said ; and that none of the precedents quoted by the solicitor-general, who was counsel for the defendant, were above five years standing, and those passed suh-silentio. So all were of opinion that a new trial ought to be granted.(l) IV. Where the verdict is for the defendant. In hard actions, a new trial will not be granted, especially if ithe verdict be for the defendant, although against evidence.(2) Nor unless some rule of law be violated. Not in actions ex de- licto. • Smith V. Frampton.{S) Case for negligently keeping the de- fendant's fire, by which plaintiffs house was burnt ; and, after verdict for the defendant, plaintiff moved for a new trial, upon a suggestion that the verdict was against evidence ; and he ar- gued, that though it was a severe action, yet all actions were grounded upon reason. The court, after having considered this case several days, resolved, that this being a case of hardship, and the jurors being judges of the fact, no new trial should be granted ; though Holt, Chief Justice, before [*524:] whom it was tried, was dissatisfied with the verdict."(4) So if fraud is imputable to the plaintiff. De Wutz v. Hen- dricks.ip) The plaintiff had proposed to raise a loan for the (1) Vide 2 M. Eaym. 1082 ; 2 Leonard, 110 ; 2 Salk. B52 ; 3 Burr. 14:62. (2) 2 Tidd, 916; Gra. Prao. 613. (3) 1 Ld. Raym. 62. (4} Etvide 2 Salk. 614, 648, 653; 6 Term. Bep.^20; 3 Ta]int. 1. (6) 2 Bingham, 314. Vol. L 33 524 NEW TRIALS. [Chap. XIV. Where the verdict is lor the defendant. Greeks, in arms against the government of the Porte. For this purpose he lodged with the defendant, a stockbroker, an instru- ment which was alleged to he a power of attorney, signed abroad by the Exarch of Bavenna, but which turned out to have been fabricated in London ; and the defendant, at his' request, pro- cured to be engraved certain script receipts,, bearing a stamp. Suspicions having arisen as to the aecuracy of the plaintiff's rep- resentations, the project for a loan failed. The plaintiff sued in trover for the papers, and the jury found a verdict for the defend- ant. The plaintiff moved for a new trial, on the ground that, even if a fraud were contemplated, it did not deprive him of his own papers. Best, Ch. J., who tried the case. — " It appeared that placards had been stuck up in the city, stating that the plaintiff was not authorized by the Greek government to raise any money, and that he had been informed that on account of what was stated in these placards, no money could be raised for him. The power of attorney, which, it was pretended, was sent from Greece, was proved to have been manufactured in this coun- try, but by whom it was executed did not appear. I told the jury that, with respect to the power of attorney, there was no evidence that any instrument of that description had ever come to the hands of the defendant;, for, by power of attorney in the declaration, must be understood an instrument duly exe- cuted as a power of attorney. I further said, that if the plain- tiff' was attempting a fraud on the public, by raising [*525] money, on the false pretence of pledging the *Greek government for its repayment, and, in furtherance of that attempt, delivered these papers to the defendant, he could main- tain no action to recover them back. The jury, to my entire satisfaction, found for the defendant." The motion was denied. So, if a fraudulent defence, and verdict for plaintiff, as in Cul- ver V. Avery.{\) Action on the case for false and fraudulent representaiiuns, made by the defendant to the plaintiff in a sale of lands, as to incumbrances. The j,ury gave a verdict for the (1) 7 Wendell, 380i Chap. XIV.] IN HAED ACTIONS. 525 Where the verdict is for the defendant. plaintiff, which the defendant moved to set aside. Sutherland, J. — *' The finding of the jury disposes of the question of fraud. They have pronounced the defendant guilty of the false and fraudulent representations alleged in the declaration, and that they were made with thie fraudulent intent to deceive and injure the plaintiff. A verdict must be most clearly and manifestly against evidence to justify the court, in an action like this, in setting it aside. This is not a case of that description. What- ever may be the opinion of the court upon the strict weight of evidence, as it appears on the case, the jury, whose province it was to weigh and pass upon it, and who saw and heard the wit- nesses, have thought the preponderance against the defendant. I should have been inclined to a different conclusion ; but the jury not only had the right, but ^ere more competent, fairly and discreetly, to decide the question than we are. Their decision cannot be disturbed."(l) Nor in actions for crim. con., fraud, malicious prosecution, slan- der, seduction, nor trespass, as has been already shown, except there be some rule of law violated.(2) Nor, although there may have been a departure from strict law, if the verdict be for the de- fendant.(3) * A very late case in the Supreme Court will furnish the [*526] only additional example illustrative of the general rule, although applicabletooneof the classes of hard actions only. Hun- dell V. Butler.{4:) Action for a libel, consisting of some doggerel rhymes, which the plaintiff alleged the defendant had caused to be composed and published, with intent to cause it to be believed, that the plaintiff' had been guilty of proposing to his brother Hardy, to unite with him to murder their brother Jehu, who had been murdered accordingly. The defendant pleaded the general issue. After proof of publication,, the defendant offered to prove, (1) Vide onfe, 288-301. (2) Vide supra, Verdicts against Law, 326-334; against evidence,. SllSli;. and for excessive damages, 410-437.. (3) Vide supra, 353. (4) 10 Wendell, 119. * 526 NEW TRIALS. [Chap. XLV. Where tlie verdict is for the defendant. in mitigation of damages, that it was the general report, that the facts contained in the verses declared on, were as therein stated. The plaintiff's counsel consented that such evidence should be given. The jury found a verdict for the defendant, which the plaintiff now moved to set aside, on the grounds that it was against the weight of evidence, and that the judge admitted im- proper, and rejected proper testimony. By the court. Savage, C. J. — " The publication of the libel was proved, and I am in- clined to think the verdict was against the weight of evidence ; but I do not deem it necessary to analyse the testimony, as it is not of course that a new trial should be granted in this case, although the verdict be against the weight of testimony. In Jarvis v. Hatheway,{l) it was held by this court, that in penal actions, and actions for libel and defamation, a new trial will not be granted to the plaintiff, unless some rule of law has been vio- lated in the admission or rejection of testimony, or in expound- ing the law to the jury." The learned judge having noticed the introduction of proof of a general report, that the facts were as contained in the libel, and the acquiescence of the plaintiff's counsel, proceeds: — " Assuming, therefore, whatwascon- [*527] ceded by the *plaintiff's counsel, that reports were ad- missible, charging the plaintiff with the crime imputed in the libel, the evidence offered was proper. If a defence of this kind was admissible in mitigation, any reports of the same character were proper, and would mitigate in proportion as they approached a justification. The reports proved, and the facts stated by the witnesses, would not sustain a charge of murder, but they were such as would only have warranted a verdict for nominal damages. There was no error of the judge, therefore, in the admission of testimony, under the law of the case, as agreed by the parties. The cause was fairly submitted to the jury, and the only error they committed, was returning a verdict for the defendant, instead of finding a verdict for the plaintiff, with nominal damages. A new trial ought not to be granted, under such circumstances. "(2) (1) 3 Johns. Rep. 180. ;(2) Fitfe supj-O) 34t-350, and 401-404. Chap. XYV.] IN HARD ACTIONS. 527 Where there is no palpable Tiolation of the law. In all cases of this kind, the hardship of the defendant on the one hand, and the almost boundless latitude given to the jury on the other, unite in controlling and retaining the verdict, whether mitigating the damages, or directing an entire acquittal, against the strict right of the case. The rigid application of the rule must, in some instances, work injustice to the plaintiff, but they are of minor consideration, compared with the flood of evils that must deluge the practice, were the courts to adopt a difi'erent course. This, however, ought, injustice, to be confined to cases where the defendant puts himself upon the general issue. There the verdict, while it acquits the defendant, throws no odium upon the plaintiff; and although he may have suffered in his feelings and his hopes, yet he has lost nothing in point of character. But it is entirely different where the defendant puts himself upon his justification. In that case the hardship changes sides, and an unrighteous verdict not *on]y defeats the just [*528] expectations of the plaintiff, but fastens upon him a last- ing injury. Here the equity of the rule is with the plaintiff, and all the reasoning urged on behalf of a defendant, under other circumstances, is strictly applicable to him. And yet the dis- tinction, though manifest, does not appear to have found its way into the practice, so strongly marked as to give the benefit of the rule, with all the weight of a well settled principle, to the plain- tiff. The defendant, by a train of decisions and a long course of practice, stands out in bold relief; while the plaintiff is wholly overlooked. He must be contented, therefore, in the present state of the practice, to put himself upon the general undefined discretion of the court, and to encounter the prejudice of a rule amplified by construction into a shield for the protection of the defendant, by far too broad for a due administration of justice. V, Where there is nopalpahh violaiion of the law. In penal actions, unless there be some palpable violation of law, the verdict will not be set aside, if for the defendant. Thus, 528 NEW TRIALS. [Chap. XIY. Where there is no palpable violation of the law. In Seymour v. Day.(l) The action was for the penalty in killing a hare, not being qualified ; and the jury found for the defendant, contrary to the direction of the judge. But the court refused a new trial, saying it never had been carried so far as a penal action. Philips, qui tarn v. ScuUard.{2) An action brought for £50 penalty, for selling half a pint of cherry brandy. The fact was proved, upon the trial, to be done by defendant's wife ; but several circumstances appeared to show that she was unwarily drawn in by false pretence. Lord Chief Justice JEyre, who tried the cause, directed the jury to find for the plaintiff, but they found for defendant, contrary to evidence. Belfitld [*529] moved for a new trial, and a *rule nisicausa was granted, but was afterwards discharged upon showing cause, the action being hard, and the case having been represented to the commissioners of excise, who refused to direct a prosecution. So, in Jervois, qui tarn v. HaU,{3) upon the game act, for kill- ing a hare. Verdict for defendant, and motion for a new trial, because the judge who tried the cause, refused to admit a person to be a witness, who was a parishioner of the same parish where the hare was killed. But Lee, Ch. J., said he did not remember that ever a new trial had been granted in the case of a penal action, and so, per Curiam, the motion was- refused. So, in Matlison, qui tamy. AUanson,{4:) an action brought upon the statute against horse- racing, for the penalty, and verdict for defendant contrary to evidence; and the court denied a new trial, there being no proof of any misbehavior in the defendant or tampering with the jury. It was said this was within the reason of cases in the Exchequer, where verdicts for defendants are never set aside for penalties in the case of duties, and this is excepted out of the Statute of Jeofails, as much as indictments. (1) 2 Str. 899. (2) Barnes, 436. (3) 1 Wils. 17. (4) 2 Str. 1238. Chap. XIV.] IN HARD ACTIONS.- 529 Where there is no palpable violation of the law. And in Filch, qui tarn v. Nunn.{].) This was an action brought on one of the penal statutes, made to preserve the game, wherein the defendant obtained a verdict. Plaintiff moved for a new trial, and the judge, before whom the cause was tried, reported the v«rdict to be contrarj' to evidence. Notwithstand- ing which, the rule to show cause why a new trial should not be hS,d, on payment of costs, was discharged ; because no instance could be shown where; in an action on a penal statute, in which a verdict was found for defendant, a new trial bad ever been granted. So, also, in Eobinson, qui tarn v, Lequesne.(2) Upon an*information of seizure of Jesuit's bark, on thestatute [*530] for fraudulent exportation of Jesuit's bark, two casks out of six being dust. There was a verdict for the defendant, and now a motion was made for a new trial. But, per Mam Curiam, it was denied ; however, it seemed to be admitted in a case of this nature, a new trial might be granted, if the fact would have admitted of it, and the counsel for the plaintiff were prepared with precedents, if they had been called for, to that purpose.(3) In Fonereau v. Benneti,{4) an action upon the statute against bribery, there was a verdict for the defendant. Forster moved for a new trial, as being against evidence. But, per totnm Cu- riam. — " We never grant new trials in actions on penal laws, and it has been so held for more than fifty years past."(5) So, in Ranston v. Mtericlge,{&) where the verdict was for the defendant, in an action against a postmaster, for penalties. Raine moved to set aside the verdict, and have a new trial. He ad- mitted the general rule, that where the defendant has obtained a (1) Barnes, 466. (2) Bunbury, 253. (3) Vule supra, 334. (4) 3 Wils. 59. (6) Etvide 10 East, 268. (6) 2 CUitty's Bep. 273. 530 NEW TEIALS. [CHAi-. XIY. Rule where the case is in its nature penal. verdict in a penal action, a new trial will not be granted; but this case was attended with particular circumstances. The con- duct of the jury may be more outrageous and mischievous than the judge's misdirection; and it is not laid down generally and exclusively, that a new trial will be granted in no case, except for a misdirection. The court had never said that a new trial should not be granted for such an error as that of which the juty had been guilty. He was about to enter upon the facts, but Abbott, Ch. J., said that there was a preliminary objection, which should be disposed of first. He referred to Brook v. [*581] MiddIeton,{V) and observed that the doctrine *held in that case had not been adopted without consideration. Without saying that the hands of the court are in all cases tied down, his lordship added, that the court will not interfere, with- out express proof of misconduct in the jury. In Comfort v. Thompson,{2) the rule was recognized in an ac- tion for a penalty before a justice. It was held, that where a verdict is found, and judgment given for the defendant, the court will not reverse the judgment, because 'the verdict was clearly against evidence, there being no irregularity alleged. So in Steel, qui tarn v. Iioach.{3) Information filed on the revenue laws, and verdict for the defendants. A motion was afterwards made for a new trial ; but the court, after full argu- ment, discharged the rule, upon the ground of this being a qui tarn or penal action, in which the court will seldom grant a new trial, as this ^^kind of penal actions was considered hard and rigorous. VI. Ruh where the case is in its nature penal. 5. The same rule extends to cases in their nature penal, whe- ther the forms of proceedings be by action or indictment, as in the case of not repairing a highway. (1) 1 Campb. 450. (2) 10 Johns. Bop. 101; Supra, p. 391. (3J 1 Bay, 63. Chap. XIV.] IN HAED ACTIONS. 531 Rule where the case is in its nature penal. Bex V. Parish of Siloerion.{l) Indictment for not repairing the highway, and a verdict for the parish. It was now moved for a new trial, for misdirectio'b, or overruling evidence at the trial, by reason whereof the parish were unduly acquitted. Per Gu- nam. — " This is a criminal case ; and new trials are never al- lowed, where the defendant is acquitted, in a criminal case. So, also, it is in qui tarns, and informations in nature of quo war- rantos." t So in Eex v. Udwards.{2) A motion in a criminal case was put off, till the validity of a rate should be tried *in a feigned issue, " whether it was an equal or partial [*532] one." A verdict having passed for the defendant upon the issue. Dunning moved for a new trial, the verdict having been given contrary to evidence. But the court were clear against granting the motion, because it was within the same rea- son as if it had been in a criminal prosecution ; for, as this issue was directed in order to know whether this was an illegal and partial rate; if it had been found to be partial, the consequence •would have been either an attachment or an information. It was just the same thing as if it had been a verdict found for the defendant, upon an information ; and if it had been upon an in- formation, the court would not have set aside the verdict, and granted a new trial, although the acquittal had been contrary to the weight of the evidence. So, a new trial was refused in The King v. Reynell.{B) This was an indictment for the non-repair of the fences of a church- yard, which it was alleged that the viCar bad been immemori- ally bound to repair, by means of which, swine and other cattle broke in and rooted up the tombstones, and dirtied the porch of the church and the paths leading to it, to the nuisance of the in- habitants of the parish. At the trial, there was a verdict for the defendant, which Marryat moved to set aside, and to have a • (1) 1 "Wils. 298. (2) 4 Burr. 225'?. <3) 6 East, 315. 632 NEW TRIALS. [Chap. XIV. Rule where the oaae is in its nature penal. new trial, upon the ground that the verdict was against all the evidence. He admitted, however, that he had not been able to find any precedent, where the courj; had granted a new trial in case of a misdemeanor, where the verdict was for the defendant ; but he contended, that this was, in effect, only a trial of a civil right, namely, the liability to repair, though in the form of an indictment, there being no other mode of trying the right in a case of this sort. But, per Lord Mlenborough, Ch. J. — [*533] " It is very clear that you may indict the *defendant again, if the fences have continued out of repair since the last indictment; and that is much better than for us, in a case of such minor consequence, to make a precedent of so much importance, which may affect other cases of misdemeanors." And, in Rex v. J!/a«n,(l) a new trial was refused, after verdict for defendant, upon not guilty to an indictment for a nuisance to a highway. 'If And per Lord Elknborough, Ch. J. — " Unless you can point out some distinction between the case of nuisance and other criminal cases, the general rule is, that we do not grant a new trial upon an indictment for a misdemeanor, where a ver- dict has passed for the defendant upon the merits. This is, to be sure, in the nature of a remedy for a civil right; yet it is, in form, a criminal proceeding, and may subject the defendant to be punished criminally." And his lordship referred to Bex v. Iieynell.{2) In cases of quo warranto, it was at one time doubted whether the court could interfere ; and in The King v. Bennett,{3) argued before all the judges of England, they stood equally divided on that question. The case of Bex v. Bell{4:) went off upon another point. It ■iras an information, in nature of a quo warranto, brought against the defendant, to show by what authority he claimed to be a (1) 4 Maule & Sel. 331. « (2) 6 East, 315. (3) 1 Str. 101. (4) 2 Str. 995. Chap. XIV.] IN HAED ACTIONS. 533 Where the conviction is against law. copimon councilman of Marlborough ; and there was a verdict for the defendant. The prosecutor moved for a new trial, as be- ing a verdict against evidence, and referred to the report of the judge, and insisted he was not too late, there being no judgment yet signed. But the court would not suffer the merits of the motion to be gone into, on account of the length of time since the verdict, it *bbing possible that many men's [*534] rights might depend on the validity of this man's vote, which the corporation was bound to admit, after a verdict es- tablishing his right ; and it would be much less mischief to let this verdict stand, supposing it to be wrong, than introduce a general inconvenience. But in Hex v. JPrancis,{l) a verdict having been found for the defendant, in a quo warranto information, to show by what au- thority he claimed the ofi&ce of alderman of Cambridge, a new trial was moved for, on the ground that the verdict had been given against the weight of evidence. The court granted a new trial, saying that of late years a quo warranto information had been considered merely in the nature of a civil proceeding, and that there was several instances since the case in Strange, in which a new trial had been granted.(2) Another exception to the rule in England, is illustrated in Lord Selsea v. Powell,{3) being an action of debt on the statute, for not setting out tithes, on the ground that, although prosecu- ted as a penal action, it is founded on an act intended to be remedial. VII. Where the conviction is against law. But in penal, and even criminal actions, if the conviction be against law, or the direction of the judge being conformable to law, a new trial will be granted.(4) Thus, (1) 2 Term. Kep. 484. (2) m vide 1 Term. Rep. 6t5. (3) 6 Taunt. 297. (4) Vide supra, 334. 534 NEW TEIALS. [Chap. XIY. Where the conviction is against law. In Wilson v. Bastall.{\.) An action on the bribery act, and verdict for defendant. Upon an application for a new trial, it was at first doubted by the court whether there was any instance of a new trial iaving been granted on a penal action, [*535] where the defendant had a verdict. But after a *very full examination of the question, aided by an elaborate argument, the court made the rule absolute. In delivering his opinion, BuUer, J., takes occasion to remark upon the case of Jervois v. JB'all.{2) " Then as to the other ground, I know of no case except that of Jervois v. Hall, in which the court has ever refused to grant a new trial, which was moved for on account of the misdirection or mistake of the judge. And the note of that case in 1 Wilson, is much too loose to be relied on. It is not stated whether or not the court even granted a rule to show cause ; at all events, the question was not agitated, whether the witness who was rejected at the trial, might or might not be ex- amined. I think that the witness there was properly rejected, because he was interested. But if the court proceeded on the ground that the witness was a competent witness, and yet re- fused to grant a new trial, I think the case itself is not law."(3) And, held in Gahraft v. Oibhs,{4:) cited above, that a new trial may be granted after verdict for defendant in a penal action, if the jury have been misdirected in point of law. The question arose, whether in this form of action, title could be tried, and the jury having found against the law, the court directed a new trial. Per Grose, J. — "All that the courts have hitherto said upon this subject is, that if there be a fair colorable title in the party, they will not suffer it to be tried in this form of action. But were we to go further, and declare that, because a defendant acted bona fide, it was a suiBcient excuse in this action, it would oper- ate almost as a total repeal of the statutes inflicting these pen- (1) 4 Term Rep. 153 ; Swpra, 263, 396. (2) 1 WilB. n. (3) Vide 2 Barn. & Aid. 606 ; IT Mass. Rep. 514. (4) 6 Term Rep. 19 ; Supra, p. 266. Chap. XIT.] IN HAED ACTIONS. 536 Where the eoaviction is against law. alties. Therefore, whether the defendant acted *bona [*536] fide or not, if he had no color of title, it could never be a proper consideration to be left to the jury; and the verdict which proceeded on such misdirection, in point of law, must in consequence be set aside.(l) (1) Et vide 8 Price, 301 ; 2 Bay, 466 ; 1 Camp. i50,etm ncMf. *537 NEW TRIALS. [Chap. XV. General remarks. *CHAPTEE XV. AFTER TWO TRIALS AND TRIALS AT BAR. I, General remarks. II. Modern practice. III. Where the issue is solely of fact. IV. The court will endeavor to do what is just. V. The court eccercises an unlimited discretion. I. General remarks. The same principles of justice whicli require there shall be a second trial, will sometimes render it necessary to have a third, or more. Whatever opinion may have been formerly held on this subject, it is now well settled that the power and discretion of the courts extend to all instances of unjust verdicts, whether they are rendered for the first, second or third time, or oftener,. in the same cause. This power courts are inclined to exercise with great caution, for, if used too freely, it would virtually supersede the trial by jury, the only diflSculty to be encountered in applications of this kind. The granting or refusing the mo- tion, when there has been more than one verdict, is so entirely a matter of discretion, that nothing deserving the name of general rules can be adduced. The only principle of universal application is, that new trials will be granted, without reference to their number, so long as substantial justice may demand it, or rather so long as it may be necessary to defeat manifest injustice. Should unprincipled jurors, therefore, find palpably in the face of evidence, or in defiance of the law, the court has the power, and will exercise it, to control and avoid their perverse verdicts, until a result shall have been produced, conformable to justice and right reason ; a power which no lover of justice would wish to see crippled or narrowed, and without which, verdicts, in numberless instances, in civil actions at least, would most sig- Chap. XV.] AFTER TWO YERDICTS. 538 Modern practice. Daily trample upon justice. But, although no rule can *be supplied adequate to every emergency, there are [*588] precedents even here, tending to regulate the discretion of the court, in most cases that are likely to happen. These may be adduced and illustrated, whether they apply to cases tried at bar, or cases tried more than once by jurors at Nisi Prius. II. Modem practice. It was formerly held, that after a trial at bar, a new trial would not be granted ; but the modern practice knows no distinction, in this particular, between trials at bar and at Nisi Prius. They will, in either case, be granted or refused a second time, for the same reasons.(l) Thus, in Oay v. Gross.{i) The plaintiff brought an action on the case for a false return to a mandamus, to swear him common councilman. By charter, the manner of their election was chalked out; and a usage was given in evidence, to a jury at the bar, that the election had gone quite contrary. The counsel, on both sides, consented to have it found specially, and to have it determined by the court, whether such a by-law, and a long usage pursuant to it, could alt-er the direction, or rather annihi- late the direction of the charter. The jury, having given their verdict in private over night, said that they had found the mat- ter specially ; and the next day, in court, delivered their verdict for the defendant generally, and would give no reason for it, nor be moved to depart from it. The court were very much dissa- tisfied with the jury ; di.nA Holt, Chief Justice, said he never had known the like, and that he would have but little value for the verdict of a jury that would not, at a judge's desire, declare the reason which had induced them. That as the judges publicly declare the reasons of their judgments, and thereby expose (1) 2 Jones, 226 ; Garth. 507. (2) 1 Mod. 37. 539 NEW TRIALS. [Chap. XV. Modern practice. themselves to the censures of all that be learned in the [*539] law, and yet *there is no law obliges them to it, but it is for public satisfaction; so the jury ought, for the same reason, to declare the reason of their verdict, when re- quired by the court. Yet, notwithstanding all this, it being a trial at bar, the court would not grant a new trial. ^' In Fenwick v. Lady Qrosvenor,{l) in ejectment. After a trial at bar, a new trial was moved for, on afiSdavits that several wit- nesses absented themselves in Holland, by reason of a report spread abroad there, that one of the defendants' witnesses was confined by imprisonment ; but it was denied, because it did not appear that the plaintiff did spread it, or occasion the spreading of it. The court was dissatisfied with the verdict, but cited Oross^ Case, for a false return of a mandamus, tried at bar ; and by consent of all sides, one point was to be found specially, yet the jury found a general verdict, and the court would not grant a new trial, saying, " It has never been done here, but upon is- sues out of Chancery, which, being only to satisfy the conscience of the Chancellor, are not &trici{jurisJ'{2) But, in Bright v. M/non,{B) Lord Mansfield observes :— " Of late years, new trials have been granted, not only after trials at Nisi Prius, but also after trials at bar. And it is at least equally reasonable to do it after trials at bar, as after trials at Nisi Prius, if the justice of the case demands it ; or, indeed, rather more so,, as the latter must be- done upon what could have actually and personally appeared to a single judge only, whereas the former is grounded upon what must have manifestly and fully appeared to the whole court." In Sir Christopher Musgrave v. Nevison.{'i) The corporation were all invited to a treat, when one of the aldermen de- (1) Vide lion, 103; 2Salk. 660; 7 Mod, 156.. (2) Etvide, Ibid. 10, 121; 1 Salk. 258; Holt, Z95. (3) 1 Burr. 390 ; ut swpra, 342. (4) 1 Str. 684; S. G., Ld. Eaym. 1368. Chap. XV.] AFTER TWO YERDICTS. 540 Kodern practice. sired *leave to resign ; upon which his resignation was [*540] taken, and the plaintiff at the same time chosen and sworn in. On a trial at bar, the jury found it a good elec- tion ; and the court granted a new trial, it being fraudulent, and it appearing one of the members was not there till after the elec- tion, and there was no summons to meet to do such a corporate act, that the members might come prepared. The meeting, like- wise, was not in the Moothall, but at a tavern, and it was a plain surprise. As to the point of its being a trial at bar, the court made no difficulty of that ; since the case of Bewdly, and an- other of Sir Joseph Tyley y. Boberts, in 0. B., where, on a trial at bar,, whether compos or non tipmpos, the jury found against the weight of the evidence, and there was a new trial. The court added, the case in Stiles,{l) which is the first new trial in print, was after ja trial at bar ; and in the case of an alderman of Der- by, who was afterwards ousted upon a quo warranto. Et per Baymond, Judge. — " My Lord Chief Justice Holt used to say, he was of opinion that the practice of granting new trials was much ancienter than the case in Stiles ; since we meet with challenges, that the party was sworn on the former trial, and, therefore, ought not to be a juror again." And new trial granted. (2) And in Chambers v. Iiobinson,{3) where in an action for a ma- licious prosecution of an indictment for perjury, it appeared the perjury was ill assigned, so that the now plaintiff could not have been convicted, and he was acquitted without examination of witnesses. The jury found for the plaintiff, £1,000 damages. The defendant had a new trial by reason of excessive damages, and the second jury found the same amount as the first. The defendant *again applied to the court for relief, and [*54:1] was answered that he could not have another trial, and the rule was discharged. (1) Wood v. Gwnston, Styles, 466. (2) Vide 2 Salk. 648 j King v. Foster T. Jones, 224. (3) 1 Str. 691 ; Supra, p. 414.. Vol. I. 34 541 NEW TRIALS. [Chap. XT. Where the issue is solely of Taot. So in Smith v. Parkhurst.{l) Upon a trial at bar in ejectment,, the parties agreed to a special verdict, as to a point of law arising upon a family settlement. But there being a question of fact in which they did not agree, that was left to the jury, who found it for the plaintiff, against the weight of the evidence. The de- fendant moved, for a new trial, and three objections were made : 1. That it was after a trial at bar ; 2. That it was in the case of a special verdict ; and 3. That it was in ejectment. These points were solemnly argued at the bar, and the court took time to consider of them. And as to the first, the court held, that in the case of a verdict against evidence, its being a trial at bar was no objection to a new trial, which .|^ad been granted in the case of Bewdly, and in the case of Sir Christopher Musgrave v. Neviu' son. And they made the rule absolute. With us, in the state of New York, where the judges of the Supreme Court sit only in bank, and other judges are appointed to hold sittings at Nisi Prius, such a distinction as that contained in the rule can hardly be said to exist. The court, however, is not therefore divested of the power. Although, by the practice, its judges have ceased to travel the circuit, they may, and some- times do, for special causes, order trials at bar. III. Where the issue is solely of fact. After two concurring verdicts, the court will not grant a new trial, if the question to be tried wholly depend upon matters of fact, and no rule of law violated, although the verdict be against the weight of evidenoe.(2) Thus, in an Anonymous Oase,{B) Eolt, Ch. J. — " When [*542] *a trial has been twice had on the same issue, and both verdicts agree, it would be unreasonable to grant a new trial." (1) 2 Str. 1106. (2) Supra, p. 380. (3) 11 Mod. 1. Chap. XV.] AFTEE TWO VEEDICTS. 542 Where the issue is solely of fact. So in Swinnerton v. Marquis of Stafford.^}.) Although the evidence was conflicting, new trial refused. A third trial was moved for by the plaintiff, on the ground that the verdict had been found a second lime for the defendant, against evidence. Mansfield, Ch. J. — " I think it is impossible in this case, to grant you a rule. Upon the last occasion, we went as far as we could go, because it was an important case, and decided the right to the inheritance of this land, which was to be assigned in lieu of common. On the former trial, Williams, sergeant, strongly in- sisted to the jury, on the grant of common, to the priority of Stone, whose property afterwards came to Lord Stafford, and we thought it might have prejudiced the minds of the jury, though it was rejected. If it had been evidence, it would have been de- cisive of the matter ; but we thought the cause not sufficiently understood, and sent it to a new trial. The jury, who are the competent judges, have again had the case before them, and have decided it. Even if, on nicely scrutinizing all the evi- dence, we had a doubt whether the verdict was right, it could be never right for us to make no weight of two verdicts of a jury, in order to take the chance of a third." So in Tahot v. The Commercial Insurance Company, and also the Marine Insurance Compani/.{2) There v/ere two causes, and the court had granted new trials in each, considering the verdicts as againsrevidence, as to the fact of seaworthiness. The causes having been again tried, verdicts were a second time found for the plaintiff. On the second trial, the only additional evidence on the part of the plaintiff, was, that the vessel, in going down Connecticut river, struck on a bar of sand, so as slightly to impede *her course. A motion was now made for [*543] another new trial. But, per Curiam.-^-" Here have been two trials in each of these causes, on the same question of fact. As four different juries have found that the vessel was seaworthy, and, on the last trial, some further evidence was ad- Ct) 3 Tannt. 2S2. 543 NEW TEIALS. [Chap. XY. Where the issue is solely offset. duced on the part of tbe plaintiff, we do not think it expedient to disturb the verdict. The rule must be denied."(l) And, in Fowler v. The Mtna Fire Insurance Company.(^) There had been three trials in this case, which was on a policy, arising out of the difficulty occasioned in affixing a meaning to a clause in tbe policy, the subject of insurance, " a two story frame house filled in with brick." The jury rendered a verdict for the plain- tiff in all the trials, which was chiefly relied on in a motion now made to set aside the third verdict, and grant a new trial. The court, by Sutherland, J. — " Two new trials have already been .granted in this case ; this is the third verdict which the plaintiffs have had in their favor. When the case first came before u^,(3) we held that the description in the policy, of the house whijh contained the goods insured, as a frame house filled in with brick, amounted to a warranty that it was a house answering that description, and that the plaintiffs could not recover, unless the proof strictly sustained the warranty. The evidence, upon the question whether the house was in fact filled in with brick, is not essentially different from what it was on the preceding trial. I still think the verdict on this point is against the weight of evidence, but, after two concurring verdicts, in a case where" there were many witnesses and a great deal of testimony on both sides, upon a mere question of fact, supposing there was no mis- direction, I should not think it a discreet»exercise [*544] *bf the power of this court, again to interfere with the finding of the jury." In Barrett v. Iiogers.(4) Case against the defendant as master of the brigantine Governor Sumner, for merchandise conveyed to the plaintiffs. At the first trial the jury were discharged, not agreeing. The case was committed afterwards to two juries, and verdicts for the defendant in both. The plaintiffs now moved (1) Vide 2 Johns. Rep. 124. (2) 1 Wendell, 270. Supra, p. 386. (3) Vide 6 Oowen, 673. (4) 7 Mass. Eep. 297. Chap. XV.] AFTER TWO VERDICTS. 544 Where the issue is solely of fact. : j; . for a new trial, for the misdirection of the judge, who had charged the jury that the bill of lading, signed by the defend- ant, was not conclusive evidence that the goods were in good order when received on board. Sedgwick, J. — "That the bill of lading is prima fade evidence, and of the highest nature, there can be no doubt : but that it cannot be conclusive in all cases, and among others, in such a case as the one before us, is equally clear. The ground of the result to which the jury came, may not be very intelligible; but, as two juries have concurred in it, we think, on that account, the verdict ought not to be disturbed ; and more especially, as no objection is made to it, as being against evidence." In Ckmson v. Daviclson,{l) in replevin, for a quantity of flour. There had been two trials, and verdicts in both for the plaintiff, against the inclination of the court. The defendants now moved for a new trial, on the ground that the verdict was against evi- dence. Two points were made to the jury ; whether the flour was actually delivered, and if delivered, whether the contract was afterwards rescinded, by consent of both parties. And, per Tilghman, Ch. J. — " The evidence of a delivery was so strong, that I cannot suppose the jury had any hesitation on that point. As to the rescinding of the contract, it appeared to me that the evidence inclined considerably in favor of the defendants, because Davidson refused to give an order for the *re- [*545] delivery of the flour, and declared that he would do no acts by which any one creditor could obtain a preference. But I cannot say that the conduct of Davidson was altogether coa- eistent, or that there was no evidence which went towards re- scinding the contract. The contract might have been rescinded without a written order for redelivery ; and, as this is the second verdict in favor of the plaintiffs, on a matter of fact, I do not think it proper to order a third trial. But it is not to be concluded that the court have not power to direct a third trial of matters of fact. There is no such rule. The court undoubt- « (1) 6 Binn. 892. 5i5 NEW TEIALS. [Chap. XV. Where the issue is solely of fact. edly possess the 'power, and cases may occur in which it may be necessary to exercise it. Two verdicts on the same point are entitled to great weight ; and unless they are attended with ex- traordinary circumstances, I have ever thought that they ought not to be disturbed. Where juries persist in violating the law, the case is different. We have several times granted a third trial, and there is no reason why we should stop there."(l) iAnd in Frost v. Brown.{2) Trespass to try title. There had been two verdicts for the plaintiff. The present was, therefore, a motion for a third trial, when all the grounds which had beeu taken on the first and second trials, were again urged by the counsel on both sides. On this motion, the only material differ- ence was, the last ground taken on the second trial, that the plaintiff had lost his right of entry, as he had not commenced his action within sixty years. This was a new ground, and the first time it had been taken in the judicial history of this coun- try. The court, by Waties, J. — "The doctrine of law, respect- ing new trials, has been so frequently considered, and the rules on the subject so fully settled and understood, that it appears to me nothing now remains in the discretion of the judges, [*546] *but to make an application of these rules to any par- ticular case that may come before them. After having exercised my judgment in this manner, I am of opinion that the defendant is not entitled to another trial." After a review of the testimony, the learned judge concludes: — " After all, if the objections to this verdict had much more weight with me than they have, yet I would not' disturb this last verdict, for another reason. A second trial has already been granted, and two special juries have concurred in finding the same facts. I think we have no authority to proceed any further. For, although I would never surrender a plain and certain rule of law to the caprice of a jury, or any number of juries, yet, in a case where the law is complicated with facts, so that the construction and (1) Vide Walker v. Smith, 4 Dallas, 389. ,» (2) 2 Bay, 133. Chap. XV.] AFTER TWO VERDICTS. 546 The court will endeavor to do what is just. application of it must depend on the finding of fact, two concur- rent verdicts, even against the opinion of the judges, ought to be conclusive. As the present case appears to me to be such a one, I think a third trial ought not to be granted."(l) So in Peay v. Briggs.{2) Assumpsit on a note of hand, given for the consideration of a tract of land. The defence was, a de- ficiency of land, for which the defendant claimed a deduction. There had been two trials, and verdicts in both for the plaintiff, making a partial deduction. The defendant moved for a third trial, on the ground that the jury ought to have made a further deduction. Nbtt, J., delivered the opinion of the court. After a brief notice of the facts of the case, favorable to the defendant, the learned judge concludes: — "There are, nevertheless, many reasons in this case, why the verdict should not be set aside. This is the second verdict, equally unfavorable to the claim of the defendant ; and it is not probable that he would be more successful, were the case to be sent back. *The [*54:7] witnesses differed very widely with regard to the value of the land, and, in all probability, the difference, in any event, would not be enough to pay for the trouble and expense of an- other trial. The plaintiff must always have a verdict for some- thing ; and after two concurrent verdicts, there must be manifest error or injustice to induce the court to grant .a second new trial." IV. The court will endeavor to do what is jvst. 1 After two verdicts, whether concurring or contradictory, a new trial will be refused, if the latter verdict appear, upon the whole, to answer the ends of justice ;, but if against law, and the justice of the case, the motion will be granted. Montgomery v. The Attorney- Oeneral.{3) In this cause, there (1) Vide Furmcm v. Gilman, 2 Nott & M'Oord, 189, in notis. (2) 2 Nott & M'Oord, 184. 547 NEW TRIALS. [Chap. XV. The court will endeavor to do what is just. had been one trial at bar, and verdict in the Common Pleas in favor of the will; -and a subsequent trial at bar, and verdict be" fore the Court of King's Bench against the will, and in favor of the heir at law. Mr. Attorney- General now moved, for a new trial, because, this being the case of an inheritance, it is not to be bound by one trial ; nor where there are two trials, and ver- dict against verdict. Hardwicke, Lord Chancellor. — " The judges of tbe Court of King's Bench, before whom the last trial was, h ave certifi'ed.to me that they are not only not dissatisfied, but quite satisfied with the verdict, against which a new trial is now prayed ; and as they are so, I have reason to be so too, and can- not lake it that anything improper passed at the trial. If there is any ground for a new trial, it must arise from collateral cir- cumstances, and not from such as were submitted in evidence before 'the last jury. It is insisted for the new trial, that here is verdict against verdict. But this is no reason why a [*54:8J third trial should be granted ; *for a trial at bar is a most solemn act, and ought to have more weight than a verdict at NisiPrius. But it is not singly the difference of the two trials, but the weight of the new evidence appearing in the last trial, which was granted upon fresh evidence. I thought this fresh evidence so very material, that I granted the heir at law an opportunity of having them submitted to the scrutiny of a jury. This evidence, it seems, has had the same weight with the special jury, and the Court of King's Bench, as with me ; which gives a further sanctity to this verdict, besides the solemnity of the trial." And new trial refused.(l) So in Parker v. Ansel.{2) Trespass, to try the right of a fish- ery in Surrey. When first tried, there was a general verdict for the defendant ; but the same was set aside, and a new trial granted, because he had given no evidence in support of two ot his pleas, upon which issue was taken. On the second trial, be- fore Lord Mansfield, there was a general verdict for theplaintifi", and, on a motion for a new trial, Lord Mansfidd reported the (1) Vide 2 Atk. 378 ; 3 Ibid. 542. (2) 2 W. Blacks, 963. ' Chap. XV.] AFTER TWO VERDICTS. 548 The court exercises an uulimited discretion. evidence, which clearly established the second verdict. But it was insisted, that there having been two contrary verdicts, the defendant was by law and constant practice entitled to a third trial. And it was adjourned. over to make inquiries after prece- dents: and no precedent being shown to establish such a doc- trine, it was declared by De Orey, Ch. J., and totam Curiam, that they knew of no such rule, either at law or even in equity. And the rule was dischargcd.(l) V. The court exercises an unlimited discretion. But the courts have held, that there is no limit to their discretion in this respect ; and that after two *or [*549] more trials, whether concurring or contradictory, they will grant another, and toties quoties, so long as any settled rule of law is violated, or justice defeated, by the finding of the jury. Colles,iu his "Parliamentary Cases," reports instances of a third and fourth trial, awarded by the House of Lprds.(2) And in Clarke v. Udall, several cases were cited, which the chief justice allowed, that where, upon the second trial, the jury have doubled the damages, a third had been granted.(3) So in Goodwin v. Gribbons.{4:) The defendant was an attorney. At the first trial, the jury found that lie had acted beyond his office and authority, or his duty as an attorney, and gave a ver- dict for the plaintiff, which verdict was set aside, and a new trial - granted. The second verdict was also found for the plaintiff, which second verdict was now prayed to be set aside also; and a third new trial was prayed. A rule was made upon the plain- tiff to show cause. Lord Mansfield said, there was no ground to say that a new trial should not be granted, after a former new (1) Vide 2 "W. Blaclts. 802 ; Ibid. 920 ; 2 P. Wpis. 563 ; 2 Atk. 378. (2) Vide CoUes, 310-318. (3) 2 Salic. 649. (4) 4 Burr. 2108. 649 NEW" TEIALS. [Chap. XV. The court exerc,8es ati unlimited discretion. trial had been once granted before. There was an index to a report book,(l) which had mistaken a decisive particular reason, in a particular case, for a general rule. But there was no such general rule as had been supposed. A new trial must depend upon answering the ends of justice. However, in the present case, he did not see any reason for a new trial. He observed, that there is no question of right, nor any great value ; and upon the whole, he was clear that no new trial ought to be granted. Mr. Justice Yates, was clear that a second new trial might be granted as well as a first, if the reasons for granting it [*550] were *sufficient. But he also thought in the present case there was no sufiScient reasons for granting one."(2) JPox V. Cltfton.{S) Assumpsit for work and labor, and materials found, against the defendant Clifton and others, as partners, forming a distillery company. The weight of evidence was against the fact that the defendants were co-partners at the time of the contract with the plaintiff. The jury were charged to this effect, but found, no'i,withstanding, a verdict for the plaintiff. The defendants applied for, and obtained a new trial. (4) Upon submitting the case to the jury a second time, the evidence va- ried but little from that on the former trial, and the j udge charged that the facts proved did not constitute the defendants partners. The jury, however, again found for the plaintiff. A rule nisi was obtained, on the ground that the verdict was against evi- dence, and that illegal testimony had been admitted. Tindall, Ch. J. — " This cause has come before the court upon a second application for a new trial ; an'd if the questions before the jury had been merely questions of fact, we should probably have hesi- tated much, after two concurrent verdicts for the plaintiff, before we should have sent the cause down to a third investigation. For although no precise rule can be laid down upon this point, but each case must stand upon its own proper ground, yet it would (1) Vide 6 Mod. Index, " Trial." (2) Et vide 1 Terra Rep. ISI. (3) 9 Bingham, 116. (4) Vide 6 Bingham, 716. Chap. XV.] AFTER TWO VEEDICTS. 550 The court exercises an unlimited discretion. be only under very strong and well grounded dissatisfaction with the former verdicts, that the court could be induced so far to in- fere with the proper province of the jury, on questions which the law has placed under their peculiar jurisdiction, as to send a mere question of fact to trial by a third jury, where two have before pronounced the same opinion upon it. But the questions in this case submitted to the jury, were not questions of mere fact, but questions *in which the law and the fact [*551] were so intimately involved and combined together, that the jury cannot be said to have come to a right conclusion upon the fact, unless they are contented to take the law upon the subject from the judge, who presided at the trial." His lordship, after commenting at large on the points submitted to the jury, con- cludes: " We think the finding upon each of these questions has been a finding upon the legal result of the facts proved, and upon this ground we think the rule for a new trial should be made absolute." In Silva V. Low.(X) Action on a policy of insurance. The sum insured was $5,500, and the loss was averred to have hap- pened by the perils of the sea. The judge submitted two ques tions to the jury; whether the vessel was seaworthy, and he expressed his opinion, that the weight of evidence was in favor of her seaworthiness ; and whether the voyage on which she ■sailed, was different to the one described in the policy; with di- rections, that if the vessel was unseaworthy, or the voyage was different from that described in the policy, they should find for the defendant, otherwise their ve'dict should be for the plaintiff. The jury found for the plaintiff, with damages as for a total loss. On the following term, a motion was made for a new trial, on the ground that the verdict was against evidence ; and after ar- gument, a new trial was granted. (2) Upon this trial, also, the jury found for the plaintiff as before ; and, on motion for a third trial, the court directed it, on the ground that the jury had (1) 1 Johns. Cas. 184 ; swpra, p. 334. (2) 1 Johns. Cas. 205. 551 NEW TRIALS. [Chap. XV. The court exerrises an unlimited discretion. manifestly disregarded the determination of the court, on the question of law settled on a previous argunient.(l) In Wilkie v. JRooseveU,{2) the rule is well illustrated. [*552] *0n a second trial of this cause,(3) on a question of usury, the jury again fuund a verdict for the plaintiff. A motion was now made to set aside the verdict, and for a new trial, on a case containing substantially the same facts as ap- peared in the former case. The verdicts in both motions were contrary to the charge of the judge and the law of the case. The second point macft was, whether the court could again in- terfere, there having been two concurring verdicts. The judges delivered their opinions severally. Thompson, J. — " The grants ing of new trials is matter of sound discretion in the court, un- der all the circumstances of the ease. It is undoubtedly for the furtherance of justice, that the powers of the court and the powers of the jury should be confined within their proper limits. That the jury should be the triers of the fact, and the court judges of the law. And although, after two verdicts, the court will proceed with the utmost caution and deliberation in grant- ing another trial, yet when the verdict is against law, there can be no question as to the right of this court again to interfere; and I think there can be but little doubt as to the duty of the court to exercise that right. I do not consider this as one of those cases where the rigorous execution of extreme legal jus- tice is hardly reconcilable to conscience, and that, on that ground, the court ought not again to grant a new trial. If the statute against usury is an unconscientious defence, or the law mpolitic, it is the province of the Legislature to repeal it. But, as long as it remains in force, it is the indispensable duty of a court and jury to carry it into effect; and from an attentive ex- amination of all the circumstances of this case, I cannot discover any plausible grounds that the jury could have taken in giving their verdict, consistent with the law arising from the facts. (1) 1 Johns. Gas. 336. (2) 3 Johns. Gas. 206. (3) Vide 3 Johns. Gas. 66. Chap. XY.] AFTER TW.O VERDICTS. 633 The court exercises an unlimited discretion. Considering, therefore, the verdict as both against law and *evidence, I am of opinion that a new trial ought [*553] to be granted." Of this opinion were three of the judges; Lewis, J., and Livingston, J., dissenting. And a new trial was granted.(l) So in Lessee of Burhart v. Bucher.{2) This was an appeal from the decision of Mr. Justice /Smith. The cause was tried twice ; first before the chief justice, when a verdict was found for the defendants, contrary to his charge, and a new trial was ordered ; and a second time before Judge Smith, in which the jury found again for the defendants, and a new trial being refused, the plaintiff' appealed from the decision. One of the points was, that the verdict was occasioned by misdirection, which was met by urging the hardship of the case. Tilghman, Ch. J., with whom the other judges concurred in granting the motion. — "Against a new trial, it is urged that this is a hard case, in which there have been two verdjcts for the defendants. I perceive that it is a hard case, and lam extremely sorry for it. It is always hard on a man who has the misfortune to purchase a bad title. But I must not suffer my feelings for the defendant, to carry me so far as to do injustice to the plaintiff". If the cause had gone to' the jury in the manner which I conceive it ought, by law, to have been submitted to them, I should have been against a new trial. 'It must be a very extraordinary case indeed, in which I could be induced to give my opinion for a new trial, after two verdicts on matters of fact ; but that is not the present case. I can have no assurance that the jury would have found the same verdict, under a diff'erent direction, as to the point of law which has been mentioned, I must, therefore, with reluctance, give my opinion that this court cannot, without injustice, refuse the plaintiff" a new trial."(3) *Upon the same principle, the same court, in Keller. [*554] (1) Etvidel Term Rep. 110. (2) 2 Binn. 455. (3) Vide 2 Htiyw. 224. 654 NEW TEIALS. [Chap. XV. The court exercises an unlimited discretion. Arthurs^(\) directed a new trial, after two concurring verdicts. In both instances there had been a verdict for the defendant, but clearly against the evidence, and impressing a strong conviction on the mind of the court, of great injustice to the plaintiff. After a brief review of the case, Tilghman, Ch. J., concludes : — " I should wish that the cause might be reconsidered, under this aspect, for I am very strongly of opinion that the plaintiff has been injured. From the present arrangement of the courts, it is not probable that this matter will ever again come under our consideration. I make no doubt that justice will ultimately prevail, and my conscience is well satisfied by con- signing the cause for another trial, to the impartial tribunal ap- pointed to take cognizance of it." New trial granted. And in The Commissioners of Berks County v. Iioss.{2) The court laid down the rule broadly, "That there is no rule of law against granting a new trial after two concurring verdicts, nor will the court hesitate to do it, if the' verdicts are against law.(3) In Rvffners v. £arrett.{4:) One Daniel Euffner sued Barrett on a bond. The defence was, that Barrett had executed the bond to Joseph Euffner and Samuel Henry, executors, who had as- signed it to the plaintiff, and that it was paid to Henry, without notice of the assignment. The jury found for the plaintiff be- low. Tlie defendant filed a bill, and prayed a perpetual injunction of the judgment at law. The Chancellor directed an issue, which was found for Barrett, and, upon motion, granted a new trial,, which was found against Barrett. The court certified the ver- dict, and with it all the evidence given before the jury ; from which it clearly appeared that Barrett, before he paid [*555] *the money to Henry, had full notice of the assignment of the bond to Daniel Euffner. The Chancellor perpetu- ated the injunction, and Euffner appealed ; and by the court of (1) 3 Binn. 26. (2) 3 Binn. 520. , (3) Et vide Mitchell v. Mitchell, i Binn. 180. (4) 6 Munf. 207. Chap. XV.] AFTER TWO VERDICTS. 555 The court exercises an unlimited discretion. appeal the decree was reversed, the inj unction dissolved, and the bill dismissed with costs. So Payne v. Tre'sevant.iX) Upon a motion to set aside a ver- dict and grant a new trial, on the grounds that the finding of the jury was against law, evidence, and the opinion of the judge, before whom the cause was tried. The action was on two promissory 'notes, and the defence was usury. The judge, in charging the jury, told them they were bound by the act of the Legislature, enacted by the supreme authority of the sate; and if a jury was justifiable in disregarding any one act, they might refuse to be bound by any other act or law which did not accord with their own opinions ; and thus the fixed and stable principles of law would, in future, be obliged to give way to the fluctuating and uncertain opinions of juries. That the act in question made all usurious contracts void; and that the evidence in this case, brought the usurious transaction between the original parties, borrower and lender, so immediately and directly under the act, that it was impossible for them to wink so hard as not to see it. Yet the jury found for the plaintiff. The court, in disposing of the motion, observed, that the jury had found against the clear and positive testimony, as well as against a public law of the state, and the clear opinion of the judge, who tried the case,- upon all the points, as reported by him to the court. That it was the duty of the court, whenever the juries of the country will take upon them to disregard the laws of the land, andclear and indubitable testimony, to set aside, their verdicts toties quo- ties, until they can get twelve men firm enough to de- fend und support the legal *institutions ; otherwise the [*556] fluctuating sentiments of juries, would prevail against the stable principles of law. This court had decided in a previous case, Moore v._ Cherry,{2) where there had been two concurring verdicts, that whenever the principles of law are outraged by verdicts, another trial (1) 2 Bay, 23. (2) 1 Bay, 269. 556 NEW TEIALS. [Chap. XV. I The court exercises an unlimited discretion. ought to be granted, "so as to give the party a chance for jus- tice." So the court will set aside a second verdict, if there have been any undue means resorted to, to obtain it. Thus, in an Anony- mous case.(l) Per Holt, Chief Justice. — " After a second verdict on the same side, it is not fit to grant a new trial, because the judge did not like the verdict ; but if there were any practice • used in obtaining it, it is otherwise." This is one of the consequences of fraud, embraced in the rule, so universal as to have become a legal maxim, " Fraud will vitiate everything." (1) 6 Mod. 22. Chap. XVI. IN FEIGNED ISSUES. *55.7 General remarks. *CHAPTER XVI. IN EQUITY, AFTER VERDICTS ON FEIGNED ISSUES AND ISSUES AT LAW. I. Oeneral remarlcs. II. Application denied when tJiere is a want of diligerice. HI. When there has been fraud and surprise, or subsequent discovery of evidence. lY. In feigned issues, where the verdict is satisfactory. V. Where Hie verdict on the feigned issue is unsatisfactory. VI. When the application must be made to the Court of Equity. I. Oeneral remarks. Before new trials at law became the settled practice of courts of law, suitors were driven into equity for relief from unjust verdicts; and to direct new trials at law, on account of fr^ud or surprise, under pain of perpetual injunction, formed an extensive branch of equity jurisdiction. (1) Since the introduction of new trials, and the facilities afforded by courts of law to correct im- proper verdicts, applications to courts of equity are much less frequent, or rather, are become obsolete.(2) The jurisdiction, however, remains; and, for the same causes, surprise and fraud, the parties niay still resort for relief to equity .,(3)* This, it ap- pears, they may do, even after they have unsuccessfully applied to the courts of law ; but not upon the same merits as there dis- cussed, if within their jurisdiction. (4) But, besides this power to correct oppressive and illegal ver- dicts at law, courts of equity have a class of cases originating in , (1) 1 Burr. 390. ■ (2) Vide 6 Johns. C. R. 479, and the cases there cited. <3) 1 Johns. 0. B. 91. (41 Ibid. Vol. I. 35 §58 NEW TfilALS. [C&Ap. XVI. General remarks. equity jurisdiction, and directly and exclusively under their own control, called "Feigned Issues." These courts have, by their constitution, the right to dispose of all oases upon the pleadings and proofs, without the intervention of a jury ; but it is usual, in matters of intricacy and '"importance, espe- [*S58] cially those involving questions of fraud, to direct an issue at law, to be tried by a jury, to inform the conscience of the court. The granting or refusing a new trial, on a feigned issue, is wholly a matter of discretion. It is never done when 'the proof is clear on the one side or the other, nor when, in any event, the verdict could be but of little value.(l) The practice is thus laid down by Sir William Blackstone.(2) — "The Chancellor's decree is either interlocutory ot final. It very seldom happens that the first decree can be final, or con- clude the cause ; for, if any matter of fact is strongly contro- verted, this court is so sensible of the deficiency of trial, by written depositions, that it will not bind the parties thereby, but usually directs the matter to be tried by a jury ; especially such important facts as th& validity of a will, or whether A. is the heir at law to B., or the existence of a modus decimandi, or real and immemorial composition for tithes. But, as no jury can be summoned to attend this court, the fact is usually directed to be tried at the bar of the Court of King^s Bench, or at the assizes, upon a feigned issue. For, in order to bring it there, and have the point in dispute, and that only, put in issue, an action ia ■brought, wherein the plaintifi', by a fiction, declares tl)at he laid a wager of £5 with the defendant, that A. was heir at law to B., and then avers that he is so, and therefore demands the £,0. The defendant admits the feigned wager, but avers that A. is not the heir at law to B. ; and thereupon that issue is joined, which is directed out of Chancery to be tried, and thus the verdict of the jurors at law determines the iact in the Court of Equity. These feigned issues seem borrowed from the sponsio judicialis of the Romans, and are also frequently used in courts of law, (!) ijoiins. 0. R. 459. (2) 3 Blacks. Com. 452. Ohap. XVI.] m FEIGNED ISSUES. 559 Oeneral remarka. by consent of the parties, to determine some *disputed [*559] rights, without the formality of pleading, and thereby to save much time and expense in the decision of a cause." In two instances only, by the English practice, ttat of an heir and of a rector, it is a matter of right to have an issue directed. (1) With us feigned issues are provided by statute, upon an appeal frona the decision of the surrqgate to a circuit judge, on probate of a will, and a reversal by the latter, founded upon a question of fact ;(2) and also upon issue, taten by answer, to a bill of di- vorce, on the ground of adultery.(3) It is also expressly enacted, that all issues upon the legality of a marriage, (except where a marriage is sought to be annulled on the ground of the physicial incapacity of one of the parties,) sliall be tried by a jury of the country ; and the Chancellor shall award a feigned issue for the trial thereof (4) These issues, being thus particularly under the direction of the court, are moulded to the purposes of equity. To accom- plish this, it is necessary the court should, in some instances, proceed upon rules incident to its own peculiar jurisdiction. Al- though courts of equity and law equally aim at the same result, and equally respect the finding of questions by a jury, of which, when referred to them, they are the constitutional judges, when bottomed upon a full disclosure of the merits ; yet when there has been a partial or unjust result, occasioned by circumstances which the injured party could neither prevent nor control, or when important rights are depending, a court of equity will in- terpose, on grounds and for reasons differing from a court of law. These general remarks may be embodied and illustrated thus,, Q) 2 Mad Chan. 564. (2) 2 R. S. 66. and 609. >(3) 2 R. S. 145. (4) 2 a. S. 116. 560 NEW TRIALS. [Chap. XVI. Application denied when there ia a want of diligence. II. Application denied when there is a want of diligence. ■[*560] Applications to a court of equity, to set aside verdicts at law, or open cases, will be denied, when the party applying fails or omits to present a case of diligence : a rule which will equally apply to feigned issues. Thus, in Curtis v. Smalridge.il) The defendant's wife had pawned her husband's plate to the plaintiff for £110, for which the defendant, in trover, had recovered £115 damages against the plaintiff, and judgment accordingly. The plaintiff exhibited his bill to be relieved against the judgment, and to have a new trial, suggesting that the defendant was privy to the pawning, and received the £110; and the proofs being read, it appeared that the defendant had confessed so much ; which, had it been proved at the trial, it was agreed the defendant could not have recovered. But there being no proof now, that the plaintiff at law could not, by reason of any accident, have his witnesses at the trial, the court would not, on any neglect of his, grant a new trial. It will be denied if the party has gone to trial at law without due preparation on the merits; or if he have neglected to apply for a discovery, when deemed necessary, and to obtain a stay in the meantime. Thus, In Baronne v. Brent.(2) The bill was to have an account, setting forth that the plaintiff had bought several goods of the defendant, and had paid him several sums of money in part sa- tisfaction ; but the plaintiff having lost the receipts and acquit- tances, the defendant had recovered the whole value of the goods at law. The defendant demurred to the bill, because it appeared of the plaintiff's own showing, that the defendant, had recovered at law. For the plaintiff, it was insisted, that if the case upon (1) 1 Chan. Ca. 23 ; Vide Eq.. Caa. Ab. 371 ; 2 Freeman, IIS. " (2) 1 Vera. Cas. 176. Ghap. XVI.] m FEIGNED ISSUES. 561 Application denied when there is a want of diligence. the bill was true, which by the demurrer was admitted, the plain- tiff ought to be relieved in equity, as to the money over- paid. *And per Lord Keeper. — " If a man pays money [*561] in part of satisfaction, and afterwards the whole value of the goods is recovered against him at law, the money so paid upon that account, becomes money received for the use of him that paid it, and he may recover it in an action at law. But it was answered by the plaintiff's counsel, that though that may be true, where the^whole debt is recovered, yet it would not be so in this case, because here the jury had allowed some payments, and madg some abatement of the full value, but had not allowed all the payments, because the now plaintiff could not produce his receipts, and now if they would bring an action at law for the money so overpaid, they could not make out what payments the jury allowed and what not." Hednon allocatur. It was then insisted by the plaintiff's counsel, that they were entitled to have a discovery in this court, in order to enable them to proceed at law, they having lost their receipts and acquittances. Lord. Keeper. — " After a verdict at law, you come too late for that, and I see no reason why the defendant should be put to answer." And the demurrer was allowed. So, if the object of' the application be to discredit witnesses, as in Woodworth v. Van Buskerk.{\) The plaintiff went to a hearing before arbitrators, without objection, and willing to rely on the testimony of the principal witness for the defendants. They awarded against him, and he applied to this court for re- lief, on the ground of impeaching the witness. The Chancellor. — " It is a rule at law, on the subject of new trials, that a party going voluntarily to trial, goes at his peril ; and he cannot have a new trial merely to give him an opportunity of impeaching the testimony of a witness of whom he was apprized beforehand, and of the very purpose for which he was to be called. He must, at least, show that he had since discoveredi testimony/ (1) 1 Johns. C. R. 432. 662 NEW TEIALS; [CSsap. XVL Application denied when there is a want of diUgenoei [*562] *of which he had no knowledge before the trial. (l]j ' There is no reason why an award should be set asida on the grounds stated, when a verdict cannot ; and that thia court would not relieve ia such case, against a verdict, was fully considered in Smith & Mead v. Lowry.i^) The reason of the rule applies equally in each case, and the same mischiefs would follow from relaxing it. The power of awarding new trials sA law, is exercised upon liberal and equitable grounds,, and thi» consideration renders the rule, drawn from the practice of tha courts of law, the more applicable. There is no Chancery case^, within my knowledge, that approaches to this." And, in analogy to this, the application will be refused, if the, only ground be to have an opportunity of offering cumulative testimony with a view to a rehearing, as in Dunhamv. Winans.{3), An interested witness had been examined for the complainant, and his testimony rejected at the hearing, and a decree for the defendant. The complainant petitioned for a rehearing, for the purpose of releasing the witness. The Chancellor. — " This ap- plication is novel in its character, and dangerous in principle. The objection to the witness, on the ground of interest, was disr tinctly raised and argued by counsel at the hearing, and the de- cree was not made until nearly two months afterwards. Five months after the final decree^the complainant, for the first time, offers to release the witness, and asks to set aside the decree and open the proofs in the cause^ so that he may be re-examined. The object of this testimony is to support that of another wit^ ness for the complainant, and to contradict the positive answer of the defendant, and the evidence of a witness ex- [*o63] amined on his part, after a *decree in the cause. It must be a very special case which will justify the court in opening the proofs, even to establish a new fact which a party (1) 2 Johns. Cas. 318; 5 Johns. Rep. 248; 9 Johns. Rep. 11; 1 Wila. 98; 2 Salk. 653 ; 2 Binn. 582, m notia. (2) 1 Johns. 0. R. 320. (3) 2 Paige, 24. Chap. XYI.] IN FEIGNED ISSUES. 56» Application deiied when there is a want of diligence. bas negleeted to prove throiiigh inadvertence; but a new trial, or itehearing, is never granted to enable a party to obtain cumula- tive testimony, or to contradict the witness examined by the adh verse party."(l) The same rule will apply to a motion grounded on the party'is being surprised by certain evidence, and, therefore, not prepared to meet it. It must appear a clear case of surprise, divested of all suspicion, as in Hichards v. Symes.i^) The fact to be tried ia the cause was, whether one Eichards gave a certain mortgage to the defendant in equity. Upon the trial, in order to discredit the evidence of one Bere, the most material witness for the defend- ant in equity, the plaintiff brought a person to swear, that this witness for the defendant was not in England at the time he swore to the fact. Several affidavits were read upon the motion,, «n the behalf of the defendant in equity, to prove that Bere was actually in England at the time he swore to the fact. It was in- sisted, therefore, by his counsel, that the credit of Bere being in- validated, weighed greatly with the jury, and was the principal) reason that induced them to give the verdict for the plaintiff iii equity. Lord Chancellor. — " This is an application for a new trial., The ground for the new trial is, that the defendant, in this €ourt, was surprised with evidence he was not aware of, and so he was not prepared to answer it," After noting and disposing of various objections, urged in opposition to the motion, his lordtihip proceeds: — "But, in, the present case, there are no grounds for a new trial. The person who makes an affidavit on behalf of the defendant in *equity, swears [*564} that he gave Richards notice, a fortnight before the trial, that they would, on the other side, attempt to prove Bere abroad, which, though it was not so particular as to point out the very place where they would show him to be, yet was sufficient notice for Richards to prepare to encounter this evidence. There is another reason that weighs with me, that the new trial is prayed on behalf of the plaintiff at law ; and, if it had been better mad§ (1) Vide supra, " Kewly Discovered Evideoee^" 485-494. (2) 2 Atk. 334. 56i NEW TEIALS. [Chap. XVI. Application denied wlien tliere is a want of diligence. out, I should not have inclined to grant it, because it was in his power to have been non-suited. For, if his counsel had been of opioion that there was evidence that they were not apprized of, and too strong for them to encounter, they might have advised him to suffer a non-suit, and then he might have come back to the court for new directions, who would have ordered another issue at law, notwithstanding the non-suit. Upon the whole, there are no grounds for a new trial, and it would be of extreme danger- ous consequence to grant it, merely upon a suggestion that the party was not apprized of this evidence, and, therefore, was not prepared to give an answer."(l) So in Slanden v. Edwards.{2) Devise of an estate to be sold, and the produce with the personal, for all the legitimate children of ' Standen, living at the death of his wife. Standen, after cohabitation for seven years under one marriage, married again during the life of his first wife. There were children by both marriages. Upon an inquiry, directed by the Lord Chancel- lor, the master reported Charles Standen, who was a son by the first marriage, to be the only legitimate child. Upon an issue directed, Charles Standen to be plaintiff, he obiained a verdict. A motion was made for a new trial, on the ground that there was more evidence to impeach the first marriage than had [*565] been produced ; but no circumstances of fraud *or sur- prise were laid. Lord Chancellor. — " I had no doubt, in my mind, that the second marriage was good, and the first bad ; but, as it depended on circumstantial evidence, I thought it a proper case for. the consideration of a jury. There was evi- dence on both sides. The non-production of any farther evi- dence did not proceed from the imposition or control of the court, but from the discretion or neglect of the parties them- selves; and in that case I cannot decide against the common rule of the court, not to grant a new trial, unless upon circumstances of fraud or surprise. It is wonderful, that in this case, no cir- cumstances of that kind can be alleged. I wish that could be (1) Vide supra, "Surprise," 114-118. (2) 1 Yes. jun. 133. Chap. XVL] IN FEIGNED ISSUES. 565 Application denied when tliere is a want of diligence. shown, for the justiceof the case calls loudly for re-exaniination. Here is a whole family rendered illegitimate by a mere accident. I can do nothing in it, for I cannot permit parties to keep back their evidence at the trial, in order to bring it forward alter- wards, and to try it again with more advantage."(l) The rule has been recognized and established, as the well set- tled practice of our own courts, by a series of decisions. In Barker v. JElkins.{2) The defendants had commenced an action at law, and the plaintiff had suffered the cause to proceed to verdict without making a defence, and then applied to equity for an injunction to stay the proceedings at law, and have a new trial. On motion to dissolve the injunction. The Chancellor. — "The plaintiff should have made his defence at law, by way of payment or set off, and he might perhaps have called for a dis- covery in aid of liis defence at law. No reason is assigned why he did not call for a discovery, or prepare and defend himself in due season. He has not staled what were the obstacles to a de- fence at law. A defendant cannot come here for a new trial, when no special ground of fraud or*surprise [*S66] is suggested, and when he neglects, or omits due dili- gence, and without due excuse, to defend himself, in his proper' place. This is a fundamental doctrine in this court. The prin- ciple has been so often declared, that it is useless to enlarge; and without resting on minor objections, the injunction cannot be re- tained on the merits of the case."(8) So in Dodge v. Strong,{4:) where the party lost his opportunity of defence by his own negligence, rule for a new trial' having' been granted by the Supreme Court, on conditions which the' (1) Vide 2 Tes. sen. 552, 579. (2) 1 Johns. C. R. 465. (3i HI vide M'Vickar v. Wolcott. 4 Johns. Hep. 510; Lansing v. Eddy, 1' Johns. C. R. 49; Smith v. Lowry, 1 Johns. C, R. 320; Deldmay. Glasseli; ^ Ueo. k Munf. 369; Turpin v. Thomas, 2 Hen & Munf. 139. (4) 2 Johns. 0. R. 228. 666 NE,W TEIALS, [Chap. XYi Applicatioa denied when there is a wstut. of diligence, party failed to perform, within the time prescribed by the rule, the court refused its aid, it not appearing that the failure arose from the act of the opposite party, or from unavoidable necessity. The Chancellor. — " This is a motion to dissolve the injunction, staying execution at law, upon the coming in of the answer. The object of the bill was to obtain a new trial at law. The defence of the present plaintiffs, if any they have, was legal and available at law, and if this court could grant relief, it would be by re- quiring the present defendant to submit to a new trial. But it appeiirs to me, after a very careful consideration of the case, as disclosed by the bill and answer, that I cannot retain the injunc- tion consistently with the established doctrines of this court The plaintiffs, by their own negligence, or that of their attorney. Buffered an inquest to be taken agains,t them, by default. They applied to the Supreme Court for relief, and relief was granted upon certain conditions, and those conditions were not fulfilled This court has frequently declared, that relief cannot be. [*567} had here*for the purpose of a new trial at law, when th& party has lost his opportunity at law, by his own negli- gence. I need only to refer to the cases of Landsinff v. Eddy,{].y Simpson v. Hart,{^) Smith v. Lowry,{S) and Barker v. JSlkins,{4) asi containing not only all the English authorities which I have met with on the subject, but a full exposition of the principles on which the interference of this court is, in such cases, denied. I am not at liberty to depart, from a rule so fully established." And in Foster v. Wbod,{o) it was held, the court will not re- lieve against a judgment at law, on the ground of its being con- trary to equity, unless the defendant, in the judgment, was igno- rant of the fact in question pending the suit, or it could not be. received as a defence at law, or unless, without any neglect or default on his part, he was prevented by fraud or accident, or the (1) 1 Johna. 0. R. 49. (2) Ibid, 91. (3) Ibid. 320. (4) Ibid. 465. (5) 6 Johns. C. R. 81. Chap. XVI.] IN FEIGNED ISSUES. 5S7 Application denied when there is a want of diligence. act of the. opposite party, from availing himself of the» defence. As, where a defendant paid part of a judgment recovered against him, and the plaintiff in that judgment afterwards brought aa action of debt on the judgment, in which F. became special bail, and recovered a second judgment, for the whole of the originaili debt and costs, against the defendant, who neglected to prove the payment, which was omitted to be credited by the plaintiff, who afterwards sued F., the special bail, and recovered judgment against him for the whole debt, damages and costs, by default, F. being ignorant of the payment made by the principal on the first judgment. So, also, in Floyd v. Jane.1^) Although a strong equity was presented, the bill was dismissed, on the ground of jiegligence. The Chancellor. — " This is a bill for a new trial, after a verdict. The ground of the application is, *the disr [*568] eovery, since- the verdict, of testimony to prove the payment of the note, and the want of power in that court to grant a new trial, otherwise than for irregularity, as none of the judges are of the degree of counsellor in the Supreme Court. Anciently, courts of equity exercised a familiar jurisdiction over trials at law, and compelled the successful party to submit to a new trial, or to be perpetually enjoined from proceeding on his verdict. This relief was not granted, unless the application was founded upon some clear case of fraud or injustice, or upon newly discovered evidence, which could not possibly have been made use of upon the first trial. But this practice hiis long since gone out of use, and such a jurisdiction is rarely exercised in modern times, because courts of law are now in the consta>nt and liberal exercise of the power of granting new trials. The present case, however, seems to form an exception to the mo- dern rule, and to require of this court the exercise of that an- cient jurisdiction, because here is a case in which the court of law has no power to award a new trial upon the merits. If the particular circumstances stated in the pleadings and proofs, ren- dered the exercise of the power proper, by a court of law pos- (1) Ibid. 419. 568 NEW TEIALS. [Chap. XVI. Application denied when tliere is a want of diligence. sessing jurisdiction for that purpose, I should feel myself called upon to grant relief to the plaintiff, unless it should appear that the sum in controversy was too small to bear the expense of the remedy. But, on examining the testimony taken in chief, I think it is pretty evident that the plaintiff did not use the requisite diligence, or the means in his power, to establish on the trial at law the payment which he now sets up as his defence ; and for that reason he is not entitled to the interposition of the court, on the ground of the newly discovered testimony ."(1) [*569] *And the same consequences will follow, if the party, apply to a court of law in the first instance, having competent jurisdiction, and the application bo denied ; it is con- sidered res.judicata in equity, if the grourtds of the application in the latter court be the same. As in Simpson v. Hari.i^) The action had been brought by the now defendant, in the Mayor's Court, where the now plaintiff had offered a judgment against the defendant and his father, by way of off-set against the judgment of the defendant, which had been overruled. The plaintiff filed his bill for relief in this court, and obtained an in- junction, which the present motion was intended to dissolve; The plaintiff put no additional grounds befbre the court. After recapitulating the facts, the Chancellor proceeds : — " We have then here the same question, resting on the same principles as the one considered and decided in the Mayor's Court ; and it is certain that the Mayor's .Court had competent jurisdiction over it. This case is one of the strongest, against the interference of this court, that could well be presented, for the party is not seeking relief against any laches, or mistake, or fraud ; but he is seeking for a review of his case, after failing in a voluntary application to the equitable. powers of the Mayor's Court, on the very point now submitted, and after that application had been received, heard and denied. The principle that a matter once considered and decided by a competent power, shall not be reviewed by any other tribunal having concurrent power, except in the regu- (1) Et vide Noland v. CromweU, ^ Munf. 165, and cases there cited. (2) 1 Johns. 0. R. 91. Chap. XVI.] IN FEIGNED ISSUES. 569 Application denied when tliere is a want of diligence. lar course of error or appeal, does not rest upon the mere techni- cal form of the decision. That would be too narrow a ground j decisions in the case of new trials do not appear upon record ; .and they are also decisions resting in sound discretion. It is the unfitness, and vexation, and indecorum, of permitting a party to go *on successively by way of experiment, from [*o70] one concurring tribunal to another, and thus to intro- duce conflicting decisions, that prevents the second inquiry ; and it ought to be observed as an answer to much of what was said against the incompetency of the courts of common pleas over such questions, that if this mode of review was to prevail, it would apply as well to the case of an unsuccessful application to the Supreme Court, as to any of the courts below it."(l) So, in Kemp v. Mackrell,(2) it was held, that parties resting their defence in an issue at law, upon instruments ascertained at the trial to be forged, will not be allowed to enter into any other evidence, or to say the forged instruments were immaterial. On exceptions to the master's report for allowing several notes to be brought into the account by the plaintiffs, assignees of Card well, a bankrupt, several issues were directed to try the validity of those notes, which were all found to have been forged, and the application was now for relief, on the ground that the notes were not material. Lord Chancellor. — " Whether this is the case of assignees under a commission, or of a person suing in his own right, I must go by the same rule. When issues are directed, either on hearing of the cause, or on exceptions upon facts of this kind, it is afterwards taken to be decisive, as to the fact directed to be tried, and as to the consequence of that fact, unless it is a distinct consideration ; as where there was a double consideration, whether the deed was forged or not, and the con- sideration of equitable circumstances. It is now said, that whe- ther these exhibits are true or false, there is other evidence which (1) Vide Bromlay v. Holland, 5 Ves. 610; Ymkc v. ShtUey, Rep. Temp. Finch, 472; W.aiams V. Lee, 3 Alk. 223. (2 J 2 Ves. sen. 579. mi NEW TRIALS. [Chap. XVI. Application demied when there is a want of diligence. makes them immaterial. If the court should now go ,[*571] into *that other evidence, there would never be an end of things ; therefore, fpr the sake of precedent, I will not do what is now desired by the plaintifiFs. The parties must abide by the defence they set up ; and if they set up a forged defence, they must rest upon it, and cannot afte#rards say that piece of evidence is nothing to the purpose."(l) ■ Nor will courts of equity interpose, for the relief of parties ■against verdicts and judgments at law, when the court has had competent jurisdiction, although they may be dissatisfied with the result. Thus, in Bateman v. Willoeji^) cited above, where it was held, that a verdict obtained against a defendant, who neg- lects to apply for a new trial within the time appointed by the rules of the court at law, a court of equity would not entertain a bill for an injunction, on the ground that the plaintiff's demand was unconscientious, or that it was fit subject matter far an ac- count, provided it was competent to the party to lay those grounds before the jury on the trial, or before the court of law, on mo- tion for a new trial. And in that case the bill was dismissed.(3) So, if the defendant below neglect to brii^g his bill for discov- ery, in aid of his defence at law, as in Williams v. iee.(4) A bill was filed, in order to set aside a verdict and judgment at law;, as obtained against conscience. The defendant in equity pleaded the verdict, and judgment at law in bar. And, per Lord Hard- wicke. — "As to relieving against verdicts, for being contrary to equity, those cases are where the plaintiff knew the fact, of his own knowledge, to be otherwise than what the jury find 1*572] by their verdict, *a-Dd the- defendant was ignorant of it at the trial ; as where the plaintiff's action might be for debt, and the defendant, after the verdict, discovers a receipt foj" the very demand in the action ; here Ahe court would relieve . (1) Et vide Overton v. Ross, 2 Hon. & Munf. 408. (2) 1 Sch. & LeCroy, 201; Svjira, p. 188. (3) Vide Parsons v. Lanoe, 1 Ves. sen. 192 ; (Mlgrom v. i/wnm, B Atk. 191. (4) 3 Alk. 223. Chap. XVL] IN FEIGNED ISSUES. 572 ApplicatioQ denied wbeu there is a want of diligence. But, even in these cases, thej will not always relieve against a verdict, where the defendant submits to try it at law first, when he might, by a bill of discovery, have come at this fact by the plaintiff's answer upon oath, before any trial at law was had."(l) So, also, in The Marine Insurance Company v. H6dgson.{2) This suit was brought in the Circuit Court, sitting in Chancery, to ob- tain a perpetual injunction to a judgment rendered at law, in favor of the defendant in equity, and, as the complaints alleged, most unjustly. Marshall, Ch. J. — " Without attempting to draw any precise line to which courts of equity will advance, and which they cannot pass, in restraining parties from availing them- selves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute ajudgment, and of which the injured party could not have availed ihimself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an application to a court of Chancery. On the other hand, it fiiay, with equal safety, be laid down as a genera] rule, that a defence cannot be set up in equity which has been fully and fairly tried at law, although it may be the opinion of that court, that the defence ought to have been sustained at law. — It will not *be said that a court of Chancery cannot [*573] interpose in any such case. Being capable of imposing its own terms on the party to whom it grants relief, there may be cases in which its relief ought to be extended to a person who might have defended, but has omitted to defend himself at law."(3) (1) As to equity's not interfering when tlie morits have been disposed of at law, •Vide Pym v. Blackbwm, 3 Ves jr. 34; Boltzapffel v. Baker, 18 Ves. 115 ; Bare t. ^Groves, 3 Ansl. 687; JBulhckT. Bommiit, 2 Chitty's Eep. 608; Polla)r4y. Sliac^, 1 Dal. 210 ; Phillips v. Stevens, 16 Mass. Hep. 238. (2) 1 Cranch, 332. (3) Ante, Meredith v. Johns, 1 Bfen. & Munf. 585 ; Maupin v. Whiting, 1 Call. 224 ; TerreU v. Dick, 646. 573 NEW TRIALS. [Chap. XVI. Where there has been fraud and surprise, or subsequent discovery of evidence. III. Where there has been fraud and surprise, or subsequent dis- covert/ of evidence. But when the plaintiff in equity makes a clear case of fraud and surprise, or subsequent discovery of evidence, or of any cause affecting the merits, of which it was not possible he could have availed himself at the trial below, the court has granted a new trial. As in Hennell v. Kelland.{V) An action was brought against an administrator, who pleaded phne adminislravit, and the trial was brought down by proviso ; and, at the trial, the defendant being put to prove a sum of £50, paid before the plaintiff's ori- ginal writ, which, not being provided to do, a verdict was against him. Yet, after finding the note, whereby his witness was ena- bled to swear that matter, on a bill brought in Chancery, a new trial was granted. So in Goddrington v. Webb.i^l) Bill for a new trial, suggesting the plaintiff's mark to the bond was forged by one Webb ; and by surprise defendant had- recovered against him at law, all the pretended witnesses to the bond being dead. New trial ordered. Tewkt^s (7a.se and Swirifitldts Case cited. And in Tilly v. WIiarton.{%) Wharton, on a plea of non est factum, had obtained a verdict on a bond of £3,000 penalty for payment of £l,.50O ; and, there not being sufficient per- [*574] sonal assets, Wharton brought a bill to ha've a *Lrust of lands executed, in aid of the personal estate. The de- fendant insisted the bond was forged, and had made a strong proof of it ; but that being the point tried at law, the court would not enter into the proof thereof, or permit the depositions to be read ; but admitted, if the witnesses had been convicted of perjury, or the party of forgery, that might have been a just (1) 1 Eq. Ab. 37T. (2) 2 Vern. 240. (3) 2 Vern. 3T8. Chap. XVI.] IN" FEIGNED ISSUES. 574 Wbere there has been fraud and surprise, or subsequent discovery of evidence. ground for relief in equity, especially since the prosecuting of attaints was become, in a manner, impracticable. But, upon an appeal to the house of j^ers, a new trial was directed, and the bond found to be forged. And, in some instances, equity will relieve after a verdict at law, and when the plaintiff in equity might properly have de- fended himself. As in The Countess of Oainsbcrough v. Oifford:{\.) The defend- ant had brought his action on a contract to deliver stock, and re- covered a verdict. The plaintiff brought her bill to be relieved against the contract which her broker had made for the purchase, without her authority, and obtained an injunction, after she had brought a writ of error on the judgment at law. Master of the Rolls. — " I do agree the court ought to be very tender how they help any defendant after a trial at law, in a matter where such defendant had an opportunity to defend himself. But still such cases there are, in which equity will relieve after a verdict, in a matter where the defendant at law might properly have defended himself As if the plaintiff at \a.w recovers a debt against the defendant, and the defendant afterwards finds a receipt, under the plaintiff's own hand, for the very money in question. Here the plaintiff recovered a verdict against conscience; and though the receipt were in the defendant's own custody, yet he, not being then apprized of it, seems *entitled to the ard of [*575] equity, it being against conscience that the plaintiff should be twice paid the same debt. So, if the plaintiff 's own book appeared to be crossed, and the money paid before the action brought. Now the principal case is within the same reason."(2) So in a case of fraud, Roy v. The Duke of Beaufort.{3) The bill was for relief against a judgment on a bond, in which the (1) 2 P. Wms. 424. (2) Vide Ashe v. Ashe, 1 Brown's P. C. 661 ; Pomfret v. Smith, 6 Ibid. 434. (3) 2 Atlf. 190. ■ Vol. I. 36 5T5 NEW TKIALS. [Chap. XVL Where tliere has been fraud and surprise, or subsequent discovery of evidence, plaintiff was jointly bound with his son, in the penalty of £100, that the son should not commit any trespass in the Duke of Beau- fort's royalty, by shooting, hunting, fishing, .&c., except with the license of the gamekeeper, or in the company of some qualified person. The son having catched two flounders with an angling rod, the bond was put in suit, and judgment for the penalty. It appeared that the gamekeeper's brother-in-law, and another ser. vant of the duke, had asked the plaintiff's son to angle with them, when he catched the two flounders, and the verdict was found merely on their evidence. Lord Hardwicke decreed the plaintiff should be relieved against the verdict, and that the duke should refund the £100 recovered on the bond, and the £iO damages, upon the ground of a fraud practiced upon the son to work a fbrleiture of the bond. And similar relief has been granted in a case of great value and settling an important piinciple, as in Edwin y. Thomas.{X) The issue directed to be tried touching the custom of the manor of , was found against the plaintitfj Edwin ; and the cause being now set down upon the equity reserved, it being alleged to be a cause of value,, and concerning all the copyholds in the ma- nor, a new trial was directed upon payment of costs: So, where the inheritance is to be absolutely bound [*576] on a *question of heirship, as in Baker v. Hart.{2) The cause was heard before the Lord Chancellor, and issues were then directed ; it came on jiow upon the equity reserved, and upon an application fur anew trial. Lord Chancellor. — " Upon the second issue before Lord Chief Justice Willes, the jury found that William Baker, the father of the plaintiff, was not the heir of Admiral Hosier. But it has been certified to me by the chief justice, that the finding of the jury depended upon the verdict given on the first issue. The application now is, not to set aside the verdict, but for another trial. Where it is a matter of in- (1) 2 Tern. 75. (2) 3 Alls. 542. I Chap. XVI.] IN FEIGNED ISSUES. 576 Where there has been fraud and surprise, or subsequent discovery of evidence. heritance, the court, without setting aside the first verdict, for the more solemn determination, in some cases, direct a second trial ; and if the court direct such trial without setting aside the former verdict, then the first may be given in evidence, and will have its weight with the jury. In many cases where it is a mat- ter of inheritance, and not actually conclusive, the court have not directed a new trial : but where the inheritance will be ab- solutely bound, the court has granted a new trial. In the present case, it is insisted the inheritance will be bound, and said in an- swer to that, the plaintiff may try it over again in ejectment. If so, where is the prejudice to the defendant, if the court should direct it to be tried again ?"(1) And new trial ordered. In Stace v. Mabbot,{2) where a new trial was granted on the ground of importance and of newly discovered evidence, the prin- ciples, in general, on which courts of equity will interfere, espe- cially in cases where fraud would otherwise triumph with impu- nity, were fully stated, and the distinction between the acts regulating applications of this *kind at law and in [*577] equity definitely ascertained. A motion was made for a new trial. The question was as to the forgery of a certain paper, relative to the estate of Captain Girlington. Against this, it was gsaid Justice Foster, "who tried the issues, had certified that he was satisfied with the verdict, and two cases were cited and relied on, in which courts of law had refused a similar motion. The Lord Chancellor, after a brief notice of the rules governing applications for new trials at law, proceeds : " But this court directs issues to be tried at law, to inform the conscience of the court as to facts doubtful before, and therefore expects in return such a verdict, and on such a case, as shall satisfy the conscience of the court to found a decree upon. If, therefore, ,npon any material and weighty reason, the verdict is not such as to satisfy the court to found a decree upon, there are several cases in which this court has directed a new trial for further satisfaction, notwithstanding it (1) Vide Earl of Darlmgton v. Bowes, 1 Eden, 210; Baker v. Hart, I Ves. sen. 28. (2) 2 Yes. sen. 652. 577 NEW TRIALS. [Chap. XVI. Where there has been fraud and surprise, or subsequent discovery of evidence, would not be granted if in a court of common law, because it is diverso intuitu, and because the court proceeds on different grounds. This is known to be the ordinary rule of this court, where a mat- ter of inheritance is in question, for the court says an inheritance is not to be bound by one verdict, i'f any sort of objection arises to the trial ; and that notwithstanding the objection of inconve- nience in examining over and over, which objection has not pre- vailed. This extends also to a personal demand, where of con- siderable value, and where the court is not satisfied with the grounds on which the determination was made at law, and when an objection is made and supported by proof; and particularly in a case of forgery new trials have been granted, and that by judges who sat here, who have been as reluctant as any, and who inclined to adhere to the rules of common law. I remember a case in Lord King's time, relating to a rent charge. It had been twice or thrice tried at common law, tried upon distress taken on the rent charge and an avowry, and where the question [*o78] was singly, *whether it was a forgery or not ; and upon all those trials, verdict was found for the deed. A bill was notwithstanding brought here to set it aside for forgery ; and Lord King sent it to trial under an issue directed by the court ; and I believe there was a new trial after that; and notwithstand- ing all those verdicts, Lord King made a decree to have iL brought into court and cancelled here, the former trials not be- ing to the satisfaction of the court. "(1) A strong example of the interference of the court, in setting aside verdicts and judgments obtained by fraud, is presented in Eeigal v. Wood,{'2) where an attorney revived, by scire facias, an old outstanding judgment, on which but a very small sum, if anything, was due ; and knowing that the land on which the judgment re mained a lien, was in the possession of innocent and bona fide purchasers ; and afterwards made use of the judgment to compel the purchasers, who were ignorant of the proceedings under the (1) Vide Edwim. v, Thomas, 2 Vern. 15 ; Wardens of St. Paul v. Morris, 9 Yes. 155 ; Yaignear v. Kirlee, 2 Dessaus. Chan. Rep. 643, in iwHs. (2) 1 Johns. O: R. 402 Chap. XVI.] IN FEIGNED ISSUES. 578 In feigned issue where tlie verdict is satisfactory. scire facias, to pay and secure to him a debt he claimed against the person under whom they had purchased. The Ohancellor. — " It appears to me, from a view of all the facts and circumstances attending this case, that I am bound to consider the judgment upon the scire facias as unduly obtained ; and that the defendant cannot, injustice and good conscience, be permitted to hold any advantage which he may have obtained under it. It is a well settled principle in this court, that relief is to be obtained, not only against writings, deeds, and the most solemn assurances, but against judgments and decrees, if obtained by fraud and imposi- tion." Alter a review of the case, the Chancellor, having satis- fied himself that the weight of evidence was that the whole of the original judgment, costs as well as debt, had long *before been satisfied, concludes — " I am of opinion, [*579] therefore, that Wood cannot be permitted to acquire and hold any advantage whatever, under the judgment obtained upon the scire facias, and that the whole proceeding was an impositi*i upon the plaintifis. I shall accordingly decree that the bonds and mortgages mentioned in the pleadings be given up and can- celled, and that the money which has been paid upon one of the bonds and mortgages be refunded, with interest, and that the de- fendant, Wood, pay the costs of this suit."(l) lY. In feigned issue where the verdict is satisfactory. The object of issues, directed out of Chancery, being to in- form the conscience of the court if the verdict of the jury prove satisfactory, although the rules of strict law, in the admission or rejection of evidence, or directions to the jury, may not have been complied with, 'a new trial will be refused.(2) .We have seen in Stace v. Mabbot,{3) and in Richards v. Symes,{i) that the court proceeds to dispose of applications of (1) Vide Bamsley t. Powd, 1 Ves. sen. 120 ; Bichmond 7. Taylewr, 1 P. Wms. 134. (2) 2 Tidd, 920; Gra. Prac 415. (3) 2 Ves. sen. 552; Supra, p. 576. (4) 2 Atk. 319 ; Supra, p. 189. 579 NEW TRIALS. [Chap. XVI. In feigned issue where the verdict is satisfactory. this kind by a practice peculiar to equity. The controlling prin- ciple is, to satisfy the conscience of the court. In Boolh v. Blun- deU,{l) a bill was filed by devisees, praying that the will of Henry Blundell might be established against the heir at law. An issue, demsavit vel non, was directed. At the trial, the counsel for the plaintiffs examined one Blanchard, to prove the will and codicil, declining to call the other two subscribing witnesses ; and after the examination of the surgeon and the physician, whose evidence was strong as to the general capacity, [*580] with temporary stupor, the consequence of ai^attack *of jaundice, the counsel for the defendant, who was pre- sent, with his consent, gave up the cause. The defendant moved for a new trial, complainipg of the manner in which this issue, directed for the satisfaction of the court, was tried, with- out examining all the attesting witnesses. For the plaintiffs, it was contended that the rule requiring the examination of all ■vfitnesses, was confined to the Court of Equity, and could nut be applied to a trial at law, either by an ejectment or in an issue. The Lord Chancellor. — " The rule of this court requiring that, to establish a wilj of real estate, all the three witnesses shall be ex- amined, is not, by any means, as it has been represented, a mere technical rule. If this court thinks proper to consider the case upon the record as fit to be governed by the result of a trial, the review or propriety of which belongs to a court of law, the opinion of a court of law is sought in such a form, that it is re- garded as conclusive, whether the judgment is obtained upon a verdict, or in any other shape ; but, upon an issue directed, this court reserves to itself the review of all that passes at law ; and one principle on which the motion for a new trial is made here, and not to the court of law, is, that this court regards the judge's report with a view to determine whether the information col- lected before the jury, together with that which appears upon the record in this court, is sufBcient to enable it to proceed satisfactorily." It appeared in this case, that there was much misapprehension (1) 19 Ves. 494 Chap. XVI.] IN FEIGNED ISSUES. 680 In feigned issue where the verdict is satisfactory. of the law goveruiiig the evidence oa the part of the judge who tried the feigaed issue, yet the Chancellor^ after a review of the whole case^ as reported by the judge, and the probable conse- quences of a new trial, concludes: — " Therefore, though the rule is clear, that a will cannot be established unless all the three wit- nesses are examined — upon which this court looks, not only to what passed at law, but also to what appears upon its own record, and therefore an inconsistency in not calling all the wit- nesses *at law ; and though they are the witnesses of [*581] this court, and not of either party, as they are erro- neously considered, yet guarding this case as a precedent, I will not grant a new trial, the heir having judged for himself at the time of this trial."(l) So, in Hampson v. Hampson,{2) a motion was made for a new trial of an issue, directed to try whether a deed was obtained by duress or fraud. The ground of the motion was, that written evidence had been rejected by the judge, which ought to have been received. The Chancellor refused the application, declaring his opinion, upon a very minute consideration of all the evidence, that though, the paper which was rejected ought to have been received, it ought not to have produced a different verdict. " Courts of equity," observes his lordship, " have an original jurisdiction, which I agree must be exercised according to a sound discretion, to try questions of fact without the intervention of a jury, and which aid is sought, according to the common expres- sion, for the purpose of informing the conscience of the court. I agree that a mistake, in refusing to send the cause to a jury, is a just ground of appeal, if the court of appeal should think that the contrary decision would have been a sounder exercise of dis- cretion ; but it is a competent exercise of the authority and duty of the court, in every case, and throughout every- case, and in every stage, to determine according to its discretion, whether it does, or not, want that assistance." (1) Tide Stamden v. Edwwrds, 1 Ves. jun. 133 ; Bates v. Graves, 2 Ves. jun. 287 ; Bennett v. Taylor, 9 Vea. 381 ; OMlorne v. Parrish, 2 Wash, Rep. 146. (2) 3 Tes. & Bea.-41. 582 NEW TRIALS. [Chap. XVI. In feigned issue where the verdict is satisfactory. So, if the judge who has tried an issue, directed by a court of equity, accompanies the verdict with his dissatisfaction, [*582] but weakly expressed as to the question of fact, it is *not a ground for granting a new trial, should the verdict notwithstanding be satisfactory to the court. Atkins v. Dnilce.{V) This was .an issue directed by this court, in pursuance of an order of the House of Lords, whether for time immemorial there had been payable, and of right ought to be paid to the vicar of the parish of Warenfield, in the county of York, " a modus." There was a decree for the defendant on across bill, praying an account and payment of tithes, from which the complainants had appealed to the House of Lords. The judgment of the House of Lords was made a rule of this court, and the decree of the latter was varied by inter alia referring it to a trial at law, upon the issue mentioned to be tried in a feigned action. The jury found that the modus was payable at midsummer ; that it had been imme- morially paid, and that it covered all the lands in the township, and was not confined to the ancient crofts. The learned judge indorsed upon the postea an abstract of the proof, adding that he should have been better satisfied had the verdict confined the modus to the ancient crofts. Parke moved for a rule to show cause why a new trial should not be had on the grounds that the verdict was against the evidence, and against the opinion of the learned judge. The court granted the rule, and the learned judge's report having been received, and the case argued at great length, the barons delivered their opinions smaftm. Alex- ander^ Ch. B. — "My opinion is, that there is no ground to disturb this verdict. It appears to me, that the jury have drawn a right conclusion from the evidence that was before them. I think it is the conclusion I should have drawn if I had been one of them- selves. I do not undertake to say whether, if the opinion of the learned judge had leen strongly marked, and this had been [*o83] a legal question only, that might or might not*have been a reason for sending it back. But as this is an issue of fact, directed by this court, in which what I have to (1) 1 M'CleUand & Tounge, 213. Chap. XVL] IN FEIGNED ISSUES. 583 In feigned issue where the verdict is satisfactory. consider is, whether the verdict is or is not satisfactory to me, and more especially as the judge has not expressed himself in that strong language, which would warrant a belief that he was extremely dissatisfied with the verdict, his opinion as stated on his notes, containing in effect only a negative pregnant on the subject — it does not appear to me that I should agree to send the question to be tried by another jury." And, per totam Cu- riam, — the rule was discharged. (1) In Coltins v. Hare,{2) in ihe House of Lords, the effect of a strong expression of the satisfaction of the judges on the result of feigned issues, is put thus : — A master, in order to make a provision for a confidential clerk, after his own decease, insures his life for £3,000, he paying two-thirds of the premium, and the clerk one-third, and assigns the policy to the clerk. The clerk has a liberal salary, independent of this bounty; the master dies, and in his will is found a letter, stating that the assignment had been procured from him by undue influence on the part of the clerk, and evidence of declarations by the clerk, that he had it in his power to ruin the credit of the house, by the manner in which he kept the accounts ; held, that the assignment, as to two- thirds of tlie policy for which the master had paid the premium, was fraudulent and void. The Lord Chancellor, in this case, had directed an issue whether there had been " fraud and undue influence," and the jury found there had, and the chief justice, who tried the issue, expressed himself satisfied. Collins then applied to the court for a new trial, principally on the ground that his witnesses had not been examined ; but the ap- plication *was refused, and the Lord Chancellor finally [*584:] decreed that the assignments, so far as related to two- thirds of the policy, were fraudulent and void, and that £2,000 were assets of the testator, John Atkinson. From this decree, Collins appealed. Lord ChanceUor, after stating the case. — " There is, in point of form, something objectionable in this ver- (1) Et vide Ringrose v. Todd, 12 Price, 650. (2) 1 Dow & Clark, 139 ; 2 Bli. (N. S.) 106. 58i NEW TEIALS. [Chap. XYI. Iq feigned issue wliere the verdict is satisfactory. diet, because it is partly hj'pothetical ; but the material point in the case was tried on the issue, and as the issue was directed for the purpose of informing the conscience of the equity judge, if the main object was gained it was sufficient. The judges, both at law and equity, were satisfied with the verdict, and therefore it must be a strong case indeed that should induce your lordships to send the matter to a new trial, in opposition to the opinion of the late noble Chancellor of Ireland, who had a much better op- portunity of investigating the facts on which the case mainly depended, than your lordships have." And a new trial refused. So, in Barker v. Ray and others,(l) it was held, a new trial of an issue will not be granted, merely because, on the former trial, evidence was rejected which ought to have been received. Neither will a new trial be granted, merely because the judge made to the jury an inaccurate representation of the effect of the defendants' answers. Two issues were directed in this case; the first, as to the legitimacy of the plaintiff''s father ; the second, respecting the execution and validity of a will by the father. The jury found for the plaintiff on the first issue, and the defend- ants on the second. The plaintiff moved the Chancellor for a new trial, and chiefly relied on the ground of legal evidence having been rejected. Lord Chancellor. — " In considering whe- ther, in such a case as this, the verdict ought to be dis- [*585] turbbd by a new trial, allow me to say that this *court, in granting or refusing new trials, proceeds upon very dif- ferent principles from those of a court of law. Issues are directed here to satisfy the judge, which judge is supposed, after he is in possession of all that passed upon the trial, to know all that passed here ; and looking at the depositions in the cause and the proceedings, both here and at law, he is to see whether, on the whole, they do or do not satisfy him. It has been ruled over and over again, that if, on the trial of an issue, a judge reject evidence which ought to have been received, or receive evidence which ought to have been refused, though in that case a court of (1) 2 Russell, 63. Chap. XVI.] IN FEIGNED ISSUES. 585 In feigned issue where the verdict is satisfactory. law would grant a new trial, yet if this court is satisfied, that if the evidence improperly received had been rejected, or the evi- dence improperly rejected had been received, the verdict ought not to have been different, it will not grant a new trial merely upon such grounds. "(1) To induce the court to disturb a verdict found on an issue, it must be either contrary to the evidence, or given under the mis- direction of the judge, as to the principles of law. In Savaye v. Carroll,{2) an issue had been directed to inquire whether Beauchamp Bagnall, deceased, and James Carroll, de- ceased, entered into the following agreement: that said Bagnall should convey to the said Carroll the lands of Ballynagrane, in the pleadings mentioned, and that the said Carroll should pay for the same, at the rate of twenty years' purchase, calculated on the rent reserved by the leases of the parts of the said lands, in the hands of the tenants. This cause now came on to be heard on the j udge's certificate of a verdict having been found for the defendant, the minor, establishing the agreement for *the purchase. A motion was mafle on the part of the [*586] plaintiff, to set aside the verdict, and for a new trial. T/ie Lord Ghancelhr. — " This is a motion to set aside the verdict found for the defendant, and for the court to direct a new trial ; and it is insisted that the verdict has not been supported by evi- dence. To enable the court to disturb the verdict, it must be either contrary to the evidence, or given under the misdirection of the judge. No such objection appears to exist in the present case. In directing the issue, I thought it was a case for the jury 'to say, whether the terms of the contract had been full v proved ; they have so decided after hearing the evidence, and unless I have been wrong in saying that part performance took the case) out of the statute, I am bound by the verdict. "(3) (1) Vide Pemberton v. Perriberton, 13 Yes. 290. Ex parte Solykmd, 11 Ves. 10 • Wardens, &c. v, Morris, 9 Ves. 155. (2) 2 Ball & Beatty, 454. (3) Vide Okeve v. Gascoigne, Ambler, 325, et m nods. 586 NEW TRIALS. ' [Chap. XYI. _^ • In feigned issue wiiere the verdict is satisfactory. The principles contained in these rules and illustrated by the English authorities, as to issues out of equity, are embodied and illustrated in two recent cases in equity in this state. The first before the Chancellor. Apthorp V. Comstock.{\) A question arose upon the genuine- ness of a deed on which the Chancellor directed several issues, all going to establish the single fact. The jury having found a verdict for the complainants on each of the issues, the cause was again heard, on a motion for a new trial, and upon the equity reserved. After a brief review of the cases, the Chancellor pro- ceeds: — "It may be proper to observe, that -the principles upon which this court directs a new trial of a feigned issue, are some- what different from those which govern courts of law in granting new trials. Where this court directs an action, although accom- panied by particular directions, the parties, in other respects, are left to their legal rights. The application for a new [*587] trial is, in that case, to be made to the court in which *the action is brought, and is subject to the rules which govern the proceedings of that court in other cases. But if an issue is directed, it is to inform the conscience of the Chancellor, and the application for a new trial must be made here. In the latter case, the court will not grant a new trial merely on the ground that the judge received improper testimony on the trial of the issue, or that he rejected that which was proper, if, on the whole facts and circumstances, the Chancellor is satisfied the re- sult ought not to have been different, if such testimony had been rejected in the one case or received in the other. The first ob- jection on the part of the defefldants is, that the judge received evidence of the acts and declarations of persons not parties to the suit, and who where not acting as agents for the defendants. There is sufficient testimony, however, to which no legal objec- tion exists, to satisfy me that an intelligent jury must always come to the same result, upon the main point on which the equit- (1) 2 Paige, 482 ; et vide 1 Hopkins, 143 ; 8 Cowen, 386. Chap. XVI.] m FEIGNED ISSUES. 587 In feigned issue where the verdict is satisfactory. able rights of these complainants rest. On that point, the con- science of the court is satisfied."(l) The case of Muhch v. MulocIc,(^) came before the Vice-Chan- cellor of the first circuit. A feigned issue had been directed to try the question of adultery, and the jury had rendered a verdict of guilty against the defendant, upon which he applied for a new trial. The Vice- Chancellor.- — "The bill, in this case, is filed by the wife against the husband,- for a divorce, dissolving the mar- riage contract on the ground of adultery. A feigned issue has been tried. The jury have found for the plaintiff, and the pro- ceedings are returned to this court, with a certificate of the pre- siding judge, that the verdict was fully supported by the evidence, *and was satisfactory to him. A motion, [*588] however, is made for a new trial. It is applied for on two grounds : 1st, Because the verdict is not warranted by the evidence ; or, in other words, that there is no evidence of any adultery committed by the husband ; and 2d, That the judge ad- mitted improper testimony to go to the jury. In the first place, it may be observed, that it is not necessary to prove directly the fact of adultery. If it were so, there are but few cases in which the charge of it could be substantiated. On looking into the case before me, I do not discover any direct evidence of the fact. Still, after a careful examination of the circumstances, as proved to the jury, and which need not be here repeated, (independent of, and entirely aside from what is deemed by the defendant's counsel as objectionable testimony,) I cannot perceive how the jury could avoid the conclusion they came to, nor how any reasonable man can doubt the existence of the fact charged against the defend- ant. But it is said improper testimony was admitted ; and, there- fore, the verdict should be set aside. The evidence alluded to consisted of acts of cruelty, or personal violence of the husband towards the wife. It was offered, as stated in the case, with a view to show an alienation of aflPection on the part of the defend- (1) Vide eif parte Kensington, Coopers' Chan. Gas. 96 ; Eeadv. Head, 1 Sim. & Stu. 160 ; Stace v. Mabbot, 2 Ves. sen. 552 ; GuUins v. Mare, Supra, p. 583. (2) 1 Edwards, U. 588 " NEW" TEIALS. [Chap. XYI. Where the verdict on the feigned issue is unsatisfactory. ant towards his wife, from the period of his first acquaintance with the object of his adulterous connection, and to prove that the banishment of the wife from her home was the result of a plan to introduce the other into his house, the better to continue his illicit intercourse with her. Under this view of the case, I am of opinion the judge was substantially right in the decision he made respecting the admission of such testimony. But, be that as it may, from the view which I have taken of this case, and from the well settled principles of equity in relation to the granting of new trials on feigned issues, I do not feel myself warranted in dis- turbing the present verdict. It is well understood that the rules which formerly governed courts of law in granting new [*589] *trials, upon the grounds of testimony improperly ad- mitted or rejected, have not been adopted by the Court of Chancery. The object of a feigned issue is to satisfy the mind of the equity judge upon matters of fact ; and the object is attained, when the conscience of the judge is satisfied that, at the trial, justice has been substantially done." A new trial was re- fused.(l) Y. Where the verdict on the feigned issue is unsatisfactory. If the verdict on the feigned issue be decidedly unsatisfactory to the judge who tried the cause, or to the court who directed the issue, it is a matter of course to order a new trial, and toties quotiesj, although no rule of law may have been violated, nor the finding of the jury against the weight of testimony. (2) The latter branch of the rule will be illustrated in the case of O Connor v. Gooh.{S) An issue had been directed on a modus for certain lands, and the jury found for the plaintiff in the issue, who was the defendant in equity. A motion was made for a (1) YideWilMams v. Bacon, 1 Sim. & Stu. 415 ; Tastetv. Bordenave, 1 Jacob, 516 j BooSe V. Blundett, 19 Ves. 503 ; Stace v. Mabbot, 2 Tes. jr. 552 ; SiJ^% p. 61%. (2) 2 Tidd, 920 ; Gra. Prac. 416. (3) 8 Ves. 535 ; et vide 6 Ves. 665. Chap. XVL] IN FEIGNED ISSUES. * 589 Where the verdict on the feigned issue is unsatisfactory. . new trial on the grounds of misdirection, and new evidence sub- sequently discovered. The Lord Chancellor — " I am of opinion there ought to be a new trial in this case. Beyond all question it belongs to the constitution of a court of equity to decide upon matters of fact, if they think proper. But courts of equity have, for a great number of years, where questions of fact have been disputable, thought it a more proper exercise of their jurisdiction, to have them determined by a jury. At the same time, when ad- ministering the equitable relief afterwards, their own judgment ought to concur with the verdict, *to this ex *[590] tent at least, that they are not dissatis%d with the ver- dict. They ought to be satisfied that the questions upon the facts have been fully and distinctly before the jury. The ground upon which I grant the new trial is not that the verdict is not satisfactory upoa the facts ; for I desire it to be understood that I form no conclusion upon the facts. But I am of opinion the points in this case have not ieen distinctly before the jury. I can- not hold the language that has been held, as to sending this to the prejudices of a jury. A jury is the constitutional tribunal of the country ; and I am not at liberty to suppose they will be guided by prejudice. At law, I should have taken care not to have mixed any prejudices of xaj own with this question ; but I do not think I could, as a juryman, have found the verdicts supporting some of these payments."(l) So, if the verdict be unsatisfactory, as in The East India Com- pany V. Bazett and oihers.{2) This was a bill of interpleader, filed against several persons, claiming respectively to be entitled to sixty-two chests of indigo, of which the plaintifis were holders. On a motion to dissolve the injunction, an issue was directed to try whether the defendants. Cannon and Harper, were entitled to the indigo in question ; they were to be the plaintiffs, and the other defendants the defendants in the issue. The trial took place at OuiUhall, before the Lord Chief Justice of the King's (1) Vide CarriTigUm-v. Jones, 2 Sim. & Stu. 135 ; Davis y. Moseley, 13 Price, 423 ; 1 M'Clelland, 143 ; etvidetdtra, 13 Price, 755; 1 U'Clelland, 705. (2) 1 Jacob, 91. 590 • NEW TEIALS. [Chap. XVL Where the verdict on the feigned issue is unsatisfaetory. Bench and a special jury, and -a verdict was found for the de- fendants. A motion was made for a new trial, on grounds con- tained in the opinion of the court. The Lord Chancellor. — " Was this case so satisfactorily tried that the conscience of the [*591] court can be assured that it was *duly considered and • duly decided? The jury were charged by the judge, and perhaps they might have been charged to decide in the man- ner in which they have decided; they then retired, whether for an hour or half an hour is not material, and then three of them return to the court, and represent that it is a case of such diffi- culty that they think they never shall agree. Looking at their going out of court, under these circumstances, not having then agreed, and at their not having agreed up to the time of their sending the second message to the plaintiff's solicitor, I cannot consider that the question which they could not decide in two hours, could be properly settled in so short an interval as elapsed between that message and their delivering the verdict. I dp not think that is the way in which issues from this court should be tried. I beg it to be understood, that I do not impute anything to the jury. They probably thought it was the best verdict ; but there was not a period sufficient for consideration between the existence of the difficulty and its removal." And for this cause a new trial was granted. (1) So, where it appeared the verdict had been obtained by sur- prise and against the opinion of the learned judge who tried it, being also contrary to the opinion of the equity judge, a new trial was granted. An issue was directed in Willis v. Farrer,{2) tried before Mr. Justice Bayley and a special jury, who rendered a verdict for the plaintiff. Brougham, for the defendant, obtained a rule to show cause why :i new trial should not be granted, on the grounds that the verdict was contrary to the evidence, and given through mis- take and surprise, and against the opinion of the learned judge, (1) Faulconberg y. Pierce, Ambler, 210; Smelly. Freestm, 1 Chan. Cas. 65. (2) 3 Tounge & Jervis, 264 ; Supra, p. 356. Chap. XYI.] IN FEIGNED ISSUES. « 592 Where the verdict on tlie feigned issue is unsatisfactory. who, on the trial, had gone through the evidence of the *plaintiff, and some part of the evidence of the defend- [*592] ant, and was making an observation in favor of the de- fendant, when the jury interrupted him, saying, they were quite satisfied ; and the judge thereupon stopped, and the jury found immediately a verdict for the plaintiff. The Lord Chief Baron, after a review of the testimony and the opinion of the judge, followed with an expression of his dissatisfaction with the ver- dict, concludes: — "I think the learned judge was warranted in directing the jury to consider whether hay might not, in the early terriers, mean all the produce of grass land. In the inter- pretation of ancient instruments, usage has frequently supported a new mode of construction. In this case that construction is sustained, not only bythe usage of payment, but by many other instruments putting that construction upon them, and by a great body of parol testimony, the reputation in the parish, and the deoiM-ations of deceased parishioners. I do not feel that the ex- pressions in the documents are so full, clear and unequivocal as to authorize nie to presume the endowment necessary to support the vicar's claim, in opposition to undisputed usage ; to the strong probability of the title being in substance rendered else- where ; to the claim of the parish for many years ; to the formal admission of that claim by two of the vicars ; and to the acqui- escence of all, till the present suit. I think the verdict must be set aside, being against the opinion of the learned judge ; and that it must be tried again. "(1) So in Yanhar v. Yanlear.{2) A new trial awarded on a feigned issue, to try the validity of a will on the dissatisfaction of one of the judges who tried it. The verdict was for the plain- tiff, thereby establishing the will. The defendant's coun- sel moved the court to grant a new trial, *on the ground [*593] that the defendant was sick and unable to attend, having material testimony to produce ; that the trial was urged on by (1) Vide Morris v. Davies, 3 Russell, 318; Atkyns y.. Drake, 1 M'CIeiland & Tounge, 380. (2) 4 Yewtes, 3. Vol. I. * 37 593 NEW TEIALS. [Chap. XVI. ■Where the verdict on the feigned issue is unsatisfactory. the plaintiff by surprise, and that the verdict and judgment thereon would be final and conclusive. The charge of the Chief Justice was in favor of the writing as a will ; but Smith, J., ad- ded, that on the most mature reflection, he was not satisfied with the decision of the jury, and thought the case required another hearing. The' counsel submitted the case to the court. Per Curiam. — " We wish not, by our remarks, to prejudice the plain- tiff's cause. Let there be a new trial ; it will give more general satisfaction." As the power to graiit new trials originates with the jurisdic- tion of courts of equity, they exercise it in all cases, indiscrimi- nately, at common law. In this state, however, there is one class of cases that have been provided for specially, as to the exercise of equity powers in granting new trials in feigned issues. Our statute having introduced a particular kind of equity juris- diction, granting divorces a vinculo matrimonii, on the ground of adultery, has directed a feigned issue, and added that the court " may award a new or further trial of such issue, as often as jus- tice shall seem to require."(l) Thus, in Germond v, Germond,{2) where the testimony was not warranted by the issue. The complainant had charged the de- fendant with having committed adultery with one W. C. F., in Eensselaer county, and in New York with persons unknown ; and on the trial had proved the defendant had committed adul- tery in that county, not with W. C. F., but with another. The jury found the adultery as charged. The finding being out of both the issue and the testimony, upon an application for a new trial, the Chancellor, having reviewed the pleadings and [*594] *the English authorities bearing an analogy to the prin - cipal case, concludes: " I have gone into this examina- tion of analogous cases, to show that probably the better opinion is, that^a charge of adultery need not specify the names of the per- sons with whom it was committed ; and certainly it cannot and (ij 2R. S. 145, sec. 40. (2) 6 Johns. 0. E. 347. Chap. XVL] IN FEIGNED ISSUES. ' 594 When the application must be made to the court of equity. need .not be required, if the persons are unknown when the bill is filed. But, in this case, as the feigned issue specified a parti- cular individual in the county of R, and had no general charge as to that county, I conclude that the plaintiff should be con- fined to that specific charge, I shall accordingly set aside the verdict, on account of the admission of evidence not warranted by the issue as it stood, and shall award a new trial, and allow the plaintiff to amend the feigned issue as he shall be advised."(l) VI. When the application must he made to the Court of Equity. When the feigned issue is directed out of Chancery, the ap- plication for a new trial must be made to that court. It is in- tended to inform and to satisfy the. court, and of this no other court can be the judge.(2) BowTcer v. Nixon.i^) This was an issue directed by the Court of Chancery, which was tried before Heaih, J. Shepherd, solicitor- general, now moved for a new trial, upon the ground that cer- tain evidence had been improperly rejected. He was aware that the general rule, with respect to issues of Chancery,, required that the- motion for a new trial should be first made in that court ; but he conceived that where the point related to the propriety of the decision of the judge who presided at the trial, as to the ad- mission or rejection of evidence, it formed an exception to the rule, and that the motion, in such case, ought to be *first made in the court of law. The court held that, [*595] in questions of evidence, as well as all other cases, the distinction made in this respect, between issues out of courts of equity and other actions was to be observed, and that this ap- plication must first be made to the Court of Chancery. And rule refused. (1) Etvide 2 Mad. Chan. 381; Fowkesy. Ghadd, 2 Dick. 516; Bates y. Graves, 2 Tea. jr. 287 : Codd v. Codd, 2 Johns. 0. R. 224. (2) Vide 1 Newl. Chan. Prac 363. ' (3) 6 Taunt. 444. 595 . NEW TEIALS. [Chap. XYL When the application must be made to the court of equity, So, in Stone v. Marsh,{\) where, on an issue directed to be trieci at law by the Lord Chancellor, points at law were reserved for consideration, it was held, the motion for a new trial, with a view to have the points discussed, must be made in Chancery, and not in this court. , The same practice prevails in this state ; as in Doe v. Eoe.(^) Feigned issue, ordered by the Chancellor to try the question of adultery. A verdict having been found for the defendant, a case had been made for a new trial in this court. A motion was made to strike the case from the calendar, upon the ground that the application should have been made to the Court of Chan- cery. Per Ouriam. — " Applications for a new trial, upon these feigned issues, have, in several instances, been made to this court, without objection, as appears from the cases cited by the plaintiff's counsel ; and one of those applications was upon a feigned issue, to try the fact of adultery; but they are also enter- tained in the Court of Chancery ; and the statute seems to con- template the latter court as the proper tribunal for this purpose, Without sajing, therefore, whether we have power to hear and determine the motion for a new trial in this cause, we order it to be stricken from the calendar, on the ground that this is a matter more properly cognizable in the Court of Chancery." And in Doe v. Roe.{B) This was a case made on trial of a feigned issue of devisavit vel nori^ directed by the ju<'ge [*596] *of the sixth circuit, sitting in equity. The judge of that circuit tried the cause at law. The cause being on the calendar of the present term for argument upon the case, Phtt moved, on the authority of Doe v. i?oe,(4) to strike it off. Spmcer smOi that case was distinguishable from this; not only as being an issue on a bill filed for a divorce, but also as arising under the old organiziition of the judioi.iry, when the judge who held the circuit had no chancery powers. Here, the very judge (1) 8Dow. &Pyl. 71. (2) 1 Cowen, '2 1 6. ' (SI 6 Cowen, 65. (*) 1 Cowen, 216. Chap. XVI. IN FEIGNED ISSUES. 596 . When the application mn'it be raaiie to the court of equity. who orders the issue, tries the cause at the circuit, and reviews it on a motion for a new trial. Curia. — " We do not mean to say that we have not power to hear the case, but we think the more proper course is to move in the Court of Equity," Motion granted. Our statutes have not divested the courts of law of any juris- diction they may have possessed at common law, on the subject of feigned issues. But those legislative provisions which refer expressly to feigned issues, in causes originating in courts of equity, of to be reviewed by them on appeal, point to these courts as the legitimate source of relief from the oppression of unjust verdicts, on issues directed by themselves. Between the decisionsof our Supreme Court just cited, and our Revised Stat- utes subsequently adopte ), there appears to exist a perfect ac- cordance on this subject.(l) (1) 7ii(fe 2 R. S.66, 145, 115, 609. *597 NEW TEIALS. Terms of granting new trials. ^CONCLUSION. I. Ternfs of granting new trials. 11. Costs for irregulaiity, &c. III. Other terms superadded to costs on the merits. I. Terms of granting new trials. As a conclusion to this work, it may be proper to take a brief notice of the Terms on which verdicts are set aside, and new trials granted. Here the discretion of the court is unlimited; the governing principle being, to do strict justice between the contending parties. Some cases ai'e so strongly marked, as to furnish precedents from which rules have been extracted of easy application ; while others have required the close attention of the court to the merits, and to the probable consequences of granting the motion affecting the justiue of the case. The terms are distinguishable into two kinds ; one, where costs only are imposed; the other, where the courts superadd to the pay- ment of costs other conditions, with reference to the pleadings or the merits, or the probable result. In imposing costs only, the courts confine their views to the antecedent proceedings; but in superadding other terms they look at the consequences, and pro- vide against injustice or undue' advantage in the event of de- priving the prevailing party of the verdict. 11. Costs for irregularity, &c. Among the more prominent and well defined rules, imposing terms as to costs, is one whose application is of daily occurrence, that wherever a party seeks to be relieved from the consequences of his own irregularity, or his adversary asks to set aside pro- ceedings for that cause, he must pay costs.(l) (1) 2 Tidd, 921 ; 2 Arch. Prao. 228 ; Gra. Prao. 516. CONCLUSION. 598 Costs for irregularity, &c. *Another rule, equally well defined, and applicable [*598] to new trials, is, that the party asking a favor, and ex- cusing himself, when his adversary is in no default, must pay costs.(l) For instance, if he ask to have the verdict set aside upon the ground of the cause having been called on in the ab- sence of counsel. As in Fourdrinier v. Bradbury,{2) where the court directed a new trial, only on payment of costs. Or where there has been surprise, as in Thurtell v. Beaumont ;(3) or asks to set aside a non-suit, occa^joned by the accidental absence of a witness, as in Skiliito v. Theed.{4:) It is no less clearly settled, that where a verdict has been had mala fide, the court will only set it aside as of course, but will, in gross instances, impose costs on the party who has resorted to the fraud. As in Anderson v. George,{b) where the court not only set aside the verdict, but set it aside without payment of costs ; and declared the next time that a party should obtain a verdict in like manner by an unfair, unconscionable advantage, without trying the real question, they would set aside the ver- dict, and mEike him pay the costs. So, in the case in Buller,{6) where the plaintiff had concealed in his house a material witness for the defendant, so as to avoid the being served with a subpoena, and had a verdict, which the court set aside without costs.(7) And, to mark their detestation of procuring verdicts by unfair practice, the courts have, in some instances, directed *the attorney of the party, who has misbehaved in pro- [*599] curing the verdict, to pay the costs out of his own (1) Vide last cited authorities in loco. (2) 3 Barn. & Aid. 328 ; Supra, p. 174. (3) 1 Bingham, 339 ; Supra, p. 170, 225. (4) 6 Bingham, 753, and vide oases cited as illustrative of Absence, Surprise and Mistake of Parties, anie chap. 6 ; and of Witnesses, chap. 7, passim. (5) 1 Burr 352 ; Supra, p. 56. (6) Bull. N. P. 328. (7) m vide Hull, on Costs, 391. 599 NEW TRIALS. Costs for irregularity, &o. pocket. As in Truhody v. Brnin^iy) where the plaintiff's attor- ney contradicted the testimony given by one of the defendant's witnesses, who had sworn that he ne^er had had any conversa- tion with the former on the subject in question, by staling posi- tively that he had, knd what the conversation was. The defend- ant's witness was in consequence committed for perjury, but was afterwards discharged, on the attorney stating the next day that he might have been mistaken in the person of the witness for that of his brother, who greatly resembled him. An application being made for a new trial under these circumstances, and that the plaintiff or his attorney should be ordered to pay the costs of the former trial, the court granted a rule accordingly, which was afterwards made absolute ; the court ordering the plaintiff's attorney to pay the costs of the former trial. There is another case where the party must pay costs to en* title him to relief; when, on the motion, he puts forward some new ground not taken at the trial. As in Satton v. Mitchell,{2) where the defendant moved to set aside the verdict on one part of a section of a statute, but had relied on a different part at. the trial. The motion was granted, but with costs, with this nota appended: "The rule was made absolute on payment of costs, because this motion was made on a new ground, not opened be- fore on the trial." In these cases, costs are allowed as a matter of strict right, and cannot, therefore, be said to be in the discretion of the court. They are the mulct the law exacts for irregularity, or, what is equivalent to it, negligence or circumvention. Besides, the party who has the verdict has obtained it in the course of a correct practice ; and justice requires that he should not be [*600] placed in a worse situation, *or subject in any event to costs, by conferring a favor on his less vigilant or up- right adversary. (1) 9 Price, 76 ; Svpra, p. 68. (2) 1 Term Rep. 18. CONCLUSION. 600 Costa for irregulHrity, &c. But there are other cases requiring review, where the parties are equally blameless, and where costs do not follow of strict riglit, upon setting the verdict aside. Here the courts exercise tibeir discretion, and generally grant the motion without costs, or direct the costs to ab.ide the event, upon the ground that the ne- cessity for a second trial has grown out of occurrences which the parties could not control, and where some blame is to be attached to others. Of this description are new trials for the misdirection of the judge, his admission of illegal, and his rejection of legal testimony, and his directing a non-suit, contrary to law.(l) As in Buscall v. Hbgg,{2) where the plaintiff was improperly non-suited, but with leave to move to set aside the non-suit with- out costs, which was granted on motion. So in Vale v. Bayle,{3) where, upon a qutfstion of delivery of goods to a carrier, there v/as prima facie proof. The judge, notwithstanding, non-suited the plaintiff, and the court set it aside without costs. And in Williams v. Smi(h,{i) the rule is recognized thue: — " In another cause, between the same parties, the court said the granting new trials was always on payment of costs, unless otherwise expressed, or when for the misdirection of a judge; in which latter case, they abide the event of the sait."(5) And the same rule will apply to setting aside a non-suit, to which the plaintiff has submitted, in compliance with the erro- neous direction of the judge, as well as where he is non-suited against his will. Asm Pochin v. Pawley.{()) Assumpsit against a surveyor of a turnpike road. The *judge [*601] thought there was no evidence of a contract with him, but with the commissioners who employed the defendant ; and he would have non-suited the plaintiff, but he refused, and had (1) Tidd, 921; Gra. Prao. 516; Say. Costs, 189; 6 Cowen, 690. (2) 3 Wils. 146. (3) 1 Cowp. 29T. (4) 2 Caines, 253. (5) Vide Birkeit v. WiUan, 1 Cbitty's Kep. 633, et in notis ; Sherlock v. Bamerd, 8 Bingham, 21. (6) 1 W. Blacks. 670. 601 NEW TRIALS. Coats for irregularity, &c. a verdict. On motion to set it aside, the court were unanimously of opinion with the judge who tried the case, and as the plaintiff had refused to be aon -suited, contrary to the opinion of the judge, they granted the new trial without costs. It is added, "In like manner, as, where a plaintiff" submits to a non-suit, in compli- ance with the erroneous opinion of a judge, the non-suit shall be set aside without costs."(l) Upon the same principle, the court will set aside the verdict and grant a new trial without costs, where the jury have mis- behaved themselves.(2) Thus, where the jury drew lots, although they happened to find according to the evidence and the opinion of the judge; Hall v. Cove.{B) Upon motion for a new trial, it was agreed that the verdict must be set aside ; but the question was, whether the defendant should pay costs. 'The court inclined to give the plaintiff costs, comparing it to the case of a verdict against evidence; but at last it was agreed that the costs should wait the event of the new trial. (4) So, where the jury render & perverse verdict; but not where they honestly commit an error. This distinction is taken in a recent case, Shillitoe v. t!laridge.{b) Upon a motion for a new trial, on the ground of a verdict clearly against evidence, in this case. Lord Mknborough said, that it was the rule that where the verdict has been the error of the jury, the new trial is [*602] always with costs; but where *there is any misconduct in the jury, Lord Kenyan had made an exception, and the court had often done so since. So in iScoti v. Waikinson.{6) Action for the price of a stack of hay, £18. The jury, after a strong intimation from the learned baron that the plaintiff was entitled to" recover, found a verdict (1) Sed vide 1 Anet. 41. (2) 2 Arch. Prac. 228; Gra. Prao. 516; Hull. Costs, 383. (3) 1 Str. 642. nvide Willes, 488. (4) As to Misbehavior of Jury, and terms of relief, vide ante ohap. 4, passim, (6) 2 Chitty'a Rep. 425. (6) 4 Moore St, Payne, 237. CONCLUSION. 602 Costs for irregularity, &c. for the defendant. The plaintifl' moved to set aside the verdict, as against evidence and the express opinion of the judge, and therefore perverse, and out of the rule governing cases under £20. The court said that they would communicate with Mr. Baron Vavghan on the subject; and Mr. Justice Par^said, that he had seen him, and that he said that although he should have been better satisfied if the verdict had been the other way, yet#hat he did not consider it so perverse as to induce the court to grant a new trial without payment of costs.(l) And it appears to be well settled, that upon a case reserved and judgment on the merits, as well as on a case reserved, but imperfect, the costs will follow the event.(2) In Hodgson v. 'Barvis,(B) where the jury rendered a perverse verdict,(4) and it was insisted that the new trial should be with- out costs. Lord Ellenhorough said, that where there was any perverseness in the finding of the jury, the rule for a new tiial had been made absolute, without costs; and he added, that when at the bar, he "had often obtained such rules, on that ground, without costs. Eventually, he said that the costs should abide the event.(5) *But the rule does not apply to new trials granted on [*603] the ground that the verdict is contrary to evidence, or that the damages are excessive.(6) This being a verdict produced in the exercise of an honest, but mistaken judgment, and no rule of law violated, the courts have thought proper that the party asking to disturb it should pay costs, not as a mulct, but as the price of relief from misfortune, where no blame to any (1) Vide Freeman v. Price, 1 Tounge & Jervis, 402. (2) Vide 1 Str. 300 ; 3 Term Rep. 507 ; 6 Term. Rep. 11, 144. (3) 2 'Ciiitty's Rep. 268. (4) As to Perverse Verdicts, and relief from, vide supra, 121. (5) Et vide Jackson v. Duchaire, 3 Term Rep. 651 ; Jackson v. Lomas, 4 Term. Rep. 166; Feise v. Ramdall, 6 Term. Rep. 146. (6) 2 Tidd, 921; Gra. Prao. 616. 603 NEW TRIALS. t!o8ts for irregularity, &o. one can, with propriety be attached. The application is for a new trial, strictly on the merits. In an Anonymous case,(l) the court take this distinction : " If a new trial be granted for irregularity, there shall be no costs paid for it ; but if defence be made, it may help the irregularity. If ne# trial be upon the merits of the cause, there must be costs. "(2) In the leading case. Bright v. Eynor),{B) there was a verdict against evidence ; and motion for a new trial granted on pay- ment of costs by the plaintiff, after motion of the plaintiff's counsel that it should be without costs. And in Burton v. Thompson, (i) and Mucrow v. Hull,{p) it was assumed that the plaintiff', in both instances, would have to pay costs ; and, upon this assumption, although the verdicts were clearly against evi- dence, yet the cases being of a frivolous character, a new trial in neither case was worth the paying for, and they were, for that reason, in both instances refused. But payment of costs is not the only, or indeed tlie principal condition on which new trials are directed. There are other cir- cumstances, much more deeply affecting the rights of the parties, atid, in protecting these against the unequal consequences of dis- turbing the verdict, various circumstances present themselves, calling for the imposition of such terms to accompany [*60J:] the rule, as may *furnish the best security of even- handed justice to both parties, in any event. For thi^ purpose there is an uncircumscribed latitude of power, to be guided by judicial discretion, inherent in courts of justice. (1) 12 Mod. 370. (2) El vide Hull. Costs, 383, 381. (3) 1 Burr. 390. (4) 2 Burr. 664 (5) 1 Burr. 11. CONCLUSION. 604 Oilier terms superadded to costs on the merits^. HI. Other terms superadded to costs on the merits. The terms imposed on setting aside verdicts, in addition to costs, may be divided into ordinary and extraordinary. To the former belongs the rule with which every practitioner is familiar, that of pleading or replying instanter, taking short notice of trial, and, in a word, placing the regular party in no worse situ- ation than he would have been, if that which has caused the ap- plication for relief had never happened. The extraordinary terms arise out of the merits of the case, the relative situation of the parties, the probable consequences of de- lay, the advantage or disadvantage that may result to either par- ty from the state of the pleadings, the prejudice that may result to the prevailing party from opening the whole case : and again, putting the entire merits afloat, the propriety of protecting the party from being harassed with double applications on cases and bills of exceptions ; and, in short, the necessity of preserving and securing good faith, and the best chance for impartial justice upon the final disposition of the case. All these considerations press upon the mind of the court, iind call for salutary condi- tions to accompany the relief granted. To accomplish, at the same time, the claims of justice, by sending the case to another jury, and protect the rights of the party in possession of the verdict, the courts will direct the requisite stipulations to be in- serted in the rule ; and, for this purpose, the court will look into the case.(l) Thus, The verdict will be allowed to stand, or the money directed to be paid into court as securit}', when the court is satis- fied that the rights of the party who has obtained *the [*605] verdict, would probfibly be prejudiced by delay if the verdict were set "aside. This is a condition of frequent occur- rence, and evidently just.(2) And, it seems, where a special (1) Keafe v. Temple, 1 Bos. & Pul. 158. •(2) 2 Tidd, 922 ; Gra. Prac. 516 ; et vide 8 Taunt. 112. 605 NEW TRIALS. Otlier terms Superadded to coats on the merits. case has been reserved, a new trial has been granted, without previously setting aside the former v'erdict.(l) If the putting of the whole case afloat upon the law and facts would produce an unequal hazard to the prevailing party, the court will limit the new trial to a single point. As in Thwaites V. Sainsbury.{2) Assumpsit, and the defence was, that the plain- tiff had taken bills of exchange on his own risk in full, and re- leased the defendant from all responsibility. There was a ver- dict for the plaintiff; and, on motion for a new trial, as contrary to evidence, the court intimated a wish to limit the inquiry to the single question, whether the plaintiff had agreed to take the bills on his own risk, expressly releasing the defendant from any responsibility. Spankie, sergeant, objected that the court, in the exercise of its discretion, as to granting a new trial, had seldom or never restricted a party in this way to a single point of in- quiry ; and he prayed to be allowed as usual, to go to trial again generally, without restriction. But the court observing, that in causes where the defence was set out in pleading, the parties would, on a second trial, be necessarily confined to the iss.ues which were on the record at the first trial ; and that it was ex- pedient the same course should be pursued where a particular line of defence had been relied on under the general issue, im- posed that condition on the defendant, and made his rule for a new trial absolute, on the following terms : — Payment of costs ; bringing into court the money sought to be recovered ; and limit- ing the inquiry on the new trial to the single point, whe- [*606] ther the plaintiff had agreed to take the bills on *his own risk, expressly releasing the defendant from any respon- sibility. In addition to the ordinary condition, that witnesses may be examined de bene esse, the court may impose the further term, that evidence taken on the former trial may be read on the second trial ; as in ShilUtoe v. Oiaridge.{S) The court having (1) Lofft, 451. (2) 7 Bingham, 437. (3) Chitty's Rep. 425. CONCLUSIOK 606 Other terras superadded to costs on the merits. granted a rule to set aside the verdict, on payment of costs, Baine moved, that as one of the witnesses was very old and ill at the time of the trial, it should be made a part of the rule, that the chief baron's note of his evidence should be read on the new trial. Lord Mknhorough, Ch. J., said that that might be made part of the rule. If the applicant for a new trial would acquire any undue ad- vantage by the state of the pleadings, on setting aside the ver- dict, the court will protect the party who has the verdict, by im- posing as terms, that the new trial is to take place on the merits, without regard to the form of the action.(l) Or, if an amendment should become necessary, they will allow the opposite party the same right to plead, or reply, or demur, as he had before he put in his plea or replication, as in Williams v. Pratt.{2) The plaintiff was non-suited, on the account of a variance. On the application to set aside the non-suit, the court granted the plaintiff a rule nisi for a new trial, with leave to amend the declaration, on payment of costs. The rule was made absolute, the court saying, " The plaintiff should be at lib- erty to amend his declaration generally, and the defendant may then either plead ue novo, or demur to the declaration, according as he m^ be advised."(3) Or, if the case stands so upon the pleadings, that if the *defendant has a'new trial he may non-suit the plain- [*607] tiff; and, on the other hand, if the plaintiff is allowed to amend his declaration to meet his proof, the defendant will lose the benefit of his offset, the court may refuse the motion, as, upon the whole, the best adopted to do equal justice; as in Qerbier v. JEImery,{4:) where the court say the new trial could only be for the purpose of non-suiting the plaintiff; and if the (1) Welsh V. Dusar, 3 Bitin. 329. (2) 5 Barn. & Aid. 896. (3) Soar v. MiU, i Maule & Solw. 470; Billhead v. Abrahams, 3 Taunt. 81. (4) 2 Wash. 0. C. Rep. 413. 607 NEW TEIALS. Other ferms superadded to coats on the merits. plaintiff were allowed to amend, the new trial could be of no use to the defendant, and therefore discharged the rule. Or, if necessary to the justice of the case, the court will impose, as a condition, that the party consent that the form of action be changed, as in Walker v. Long,(l) where the court held this lan- guage — " In granting a new trial, the application is made to the discretion of the court ; and it is in the power of the court to lay the party applying under equitable terms. This power should always be used to prevent the plaintiff, if possible, from being turned round, which can only occasion delay and additional ex- pense. In this case, the court grant a new trial, on condition that the defendant consent that the form of action be changed to an action of account render, and that the costs of the former action abide the final event of the cause. The court are aware, that they have gone further than they are warranted by any precedent; but they think not further than they are justifiable in their discretion upon the subject of a new trial." If parties claiming in right of others, who are irresponsible, apply for a new trial, the court will impose upon them, as a con- dition, that they consent" to be bound by the verdict, and to be responsible for the costs, as in Nbhk v. Adams.{2) The [*608] assignees of the plaintiff, a bankrupt, claimed *the bene- fit of a recovery, and on a verdict for defendant,^pplied to set it aside. The Court observe : — " It is fit to impose the terms, that the assignees of the plairitifi", who is now a bankrupt, shall consent to be bound by the event of this action, and to be re- sponsible for the costs." The assignees of the plaintiff signified their refusal to accept the permission offered them. And, Per Curiam. — " The plaintiff is a bankrupt ; he will be unable to pay any costs himself The defendant has obtained a verdict. The plaintiff, or rather his assignees through him, apply for a new trial. They profess, that if the plaintiff gets a verdict against the defendant, they will take the benefit of it ; if Noble fails, they (1) 2 Browne's Rep. 126. (2) 1 Tauut. 59. CONCLUSION. 608 Other tenns superadded to costs on the merits. refuse to be bound by the verdict or pay the costs, upon the ground that this is res inter alios acta. Upon that ground, that it is res inter alios acta, we leave them to that right of action which remains to them, and this rule must be discharged. But it will be different, if the plaintiff sue in his own right and be insolvent. They will not exact terms of payment or se- curity from him, with which he is unable to comply, for that would amount to a denial of justioe.(l) When the applicant for a new trial has tendered a bill of ex- ceptions, the court will compel him to elect or refuse a new trial, unless he abandon his writ of error. So ruled in Doe v. Iioherts,{2) where it was held that when a bill of exceptions has been tendered, the court will not grant a motion for a new trial, unless the bill of exceptions has been abandoned. And in Gorlies v. Oumming^,{S) where the plaintiff took a bill of exceptions on cer- tain points of law ; and afterwards made a case embra- cing *the same points, and also bringing up the question [*609] as to the weight of evidence. It was moved that the defendant should elect which he would abide by ; and that if he should elect the one, the other should be set aside. Ouria. — " The defendant cannot pursue the bill and case both.. He must elect.(4) If either party have died since the period that, by the rules of the court, the prevailing party would be entitled to judgment ; or if there is a strong probability from appearances, that the party making the motion may die before verdict on the new trial, the court will impose,, as a condition of granting it, that the pirty stipulate against the consequences of such an event. The power of the court, and disposition to exercise it, when a (1) Vide Goode t. Sir W. Lewis, 4 Price, 307; Hatktt-r. Cotton, 1 Gaines, 11;. Bird IK. Fierpoint, 3 Gaines, 106. (2) 2 Ohitty's Rep. 212 ; et vide 2 W. Black. 929. (3) 5 Oowen, 416. (4) Vide 1 Johns. Bep. 192. Vol. I. 38 609 NEW TRIALS. Other terms superadded to costs on the merits. proper case occurs, is to be inferred from Lopes v. De Tastet.{V) On motion for a new trial, the court had imposed, as a condition, the defendant should secure payment, in the event of a verdict for the plaintiff. Afterwards the plaintiff moved to amend the rule on affidavit of delay, and that the defendant was eighty-seven years of age, and in^rm, that it might be provided by the rule, that the suit should not abate in the event of the death of the defendant, and relied on PUydell v. The Earl of Dorches- ier.{2) Dallas, Ch. J. — " That case turned on different circum- stances, nor was there any guarantee. Here the party might have stipulated for the non-abatement of the suit at first, and then Glynn & Co. would have considered whether they would have entered into the bond or not on those terms ; but the appli- cation is now made out of time, and cannot be granted." So, in Griffith v. Williams,{8) where in an action for breach of promise of marriage, the Court of Exchequer said, [*610] *that, although the plaintiff had died, they should have no difficulty in imposing such terms as would enable the parties to go to another trial if necessary. And Oarrow, B., mentioned a case in which he had been of counsel, where the Court of King's Bench had imposed similar terms in granting a new trial on the application of the defendant, who, it was sug- gested, was likely to die before the cause could be tried a second time. And in Palmer v. Gohm,{^) Lord Tenterden, Ch. J., ob- serves : — " It might be done in an action of this kind, as well aa in a mere action of debt." Other instances may well be conceived, in which the exercise of this salutary power might become necessary for the further- ance of justice. It may be safely asserted, that no case can occur, presenting circumstances timely addressed to the discre- tion of the court, in which the rights of the parties may not be fully protected, by the imposition of conditions meeting the exi- gency. (1) 8 Taunt. 112; 1 Moore, 129. (2) 1 Term. Rep. 625. (3) 1 Cromp. & Jervis, 47, (4) 2 Barn. & Adol. 966. INDEX TO TOL I. ABSEITOE, Of party or hia counsel, 161 Court will relieve from, if merits and excuse, 1*2, 171 But not if by neglect, 166 Must be satisfactorily explained, 166 So of witnesses, 209 (See OouNSBi. iJro Party.) AFFIDAVITS, of jurors, not received to inculpate themselves. 111 Bat will be received to sustain verdict, 116 Of others, cannot be received to impeach integrity of jurors, 126 ARTIFICE, fraud, trick, will vitiate verdict, 66 And disingenuous attempts to suppress evidence, 66 Or mislead court and jury, ;56, 57, 58 {See FBAtTD.) ASSAULT AND BATTERY, ^ND FALSE IMPRISONMENT, New trial in, if verdict Hgainst evidence, 373 Yerdict in, not set aside for excessive damages, 421, 424 But will, if outrageous, 442, 445 Not for smallness of damages, 448 But will, if verdict perverse, 451 ATTAINT, 3 BATTERY, New trial in, if verdict against evidence, 373 Yerdict in, not sec aside for excessive damages, 421, 424 But will, if outrageous, '442, 446 Not for smallness of damages, 448 But will, if verdict perverse, 461 (See Assixrut AND Bahkrx.) ■COSTS, Part of terms in granting new trials, 697 Imposed for irregularity, 597 When favor asked, 698 When verdict had maia fide, 593 Will, ia some instances, direct attorney to pay, 699 612 IN0BX. COSTS, Not for misdirootion, 600 Or nonsuit, improperly directed, 600 Or where jury haye misbehaved, 601 Or In case of perverse verdict, 601 And in case reserved, and decided on merits, 602 But costs allowed when verdict against evidence, 603 (See Terms.} COUNSEL, Misbehavior of, will avoid verdict, 45 Surreptitiously handing papers to jury, 45 Tampering" with jurors, 48 * Must provide against insidious attempts, 52 Indirect measures by, to prejudice jury, 54 Disingenuous attempts to suppress evidence, and mislead court and jury, 56 Absence of, relieved against, if through mistake or necessity, 162 Not when result of neglect, 166 Surprise of, relieved against, if by accident or fraud, 168 But must show merits and diligence, 174 And injury, 17 V Court may relieve, although negligence, 178 Will, where an honest mistake, 180 And proof of diligence, 182 But not if want of skill, 186 Nor from consequences of ignorance or inadvertence, 187 Nor where they might have submitted to non-suit, .191 Or put off cause, 191 Nor when evidence withheld by, 192, 196 Client bound by conduct of, 193 Must raise objections to evidence when offered, 199 Especially such as might be obviated,. 204 CEIMINAIr CASES, New trials on the merits, 604, 606 And for irregularity, 504, 607 In felonies, 607 In misdemeanors, 515 CRIMINAL CONVERSATION, Sui generis, verdict will stand, although damages excessive, 412 Unless outrageous, evincing passion of jury, 442 DAMAGES — Excessive, not cause for new trial. In personal torts, 410 Not in crim. con., 412 Nor malicious prosecution, 416 Nor seduction, 419 Nor false imprisonment, 421 Nor assault and batteryj 42* INDEX. 613 DAMAGES, Nor libel or slander, 426 Nor trespass, 434 Nor breach of promise, 440 Nor trover, 441 But damages outrageously excessive will avoid verdict, 442 In all oases of personal torts, 442, 448 Not for smallness of damages, 448 But will, if jury have shown gross partiality, 450 And when there is a measure of damages, • 453 DEFAMATION, (See Libel and Slander.) EQUITY, power of, to relieve by directing new trials at law, 65'7 And awarding feigned issues for cause, 651 And new trials thereon, 55t Party applying to, must show diligence, 560, 611 Will not be granted by, if application made at law and rejected, 569 And the court at law had competent jurisdiction, 671 Will grant new trial for a clear cause of surprise or fraud, 513 Rules in, differ from law, 516 Principal rule in, to satisfy conscience of the court, 519 If sufficient to this, motion will be refused by, although verdict against law and evidence, 519 If not, a new trial granted by, as a matter of course, 589 Must be applied to, in first instance, cm feigned issues, 59i4 BTIDBNCE, Admission of illboal, • 231 When mixed up with legal, 239, 250 Eeoeived on the voire dire, will not hurt, 242 Where it cannot mislead, or has been waived, 243 If sufficient of legal, without illegal testimony, verdict will stand, 246 Or operate favorably to the party objecting, 249 This principle, not recognized in N«w York, 260 EeJECTION op ILIEGAL TESTIMONY, 252 Verdict will be set aside for, 253 But not when other evidence goes to same fact, 255 Nor under a bad plea, 256 Nor when legal, but rejected on illegal grounds, 251 Nor when judge has discretion to receive or reject, 258 Unless he abuse his discretion, 260 Presumptions in the absence of evidence not to be indulged, 211 Verdict, when no evidence to sustain it, 218 Suppressing evidence, a fraud, will avoid verdict, 56 False evidence, effects of, as to witnesses, 221 And on motion for a new trial, 225 Verdict clearly against, will be set aside, 862 Even in hard actions, 311 Or when evidence on one side, and case not folly before jury, 314 gl4 INDEX. ETIDENCE, But not, if no new light to be let in, 3'78 Nor although preponderance of, against verdict, if no rule of law- violated, 380 Nor when doubtful, 388 Or contradictory, 398 Nor although against weight of, if aetion trifling, 401 Nor if judge satisfied, 405 New trial for newly discovered, 462 Must be new and material, 463 And diligence as to former trial shown, 413 Not to supply want of recoUeolion, 411 Same in criminal cases, 481 Must not be cumulative, 485 Not to impeach former witnesses, 496 Nor will declarations of witness be received for that purpose, 499 Nor to let in a hard defence, 501 In equity in feigned issues, on motions, verdict against, not regarded as at law, 519, 589 SuCBcient, if evidence enough to satisff the conscience of the court, 579, 689 FALSE IMPRISONMENT, Terdict in, not set aside for excessive damages^ 421 Unless outrageous, 442, 445 FEIGNED ISSUES— New trials in Equity has power to direct, SSt And to relieve from verdicts at law, 657, 559 But to entitle to relief in, diligence must be shown, 560 New trials in, not granted to allow cumukitive evidence, 662 Nor to discredit witnesses, 663 Nor for surprise, unless a strong case, 663 Nor when cause lost by neglect, 566 Nor if court of law refuse, having jurisdiction, 669, 671 But will be, in a clear case of surprise, 573 And, in some instances when at law, party might have defended, 574 Governed by different rules, 676 When conscience of court satisfied, will be refused, 579 ■When dissatisfied will be granted, although not against law or evi- dence, 589 And when obtained by surprise, 591 Or verdict out of the issue, 693 Application must be made to equity, 594 FRAUD, A question for the jury, 289 As to voluntary conveyances, 290 As to sales, 291 Used by prevailing party, will avoid verdict, • 66 INDEX. 615 FRAUD, As in suppressing evidence, and misleading court and jury, 67, 58 New trial for, if verdict against evidence, 371 Not if fraud imputable to plamtiflf, and defendant have a verdict, though against law, 524 Nor if defence fraudulent, and plaintiff have a verdict against law, 525 HARD ACTIONS, Terdlct in, will he set aside for misdirection, 262 If against law, 334 Unless for defendant, 353 Or frivolous, 347 And will if clearly against evidence, 371 But not if evidence doubtful, 394,397 Not for excessive damages, 410 Unless outrageous, 442 Not for reduced damages, 448 Unless jury evince passion, 45.0 Nor if for defendant, 523 Especially if plaintiff act mala fide, 524 Nor if plaintiff has verdict and defence unjust, 525 Nor unless some rule of law violated, 525 IMPEACHMENT OF WITNESSES, New trial not granted to allow, 228 Nor although witness indicted for peq'ury, 221 Nor it seems on conviction o^ 224 Eut will to show that the whole is a fabrication, 224 And that the perjury has operated as a surprise, 225 JURORS, Summoning and impannelling of, 19 Qualifications of, 19, 21 Personated by another, 20, 24 Through mistake, 24 If no injustice by, will not vitiate verdict, 24 Variance in name of, ground for new trial, 27 But not where summoned by right name, 29 Challenged and set aside, and sworn as talesman, ground for new trial, 33 Objections to, ought to be before impannelling, if known, 35, 40 Mistakes and omissions of officers summoning and impannelling, cured by statute, 32 Unless productive of injury, 35 JURORS, Tampering with, will vitiate verdict, 45, 48 Papers shown to, 45 Labored by party or witnesses, 48 Misled by party, 56 Approached by party, 63 Accepting papers from party, 66 Separating without permission, 80 616 INDEX. JURORS, Eating at expense of parly, 98 Acta of, showing destitution of moral principle, 99 Drinlcing spirituous liquors, 101 Artifice, to procure separation, 102 Affidavits of, to inculpate themselves, rejected, 111 But not to explain and sustain verdict, 116 Perverseness of, 121 Passion and partiality of, 126 Motives of, not to be assailed by affidavits, 126 Declarations of, after verdict, not received, 128 But will, as to what happened before, if unknown to the party, 129 JURY, Irregularity in impannelllng jury, 19, 35 Deficiency of qualifications, 19,21 Misconduct of, will vitiate verdict, 61 If approached by a party or his agents, 63 Or take out papers not in evidence, unless by mistake, or immaterial, 13 To which jurors may be examined, 13 "Will when received from prevailing party, IS Separation of, after charged with case, its effects, 80 Will vitiate verdict, if they abuse their liberty, 85 But not, if no abuse follow, 85 Acts ofi indicating turpitude, 99 If they resort to chance, 104 But not if each put downa sum bona fide, and agree to divide, 106 Evidence of misconduct of, not to be received from them, generally, 109, 111 But may in some states, 111 And will always, for the purpose of explaining and correcting verdict, 116 Perverse verdict by, 121 Passion equivalent to perversity, 126 Affidavits impeaching their motive to be rejected, 126 Declarations of, after verdict, disregarded, 128 But not before impannelllng, if unknown to injured party, 129 "When jury err for want of proper instructions, 2'73, 211 Or find for plaintiff when he ought to have been non-suited, 278 Charged with law and mixed questions, 288 Judges of fraudulent intent, 289 But not of probable cause, 295 Judges of motives of party, 300 Judge must not invade province of, 311 May find upon the direction of the judge on questions of fact, 321 May refer to personal knowledge out of the proof, 323 Their province to pass finally on the merits, 362 Especially in penal and hard actions, 3l\, 394 The verdict in these, not disturbed, although against weight of evi- dence, 380 ji^or if grounds doubtful, 388 INDEX. 617 JURY, Nor if action vexations, 39T Or frivolous, 401 Nor when justice done, 40'? Personal torts strictly within province of, 410 Damages la them their peculiar province, 410 Terdicts in, not set aside by reason of damages, unless they show pas- sion, 442 Nor for smallesa of damages, unless partiality, 460 But great latitude allowed, 452 Ought to be controlled by test when afforded by nature of case, 463 LAW, If verdict against, will be set aside, , 326 Even in penal and hard actions, 334 But not against equity of the case 341 Nor in frivolous actions, 34t Nor in hard actions, if for defendant, 353 Nor because of the form of action, 35'i LIBEL, If verdict for defendant, will not be set aside, 363 But will, if against law, 364 Although rarely, and under special circumstances, 355 And if clearly against evidence, 313 Not, if only a preponderance against verdict, 385 Or evidence doubtful, 394 Not for excessive damages, 426 Unless outrageous, 442, 445 Nor on account of smallness of damages, 449 Unless jury evince passion, 450 MALICIOUS PROSECUTION, Verdict in, not set aside for excessive damages, 415 But will, if outrageous, 442, 444 Not for smallness of damages, 449 MILITARY LANDS, an exception to rule refusing a new trial, 230 MISCONDUCT OP JURY, Suffering parties to approach them, 63 Receiving papers clandestinely from parties, 66 But not if taken by mistake and not read, t3 Nor unless furnished by prevailing party, T6 Separating before verdict, 80 Abusing indulgence 8f the court, 85, 95 Accepting of refreshments from prevailing party 96 Any act showing desticution of moral principle, 99 Drinking spirituous liquors, 101 Oaating lota for verdict, 104 Rendering a.perverse verdict, 121 618 INDEX. MISOONDITCT OF PARTY, Delivering of papers surreptitiously to jury„ 45 Tampering witti jury, 48 Using indirect means to prejudice jury, 64 Suppressing evidence, and misleading court and, jury, 66 MISDIRECTION OP THE JUDOB, Effects of; in matters of law, 262 If on points material to the issue, 263 "Will avoid the verdict in penal actions, 263 In torts, 266 In contracts, 201 If he charge to indulge groundless presumptions, 2T1 Or withhold proper instructions, and, jury err, 213 Or refuse, being aslted, to charge, 211 Or send the cause to the jury, when he ought to have non-suited, 278 But not, if counsel elect to be non-suited, 281 Nor unless they ask that the case go to the jury, 282 If case go to the jury, and they find on insufficient evidence, 283 Error o^ cured, if any evidence, 284 And, if subsequent evidence, 285 Much more, if sufficient to warrant verdict, 287 Will, if judge give in charge to jury questions of law, 288 Or of fraud, 288 But jury judges of intent, 289 Or if charged to find probable cause, 295 But motives open to jury, 300 And, if same result would follow, new trial will be refused, thougli misdirection, 301 Especially if action frivolous, 306 Will, if judge invades province of jury on facts, and misleads them, 310 And thus abuse his discretion, 311 Or if he pronounce decisively on facts, 313 Or charge inconsistent add repugnant, 315 Not when he charges law correctly, although opinion of facts too strong, 317 Nor if his opinion be clearly right on facts, , 319 Nor if opinions merely speculative, 321 Nor if he refer the jury to their personal knowledge, 323 Nor if he charge on a point not previously suggested, 324 MISTAKE, of party or his counsel. If honest, will be relieved against, • 180 But not if the result of weakness, 181 Will, when there has been ordinary care, 182 Not against the justice of the case, 186 Nor if through want of professional skill, . 186 Or ignorance, inadvertence, or neglect, ■ 187 INDEX. 619 MISTAKE, Nor if oounael mistake their line of case, 192 Nor to admit evidence that miglit have been produced, 196 Nor if counsel neglect to object to illegal evidence, 199 But this rule has exceptions, 204 Objections that can be obviated must be made, 206 Of witnesses, will be relieved against, 217 But not, if the slightest ground of suspicion, 214 NEGLIGENCE, if party neglect to correct insidious attempts npon the jury, knowing of it, verdict will not be set aside, 62 Nor if surprise follow, 187 Nor if counsel neglect to object to evidence when ofitered, 199 But there are exceptions, 204 Objections that can be obviated must be made, 206 Punished by refusing new trial in feigned issues, 560 NEWLY DISCOVERED EVIDENCE, M>^t be discovered since trial, 463 And material, 463 And disclosed by the witnesses or party on affidavit, 470 Diligence must appear, as to former trial, 4'?3 Must not be to supply want of recollection, 4'7'J Eule applies equally to criminal cases, 481 Must not be cumulative, 488 Nor to discredit witnesses sworn on former trial, 496 Nor to let in a hard defence, BOl Motion will not be heard on aiBdavits alone, 602 Nor will motion prevail in equity, in feigned issues, if only cumu- lative, 662 NEW TRIAL.— Causes of, Origin of, 2 Advantages of, 6 Objects of, 1 General grounds for, 9 Fob want op due notiois, 11 Ikbegulaettt in impannblling juet, 19 Disqualified jurors, 19 Personating another, 20 But not if by mistake, and no injustice done, 24 Variance in name of jurors, 21 If challenged, and afterwards sworn, 33 But not if by mistake, or omission of officers inopannelling jury, 35 Disqualifications of grand juror, 40 Misconduct of the peevailins paett, his agents oe counsmi on the TEIAL, 45 Papers surreptitiously handed to jury, 46 Besorting to artifice, fraud, trick, 45 If party labor jury, 48 620 INDEX. NEW TRIAL. — MiscoNBUOT of the PEETAiLnra paett, his Aasiras oe OODirSEL OiT THE TRIAL, Indirect measures to prejudice jury, 54 Witnesses prevented attending by trick or fraud, 54 Disingenuous attempts to stifle evidence, or mislead the court, 56 POK MISOONDUOT OF JURY, 61 Approached by parties, 63 Receiving papers, not submitted in evidence, 66 But not if papers not examined, and handed by mistake, 12 i „ Nor if immaterial to the issue, 76 If jury separate, after charged with the cause, 80 But not if from necessity, and no abuse, 86 Nor if they separate, after agreeing on their verdict, 93 But, if the jury separate, and abuse their liberty, the verdict wiU be set aside, 95 If they partake of refreshments at expense of the prevailing party, 96 But not, if at their own expense, 91 or acts of jury evincing turpitude, * 99 Deceiving the court, 100 Using spirituous liquors, 101 Practicing artifice to procure their separation, 103 Resorting to chance for verdict, 104 But affidavits of jury not admitted to impeach verdict, 111 Nor of others impugning their motives, 126 Will, for perverse verdicts, 121 For declarations of jurors, showing partiality before impaunelled, 129 POE VOID TEEDICT, 132 When found contrary to record, 132 Entirely out of issue, 136 For only part of issue, 140 Defective or imperfect, 146 In the alternative, 160 Argumentative, 167 Absence of party or his counsel, 162 Not if occasioned by neglect, 166 Will for surprise of party or hia counsel, 168 But there must be merits, lt4 And the surprise, such as prudence could not provide against, Hi And party must have been injured, \11 And even where negligence, if great injustice done, ITS And for honest mistake, after due diligence, 180 But not for mere ignorance or inadvertence, 18'7 Or want of skill, 192 Or difference of opinion in counsel, as to management of cause, 193 Nor to let in evidence that might have been produced, 196 Nor if evidence not objected to when offered, 199 But if evidence entirely deficient, although not objected to, 208 INDEX. 621 NEW TRIAL, OOOASIONBD BY BfCIBENTS CONNECTED WITH THE WITNESSES, 209 Non-attendance of, 209 But not if known in time, sufficient to submit to nonsuit, or put off cause, 211 For sudden indisposition of, 214 And mistake and surprise of, 214, 217 But party should appear to put off cause, or submit to non-suit, 216 Not for impeachment of veracity of, nor even charge of perjury, 221 Nor even conviction for perjury, 224 But if the whole a fabrication, 225 And have operated as a surprise, 225 Nor to let in a further impeachment of witQesseSi 227 Or a subsequent discovery of turpitude, 228 ♦ But military lands are exception, 231 And when the facta are clearly falsified, 233 Foe admission of illb&al testimont, 237 Judgment will be reversed for, 239 Not if testimony admitted only on voire dire, and left to jury, 240 Nor when it cannot mislead, 243 Nor if enough of legal testimony without the illegal, 246 Or was favorable to party seeking to disturb verdict, 249 Principle not altogether recognized in New York, 250 Fob eejection of legal testimont, 252 And for this too, judgment will be reversed, 253 But not when other witnesses to same facts, 265 Nor under a bad plea, • 256 Nor if properly rejected, although on illegal grounds, 257 Nor when there is a discretion in the judge to receive or reject testimony, 258 But will when he exercises his discretion unsoundly, 260 Fob misdirection, 261 On matters of law, 262 lin all cases without exception, 262 Must be material to the issue, 263 In penal cases, 263 In torts, 266 In actions ex contractu, 267 If it be probable that misdirection has misled jury, 269 Or even doubtful, 270 If judge instruct jury to presume when no evidence, 271 If jury err for want of instruction, 273 And if judge refuse to charge on questions of law, 277 Or if he send the case to the jury, when he ought to non-suit, 278 But not if plaintiff elect to be non-suited, 281 Or if he do not ask that it shall go to the jury, 282 But will, if case go to the jury, and they find on insufBoient evidence, 283 622 INDEX. NEW TRIAL.— For msDmEcnoN. But not if any evidenoe, 284 And the error in refusing to non-suit, will be cured by subeequent evidence) 286 . Nor if evidenoe warrants the verdict, 28'? Will, if jury have given them in charge questions of law, 288 Or mixed questions of fraud, 288 But law now settled, jury to judge of the intent, 289 Or if probable cause, left to jury, 295 But not if new trial ought to produce the same result, 301 Applicable specially to frivolous cases, 306 Much left to discretion of the judge, 310 But if he abase his discretion, and invade the province of the jury, 311 Not if he charge law correctly, although he express himself too strong on facts, * 317 Nor if his view correct upon the facts, 319 Nor for mere speculative opinions, 320 Nor if he direct a verdict agreeably to evidence, 321 Nor if he refer the jury to their own knowledge, * 323 Nor if he instruct the jury on a point not previously suggested, 324 WhEEE TERDIOT A&AINST law aENEEALLY, 326 Practice in this country, in this respect, same as in England, 333, 341 But not for a technical objection, if justice done, 341 Nor against the eonacitnee of the case, 343 Nor in frivolous actions, though strictly against law, 34T But will, if important principles involved, and the consequences serious, 350 Nor in penal or hard actions, if verdict for defendant, 353 But will, if presiding judge express his dissatisfaction, 366 Not, if plaintiff is entitled to recover in another forffi of action, 35T Will be granted, ir tbrdiot olearlt a&ainst evidenoe and justice 01' THE CASE, 361, 362 Or if against the weight of evidence, 368 Even hard actions form no exception, 311 Or the side against wtich evidence preponderates was not fully before jury, 314 Not, when evidence on both sides, 380 Nor on technical grounds, though against evidenoe, 3S8 Nor doubtful grounds, 389 Nor against the equity of the case, 398 Nor in frivolous cases, 401 Jlor where presiding judge is satisfied, 405 Nor where justice done, 401 POH EXCESSIVENESS OF DAMASES, ' 410 >Not In personal torts, 410 Crlm. con., 412 Malicious prosecution, 416 deduction) 419 mt)EX. 623 NEW TRIAL.-^i'oR exoessitbhess of damaobs. False imprisonment, 421 Assault and battery, 424 Libel and slander, 426 Trespass, 434 Breach of promise of marriage, , 440 Trover, 441 But will in all cases where damages outrageous, 443 In assault and battery, 442 Malicious prosecidion, 444 Slander, 444 False imprisonment, 445 Actions on the case ea deUcto, 44T Kot for smallness of damages in personal toTts, 448 But will, where verdict clearly the result of passion, 460 And relief much more liberally extended where the nature of the case has provided a measure of damageS) 453 Fob njwlt discovered evidence, 462 But must be new and material, 462, 473 Diligence must be shown to entitle to, 413 Want of recollection no excuse, 47 1 Courts exceedingly particular in this respect, 478 Applicable to criminal and even capital cases, 481 Will not be granted, if evidence merely cumulative, 485 Nor to discredit witnesses sworn on former trial, 496 Nor if verdict for defe^ant, and a hard defence is contemplated, 501 Is HARD ACTIONS, 503 In criminal cases on the merits, 604, 506 In felonies for irregularity, 504, 507 When first jury discharged, 508 Want ofwKM-e, 512 Want of a charge by the judge, 513 Admission of illegal testimony, 514 When defendant illegally convicted, ' -514 Ifisdemeanors on merits and for irregnlaHty, 515 In libel, 615 Conspiraojr, 516 Perjury, 517 And if clearly against evidence, and judge dissatisfied, 519 And when defendant deprived of defence, 521 Not granted in hard actions, if verdict for defendant, 523 Nor in penal actions, 528 Nor actions in the nature of, unless against law, 634 Two OB MORE NEW TRIALS MA* BE HAD, 537 After trial at bar, 538 Or at Nisi Prim, 538 Not generally after two concurring verdicts, 641 624 INDBX. NEW TRIAL. — Two OB more new tbiais mat be had. !N'or unless some rule of law violated, although against evidence, 642 But will, if injustice done, or law violated, 64? And that, toUes quoHes, 648 And if undue means have been used to procure verdict, 646 In PEiaNBD ISSUES, 56T Power of equity to order feigned issues as well as to relieve against verdicts at law, 567, 669 Will be denied unless diligence has been used, 660 Or if to discredit witnesses, 661 Or to produce cumulative testimony, 662 Or if not a clear surprise, 663 Or if application denied at law, 669, 571 Or party have been guilty of neglect, 671 But will be granted in a clear case of fraud or surprise, 573,-675 Or subsequent discovery, 573 And in some instances where there has been neglect, 574 In cases of great value, 575 Principles on which granted in equity different from law, " 676 Great object to satisfy the conscience of the court, 679 And if this be done, although verdict against evidence, and even strict law, it is suffloient, 679 But if unsatisfactory, a new trial will be directed, 589 And if verdict out of the issue, 693 Application for, to be made to equity, 594 NON-srriT, When judge ought to grant, 278 In England, cannot be against will of plaintiff, Y .. Not so in New York, f ^"' If counsel elect, new trial not granted, 281 Court will not set aside, unless plaintiff has asked case to go to jury, 282 The error of refusing will be cured by subsequent proof, 285 And if there be any evidence, 287 Costs for setting aside, if improperly granted, not exacted, 609 NOTICE OP TRIAL.— New trial for want of, Where notice is wanting, or inaufiaoient, , 11 Fresh notice necessary when new trial ordered, 13 When two actions between same parties, 14 Grood, if it do not tend to mislead, 16 But not if injustice be done, 17 PAPERS, Surreptitiously handed to jury, 46 Will avoid verdict if received, 4g But not if immaterial to the issue, ij g Or not read, hg Or handed by mistake, ijg Distinction aa to sealed and unsealed, 173 INDEX. 625 PARTY, Absence of, relieved against If through mistake or necessity, But not if chargeable with neglect, Surprise of, relieved against if by accident or fraud, But must show merits and diligence, And injury, Court may relieve, although negligence, ■Will in case of honest mistake, And where diligence appears, But not if pleadings unsMlftiUy drawn. Nor in case of ignorance, inadvertence and neglect, Nor where plaintiff might have elected to be non-suited, Client bound by conduct of his counsel. Nor if counsel neglect to introduce his evidence, Must object to evidence when offered, At least when the objections might be obviated, PENAL ACTIONS, Verdicts in, will be set aside for misdirection, If against law. Unless for defendant, Or frivolous. Will if clearly against evidence, Not If evidence doubtftil. Nor unless some rule of law violated, So of actions in their nature penal. Will, if conviction against law and direction of the judge, PERSONAL TORTS, in a peculiar manner within the province of the jury, PREVAILING PARTY, Praud and trick by, will vitiate verdict. Tampering with jurors, Preventing witnesses from attending. Approaching and laboring jurors, Suppressing evidence. Surreptitiously handing papers to jury, PROBABLE CAUSE, A question of law, when truth of facts ascertained, But motive of party open to the jiiry, QUO WARRANTO, New trial in, if verdict against evidence, Though once doubted now settled, SEDUCTION, Verdict in, not set aside for excessive damages, But will, if outrageous, SLANDER, If verdict for defendant, will not be set aside, But will, if against law, Vol. I. 39 192 166 168 174 177 198 180 182 186 187 191 193 196 197 204 262 334 353 347 371 394, 396 528 531 534 410, 452 45 45 55 63 66 66 295 300 372 533 419 442 353 354 626 INDEX. SLANDER, Although rarely, and under special oiroumstanoes, 355 And if clearly againat evidence, 313 Not, if only a preponderance against verdict, 385 Gr evidence doubtful, 294 Not for excessive damages, 426 Unless outrageous, 442, 446 Nor on account of smaUneas of damages, 449 Unless jury evince passion, 450 SURPBISE, Counsel, or party taken by, 168 WUl be relieved from, 168 But there must be diligence, and the surprise by accident, 169, 114 No relief from, if occasioned by weakness or want of skill, llO To entitle to relief, there must be merits, 114 And surprise must have been such as prudence could not provide against, 116 But although occasioned by negligence, will be relieved against, 118 Plaintiff surprised, ought to submit to non-suit, 191 Will not be relieved to admit evidence that might have been had, 196 Nor if counsel neglect to object to evidence, 199 But this rule has exceptions, 204 Objections that can be obviated, must be made, 206 Occasioned by mistake of witnesses, 214 Or by indisposition of, 214 Party relieved from effects of surprise of testimony of his own wit- ness, 225 Or by unexpected testimony, 231 Or by perjury and conspiracy of witness, 225 TERMS OE SETTING ASIDE TERDICTS, Payment op costs tor iBREGtrLAEiTT, sgt Or a favor asked, 598 Or verdict obtained mafas ^de, 598 Or on a new point, 699 Without costs, or costs to abide event, 600 When plaintiff improperly non- suited 600 Or jury err, through misdirection of the judge, 600 Or misbehavior of jury, 601 Or a perverse verdict, 601 Or where case reserved, and judgment on the merits, , 602 But must pay coats, when verdict against evidence, 603 On the merits, courts may impose otheb terms, 604 May limit new trial to one point, 605 May direct evidence of former witness to be read, 606 May amend pleadings, 606 Or change form of action, if necessary, 601 When writ of error and motion, will compel party to elect, 608 INDEX. 627 TEEMS OF SETTING ASIDE TBRDICTS.— On the merits, oouets mat IMPOSE OTHER TERMS. ■Will direct parties to be bound by verdict, and secure the costs, eot Or to sti pulate against death of party, 609 TRESPASS— Terdict in. Will not be set aside for excessive damages, 434 Unless outrageous, 442 But will not for smallness of damages, 448 Unless jflry evince passion, 460 TRIAL, Different kinds of, 1 By jury, division of, 1 Notice of, 11 Want of; will avoid verdict, 11 ImpanueHing jury for, 19 Conduct of parties at the, 45 And of jury, 61 Void verdict in, 132 Incidents o^ absence, surprise, mistake, 161 Witnesses at, 209 Conduct of judge on, admitting evidence, 236 Rejecting evidence, 252 Misdirection of jury on, 267 Verdict thereupon, against law, 326 Against evidence, 361 Damages found on, ' 409 Opening of, on newly discovered evidence, 462 Hard actions, effect of trial in, 503 Two or more trials, 5 3 7 On feigned issues, 561 Costs of, 59T TRICK, Will vitiate verdict, i 56 And disingenuous attempts to suppress evidence, 56 Or mislead court and jury, 56, 57, 58 TROVER, Verdict in, not set aside for excessive damages, 441 Unless outrageous, 442 TWO TRIALS OR MORE, May be had after first trial at bar, 538 As well as at nisi prims, 638 Not generally after two concurring verdicts, although against evidence, 541 But will, if against law, 547 And ioties quoUes, 548 And if undue means used to procure a verdict, 556 628 liNDBX. trSURT, ■ Terdiot in, although against weight of evidence, will not be disturbed, 396 VBEDICT, ■'-■■' ■■ ■■-'-■-■<"' Set aside for artifice, or trick of party, 46 Tampering with jury, '"■'■-''■" 45, 48, 52 Papers surreptitiously handed to the jury, ' 45 But not if immaterial to the issue, ' 48 Nor if the other party neglect to have it corrected, 52 Will, for indirect measures used to prejudice jury, ■ 64 Artifice to prevent attendance of witnesses, 54 Disingenuous attempts to stifle or suppress evidence, 56 If jurors receive papers from parties not in evideneOj 66 But not if taken out by mistake, 71 Or not read by jury, 73 Or not furnished by prevailing party, 76 Or not material to the issue, 76 If jury separated, 80 But not unless abuse follows, 85, 96 As by refreshments at the party's expense, 97 Verdict not to be impeached for that reason, but juror punished, 85, 98 Will for acts of jurors evincing turpitude, 99 As deceiving the court, 100, 102 Indulging in spirituous liquors, 101 Eesorting to determination of chance, ' 104 Perverse, will be set aside, 121, 125 Not by affidavits of jurors, 126 Nor by subsequent declarations of, 128 Void, if contrary to record, 132 Or out of the record, 135 Or pari of issue only found, 140 Or defective or imperfect, 145 Or in the alternative, 150 Or argumentative, 157 Win be set aside for absence of party, 162- Not if occasioned by neglect, 166 And for surprise, 168 But there must be merits and diligence, 174 And even where negligence, if injustice done, 178 And for honest mistake, after due diligence,- 180 But not for mere ignorance or inadvertence, 187 Or want of skai, 192 Nor to let in evidence that might have been produced, 196 Will if evidence deficient, although not objected to, ^ 208 For non-attendance of witnesses, 209 And sudden indisposition of, 214 And mistake and surprise of, • 214, 217 Not to impeach witnesses, 227 But will, if facts are clearly falsified, 233 INDEX. 629 YBEDICT, For admission of illegal testimony, 237 Not if testimony admitted on vbwe dire, 240 Nor when it cannot mislead, 243 Nor if enough of legal testimony, 246 But not in New York, 250 For rejection of legal testimony, 252 Not when other witnesses to same fact, 255 Nor under bad plea, 256 Nor if properly rejected, although on illegal grounds, 257 Nor when there is a discretion in the judge to receive or reject, 258 Fob misdiebotion, 261 In all cases, without exception, 262 In penal cases, 263 In torts, 266 In actions ea; confe-octe, 267 If it be probable it has misled jury, 269 Or even doubtful, 270 If judge instruct jury to presume, when no evidence, 271 If jury err for want of instruction, 273, 277 Or judge send case to jury when he ought to non-suit, 278 And they find on insufficient evidence, 283 But not if any evidence, 284 And error cured by subsequent evidence, 285 If jury have, given in charge questions of law, 288 Or mixed questions of law and fact, 288 If probable cause, left to jury, 295 Not if new trial would produce the same result, 30i Much left to discretion of the judge, 310 Must not invade province of jury, " 311 Nor if he charge law correctly, although too strong on facts, 317 Nor if his view correct upon the facts, 319 Nor for mere speculative opinions, 32o When asainst law, 32g Practice here same as in England, 333 341 Not for technical objections, 34I ggg Nor against conscience, 343 Nor in frivolous actions, 347 Unless important principles, and consequences serious, 350 Nor in hard actions, if verdict for defendant, 353 Unless presiding judge express dissaYi^'6iJibn, 356 Not if plaintiff entitled to recover in another form of action, 357 Will if olbaelt against btedenoe, 361 362 Or weight of evidence, 3gg Or the case not fully before jury, 374 Not when evidence on both sides, 380 Nor on technical grounds, though against evidence, 388 Nor doubtful grounds, 389 630 INDEX. "VBRDICT.^^'WlLL IF OLBAELT AGAINST BVIDEirOE, Nor against the equity of the case, 398 Nor in frivolous oases, 401 Nor where presiding judge is satisfied, 406 Not roE bxobssiteness oi' BAMAass, 410 In personal torts, 410 Grim, con., 412 Malicious prosecution, 415 Seduction, 419 False imprisonment, assault and battery, 421, 424 Libel and slander, 426 Trespass, 434 Breach of promise of marriage, 440 But will where damages outrageous, 442 In assault and battery, and false imprisonment, 442, 445 Malicious prosecution, 444 Slander, 444 Actions on the case ex delicto, 44T Not for smallness of damages, 448 Unless verdict clearly the result of passion, 450 "Will where the case has provided measure of damages, 453 And on newly discovered evidence, if material, 462, 473 Diligence must be shown, 473 Applicable to criminal cases, 481 Not if evidence cumulative, 485 Nor to discredit witnesses, 496 "Will in criminal cases, felonies, 604, 506 "When first jury discharged, 508 W ant- ol venire, 612 "Want of a charge by the judge, 513 Admission of illegal testimony, 514 "When defendant illegally convicted, 514 Misdemeanors, - 515-517 If clearly against evidence, 519 Or defendant deprived of defence, 521 Not if verdict for defendant, T) 23-531 After trials at bar as well as at Nisi Prim, 538 Not generally after two verdicts, 541 TJnleBS some rule of law violated, 542 But will, if law violated, , 547 And that toties quoties, 648 And if undue means have been used to procure verdict, 556 See New Trial. WITNESSES, new trial. For trick resorted to, to prevent attendance of, 5+ Whether by party, or others, 55 Non-attendance of, when excused, 209 And for sudden indisposition, and mistake ,of, 217 INDEX. 631 WITNESSES, And for surprise by evidence of, 219 But not because of impeachment of, 221 Nor because witness indicted for perjury, 222 Nor it seems altliough convicted of, 224 Will, if the whole be a fabrication of, 224 And party be surprised by testimony of, 226 But not to allow opportunity to impeach, 228 Exception, as to military lands in New York, 230 Not when witness gave testimony to surprise party calling him, 231 Will, when facts are falsified, 233 And when proof of infamy of, 234 Nor will opportunity be allowed them to refresh their recollec- tion, ill New trial not granted to discredit, 496 Nor may they impeach themselves, 499 New trial in feigned issues not granted to discredit them, 663 hl^^ xHKx