THE 
 
 LAW or NEW TRIALS 
 
 AND 
 
 OTHER REIIEARINGS; 
 
 INCLUDING 
 
 WRITS OF ERROR, APPEALS ETC. 
 
 BY 
 
 FEA^^CIS HILLIAED, 
 
 AUTHOR OP "the law OP INJUXCTION'S," "THE LAW OF T0ar3," "THE LAW OF 
 C0STRACT3," ETC. ETC. 
 
 SECOND EDITION, EEVISED AND GREATLY ENLARGED. 
 
 PHILADELPHIA: 
 KAY & BROTnER, 19 SOUTH SIXTH STREET, 
 
 LAW PUBLISUEKS, BOOKSELLERS, AND IMPOKTEKS. 
 1872.
 
 T 
 H5- 
 
 Entered according to act of Congress, in the year 186(3, by 
 
 FRANCIS HILLIARD, 
 
 in the Clerk's Office of the District Court for the District of Massachusetts. 
 
 Entered according to Act of Congress, in the year 1872, by 
 
 FRANCIS HILLIARD, 
 in the Office of the Librarian of Congress, at Washington, 
 
 PHILADELPHIA : 
 COLLINS, PIU.NTER, 705 JAYNE STREEX.
 
 t; 
 
 
 PEEFACE 
 
 A TREATISE upon Trials, generally, would be 
 equivalent to a summary of the whole civil and 
 criminal law; because rules and principles no 
 further constitute the laio, in a practical sense, than 
 as they are brought to the practical test of judi- 
 cial investigation. It is far otherwise, however, 
 with JVew Trials, which form a specific subject, 
 lying within a comparatively narrow compass, 
 and, like other single branches of jurisprudence, 
 appropriately treated by itself alone. 
 
 It is a fact not generally understood and appre- 
 ciated, with how great reluctance, and after how 
 many attempts at amicable settlement, parties 
 generally enter upon a lawsuit, or, to use the com- 
 mon expression, go to law. If the full history 
 were given, of a large part of the harshest claims 
 or the most inequitable defences, ever brought 
 forward in a court of justice ; it would probably 
 be found, that they have been preceded by per- 
 sistent efibrts, on one side or the other, or perhaps 
 both, to accomplish by negotiation the same end 
 
 67i42B
 
 IV PREFACE. 
 
 which, as a last resort, is sought by litigation. 
 But, having once embarked upon this stormy sea ; 
 after so uuAvillingly encountering the publicity, 
 the expense, the general wear and tear of a law- 
 suit; it is quite natural that parties should be 
 slow to withdraw from a field, reluctantly entered, 
 until they have exhausted all the opportunities for 
 rehearing which the law alloAvs them. Hence 
 the great importance of the Law of Kew Trials ; 
 by virtue of which, a party confident in the justice 
 of his own claim or defence, though at the outset 
 willing to concede much for the sake of a settle- 
 ment, may perchance correct the error, and reverse 
 the injustice, of the first decision against him. 
 
 The favorite institution of the American people 
 is Trial hy Jury. IS'otwithstanding the now very 
 general statutory provisions, by which, with the 
 consent of parties, this mode of trial may be dis- 
 pensed with ; it is extremely rare to find cases 
 tried in any other way. The same reasons, which 
 might lead one party to dispense with a jury, are 
 those which recommend it the most strongly to 
 the other. If both relied upon the strict rules of 
 law, then both would prefer a trial by the judge. 
 On the other hand,, if both distrusted the applica- 
 tion of such rules to the facts of the case ; then 
 they would mutually agree in preferring a tribunal 
 before which circumstances and equities might be
 
 PREFACE. 
 
 made to control mere technical or abstract prin- 
 ciples. Fraud, negligence, limitation, estoppel, 
 license, forfeiture, and numerous other grounds of 
 action or defence, which will suggest themselves 
 at once to every legal mind, furnish to one or the 
 other party occasions and inducements for the 
 trial by jury, which supersede all reasons of pre- 
 ference for a direct appeal to the court alone. 
 
 Moreover, a large proportion of all law cases 
 involve more or fewer points, which some out of 
 twelve jurors will be likely to understand better 
 than either counsel or judge. Such are questions 
 of money calculation, value and price, for brokers 
 and merchants ; of construction and mechanism, 
 for mechanics ; and of agriculture, for farmers ; 
 with reference to all of which, a skilful advocate 
 or a learned judge often takes great satisfaction 
 in the consciousness, that the suggestions which 
 he may make to the jury, as the result of his 
 temporary investigations into the subject-matter 
 of the cause, will be fully understood and appre- 
 ciated by those of whom habit and experience 
 have been the most effectual teachers. 
 
 The trial by jury is also recommended to pop- 
 ular preference by the considerations, that the 
 parties and w^itnesses are generally known to some 
 or all of the jurors, who will apply the incidental 
 and collateral aid derived from this source to an
 
 Vi PREFACE. 
 
 explanation of the controverted facts in the case ; 
 and that the very inexperience of a jury in trials 
 at law will lead them to watch carefully the ap- 
 pearance, deportment, and testimony of witnesses, 
 and sometimes to make just discriminations, 
 wliicli would be less likely to occur to minds more 
 habituated to this mode of investigation. 
 
 Trial by jury, therefore, is not likely to fall into 
 disuse ; and, so long as it remains a fixed institu- 
 tion in American law, so long will the subject of 
 New Trials retain its interest and importance. I^o 
 le2:islation, however discreet, or administration of 
 the law, however careful, can ever wholly prevent 
 the irregular drawing or impanelling of jurors; 
 the improper allowance or refusal of the right of 
 challenge; the unlawful separation of juries, or 
 their misconduct in or out of the jury-room; or 
 fraudulent attempts, by parties, counsel, or third 
 persons, to influence their verdict: of all which 
 irregularities a New Trial is the legitimate, and 
 indeed the only corrective. Thus only, moreover 
 — through careful revision of those legal proposi- 
 tions, which the presiding judge laid down for the 
 government of the jury, in the hurry of a trial, 
 without opportunity for the examination of decided 
 cases, and rarely with entire confidence, on his own 
 part, in their correctness — can the law and fact, 
 which enter into the composition of every trial, be
 
 PREFACE. Vll 
 
 .corrected and harmonized for purposes of substan- 
 tial justice. In this mode alone, also, can the rules 
 of evidence — a branch of the law at once more 
 abounding in subtle, metaphysical, and philoso- 
 phical distinctions, and of more constant and uni- 
 versal practical application, than any other — be 
 carefully discussed and correctly settled. And 
 finally, as the trial by jury, with all its indisputa- 
 ble merits, is from its very nature impulsive, hasty, 
 liable to undesigned error and wilful wrong, to 
 prejudice, partiality, and corruption ; through the 
 medium of a new trial, an aggrieved party may 
 seek relief from a verdict rendered without or 
 against evidence, may have opportunity to supply 
 omissions or defects which no prior vigilance could 
 have anticipated or guarded against, and may 
 reduce the amount of damages, which, through 
 mistake or design, have been wrongly awarded 
 against him. 
 
 !N^ew Trial, although by far the most frequent 
 and simple, is but one, of several forms of rehear- 
 ing. Of the other modes — error, certiorari, a^ypeal, 
 audita querela, and maiidamus — it seemed j)ro2Der, 
 by way of sequel to the body of the following- 
 work, to present a summary view, which has ac- 
 cordingly been done in a chapter devoted to each.
 
 Viii PREFACE. 
 
 The general rules of law upon the subject of 
 ]S"ew Trials have been modified to a very limited 
 extent by express statutes. The leading statutory 
 provisions in the several States will be found in 
 the Appendix. For the reason stated at the com- 
 mencement of the Appendix, statutes relating to 
 the other topics are omitted. 
 
 F. H. 
 
 1866. 
 
 PREFACE TO THE SECOND EDITION. 
 
 To this Edition very numerous cases have been 
 added, enlarging the volume by one hundred and 
 fifty pages. 
 
 F. H. 
 
 1873.
 
 CONTENTS. 
 
 CHAPTER I. 
 Definition, &c., of New Trial .... 1—19 
 
 1. Definition. 
 
 2. History. 
 
 4. Importance. 
 
 6. Mode of obtaining ; discretion ; appeal ; error, &c. 
 
 16. Form of proceeding ; rule to show cause ; bill of exceptions, &c. 
 
 17. Other forms of rehearing. 
 24. Habeas corpus. 
 
 CHAPTER II. 
 Grounds of ISTew Trial -0-^^ 
 
 1. General gvonnds—deJwrs the record. 
 
 2. Verdict presumed correct ; motion for new trial must show affir- 
 
 matively the ground of alleged error. 
 13. Qualifications of this rule. » 
 
 15. Form of exceptions, founded upon the foregoing rule. 
 18. Amendment of bill of exceptions. 
 
 25. Limitations of the rule. 
 
 26. Other evidence as to the points contained in the bill of exceptions. 
 
 28. Motion in arrest of judgment. 
 
 29. Writ of error. 
 
 CHAPTER III. 
 
 Ground of New Trial— Harmless Error— Sub- 
 
 T 40-64 
 
 STANTiAL Justice -iv 'j-± 
 
 1. Party must have been injured. 
 
 2. Erroneous ruling of the court. 
 
 6. Admission or rejection of evidence. 
 
 7. Jury. 
 
 8. Surprise.
 
 X CONTENTS. 
 
 9. New evidence, &c. 
 
 10. Limitation of the rule — it ymist appear that no injury has been 
 
 done. 
 
 11. Substantial justice done. 
 
 12. Erroneous rulings. 
 
 13. Errors in relation to evidence. 
 
 14. Verdict against evidence. 
 
 15. Newly-discovered evidence. 
 
 16. Surprise. 
 
 17. Damages. 
 
 18. Liniilutions of the rule. 
 
 CHAPTER IV. 
 
 Terms of Granting a New Trial . . . 65-73 
 
 1. Costs. 
 
 8. Other terms — new trial in part — miscellaneous. 
 
 13. Terms, as affected by the form of action, 
 
 15. Refusal of terms. 
 
 IG. Terms imposed upon prevailing jmrty. 
 
 19. Abandonment of exceptions. 
 
 CHAPTER V. 
 
 Nature and Effect of the Motion for, and the 
 Granting of, a New Trial; Points of Prac- 
 tice ; Successive ISTiiw Trials .... 74-81 
 
 CHAPTER VI. 
 Waiver 82-112 
 
 1. General rule. 
 
 2. Incompetency, etc., of jurors. 
 7. Evidence. 
 
 13. Written evidence. 
 
 15. Miscellaneous points of evidence. 
 
 20. Erroneous rulings. 
 24. Surprise. 
 
 29. New evidence. 
 
 30. Excessive damages. 
 
 31. Miscellaneous cases. 
 33. Negligence of counsel. 
 33?i. "Waiver in respect to time.
 
 CONTENTS. XI 
 
 CHAPTER VII. 
 New Trial in Criminal Cases . . . 113-120 
 
 1. General rule. 
 
 5. Bill of exceptions. 
 
 6. Whether there can be a new trial after acquittal ; constitutional 
 
 provisions. 
 9. Or even after conviction. 
 10. Miscellaneous. 
 
 CHAPTER VIII. 
 
 Grounds of New Trial — Grounds Relating to 
 
 the Jury ; Verdict 121-153 
 
 1. General grounds — irregularity and injustice. 
 10. General and special verdicts. 
 
 19. Form of verdict— uncertainty, generality, inconsistency, &c. 
 30. Amendment of verdict ; sending back of jury, remittitur. 
 
 CHAPTER IX. 
 
 Jury ; Irregularities connected with, as Grounds 
 OF New Trial — Incompetency . . . 154-197 
 
 1. General principle. 
 
 8. Presumption of competency. 
 
 4. Challenge and new trial compared. 
 
 8. Agreement of jury ; mode of proof on the subject ; affidavits ; 
 
 modes of arriving at the verdict, &c. 
 14, 18. Incompetency of juror. 
 17. Swearing. 
 23. Aliens. 
 
 23. Drawing and impanelling. 
 26. Misnomer. 
 29. Talesmen. 
 
 31. Change of jurors. 
 
 32. Partiality ; preconceived opinion , examination on voir dire, &c. 
 52. Relationship. 
 
 59. Other connections with a party. 
 
 60. Interest ; inhabitants of a county or town ; meaibers of an asso- 
 
 ciation ; miscellaneous cases. 
 72. Opinions of juror ; conscientious scruples.
 
 XU CONTENTS. 
 
 CHAPTER X. 
 Jury. ^Misconduct 198-252 
 
 1. General. 
 
 2. Eating ami drinking ; use of intoxicating liquor. 
 
 5. Sleep. 
 
 6. Conversation concerning the case ; statements of one juror to the 
 
 rest. 
 
 18. Custody of the jury. 
 
 19. Introduction of papers to the jury-room ; minutes, Looks, depo- 
 
 sitions, records, &c. 
 37. Further instructions to the jury. 
 
 40. Arguments to the jury. 
 
 51. Separation of the jury. 
 G8. AfDdavits of jurors. 
 
 CHAPTER XI. 
 
 Erroneous Rulings or Instructions . . 253-388 
 
 1. General rule. 
 5. Omissions. 
 
 9, 52, 58. Immaterial or irrelevant instructions. 
 15. Ambiguity. 
 
 18. Conflicting instructions. 
 
 19. Misunderstood instructions. 
 
 23. Instructions construed together. 
 
 26. Adoption of language of the court above. 
 
 28. Uncertainty. 
 
 30. Law and fact. 
 
 32, 77. Refusal or granting of a nonsuit. 
 
 35. Ruling by which evidence was rendered unnecessary. 
 
 37. As to sufficiency or insufficiency of evidence. 
 
 39. Conflict of evidence, or the reverse. 
 
 41, 72, 139. Tendency and effect of the evidence. 
 
 43. Instructions as to the law — limitations. 
 
 44. Preliminary remarks, <tc., to the jury ; comments upon the evi- 
 
 dence ; illustrations. 
 
 52. Materiality of the remarks. 
 
 53. Refusal to comment upon the evidence. 
 
 54. Exceptions to the prevailing rule ; erroneous interference with 
 
 the facts and evidence. 
 
 55. Instructions as to onl}' part of the case. 
 
 56. Instructions based on the evidence.
 
 CONTENTS. XIU 
 
 58. Abstract instructions. 
 
 59. iMiscellancous points. 
 
 63. Presumptions from foots proved. 
 
 63. Instructions as affected by the pleadings. 
 
 64. In reference to the arguments. 
 
 65. lyiiscellaueous. 
 
 67. Questions of law and fact. 
 
 69. Undisputed facts ; questions of law. 
 
 72. Weight of evidence, &c., for the jury. 
 
 73. Law and fact in criminal cases. 
 
 77. Absence of evidence ; question of law ; nonsuit. 
 
 79. Construction of written and oral contracts ; wills ; policies ; leases. 
 
 84. Legality of contracts. 
 
 85. Records. 
 
 86. Contracts and writings, when questions of fact, or mixed ques- 
 
 tions of law and fact ; technical terms ; lost instruments ; 
 patents. 
 
 93. Usage. 
 
 94. Reasonableness. 
 98. Payment. 
 
 101. Limitation. 
 
 103. Usury. 
 
 103. Notes, &c. 
 
 104. Miscellaneous contracts. 
 107. Notice. 
 
 107a. Questions relating to land. 
 
 116. Delivery. 
 
 117. State of mind ; intention ; identity. 
 
 130. Miscellaneous. 
 
 121. Partnership; agency; sale. 
 123. Mixed questions ; miscellaneous. 
 
 136. Fraud. 
 
 131. Malice. 
 133. Libel, &c. 
 
 133. Malicious prosecution. 
 
 134. Negligence, &c. 
 1366. Nuisance. 
 136c. Cruelty. 
 
 137. Waiver. 
 
 139. Credit of witness, &c., and other points relating to testimony; 
 
 weight of evidence ; comparative weight of different kinds of 
 
 evidence. 
 156. Communications of the judge to the jury out of the regular course ; 
 
 time of objecting to instructions. 
 164. Instructions as to costs and damages. 
 167. Prayer or request for instructions.
 
 XIV CONTENTS. 
 
 CHAPTER XII. 
 Discretion . 389-406 
 
 1. General rule — examples. 
 
 5. Order of testimony ; examination of witnesses ; depositions ; re- 
 calling "witness ; leading questions. 
 
 CHAPTER XIII. 
 
 Evidence — Admission ok Rejection of Evidence 407-443 
 
 1. General rule. 
 
 2. Effect of an instruction to disregard incompetent evidence, &c. 
 4. Irrelevant or immaterial evidence. 
 
 11. Cumulative evidence. 
 
 15. Conflicting evidence. 
 
 16. Infamy of witness. 
 
 17. Incompetent question. 
 19. Secondary evidence. 
 
 21. Admission, as affecting the course of trial. 
 
 22. Purpose of offering the evidence, as affecting its competency. 
 27. Miscellaneous. 
 
 30. Writings, hearsay, secondarj^ evidence. 
 
 34, 42. Evidence connected with other evidence. 
 
 39. Reasons for rejecting evidence. 
 
 40. Trial by the court, or upon writ of inquiry. 
 
 41. Interlocutory proceedings. 
 
 43. Evidence as connected with the pleadings. 
 49. Whether evidence must be confined io facts. 
 
 52. Jlay come from either part}\ 
 
 53. Must be regularly offered. 
 
 54. Must be objected to; form of objection. 
 60. Questions of time. 
 
 70. Depositions. 
 
 72. Set-off. 
 
 73. Practice in New York. 
 75. Waiver. 
 
 CHAPTER XIV. 
 Verdict against Evidence .... 444-490 
 
 1. General rule. 
 
 2. Pleadings — variance. 
 4. By court above.
 
 CONTENTS. XV 
 
 7. Additional grounds. 
 
 8. In reference to a particular fact. 
 
 9. Limitations of the rule ; the case must be strong. 
 13. Deficiency of evidence. 
 
 15. Court above. 
 17. Report of the evidence. 
 
 19. Preponderance of evidence ; weight of testimony ; credibility of 
 witnesses; case passed upon by the jury; improper bias, &c. 
 
 27. Absence of evidence. 
 
 28. Balance of testimony ; credit of witnesses. 
 31. Number and relation of witnesses. 
 
 3G. Misunderstanding of the case. 
 
 37. Verdict founded upon some evidence ; upon vague and suspicious 
 
 evidence. 
 40. Verdict for the defendant without evidence. 
 42. For the plaintiff without evidence. 
 
 44. Or against clear evidence for the defendant. 
 
 45. Circumstantial evidence. 
 
 50. Evidence by inspection. 
 
 51. In reference to language. 
 
 52. Successive verdicts. 
 
 57. Demurrer to evidence. 
 
 58. Perverse verdict. 
 
 59. In what classes of cases. 
 
 60. Criminal cases ; penal actions ; fraud. 
 
 64. Substantial justice. 
 
 65. Trifling cases. 
 
 66. No benefit to the party. 
 
 67. Trial by the court ; verdict by consent ; award. 
 71. Questions of law. 
 
 75. Verdict satisfactory or otherwise to the judge. 
 
 CHAPTER XV. 
 Newly-Discovered Evidence .... 491-520 
 
 1. General rule. 
 
 4. Remarks of courts. 
 
 6. Diligence must be proved. 
 
 . 7. Forget fulness. 
 
 9. Documentary evidence. 
 
 11. Ignorance of counsel. 
 
 13. Cumulative evidence. 
 
 19. Evidence to impeach, contradict, or otherwise affect a witness.
 
 Xvi CONTENTS. 
 
 28. Questions of amount. 
 
 29. Questions of form. 
 
 30. To prove a crime. 
 
 31. Court above. 
 
 35. Form of application, afiidavits, statement of evidence, hearsay, &c. 
 40. Materiality and credibility. 
 
 CIIArTER XVI. 
 Surprise 521-560 
 
 1. General rule. 
 
 2. In criminal cases. 
 
 4. Second motion for new trial. 
 
 5. Discretion — court above. 
 
 5«. For cause arising after verdict. 
 
 6. Justice done. 
 
 7. Laches. 
 
 8. Terms. 
 
 9. Concurrent with other grounds. 
 
 10. Threats, «&c., preventing a defence. 
 
 11. Mistake of law. 
 
 13. Ignorance of fact. 
 
 14. Sickness. 
 
 15. Absence of party. 
 
 16. Erroneous notice for trial. 
 24. Premature trial. 
 
 28. Absence, &c., of witness. 
 35. Testimony given or omitted. 
 
 44. Want of preparation. 
 
 45. Rejection or admission of evidence. 
 
 46. Credibility of witness. 
 
 48. ]\Iisconduct of, or tampering with, witness. 
 
 49. Papers. 
 
 50. Pleadings. 
 
 51. Perjury. 
 
 52. 59. Nonsuit. 
 
 53. Absence, &c., of counsel. 
 
 60. Delay, withdrawing juror. 
 
 61. Default. 
 
 62. Waiver. 
 
 66. Depositions, &c. 
 
 68. Affidavits. 
 
 73. Delay in motion.
 
 CONTEXTS. XVll 
 
 CIIArTER XA^II. 
 Amount of Damages 561-586 
 
 1. General rule. 
 
 2. Cautiously applied — remarks of judges. 
 
 3. Exemplary damages. 
 
 4. Second new trial. 
 
 5. Declaration. 
 
 6. Law and fact. 
 
 8. Joint*defcndaut3. 
 
 9. Fault of party — waiver. 
 
 10. Sliglit excess — opinion of judge, A:c. — dissatisfaction. 
 
 13. Court above. 
 
 14. Calculation of amount ; basis of calculation. 
 19. Nominal damages. 
 
 23. Too small damages. 
 
 29. Partial new trial. 
 
 30. BemiUui\ &c. 
 
 32. Assault. 
 
 33. False imprisonment. 
 
 34. Negligence. 
 
 35. Libel, &c. 
 
 40. Malicious prosecution. 
 
 41. Trespass qu. claus. 
 
 42. Watercourse. 
 
 43. Breach of promise. 
 
 44. Seduction, &c. 
 
 CHAPTER XVIII. 
 Xew Trials in Equity 587-617 
 
 1. General remarks. 
 
 2. Mode of proceeding — injunction. 
 
 3. Special grounds must be sliown. 
 
 7. Amount of judgment. 
 
 8. Form of decree. 
 
 9. Judgment in anotber State. 
 10. Terms. 
 
 14. Successive injunctions. 
 
 15. Time. 
 
 16. Laches — neglect, delay, ifcc. 
 
 19. Pleadings. 
 
 20. Exceptions to the strict rule. 
 
 9
 
 XVI 11 CONTENTS. 
 
 21. Accident, mistake, &c. 
 
 22. Fraiul. 
 
 24. Formal errors. 
 2G. Default. 
 27. Confession. 
 
 30. Compromise. 
 
 31. Award. 
 
 32. New evidence. 
 
 34. In part. 
 40. Paj-mcnt. 
 
 42. Set-off. 
 45. Estoppel. 
 40. Pleading's. 
 4Ga. Parties. 
 
 52. Title to lands. 
 
 53. Surety. 
 
 54. Trust. 
 
 55. Execution. 
 
 CHAPTER XIX. 
 
 Other forms of Rehearing than Xew Trial — 
 Writ of Error 618-685 
 
 1. General remarks. Peculiarities of American law. 
 
 2. Nature of a writ of error. 
 
 3. Ex dehito justitm. 
 
 5. A new action. 
 
 6. Writ of error, and motion in arrest of judgment. 
 
 7. Judgment must be according to the course of the common law. 
 
 8. Qualifications of this rule. 
 
 9. Special proceedings ; whether error lies. 
 
 10. Grounds of the writ. 
 
 11. Mere irrerjulurity. 
 
 12. Whether for acts after judgment. Executions. 
 13 Error oi foundation., pi'oceedinff, or judgment. 
 
 18. Error coram nobis or coram vohis. 
 
 19. Error of laio and of fact. 
 
 24. A remedial ]M-ocess ; construction of statutes. 
 
 25. Cases of discretion. 
 
 26. Questions of amount ; ad damnum., interest, costs, etc. 
 32. Defects in the declaration ; variance ; misjoinder, &c. 
 
 35. Right ol' appeal, whether a writ of error lies in case of. 
 
 43. The judgment must he final. 
 
 50. The plaintiff in error must have been injured 1>y the judgment 
 voluntary nonsuit, &c.
 
 CONTENTS. XIX 
 
 53. The error must bo substantial, not mcw\y formal ; limitations and 
 qualifications of the rule; judgment in favor of the plaintilf in 
 error. 
 
 58. The error must appear upon the record ; what constitutes the 
 record ; iiapers used or filed, parol evidence, &c. 
 
 63. The eri-or must appear, affirmatively. Judgment presumed to be 
 
 correct. 
 
 64. When the right to a writ of error is waived. 
 
 68. Error in case of default. 
 
 69. For want of, or defect in, service of the writ ; joint defendants, &c. 
 74. In case of arbitration. 
 
 77. Efffect of a writ of error upon the judgment and the rights of the 
 
 parties ; supei'sedeas of execution, &c. 
 80. Course of proceeding upon a writ of error ; assignment of errors ; 
 allegations of the writ, &c. 
 
 103. Parties ; must be interested ; joint parties ; in case of death ; pur- 
 chasers, creditors, agents, &c. 
 
 116. Summons and severance. 
 
 134. Misnomer. 
 
 136. Service of writ of error. 
 
 139. Defences ; dismissal ; in nullo est erratum ; release of errors. 
 
 158. Judgment upon a writ of error ; reversal in part ; remanding of 
 the case, and proceediiags of the court below ; miscellaneous 
 points. 
 
 188. Successive writs of error. 
 
 196. Errors in criminal cases. 
 
 CHAPTER XX. 
 Certiorari 686-G99 
 
 1. Definition, nature, and purpose. 
 
 6. What is to be reviewed. 
 
 7. Distinction between error and certiorari. 
 
 8. Lies only upon pending proceedings. 
 
 9. Not a writ of right — discretionary. 
 
 12. The proceeding must be a judicial one. 
 
 13. Relates to the legality and regularity of the proceedings reviewed. 
 
 14. Supersedeas. 
 
 15. Jurisdiction of the court below. 
 
 16. Questions of law and of luct. 
 19. Return to the writ. 
 
 23. Does not lie where there are other remedies ; appeal. 
 
 25. In criminal cases. 
 
 26. Parties.
 
 XX CONTENTS. 
 
 26«. To justices of the peace. 
 o2. Form of petition aud affidavit. 
 43. Miscelluueous. 
 
 CHAPTER XXI. 
 Appeal , . 700-763 
 
 1. Definition. 
 
 2. In the United States ; statutory law. 
 
 3. A statutory remedy ; the statutes must be strictly complied "n'ith ; 
 
 time, &c. 
 G. A continuation of the original suit ; notice, &c. 
 7. Questions as to right of appeal ; process in connection therewith ; 
 
 constitutional right. 
 13. Issue, default, &c. 
 17. Restricted right of appeal ; title to land, &c. ; construction of 
 
 statutes. 
 20. From a favorable judgment, &c. 
 22. As connected with other forms of rehearing ; error, injunction, 
 
 review, audita querela, &c. 
 
 32. Proceedings must be judicial. ^ 
 
 33. In case of habeas corpus. 
 
 34. Mandamus. 
 
 35. Contempt. 
 
 30. There must be a judgment. 
 
 37. The judgment must he final, not interlocutor}- ; qualifications and 
 
 exceptions ; what is a final judgment. 
 4G. Discretionary judgments. 
 
 49. Neglect and waiver ; objections not raised in the court below. 
 61. Questions oi jurisdiction. 
 71. Effect of an appeal ; suspends or vacates the judgment: irregular 
 
 or void appeal ; neglect to enter or prosecute. 
 78. Course of proceeding in the appellate court ; whole case reopened ; 
 
 limitations of this rule ; pleadings, evidence, ttc. 
 89, Dismissal of an appeal. 
 99. Remanding of the case. 
 104. Parties ; persons interested ; joint parties ; executors, assignees. 
 
 Sec. 
 118. Amo^lnt of judgment ; jurisdiction, ttc. 
 131. Return of papers by the court below ; copies, originals, papers 
 
 filed, &c. 
 145. Bond and recognizance. 
 156. Payment of fees. 
 170. Successive appeals.
 
 CONTENTS. XXI 
 
 CIIArTER XXII. 
 Audita Querela 764-773 
 
 1, Definition ; for the most part obsolete. 
 
 2, As connected with other modes of revision. 
 G. General nature and objects. 
 
 8. Lost by neglect. 
 
 9. Absent defendant ; default. 
 13. Imprisonment. 
 
 15. Payment of judgment. 
 18. Parties. 
 24. Practice. 
 
 CHAPTER XXIII. 
 Mandamus 774-786 
 
 1. Definition, &:c. 
 
 2. Does not lie in case of other remedies. 
 
 4. Parties. 
 
 5. As connected with appeal, error, &c. 
 8. Designed to compel action. 
 
 10. Lies only to a continuing tribunal. 
 
 11. Constitutional questions. 
 
 12. In reference to new trial, exceptions, &c. 
 
 13. Miscellaneous cases. 
 
 Appendix — Statutes 789-796
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 A. 
 
 Aaron v. State 
 Abbott V.Abbott 
 V. Bvilt 
 V. Parsons 
 Abel V. Burgett 
 Abies V. Donley 
 Abney v. Carter 
 Acby V. Rapalye 
 Acbeson v. Sutlitt 
 Acker v. Ledyard 
 Ackley v. Kellogg 
 v.Bevkej 
 Adair v. Adair 
 Adam v. Robeson 
 Adams v. Abernatby 
 -y. Andrews 
 ■V. Blodgett 
 V. C apron 
 V. Farnsworth 
 11. George 
 V. Horsfield 
 V. Midland 
 v. Neeley 
 V. Newfone 
 V. Woods 
 Addington v. Etberidge 
 Addis V. Fahnestock 
 Aden v. Young 
 Adkins v. Williams 
 Agee V. Medlock 
 Aiken B.Bemis 2<6, 4W 
 
 V. Brnen 
 Airington v. Coleman 
 Albright v. Mallory 
 Alcott V. Boston 
 Aldigc V. Knox 
 Aldricb v. Bonett 
 V. Palmer 
 Alexander v. Abbott 
 
 16.-) 
 
 343 
 
 6G 
 
 Alexander v. Baylor 
 1). Byron 
 v. Dunn 
 
 7G3 
 512 
 629 
 381 
 36 
 670 
 429, 490 
 4.-)4 
 200 
 480 
 330 
 17, 78 
 412 
 434 
 430 
 4.50 
 676 
 .568 
 67 
 694 
 716 
 351 
 707 
 417 
 234 
 136 
 511, 563 
 1,128 
 543 
 635 
 219, 248 
 431 
 9 
 4.50, 567 
 
 V. Jameson 
 V. Le^Yi3 
 V. Tbomas 
 Alfred v. Saco 
 -y. State 
 Alo-er v. Dvmcan 
 ° V. Hiler 
 V. IMerritt 
 Allaire v. Hartsborne 
 Allard «. Smith 
 Allen V. Aldrich 
 
 PAGE 
 
 605 
 309 
 84, 166, 221, 
 237 
 218 
 551, 543 
 581 
 649 
 179 
 462 
 672 
 502, 546 
 33 
 161 
 134, 285, 374 
 
 175, 
 
 «.Aiaricu .., ro'ooi 424, 
 V. Blunt 49, o3, ob, .i-i, ^g|^ 
 
 V. Brown 
 V. Flock 
 V. Folger 
 t\ Freeland 
 v. Garesche 
 V. Hopper 
 
 1). Hostetter 
 
 «. Lyles 
 
 V. McNew 
 
 V. Mapes 
 
 V. Mayor 
 
 V. Rostain 
 
 V. Sawyer 
 
 V. Tyler 
 
 -y. Wanamaker 
 
 V. Way 
 
 V. Wood 
 
 y. Wordheimer 
 
 Alley V. Bootli 
 
 ^j. Hampton 
 
 Ailing V. Slielton 
 Allington i'. Tucker 
 Allison I'. Barrett 
 0. Dartou 
 
 570 
 
 127 
 
 142 
 
 612 
 
 458 
 
 393 
 
 710 
 
 366 
 61 
 70 
 638 
 51 
 63 
 634 
 261 
 55 
 8 
 457 
 314 
 447 
 661 
 37, 538 
 390 
 144
 
 x;civ 
 
 TABLE OF CASES CITED. 
 
 Allison V. Hedges 
 V. People 
 
 AUman v. Garm 
 
 Alston V. Grantham 
 
 Althofi'. Wolf 
 
 American v. Bradford 
 V. Dobbin 
 V. luloes 
 V. Parsons 
 
 Ames V. Potter 
 V. Sloat 
 
 Amherst v. lladley 
 
 Amidown v. Osgood 
 
 Ammidown v. Wbeelock 
 
 Amnions v. State 
 
 Amyx V. Smith 
 
 Anderson v. Bath 
 
 V. Busteed 
 V. Chandler 
 . V. Duffield 
 V. George 
 V. State 
 V. Walker 
 V. Wilburu 
 
 Andre v. Bodman 
 V. Johnson 
 
 Andrews v. Cressy 
 
 V. South-vvick 
 V. Tinsley 
 
 Angell V. Street 
 
 Angus V. Dickerson 
 
 Anthony v. State 
 
 Antoine v. Ridge 
 
 Appleby v. Firemen's 
 
 Appleton V. Turnentine 
 
 Apps V. Day 
 
 Archdale v. Moore 
 
 Archer v. Ilubbell 
 
 Archibald v. Davis 
 
 Ardery v. Pollys 
 
 Arcy V. Stephenson 
 
 Armis v. Barker 
 
 Armistead v. Brooke 
 
 Armstrong v. Hickman 
 V. Picrson 
 V. Timmons 
 
 Arnold v. Skaggs 
 
 V. TourU'llot 
 V. Williams 
 
 Arrington v. Cherry 
 
 V. Washington 
 
 Arthur v. Mitchell 
 
 Arthurs v. Hart 
 
 Artisans' v. Treadwell 
 
 Ash V. Ash 5, 
 
 Ashburnham v. Michael 
 
 Ashcroft V. Pouus 
 
 I 
 
 »AGE 
 
 
 PAGE 
 
 
 722 
 
 Ashley v. Ashley 
 
 489 
 
 , 490 
 
 243 
 
 , 243 
 
 V. Root 
 
 
 35 
 
 
 291 
 
 Ashuelot V. Pearson 
 
 
 732 
 
 29 
 
 381 
 
 Aslop V. ]\ragill 
 
 
 40 
 
 
 285 
 
 Aspley V. Thomas 
 
 
 445 
 
 
 130 
 
 Astley V. Welden 
 
 
 571 
 
 
 311 
 
 Atchison v. Steamboat 
 
 
 403 
 
 
 318 
 
 Atherton v. Tilton 
 
 
 305 
 
 
 295 
 
 Atkins t\ State 
 
 196 
 
 ,233 
 
 46 
 
 105 
 
 V. Wyman 
 
 
 4,7 
 
 
 140 
 
 Atkinson v. Gatcher 
 
 304 
 
 331 
 
 51 
 
 103 
 
 V. Lane 
 
 
 038 
 
 
 G51 
 
 V. Nevrton 
 
 
 375 
 
 
 21 
 
 Atlantic v. Wright 
 
 
 134 
 
 
 450 
 
 Attei'burry v. Fairmanner 
 
 
 541 
 
 
 707 
 
 Atwell V. Grant 
 
 
 436 
 
 
 378 
 
 Aubel V. Ealer 
 
 
 493 
 
 
 417 
 
 Augusta V. Abbott 
 
 
 377 
 
 
 638 
 
 ■». Wellborn 
 
 
 11 
 
 
 541 
 
 Aulanier v. Governor 
 
 
 732 
 
 67 
 
 125 
 
 Ault v. Fleming 
 
 
 325 
 
 
 162 
 
 Aureutz v. Porter 
 
 
 020 
 
 
 650 
 
 Austin V. Bingham 
 
 
 281 
 
 
 468 
 
 V. Nichols 
 
 
 653 
 
 
 438 
 
 V. Thomson 
 
 
 434 
 
 
 639 
 
 Avcrett v. Brady 
 
 
 256 
 
 
 030 
 
 Avery v. State 
 
 496 
 
 518 
 
 
 296 
 
 Aurora v. Col)b 
 
 23 
 
 400 
 
 
 220 
 
 Axtell V. Caldwell 
 
 
 290 
 
 
 22 
 
 Aycock V. Williams 
 
 
 676 
 
 
 452 
 
 Ayer v. Bartlctt 
 
 
 571 
 
 
 92 
 
 Aylett V. JeM'cU 
 
 248, 
 
 250 
 
 454 
 
 ,570 
 
 Aylwin v. Ulmer 
 
 
 278 
 
 
 328 
 
 Ayrault v. Chamberlain 
 
 220 
 
 404 
 
 
 701 
 
 Ayres v. Duprey 
 
 
 391 
 
 
 573 
 
 
 
 
 46, 
 
 447 
 558 
 572 
 454 
 
 B. 
 
 
 
 
 250 
 
 Babcock v. Callender 
 
 
 310 
 
 
 62 
 
 V. Porter 
 
 
 404 
 
 203, 
 
 265 
 
 V. Sanborn 
 
 
 062 
 
 
 595 
 
 Backster v. Hall 
 
 
 445 
 
 
 42 
 
 Bacon v. Ward 
 
 
 654 
 
 
 189 
 
 V. Williams 
 
 
 398 
 
 483, 
 
 517 
 
 Bacot V. Keith 
 
 
 574 
 
 
 652 
 
 Bagby v. Lewis 
 
 
 453 
 
 
 22 
 
 Bagge V. Lynch 
 
 
 499 
 
 
 59 
 
 Bagicy V. Smith 
 
 
 381 
 
 
 009 
 
 Bagshaw v. Dorsett 
 
 
 458 
 
 
 548 
 
 Bailey v. Baxter 
 
 
 655 
 
 
 645 
 
 t\ Ellis 
 
 
 468 
 
 
 720 
 
 V. Trumbull 
 
 87, 
 
 191 
 
 127, 
 
 579 
 
 Bakcman v. Rjse 
 
 
 365 
 
 
 171 
 
 Baker v. Backus 
 
 
 663 
 
 
 10 
 
 V. Bouesteel 
 
 
 445
 
 TABLE OF CASES CITED. 
 
 XXV 
 
 
 PAGE 
 
 
 p 
 
 AGE 
 
 Baker v. Briggs 
 
 478 
 
 Barnes v. Dodge 
 
 
 016 
 
 V. Cook 
 
 469 
 
 V. Moody 
 
 
 671 
 
 V. Ezzurd 
 
 254 
 
 V. Strohccker 
 
 
 152 
 
 V. Pritchctt 
 
 449 
 
 Barnett v. Thompson 
 
 
 389 
 
 i\ Richardson 
 
 482 
 
 Barnette v. Hicks 
 
 
 563 
 
 V. Siinmons 
 
 212 
 
 Barney v. Scherling 
 
 
 104 
 
 V. Wright 
 
 30 
 
 Baron v. People 
 
 
 631 
 
 Bahnforth v. Pledge 
 
 14 
 
 Barreda v. Silsbee 
 
 
 325 
 
 Balcom v. Woodruff 
 
 103 
 
 Barrett v. Belshee 
 
 505, 
 
 518 
 
 Baldwin v. Peet 
 
 50 
 
 V. Maiden 
 
 
 275 
 
 Bales V. State 
 
 503 
 
 V. Wills 
 
 
 140 
 
 Ball V. Bradley 
 
 341 
 
 Barrick v. Austin 
 
 
 52 
 
 Ball's 
 
 114 
 
 Barringer v. Nesbit 
 
 54, 
 
 475 
 
 Ballauce v. Loomis 
 
 614 
 
 Barron v. Fay 
 
 
 301 
 
 Ballard v. Noaks 
 
 24 
 
 V. Jackson 
 
 18, 
 
 544 
 
 Ballenger i\ Barnes 
 
 718 
 
 Barrow v. Jones 
 
 
 551 
 
 Baltimore v. Polly 238, 
 
 377, 431 
 
 V. Paxton 
 
 
 349 
 
 «. Resley 98, 
 
 320, 324 
 
 D. Robichaux 
 
 
 605 
 
 
 383 
 
 Barry v. Bennett 
 
 
 412 
 
 «. Skeels 
 
 296 
 
 Barstow v. Sprague 
 
 
 128 
 
 V. State 
 
 358 
 
 Bartholomew v. Edwards 
 
 
 418 
 
 V. Williams 
 
 350, 378 
 
 V. Merchants' 
 
 295 
 
 Bander v. Covill 
 
 531 
 
 Bartlett v. Glendy 
 
 
 595 
 
 Banfield v. Bruton 
 
 453 
 
 V. Hoyt 
 
 
 313 
 
 Bangor v. Brunswick 
 
 466 
 
 V. Hunt 
 
 
 135 
 
 V. County 
 
 705 
 
 V. Kingan 
 
 
 469 
 
 V. Armstrong 
 
 634 
 
 V. Pickersgill 
 
 
 509 
 
 t\ Bank 
 
 455 
 
 Bartol v. Calvert 
 
 
 636 
 
 Bank v. Bates 
 
 636 
 
 Barton v. Holmes 
 
 
 162 
 
 V. Batty 
 
 136 
 
 V. Kane 
 
 
 434 
 
 V. Bobo 
 
 480 
 
 9). Morphis 
 
 
 401 
 
 V. Bowie 
 
 140 
 
 V. AVells 
 
 
 641 
 
 V. Hall 
 
 637 
 
 Bass V. Winfry 
 
 
 648 
 
 V. Hiles 
 
 81 
 
 Bassett v. Porter 
 
 
 275 
 
 V. Kerby 
 
 662 
 
 V. Salisbury 
 
 
 374 
 
 V. King 
 
 459 
 
 Bast V. Alford 
 
 
 384 
 
 V. Patterson 
 
 601 
 
 Basye v. Beard 
 
 597 
 
 604 
 
 V. Plannett 
 
 282 
 
 Batchelor v. Creditors 
 
 
 706 
 
 V. Stuart 
 
 430 
 
 Bateman v. Willoe 
 
 524 
 
 588 
 
 Banks v. Hart 
 
 188 
 
 Bates V. Barber 
 
 
 412 
 
 Banning v. Banning 
 
 637 
 
 V. Republic 
 
 
 104 
 
 Bantley v. Dillard 
 
 591 
 
 Batten v. Harrison 
 
 
 531 
 
 Baptist V. Peck 
 
 622 
 
 Battersby v. Abbott 
 
 
 274 
 
 Barada v. Carondelet 
 
 613 
 
 Battles V. Braintree 
 
 
 134 
 
 Barber v. Graves 
 
 674 
 
 Baxter v. Abbott 
 
 24 
 
 407 
 
 Barbour v. Archer 
 
 208 
 
 V. People 
 
 
 202 
 
 V. AVhite 
 
 294 
 
 Baylis v. Lucas 
 
 
 108 
 
 Barker v. Brink 
 
 143 
 
 Beagles i\ Sefton 
 
 
 46 
 
 V. Brown 
 
 13 
 
 Beal V. Stone 
 
 23 
 
 455 
 
 V. Callihan 
 
 663 
 
 Beale v. Digges 
 
 
 616 
 
 V. French 
 
 504 
 
 V. Hall 158, 
 
 159 
 
 398 
 
 V. Hobbs 
 
 707 
 
 Beall V. Brown 
 
 
 607 
 
 V. State 
 
 397 
 
 V. Campbell 
 
 
 165 
 
 Barksdale v. Brown 
 
 289, Oil 
 
 V. ISIann 
 
 62 
 
 289 
 
 V. Bunkley 
 
 608 
 
 V. Pearre 
 
 
 304 
 
 Barlow v. Lambert 
 
 421 
 
 Bealle -y. Day 
 
 
 629 
 
 Barnard v. Young 
 
 143 
 
 Bean v. Blanton 
 
 
 616
 
 XXVI 
 
 TABLE OF CASES CITED. 
 
 Beans v. Emannelli 
 Bear V. Boles 
 Beard v. Simmons 
 Beardmorc i\ Carrington 
 Bcates v. Helallick 
 Beatty v. Lycoming 
 Beaufort v. Crawshay 
 Beavers 
 
 Bcazley v. Sliaplcigh 
 Becklej' i'. Palmer 
 Bedell v. Commercial 
 
 V. Powell 
 Bedford v. The State 
 Bediugton v. Southall 
 Beehe v. Stntsmau 
 Beecher v. Derby 
 Beek o. Cole 
 Beekman v. Bemas 
 Beers v. Broome 
 V. Koot 
 V. AVoodruff 
 Begg V. "Whiltier 
 Belcher v. lirithe 
 
 v. Grey 
 Beldeu v. Gray 
 Belk V. Massey 
 Belknap v. Wendell 
 Bell V. Chambers 
 V. Cunningham 
 V. Keefe 
 V. Morrison 
 V. Rinker 
 1). Shibley 
 V. State 
 V. Thompson 
 V. Williams 
 Bellamy v. AVoodson 
 Bcllish 0. Arnold 
 Bemis v. Faxon 
 V. Phelps 
 Bemus v. Clark 
 Bender v. Sherwood 
 Benedict v. Hoggin 
 V. Lawson 
 V. State 
 Benett v. Peninsular 
 Benham v. Home 
 Benner v. Welt 
 Bennet v. Bullock 
 Bennett's 
 Bennett v. Alcock 
 V. Baker 
 V. Ilardaway 
 V. Howard 
 V. Runyon 
 V. The"State 
 Benoist v. Powell 
 
 PAGE 
 
 
 PAGK 
 
 
 23 
 
 Benson v. Fish 
 
 
 216 
 
 
 22 
 
 Benson t. Frederick 
 
 
 578 
 
 
 5or) 
 
 Berger v. Spalding 
 
 
 102 
 
 
 r,79 
 
 Bergen v. Riggs 
 
 
 295 
 
 
 150 
 
 Berks v. Jones 
 
 
 143 
 
 
 320 
 
 V. ]\Iason 
 
 
 488 
 
 
 440 
 
 Berry v. Billings 
 
 264 
 
 350 
 
 
 G7 
 
 V. Lowe 
 
 637 
 
 696 
 
 
 535 
 
 V. i\Latzler 
 
 
 102 
 
 G14 
 
 GIG 
 
 V. Singer 
 
 
 77 
 
 
 25 
 
 Berryhill v. Jacobs 
 
 
 107 
 
 
 394 
 
 V. ^VFKce 
 
 
 713 
 
 
 111 
 
 Berwick v. Ilorsfall 
 
 311 
 
 323 
 
 
 212 
 
 Bethea v. Prothro 
 
 
 53 
 
 
 323 
 
 Bethune v. McCrary 
 
 
 296 
 
 
 472 
 
 Bettison v. Jennings 
 
 
 607 
 
 
 48 
 
 Bevan v. Byrd 
 
 
 357 
 
 
 554 
 
 Beveridge v. Welch 
 
 
 563 
 
 17, 
 
 416 
 
 Bickley v. Biddle 
 
 
 291 
 
 
 512 
 
 Bigby V. Powell 
 
 
 38 
 
 
 470 
 
 Bigelow V. Ward 
 
 
 89 
 
 
 428 
 
 V. Young 
 
 
 440 
 
 
 287 
 
 Biggs V. Berry 
 
 
 157 
 
 
 4G9 
 
 Bignall v. Devnish 
 
 
 407 
 
 
 311 
 
 Billingsley v. Groves 
 
 
 566 
 
 
 4GG 
 
 Billups V. Sears 
 
 
 604 
 
 
 384 
 
 Binder v. The State 
 
 
 219 
 
 
 426 
 
 Bingley v. MoUison 
 
 
 533 
 
 
 605 
 
 Binion v. Miller 
 
 
 335 
 
 
 436 
 
 Birch V. Benton 
 
 
 311 
 
 
 578 
 
 Birchard v. Booth 161, 
 
 162, 
 
 169, 
 
 
 4G0 
 
 
 
 563 
 
 
 442 
 
 Bird V. Bird 
 
 
 620 
 
 
 711 
 
 V. The Slate 
 
 
 46 
 
 
 540 
 
 Birdsell v. Russell 
 
 
 336 
 
 
 601 
 
 Bird well v. Cox 
 
 
 534 
 
 597 
 
 607 
 
 Birkby v. Birkby 
 
 
 669 
 
 
 248 
 
 Bishop V. Fahay 
 
 
 41 
 
 
 717 
 
 V. Hampton 
 
 
 634 
 
 
 324 
 
 V. iMayor 
 
 
 574 
 
 
 628 
 
 V. The State 88, 
 
 175, 
 
 243, 
 
 
 79 
 
 
 
 404 
 
 
 o (8 
 
 Bissel V. Beckwith 
 
 
 434 
 
 
 469 
 
 /'. Bozman 
 
 
 614 
 
 
 640 
 
 IK Ilojikins 
 
 
 349 
 
 
 111 
 
 V. Spencer 
 
 
 660 
 
 
 305 
 
 Bivens v. The State 
 
 
 453 
 
 GG3, 
 
 671 
 
 Bixby V. The State 
 
 504 
 
 518 
 
 
 638 
 
 Black V. Black 
 
 
 634 
 
 
 511 
 
 V. Foster 
 
 
 436 
 
 5G7 
 
 586 
 
 V. Jones 
 
 
 263 
 
 
 160 
 
 V. Kirgan 
 
 
 664 
 
 
 455 
 
 V. Wurtz 
 
 
 343 
 
 
 206 
 
 Blackburn v. Beall 295 
 
 387 
 
 428 
 
 
 81 
 
 V. Parkinson 
 
 
 405 
 
 314 
 
 457 
 
 V. Thornton 
 
 
 371 
 
 
 24 
 
 Blackhurst v. Bulwer 
 
 
 536
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 149, 242 
 242 
 
 Blacklcy v. Sheldon 
 Bladen v. Cockey 
 Blain ». Stewart 
 Blair v. Corby 
 
 V. Hamilton 
 Blake v. Blossom 
 t). Davis 
 V. Home 
 V. Sawin 
 Blakeney v. Ferguson 
 Blalock V. Phillips 
 Blanc V. Klumpke 
 Blanchard «. Jacobs 
 v. Morris 
 V. Pratt 
 V. Wild 
 Bland v. The State 
 Blanding v. Sargent 
 Blanks i\ Foushee 
 Bledsoe v. Doe 
 Bliss y. Shnman 
 Bliven ®. New England 
 Blodgett V. Pvoyalton 
 Blood V. Whitman 
 Blount B.Tomliu 
 Blum V. Higgins 
 Board t'. Ray 
 
 Boardman v. Insurance Co. 
 Bobbs v. Lambdm 
 Bodman v. Harris 
 Bodwell V. Osgood 
 Boetge V. Landa 
 Bogan v. White 
 Boi-le's V. Kreitzer 
 Bohr y. Steamboat 
 Boies «. Henncy 
 Bolan V. Peeples 
 Boland v. Greenville 
 Bolton V. McKinley 
 
 V. Stewart 
 Bond i\ Baldwin 
 i\ Brown 
 «. Cutler 
 V. Hall 
 V. Mallow 
 V. The State 
 Bonds V. Gray 
 Bone V. Ingram 
 Bonham r. lo^'^ 
 Bonner v. Baxter 
 Bonney v. Morrill 
 Boobv T. The State 
 Boom «. De Bois 
 Boon V. Boon 
 
 V. The State 
 Booth V. The Commonwealth 
 
 Booth V. Kesler 
 ■y. Small 
 Borland v. Thornton 
 Borrowscale «. Bosworth 
 I Borsch ». The State 
 Borst V. Beecher 
 1 Bosley v. Bruner 
 
 -p. Chesapeake 
 Boston V. Dana 
 Bostwick V. Williams 
 Boudreau v. Boudrcau 
 ' Boughton V. Bank 
 ; Boullemet v. State 
 1 Bourke v. Bulow 
 I -y. James 
 
 , 1 Bourland v. Skinner 
 Bovard «. Christy 
 Bovill y. Pimm 
 Bowditch «. Bufrum 
 Bow en v. Angell 
 ij. Cook 
 ■y. Lanier 
 13. Malbon 
 Bower ». Earle 
 Bowers «. Still 
 Bowie V. Brahe 
 D. State 
 Bowie V. Rouse 
 ?j. State 
 Bowler v. Palmer 
 Bowyer v. Crugh 
 Boxley v. Collins _ 
 Boyce v. California 
 V. Smith 
 V. Yoden 
 Boyd V. Brown 
 «. Lombard 
 V. The State 
 Boyle y. Colman 
 Boydeu ■y. Moore 
 Boyington «. State 
 Boyle y. Wiseman 
 Bradford v. Bayles 
 
 i). Pearson 
 Bradish «. Redway 
 
 -y. State 
 Bradlaugh «. Edwards 
 Bradley y. Bears 
 
 v. Bradley 
 V. Geiselman 
 y. Poole 
 V. Richardson 
 < , . Brady «. Dilley 
 ^49 ti. Hancock 
 
 Igg i). Malone 
 
 gg t). O'Brien 
 
 24? 
 
 xxvu 
 
 PAGE 
 G04 
 447 
 597 
 23 
 217 
 167 
 669 
 42 
 245 
 6G6 
 444 
 616 
 265 
 576 
 311 
 491, 515 
 300 
 328 
 52 
 82 
 459 
 623 
 163 
 307 
 428 
 340 
 20, 43, 257 
 666 
 20, 43 
 721 
 612 
 143 
 161 
 79 
 547 
 470. 574 
 661 
 85, 
 
 379 
 
 407 
 
 56, 254 
 
 167 
 
 323 
 
 636 
 
 47 
 
 709 
 
 518 
 
 573 
 
 634 
 
 213, 252 
 
 462 
 
 50 
 
 353, 
 
 392 
 591 
 718 
 607 
 646 
 31
 
 XXVI 11 
 
 TABLE OF CASES CITED. 
 
 Brairg v. Boston 
 Brainanl v. ^fartin 
 Brakcfield v. State 
 Braloy v. Clarke 
 Branch v. Bass 
 V. Dover 
 V. AVilson 
 Brandin v. Graiinis 
 Brandon v. Green 
 Branford v. Freeman 
 Branger v. Chevalier 
 Brannin v. Force 
 Brant v. Fowler 
 Bratton v. Bryan 
 
 V. Mitchell 
 Brazelton v. Jenkins 
 Brazier v. Burt 
 
 •v. Clai)p 
 Breach r. Casterton 
 Breck v. Blanehard 
 Breckenridn-e v. Ander 
 Breeding v. State 
 Brents v. Barrett 
 Brewer v. Brewer 
 V. State 
 V. Turner 
 Brewin v. Farncll 
 Bridendolph v. Zellars 
 Bridge v. Williams 
 Briggs V. Byrd 
 
 V. Georgia 
 V. Gleason 
 v. Humphrey 
 V. Smitli 
 ■». Tavlor 
 Bright V. Eynon 
 Brisbane v. Adams 
 Brister v. State 
 Bristol V. Chicago 
 Bristow's 
 Brittain v. Allen 
 Britton v. South 
 Broach v. King 
 Broadhead v. Marshall 
 Broas v. ^Mersereau 
 Brock V. Garrett 
 
 «. King 
 Brockman v. Bcrryhill 
 Bronson v. Green 
 
 V. Wiman 
 Brook V. Middleton 
 
 V. Wood 
 Brooke v. Grand 
 Brooks V. Bicknell 
 V. Clifton 
 V. Goodwin 
 V. PeiTy 
 
 son 
 
 G3 
 
 503 
 15G, 198 
 
 G58 
 175, 103 
 
 Brooks V. Williams 
 Brotherson v. Jones 
 B rower v. Orser 
 Brown v. Bowen 
 
 V. Bradshaw 
 V. Bristol 
 V. Brooks 
 V. Bull 
 V. Chase 
 V. Cockerell 
 V. Connelly 
 V. Crim 
 V. Cummings 
 V. Davenport 
 V. Ferguson 
 V. Gray 
 ?). llandley 
 V. Hoburger 
 V. Horless 
 V. Huger 
 V. Jefferson 
 V. Keach 
 v. Levins 
 V. ]\ray 
 V. McConnel 
 V. ]\rcKee 
 V. ]\[oran 
 V. Jlorris 
 1). Bamsay 
 V. IJichardson 
 V. Rol)iusou 
 ■y. Scott 
 V. Smith 
 V. Stacy 
 
 V. State 138 
 
 V. Tanner 
 V. Wheeler 
 V. Williams 
 Browne v. Browne 
 V. Skillman 
 Brownell v. IMcEwen 
 Brownfield v. Browntield 
 Browning v. Mississippi 
 
 V. State 4G, 
 
 Bruce v. Bawlins 
 Brucker v. State 
 Brugh V. Shanks 451 
 
 Bruish v. Carter ' 
 
 Brumbaugli v. Schencbly 
 Brummel v. Enders 
 Brunson v. Gorham 
 Brush V. Keeler 
 
 v. Kohn 
 Bryan v. Acee 
 
 V. Knight 
 V. Primm 
 V. Walton 
 
 PAGE 
 610 
 
 336 
 312 
 
 45 
 66 
 06, 129 
 358 
 625 
 634 
 296 
 309 
 81 
 408 
 6GS 
 129 
 24, 29 
 445 
 413 
 147 
 320 
 450 
 63 
 663 
 413 
 233 
 659 
 433 
 72 
 691 
 420 
 47, 433 
 713 
 480 
 499 
 243, 296 
 5G6 
 193 
 51 
 138, 157 
 137 
 243 
 229, 295 
 232 
 172, 473 
 584 
 240 
 458, 505 
 284 
 604 
 131 
 218 
 41 
 153 
 563 
 616 
 593 
 895
 
 TABLE OF CASES CITED. 
 
 XXIX 
 
 Bryant x. Commonwealth 
 
 V. Crosby 
 Bryescliill v. McCauley 
 Buclian v. Sumner 
 Buchanan v. Carolin 
 
 V. McKenzie 
 
 V. State 
 
 V. Torrance 
 Buckfield v. Gorham 
 Buckhanan v. Gamble 
 Bucklaud s. Charlemont 
 Buckley v. Artcher 
 Buckman v. Buckman 
 Buckmaster v. Cool 
 Bucknam v. Greenleaf 
 Buckner v. Cowley 
 Buddington v. Knowles 
 V. Shearer 
 Budyman v. Viele 
 Bufi'alo V. Kewton 
 Buford D. Burdett 
 Bulkeley v. Keteltas 
 Bulkley v. Waterman 
 Bull's 
 
 Bull V. Griswold 
 BuUard v. Brackett 
 
 •y. Green 
 Bullock V. Beach 
 Bulsou V. People 
 Bump y. Betts 
 Buuce V. Wightman 
 Bunn V. Croul 
 V. Hoyt 
 Bunton v. Lyford 
 Burdiue v. Grand 
 Burens v. State 
 Burge V. Burns 
 Burger v. Potter 
 V. White 
 Burgess v. Lloyd 
 V. Tweed 
 Burges v. Nightingale 
 Burghardt v. Van Deusen 
 Burke v. Norwich 
 Burkhalter v. Wells 
 Burkholder v. Stahl 
 Burleson v. Burleson 
 Burliugame v. Burlingame 
 Burlington v. Green 13, 455, 456 
 Burnham v. Ayer ^28 
 
 V. Butler G45 
 
 Burney v. Spear 334 
 
 Burnley v. Rice 518 
 
 Burnett v. Pacheco 32 
 
 Burns v. Morse 595 
 
 V. Paine 233, 243 
 
 Burnside v. Grand 88 
 
 PAGE 
 
 178 
 382 
 619 
 601 
 491 I 
 122 
 185! 
 607] 
 638 
 146 
 107 
 350 
 717 
 98 
 153 
 75 
 63, 484 
 411 
 647 
 719 
 671 
 286 
 462 
 243 
 415 
 
 624, C52 
 716 
 52, 63 
 628 
 584 
 628 
 223 
 
 233, 242 
 604 
 193 
 432 
 613 
 661 
 719 
 309 
 645 
 573 
 217 
 347 
 449 
 10 
 128 
 241 
 
 39-; 
 
 
 r 
 
 AGE 
 
 Burnside v. Union 
 
 
 88 
 
 Burr V. Palmer 
 
 99, 
 
 505 
 
 V. Williams 
 
 302, 
 
 311 
 
 Burrell v. State 183, 
 
 194, 
 
 305 
 
 Burrill v. Phillips 
 
 
 236 
 
 Burroughs v. Langley 
 
 
 323 
 
 Burrows v. Unwin 
 
 
 222 
 
 Burtin v. Thompson 
 
 
 66 
 
 Burtine v. State 
 
 
 210 
 
 Burtons. Ilynson 
 
 609, 
 
 597 
 
 Buscall V. liogg 
 
 
 66 
 
 Butler V. Dorant 
 
 
 98 
 
 V. Livingston 
 
 
 445 
 
 V. Slam 
 
 
 271 
 
 Button V. McCauley 
 
 
 423 
 
 Buttrick v. Gilman 
 
 
 90 
 
 Butts V. King 
 
 
 445 
 
 Bj'rd V. Johnson 
 
 
 628 
 
 i\ State 
 
 
 1G3 
 
 Byrnes v. Alexander 
 
 
 445 
 
 c. 
 
 Cady V. Owen 
 Gaboon v. Marshall 
 Cain V. Cain 
 
 V. Henderson 
 V. Ingham 
 Calcraft v. Gibbs 
 Calderwood v. Brooks 
 
 V. Tevis 
 Caldwell v. Dickson 
 V. AVest 
 V. Wright 
 Caleb V. State 
 Calhoun v. Stokes 
 Callahan v. Caflfarata 
 Callan v. May 
 Callauan v. Shaw 
 Calvert v. Carter 
 Calwell V. Thompson 
 Cambria v. Tomb 
 Camden v. Cowley 
 
 V. Edie 
 Cameron v. Ward 
 Camp V. Heclan 
 
 V. Tompkins 
 Campbell v. Beckett 
 V. Boyreau 
 V. Briggs 
 V. Genet 
 V. Howard 
 V. Johnson 
 V. Queen 
 V. Quinlin 
 V. Skidmore 
 
 372 
 343 
 83 
 488 
 189 
 254 
 82 
 108 
 318, 515 
 163 
 8 
 215 
 445 
 493 
 709 
 450 
 718 
 739 
 343 
 484 
 648 
 646 
 307 
 110 
 374 
 650 
 608 
 496 
 730 
 063 
 134 
 757 
 344 
 
 r35,
 
 XXX 
 
 TABLE OF CASES CITED. 
 
 Campbell v. Pmitli 
 r. Silencer 
 V. Stale 
 V. Stron;^ 
 V. Thompson 
 V. Wilson 
 
 PAGE 
 
 064 
 448 
 371 
 G21 
 391 
 40 
 
 Cancemi v. People 86, 156, 160, 176 
 
 Cannon v. Beemer 718 
 
 V. Bullock 189 
 
 V. State 233 
 
 Cape, &c. 594 
 
 Capchart v. Carradine 585 
 
 CaiMTtown i\ Iluddleston 616 
 
 Carder v. Baxter 23 
 
 Cardin v. Jones G03 
 
 Carey v. Jirxzht 393 
 
 V. CalVan 40 
 
 V. Giles 662 
 
 V. King 537, 545 
 
 V. McDougald 107 
 
 Carl V. Knott 346 
 
 Carleton v. Goodwin's 754 
 
 V. Townsend 345 
 
 Carlisle v. Slieldon 208 
 
 T. Tidwell 518 
 
 Carlton v. Pierce 393 
 
 Carlyon v. Lanuan 395 
 
 Carol V. 3Iayo 46 
 
 Carpenter v. Dame 162 
 
 T. State 459 
 
 Carpentier v. Small 41, 122 
 
 V. Thurston 75, 319 
 
 Can- V. Gale 46, 99, 276, 461, 511, 
 
 563 
 
 V. State 62, 519 
 
 V. Steyenson 133, 144 
 
 v. Stringer 713 
 
 Carraway v. Board 755 
 
 Carringtbn v. Ilolabird 588 
 
 V. Pacific 270 
 
 Carroll v. Granite 420, 422 
 
 V. Paul 255 
 
 V. Koberts 287 
 
 V. Stafford 444 
 
 Carrnth v. Tigke 745 
 
 Carson v. Cross 497 
 
 Carstairs v. Stein 490 
 
 Carter 13 
 
 Carter v. Beals 28 
 
 V. Bennett 7, 256, 597 
 
 v. Buchanan 269 
 
 V. Carter 8 
 
 Cartright v. Clopton 227 
 
 Carver v. Jackson 285 
 
 Carwan «. NcAvhall 188 
 
 Carwile v. Harvey 575 
 
 Case of a Jurvman 172 
 
 PAGE 
 
 Case V. State 99 
 
 V. Williams 273, 274 
 
 Cason V. Slate 314 
 
 Cassels v. State 445 
 
 Cassidv V. Conway 342 
 
 Castanos v. Ritter 300 
 
 Castello V. St. Louis 780 
 
 Castle V. Ballard 256, 264, 268, 269 
 
 Castree v. Gaville 725 
 
 Castro V. Gill 311 
 
 V. lilies 293 
 
 V. Wurzback 500 
 
 Catawissa v. Armstrong 359 
 
 Gates V. West 648 
 
 Catheart v. Com. 634, 636, 647, 648 
 
 Catlin V. Henton 737 
 
 Catterlin v. Spinks 738 
 
 Causey v. Wiley 350 
 
 Cavanaugh v. Titus 635 
 
 Cayce v. Powell 604 
 
 Cay V. Kendall 249 
 
 Cecil V. Barrv 321 
 
 V. lieald 91 
 
 Center (\ Center 411, 414 
 
 Central v. Hines 296 
 
 V. Placer 693 
 
 V. St. John 406 
 
 Chadbourn v. Franklin 203, 247, 
 
 396 
 
 Chaffee v. Malarkee 750 
 
 V. Soldan 628 
 
 Chaffin V. Lawrence 296 
 
 Chamberlain v. Masterson 372, 384, 
 
 398 
 
 Chambers v. Campbell 405 
 
 V. Canlfield 586 
 
 V. Collier 151 
 
 V. Dickson 82 
 
 V. Fisk 255 
 
 V. Hodges 668 
 
 V. Neal 764 
 
 V. People 147 
 
 V. Robinson 564, 583 
 
 V. Shaw 636 
 
 Champion v. Brooks 21, 632 
 
 V. Miller 597 
 
 V. Plymouth 721 
 
 Chandler r. Barker 161 
 
 ?;. Fulton 57 
 
 r. :\Ierkling 452 
 
 V. Walker 726 
 
 Chanellor r. Vaughn 578 
 
 Chapin v. Potter 311, 324 
 
 Chapman r. Gray 668 
 
 V. Wilkinson 13 
 
 Chappell r. Allen 294 
 
 Charles v. Dubose 658
 
 TABLE OF CASES CITED. 
 
 XXXI 
 
 
 PAGE 
 
 Charlotte v. Chouteau 
 
 
 311 
 
 Charlton v. Unis 
 
 
 423 
 
 Chase v. Alliance 
 
 
 440 
 
 V. Brown 
 
 
 133 
 
 V. Doming 
 
 
 145 
 
 V. Jennings 
 
 
 189 
 
 V. 1? a 1st on 
 
 
 344 
 
 Chatficld r. I.athrop 
 
 
 508 
 
 Cheathaui v. l^iddlc 
 
 
 369 
 
 Cheek v. Taylor 
 
 
 603 
 
 Chem 11. Brig 
 
 
 586 
 
 Cheney v. Palmer 
 
 
 349 
 
 Chenowith v. Hicks 
 
 
 567 
 
 Cherry v. Slade 
 
 
 126 
 
 Chesapeake v. Stark 
 
 
 333 
 
 V. Swain 
 
 
 323 
 
 Cheswell v. Chapman 
 
 
 136 
 
 Chevaillier r. Brewer 
 
 
 457 
 
 i\ Densou 
 
 
 454 
 
 Cheveley v. Fuller 
 
 
 276 
 
 Chiapella v. Brown 
 
 
 102 
 
 Chicago V. Adams 
 
 
 629 
 
 v. Dement 
 
 
 473 
 
 V. Fell 
 
 691 
 
 693 
 
 «. George 
 
 
 381 
 
 V. Northern 
 
 
 451 
 
 V. Shannon 
 
 376 
 
 401 
 
 V. Utley 
 
 
 305 
 
 «. Vosburgh 
 
 450 
 
 533 
 
 V. Whipple 
 
 694 
 
 ^708 
 
 V. Williams 
 
 
 451 
 
 Chick V. Parker 
 
 
 121 
 
 Childress v. Ford 
 
 
 268 
 
 V. Mayor 
 
 
 721 
 
 V. Stone 
 
 
 445 
 
 Chiles V. Drake 
 
 384 
 
 , 580 
 
 Chisvers r. Lambert 
 
 
 562 
 
 Chouquette v. Barada 
 
 
 373 
 
 Chouteau v. Pierre 
 
 
 194 
 
 V. Rice 
 
 
 713 
 
 Christian v. Dripps 
 
 
 89 
 
 Christman v. Gregory 
 
 
 320 
 
 ■V. Melve 
 
 
 38 
 
 Chumasero v. Gilbert 
 
 
 648 
 
 Church r. Drummond 
 
 
 350 
 
 Chui'chill i\ Churchill 
 
 
 189 
 
 V. Corker 
 
 
 47 
 
 «. Rogers 
 
 
 404 
 
 Cilley V. BartleTt 
 
 203 
 
 296 
 
 Cincinnati c. Washburn 
 
 
 3 
 
 Cisna v. Beach 
 
 
 660 
 
 City Bank v. McChesney 
 
 
 133 
 
 City of London 
 
 
 633 
 
 City V. Jackson 
 
 
 638 
 
 Claggett V. Claggett 
 
 
 633 
 
 V. Simes 
 
 
 671 
 
 Claiborne v. Tanner 
 
 147 
 
 , 366 
 
 
 I'.VGH 
 
 Clair V. McGehee 
 
 046 
 
 Clapp v. Balch 
 
 390 
 
 V. Clai)p 
 
 645 
 
 V. Hudson 
 
 564, 580 
 
 Clark V. Bales 
 
 563 
 
 V. Bank 
 
 103 
 
 V. Bell 
 
 030 
 
 V. Binncy 
 
 583 
 
 v. Blount 
 
 103 
 
 V. Bouvain 
 
 88 
 
 V. Carter 90, 244, 
 
 491, 494, 
 
 
 500 
 
 V. Com. 
 
 170 
 
 V. Davis 
 
 453 
 
 V. First 
 
 589 
 
 V. Gridley 
 
 30,88 
 
 V. Hammerlc 
 
 386 
 
 V. Howard 
 
 739 
 
 V. Lamb 
 
 634 
 
 V. Lowell 
 
 007 
 
 V. McElvy 
 
 366 
 
 V. McGraw 
 
 394, 335 
 
 V. Pendleton 
 
 47, 585 
 
 ». Rankin 
 
 360 
 
 V. Snow 
 
 094 
 
 V. Sohier 
 
 555 
 
 V. State 
 
 130 
 
 V. Tabor 
 
 398 
 
 V. Udall 
 
 561, 564 
 
 V. Vorse 
 
 411 
 
 V. Wilder 
 
 39 
 
 V. Wood 
 
 385 
 
 Clarke v. Diggs 
 
 377 
 
 V. Dutcher 57, lOe 
 
 , 393, 318 
 
 Clark's v. Hannibal 
 
 377 
 
 Clary v. Hoagland 
 
 694 
 
 Claussen v. Salinas 
 
 103 
 
 Clayton v. Brown 
 
 408 
 
 Clemens «. Collins 
 
 397 
 
 Clement «. Brooks 
 
 46 
 
 v. Hayden 
 
 048 
 
 Clemsen v. Ivruper 
 
 405, 407 
 
 Clerk V. IMoore 
 
 766 
 
 Cleveland v. Chamberlain 
 
 747 
 
 V. Stanley 
 
 156 
 
 V. Stein 
 
 133 
 
 V. Terry 
 
 136 
 
 Clifford V. Thomaston 
 
 330 
 
 Clifton v. Livor 
 
 589 
 
 V. Sheldon 
 
 747 
 
 Cliquot's 
 
 346 
 
 Clone's 
 
 194 
 
 C lough V. Brown 
 
 706 
 
 V. Clough 
 
 151 
 
 V. Patrick 
 
 371 
 
 Clute V. Ewing 
 
 603 
 
 Coates V. Gregory 
 
 397
 
 xxxn 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Coats V. Elliott 
 
 
 362 
 
 Cobb V. Norwood 
 
 
 82 
 
 V. "Wallace 
 
 
 327 
 
 Coclicco V. Berry 
 
 
 318 
 
 Coclirau v. Amnion 
 
 
 509 
 
 V. State 
 
 
 480 
 
 V. Street 
 
 
 249 
 
 Cochrane v. Boston 
 
 
 151 
 
 V. ]Midcllcton 
 
 
 100 
 
 ■V. "Winljurn 
 
 43, 
 
 569 
 
 Cocker v. Franklin 
 
 331, 
 
 334 
 
 Cockrill V. Calhoun 
 
 
 540 
 
 Cocks i\ llart 
 
 
 432 
 
 Codington v. Camley 
 
 
 459 
 
 Codwell's 
 
 
 171 
 
 Cody V. State 
 
 
 176 
 
 Coe V. Turner 
 
 
 662 
 
 Coffee V. Newson 
 
 
 644 
 
 Coffin V. Coffin 
 
 
 578 
 
 Cogan V. Ebdcn 
 
 
 250 
 
 V. Frisby 
 
 
 46 
 
 Cogdell V. Barfleld 
 
 
 106 
 
 Coggin i\ Jones 
 
 
 457 
 
 Coghill V. Marks 
 
 
 546 
 
 Cohen v. Robert 
 
 
 203 
 
 Coil V. "Wallace 
 
 
 89 
 
 Coit V. "Waples 
 
 
 029 
 
 Coker v. State 
 
 
 523 
 
 Cole V. Cheshire 
 
 
 430 
 
 V. Perry 
 
 
 581 
 
 V. State 
 
 
 120 
 
 V. Taylor 
 
 
 256 
 
 Coleman v. Southwick 
 
 
 581 
 
 V. State 
 
 
 243 
 
 CoUedge v. Hone 
 
 
 337 
 
 Collier «. State 179, 
 
 209 
 
 390 
 
 Collins V. Brush 
 
 
 349 
 
 V. Claypole 
 
 
 405 
 
 «. Collins 
 
 
 744 
 
 V. Graves 
 
 
 147 
 
 V. Loyd 
 
 
 502 
 
 V. Makepeace 
 
 
 137 
 
 V. Morcy 
 
 
 475 
 
 V. U. S., &c. 
 
 
 754 
 
 Collinson v. Larkins 
 
 484 
 
 ,489 
 
 Colman v. Clements 
 
 
 321 
 
 Colquitt V. Thomas 
 
 
 378 
 
 Colt V. CornwcU 
 
 
 614 
 
 Colvin V. AVarlord 299, 
 
 388 
 
 ,434 
 
 Colyer v. Thompson 
 
 
 659 
 
 Combs V. Jelierson 
 
 
 747 
 
 Comfort V. Thompson 
 
 
 482 
 
 Couun'l V. Lum 
 
 
 82 
 
 V. Shuart 
 
 
 430 
 
 Com'rs V. Carey 
 
 
 077 
 
 V. Clarke 
 
 
 260 
 
 Common-wealth v. Anthes 
 
 311 
 
 ,312 
 
 Commonwealth v. Arrancc 
 V. Austin 
 
 TAGE 
 
 395 
 195 
 
 V. Barney 311 
 
 1). Barry 309 
 
 V. Bcuech 519, 552 
 
 V. Bergcr 705 
 
 V. Blood 740 
 
 V. Bosworth 411 
 
 V. Briggs 
 
 V. Burchcr 
 
 V. Burke 
 
 V. Buzzell 
 
 v. Capp 
 
 V. Carter 
 
 V. Castles 
 
 V. Cherry 
 
 V. Child 
 
 V. Church 
 
 «. Churchill 
 
 V. Clark 
 
 V. Concannon 
 
 V. Crawford 
 
 V. Cummings 
 
 116, 683 
 
 V. Davis 324 
 
 B.Domer 291,390, 
 399 
 
 V. Drew 
 
 V. Dunham 
 
 466 
 102 
 730 
 194 
 695 
 102, 190 
 48 
 167 
 286 
 641 
 512 
 775 
 395 
 736 
 115, 
 
 V. Eagan 
 V. Emmons 
 V. Fischblutt 
 V. Fitchburg 
 V. Flanagan 
 
 249 
 736, 
 759 
 192 
 737 
 128 
 359 
 175, 
 179, 186 
 ». Graddy 174 
 
 v. Green 114 
 
 V. Haas 620 
 
 V. Hall 400 
 
 V. Hayden 175 
 
 V. Howe 428 
 
 V. Huber 316 
 
 V. Jenkins 222 
 
 V. Lcsher 194 
 
 v. Manson 7, 511 
 V. Marra 155 
 
 V. Massinger 736 
 V. McCall 129, 
 230, 232 
 V. Mead 242 
 
 V. Moore 107, 102 
 V. Murray 491 
 
 V. Nickerson 402 
 V. Norfolk 109 
 
 ■y. O'Neil 737 
 
 V. Packard 276
 
 TABLE OF CASES CITED. 
 
 xxxili 
 
 PAGE 
 
 77 
 Commomvcaim..Peck^ 184 
 
 ,,:ilanaall 510,548 
 
 V. Eenish fj 
 
 1) Richarcls ^-j* 
 
 lnohy 106,109, 
 
 ^' ^ 199, 203 
 
 V. Rock 
 
 «. Sandford 
 
 V. Shanks 
 
 «. Simpson 
 
 V. Skeggs 
 
 V. Smith 
 
 -0, Stowell 
 
 V. Tarr 
 
 ij. Thompson 
 
 ■J). Thrasher 
 
 B. Tinldiam 
 1) Townsend 
 V. Van Tuyl 
 
 ^j. Webster 
 «. 'Williams 
 
 «. Wormley 
 Comparet v. Hedges 
 Comply «. Biwne 
 Comstock ■«. Grout 
 V. Savage 
 V. Ward 
 Cougar V. Galena 
 Conkey v. I^orthern 
 Conklin t. Thompson 
 Conhn V. San Fraucisco 
 Conn. V. Bliss 
 
 D. Tudor 
 Conner v. Allen 
 Conrad ». Lindley 
 Conway v. Case 
 
 11. Ellison 
 Conwell V. Anderson 
 Cook I'. Adams 
 V. Brown 
 V. Carr 
 
 594, 597 
 510 
 750 
 
 377, 407 
 194 
 
 ::Castner 155,243,245,246 
 
 V. De La Guerra •'-'•* 
 
 V. Dickerson 
 
 V. Garza 
 
 V. Green 
 
 V. Hill 
 
 V. Jones 
 
 V. King 
 
 V. Ritter 
 
 V. Scott 
 
 i\ State 
 
 D. Sypher 
 
 3 
 
 Cook V. United States 
 
 '0. Wood 
 Cooke «. Berry 
 Cook's D. Carroll 
 Cooper 
 
 1). Bisscll 
 V. Lloyd 
 i). Martin 
 ■y. Miles 
 v. Poston 
 V. State 
 «. AValdron 
 Copcutt «. Great 
 Copeland v. State 
 Corbett v. Brown 
 «. Gilbert 
 Corey «• Russell 
 Corlies «. Little 
 Cornelius v. Gibersou 
 V. Merntt 
 V. State 
 Corning v. Corning 
 
 «. Troy 
 Corry ». Tompkins 
 Cortleyour.TenEyck 
 
 Cory «. Silcox 
 Cosgrave v. Howland 
 Cosgrove v. Johnson 
 Costly v. State 
 Coston V. Coston 
 Cothran v. State 
 Cotten V. Rutledge 
 Cotter V. State 
 Cotton's 
 Cotton v. State _ 
 
 y, Watkms 
 Coughlin V. People 
 Couillard V. Duncan 
 Countess 
 Court «. Sprague 
 Covington v. Arrington 
 Cowan «. Green 
 V. Price 
 Cowden i;. Wade 
 Cowles V. Buckman 
 D. Whitman 
 Cowperthwaite v. Jones 
 Cox D. Cox 
 
 t,. Freedley 
 v. Hamilton 
 V. Hutchings 
 v. Jackson 
 V. Mayor 
 V. Rutledge 
 CoyleiJ. Btv^'is 
 Cozart V. Lisle 
 Crabtree v. Cliatt 
 
 PAGE 
 
 121 
 297 
 496, 549 
 318 
 711 
 652 
 521 
 709 
 753 
 135 
 9 
 355 
 
 184, 
 
 75 
 480 
 482 
 147 
 35 
 445 
 340 
 642 
 231 
 754 
 763 
 385 
 784 
 228, 436 
 31 
 11 
 185 
 623 
 295, 324 
 227 
 231 
 173 
 516, 536 
 98 
 263 
 562 
 173 
 466 
 623 
 37 
 610 
 518 
 160 
 630 
 161 
 645 
 320 
 444 
 499, 545 
 434 
 612 
 422 
 122 
 514 
 732 
 
 21,
 
 XXXIV 
 
 TABLE OF CASES CITED. 
 
 Crabtrce v. State 
 
 Craft r. Jackson 
 V. Union 
 
 Craijihcad v. Wells 
 
 Crandall v. State 
 
 Crane v. Lincoln 
 V. Sayre 
 
 Crary v. Carradine 
 
 Craspc V. Smith 
 
 Cra\Yford v. Bashford 
 V. Creagli 
 D. Morris 
 V. New Jersey 
 V. State 
 V. Tlmrmoud 
 
 Crease v. Barrett 
 
 Creed v. Fisher 
 V. White 
 
 Cressinger v. Welch 
 
 Cresswell v. Bledsoe 
 
 Crim V. Scllars 
 
 Crippon v. People 
 
 Crofts V. Watcrhouse 
 
 Crousillat v. Ball 
 
 Crook V. Forsyth 
 
 Cropper v. Pittman 
 
 Cropsey v. Murphy 
 
 Crouch V. McKee 
 
 Croucher v. Oakman 
 
 Crosby v. Blanchard 
 
 Cross V. Hall 
 
 V. Wilkins 
 
 Grossman v. llilltowu 
 
 Crow V. Crow 
 V. French 
 t\ State 
 
 Crowther v. Rowlandson 
 
 Crozier v. Cooi)cr 
 V. Kirker 
 
 Crum V. Williams 
 
 Crump V. Starke 
 
 Crutcher v. Memphis 
 
 CuUem V. Latimer 
 
 Cullnm v. Wagstaff 
 
 Culver V. Dwight 
 
 Cumberland v. Tilghman 
 
 Cuming v. Frier 
 
 Cummings v. Heard 
 V. Henry 
 V. State 
 V. Tilton 
 V. AVhite 
 
 Cummins v. Rice 
 
 T. Waldcn 
 
 Cunningham v. Batchelder 
 
 Curl V. Lowell 13^ 
 
 Curric v. Cowles 
 
 PAGE 
 
 
 PAGE 
 
 
 IGl 
 
 Curry v. Ilinman 
 
 759 
 
 
 254 
 
 Curtis V. Brown 
 
 132 
 
 492 
 
 , 537 
 
 V. Francis 
 
 341 
 
 
 302 
 
 V. Rochester 
 
 580 
 
 
 GOO 
 
 'V. Root 
 
 736 
 
 
 59 
 
 Curtiss V. Beard sley 
 
 735, 760 
 
 
 154 
 
 V. Martin 
 
 361 
 
 
 151 
 
 Cushing v. Billings 
 
 403 
 
 
 703 
 
 V. Willard 
 
 283 
 
 
 745 
 
 Cutler V. Cohunbia 
 
 498 
 
 
 173 
 
 V. Welsh 
 
 97 
 
 
 75 
 
 Cypress v. Hicks 
 
 614 
 
 
 fi29 
 
 
 
 
 249 
 
 
 
 
 607 
 
 D. 
 
 
 
 56 
 
 
 
 
 567 
 
 Dacy V. Gay 
 
 569 
 
 
 438 
 
 D'Aquilar v. Tobin 
 
 524 
 
 
 200 
 
 Dailey v. Grimes 
 
 398 
 
 
 005 
 
 Dains v. State 
 
 114 
 
 
 11 
 
 Daley v. Norwich 
 
 490 
 
 29 
 
 178 
 
 Dalton V. Bethlehem 
 
 308 
 
 
 356 
 
 Dame v. Dame 408, 
 
 551, 556 
 
 
 142 
 
 Dana v. Roberts 
 
 206 
 
 
 451 
 
 Dance v. Tucker 
 
 161, 248 
 
 
 304 
 
 Dane v. Stale 
 
 397 
 
 
 508 
 
 Daniel v. Hannegan 
 
 611 
 
 
 103 
 
 V. Nelson 
 
 411 
 
 
 COO 
 
 V. Rose 
 
 537 
 
 83 
 
 290 
 
 v. Traverse 
 
 616 
 
 
 52 
 
 Dann ». Fish 
 
 590 
 
 
 151 
 
 Dannelly v. Speak 
 
 638 
 
 
 324 
 
 Danville v. Stewart 
 
 580 
 
 
 324 
 
 Darby v. Ouseley 
 
 310 
 
 
 743 
 
 Darden v. IMathews 
 
 140 
 
 
 711 
 
 Darley v. Rol)bins 
 
 77 
 
 
 22 
 
 Darling v. Dodge 
 
 43 
 
 
 491 
 
 Darrance v. Preston 
 
 82, 103 
 
 
 296 
 
 Dart V. Farmers' 
 
 457 
 
 
 284 
 
 Dascomb v. BulTalo 
 
 311 
 
 89 
 
 102 
 
 Daveiss v. McKee 
 
 603 
 
 224 
 
 421 
 
 Davenport v. Cummings 
 
 243, 244 
 
 
 777 
 
 V. Field 
 
 668 
 
 
 322 
 
 V. Fletcher 
 
 659 
 
 
 408 
 
 V. Harris 
 
 414 
 
 
 381 
 
 V. Holland 
 
 9 
 
 
 80 
 
 V. Wright 
 
 421 
 
 
 712 
 
 Davidson v. Stanley 
 
 291 
 
 
 344 
 
 Davies v. Morgan 
 
 558 
 
 
 713 
 
 V. Roper 
 
 477 
 
 
 347 
 
 Davis V. Campl)ell 
 
 675 
 
 
 14 
 
 V. Carter 
 
 774 
 
 
 402 
 
 V. Charles 
 
 313 
 
 
 521 
 
 V. Church 
 
 391 
 
 
 288 
 
 V. Cowdin 
 
 735 
 
 287, 
 
 291 
 
 V. Davis 
 
 581 
 
 
 122 
 
 V. Furlow's 
 
 337
 
 TABLE OF CASES CITED. 
 
 Davis V. Hale 
 
 V. Hern don 
 V. Hoepp^ei" 
 v. Jeuney 
 
 PAGE 
 
 80, 458 
 437 
 450 
 42, 287, 291, 
 300,476 
 214 
 785 
 
 V. Lo-wman 
 1). Maxwell 
 ■y. Millardon 
 V. Perley 
 «. People 
 1). Randall 
 V. Seneca 
 v. Strolun 
 V. Taylor 
 V. Tliomas 
 I). Tileston 
 -y. Wiuan 
 Dawes «. Hudgens 
 Dawley v. Hovious 
 Dawson v. DeAvan 
 Day V. Brawley 
 v. Cummings 
 v. Laflin 
 1). Moore 
 V. Washburn 
 v. Woodwortli 
 Deacon v. Slireve 
 Deakers v. Temple 
 Dean v. Dean 
 V. Gridley 
 V. Hewitt 
 V. Young_ 
 Deaner v. Erwin 
 Dearmond v. Dearmoud 
 De Barry v. Lambert 
 Deberry «• Holly 
 Declierd v. Morrison 
 Deeue v. McConnell s 
 Deer v. State 
 Deerfleld v. Nortliwood 
 Deery v. Cray . 
 
 De Fonclear ». Sliottenkirk 
 De France v. De France 
 De la Figaniere v. Jackson 
 Delaney «• Goddin 
 Delap V. Hunter _ 
 Delaplaine v. Bergm 
 
 V. Madison 
 Delaplane v. KrensliaW 
 Delaware v. Barnes 
 Delawter v. Sand 
 Delmas v. Margo 
 Deloacli i\ AValker 
 Delta V. Walker 
 Den V. Gciger 
 
 v. Wintermute 
 Denby v. Hart 
 
 Denmead v. Coburn 
 Denn v. Morrell 
 Dennis v. Gummms 
 V. Dennis 
 V. ]\IcLaurin 
 V. Van Voy 
 Dennison v. Powers 
 
 XXXV 
 
 PAGE 
 301 
 515 
 
 671 
 745 
 385 
 
 418 
 2-23 
 
 614 Denny t). Moore 
 337 V. Williams 
 
 201 Dent v. Hertford 
 
 689,093 ^-.^^"'Spnln 
 
 733 Depeyster v. Gom 
 
 418 Depue v. Perry 
 
 208 Deputy V. Betts 
 
 ^^^ ' Se^Rochebrune v. Sontlieimer 
 De Roufiguy »• Pcale 
 
 618, 728 
 
 600 
 
 552, ^^^ ^ 
 
 9 Deshler v. Beers 
 455 Desverges v. Desverges 
 324 Detroit «. Van Stemburg 
 
 146 Deyendorf v. Wert 
 598 Deverert v. Loonier _ 
 655 Devereux v. Burgwiu 
 395 Devin v. PatcUin 
 748 Devine v. Martm 
 404 Devling v. Little 
 203 249 Dew v. Hamilton 
 '384 Dewort v. Loonier 
 21 Dexter v. Cole 
 108 1 Dickenson v. McDermott 
 Dickey v. Maine 
 Dickerson v. Apperson 
 V. Board 
 V. Brady 
 V. Burke 
 V. Cook 
 V. Johnson 
 Dickins v. Maliana 
 Dickinson v. Burr 
 V. Cruise 
 V. Chism 
 -y. Lott 
 11. Van Horn 
 Dickson v. Mathers 
 V. Parker 
 V. Richardson 
 Diedrichs v. Stomach 
 Dilbv V. State 
 Dilkin v. People 
 Dill V. Jones 
 Dillard v. IMoore 
 '0. Noel 
 89 104 I DilVm v. Murphy 
 744 i'. People _ 
 
 r»OG I Dillingham i'. Skein 
 499, 501, 504 iDilly- Barnard 
 750 I Dilworth v 
 
 276, 288 
 496 
 606 
 50, 188 
 713 
 695 
 409 
 492 
 505 
 410 
 55 
 473 
 321 
 703 
 779 
 635 
 666 
 621 
 312 
 409 
 129 
 545 
 
 , Com. 
 
 479 
 176 
 224 
 42 
 637 
 113 
 425 
 691 
 553 
 r7, 425 
 427 
 350 
 42 
 453 
 747 
 739 
 529 
 39 
 611 
 486 
 489 
 606 
 24 
 757 
 599, 613 
 446 
 225 
 595 
 295, 450 
 342 
 415 
 482 
 607 
 337 
 32, 104 
 496 
 458 
 591,608 
 739 
 113 
 95 
 662 
 110 
 137 
 576 
 42G 
 165 
 609 
 175
 
 XXXVl 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Dimmick v. Milwaukee 46, 340 
 
 Dingcc V. Jackson 305 
 
 Din.i,nnan v. M)-ers 7G8 
 
 Diomatari v. Clioate 457 
 
 Displyn v. Sprat 171 
 
 Ditmars i'. Com. 280 
 
 Diversy v. Kellogg 307 
 
 Dixon V. State 134 
 
 Doane v. Baker 427 
 
 V. Duncan 298 
 
 Dobbins v. Oswalt 225 
 
 Dodge V. Brittan 453 
 
 V. Greelee 47 
 
 V. Rogers 260 
 
 Dodson V. Connolly 82 
 
 Doe V. Perkins 408 
 
 V. President 55 
 
 V. Price 500 
 
 V. Roberts 73 
 
 V. Roe 447, 494 
 
 V. Scribner 152 
 
 V. Strickland 5, 99 
 
 V. Tyler 58, 410 
 
 V. Watson 648 
 
 Doggett V. Jordan 153 
 
 Dole V. Erskine 180 
 
 V. Lyon 290 
 
 V. Tiuirlow 97 
 
 Doll V. Anderson 121 
 
 Dolloff V. Ilartwell 758 
 
 V. Stimpson 87 
 
 Domick v. Reicbenbacli "242 
 
 Donaldson v. Kendall 608 
 
 Donallcn v. Lennox 403, 534 
 
 Donelson v. Taylor 89 
 
 Donnell v. Parrott 591, 597 
 
 V. Shields 748 
 
 V. Vanney 149 
 
 Donner v. Palmer 160, 247 
 
 Donohue v. Henry 725 
 
 Donston v. State 213 
 
 Doolittle V. Shelton 651, 673 
 
 Dorchester v. Wentworth 622 
 
 Doremus v. Howard 738, 742 
 
 Dorr V. Watson 521 
 
 Dorsey v. Harris 388 
 
 V. i\Iarony 599 
 
 Dossett V. .Alillcr 414, 499, 589 
 
 Dougherty v. Vanderpool 411 
 
 Douglas V. Chapin 570 
 
 V. McAlister 45 
 
 V. Tousey 232, 233, 242, 
 
 490, 581 
 
 Dousrlass v. State 235 
 
 Douthit V. State 648 
 
 Downer v. Baxter 233, 243 
 
 Downing v. Bain 329 
 
 
 PAGE 
 
 Downing v. De Klyn 
 
 394 
 
 Dows V. Congdon 
 
 713, 718 
 
 V. Rush 
 
 383 
 
 Doyal V. Smith 
 
 319 
 
 Doyle V. Estornet 
 
 393 
 
 Drake v. Com. 
 
 96 
 
 V. Foster 
 
 438 
 
 V. Jones 
 
 616 
 
 V. Palmer 
 
 311 
 
 V. Sargent 
 
 415, 446 
 
 Drayton v. Thompson 
 
 497 
 
 Drennen v. Brown 
 
 445, 449 
 
 Dresser v. Ainsworth 
 
 411 
 
 V. Brooks 
 
 746 
 
 Drew V. Towle 
 
 318 
 
 DriscoU V. Damp 
 
 433 
 
 Driskill v. State 
 
 195 
 
 Drodge v. Brand 
 
 126 
 
 Drowne v. Stimpson 
 
 622 
 
 Drumgoold v. Home 
 
 173 
 
 Drummond v. Leslie 
 
 252 
 
 Dryden v. Britton 
 
 276 
 
 Duckcr «. Vv^ood 
 
 578 
 
 Duckett V. Crider 
 
 59 
 
 V. Towusend 
 
 645 
 
 Duffcll V. Noble 
 
 385 
 
 Duffey V. Congregation 
 
 319 
 
 Duffy V. People 
 
 316 
 
 Duffield V. Cross 
 
 454 
 
 V. Delancey 
 
 301 
 
 Dufott V. Gorman 
 
 720 
 
 Dugau V. McDonald 
 
 505 
 
 Duggan V. Cole 
 
 81 
 
 Duke V. Craw shay 
 
 442 
 
 Dula V. Cowles 
 
 299 
 
 Dunbar 
 
 622 
 
 V. Bittle 
 
 733 
 
 Duncan v. Duboys 
 
 424 
 
 V. Hargrove 
 
 651 
 
 V. Lyon 
 
 597 
 
 V. McNeill 
 
 646 
 
 Dunckle v. Cocker 
 
 401 
 
 Dunett V. Barksdale 
 
 17 
 
 Dunham v. Collier 
 
 592 
 
 V. Downer 
 
 590 
 
 Dunklin i\ District 
 
 782 
 
 Dunlap V. Atkinson 
 
 646 
 
 V. Ilcarn 
 
 302, 363 
 
 V. Robinson 202 
 
 263, 296 
 
 V. Stetson 
 
 605 
 
 Dunlop v. Patterson 
 
 364 
 
 Dunn V. Bank 
 
 616 
 
 V. Crozier 
 
 107 
 
 V. Fisli 
 
 607 
 
 V. Hall 
 
 161, 243 
 
 V. Littlefield 
 
 726 
 
 V. Moody 
 
 365
 
 TABLE OF CASES CITED. 
 
 XXXVll 
 
 PAGE 
 
 Dunn V. People 371 
 
 Duperley v. Gunning 502, 508 
 
 Duprec v. Perry 601 
 
 V. Price 487 
 
 Durand v. Grimes 257 
 
 Durant v. Ashmore 509 
 
 V. Banta 337 
 
 V. Burt 285 
 
 V. Palmer 648 
 
 Durfee v. Eveland 221 
 
 Durham ». Baxter 554 
 
 Dnrrance v. Brodders 449 
 
 Duryee v. Dennison 500 
 
 Duval V. ]\Ialone 143 
 
 Dwelle V. Roatli 809 
 
 Dwolf V. Haydn 741 
 
 Dwyer v. Dunbar 201 
 
 Dyche v. Patton 508, 590 
 
 Dj'ckman v. Kernochan 593 
 
 Dyer v. Armstrong 614 
 
 V. Green 139 
 
 V. Hatch 33 
 
 Dyson v. State 165 
 
 Eakin v. Morris 
 
 
 204 
 
 Eakman v. Shcaffer 
 
 
 187 
 
 Eames v. Blackhart 
 
 
 303 
 
 V. Smith 
 
 
 379 
 
 Earl V. Dowling 
 
 
 551 
 
 V. Leland 
 
 
 751 
 
 V. Sadler 
 
 
 575 
 
 Earle v. Reid 
 
 
 473 
 
 V. Thomas 
 
 
 254 
 
 «. Van Buren 
 
 
 165 
 
 Earll V. Mitchell 
 
 
 481 
 
 Early v. Garland 
 
 
 291 
 
 v. Preston 
 
 
 357 
 
 East V. Hackney 
 
 
 80 
 
 Easterby v. Larco 
 
 
 111 
 
 Easterling v. Power 
 
 
 6 
 
 V. State 
 
 
 803 
 
 Easterly v. Cole 
 
 451, 
 
 457 
 
 Eastman v. Amoskeag 
 
 44, 
 
 037 
 
 V. Waterman 
 
 
 768 
 
 V. Wight 
 
 87 
 
 479 
 
 Easton v. Collier 
 
 
 599 
 
 V. ('aldwell 
 
 
 709 
 
 V. Jacobs 
 
 
 473 
 
 V. Varnum 430, 
 
 078 
 
 714 
 
 Eckert v. Cameron 
 
 
 46 
 
 V. Flowry 
 
 
 303 
 
 Eddy V. Gray 
 
 
 280 
 
 Edeiine v. Saunders 
 
 295 
 
 383 
 
 Edelman v. Yeakcl 
 
 
 320 
 
 PAGE 
 
 Edgar v. Clevenger 016 
 
 Edgerton v. Com. 631 
 
 Edie V. E. I. Co. 547 
 
 Edmeston v. Garrison 450, 497, 504 
 
 Edmondson v. Machcll 14, 44 
 
 Edmonson v. Bloomshire 754 
 
 Edney v. King Oil 
 
 Edrington v. Skeger 460, 515 
 
 Edwards v. Edwards 74, 648 
 
 V. Evans 412, 416 
 
 V. Lewis 38, 58 
 
 V. Osgood 766 
 
 V. Potter 35 
 
 V. State 226 
 
 Eggleston v. Buck 662 
 
 V. Colis 729 
 
 V. Smiley 189 
 
 E. I. Co. V. Paul 408 
 
 Elder v. Dwight 729 
 
 Eldred ». Haslet t 640 
 
 Elkius V. Athearn 778 
 
 Elkinton d. Fennimore 651 
 
 Elledge v. Todd 160 
 
 Ellington v. Leak 58 
 
 ElUott V. Elmore 616 
 
 V. Eustace 718 
 
 V. Lyman 399 
 
 V. Whitmore 443 
 
 EUis V. Gosney 591 
 
 V. Jameson 60 
 
 V. Kelly 540 
 
 ■y. Mathews 294 
 
 V. Short 411 
 
 '■0. Smith 46 
 
 V. Thompson 331 
 
 Ellsey V. Stone 358 
 
 Elsey V. ]Metcalf 57 
 
 Elston V. Blanchard 611 
 
 Elwell V. Dizer 76 
 
 Ely V. Ball 107 
 
 V. Frisbie 716 
 
 V. Horace 65 
 
 D. Tesch 365 
 
 Emanuel v. Cocke 59 
 
 Emerson v. Paine 389 
 
 Emery v. Estes 239, 373 
 
 V. Phillips 49 
 
 V. Vinall 97 
 
 Emmerson v. Harriet 634 
 
 V. Scott 634 
 
 Emmons v. Bisliop 79 
 
 V. Lord 50 
 
 V. McKesson 756 
 
 Emrick v. Armstrong 706 
 
 England v. Burt 453, 454 
 
 V. Wickware 668 
 
 English V. Clerry 574
 
 XXXVIU 
 
 TABLE OF CASES CITED. 
 
 English V. Dernrro 
 V. Savage 
 Eno V. Frisbie 
 Enos V. Dayharsh 
 
 V. Sutherland 
 Epps V. State 75, 
 
 Erben p. Lorillard 
 Erie i\ Brawlc}' 
 Erisman v. Walters 
 Ernst !). Hudson 
 Ernull V. Whit ford 
 Erskiue v. Wilson 
 Erwin v. Bulla 
 
 V. Voorhees 
 Erwing v. Ingraham 
 Eskridge v. State 
 Estop V. Larsh 
 Estes V. Boothe 
 Estham v. Curd 
 Eufaula v. Plant 
 Evans v. Adams 
 V. Spitman 
 V. St. John 
 Eveleth V. llannon 
 Everett v. Clements 
 V. Neff 
 V. Whitfield 
 ■». Youells 
 Evertson v. Sawyer 
 Ewing V. Gledwell 
 1). Gray 
 V. Kinnard 
 V. Thompson 
 Ej^ler V. Hoover 
 Eyser v. Weissgerber 
 
 PAGE 
 
 6-)! 
 597 
 Co3 
 169 
 718 
 166, 209, 403 
 409, 449 
 054 
 330 
 359 
 311 
 336 
 207 
 339 
 338 
 645 
 
 24 
 
 313 
 
 354 
 
 588 
 
 820, 034 
 
 60 
 392 
 476 
 
 36 
 
 26 
 
 297 
 
 199 
 
 576 
 
 438 
 
 6 
 
 713 
 
 68a, 690 
 
 707 
 
 200, 204, 320 
 
 Fabcr v. Baldrick 458, 491 
 
 Fabrigas v. 3Iostyn 579 
 
 Fabrilius v. Cock 508 
 
 Facey v. Hurdom 333 
 
 Fagan v. Winson 42 
 
 Fagin v. ConoUy 311 
 
 Fahncstock v. State 181, 194 
 
 Fain v. Carnett 265 
 
 V. Jones 445 
 
 Fairbanks v. Woodhouse 309, 311 
 
 Fairchild v. California 305, 401 
 
 V. Case 412, 417 
 
 Fairthorne v. Wigginton 634 
 
 Fairley v. Berkey 352 
 
 Falk V. Flotciicr 340 
 
 Fallcnstin v. Boothe 583 
 
 Fanfield v. Burt 630 
 
 Fanning v. McCranney 58 
 
 PA6K 
 
 Farley v. Budd 123 
 
 Farquhar r. Dallas 380 
 
 V. McFarland 673 
 
 Farmer v. Darling 583 
 
 Farmers' v. Griffith 720 
 
 Farr v. Fuller 25, 83 
 
 V. Johnson 752 
 
 Farrant v. Olmins 446 
 
 Farrar v. Ohio 196 
 
 FarrcU v. McKee 391 
 
 Fausett v. Voss 29 
 
 Fawcett v. Woods 575 
 
 Fay V. Bond 104 
 
 V. Grim stead 304 
 
 Feagan v. Cureton 254 
 
 Fearing v. De Wolf 463 
 
 Fee V. Bigg 431 
 
 Fehl V. Good 489 
 
 Felder v. Bonnett 20 
 
 Felton V. Weyman 735 
 
 Ferguson v. Clifford 311 
 
 V. Ferguson 319 
 
 V. Fox 265, 331 
 
 V. Gilbert 523 
 
 Fermor v. Dorrington 170 
 
 Ferrant v. Olmins 571 
 
 Ferrar v. Ohio 219, 251 
 
 Ferrell v. Adder 80 
 
 V. McKinney 449 
 
 Ferriday v. Selser 190 
 
 Ferris v. Barlow 513 
 
 V. Douglas 655 
 
 V. IMunn 786 
 
 V. People's 168 
 
 Ferry v. Parks 436 
 
 Fidler v. McKinley 585 
 
 Field V. Avery 46 
 
 V. Boynton 448 
 
 V. Campbell 5 
 
 V. Dealsly 263 
 
 V. First 630 
 
 V. Matson 106 
 
 V. Reid 36] 
 
 V. Tenney 393 
 
 Fikes V. Bcntley 499 
 
 Final v. Backus 652 
 
 Finday v. Parker 45 
 
 Findlay v. Pruett 641 
 
 Findly v. Bay 363 
 
 Fine v. Rogers 254 
 
 v. St." Louis 294, 321 
 
 Finlay v. Stewart 395 
 
 Finley v. Hanbest 311 
 
 V. Hayden 163 
 
 Fish V. Roscberry 569 
 
 V. Scutt 468 
 
 V. Smith 333
 
 TABLE OF CASES CITED. 
 
 xxxix 
 
 Fish V. Van AVmkle 
 Fislxcr V. Duncan ' 
 
 ». Farley 
 ^. Forrester 
 ^. Leacli 
 ^. Stevens 
 Fisk V. >mier 
 FitcU V. Bunch 
 
 11. Lothrop 
 Fitz V. Boston 
 F So-erald «. Alexander 
 
 ° t,. Williams 
 
 Fitzgibbon v. Ivcnney 
 Fitzpatrick v. Harris 
 Flack «. Neill 
 Flanagan «. Ernest 
 
 D. Newberg 
 Flanders v. Colby 
 «. Davis 
 V. jNIeath 
 Flateau i'. Lvibeck 
 Fleet V. Hollenkamp 
 
 V. Young 
 Fleming v. Gilbert 
 
 -y. Hollenback 
 V. State 
 Flemming«. Hammond 
 
 «. Marine 
 Fletcher v. Blair 
 <». State 
 Flint V. Clark 
 Floersh e. Bank 
 Flourncy «. Coxe 
 Flournoy v- Smitn 
 Flowers i'. Helm 
 Floyd V. Bethell 
 «. Hamilton 
 ^. Jayne 
 i\ Rice 
 Folger V. Eouanet 
 Folk V. Wilson 
 Follin V. Coogan 
 Folsom «. Brown 
 
 y. Manchester 
 Font «. Massey 
 Fonts V. State 
 Foot «. Sabin 
 V. Silsby 
 Foote t). Koberts 
 Ford V. Clark 
 
 ■y. Clements 
 V. Ford 
 ■B Tasrgard 
 v. Tilly 
 V. Weir 
 Fore D.Williams 
 Forelander v. Hicks 
 
 205, 38' 
 
 I Forester v. Watts 
 1 Formby v. Pnor 
 Forrester v. Wilson 
 Forshee i5. Abrams 
 Forshcy v. Railroad 
 Forsyth «• Hooper 
 Fort V. Burnett 
 Fortier v. Ball 
 Foss V. AVitham 
 ' Fortune v. Centre 
 1 Foster v. Bank 
 ■y. Barks 
 V. Berkey 
 y. Callamer 
 '0. Hadduck 
 V. :McO'Blenis 
 ■y. Smith 
 V. Steele 
 B. Thompson 
 Fondren t'. Durfee 
 Fountain i'. Brown 
 ' Fourdrinier v. Bradbury 
 I Fouuier v. Faggott 
 I Foushee v. Lee 
 Foust «. Yielding 
 Fowler v. Burdett 
 ' v. Etna 
 
 B.Lee 
 v. Lewis 
 V. Middlesex 
 V. Itlorrill 
 V. Smith 
 V. Swift 
 V. Tuttle 
 t,. Waldrip 
 
 I Fox V. Fox 
 
 t). Reynolds 
 1 Francis v. Baker 
 ' fl. ]\Ianhattan 
 
 i). State 
 1 Franklin v. Buckingham 
 • V. Cooper 
 
 V. Greene 
 V. Pratt 
 V. Small 
 V. State 
 V. Updegraff 
 
 \ Frantz v. State 
 Frazer 11. Smith 
 Frazicr y. Campbell 
 Frazier's v. Praytor 
 301 Freeborn ..Denham 
 
 143 Freeman ..Aikell^^^ 
 
 5i5 «. Edmunds 
 
 ^ ,a D. Henderson 
 
 PAGE 
 
 193 
 272 
 589 
 245, 31G 
 G69 
 450 
 309 
 
 648 
 773 
 662 
 590 
 196 
 352 
 107 
 652 
 441 
 9, 429 
 287 
 442 
 11 
 421 
 66, 553 
 639 
 109 
 291 
 468 
 478 
 595 
 450 
 83 
 675 
 305 
 349 
 210 
 457, 465 
 434 
 503 
 6,464 
 775 
 166 
 "651 
 396 
 617 
 510 
 466 
 315 
 25 
 640 
 760 
 023 
 319 
 626 
 407, 423 
 517 
 385 
 733 
 344
 
 xl 
 
 TABLE OF CASES CITED. 
 
 
 PAGE 
 
 Freeman v. IMylnnd 
 
 551 
 
 V. Pattoii 
 
 735 
 
 V. Price 
 
 124 
 
 V. Rankin 
 
 42,59 
 
 V. Sciirlock 
 
 279 
 
 Fremantle v. London 
 
 355 
 
 Fremon v. Carondelet 
 
 659 
 
 French v. Brandon 
 
 420 
 
 V. Garner 
 
 610 
 
 V. Howard 
 
 719 
 
 V. Lowry 
 
 447 
 
 V. Roll 
 
 456 
 
 V. Snell 
 
 760 
 
 V. Stanley 
 
 59 
 
 V. While 
 
 309 
 
 V. Willard 
 
 449 
 
 Friar v. State 
 
 515 
 
 Frost V. Goddard 
 
 88, 98 
 
 V. Martin 
 
 286, 336 
 
 Fry V. Bennett 26 
 
 27, 225, 
 
 
 228, 368 
 
 Fulkerson v. Bollinger 
 
 457 
 
 FuUam v. Cummings 
 
 57 
 
 Fuller V. Bradley 
 
 324 
 
 V. Plutchings 
 
 526 
 
 V. Kennebec 
 
 129 
 
 V. Robb 
 
 640 
 
 V. Ruby 
 
 24, 40 
 
 V. Wright 
 
 513 
 
 Funk V. Elly 
 
 187 
 
 Funkcrstein v. Elgutter 
 
 705 
 
 Funkliouser v. Pogue 
 
 457 
 
 Furuess v. Meek 
 
 326 
 
 G. 
 
 Gage V. Ladd 107 
 
 V. ]VIcIlwaine 417 
 
 V. Parker 349 
 
 Gaines v. Com. 398 
 
 Gainsford w. Blatchford 124 
 
 Gaither v. Fercbee 277 
 
 V. Myrick 295 
 
 Galbreath v. Atkinson 139 
 
 Gale V. Butler 733 
 
 V. Wells 303 
 
 Galena v. Jacobs 296 
 
 Gales V. Shipp 82 
 
 Gallagher v. Williamson 258 
 
 Gallaway v. Alexander 589 
 
 Qambart v. ]\Iayne 495 
 
 Gamble ?). Campbell 609 
 
 Gaut V. llurtsucker 7 
 
 Garcelon v. Hampden 319 
 
 Garde v. Love 58 
 
 Gardner v. Boothe 349 
 
 
 PAGE 
 
 Gardner v. Clark 
 
 42, 
 
 295 
 
 V. Deedrich 
 
 
 743 
 
 V. Dill 
 
 
 101 
 
 ■y. Gooch 
 
 
 26 
 
 V. Jenkins 
 
 
 601 
 
 V. Mayne 49G, 
 
 499, 
 
 507 
 
 v. Mitchell 
 
 504, 
 
 505 
 
 V. Pickett 263, 
 
 269, 
 
 287 
 
 Garland v. Davis 
 
 
 144 
 
 V. Holmes 
 
 
 103 
 
 V. State 
 
 
 481 
 
 Garlick v. McArthur 
 
 
 589 
 
 Garlington 
 
 
 785 
 
 Garner v. Crenshaw 
 
 
 405 
 
 V. Cutler 
 
 
 450 
 
 Garnett v. Holloway 
 
 
 295 
 
 V. Kirkman 80 
 
 283 
 
 298 
 
 Garr v. Paulmier 
 
 
 081 
 
 V. Stokes 
 
 
 673 
 
 Garret v. State 
 
 
 • 88 
 
 Garrett v. Gouter 
 
 121 
 
 , 254 
 
 Garrish v. INIace 
 
 
 351 
 
 Garsed v. Turner 
 
 
 266 
 
 Garvin v. Wells 
 
 
 677 
 
 Gass V. Bean 
 
 
 622 
 
 Gast V. Parker 
 
 
 60 
 
 Gaster v. Hodgins 
 
 
 447 
 
 Gatlin v. Kilpatrick 
 
 
 591 
 
 Galling v. Newell 
 
 
 811 
 
 Gauldin v. Crawtbrd 
 
 
 16 
 
 (Taulier v. Franklin 
 
 
 647 
 
 Gay V. Lemle 
 
 
 446 
 
 V. 3IcGuffin 
 
 
 386 
 
 V. Richardson 
 
 
 663 
 
 V. Smith 
 
 
 679 
 
 Geisler v. Acosta 
 
 
 749 
 
 Gelhaar v. Ross 
 
 
 483 
 
 Gelpccke v. Lovell 
 
 
 334 
 
 Gentry v. Hutchcraft 
 
 
 639 
 
 V. McKehcn 
 
 
 540 
 
 George v. Starrett 
 
 
 678 
 
 Georgia v. Brailsford 
 
 
 593 
 
 V. Scott 
 
 
 58 
 
 Gerl)ier v. Emery 
 
 
 53 
 
 Gerke v. California 
 
 
 257 
 
 Gervais v. Powers 
 
 
 693 
 
 Gest V. Kenner 
 
 
 649 
 
 Gholston V. McCallum 
 
 
 3G1 
 
 Gibson t). Hill 
 
 35 
 
 3, 467 
 
 V. Lewis 
 
 
 139 
 
 V. Moore 
 
 
 597 
 
 V. Webster 
 
 
 444 
 
 GifFen «. St. Clair 
 
 
 743 
 
 Gilbert v. Burtenshaw 
 
 562 
 
 , 563, 
 583 
 
 V. Woodbury 
 
 
 569 
 
 Gilbreth v. Brown 
 
 
 706
 
 TABLE OF CASES CITED. 
 
 448, 491, 
 
 Giles V. State 
 Gillespie v. Benson , 
 ^ V. ShulelJcrner 
 V. Stone 
 Gilkey v. Kecler 
 «. Peeler 
 Gillett V. Campbell 
 
 V. Sweat 
 Gillian «. Nixon 
 Gilmanton v. Ham 
 Gilmer v. Montgomery 
 Gilt V. AVarner 
 Gist V. Mason 
 Gitliam v- State 
 Given v. Cliarron 
 Givens v. Blocker 
 Glarkin v. Zellcr 
 Glascock V. Manor 
 GlaS£?ow V. Isloove 
 Glasley v. Ilestonville 
 Gleason v. Bremen 
 Gleisesv.McHatton 
 Glenn -y. Black 
 Glidden v. Dunlap 
 ^. Towle 
 GlideweU v. Daggy 
 Glover v. Cliase 
 V, Duble 
 ^^ llolbrook 
 fl. AVoolsey 
 Godcbanse ». Mulford 
 Goddard t^ PeTkms 
 V. Gardner 
 Goetz V. Ambs 
 Gold y. Ives 
 Golden «. State 
 Goldsby v. Gentle 
 
 1,. Robertson 
 Goldsmith v. Picard 
 '». Sefton 
 -». Solomons 
 Goneke v. Garrett 
 Gonzales n.Leon 
 Good V. Combs 
 Goodallt'.Batchelder 
 
 V. Tbnrman 
 Goode V. Smitb 
 
 I,. Wiggins 
 Goodell «. Woodruff 
 Goodeuow v. Staltoia 
 Goodman v. Gay 
 
 V. Norton 
 V. Simonds 
 V. Smitb 
 V, AValker 
 Goodrich v. Eastern 
 
 ""■TtH Goodrich ..Willard 
 514 Goodridge «-/^"f . „ 
 
 c^W-^-^^:iiffi:y 
 
 4i7 Goodwyn.X^^om.^^^^^^^ 
 
 ^^^ ' V. Lovell 
 
 Goolsby ^. Case 
 Gordon v. Crooks 
 r. Dill 
 V. Ellison 
 ■c, Goodell 
 V. I^Iillandon 
 ^. Norman 
 V. Pitt 
 11. Ryan 
 1}>IY 1 Gore V. Moses 
 671 Gorgerat » McCarty 
 '-.I -> Gorham iJ. LurKeu 
 451 457 Gorman. McFarland 
 ' ?02 Gorton v. Hadsell 
 Goss D. McClaren 
 Gough V. Bratt 
 
 «. Everard 
 V. Farr 
 tj. Manning 
 c. Pratt 
 V. Matthewson 
 Gould «. Tatum 
 V. Wbite 
 
 Gover «• Dill 
 V. Hall 
 B. Turner 
 
 Governor v. Barrow 
 ■y. Campbell 
 
 25;) 
 94 
 
 58 
 
 648 
 
 201 
 
 417 
 
 539 
 
 496, 539 
 
 88 
 
 308 
 
 697 
 
 580 
 614 
 90 
 34, 458, 501 
 221 
 111 
 767 
 306 
 50 
 187, 518 
 22 
 259, 260 
 56 
 563, 
 
 tl^'il Grace ^.Hannah 
 
 265 
 88 
 405 
 88 
 579 
 224 
 669 
 135 
 431 
 1 
 348, 563, 585 
 95 
 
 656 
 
 447 
 
 754 
 
 137 
 
 373 
 
 311 
 
 451 
 
 436 
 
 380 
 
 Graeter v. Fowler 
 Graff V. Pittsburg 
 Graft V. Dietz 
 Gragg 'w.Hull 
 Graham v. Baync 
 V. Bradley 
 V. Davis 
 1). Gautier 
 1). Houston 
 V. McCreary 
 v. Merrill 
 r. Boark 
 I- "Roberts 
 r. Smith 
 V Wilson 
 Grandy v. Humphries 
 Granger I'. Buzick 
 
 V. Warrington 
 Grant v. Latbrop 
 V. Moore 
 ^. People 
 
 xli 
 
 PAGE 
 
 766 
 651 
 150 
 175 
 473 
 104 
 435, 441 
 775 
 444, 445 
 98 
 710 
 90 
 393 
 454 
 97 
 108 
 13 
 549 
 721 
 109 
 318 
 82 
 600 
 353 
 585 
 737 
 609 
 770 
 11 
 58, 62 
 98, 305 
 715 
 134 
 590 
 40 
 49 
 540 
 284 
 756 
 359 
 646 
 59 
 398 
 406 
 58 
 640 
 733 
 91 
 603 
 350 
 653 
 718 
 721 
 34 
 614 
 11 
 645
 
 xlii 
 
 TABLE OP CASES CITED. 
 
 
 PAGE 1 
 
 
 PAGE 
 
 Granville v. Hampden 
 
 C89j 
 
 Grubb V. Kalb 
 
 450, 502 
 
 Gratz V. Bcates 
 
 301 
 
 V. jNIcClatchy 
 
 458 
 
 V. Beuncr 
 
 190 
 
 Grube v. Nichols 
 
 294 
 
 Gravenor v. "Woodhouse 
 
 407 
 
 Guard v. Risk 
 
 101, 540 
 
 Gravely v. Southerland 
 
 604' 
 
 Gufley V. Moseley 
 
 546 
 
 Graves v. Graves 
 
 390, 
 
 Guilford v. State 
 
 481 
 
 Gray v. Bridge 
 
 G 
 
 Gulledge v. Howard 
 
 485 
 
 t\ Burk 
 
 227, 293 , 
 
 Gunter v. Leckey 
 
 273 
 
 V. Jones 
 
 753 
 
 Gurney v. Dessies 
 
 417 
 
 V. Grundy 
 
 713 
 
 Guthrie v. AVilson 
 
 640 
 
 V. Harrison 
 
 502 
 
 Gutshall V. Salsberry 
 
 616 
 
 V. St. John 
 
 403 
 
 Guy V. Tarns 
 
 103 
 
 V. Siugerley 
 
 522 
 
 Guykowski v. People 
 
 167 
 
 V. Thomas 
 
 109 
 
 Guyot «. Butts 
 
 501, 505 
 
 Grayson v. Com. 79, 113, 
 
 114,449. 
 
 Gwinn v. Newton 
 
 604 
 
 
 473 
 
 Gwilt V. Crawley 
 
 551 
 
 Greathouse v. Hord 
 
 593 
 
 
 
 Greatwood v. Sims 
 
 554 
 
 
 
 Greely v. McNabb 
 
 295 
 
 H. 
 
 
 Green v. Clay 
 
 223 
 
 
 
 v. Grain 
 
 318 
 
 Hackett v. Railroad 
 
 290 
 
 V. Gould 
 
 399 
 
 V. King 
 
 26 
 
 V. Lewis 
 
 386 
 
 Hackley v. Hastie 215 
 
 220, 249 
 
 i\ Robinson 
 
 105 
 
 Pladley v. Dunlap 
 
 731 
 
 V. Telfair 
 
 354 
 
 llager v. Weston 
 
 756 
 
 V. Wood 
 
 775 
 
 Hagerstown v. Adams 
 
 282 
 
 Greeuawalt v. Shannon 
 
 727 
 
 Ilaggett V. Com. 
 
 670 
 
 Greene v. Dingley 
 
 61, 331 
 
 Hahn v. Hart 
 
 594 
 
 Greenleaf v. jSIaher 
 
 612 
 
 Haight V. Turner 
 
 246, 453 
 
 Greenlee v. McCoy 
 
 638 
 
 Haines v. Corliss 
 
 662 
 
 Greenup v. Stoker 59 
 
 155, 1G7 
 
 V. Paxton 
 
 636 
 
 Greenville v. Partlow 
 
 300 
 
 Hakman v. Sheaflfer 
 
 640 
 
 Greer v. Archer 
 
 96, 255 
 
 Ilalbert v. Halbert 
 
 345 
 
 Gregg V. Bankhead 
 
 501 
 
 Hale V. Cove 
 
 66, 100 
 
 V. McDaniel 
 
 199 
 
 V. Crowell 
 
 «40 
 
 Gregory v. liichards 
 
 282 
 
 V. Darter 
 
 296 
 
 V. Walker 
 
 421 
 
 V. York 
 
 143 
 
 Gresham v. Pjn-on 
 
 786 
 
 Hall's 
 
 318 
 
 Griffin v. Ci-anston 
 
 713 
 
 Hall V. Denise 
 
 98 
 
 V. Wilson 
 
 651, 602 
 
 V. Gale 
 
 562 
 
 Griffith V. ]\IcCullum 
 
 360 
 
 v. Green 
 
 481 
 
 V. Thompson 
 
 607 
 
 V. Lowell 
 
 355 
 
 '•. Williams 
 
 70 
 
 V. Mills 
 
 728 
 
 ■c. Willing 
 
 489 
 
 V. Morrison 
 
 466 
 
 Grimes v. Bush 
 
 361 
 
 V. Page 
 
 445 
 
 Grlmke v. Houseman 
 
 469 
 
 V. Patterson 
 
 421 
 
 Grimm v. Hamcl 
 
 426 
 
 V. Robinson 
 
 243, 247 
 
 Grinuel ®. Phillips 
 
 157 
 
 V. Rupley 
 
 218 
 
 Grist V. Backhouse 
 
 103 
 
 V. State 
 
 374 
 
 Griswold v. liutland 
 
 768 
 
 V. Stothard 
 
 552 
 
 Groft V. Weakland 
 
 384 
 
 V. Tultle 
 
 869 
 
 Gross V. State 
 
 194 
 
 V. Wheeler 
 
 344 
 
 Grosvenor v. Atlantic 
 
 46 
 
 V. Wight 
 
 470 
 
 V. Danforth 
 
 629 
 
 V. Woodside 
 
 263 
 
 Groton 
 
 389 
 
 V. Woolcott 
 
 624 
 
 Grover v. Coon 
 
 705 
 
 Hallam v. Jacks 
 
 640 
 
 Groves v. Ruby 
 
 2 
 
 V. Haywood 
 
 485
 
 TABLE OF CASES CITED. 
 
 xliii 
 
 
 PAGE 
 
 
 PAGE 
 
 Halloway v. Hallo-way 
 
 
 109 
 
 Harmison v. Clark 
 
 
 405 
 
 IlallowcH's 
 
 
 708 
 
 Harmon v. Thorneton 
 
 
 88 
 
 Halscy y. "Watson 
 
 
 506 
 
 Harusbarger v. Kenuey 
 
 244 
 
 ,499 
 
 Ham V. Barrett 
 
 
 284 
 
 
 544 
 
 606 
 
 V. Ham 
 
 406 
 
 499 
 
 Harper y. Curtis 
 
 
 397 
 
 V. Taylor 
 
 
 511 
 
 V. Baker 
 
 
 738 
 
 Hambett v. Hambctt 
 
 
 410 
 
 V. Hill 
 
 
 612 
 
 Hambletou v. Dempsey 
 
 
 131 
 
 V. I\[iner 
 
 
 112 
 
 V. Vere 
 
 
 126 
 
 V. Parker 
 
 
 442 
 
 Hames v. Hatliaway 
 
 
 649 
 
 Harrell v. Hill 
 
 
 102 
 
 Hamilton v. Adams 
 
 
 612 
 
 Harriman v. State 
 
 
 165 
 
 V. Couyers 
 
 
 21 
 
 V. Wilkins 
 
 
 218 
 
 V. Rico 
 
 
 137 
 
 Harrington v. Biglow 
 
 
 505 
 
 V. State 
 
 
 268 
 
 V. Roberta 
 
 
 663 
 
 Hamilton's -y. Moody 
 
 
 392 
 
 Harris v. Bradden 
 
 
 141 
 
 Hammitt v. BuUett 
 
 
 40 
 
 V. Doe 
 
 
 59 
 
 V. Coffin 
 
 
 637 
 
 V. Gwin 
 
 
 590 
 
 Hammond v. Kemer 
 
 
 391 
 
 V. Holmes 
 
 
 425 
 
 V. People 
 
 623 
 
 703 
 
 V. Plant 
 
 
 631 
 
 V. St. John 
 
 
 616 
 
 V. Preston 
 
 
 638 
 
 V. "Wadham's 
 
 456 
 
 508 
 
 V. Ray 
 
 
 109 
 
 Hampton v. Thomas 
 
 
 469 
 
 V. State 
 
 
 785 
 
 V. Watterson 
 
 
 146 
 
 V. Williams 
 
 
 679 
 
 Hamrick v. Rouse 
 
 
 637 
 
 V. Wilson 
 
 
 306 
 
 Hanby v. Tucker 
 
 
 457 
 
 Harrisburg v. Forster 
 
 
 193 
 
 Hancock v. Loomia 
 
 
 224 
 
 Harrison v. Cacheliu 
 
 79 
 
 296 
 
 V. Metz 
 
 
 663 
 
 V. Chipp 
 
 
 688 
 
 V. Salmon 
 
 
 220 
 
 V. Cotton 
 
 
 391 
 
 V. Tucker 
 
 
 457 
 
 V. Harrison 
 
 
 555 
 
 V. Winana 
 
 
 238 
 
 V. Jaquess 
 
 
 149 
 
 Handley v. Call 193, 
 
 408, 
 
 434, 
 
 V. Kramer 
 
 
 730 
 
 
 479 
 
 500 
 
 V. McGehee 
 
 
 381 
 
 Handy v. Davis 
 
 
 552 
 
 V. Morton 
 
 
 305 
 
 Haney v. Marshall 
 
 
 263 
 
 V. Powell 
 
 
 101 
 
 Hanger v. Dodge 
 
 
 148 
 
 V. Rowan 
 
 199 
 
 488 
 
 Hanna v. Renfro 
 
 43, 
 
 426 
 
 V. Singleton 
 
 141, 
 
 712 
 
 Hannah v. Putnam 
 
 
 713 
 
 V. Thompson 
 
 
 203 
 
 Hannibal v. Moore 
 
 
 277 
 
 V. Sale 
 
 
 576 
 
 Hannum v. Belchertown 
 
 
 246, 
 
 Harry v. "Watson 
 
 
 576 
 
 
 265 
 
 445 
 
 Hart V. Funk 
 
 739 
 
 753 
 
 Harbour v. Rayburn 
 
 458 
 
 515 
 
 V. Girard 
 
 340 
 
 347 
 
 Hard t. Brown 
 
 
 36 
 
 V. Tallmadge 
 
 
 169 
 
 Hardin v. Crist 
 
 
 725 
 
 Harting v. People 
 
 
 713 
 
 V. Inferior 
 
 
 8 
 
 Hartshorn v. Day 
 
 
 669 
 
 Harding v. Brooks 
 
 
 476 
 
 Hartwright v. Bradham 
 
 187, 
 
 490 
 
 Hardy v. Providence 
 
 
 244 
 
 Hartzell v. Com. 
 
 
 156 
 
 V. Seelye 
 
 
 713 
 
 Harvey v. Eppa 
 
 
 89 
 
 V. S])rowle 
 
 
 188 
 
 V. Graham 
 
 
 223 
 
 V. Wadsworth 
 
 
 95 
 
 V. Laflin 
 
 
 24 
 
 Hare v. State 
 
 203 
 
 214 
 
 V. Rickett 
 
 
 163 
 
 Harger v. Commissioners 
 
 
 623 
 
 V. Skipwith 
 
 
 295 
 
 Hargis v. Price 
 
 
 53 
 
 V. Spaulding 
 
 
 730 
 
 Hargraves v. Lewis 
 
 663 
 
 669 
 
 Harwood v. Smehurst 
 
 
 536 
 
 Harlow v. Humiston 
 
 
 375 
 
 Hasbrouck v. Tappeu 
 
 
 571 
 
 Harman v. Brothcrson 
 
 
 675 
 
 Haskell v. Becket 
 
 
 85 
 
 V. Childress 
 
 
 142 
 
 Haskins v. Hamilton 
 
 
 333 
 
 V. Kelly 
 
 
 639 
 
 V. Haskins 
 
 
 200
 
 xliv 
 
 TABLE OF CASES CITED. 
 
 
 PAGE 
 
 r 
 
 AGE 
 
 Haskins v. Smith 
 
 433, .143 
 
 Helm V. Rodgers 
 
 391 
 
 Ilass V. Evans 
 
 103 
 
 Helms V. State 
 
 213 
 
 llassott V. Payne 
 
 170 
 
 Hemmenway v. Hicks 
 
 630 
 
 Hastings v. IJangor 
 
 303 
 
 Hemphill v. Salada'y 
 
 045 
 
 V. Ilalleclc 
 
 704 
 
 Hcmjistead v. Watkins 
 
 591 
 
 V. Hastings 
 
 172 
 
 Ilenckley v. Ilondrickson 
 
 540 
 
 V. Stark 
 
 450 
 
 Henderson v. Adams 
 
 655 
 
 V. Vaughan 
 
 311 
 
 V. Bates 
 
 615 
 
 Hatch V. Allen 
 
 733 
 
 V. Garrett 
 
 612 
 
 V. Cariienter 
 
 418 
 
 V. Hamer 
 
 393 
 
 V. Garsa 
 
 297 
 
 V. Moore 
 
 405 
 
 V. Potter 
 
 35 
 
 V. State 
 
 512 
 
 Hatcher v. State 
 
 225 
 
 V. Wimble 
 
 646 
 
 Hathaway v. Crosby 
 
 oG5 
 
 Hendrick v. Cannon 
 
 593 
 
 v. Helmer 
 
 15G 
 
 v.. Kellogg 
 
 312 
 
 V. Rj-an 
 
 122 
 
 V. Robinson 
 
 610 
 
 Ilatton i\ ]\IcC]ish 
 
 383, 420 
 
 Ilendrick's 
 
 163 
 
 Hawk V. Deuel 
 
 078 
 
 Hendricks v. State 
 
 345 
 
 V. llidg\yay 
 
 302, 503 
 
 Hendrickson v. Anderson 
 
 357 
 
 Hawkins v. Alder 
 
 480, 490 
 
 i). Hiuchley 590 
 
 59r 
 
 V. Bowie 
 
 625 
 
 V. Kingsbury 
 
 159 
 
 V. Lowry 
 
 109 
 
 Hendry v. Smith 
 
 458 
 
 Hawks V. Deveuport 
 
 103 
 
 V. Sharp 
 
 456 
 
 V. State 
 
 187 
 
 Henley v. Branch 
 
 649 
 
 Haws v. Gnstin 
 
 191 
 
 V. Robertson 
 
 613 
 
 Hawthorne v. Bowman 
 
 433, 550 
 
 Hennen v. Gilman 
 
 88 
 
 Haycock v. Greup 
 
 149 
 
 Henry v. Cooper 
 
 710 
 
 Haydeu v. Palmer 
 
 60 
 
 V. Evarts 
 
 420 
 
 Haj'es V. Keyou 
 
 81 
 
 V. Hasley 
 
 140 
 
 Haynes v. Hayward 
 
 433 
 
 V. Jones 
 
 307 
 
 V. IMorgan 
 
 103 
 
 D. Kaufman 
 
 718 
 
 1). Tliomas 
 
 299 
 
 V. Raiman 
 
 153 
 
 Hays V. Caldwell 
 
 634 
 
 HenshaAV i). Supervisors 
 
 691 
 
 V. Gorby 
 
 693 
 
 Henson v. King 
 
 368 
 
 V. Hays 
 
 331 
 
 Ilerber v. State 
 
 507 
 
 V. Paul 
 
 338 
 
 Herbert v. Ilanrick 
 
 400 
 
 V. AValdron 
 
 331 
 
 Herdic v. Bilger 
 
 353 
 
 Hayward v. Calhoun 
 
 83 
 
 Hereford v. Babin 
 
 591 
 
 V. Duncklee 
 
 435 
 
 Herndon v. Bryant 
 
 295 
 
 V. Newton 
 
 573 
 
 Herring v. State 
 
 401 
 
 Haywood v. Harmon 
 
 331 
 
 Hersey v. Verrill 
 
 97 
 
 Hazard v. Israel 
 
 584 
 
 Hess V. Johnson 
 
 456 
 
 Ilazen v. Henry 
 
 449 
 
 V. Newcomer 
 
 334 
 
 Hazlolnirst v. Morris 
 
 713 
 
 Hessing v. McClosky 250, 261 
 
 ,269 
 
 Head V. Langworthy 
 
 13 
 
 Hester v. State" 
 
 432 
 
 Heald v. Wells 
 
 702 
 
 Hettrick v. Wilson 
 
 639 
 
 Heath v. Hand 
 
 616 
 
 Hewlett V. Cock 
 
 423 
 
 V. Marshall 
 
 420 
 
 V. Crouchley 
 
 562 
 
 V. Page 
 
 380 
 
 Heyward v. Bath 
 
 435 
 
 Heath's 
 
 186 
 
 V. Bennett 
 
 143 
 
 Ileaton v. Manhattan 
 
 504 
 
 Hibler v. McCartney 
 
 273 
 
 Hedgepeth v. Robertson 
 
 283 
 
 Hicks V. Bailey 
 
 383 
 
 Ileeron v. Beckwith 
 
 145 
 
 V. Blake 
 
 448 
 
 HefTron v. Gallup 
 
 249 
 
 V. Davis 
 
 311 
 
 Hegler v. Henckell 
 
 41 
 
 V. Gilliam 
 
 748 
 
 Heighler v. Savage 
 
 593 
 
 V. AVilson 
 
 11 
 
 Helm V. Jones 
 
 547 
 
 Hidden v. Jordan 
 
 74
 
 TABLE OF CASES CITED. 
 
 xlv 
 
 Higboe V. Bacon 
 Higbie v. Conistock 
 Higdcn V. Higden 
 Higgans v. Lee 
 Pliiifirins v. Breen 
 
 PAGE 
 
 21 
 
 625 
 
 49G 
 
 121 
 
 39 
 
 High V. Wilson 484 
 
 Highland v. Wynkoop 57 
 
 Higlimore v. Harrington 582 
 
 Hiidreth v. Slartiu 90 
 
 Hill V. Canfield 273, 295, 628 
 
 V. Deaver 79 
 
 V. Hobart 331, 333 
 
 V. Irwin 528 
 
 V. Meyers 47, 413 
 
 V. New Haven 360 
 
 V. Portland 331 
 
 V. Vanduzer 502 
 
 V. Ward 96 
 
 ■V. AVhite 730 
 
 V. Wilkins 9, 79 
 
 Hillebraut v. Ashworth 468 
 
 V. Brewer 34 
 
 Hilliard v. Carr 8 
 
 V. Goold 311 
 
 Hill's 235 
 
 Hills V. London 329 
 
 Hilton V. Sonthwick 203 
 
 Himblewright v. Armstrong 39 
 
 Hinchman v. Clark 188 
 
 Hiudle V. Birch 179 
 
 Hinds V. Terry 91, 515 
 
 Hines v. State 155, 175, 231, 
 
 247, 342 
 
 Hinman v. Swift 772 
 
 Hinson v. King 366 
 
 Hipp V. Ingram 37 
 
 Hirch V. Patterson 47 
 
 Hite V. Bradford 295 
 
 V. Kier 71 
 
 V. Lenhart 525 
 
 Hix V. Drury 220, 249 
 
 Hoar V. Mill 70 
 
 Hobbes v. Beckwith 634 
 
 Hobbs V. Outlaw 42 
 
 Hobson V. Doe 763 
 
 Hodges V. Planters 406 
 
 ■V. Rutland 629 
 
 V. Springer 415 
 
 Hodgson V. Barvis 66 
 
 Hoffman v. Etna 301 
 
 V. Gordon 9 
 
 Hogg V. State 373 
 
 Hogshead v. State 166, 200 
 
 Hoit V. Ilolcomb 263 
 
 liolbert v. Montgomery 76 
 
 Holbrook v. Coney 721 
 
 V. Cook 622, 634 
 
 
 PAGE 
 
 ! Holbrook v. Jackson 
 
 94 
 
 419 
 
 1 V. Nichol 
 
 
 545 
 
 V. Utica 
 
 
 385 
 
 V. Wright 
 
 
 96 
 
 Holburn v. Ncal 
 
 
 553 
 
 Ilolcombe v. State 
 
 
 462 
 
 Holden v. Bloxum 
 
 
 256 
 
 V. Cole 
 
 
 98 
 
 V. Liverpool 
 
 
 357 
 
 Holford V. Alexander 
 
 
 641 
 
 Holland v. Dale 
 
 
 607 
 
 Holliday v. Atkinson 
 
 
 307 
 
 V. People 
 
 
 7 
 
 Hollingsworth v. Duane 
 
 
 107 
 
 Holliushead v. Van Glahn 
 
 
 648 
 
 HoUis V. Caugham 
 
 
 635 
 
 Hollister v. Johnson 
 
 
 307 
 
 V. Judges 
 
 
 774 
 
 Hollow-ell V. Cheek 
 
 
 29 
 
 HoUoway v. Baker 
 
 
 757 
 
 V. Cotter 
 
 
 280 
 
 Holly V. Christopher 
 
 
 559 
 
 Holman v. Dord 
 
 
 466 
 
 V. Martin 
 
 
 350 
 
 V. Riddle 
 
 
 244 
 
 V. Sigourney 
 
 
 706 
 
 V. State 120 
 
 495 
 
 ,520 
 
 Holmes v. Chieftain 
 
 
 541 
 
 V. Doane 
 
 
 272 
 
 D. Jamison 
 
 
 623 
 
 V. Watson 
 
 355 
 
 356 
 
 V. Wood 
 
 
 624 
 
 Holsenback v. Martin 
 
 
 743 
 
 Holton V. Adcock 
 
 
 474 
 
 V. Ruggles 
 
 
 707 
 
 Homerton v. liolt 
 
 
 482 
 
 Hone V. Woolsey 
 
 
 593 
 
 Hood V. Hood 
 
 
 271 
 
 V. Ware 
 
 
 575 
 
 Hore V. Lockwood 
 
 
 8 
 
 Hook V. Craghead 
 
 
 43 
 
 V. Stovall 
 
 
 437 
 
 Hooker «. Johnson 
 
 307 
 
 397 
 
 Hooks V. Branch 
 
 
 674 
 
 Hooksett V. Amoskeag 
 
 256 
 
 305 
 
 Hooper v. Farwell 
 
 
 748 
 
 Hope V. Atkins 
 
 
 496 
 
 Hopkins i'. Atkins 
 
 
 690 
 
 V. Clark 
 
 401, 
 
 416 
 
 V. Commonwealth 
 
 23 
 
 V. Forsyth 
 
 
 428 
 
 V. Fowler 
 
 
 263 
 
 V. GrinncU 
 
 
 376 
 
 V. Tilmau 
 
 
 449 
 
 Hopkinson ■?;. Steel 
 
 
 399 
 
 Hopper V. Kalkman 
 
 715, 
 
 786 
 
 V. Smith 
 
 
 555
 
 xlvi 
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Ilonl V. Grimes 261 
 
 Ilorlbrd r. Wilson 415 
 
 lIonuT )'. Kobcrts 632 
 
 Ilorsely v. Branch 144 
 
 ■i>. Hopkins 718 
 
 Horton v. Iloiton 2:53 
 
 V. Tliornliill 71 G 
 
 V. Windlc 679 
 
 Hosford V. Wilson 58 
 
 Iloskins ?'. llattcnback 588 
 
 Ilosley ;'. Black 433 
 
 llotclikins V. Hodge 447 
 
 Hotchkiss V. Porter 376 
 
 Hott V. Rees 671 
 
 Hottle V. Kindle 663 
 
 Hou.^h V. Baldwin 645 
 
 Houirlitaling t\ Ball 279, 344 
 
 Houghton V. Slack 7, 15 
 
 Housatonic v. Kno^Yles 470 
 
 House V. Wright 13, 213, 518 
 
 Houston V. Gilbert 64 
 
 V. Perry ' 131 
 
 V. Smith 510 
 
 V. Wolcott 597 
 
 Hovey v. Chase 261 
 
 V. Ilobson 256, 418 
 
 V. Luce 569 
 
 V. Niles 767 
 
 V. Thompson 217, 294 
 
 How 1). Strode 308 
 
 Howard v. Browne 43 
 
 V. Capron 101 
 
 V. Carpenter 340 
 
 v. Grover 496 
 
 V. Havward 94 
 
 V. Hil'l 632 
 
 V. Holbrook 46 
 
 V. IMincr 59 
 
 v. 3Iurphy 666 
 
 V. Kay 447 
 
 Howe V. Huntington 331 
 
 V. Kcc'ler 344, 469 
 
 V. Slate 711 
 
 Howell V. Howell 545 
 
 V. Pitman 638 
 
 V. State 604 
 
 Howes V. Gillet 6 
 
 Howcrton y. State 179 
 
 Howland v. Giflbrd 174 
 
 V. Sheriir 220 
 
 Howse V. Judson 661 
 
 Howser v. Commonwealth 10 
 
 Hoyt V. Brooks 713, 715 
 
 V. Dimon 45 
 
 V. Gilman 276 
 
 V. ]\Iurphy 72 
 
 V. Smith 719 
 
 
 PAGE 
 
 Hoxie V. County 
 
 
 780 
 
 V. Home 
 
 90, 
 
 229 
 
 Hubard v. Russell 
 
 
 88 
 
 Huckle V. Mooney 
 
 562 
 
 579 
 
 Hubbert v. Collier 
 
 
 103 
 
 IIubl)y y. Stokes 
 
 
 45 
 
 Huebsch v. Baker 
 
 
 602 
 
 Huelsenkamp v. Citizen 
 
 
 359 
 
 Huey V. Huey 
 
 
 394 
 
 Hudspeth v. Allen 
 
 
 573 
 
 Hudson V. Crow 
 
 
 95 
 
 V. Kline 
 
 
 607 
 
 V. Pettyjohn 
 
 
 755 
 
 V. State 
 
 
 239 
 
 V. Wier 
 
 
 311 
 
 V. AYilliamson 
 
 14, 
 
 445 
 
 Huffman v. Ackery 
 
 
 305 
 
 Hugg V. Riler 
 
 
 168 
 
 Huggins V. King 
 
 
 600 
 
 llughart V. Gliddens 
 
 
 755 
 
 Hughes V. Jackson 
 
 
 82 
 
 V. Maddox 
 
 
 636 
 
 V. Monty 
 
 
 301 
 
 V. Robinson 
 
 
 109 
 
 V. Sticking 
 
 
 40 
 
 Hugo V. Payne 
 
 
 173 
 
 Hugley V. Ilolstein 
 
 
 239 
 
 Huisli v. Sheldon 
 
 
 506 
 
 Hull V. Alexander 
 
 225, 
 
 451 
 
 Hulett V. Matheson 
 
 
 713 
 
 Humbert v. Eskert 
 
 
 79 
 
 Humphrey v. Burge 
 
 
 107 
 
 V. Havens 
 
 
 496 
 
 V. Hazlep 
 
 
 719 
 
 V. Sears 
 
 
 745 
 
 Humphreys v. Leggett 
 
 
 006 
 
 Humphries v. Marshall 
 
 31, 
 
 515 
 
 V. Parker 
 
 355 
 
 584 
 
 Hunter v. Reves 
 
 662, 
 
 603 
 
 Hungerford v. Gushing 
 
 
 730 
 
 V. Sigcrson 
 
 
 591 
 
 Hunnewell v. Hobart 
 
 296 
 
 459 
 
 Hunt V. Barrel 
 
 
 484 
 
 V. Bennett 
 
 46, 
 
 288 
 
 V. Coachman 
 
 
 594 
 
 V. Crane 
 
 
 261 
 
 V. Hoboken 
 
 435, 
 
 449 
 
 V. Hunt 
 
 
 453 
 
 Hunter v. Dickerson 
 
 
 63 
 
 V. Hubbard 
 
 
 346 
 
 V. Humplirios 
 
 
 7-23 
 
 V. Osterhoudt 
 
 
 318 
 
 ■y.W^aite 
 
 
 88 
 
 V. State 
 
 324, 
 
 711 
 
 Huntington v. Bell 
 
 310 
 
 616 
 
 V. IVIcGovern 
 
 
 646 
 
 V. Conkey 
 
 
 604
 
 TABLE 
 
 OF CASES CITED. 
 
 ^ PAGE 1 
 
 
 Huntington v. Drake 
 
 517 
 
 Jack V. Naber 
 
 Huntsman v. Jarvis 
 
 6 
 
 V. State 
 
 Hurbcrt i\ Dumout 
 
 637 
 
 Jackson v. Bank 
 
 Hurt V. State 
 
 391 
 
 V. Barron 
 
 Huston V. Huston 
 
 75G 
 
 V. Cannon 
 
 Huichiusou V. Bruce 
 
 98 
 
 V. Cody 
 
 V. Coleman 
 
 448 
 
 V. Cristraan 
 
 V. CommonTvealth 
 
 073 
 
 t).J)avis 
 -B.l^ickeuson 
 
 V. Gurley 88 
 
 709 
 
 V. Mctliuen 
 
 402 
 
 V. Falsett 
 
 V. Moody 
 
 50 
 
 V. Hawks 
 
 Huyett V. Pliiladelpliia 
 
 357 
 
 V. Hooker 
 
 Hylliard v. Nickols 
 
 125 
 
 V. Hopperton 
 
 Hyman v. Cook 
 
 674 
 
 V. Jackson 
 
 V. Leaman 
 
 646 
 
 V. Kinney 
 
 Hynds v. Hays 
 
 276 
 
 V. Lagget 
 
 Hypfuer v. Walsh 
 
 342 
 
 V. Packard 
 V. Packer 
 V. Peck 
 
 I. 
 
 
 V. People 
 V. Roe 
 
 Iglehart i\ Downs 
 
 460 
 
 V. Rutherford 
 
 lUies «. Diercks 
 
 577 
 
 V. Sacramento 
 
 Illingswortli v. Greenleaf 
 
 413 
 
 V. Simmerman 
 
 Illinois V. Cassel 
 
 329 
 
 V. Sternhergh 
 
 V. Simmons 
 
 580 
 
 V. Warford 
 
 V. AVliittemore 
 
 331 
 
 Jacob V. McLean 
 
 Imlioof V. Chicago 
 
 628 
 
 Jacobs V. Barger 
 
 Indiana v. Covett 
 
 335 
 
 V. Dooly 
 
 Indianajiolis v. Taffe 
 
 136 
 
 V. United States 
 
 IngersoU v. Bostwick 
 
 709 
 
 Jaeger v. Kelly 
 
 Ingerson v. Miller 
 
 586 
 
 Jamagin v. State 
 
 Ingram v. Crary 
 
 409 
 
 James «. Gray 
 
 V. IMarshall 
 
 313 
 
 V. Herring 
 
 V. Russell 
 
 570 
 
 «. Landon 
 
 V. South Carolina 
 
 59 
 
 Jameson v. Androscoggin 
 
 Inhts. V. Co. 689 
 
 , 693 
 
 Jamisons. Wray 
 
 Inman v. Strattan 
 
 713 
 
 V. Reid 
 
 Innerarity t\ Byrne 
 
 644 
 
 Jamson v. Quivey 
 
 Insurance Co. v. Mordecai 
 
 725 
 
 Jaqueth v. Jackson 
 
 Irwin V. Gallagher 
 
 660 
 
 Jaquius v. Commonwealth 
 
 V. Jones 
 
 165 
 
 Jaruagan v. Atkinson 
 
 V. jSIonell 
 
 458 
 
 Jarvis v. Chandler 
 
 V. Trego 
 
 46 
 
 Jeffersonville v. Swift 
 
 V. Wickersham 
 
 39 
 
 Jeffry v. Wood 
 
 Isaac V. State 
 
 175 
 
 Jemigan v. Waiuer 
 
 Isaacs V. Beth 
 
 708 
 
 Jemison v. Hearings 
 
 Ish V. Chilton 
 
 311 
 
 Jeness v. Berry 
 
 Ives V. Finch 
 
 651 
 
 Jenkins v. Banning 
 
 Ivey V. Gamble 
 
 140 
 
 V. Brown 
 
 v. Owens 
 
 298 
 
 V. Frink 
 V. McConico 
 V. Parkhill 
 
 J. 
 
 
 v. Whitehead 
 Jenne v. Joslyn 
 
 Jaccard v. Anderson 
 
 307 
 
 Jenness v. Berry 
 
 V. Davis 
 
 124 
 
 Jennings v. Aster 
 
 xlvii 
 
 PAGE 
 
 244 
 198 
 637 
 435 
 505 
 556 
 453, 557 
 556 
 251 
 
 76 
 242 
 509 
 581 
 556 
 509 
 275 
 367 
 458 
 349 
 692 
 542 
 485 
 144 
 349 
 448 
 125, 538 
 550 
 
 88 
 242 
 664 
 427 
 235 
 668 
 464 
 
 57 
 
 83 
 590, 599 
 784 
 377 
 002 
 028 
 391 
 589 
 295 
 017 
 519 
 295 
 402 
 639 
 389 
 11, 111 
 
 93 
 111 
 445 
 437 
 328 
 168
 
 xlviii 
 
 TABLE OF CASES CITED. 
 
 Jennings v. Com. 
 V. Loriug 
 V. Warne 
 Jenny v. Bonier 
 
 )'. Delesdernier 
 Jessup V. Cook 
 Jewoll c. Brandford 
 Jewitt V. Lincoln 
 Jim r. TeiTitory 
 
 t'. State 
 Job V. Harlan 
 Johns v. Fuller 
 Johnson v. Ackles 
 
 V. Alexander 
 V. Barker 
 V. Brown 
 V. Blanchard 
 V. Connecticut 
 V. Conillard 
 V. Fort 
 V. Hebard 
 V. Ilorney 
 V. Holt 
 V. Home 
 V. Jcbb 
 V. Kinney 
 «. ]\[arshall 
 v. IMason 
 V. Parks 
 r. Perry 
 V. Phaxter 
 V. Pliinton 
 V. Plimpton 
 V. Porter 
 V. Scribner 
 V. State 
 V. Stewart 
 V. Taylor 
 V. V/arwick 
 V. Wccdman 
 Johnston v. Canlkins 
 
 V. State 
 Jones V. Block 
 
 V. Cannock 
 V. Cooke 
 V. Crawford 
 V. Dougherty 
 V. Gilbert 
 V. Hacker 
 v. Ireland 
 V. Jennings 
 V. Julian 
 V. Kilgore 
 V. ]\IcCrea. 
 v. Bansom 
 V. Eodman 
 V. Sparrow 
 
 PAGE 
 
 C31 
 499, nil 
 219 
 515 
 573 
 500 
 
 37 
 
 59 
 174 
 179 
 730 
 632 
 110 
 
 88 
 761 
 394 
 498 
 615 
 
 35 
 729 
 475 
 624 
 621 
 242 
 640 
 293 
 421 
 897 
 318 
 161 
 664 
 771 
 767 
 202 
 475 
 296 
 739 
 
 67 
 111 
 573 
 585 
 
 89 
 450 
 677 
 138 
 632 
 785 
 
 50 
 654 
 325 
 453 
 134 
 590 
 589 
 435 
 763 
 579 
 
 Jones V. State 
 V. Taylor 
 V. Trustees 
 V. "Water 
 V. "White 
 V. "Winson 
 V. "Wood 
 V. Van Zant 
 Jordan v. Dennis 
 V. Loftin 
 V. IVIeredith 
 V. Thomas 
 V. State 
 V. "Williams 
 Jorie V. Ilandley 
 Josey V. "Wilmington 
 Joslyn V. Sapplington 
 Jourdan ?>, Keed 
 Journey v. Sharp 
 Judah V. "Vincennes 
 Judge V. Stone 
 Jumpcrtz V. People 
 Justice V. Hunt 
 Justices V. Plank 
 
 V. Barrington 
 V. Simmons 
 
 Kain v. Gradon 
 Kane v. Burrus 
 Kauouse v. Martin 
 Karber v. Ncllis 
 Karns v. Kunkle 
 Karriger v. Grebb 
 Katz V. Moore 
 Kaufman v. Bott 
 Keag V. Haite 
 Kean v. Vaughan 
 Kcate V. Temple 
 Keating v. Bradford 
 Keaton v. Governor 
 
 V. State 
 Keel v.^eni]j 
 Keeler v. Niagara 
 Keen v. Hopkins 
 V. Turner 
 Keener v. State 
 Kcenan v. State 
 Ivoighler v. Savage 
 Keither v. State 
 Keirle v. Shriver 
 Keller v. Blasdel 
 V. Dillon 
 Kellip V. Empire 
 Kellog V. Budlong 
 
 PAGE 
 
 131, 142, 250, 296 
 405 
 
 156, 
 
 231, 
 
 644 
 
 64 
 
 499 
 
 355 
 276 
 571 
 678 
 
 589 
 
 174 
 
 597 
 
 523 
 
 GU 
 
 649 
 
 190, 563 
 
 713 
 
 447 
 
 311 
 
 78, 406 
 
 398, 406 
 
 23G, 237 
 
 690 
 
 40 
 
 35 
 
 742 
 
 749 
 504 
 652 
 388 
 646, 651 
 295 
 499 
 450 
 447 
 771 
 65 
 634 
 446 
 269 
 713 
 353 
 149 
 633, 735 
 156, 258 
 155 
 704 
 465 
 713 
 526 
 254 
 112 
 476 
 
 667, 
 
 458,
 
 TABLE OF CASES CITED. 
 
 xlix 
 
 PAGE 
 
 Kellogg V. French 223 
 
 Kelly V. Crawford 427 
 
 V. Miller 122, 485 
 
 V. Muse 747 
 
 V. State 87 
 
 V. Wiesman 616 
 
 Kelsey v. Ross 638 
 
 Kelso V. Townseud 296 
 
 Kemmerer v. Edelman 91, 399 
 
 Kendall v. Brownson 400 
 
 V. Weaver 393, 402 
 
 Keudrick v. Arnold 615 
 
 Kenna's v. Qmirrier's 648 
 
 Kennedy v. Cunningham 98 
 
 V. Cooding 739 
 
 V North 294, 567 
 
 V. Shilton 719 
 
 Kent V. Charlestown 106 
 
 V. De Baun 610 
 
 V. Hunter 638 
 
 1). Ricards 589 
 
 V. Tyson 220, 348 
 
 V. Whitney 69 
 
 Kentucky v. Dennison 776 
 
 Kenworthy v. Williams 386 
 
 Kenyon v. Clarke 614 
 
 V. Sutherland 88, 93 
 
 Kettle V. Foote 389 
 
 Kerns v. Chambers 596 
 
 Key V. Allen 576 
 
 Keyes v. Throop 411 
 
 Khone v. Ins. Co. 448 
 
 Kidder v. Hadley 773 
 
 Kiester v. IMiller 313 
 
 Kile V. Thompson 141 
 
 V. Tubbs 408 
 
 Kiler v. Kimball 435, 439 
 
 Kilgore v. Jordan 102, 312 
 
 Killen v. Listrunk 216, 569 
 
 Kilmore v. Abdoolah 565 
 
 Kimball v. Cody 405 
 
 V. Batters 335 
 
 V. Gcarheart 449 
 
 V. Irish 82 
 
 v. Riggin 712 
 
 Kimberlin v. Farris 30, 412 
 
 Kindred v. Bagg 98 
 
 King V. Bear 115 
 
 V. Davis 117 
 
 V. Dunn 666 
 
 V. Faher 239 
 
 V. Francis 482 
 
 V. Hunt 171 
 
 V. King 295 
 
 V. Mnson 481 
 
 V. Poole 128 
 
 V. Pope 274 
 
 4 
 
 PAGE 
 
 King V. State 156, 433 
 
 V. Sutton 102, 214, 289 
 
 V. Teal 416 
 
 V. Tremearne 170 
 
 V. Woodfall 251 
 
 Kingsland v. Bartlett 720 
 
 Kinney v. Ogden 594 
 
 Kinnicutt ■». Stockwell 7 
 
 Kinsey v. Sensboughs 723 
 
 V. Wallace 584 
 
 Kinsman v. Paigo 655, 676 
 
 Kinter v. Jenks 26 
 
 Kipp V. Den 302 
 
 Kirby v. State 114, 147 
 
 V. Waterford 501, 502, 508 
 
 Kirby' 8 162 
 
 Kirk V. Reynolds 709 
 
 V. Wilds 273 
 
 Kirkland v. Gates 296 
 
 Kirkwood v. Gordon 368 
 
 Kitchen v. Reinsky 526 
 
 Klien v. Franklin 78 
 
 Klemm v. Dewes 653 
 
 Kline v. Gundrum 648 
 
 Klingensmith v. Klingensmith 839 
 
 Klockenbaun v. Pierson 545 
 
 Knapp V. Croslev 625 
 
 V. Marshall 494 
 
 Knickerbocker v. Anderson 450 
 
 Knight V. Bravvner 723 
 
 V. Egerton 376 
 
 V. Freeport 206 
 
 i\ Mantz 458 
 
 Knott V. Jarboe 603 
 
 Knowles v. Dow 49 
 
 Knowlton v. McMahon 243 
 
 Knox v. Breed 146 
 
 V. Bigelow 526 
 
 V. Coroner 607 
 
 V. Costello 662 
 
 V. Easton 261 
 
 V. Stark 643 
 
 V. Steele 663 
 
 V. Work 496 
 
 Koester v. Esslinger 444 
 
 Krickbaum v. Bridges 596 
 
 Kuehler v. People 19 
 
 Kuns V. Young 311, 338 
 
 Kurlbaum v. Roepko 121 
 
 Kyendall v. Clinton 13 
 
 Laber v. Cooper 
 Lackland v. North 
 Lacy V. Fanman 
 
 138, 887, 643 
 359 
 
 757
 
 TABLE OF CASES CITED. 
 
 PAGE 
 
 Lacy V. Hall 040 
 
 •i'. AVilliams 737 
 
 Laild V. Prentice 163 
 
 Lailow V. Groom 702 
 
 Lafayette v. New 1G5, 1G7, 249 
 
 Lallin r. Ilerriiiglon 49G, oOS 
 
 Lake V. Cooke G04 
 
 Lamar r. "Williams 301 
 
 Lamb v. Anderson 589 
 
 Lamme v. Gregg 345 
 
 Lami)liear v. Lamprey 717 
 
 Lanahan v. Latrobe 747 
 
 Lauding v. Russett 285 
 
 Lane v. Brown 450 
 
 V. llolliday 505 
 
 V. Lantz 737 
 
 Lancy v. Bradford Go, G8 
 
 Lancsboroiigli v. Berkshire 140 
 
 Land v. ^lillor 92 
 
 Laufcar v. Harper 6 
 
 Lang V. Hopkins 450, 5G3 
 
 LangliolT?;. ISlihvaukee 358 
 
 Langmaid v. Putter GG8 
 
 Lansing v. Eddy 590, G15 
 
 V. Van Alstyne 275 
 
 Lansing's 710 
 
 Lautis' G89 
 
 Lapicce v. Hughes 589 
 
 Large v. Orvis 321 
 
 Larkin «. Avery 441 
 
 Larkins v. Tarter 246 
 
 Larillian v. Lane G47 
 
 Larue v. Russell 294, 400 
 
 Latham v. Bower 713 
 
 V. Selkirk 449, 500 
 
 Latshaw v. Territory 295 
 
 Laughlin v. Clawson 355 
 
 Laurent v. Vaughau 438 
 
 Lavall V. Cromwell 458 
 
 Law V. Law 102, 525 
 
 Lawler v. Earle 27, 251 
 
 V. Norris 291 
 
 Lawrence 78G 
 
 Lawrence v. Bassett 103 
 
 V. Collier 186 
 
 V. .Tarvis 282 
 
 V. People 147 
 
 V. Strauss 242 
 
 Lawrenceburg v. Montgomery 298 
 
 Layne v. Norris 132 
 
 Layson v. Galloway 379 
 
 Layton v. ILall 370 
 
 V. State 623 
 
 Lazzcl V. 3Iaple 387 
 
 Leach v. Blackley 700 
 
 V. Wilburn 270 
 
 Leak v. McDonnell 040 
 
 PAGE 
 
 Leake v. State 480 
 
 Leavy v. lioberts 49G, 501 
 
 Lee V. Bradway 135 
 
 V. Emery 430 
 
 ti. Ilard-rravc 045 
 
 V. Schmidt 723 
 
 V. Oppenheimer 88 
 
 V. Quirk 283 
 
 Leeman v. Allen 5, 579 
 
 v. Day 115 
 
 Leete v. Grcsham 59 
 
 V. Wilson 434 
 
 Le Fleming v. Simpson 554 
 
 Legg V. Drake 25 
 
 V. McNeil 457 
 
 Legrand y. Baker 527 
 
 Lehman v. Brookljm 580 
 
 Lelire v. ISIurry 29 
 
 V. Sumpter 571 
 
 Leigh V. Hodges 58 
 
 Leighton v. Sargent 200, 242, 386 
 
 Leith V. Pope 584 
 
 Lemoir v. South 707 
 
 Lent V. Jones 55G 
 
 Leonard v. Roiran 105 
 
 V. Smith 258, 419 
 
 V. Shuler 517 
 
 Leschie v. Territory 494 
 
 Lcsee v. Park 519 
 
 Lessene «. Grant 577 
 
 Lester v. Barnett 568 
 
 V. Goode 245, 510 
 
 Letgoe v. Pitt 487 
 
 Lctton V. Young 364, 581 
 
 Levering v. Langley 90 
 
 Levey v. Fargo 23 
 
 Levi V. Milne 124, 574 
 
 Levitsky v. Johnson 504 
 
 Lewis V. Bank 82 
 
 V. Blake 450 
 
 t-. Block 572 
 
 V. Harris 345 
 
 V. Hawley 405 
 
 V. Hazel 755 
 
 V. Peak 490 
 
 «. Read 449 
 
 V, State 194, 379 
 
 V. Stephenson 557 
 
 V. Trussler 506 
 
 Licet V. State ^88 
 
 Lidgett V. Perrin 327 
 
 Likes V. Baer 363, 366 
 
 Lile V. State 101 
 
 Lincoln v. People 481 
 
 V. Wright 284 
 
 Lindsay v. Lee 523 
 
 V. Wayland 402
 
 TABLE OF CASES CITED. 
 
 li 
 
 Line v. Oregon 
 Linn v. Wright 
 Linnard v. Crossland 
 Liuscott V. Trask 
 Lipscomb v. Winson 
 Lisbon v. Batli 
 Lishcr v. Pannellee 
 Lisle V. State 
 List V. Kortpeter 
 Lister v. Bolicr 
 
 V. IMundell 
 Litclifield V. Loudouderr}^ 
 Little V. Collett 
 
 V. Birdwell 
 
 «. Richards 
 
 V. Morris 
 
 V. Price 
 Live V. Oregon 
 Livingston v. Livingston 
 Lloyd V. Newell 
 t\ Ogelby 
 Lochraue v. Solomon 
 Lockard v. Lockard 
 Lockart v. Luker 
 Lockhart v. Mackie 
 Loehner v. Home 
 Loew V. Stocker 
 Loftin V. Horngay 
 Logan v. Steele 
 Lombard v. Clieever 
 Long V. Hopkins 
 
 V. Lewis 
 
 V. Overton 
 Longacre v. State 
 Lonsdale v. Brown 
 Loomis V. Lane 
 Looper v. Bell 
 Lopez «. De Tastet 
 Lord V. Abbott 
 V. Ostrander 
 V. State 
 V. Veazie 
 Lothrop V. Wright 
 
 V. Wrightman 
 Lott V. Macon 
 Louderback v. Boyd 
 Love V. Jarret 
 
 V. Mikals 
 Lovejoy v. Irelan 
 Loveland v. Burton 
 Lovett V. Longmire 
 
 V. Pell 
 
 V. Salem 
 Levingworth v. Fox 
 Loviston V. Junction 
 Low V. People 
 Lowe V. Commonwealth 
 
 PAGE 
 
 
 PAGE 
 
 500 
 
 Lowell V. Bean 
 
 480 
 
 380 
 
 Lowenberg v. People 
 
 181 
 
 540 
 
 Lower v. Clement 
 
 317 
 
 390 
 
 Lowrey D.^Brown 
 
 136 
 
 607 
 
 V. Stewart 
 
 46 
 
 474 
 
 Lowry v. Orr 
 
 458 
 
 530 
 
 Lubeck v. Bullock 
 
 450 
 
 83 
 
 Lucas V. Bank 
 
 608 
 
 406 
 
 V. Daniels 
 
 311 
 
 510 
 
 v. Lucas 
 
 125 
 
 508 
 
 V. Waller 
 
 602 
 
 131, 415 
 
 Luckett r. White 
 
 593 
 
 04G 
 
 Lucy V. Buudy 
 
 561 
 
 248 
 
 Ludlow's V. Park 
 
 427 
 
 217 
 
 Ludlum V. Fourth 
 
 778 
 
 634 
 
 Lum V. Price 
 
 735 
 
 589 
 
 Lunday v. Thomas 
 
 46 
 
 555 
 
 Lusk V. Miles 
 
 143 
 
 628 
 
 Luster v. State 
 
 208 
 
 470 
 
 Lutkins «. Zabriskie 
 
 640 
 
 76 
 
 Lyford v. Thurson 
 
 427 
 
 296 
 
 Lj^le u. Rollins 
 
 444 
 
 590 
 
 Lyman v. Arms 
 
 637 
 
 340 
 
 V. Burlington 
 
 694 
 
 123 
 
 Lynch, v. Horry 
 
 190 
 
 271 
 
 Lynd v. Benjamin 
 
 766 
 
 142 
 
 Lynes y. State 
 
 54 
 
 748 
 
 Lyou V. Ely 
 
 93 
 
 626 
 
 I". Tevis 
 
 755 
 
 98 
 
 
 
 507, 569 
 
 
 
 444 
 
 M. 
 
 
 391 
 
 
 
 134 
 
 Mackemer «. Benner 
 
 645 
 
 218 
 
 Mackay v. N. Y. 
 
 489 
 
 620 
 
 Macker v. Thomas 
 
 666 
 
 83 
 
 Macon v. Davis 
 
 457 
 
 70 
 
 V. Parker 
 
 614 
 
 235 
 
 V. AVinn 
 
 564 
 
 713 
 
 Macron v. Hull 
 
 483 
 
 316 
 
 Macular v. Wall 
 
 416 
 
 661 
 
 Macy V. De Wolf 
 
 519 
 
 55 
 
 Madden v. Porterfield 
 
 376 
 
 27 
 
 V. Shapard 
 
 514 
 
 218, 219 
 
 V. State 
 
 54, 199 
 
 702 
 
 Magee v. Badger 
 
 273 
 
 533 
 
 V. Cutter 
 
 688 
 
 714 
 
 V. Doe 
 
 130 
 
 747 
 
 V. Osborn 
 
 333 
 
 736 
 
 Magill V. Lyman 
 
 405 
 
 616 
 
 IVIagness ». Stewart 
 
 190 
 
 641 : 
 
 Maguire v. State 
 
 165 
 
 360 
 
 Mahon i\ Johnston 
 
 445 
 
 461 ! 
 
 Jlain V. McCarty 
 
 385 
 
 318 
 
 Elaine v. Call 
 
 77 
 
 379 
 
 V. Hunter 
 
 733 
 
 710 
 
 V. State 
 
 456
 
 lii 
 
 TABLE 
 
 Malin V. !Malin 
 ]\Iiillory ('. Norton 
 V. Porkiiis 
 Malone v. Ilardesly 
 ISIaltock V. King 
 ^laltus V. Shields' 
 Jlauhattan v. Osgood 
 Mnnier v. ^Meyers 
 Manion v. State 
 Manix v. IVIalonoy IGl, 
 
 V. ^Malory 
 Manly v. Culver 
 Maun V. Manning 
 V. State 
 r. AYliitbeck 
 Manning v. Dove 
 V. Hays 
 Mansfield v. Wheeler 
 lyianscll V. Queen 
 jMaple V. Burnside 
 March v. Howell 
 
 V. Portsmouth 
 V. Thomas 
 Marchman v. Todd 
 Marcly v. Shults 
 ]\Iarcus V. State 
 Marine v. Hodgson 
 Marion v. Lomax 
 jSIariol v. Givons 
 Markham v. Middleton 
 Marlborough v. Sisson 
 jNIarmaduke v. jMc^Iasters 
 INIaroney v. State 
 Marquand v. Webb 
 Marr v. Johnson 
 
 V. Marr 
 Marrow v. Hull 
 Marsh v. Edgcrton 
 t\ Haywood 
 V. Wol)bcr 
 Marshall v. Flinn 
 V. Fislier 
 V. Lester 
 V. ]\Iorris 40, 
 V. Wells 
 V. Union 
 MarslialPs 
 Marsham •«. Bullcr 
 Martin v. ('lark 
 V. Crow 
 V. Hays 
 V. Herdesty 
 V. Higgans 
 V. Latimer 
 V. Mitchell 
 V. Morelock 
 V. McGuire 
 
 ^E OF CASES CITED. 
 
 
 
 paqeI 
 
 
 PAGE 
 
 
 1^7 i 
 
 Martin v. Nix 
 
 
 69 7 
 
 
 G14 
 
 V. Orndorff 
 
 
 229 
 
 
 434 
 
 V. People 
 
 98, 
 
 296 
 
 
 703 
 
 V. Pearman 
 
 
 41 
 
 
 739 
 
 V. State 
 
 147, 
 
 194 
 
 
 321 
 
 V. Withington 
 
 
 458 
 
 
 108 
 
 ^rartin's 
 
 711 
 
 728 
 
 
 250 
 
 ^lartindale r. Brown 
 
 
 713 
 
 
 744 
 
 i\Iartyn v. Podger 
 
 
 547 
 
 248 
 
 515 
 
 Marvin v. Wilkins 
 
 
 7G8 
 
 500, 
 
 511 
 
 ]\Iary v. Mcintosh 
 
 
 384 
 
 
 401 
 
 ]\Iaryland r. Porter 
 
 2G9, 
 
 387 
 
 
 473 
 
 ]\Iask V. State 
 
 
 383 
 
 
 517 
 
 Mason v. Bascom 
 
 
 523 
 
 
 62 
 
 V. Jones 
 
 
 269 
 
 
 349 
 
 V. Palmcrton 
 
 
 38 
 
 
 723 
 
 V. Peck 
 
 
 664 
 
 42 
 
 481 
 
 V. Russell 
 
 
 243 
 
 
 1G8 
 
 V. AVestmoreland 
 
 
 695 
 
 
 352 
 
 V. Williams 
 
 
 353 
 
 
 G78 
 
 ^Lasscj^ V. Tingle 
 
 
 311 
 
 189, 
 
 257 
 
 blasters v. Barnwell 
 
 
 525 
 
 
 689 
 
 V. Warren 
 
 
 289 
 
 
 58 
 
 IMaston v. Fanning 
 
 
 42 
 
 
 45 
 
 JIatser v. Brown 
 
 
 728 
 
 
 149 
 
 Mathews v. West 
 
 
 584 
 
 
 589 
 
 ]\Iathis V. Mat his 
 
 
 468 
 
 
 37 
 
 jMatthews v. Ilorlbeck 
 
 
 20 
 
 
 610 
 
 Mattox V. Hart 
 
 
 445 
 
 
 575 
 
 V. Stearns 
 
 
 395 
 
 
 382 
 
 jVIauricet v. Brecknock 
 
 
 573 
 
 
 181 
 
 jMaxam v. Wood 
 
 
 722 
 
 
 447 
 
 ^laxwell V. Williams 
 
 
 745 
 
 
 414 
 
 May V. Hardin 
 
 
 716 
 
 
 153 
 
 V. Hanson 
 
 
 394 
 
 
 326 
 
 V. Mil. 
 
 
 160 
 
 
 66 
 
 ^Faj-bee v. Fisk 
 
 
 364 
 
 
 589 
 
 jNlayberry v. Kelly 
 
 
 388 
 
 
 7G4 
 
 Mayer v. IMcLure 
 
 
 109 
 
 
 7 
 
 V. Wiltberger 
 
 80 
 
 414 
 
 378 
 
 , 442 
 
 Mayes v. Deavcr 
 
 
 516 
 
 
 43 
 
 V. Parish 
 
 
 262 
 
 
 733 
 
 ;Mayhew v. Loper 
 
 
 21 
 
 28G 
 
 , 412 
 
 Maynard v. Fellows 
 
 217 
 
 , 256 
 
 
 391 
 
 •». lloskins 
 
 
 761 
 
 498 
 
 , 49i) 
 
 V. Hunt 
 
 
 557 
 
 
 GSO 
 
 V. Penninian 
 
 
 645 
 
 
 573 
 
 Mayor v. Goctchins 
 
 179 
 
 , 285 
 
 
 539 
 
 V. Shaw 
 
 
 643 
 
 
 632 
 
 V. State 
 
 
 179 
 
 
 405 
 
 Mays V. Hogau 
 
 
 385 
 
 
 89 
 
 V. Lewis 
 
 
 144 
 
 
 38 
 
 V. Williams 
 
 
 369 
 
 
 755 
 
 Maysou v. Eddington 
 
 
 450 
 
 
 180 
 
 V. Sheppard 
 
 138 
 
 , 583 
 
 203 
 
 , 240 
 
 Maysville v. Punuett 
 
 
 714 
 
 
 395 
 
 McAfee v. State 
 
 
 495
 
 TABLE OF CASES CITED. 
 
 liii 
 
 PAGE 
 
 IMcAlTerty v. Hale 69 
 
 McAlexandor v. Wright 629 
 
 McAlpin V. Finch 698 
 
 McAllister v. Burrill 392 
 
 V. Barry 543 
 
 V. j\[cDo\v 393 
 
 ]\rcAnley v. Lockort 534 
 
 McBride v. Whitehead 448 
 
 McCaleh v. Smith 388 
 
 McCall V. Brocl< 40 
 
 V. Davis 352 
 
 V. Seevers 4"), 61 
 
 McCauii V. Taylor 613 
 
 V. Sloau 12 
 
 r. State 203 
 
 l^IcCargo V. Chapman 624 
 
 McCarter's 232 
 
 McCartney v. McMullen 294 
 
 V. Shepard 92 
 
 McCarty v. Bauer 358 
 
 V. McCarty 159, 204 
 
 V. Tremout 567 
 
 McCary v. Mahe 728 
 
 McComas v. State 37 
 
 McCombs V. Chandler 102, 244, 
 
 516 
 
 McConnell v. Caldwell 695 
 
 V. Hampton 579 
 
 V. Micheltree 741 
 
 V. Swailes 736 
 
 ^IcCool V. Galena 455 
 
 McCorkle v. State 719 
 
 McCoy V. Jones 88 
 
 V. Martin 445 
 
 V. State 42, 295 
 
 1). Thompson 757 
 
 lyicDaniel v. Armill 139 
 
 v. Crosby 254 
 
 V. Griuer 514 
 
 V. Parks 447 
 
 V. JIarygold 140 
 
 V. Walker 98, 365 
 
 McDermott v. Barnum 350 
 
 V. United States 543 
 
 McDonald v. Bear 435 
 
 V. Falvey 764 
 
 V. Trafton 61 
 
 v. Maudlin 450 
 
 McDonongh v. State 647 
 
 McDougai V. Bellamy 296 
 
 V. Shirley 42 
 
 V. Dawson 273, 335 
 
 jSIcDougald V. Smith 48 
 
 V. Rutherford 301 
 
 McDowell V. Preston 482 
 
 ISlcEndree v. IMcEndee 749 
 
 McEutire v. McEldutT 751 
 
 PAGE 
 
 i\IcElrath v. State 64 
 
 McEvoy V. McEvoy 484 
 
 Mc E win -y. State 392 
 
 McFadden v. Commonwealth 156. 
 
 195, 390, 392 
 
 V. Otis 641 
 
 McFarland v. Clark 544 
 
 V. Rogers 613 
 
 V. Wotrord 283 
 
 McGarrity v. Byington 414 
 
 McGatrick v. Mason 449 
 
 McGavoch v. Woodlief 646 
 
 McGehee v. Shafcr 84, 563 
 
 McGill V. Monette 434 
 
 McGlaughlin v. O'Rourke 734 
 
 McGreal v. Wilson 296, 565 
 
 McGregor v. Armill 139, 2G0, 369 
 
 V. Christie 13 
 
 V. McGregor 713 
 
 McGuffie V. State 173, 247, 314 
 
 McGuire v. State 192, 305 
 
 Mcllvaine v. AVilkins 208 
 
 Mclniffe v. Wheelock 704 
 
 Mclntyre v. Crawford 449 
 
 V. Kline 296 
 
 ?j. New York 581 
 
 V. People 239 
 
 V. Young 505, 515 
 
 Mclnvoy v. Dyer 440 
 
 Mc.Iiltou V. Love 593 
 
 McKay v. Freible 631 
 
 «. Larr 433 
 
 V. Leonard 40 
 
 •B. Thorington 84, 60 
 
 McKean v. Paschal 149 
 
 McKensie v. Pitner 697 
 
 McKenzie v. McCall 629 
 
 McKim V. Mason 746 
 
 McKinley v. McCalla 751 
 
 McKinney v. Carroll 666 
 
 «. Hartman 311 
 
 V. Springer 38 
 
 V. Waite 423 
 
 V. Western 625 
 
 McKickham v. McBean 413 
 
 McKitrick v. Peter 732 
 
 McKnight v. Ratchff 305 
 
 IMcLaue v. State 459 
 
 McLain v. State 230 
 
 V. Lawson 493 
 
 McLaren v. Birdsong 190 
 
 V. Hall 295 
 
 McLaughlin v. O'Dowd 11 
 
 IMcLaurin v. Parker 595 
 
 I^IcLellan v. Crofton 87 
 
 McLure v. Hart 445 
 
 McMauagil v. Ross 21
 
 liv 
 
 TABLE OF CASES CITED. 
 
 
 PAGE 
 
 
 PAGE 
 
 McManus v. Humes 
 
 
 7G3 
 
 [Merest v. Harvey 
 
 584 
 
 IMcMastcrs v. Blair 
 
 
 07.-) 
 
 ^Merick «. Hemphill 
 
 244 
 
 jSIcMickon v. Com. 
 
 
 648 
 
 Merriam v. Cunningham 
 
 348 
 
 McMillan v. Graiiam 
 
 G42 
 
 644 
 
 V. Mitchell 
 
 412 
 
 V. ]McCoy 
 
 
 449 
 
 Merrill v. Nary 
 
 223 
 
 V. IJicliarda 
 
 
 745 
 
 V. Tamany 
 
 750 
 
 McMullon V. Mayo 
 
 
 48 
 
 «. Shattuck 
 
 517 
 
 Mciyiurty v. Glasscock 
 
 
 715 
 
 V. Suflblk 
 
 670 
 
 Mc^Iuun V. Wbclan 
 
 
 364 
 
 Merritt v. Given 
 
 301 
 
 JIcNab V. Lockhart 
 
 
 225 
 
 ^Merryman i\ Ryan 
 
 498 
 
 McNair v. IMcComber 
 
 
 13 
 
 Metcalf V. Fonts 
 
 627 
 
 V. IMcLennon 
 
 
 39 
 
 V. Mattison 
 
 654 
 
 V. SoiUb Carolina 
 
 
 445 
 
 ]\Ietcairs 
 
 212 
 
 INLcNamara v. Fisher 
 
 
 662 
 
 ]\Ietliodist V. Maj'or 
 
 593 
 
 McNealy v. Stroud 
 
 
 546 
 
 Metz V. Eddy 
 
 730 
 
 McXeiir». Arnold 
 
 
 305 
 
 Meyer v. Foster 
 
 240 
 
 McNeisli V. Ste-\vart 
 
 
 548 
 
 V. Second 
 
 354 
 
 McNorton v. Akcrs 
 
 
 450 
 
 Michie v. Michie 
 
 743 
 
 McNutt V. Lancaster 
 
 
 32 
 
 ]\Iichigan v. Bivens 
 
 128 
 
 McPhail 'V. Moscly 
 
 
 602 
 
 IVIiddleton v. Gould 
 
 632 
 
 McPhcrson v. State 314, 
 
 344, 
 
 362 
 
 Middletown v. Adams 
 
 517 
 
 McQuade v. O'Neil 
 
 
 740 
 
 V. Ames 
 
 190 
 
 McQueen v. Bostwick 
 
 
 471 
 
 Middlesex v. IMcGregor 
 
 431 
 
 V. Fulgham 
 
 
 445 
 
 Mills V. Douglas 
 
 295 
 
 V. Stewart 
 
 
 538 
 
 V. Rose 
 
 165 
 
 McRae v. Davis 
 
 
 770 
 
 Millard v. Singer 
 
 496 
 
 V. Lilly 
 
 
 568 
 
 Millandon v. First 
 
 5l5 
 
 V. Woods 
 
 
 606 
 
 Miller w. Baker 
 
 74, 88 
 
 3IcReynolds v. Lougenberger 
 
 345 
 
 V. Bryan 
 
 264 
 
 McTavish v. Carrol 
 
 806, 
 
 431 
 
 V. Chaffee 
 
 640 
 
 McVean v. Scott 
 
 104, 
 
 145 
 
 V. Hampton 
 
 268 
 
 McWillie aj. Perkins 
 
 13, 23 
 
 V. Hall 
 
 58 
 
 Meade v. Smitb 
 
 134, 
 
 246 
 
 V. Hower 
 
 126 
 
 Meager v. Gagliardo 
 
 
 101 
 
 7). Kogcr 
 
 10 
 
 Meakin v. Anderson 401, 
 
 505, 
 
 540 
 
 V. Ral'liir 
 
 460 
 
 Mealing v. Pace 
 
 
 453 
 
 V. JVIaguire 
 
 597, 604 
 
 Means v. Means 
 
 42, 
 
 478 
 
 V. Mahon 
 
 159 
 
 Mears v. Garret son 
 
 
 670 
 
 V. INIiller 
 
 21 
 
 Mechanics v. Lynn 
 
 
 594 
 
 V. Northern 
 
 467 
 
 V. Nichols 
 
 
 518 
 
 V. Shackleford 129 
 
 183, 391 
 
 Medford v. Harrell 
 
 
 713 
 
 V. Schuyler 
 
 17 
 
 Meek v. Howard 
 
 597, 
 
 598 
 
 V. Steeu 
 
 148 
 
 v. Spencer 
 
 
 331 
 
 V. Stem 
 
 95 
 
 Meem v. Pucker 
 
 
 589 
 
 V. Stewart 
 
 282, 352 
 
 Meese v. Lewis 
 
 
 39 
 
 V. Talcott 
 
 337 
 
 Melcher v. Frendenberg 
 
 
 713 
 
 V. Wilson 
 
 84 
 
 V. Merryman 
 
 
 425 
 
 ^lillerd v. Reeves 
 
 640 
 
 Melins v. Ilorne 
 
 
 706 
 
 Millctt V. Hayford 
 
 24 
 
 Mellcdge v. Boston 
 
 
 289 
 
 Milliken v. Tufts 
 
 60 
 
 Mellish V. Arnold 
 
 
 160 
 
 Mills V. Bagby 
 
 668, 758 
 
 Melvin v. Bnllard 
 
 
 286 
 
 V. Com. 
 
 684 
 
 Memphis v. Banere 
 
 
 28 
 
 V. Davis 
 
 386 
 
 V. Bibb 
 
 281 
 
 295 
 
 V. Dunlap 
 
 441 
 
 Menely v. I\Ienely 
 
 
 457 
 
 V. Howard 
 
 669 
 
 Merced v. Fremont 
 
 
 779 
 
 V. Mayor 
 
 399 
 
 Mercer v. Sayre 
 
 
 405 
 
 Mill's 
 
 230 
 
 V. State 158, 179, 
 
 194 
 
 197 
 
 Milner v. State 
 
 597
 
 TABLE OF CASES CITED. 
 
 Iv 
 
 PAGE 
 
 Milton V. Blackslicar 2G0, 500, 5G7, 
 
 59G 
 
 Mims V. Lockett 351, 3G1 
 
 V. Stimlevant 56 
 
 Mininger v. Knox 405 
 
 Minklcr v. Minkler 513 
 
 Minor v. Stone G08 
 
 v. Tillotson 632 
 
 Mirick v. Hemphill 42 
 
 Mississijipi v. Cross 445 
 
 Missouri v. Hannibal 308 
 
 Mitcliell V. Bass 494 
 
 V. Churchman 260 
 
 V. Folley 450 
 
 V. Hockctt 180 
 
 V. INIatson 462 
 
 V. Parks 240 
 
 v. Printup 148 
 
 V. Rome 412 
 
 V. State 156 
 
 V. Stewart 593 
 
 V. Western 361 
 
 V. Zimmerman 264 
 
 Mitchum v. State 179 
 
 Mix V. Madison . 387 
 
 Moberly v. Devar G7 
 
 Motfat V. Couklin 307 
 
 Moffett V. Bowman 249 
 
 Moffit V. Cressler 260 
 
 Moies V. Eddy 284 
 
 Money v. Jordan 609 
 
 Monk V. Guild 632 
 
 Monosiet «. Post 654 
 
 Monro v. Bradfield 479 
 
 Monroe v. Brady 626, 722 
 
 V. Delavan 600 
 
 V. Georgia IGG 
 
 «. State 180, 459 
 
 Monson v. Palmer 434 
 
 IMonteeth v. Caldwell 88 
 
 Montgomery v. Erwin 301 
 
 V. Evans 262 
 
 V. Gilmer 375 
 
 1). Givhan 728 
 
 V. Leavenworth 746 
 
 Moody V. Harper 534 
 
 V. Hinkley 389 
 
 V. Keener 143 
 
 V. Vredland 626 
 
 Moore v. Barclay 614 
 
 V. Foster 449 
 
 V. Gamble 589, 607, 609 
 
 V. Harris 620 
 
 V. Holland 325 
 
 V. Lea 393 
 
 V. Lee 436 
 
 V. Lyman 744, 745 
 
 PAGE 
 
 Moore v. Murdock 450 
 
 v. ]\Ieacham 299 
 
 V. Philadelphia 493 
 
 V. Rittenhouse 735 
 
 V. Shaw 390 
 
 V. Schooner 714 
 
 V. Ulm 35, 499 
 
 V. Wart 740 
 
 ]\[oores V. Parlcer 652 
 
 Moore's v. Shcphard 588 
 
 jNIoran v. Dawes 586 
 
 V. Green 34 
 
 IMorehead v. Brown 50, 137 
 
 ]\Iorehouse v. Northrop 480 
 
 Morein v. Solomons 538 
 
 Moreland v. McDcrmott 278 
 
 Morford v. Woodworth 42 
 
 Morgan v. Boyd 778 
 
 V. Coachman 97 
 
 V. Greer 646 
 
 D. Houston 498 
 
 V. Jones 424 
 
 V. Ryerson 456 
 
 V. Stevenson 180 
 
 V. Winston 89, 558 
 
 Morice v. Prince 126 
 
 Morris v. Barnes's 447 
 
 V. Bartlett 594 
 
 V. Brickley 298, 363 
 
 V. Henderson 95 
 
 V. Litchfield 357 
 
 V. jMorris 273 
 
 V. Piatt 260, 273, 379 
 
 V. Seward 475 
 
 V. State 244, 373 
 
 V. Stokes 457 
 
 V. Thompson 570 
 
 Morrison v. Hammond's 737 
 
 9). Hays 88 
 
 V. McKinnon 188, 473 
 
 V. Muspratt 377 
 
 V. McKirnon 48 
 
 V. Whiteside 708 
 
 V. Underwood 644 
 
 Morrow v. Hatfield 527 
 
 Morse v. Gilman 297 
 
 V. Weymouth 826 
 
 Morton v. Edwin 743 
 
 «. Fairbanks 351 
 
 V. Lawson 59 
 
 V. Waring 344 
 
 Mosby 1). Haskins 594 
 
 Moses V. State 189, 408 
 
 Moss V. Priest 130 
 
 ]\Iossclman v. Caen 104, 734 
 
 IVlossop V. Great HO 
 
 Mower v. Warner 514
 
 Ivi 
 
 TABLE OF CASES CITED. 
 
 IMowry r. St.irbuck 
 ISIoyc V. llerndon 
 Moyer v. Gorman ton 
 V. Wiltberger 
 Mudge V. Pierce 
 l^Iuldenor v. McDonongli 
 IMuldrou V. Cakhvell 
 IMullcn V. ^Maj-s 
 Mullins r. People 
 Mum V. Perkins 
 Mumford v. Smith 
 
 •2>. Thomas 
 Munch v. WilUamson 
 Mundy v. Bryan 
 ]\ruut()rd t'. Sjirague 
 Munich v. Municli 
 JIunu V. Gardner 
 V. 3Iatlock 
 V. Worrall 
 INIunro v. Potter 
 ]\Iuusliower v. Patton 
 Munson's 
 
 ]\Iurdock V. Sumner 
 JMurray v. Hudson 
 
 V. Judah 
 ]\Iurphy V. Com. 
 
 ■y. Justice 
 V. People 
 V. Spcnce 
 ». State 
 V. Williams 
 ]\IusgroTe V. Chambers 
 ]\lussina v. jMoore 
 Myer v. Avery 
 Myers v. Brf)wnell 
 V. ]\I('Bride 
 V. iMalconi 
 V. Walker 
 V. York 
 Myrick v. Hicks 
 
 N. 
 
 Nabors v. State 
 
 Isagle V. Homer 
 
 Nalle V. Gates 
 
 Nance v. Hicks 
 
 Nane v. Simpson 
 
 Nash V. Gilkeson 
 V. Horton, 
 V. Morton 
 v. Wctmore 
 
 Nave V. Horton 
 
 Nashua v. Stimpson 
 
 Neall V. Hill 
 
 Neal V. Lewis 
 
 PAGE 
 
 1G9, ;w7 
 384 
 642 
 445 
 394 
 719 
 295 
 48 
 692 
 80 
 444 
 435 
 111 
 453 
 611 
 646 
 445 
 599 
 496, 538 
 23, 40, 261 
 168 
 199 
 247, 248 
 581 
 275 
 86 
 47 
 261, 269 
 113 
 434 
 721 
 598 
 533 
 418 
 505, 515 
 341 
 338 
 273 
 318 
 43 
 
 PAGE 
 
 Ncave v. Milns 551, 554 
 
 Ned ®. State 211 
 
 Neel V. Hughes 376 
 
 Neil V. Abel 223 
 
 Neill V. Hill 716 
 
 Nelson v. Andrews 654 
 
 i\ Armstrong 600, 654 
 
 V. Emerson 138 
 
 V. Leland 731 
 
 V. Pockwell 599 
 
 V. State 315 
 
 Neves d. Scott 666 
 
 Newberg i\ Farmer 42 
 
 New Brunswick v. Tiers 382 
 
 Newby v. Territory 13 
 
 Newcomb v. State 362, 500, 642 
 
 147 
 337 
 
 95 
 695 
 543 
 409 
 311 
 291 
 
 76 
 311 
 016 
 716 
 581 
 
 New England v. AVetmore 
 Newell V. Ayer 
 V. Rusk 
 New Haven v. iNIitchell 
 Newlin v. Newlin 
 Newman v. Dick 
 V. Meek 
 New Orleans v. Allbritton 
 V. Gaines 
 V. McBride 
 Newsom v. Huey 
 Newton v. Allis 
 V. Booth 
 V. Kerr 
 1). Newton 
 New York v. Graham 
 V. Green 
 V. North 
 ■2J. Waldeu 
 Nichols V. Bank 
 
 V. Bridgeport 
 ■B. Frotliingham 
 V. Goldsmith 
 V. Sixth 
 V. Turney 
 Nickle V. Williamson 
 Niles V. Brackett 
 Nill v. Comparet 
 Nims V. Bigelow 
 Nininger v. Knox 
 Nisbet V. Law son 
 Nixon V. Bullock 
 Noble V. Adams 
 Nolen V. State 
 Noltou V. Moses 
 Nooney v. ]\Iahoney 
 Nordyke v. Shearon 
 Norfleet v. State 
 Norman v. Beaumont 
 Norris v. Badger 
 V. Freeman 
 
 282 
 51 
 451 
 94 
 650 
 636 
 605 
 364 
 643 
 567 
 434, 440 
 135 
 159 
 141 
 273 
 450 
 704 
 714, 718 
 274, 280 
 32 
 643 
 322 
 297 
 41 
 91 
 472 
 125 
 735 
 240 
 240, 420 
 755 
 143, 190, 240 
 69 
 175, 214, 242 
 408 
 523 
 393 
 175, 183 
 170 
 423 
 467 
 
 656, 708,
 
 TABLE OF CASES CITED. 
 
 Ivii 
 
 Norris v. Milner 
 V. Tyler 
 Nortliern v. Bi^forcl 
 
 V. Stale 
 Norvcn V. Oury 
 Noycs «. Shoplierd 
 Klines V. Carter 
 Nutter V. Kickctts 
 Kutlino; i\ Herbert 
 Kutwell V. Tongue a 
 Nye V. jNIaxwell 
 
 O. 
 
 133, 
 
 425, 
 
 542 
 
 Oakes «. School 
 
 -0. Thornton 
 Oakeley v. Ooddeen 
 V. Sears 
 1}. Young 
 Oaldy -0. Aspinwall 
 O'Barr v. Alexander 
 O'Brien v. Hilburn 
 V. Liddell 
 O' Byrne v. State 
 O'Callaglian v. Booth 
 O'Connor v. Bradshaw 
 
 V. State 
 Odd Fellows V. Masser 
 Odell V. Sargent 
 Oelrichs v. Ford 
 Offt V. Vick 
 Offut's®. Bradford 
 
 Ogle V. State 
 0°Ha"-au v. Chnesmith 
 O'Hara v. Pennsylvania 
 
 V. Richardson 
 Ohio V. LaAvrence 
 V. jSIcCutchin 
 V. Schiebe 
 Oldham «. Staker 
 Olin V. Hungerford 
 dinger v. Shepherd 
 Oliver v. Chapman 
 V. Pace 
 V. Phelps 
 V. Springfield 
 Olney «. Brown 
 
 V. Chadsey 
 Olscott V. State 
 Onions v. Naish 
 Ophir V. Carpenter 
 Ordway v. Haynes 
 Organ v. State 
 Ormsby v. Ihmsen 
 ^) Johnson 
 Orne v. Cook 
 
 PAGE 
 PAGE I 457 
 
 lS:S"oU?Co»,non«aUyn. C. 
 
 160; „ . ' --' 
 
 358 Osceola v. Kost 
 299 1 Osborne v. Marciuand 
 5(5 ■?;. Scott 
 
 449 Osgood V. Green 
 9n ^m\ v. McConnell 
 
 286 1,. Thurston 
 
 421 Oswald D. Kennedy 
 190 240 -». Tyler 
 
 ' Ottawa fl. Graham 
 
 Overbee's 
 Overley v. Paine 
 Overman v. Cobb 
 772 Overt v. Stewart 
 432 Owen v. Chandler 
 ■111 ^■- Owen 
 
 Aoo W2 «.Shelhamer 
 
 cm\ t^.Tankersly 
 
 oo V. ^Varburton 
 
 492, 497 1 Owens v. Kanstead 
 ' 138 
 
 739. 
 6G0 
 
 321 
 485 
 389 
 733 
 149 
 731 
 572 
 555 
 290 
 230 
 40 
 24 
 733 
 296 
 258 
 40 
 609 
 
 243, 248 
 602 
 
 I Packard v. Bates 
 
 V. ISIatthews 
 ^. New Bedford 
 v. United States 
 Packer ». Heat on 
 ,.^^1 V. Packer 
 
 183 Paddleford v. Bancroft 
 26 Paddock 15. Palmer 
 
 624,625 J-lf'"''''^ 
 
 344 Page v. Carter 
 
 702 
 721 
 
 444 
 
 720 
 
 611 
 
 93 
 
 254, 385 
 13 
 
 V. Contocook 
 V. Dauvers 
 V. Horaans 
 V. Hnrd 
 v. Kinsman 
 V. Pattee 
 V. Smith 
 ■y. Winston 
 34 1 Paiges. O'Neal 
 158 I Paine v. Cowdin 
 Palmer t;. Bice 
 
 :-.Ssk" 496, «3, 539. 1;85 
 
 V. Hvde 
 V. Pi'nkham 
 V. Poppleston 
 Panitt V. Stuart 
 
 21 
 45, 456 
 662 
 189 
 447 
 492 
 230 
 637 
 226 
 273 
 
 569 
 
 653 
 
 412 
 
 248 
 
 551 
 
 318 
 
 620 
 
 607 
 
 482 
 
 449 
 
 193 
 164 
 429 
 572 
 256 
 377 
 33 
 610 
 159 
 735 
 638 
 70 
 
 Pannellv. State 
 Park V. Harrison 
 Parker v. Baker 
 
 478 
 442 
 547 
 751 
 400 
 
 157 
 739
 
 ivui 
 
 TABLE OF CASES OITED. 
 
 PAGE 
 
 Parker v. Chambers 102 
 
 r. Copelaud C22 
 
 V. FhiiS'j; 07 
 
 f. Foster 40,419 
 
 V. Uan\y 502, 519, 520 
 
 V. Ilendric 446 
 
 V. Ilornc 580 
 
 V. Jones 770 
 
 V. Jolnison 309, 457 
 
 V. Kelly 012 
 
 V. Lenian 138 
 
 V. Lewis 508 
 
 v. Morton COO 
 
 V. Smith 480 
 
 V. Thornton 173 
 
 V. Walden 472 
 
 V. Willis 703 
 
 Parker's 208 
 
 Parks V. Boston 21 
 
 V. State 87, 084 
 
 Parlby v. Parlby 402 
 
 Parmelee v. Smith 134 
 
 Parmenter v. Parmenter 023 
 
 Parr v. Burbeck 575 
 
 ■». Gibbons 470 
 
 V. Seames 160, 248 
 
 Parris v. State 380 
 
 Parrott v. Underwood 8 
 
 Parsons v. Co]iclaud 050 
 
 V. Hufl' 233, 237, 309 
 
 V. ^IcKibbin 01 
 
 Parshall v. Klinch 525 
 
 Partridge v. Gill)ert 285 
 
 V. Patterson 322 
 
 V. San Francisco 22 
 
 Paschal v. Cushmau 130 
 
 Pasley v. Kemp 381 
 
 Patchin v. Wegman 552 
 
 Pate V. Spotts 40 
 
 Patten v. Newell 204 
 
 V. People 034 
 
 Patterson v. Ball 387 
 
 V. Burnett 104 
 
 v. Colebrook 280 
 
 V. Cook 134 
 
 V. Matthews 105 
 
 ■y. iVFcClanahan 61 
 
 V. Patterson 6 24 
 
 V. People 200 
 
 Pattison v. Shaw 720 
 
 V. Wilson 518 
 
 Patten V. Gregory 46, 185 
 
 V. Hamilton 572 
 
 Patty V. Winchester 761 
 
 Paukett V. Livermore 588 
 
 Paul V. Hussey 641 
 
 V. Kuby 359 
 
 PAGE 
 
 Paul V. Perez 485 
 
 V. Williams 100 
 
 Paulding v. AVatson 613 
 
 Pawley v. IMcGimptey 547 
 
 Paxson V. Bailey 317, 340 
 
 Paj^ne v. Collier 623 
 
 V. Jacobs 453 
 
 V. Niles 661 
 
 V. Pacilic 563 
 
 Paynter v. Evans 597 
 
 Payson v. INIacomber 300 
 
 Peabody t\ Bueutillo 600, 697 
 
 Pcacham v. Carter 218 
 
 Pearce v. Burns 131 
 
 v. Chastain 590, 596 
 
 V. Jordan 124 
 
 V. Olney 593 
 
 V. Swan 722 
 
 V. Vaughn 457 
 
 V. Winter 607 
 
 Pearsall v. iSIcCartney 488 
 
 Pearson v. Chapman 338 
 
 V. Fiske 435 
 
 ?;"Grice 28 
 
 Pease v. Whitney 103 
 
 Peck V. Boggess 98 
 
 V. Hensley 24 
 
 V. State 114 
 
 Peebles v. Rand 82 
 
 Peeples v. Smith 46 
 
 Pegg V. AVarford 89, 90 
 
 Peiham v. Page 30 
 
 Pellatrcau v. Moore 108 
 
 Penhallow v. Doane 734 
 
 Penrice v. Wallis 734 
 
 Pensacola v. Nash 123 
 
 Pennsj^lvania v. Brady 12 
 
 People V. Bacon 776 
 
 V. Baker 774 
 
 V. Browne 98 
 
 V. Circuit 775 
 
 V. Coffman 84 
 
 V. Frank 90 
 
 V. Herkimer 108 
 
 V. Iloushcll 29 
 
 V. Inspector 777 
 
 V. Judges 776, 778 
 
 V. Pearson 75 
 
 V. Scott 42 
 
 Perrott v. Shearer 88 
 
 Perry v. Robinson 81 
 
 V. Ward 770, 771, 773 
 
 Persch v. Quiggle 737 
 
 Persons v. Centre 731 
 
 Petty V. Scott 35 
 
 Pharo V. Johnson 314 
 
 Phelps V. Peabody 591
 
 TABLE OF CASES CITED. 
 
 Pbclps 15. Stewart 
 
 «. Tilton 
 Pl,iladelpWai.na^- 295, 
 
 ^. llogan 
 
 ^. Howard ^^*i 
 
 V. Miller 
 
 «. Stlmpson 
 Philbrick V. Ilolloway 
 Pliilbrook V. Burgess 
 Philips I'. Fowler 
 t). Wheeler 
 
 Phillips V. Barr 
 ■«. Behn 
 ^,. Friend 
 
 ^j. Hill 
 «. Kingfield 
 -y. Russell '^~' 
 
 ■y. State 
 V. Stewart 
 Phillipsburg V. Fulmer 
 Phoenix V. Fletcher 
 Pickens V. Yarhorough 
 Pickerell i). Carson 
 Pickering v. Dowson 
 
 ^.Mizner 
 Pickwood V. Wright 
 Pierce «. Adams 
 V. Flinn 
 ■». Myrick 
 t). Negro 
 -y. Eandoli^li 
 «. Sheldon 
 -y. State 
 Pierson«.Burney 
 
 1}. David 
 Pike V. Evans 
 «. State 
 Pilcher V. Hart 
 Pilot fl. Chapman 
 pines V. State 
 Pinkston r. Greene 
 Pinneo .. Lackawanna 
 Piper V. Goodwin 
 V. Lodge 
 t). White 
 ^. AVillard 
 Piquet ». Cormick 
 Plank V. Bruce 
 
 ^ Hoffman 
 Planter's i).Kichardson 
 
 ti. Willis 
 Plate V. Carolina 
 Piatt V. Munroe 
 Platte -y.HcFarland 
 
 Pleak V. Chambers 
 Pleasant v. State 
 
 Pleasants v. Head 
 1). Scott 
 Plcvdell 15. Dorchester Ob, 
 ' Plumlcigh V. Dawson 
 1 Poagc V. Bell 
 ' -a. Koe 
 
 I Pochin V. Pawley 
 Poe V. Decker 
 ! Poguc r. Joyner 
 \ V. Shotwell 
 
 I V. State 
 
 1 Poler V. New York 
 1 Police U.Ray 
 I Polk v. State 
 ; Pollen v. Le Roy 
 ; PoUey V- Lennox 
 PoUevs V. Ocean 
 pollock V. Gilbert 
 Pomeroy «• Bank 
 1 V. Columbian 
 
 Ponder v. Cox 
 Poole fl. Devers 
 ' ». State 
 
 V. Whitecomb 
 1 Pope V. Dinsmore 
 ' V. Eakin 
 
 i\ Latham 
 V. State 
 1 Porter v. Cotney 
 
 1). Ferguson 
 ^^ Foley 
 V. Hanley 
 V. IMoflet 
 v. Padelford 
 v. Rummery 
 V. Seller 
 V. Schcrburn 
 V. State 
 -y. Vauglin 
 ! Post «. Broadman 
 ' i^. Wright 
 
 1 Potter V. Chicago 
 ' ^. Dennison 
 
 -y. Hiscox 
 v. Hopkins 
 V. Padelford 
 V. Payne 
 ^>. Thompson 
 1 Powell V. Asten 
 ' V. Bigley 
 
 t). Central 
 1). Davis 
 -». Haley 
 1 Powell V. Hannibal 
 j ^. Jones 
 
 „' Jopling 
 t-. Cesser 
 
 lix 
 
 PAGE 
 245 
 295 
 70, 585 
 573 
 G12 
 G33 
 66 
 600 
 445 
 607 
 17 
 356 
 110 
 9 
 327 
 33 
 413 
 589 
 10 
 519 
 598 
 435, 438 
 147 
 566 
 725 
 616 
 37 
 201, 213 
 140 
 308 
 658 
 11 
 603 
 504 
 666 
 367 
 83 
 234, 504, 509 
 767 
 589 
 550 
 581 
 808 
 148 
 43 
 384 
 386,487 
 583 
 43 
 461 
 713 
 270 
 1G5, 450 
 933 
 504 
 720 
 384
 
 Ix 
 
 TABLE OF CASES CITED. 
 
 Powell V. Ross 
 
 T. Stewart 
 V. Watson 
 Power V. Frick 
 Powers V. Alien 
 V. Bridu;cs 
 V. Gillespie 
 V. Lillie 
 V. Presgroves 
 V. Wrig'ht 
 Poyna v. Shotwell 
 Pralus V. Pacific 
 Prater v. Darby 
 Prathcr v. Prather 
 Pratt V. Wakey 
 v.UnW 
 V. Kitterell 
 Prattc 
 
 Prentiss v. Danalier 
 Presbury v. Commonwealth 
 Prescott V. Johnson 
 President v. Patchen 
 Preston v. Ilarvey 
 V. Keys 
 V. Lei.ijliton 
 V. Walker 
 Prettjnnan v. Waples 
 Pre wilt v. Perry 
 Price V. Alexander 
 V. Brown 
 V. Evans 
 V. Ford 
 V. Fuqnlia 
 i\ Johnson 
 V. Orange 
 V. Powell 
 V. Severn 
 V. Warren 
 Prinim v. Haven 
 Prince v. Shepherd 
 
 V. State 
 Princeton v. Gulick 
 Prior )'. Powers 
 Pritchetl ti. Overman 
 Pritchard v. Hennessey 
 
 V. Myers 
 Probate v. Hall 
 Proprs. V. Prescott 
 Prosser c. Chapman 
 Pruitt V. Cox 
 Prussel V. Knowlea 
 Pryor v. Coggin 
 V. Smyth 
 Pngh V. Maer 
 Pulkerson v. Bollinger 
 Pmnphney v. Brown 
 Purple 0. llarton 
 
 PAGE 
 
 g;]8 
 
 589, 590, GOB 
 605 
 537 
 98 
 8, 104 
 551 
 C59 
 186 
 108 
 468 
 80 
 658 
 004 
 561 
 276 
 718 
 263 
 112 i 
 155 j 
 44' 
 14 
 407, 423 
 11, 301 
 42, 272 
 286 
 742, 751 
 589, 597 
 385 
 549 
 42, 473 
 534 
 552 
 613 
 718 
 34 
 579 
 213 
 325 
 54, 58, 412 
 168 
 59 
 242 
 287 
 150 
 43, 59 
 391 
 425 
 721 
 370 
 152 
 377, 378 
 713 
 594 
 457 
 713 
 193 
 
 Purple V. Clark 
 Purinton v. Humphreys 
 Purvis V. Coleman 
 Putnam v. Bowkcr 
 V. Churchill 
 V. Crombie 
 V. Lamphier 
 Pym V. Great 
 
 Q. 
 
 Queen v. Bcrtrand 
 V. Chorley 
 V. Hepburn 
 V. Leigh 
 V. Wilts 
 
 Quin •«. Wright 
 
 Quiuebaug v. Leavens 
 V. Tar})ox 
 
 Quinn v. AVoodhouso 
 
 C^uint V. Ophir 
 
 Quinno v. Kenyon 
 
 PAGE 
 
 21 
 
 199, 213 
 
 357, 445 
 
 311 
 
 651 
 
 76 
 
 460 
 
 71 
 
 114 
 117 
 163 
 
 117 
 407 
 
 298 
 
 83 
 
 169 
 
 39 
 
 42, 448 
 
 8 
 
 R. 
 
 Rabe v. Wells 311, 345, 646 
 
 liadcliffy. Rhan 34 
 
 Rafe V. State 109 
 
 Ragland v. Wills 336 
 
 Railroad Co. v. Taffe 126 
 
 V. Washburn 3 
 
 Raine v. Bank 749 
 
 Rains v. Hood 81 
 
 ]{amadge v. Ryan 180 
 
 Ramage v. Peterman 342 
 
 Ramaley r. Leland 359 
 
 Rambo v. Wyatt 127 
 
 Ramsey v. Hamilton 79 
 
 Rand v. Dodge 413 
 
 Randall v. Doano 410 
 
 V. Parramore 59 
 
 V. Sellers 307 
 
 Randolph v. Randolph 596 
 
 V. Roser 630 
 
 r. AVoodstock 418 
 
 Randon v. Toby 98 
 
 Rnuds V. Triiii> 487 
 
 Raugular v. llnmmel 71 
 
 Rank v. Shevey 189 
 
 Rankin v. T5allanco 634 
 
 V. Harper 159 
 
 V. Thomas 868 
 
 Ranney v. Higby 318 
 
 Raphael v. Bank 158
 
 TABLE OF CASES CITED. 
 
 Kash V. Whitney 
 Ratlibono «. t ity '^*-> 
 V. llalhbone 
 
 Katcliff V. Hicks 
 RiUliii' «■ ^""'^y 
 Rawkins v. Tucker 
 ■Rawson v. Curtis _ 
 
 fl. McJuukins 
 
 Ray V. Smith 
 
 ^,. AYooters 
 Raymond v. Bfirker 
 
 i). ?lo\vlana 
 u. Nye 
 ti. Williams 
 Read V. Barker 
 V. Dews 
 r. Dickinson 
 Readfield v. Shaver 
 Reading i'. Com. 
 Reasouer v. Brown 
 Reaves v. Moody 
 Reboul V. Chalker 
 Receivers 
 Reck 11. Essex 
 Rector V. Hudson 
 Reddick v. State 
 Reddiui? v. Bartram 
 Redfield v. State 
 Redman v. Gulnac 
 Redshaw v. Brooks 
 Redwav v. Sweeting 
 Redwine v. Brown 
 Reed V. Clarke 
 V. Davis 
 V. Deerfield 
 V. DeAYolf 
 V. Harrington 
 V. ]\Ioore 
 V. Reed 
 r. Staton 
 Reel V. Reel 
 Reeves v. Delaware 
 
 V. Royal 
 Regina v. Caudwell 
 V. Chadwick 
 V. Clerk 
 ^). Dayman 
 t<. Dunn 
 -y. Johnson 
 V. Law 
 Re-'ina v. Parkinson 
 ° V. Paynter 
 V. Recorder 
 V. Russel 
 V. Staton 
 Reid V. Kirk 
 V. Mason 
 
 I Reid V. Quigley 
 
 V. Reid 
 I Reims v. People 
 Reinhart v. IMiHer 
 1 Reitenhaugh v. Ludwick 
 1 Remick v. Walton 
 1 Remington ». Congdon 
 Renauil v. Peck 
 i Renouil v. Harris 
 Reuck )v ]McGregor 
 I Rex V. Burdett 
 •D. Cook 
 ^. Courvoisier 
 11. Roberts 
 r,3y I 1). Simons 
 
 614 Reynard v. Brccknell 
 702 Reynolds v. Boston 
 149 D. Cox 
 
 ir-r V. Horine 
 
 OKI k^r\ v. Magness 
 
 Mr l-R r. State 
 
 '615 t^. Tucker 
 
 190 Rhea v. Riner 
 164 Rhines «. Baird 
 640 Rhoads v. Hoopes 
 Rliodes V. Otis 
 
 I'. Sherrod 
 I Rice V. Almy 
 ?;. Floyd 
 11. (;ashirie 
 11. HoUenbeck 
 V. Railroad 
 V. Rice 
 ij. Sims 
 V. State 
 I Rich V. Flanders 
 V. Hathaway 
 V. Jones 
 01* I ^- Penfield 
 
 oqi ! Richards y. Allen _ 
 ' i;.Curlewi3 
 
 1). Griffin 
 V. iSTuckolls 
 V. Rose 
 I). Smith 
 V. Sperry 
 u. Symes 
 i Richardson v. Backus 
 r.o2 -«• Curtis 
 
 i20 Richardson «. Farmer 
 rZ-i V. Fonts 
 
 ^oo V. Murray 
 
 ^ipl V.Roberts 
 
 MA V.Warren 
 
 oio V. AVilliams 
 
 307 Richmond v. Shippeu 
 
 Ixi 
 
 PAGE 
 759 
 297, 386 
 313 
 325 
 149 
 458 
 44, 288 
 50 
 702, 703 
 567 
 218 
 248 
 226 
 528 
 502 
 390 
 24 
 351 
 74 
 59 
 743 
 481 
 443 
 344, 351 
 48 
 138 
 283 
 97 
 270 
 708 
 
 591, 
 
 27'; 
 
 65 
 726 
 598 
 133 
 564 
 180 
 219 
 029 
 391 
 558 
 706 
 604 
 82 
 525 
 573 
 737 
 147 
 555, 588 
 .516 
 35, 393 
 407 
 367 
 577 
 50 
 413 
 600 
 599
 
 Ixii 
 
 TABLE OF CASES CITED. 
 
 
 PAGE ' 
 
 
 PAGE 
 
 Riclimond v. Woodruff 
 
 391 
 
 Robinsons. Brooks 
 
 273, 
 
 279 
 
 Riclunoiuls v. "Wurdlaw 
 
 112 
 
 V. liurton 
 
 
 387 
 
 Kickelts i\ Peudlelou 
 
 398 
 
 V. Corn 
 
 
 509 
 
 Kicks V. Slate 
 
 40 
 
 V. Cook 
 
 
 557 
 
 Ridons o. Kidcus 
 
 255 
 
 V. Exchange 
 
 
 509 
 
 Ridgoway v. Bank 
 
 589 
 
 V. Fitchburg 
 
 395, 
 
 440 
 
 Ridley i\' Buchanan 
 
 323 
 
 V. Green 
 
 
 346 
 
 Rigby V. Norwood 
 
 320 
 
 V. Hudson 
 
 
 704 
 
 lligg V. Cook 
 
 242 
 
 V. Keith 
 
 
 413 
 
 Riggins V. Brown 35, 
 
 317, 234 
 
 V. Lakcy 
 
 
 698 
 
 Riggs V. 3Ialtby 
 
 134 
 
 V. ^lagarity 
 
 
 001 
 
 V. State 
 
 303 
 
 V. Martel 
 
 03, 
 
 504 
 
 Rignoy v. llutcliina 
 
 535 
 
 V. Kaynor 
 
 
 737 
 
 Riley v. Dickens 
 
 333 
 
 V. Scott 
 
 
 133 
 
 V. Emerson 
 
 537, 558 
 
 V. State 58, 273, 
 
 587, 
 
 557 
 
 «. Monolian 
 
 440 
 
 V. Supervisors 
 
 
 690 
 
 V. Riley 
 
 319 
 
 V. Tipton 480, 
 
 040, 
 
 658 
 
 V. State 
 
 20G 
 
 Robson V. Jones 
 
 
 46 
 
 V. "Waugh 
 
 640 
 
 V. Watts 
 
 
 95 
 
 Ringgold V. Barley 
 
 747 
 
 Rochell V. Phillips 
 
 
 20 
 
 Ripley v. IMorris 
 
 030 
 
 Rochester v. Roberts 
 
 389, 
 
 657 
 
 Rising V. Conway 
 
 38G 
 
 Rockingham v. Claggett 
 
 
 728 
 
 Ritchie v. Holbrook 
 
 203 
 
 Rockwood V. Roundstone 
 
 
 370 
 
 Ritte V. Com. 
 
 299 
 
 Rodenbough v. Rosebury 
 
 
 755 
 
 Ritter v. Cnshman 
 
 132 
 
 Roddy V. Bacon 
 
 
 693 
 
 Rives V. Kuraler 
 
 039 
 
 liodgers v. Rodgers 
 
 
 595 
 
 Riviere v. McCormick 
 
 291 
 
 Rodriguez v. Comstock 
 
 
 545 
 
 Rixey «. Ward 
 
 575 
 
 Rodman v. Larue 
 
 
 776 
 
 Roach V. State 
 
 493 
 
 Roe V. Bank 
 
 
 664 
 
 V. Wade 
 
 053 
 
 V. Devys 
 
 
 173 
 
 Robb V. Ilalsey 
 
 004 
 
 V. Smyth 
 
 
 566 
 
 Robbius V. Alton 
 
 524, 520 
 
 v. Taylor 
 
 285 
 
 323 
 
 V. Appleby 
 
 734 
 
 Rogers v. Ackerman 
 
 
 311 
 
 V. ]\lount 
 
 598 
 
 V. Alexander 
 
 
 070 
 
 V. Townsend 
 
 576 
 
 V. Brooks 
 
 
 273 
 
 V. Weudovcr 
 
 243 
 
 V. Iluic 
 
 
 99 
 
 Roberts v. Austin 
 
 392 
 
 V. Kennebec 
 
 454 
 
 455 
 
 V. Cantrell 
 
 707 
 
 V. King 
 
 
 451 
 
 V. Chan 
 
 433 
 
 V. McCune 
 
 
 357 
 
 V. Cooper 
 
 075, 080 
 
 V. i\Iarshal 
 
 
 24 
 
 V. Failis 
 
 101 
 
 V. ^lurray 
 
 
 487 
 
 V. Ilefl'ncr 
 
 29, 09 
 
 V. West 
 
 
 354 
 
 V. Holms 
 
 541, 559 
 
 Rohr V. Da vies 
 
 
 453 
 
 V. Hudson 
 
 570 
 
 Roland v. ]\Iiller 
 
 
 133 
 
 v. Karr 
 
 483 
 
 Rolfe V. Rolfe 
 
 532 
 
 548 
 
 V. Landrum 
 
 008 
 
 Rollins V. Chester 
 
 
 413 
 
 V. jNIuir 
 
 504 
 
 V. Varney 
 
 
 291 
 
 V. Robeson 
 
 78 
 
 Rollison V. Hope 
 
 698 
 
 , 099 
 
 t\ Rockbottom 
 
 151 
 
 Rolston V. Langdon 
 
 382 
 
 , 383 
 
 t\ State 
 
 454 
 
 Romaine v. Kinshimer 
 
 
 090 
 
 Roberts v. Townsend 
 
 ■ 570 
 
 1-iomaine v. State 
 
 85 
 
 , 179 
 
 v. Ward 
 
 35 
 
 Romcyn v. Caplia 
 
 
 711 
 
 Robeson v. Brown 
 
 148 
 
 Roome v. Phillips 
 
 
 713 
 
 Robinoe v. Doe 
 
 498, 497 
 
 Pioquest V. Boutin 
 
 
 400 
 
 Robins r. Fowler 
 
 491, 500 
 
 Root V. King 
 
 
 581 
 
 Robinson v. Adkins 
 
 310 
 
 V. Sherwood 
 
 
 293 
 
 V. Baillead 
 
 713 
 
 Roots V. Brown 
 
 
 103
 
 TABLE OF CASES CITED. 
 
 Ixiii 
 
 
 PAGE 
 
 S. 
 
 
 Roots 1}. Tyncr 201, 
 
 283, 
 
 383 
 
 
 PAGE 
 
 Rose V. Choteau 
 
 
 707 
 
 Sackett v. Spencer 
 
 363 
 
 Rosoubaum v. State 
 
 
 311 
 
 Sadler v. Sadler 
 
 254 
 
 Rosciicnvnts v. State 
 
 
 542 
 
 Safret v. Hartman 
 
 341 
 
 Ross V. Ellsworth 
 
 
 G88 
 
 St. Louis V. ]\Iuri)hy 
 
 535 
 
 V. Hamilton 
 
 
 725 
 
 Salem v. Hays 
 
 393 
 
 V. Hayue 
 
 
 630 
 
 Salmons v. Webb 
 
 463 
 
 V. Innis 
 
 
 567 
 
 Sam V. State 
 
 213 
 
 V. Mather 
 
 
 135 
 
 Sample v. Ross 
 
 594 
 
 ■». Ross 
 
 
 80 
 
 Sampson v. Schaffer 
 
 164 
 
 Rosser v. ]\IcColly 
 
 
 372 
 
 V. Welsh 
 
 718 
 
 Roth V. Wells 
 
 
 371 
 
 Samuel v. Sayre 
 
 664 
 
 Rounds V. Humes 
 
 
 479 
 
 San, &c., V. Lewis 
 
 318 
 
 Rowan v. Runnels 
 
 
 589 
 
 Sanaker v. Cushwa 
 
 456 
 
 Rowe V. Blanchard 
 
 
 328 
 
 Sanchez v. McMahon 
 
 123 
 
 ■V. Collier 
 
 
 472 
 
 V. People 
 
 181 
 
 V. Smith 
 
 450 
 
 56G 
 
 Sanders v. Clark 
 
 13 
 
 V. State 201, 
 
 205, 
 
 237 
 
 V. Fisher 
 
 507 
 
 Rowen v. King 
 
 
 74G 
 
 V. Johnson 
 
 400 
 
 Rowland 
 
 
 786 
 
 V. State 
 
 238 
 
 Roystou V. Royston 
 
 183, 
 
 227 
 
 Sanderson v. Hagan 
 
 445 
 
 Rozar v. Burns 
 
 
 457 
 
 V. Nashua 
 
 204 
 
 Ruble V. McDonald 
 
 
 248 
 
 Sands -y. Rolshouse 
 
 654 
 
 Rucker v. Hamilton 
 
 
 426 
 
 Sanford v. State 
 
 165 
 
 Ruckersville v. Hemphill 
 
 
 298 
 
 V. Wiggin 398, 
 
 539, 543 
 
 Ruckman v. AUwood 
 
 
 671 
 
 Sanger «. County 
 
 777 
 
 Ruddick v. Ruddick 
 
 
 518 
 
 Santillan v. Mooes 
 
 54 
 
 Rudman v. Rudman 
 
 449 
 
 453 
 
 Sapp V. Newsom 
 
 334 
 
 Ruffing V. Tilton 
 
 
 227 
 
 Sarah v. State 45, 
 
 366, 516 
 
 Ruggles V. Hall 
 
 
 536 
 
 Sargeant v. French 
 
 675 
 
 Rule V. Hayden 
 
 
 624 
 
 Sargent v. Denislon 549, 
 
 563, 586 
 
 Rulou V. Lintol 
 
 
 514 
 
 V. Roberts 
 
 233 
 
 Runyan v. Price 
 
 
 396 
 
 Sarle v. Arnold 
 
 96 
 
 Runyon v. Clark 
 
 
 335 
 
 Sartain v. Hamilton 
 
 634 
 
 Rush V. Whitney 
 
 
 435 
 
 Sartor v. Mcjunkin 
 
 234 
 
 Russ V. War 
 
 
 256 
 
 ■y. Sartor 
 
 318 
 
 Russel V. Allard 
 
 
 361 
 
 Sater v. Burlington 
 
 259 
 
 V. Amador 
 
 
 378 
 
 Sauni V. Jones 
 
 645 
 
 V. Ball 
 
 170 
 
 575 
 
 Saunders v. Freeman 
 
 241 
 
 V. Conn. 
 
 
 405 
 
 V. Fuller 
 
 244 
 
 V. Ely 
 
 29 
 
 370 
 
 V. London 
 
 566 
 
 V. Plamilton 
 
 
 190 
 
 V. Johnson 
 
 400 
 
 V. Kearney 
 
 
 438 
 
 V. Woods 
 
 616 
 
 V. Sclmrmier 
 
 433 
 
 488 
 
 Saundersou v. Nashua 
 
 304 
 
 V. Union 
 
 
 576 
 
 Savage v. DeWolf 
 
 96 
 
 i\ Werntz 
 
 
 342 
 
 V. Gulliver 
 
 633 
 
 V. Wheeler 
 
 
 149 
 
 V. Owings 
 
 708 
 
 Rust V. Ware 
 
 
 605 
 
 V. Walsh 
 
 749 
 
 Rutter V. State 
 
 
 715 
 
 S a vary v. S a vary 
 
 453 
 
 Rutzen v. Farr 
 
 
 54 
 
 Savignac v. Garrison 
 
 344 
 
 Rj'an V. Anderson 
 
 
 727 
 
 Saville v. Farnham 
 
 346 
 
 V. Coi)es 
 
 
 446 
 
 Sawdon v. Craig 
 
 13 
 
 V. Jackson 
 
 93 
 
 284 
 
 Sawyer v. Hopkins 
 
 149 
 
 V. Sewell 
 
 
 391 
 
 V. 3Ierrill 
 
 888, 373 
 
 Ryckmau v. Parkins 
 
 
 582 
 
 V. Pratt 
 
 255 
 
 
 
 
 Sayer v. French 
 V. Fiuck 
 
 335 
 535
 
 1x1 V 
 
 TABLE OF CASES CITED. 
 
 
 PAGE 
 
 
 PAGE 
 
 Sayre v. Durwood 
 
 
 718 
 
 Secrest v. Best 
 
 
 65 
 
 Scammnn r. Adams 
 
 
 724 
 
 Seborn v. Williams 
 
 
 188 
 
 Bcaniu'll v. Stralile 
 
 
 457 
 
 Self 1'. Deloach 
 
 
 483 
 
 Scninton r. Tilly 
 
 
 515 
 
 Seligman v. Kalkman 
 
 
 273 
 
 BfliwH'cr i\ State 
 
 
 182 
 
 Selkirk v. Cobb 
 
 
 50 
 
 Schaulcr v. Porter 
 
 IGl 
 
 248 
 
 Selleck v. Turnpike 
 
 
 257 
 
 Sclu'llhous V. Ball 
 
 396 
 
 559 
 
 Sellers v. People 
 
 
 177 
 
 Schcnck v. fiercer 
 
 
 339 
 
 Selman v. Wolfe 
 
 
 360 
 
 Scliorpf V. Szaileczky 
 
 
 58G 
 
 Semple v. McGalagan 
 
 
 597 
 
 Schilling v. Durst 
 
 
 121 
 
 Settle V. Alison 
 
 153 
 
 417 
 
 Schindel «. Suiiian 
 
 
 717 
 
 Sevier v. McAVhorter 
 
 
 614 
 
 Sclilencker v. Risley 
 
 13G 
 
 511 
 
 Sewall V. Glidden 
 
 129 
 
 142 
 
 Schmitz V. LaulVrty 
 
 
 141 
 
 Seward v. Jackson 
 
 
 349 
 
 Schnelte v. Sutter 
 
 
 570 
 
 Sexton V. Brock 
 
 47 
 
 563 
 
 Scbouemaii v. Fegley 
 
 
 278 
 
 Seymour v. Elmer 
 
 
 556 
 
 School r. Anderson 
 
 
 780 
 
 V. .Tudd 
 
 
 728 
 
 V. Bragdon 
 
 46 
 
 437 
 
 V. Miller 
 
 
 536 
 
 V. Lynch 
 
 
 28 
 
 Shackleford v. Bailey 
 
 
 340 
 
 V. People 
 
 
 775 
 
 Shaeffer v. Kreilzcr 
 
 
 409 
 
 V. Pood 
 
 
 7(50 
 
 Shaeftier v. State 
 
 
 183 
 
 Schroder v. Crary 
 
 
 694 
 
 Shaffer v. State 
 
 
 167 
 
 Schrodt V. Bradley 
 
 
 GO 
 
 Shamokin v. Livermore 
 
 
 328 
 
 Schuchardt v. Aliens 
 
 
 275 
 
 V. Street 
 
 
 73 
 
 Schumaker v. State 
 
 156 
 
 167 
 
 Shande's 
 
 
 216 
 
 Schuyler v. Mills 
 
 
 742 
 
 Shank v. State 
 
 290 
 
 411 
 
 Sclnvall I'. Gingerick 
 
 
 445 
 
 Shanks v. Hays 
 
 
 457 
 
 ScliAvein v. Sims 
 
 
 141 
 
 Sharmau v. IVIorton 
 
 
 518 
 
 Schwenk v. Montgomery 
 
 
 39 
 
 Sharon v. Davidson 
 
 
 343 
 
 Scofield V. Settley 
 
 
 659 
 
 Sharp V. Baker 
 
 
 128 
 
 Scohej' V. Armington 
 
 
 453 
 
 V. Johnson 
 
 
 46 
 
 Scott V. Allen 
 
 
 716 
 
 V. Whijiple 
 
 
 133 
 
 V. Bennett 
 
 
 611 
 
 Sharpe v. Brice 
 
 567 
 
 584 
 
 V. Brookway 
 
 
 445 
 
 V. T raver 
 
 
 494 
 
 V. Delk 
 
 
 558 
 
 Shattuck V. Stoneham 
 
 
 191 
 
 V. Dnnlap 
 
 
 653 
 
 Shaw 
 
 
 620 
 
 V. Haines 
 
 
 1 
 
 Shaw V. Blair 
 
 
 664 
 
 V. Lilienthal 
 
 
 71 
 
 V. Davis 
 
 
 344 
 
 V. Lloyd 
 
 
 91 
 
 V. D wight 
 
 
 606 
 
 V. Lunt 
 
 
 308 
 
 V. Mosen 
 
 
 733 
 
 V. ]\Ioore 
 
 166, 
 
 392 
 
 V. Slate 
 
 10 
 
 411 
 
 V. NcAvsom 
 
 
 425 
 
 v. Sweeney 
 
 
 13 
 
 V. Russell 
 
 
 83 
 
 V. Wood 
 
 
 173 
 
 V. State 
 
 
 48 
 
 Sheaff V. Gray 
 
 
 216 
 
 V. Watkinson 
 
 
 GG 
 
 Shea V. Lawrence 
 
 
 203 
 
 V. AVhitloAV 
 
 
 Gil 
 
 Shepherd v. Commonwealth 
 
 676 
 
 Scovill V. Baldwin 
 
 
 2S1 
 
 Sheftall r. Clay 
 
 
 99 
 
 V. Cliainnan 
 
 
 G48 
 
 Sheldon v. Hartford 
 
 
 633 
 
 Scranton v. Tilley 
 
 
 515 
 
 V. Perkins 
 
 
 10 
 
 Scrimper v. Hcilman 
 
 
 450 
 
 V. Stryker 
 
 
 108 
 
 Scrodt V. Bradley 
 
 
 66 
 
 V. Wood 
 
 401 
 
 737 
 
 Scroggins v. Ilar-vrorth 
 
 
 597 
 
 Shelton v. Gill 
 
 
 GOG 
 
 V. AVilsou 
 
 
 279 
 
 Shephard v. Shephard 
 
 515, 
 
 51 G 
 
 Seal V. State 
 
 
 87 
 
 Shepherd v. Brenton 
 
 
 13 
 
 Seavy v. Dearborn 
 
 
 189 
 
 V. Burkhalter 
 
 
 465 
 
 Seawell v. Lowery 
 
 646, 
 
 667 
 
 V. Com. 
 
 
 676 
 
 Seborn v. Williams 
 
 
 156 
 
 V. Hayes 
 
 
 544 
 
 Seccomb v. Provincial 1' 
 
 \C9, 
 
 104 
 
 V. White 
 
 
 318
 
 TABLE OF CASES CITED. 
 
 Ixv 
 
 
 PACE 
 
 
 PAGE 
 
 Sheppard v. Wilson 
 
 785 
 
 Simpson v. Alexander 
 
 758 
 
 Slierer v. Collins 
 
 664 
 
 V. Blunt 
 
 13 
 
 V. Eston Bank 
 
 339 
 
 V. Bowdon 
 
 261 
 
 Sheridan v. Medara 
 
 488 
 
 V. Norton 
 
 28, 43 
 
 Shcrnuin's 
 
 CoG 
 
 V. Pitman 
 
 179 
 
 Slierinau v. Champlain 
 
 56 
 
 V. Wilson 
 
 491, 515 
 
 V. Crosby 
 
 557 
 
 Simpkins v. Wilson 496 
 
 498, 519 
 
 V. Duth 
 
 854 
 
 Sinclair v. Gray 
 
 277 
 
 V. Lovejoy 
 
 680 
 
 V. Tallinage 
 
 445, 486 
 
 V. Rolberg 
 
 757 
 
 Sisco V. Harmon 
 
 389 
 
 V. Wakeman 
 
 385 
 
 Skelley v. Kahn 
 
 356 
 
 V. Western 
 
 450 
 
 Skifflngton v. Clark 
 
 489 
 
 Sherrard v. Olden 
 
 528 
 
 Skillmau v. Holcomb 
 
 614 
 
 Sherry v. AVinton 
 
 023 
 
 Skinner v. Dewing 
 
 597 
 
 Sher-win v. Colburn 
 
 753 
 
 Skipwilh V. Hill 
 
 633 
 
 Shethar's 
 
 760 
 
 Skowhegan v. Cutter 
 
 46 
 
 Shewmako i\ Jones 
 
 387 
 
 Slack V. Wood 
 
 598 
 
 Shields r. Henry 
 
 425 
 
 Blade's 
 
 4 
 
 ShiflF V. Brownell 
 
 736, 761 
 
 Slanter «. Whitelock 
 
 95 
 
 V. Carpreth 
 
 614 
 
 V. Steamboat 
 
 758 
 
 Shillitoe®. Claridge 
 
 66, 70 
 
 SI at on V. Apperson 
 
 723 
 
 Shillito V. Theed 
 
 66 
 
 Slayton v. Jones 
 
 665 
 
 Ship Marcellus 
 
 730 
 
 Sledge V. Buhn 
 
 737 
 
 Shipp t\ Suggett 
 
 93 
 
 Sleight V. Hcnning 
 
 85 
 
 V. Wheeless 
 
 597 
 
 Slocomb V. Lurty 
 
 444 
 
 Shirk V. Cartwright 
 
 408 
 
 Slone V. Slone 
 
 514 
 
 Shirley v. Lunenburgh 
 
 637 
 
 Sloneckcr v. Garrett 
 
 847 
 
 Shobe V. Bell 
 
 162 
 
 Sloo c. Roberts 
 
 269 
 
 Shoeffler v. State 
 
 51, 156 
 
 Sluggs V. Anderson 
 
 514, 515 
 
 Shoemaker v. State 
 
 102 
 
 Small V. Bramard 
 
 801 
 
 Shoeppe v. Com. 
 
 640 
 
 V. Haskins 
 
 643 
 
 Sholts V. Judges 
 
 734 
 
 V. Rogers 
 
 138 
 
 Shook V. Thomas 
 
 738, 748 
 
 Smiley v. Burpee 
 
 228 
 
 Shore v. Jones 
 
 677 
 
 Smiser v. Robinson 
 
 621 
 
 Short V. Pratt 
 
 654 
 
 Smith V. Brannan 
 
 727 
 
 V. State 
 
 129 
 
 V. Brush 
 
 501 
 
 V. Woodward 
 
 322 
 
 V. Burn 
 
 106 
 
 Shotwell V. Taliaferro 
 
 713 
 
 V. Cansey 
 
 89 
 
 Shrever v. Livingston 
 
 710 
 
 V. Carr 
 
 260 
 
 Shrewsbury v. Smith 
 
 18 
 
 V. Cheetham 
 
 161, 248 
 
 Shrier v. Merril 
 
 600 
 
 ■». Cleveland 
 
 138 
 
 Shropshire v. Doxey 
 
 575 
 
 V. Coats 
 
 630 
 
 Shrubsole v. Sussams 
 
 398 
 
 «. Coopers 
 
 719 
 
 Shilmeway v. Fowler 
 
 520 
 
 -v. Craig 
 
 648 
 
 Shute V. Barrett 
 
 581 
 
 i>. Crane 
 
 716 
 
 Sibley v. Leffingwell 
 
 46 
 
 V. Cutf 
 
 546 
 
 Silkman ®. Boiger 
 
 514 
 
 V. Culbertson 
 
 243 
 
 Silloway v. Hate 
 
 631 
 
 V. Cunningham 
 
 748 
 
 Silver v. People 
 
 775 
 
 ■». Cushing 
 
 517 
 
 Silverman «. Foreman 
 
 395 
 
 V. Douglas 
 
 280 
 
 Silverthorne v. Fowle 
 
 318, 327 
 
 V. Emerson 
 
 422 
 
 Simmons v. Holster 
 
 480 
 
 V. Fleming 
 
 751 
 
 V. Harden 
 
 134, 142 
 
 V. Foster 
 
 747 
 
 Sims v. Boynton 
 
 323 
 
 V. Gorlack 
 
 601 
 
 V. Chance 
 
 449 
 
 V. Graves 
 
 212 
 
 V. Reed 
 
 59 
 
 V. Hannibal 
 
 277 
 
 
 
 V. Harmauson 
 
 46
 
 Ixvi 
 
 TABLE OF CASES CITED. 
 
 Smith V. Ilicks 
 
 V. Iliggans 
 
 V. Huygius 
 
 T. Hughes 
 
 V. Jack 
 
 V. Joiner 
 
 V. Keels 
 
 V. Kingslcy 
 
 V. Matthews 
 
 V. jVIechanic's 
 
 t\ Jlerrill 
 
 V. Morrison 
 
 r. j\ritchell 
 
 V. Natchez 
 
 V. Norman 
 
 V. Nortliern 
 
 V. Overby 
 
 V. Page 
 
 V. Paige 
 
 V. Parkhurst 
 
 V. Paul 
 
 V. Porter 
 
 V. Powers 
 
 v. Rice 
 
 V. Kichards 
 
 t\ Russ 
 
 V. Sasser 
 
 V. Shultz 
 
 T. Smith 
 
 V. Strader 
 
 ®. Surher 
 
 V. Tiffany 
 
 V. Trimble 
 
 V. Tucker 
 
 V. Union 
 
 V. "Williams 
 
 V. Whitman 
 
 V. Woodfine 51G, 
 
 Smithson v. United States 
 Smock V. AVhite 
 Smucker v. Larniore 
 Smyth V. Strader 
 V. Titcomb 
 Sneed v. Creath 
 
 V. Lee 
 
 v. jSIoodie 
 
 V. Osborn 
 
 V. Town 
 Snelling v. Darnell 
 Snider v. Myers 
 Snow V. Housatonic 
 
 V. Parsons 
 Snowman v. Wardwell 
 Snyder v. i\rvers 
 
 V. Wilt 
 Sockman v. Soekman 
 
 Solatre v. ^rclvillc 
 Somers v. Sh)an 
 Sorrelle v. Craig 
 Soule V. Dawes° 
 South V. Colt 
 
 1). Thomas „* 
 
 South Carolina v. Moore 
 Southcrlaud v. Phelps 
 Southern v. Dial 
 
 V. Kendrick 
 Southmayd v. Backus 
 South Western R. ]{. v. 
 Soutliwick V. Stevens 
 South worth v. Ifoag 
 
 V. Packard 
 Sowden v. Craig 
 Sowerwein v. Jones 
 Sowle V. Pollard 
 Spalding v. Mayhall 
 I Sparks v. Beavers 
 I Spaulding v. Swift 
 I «. ilallenbeck 
 
 V. Thompson 
 Spear v. Place 
 Speeding v. Young 
 Spence v. Holman 
 V. Onstoot 
 Spencer v. De Fruuce 
 V. Doane 
 V. Kinnard 
 V. Kunkev 
 v. Morgan 
 Spillars v. Curry 
 Spivey v. State 
 Spong V. Hog 
 Spray v. Thompson 
 Sprague v. Childs 
 Spring, &c. 
 Spring V. Baker 
 «. Evans 
 V. Garden 
 Springer v. State 
 Spurk V. Vangundy 
 I Spurlin v. Rutherford 
 I Spurlock «. Fulks 
 I Stacy V. Cobbs 
 Stainger v. Andrews 
 ! Sfainton v. Beadle 
 I Stalbird r. Beattie 
 Stalls V. State 
 Standley v. Miles 
 Stanley v. Nelson 
 
 V. Whipple 
 ! Stanton v. State 
 Starbird v. Eaton 
 Stark V. Barnes 
 '•. Noble 
 
 j1. 
 
 PAGE 
 
 288 
 67 
 77 
 746 
 30 
 528, 539, 559 
 6G8 
 744 
 308 
 370 
 653 
 Paulk 569 
 583 
 445 
 630 
 23 
 255 
 614 
 126 
 457 
 769 
 439 
 714 
 753 
 538 
 16 
 293 
 156 
 499 
 109 
 648 
 453 
 559 
 384 
 542 
 753 
 145 
 179 
 754 
 428 
 361 
 208 
 660 
 • 143 
 644 
 278, 314, 362 
 342 
 156 
 737 
 197 
 448 
 291 
 458 
 237, 457 
 640, 642 
 757 
 450
 
 TABLE OF CASES CITED. 
 
 Ixvii 
 
 
 PAGE 
 
 
 PAGE 
 
 Starkweather v. Loomis 
 
 
 526 
 
 State V. Cucuel 
 
 215 
 
 Starr v. Torrey 
 
 
 550 
 
 V. Damery 
 
 89, 391 
 
 State V. Alt'ord 
 
 27, 
 
 394 
 
 «. Davis 
 
 179 
 
 n. Allan 
 
 
 54 
 
 v. Dick 
 
 43, 315 
 
 V. Allen 
 
 291, 
 
 354 
 
 V. Dickinson 
 
 175 
 
 v. Almy 
 
 
 755 
 
 x>. Doon 
 
 246 
 
 V. Andrews 189, 207, 
 
 211, 
 
 342 
 
 V. Donevau 
 
 645 
 
 V. Anderson 
 
 369 
 
 453 
 
 V. Douglas 
 
 48, 244 
 
 V. Anson 
 
 
 715 
 
 V. Duncan 
 
 143 
 
 V. Anthony 
 
 
 188 
 
 V. Drawdy 
 
 316 
 
 V. Arrington 
 
 
 150 
 
 t>. Elliott 
 
 449 
 
 V. Austin 
 
 
 158 
 
 V. Engle 
 
 233 
 
 V. Ayer 185, 
 
 210, 
 
 247 
 
 V. Farrar 
 
 776 
 
 V. Baker 
 
 115 
 
 291 
 
 V. Flanders 
 
 435 
 
 «. Baldy 
 
 
 199 
 
 V. Forshner 
 
 164 
 
 V. Bank 
 
 
 268 
 
 «. Fox 
 
 179, 230, 389 
 
 V. Barron 
 
 
 316 
 
 V. French 
 
 392 
 
 V. Barton 
 
 
 233 
 
 w. Funck 
 
 130 
 
 ■y. Bean 
 
 
 509 
 
 v. Gallagher 
 
 23 
 
 V. Bennett 
 
 173 
 
 184 
 
 V. Galloway 
 
 623, 711 
 
 V. Bird 
 
 
 405 
 
 1). Gates 
 
 92 
 
 V. Biscoe 
 
 
 684 
 
 V. Garrigues 
 
 230 
 
 v. Black 
 
 
 48 
 
 V. Gemmill 
 
 360 
 
 V. Blennerhasset 
 
 
 510 
 
 V. Giles 
 
 711 
 
 V. Boatwright 
 
 
 156 
 
 V. Gillick 
 
 168, 178 
 
 V. Bodly 
 
 
 648 
 
 11. Godwin 
 
 250 
 
 ■D. Bogue 
 
 
 718 
 
 V. Goodwin 
 
 134 
 
 V. Bonchon 
 
 
 713 
 
 V. Gordon 
 
 149 
 
 1). Bonds 
 
 
 455 
 
 V. Gray 
 
 436 
 
 v. Boyle 
 
 
 623 
 
 v. Gregory 
 
 368 
 
 V. Brazie 
 
 
 212 
 
 V. Haben 
 
 775 
 
 D. Brooks 
 
 
 434 
 
 V. Haddock 
 
 751 
 
 V. Brown 
 
 
 115 
 
 v. Hall 
 
 381 
 
 V. Bryant 
 
 128 
 
 1G2 
 
 V. Hammond 
 
 481 
 
 V. Buckner 
 
 156 
 
 173 
 
 V. Hand 
 
 115 
 
 V. Buchanan 
 
 
 684 
 
 B. Hanouse 
 
 115 
 
 V. Bullard 
 
 
 199 
 
 «. Harlow 
 
 233 
 
 V. Bnnger 
 
 
 179 
 
 V. Harris 
 
 863, 403 
 
 V. Burge 374, 518, 
 
 578, 
 
 725 
 
 V. Harrison 
 
 304, 385 
 
 V. Caleb Jones 
 
 
 124 
 
 V. Harding 
 
 493 
 
 V. Camp 
 
 
 91 
 
 V. Harlow 
 
 233 
 
 ■». Carr 
 
 
 510 
 
 v. Hascell 
 
 169, 203 
 
 V. Carstaphen 
 
 
 235 
 
 V. Hays 
 
 156 
 
 V. Cason 
 
 
 751 
 
 V. Henley 
 
 506 
 
 V. Cherry 
 
 
 394 
 
 V. Herring 
 
 577 
 
 V. Christmas 
 
 
 377 
 
 V. Hill 
 
 445 
 
 «. Clark 
 
 
 34 
 
 «. Hinkle 
 
 179 
 
 V. ClaKa 
 
 
 282 
 
 V. Howard 
 
 181, 194, 247 
 
 V. Clump 
 
 
 367 
 
 V. Hudson 
 
 689, 091 
 
 V. Cockman 
 
 
 187 
 
 V. Hunt 
 
 711 
 
 V. Cole 
 
 
 168 
 
 v. Igo 
 
 233 
 
 V. Commissioners 
 
 
 74 
 
 V. Jones 165, 
 
 344, 635, 751 
 
 «. Court 
 
 
 784 
 
 V. Johnson 
 
 683 
 
 V. Cowan 
 
 
 40 
 
 ti. Judge 
 
 751, 780 
 
 v. Credle 
 
 
 751 
 
 V. Kerby 
 
 662 
 
 V. Cruise 
 
 
 453 
 
 V. Kimball 
 
 223 
 
 v. Crytes 
 
 
 450 
 
 ®. Kingsley 
 
 625
 
 Ixviii 
 
 TABLE OF CASES CITED. 
 
 State 15. Kirkc 
 V. Knight 
 V. Lainon 
 V. Laniont 
 V. Larimore 
 V. Larrabee 
 V. Lavally 
 V. Law son 
 V. Laj'ton 
 V. Lhulsey 
 r. Littlefield 
 V. Lochart 
 V. Lvuott 
 V. Lytle 85, 
 
 t. Mace 
 V. ]\Iadoil 
 v. ]Maishal 
 V. INIarshall 
 V. IMartiii 
 V. McCurry 
 V. McGrorty 
 V. ;McGuire 
 V. ISIcLauglilin 
 V. Miller 
 V. ;Monk 
 V. Woody 
 i>. ^loore 
 V. Mullen 
 V. Murph 
 V. ^lussey 
 V. Nat 
 V. Neville 
 V. Nicholas 
 V. Noblett 
 V- Noggle 
 V. Northern 
 v. Norton 
 V. Noi-\vood 
 'V. Nutting 
 V. O'Brien 
 V. Pace 
 V. Page 
 V. Patrick 
 «. Pepper 
 V. Perry 
 V. Pierce 
 1). Pike 
 V. Pile 
 v. Porter 
 V. Powell 
 V. Powers 
 V. Pratt 
 V. Prescott 
 T. Price 
 V. Prine 
 V. Hash 
 
 50, 
 
 18G, 29G, 
 
 State V. Riley 
 
 1). Pobinson 
 
 V. Polifrischt 
 
 V. Rollaud 
 
 V. Rollins 
 
 V. Rorabacher 
 
 V. Ross 
 
 V. Ruhl 
 
 V. Salge 
 
 V. Saliba 
 
 V. Sargent 
 
 V. Sater 
 
 V. Schlagel 
 
 V. Scott 
 
 V. Shaw 
 
 V. Sheadey 
 
 V. ShcUeday 
 
 V. Sherbourno 
 
 V. Shrcve 
 
 V. Shule 
 
 V. Sims 
 
 v. Simmons 
 
 V. Simons 
 
 1). Sipult 
 
 V. Smith 257, 285, 811, 867 
 
 rAGE 
 
 115 
 381 
 439 
 514 
 165 
 266 
 
 rsi 
 
 401 
 12 
 314 
 389 
 181, 453 
 266 
 29 
 189, 266 
 187 
 156, 175, 185 
 231 
 391 
 158 
 113 
 173 
 113 
 224 
 
 V. Solomons 
 
 V. Somerville 
 
 V. Spcnlove 
 
 V. Sparrow 
 
 V. Stedman 
 
 V. Taylor 
 
 V. Thompson 
 
 V. Tiluhman 
 
 V. Tindall 
 
 V. TuUer 
 
 V. Underwood 
 V. Upchurch 
 V. Updike 
 V. Upton 
 V. Valentine 
 V. Vaughan 
 V. Wadsworth 
 V. Wallace 
 •B. Ward 
 V. Weber 
 V. AVhit 
 V. Wightman 
 V. AVilliams 
 V. Wilson 
 
 751 
 372 
 114 
 201 
 173 
 115 
 802, 640 
 211 
 222, 242 
 179 
 91, 149 
 745 
 114 
 313 
 147 
 715 
 419, 420 
 1-29 
 179,184, 196 
 233 
 50, 3G8, 743 
 542 
 300, 543 
 156, 192, 435, 662, 
 739 
 
 V. Winningham 
 V. Wise 
 D. AYissmark 
 V. Woody 
 V. Wright 
 State Bank v. Hunter 
 V. McGuire 
 
 119, 120 
 157, 159 
 266 
 449 
 115 
 7 
 457
 
 TABLE OF CASES CITED. 
 
 Ixix 
 
 
 PAGE 
 
 
 PAGE 
 
 State Bank v. Wilson 
 
 453 
 
 Stokes V. Arey 
 
 
 43 
 
 State of Maine v. Call 
 
 77 
 
 V. Burrell 
 
 320 
 
 ,326 
 
 States V. Bird 
 
 158 
 
 V. Jacobs 
 
 688 
 
 699 
 
 Steadman v. Ilolman 
 
 646 
 
 Stone V. Chamberlain 
 
 764 
 
 769 
 
 Steagall v. McKellar 
 
 331 
 
 «. Danbury 
 
 
 347 
 
 Steamboat v. Buckner 
 
 263, 385 
 
 V. Spillman 
 
 
 733 
 
 V. Matthews 
 
 445 
 
 V. State 28, 88, 
 
 201, 
 
 236, 
 
 Stearns v. Allen 
 
 496 
 
 
 240 
 
 ,250 
 
 V. Fiske 
 
 21 
 
 Stoppenbach v. Fohriart 
 
 
 713 
 
 Steckel v. "Weber 
 
 726 
 
 Storer v. White 
 
 428 
 
 641 
 
 Steel V. Bridenback 
 
 601 
 
 Storey v. Brennan 
 
 
 304 
 
 Steelmau v. Steelman 
 
 415 
 
 Stotcsbury v. Smith 
 
 
 630 
 
 Steigers v. Darby 
 
 100 
 
 Stoughton V. Barrett 
 
 
 770 
 
 Steinback v. Krone 
 
 122 
 
 Stout V. Colver 
 
 
 584 
 
 Steiuman v. Tolivar 
 
 7,82 
 
 V. People 
 
 
 182 
 
 Stell V. Glass 
 
 750 
 
 Stover V. State 
 
 
 176 
 
 Stephen v. State 
 
 674 
 
 Stowell V. Goodeuow 
 
 
 380 
 
 Stephen's 
 
 162, 239 
 
 Stowers v. Milledge 
 
 
 718 
 
 Stephens v. Felt 
 
 570 
 
 Stoyel V. Westcolt 
 
 
 653 
 
 V. Hume 
 
 635 
 
 St. Paul V. Ruby 
 
 
 562 
 
 V. People 233, 
 
 239, 440 
 
 Straughan v. State 
 
 
 168 
 
 Stephenson v. Mansony 
 
 70, 71 
 
 Street v. Blue 
 
 
 405 
 
 Steppacher v. Reneau 
 
 567 
 
 V. Colver 
 
 
 136 
 
 Steptoe V. Harvey 
 
 404 
 
 V. Francis 
 
 
 702 
 
 Sterret v. Creed 
 
 40 
 
 Streeter v. Streeter 
 
 
 333 
 
 Sterrett's v. Kaster 
 
 434 
 
 Strippelman v. Clark 
 
 
 100 
 
 Stetham «. Shoultz 
 
 550 
 
 Stroh V. Hess 
 
 
 320 
 
 Stetson V. Goldsmith 
 
 601 
 
 Strong V. Daniel 
 
 
 614 
 
 Steubenyille v. Patricks 
 
 635 
 
 Stroud V. Frith 
 
 
 264 
 
 Stevens «. Hewitt 
 
 741 
 
 V. Mays 
 
 
 441 
 
 V. State 
 
 114 
 
 «. Springfield 
 
 
 450 
 
 Stevenson v. Belknap 
 
 586 
 
 Strozier v. Carroll 
 
 
 869 
 
 Steward v. Dixon 
 
 744 
 
 Stuart V. Binsse 
 
 739, 
 
 740 
 
 Stewart v. Betzcr 
 
 706 
 
 V. Simpson 
 
 
 276 
 
 D. Durret 
 
 528 
 
 Stubbs V. Leavitt 
 
 
 599 
 
 V. Fitch 
 
 149 
 
 Stuble V. Walpole 
 
 
 736 
 
 ■y. Hamilton 
 
 464, 500 
 
 Studley «. Hall 
 
 
 177 
 
 V. Small 
 
 96, 210 
 
 Stumps V. Kclley 
 
 257, 
 
 457 
 
 «. State 
 
 175 
 
 Sturgeon v. Ferron 
 
 
 499 
 
 V. Stringer 
 
 733 
 
 V. Hitchens 
 
 
 78 
 
 Stiles V. Chapman 
 
 670 
 
 Styles V. State 
 
 
 677 
 
 t\ Jackson 
 
 664 
 
 Suggs V. Anderson 
 
 514, 
 
 515 
 
 «. Lightfoot 
 
 637 
 
 V. Suggs 
 
 
 783 
 
 v. McKibben 
 
 63 
 
 Sultana v. Chapman 
 
 
 330 
 
 V. Tilford 
 
 437 
 
 Sullivan v. Adams 
 
 
 705 
 
 Still V. Glass 
 
 274 
 
 V. Collins 
 
 
 268 
 
 Stimpson v. Wilson 
 
 499 
 
 V. Dollins 
 
 208, 
 
 451 
 
 Stix V. Pump 
 
 234 
 
 V. Honacker 
 
 
 311 
 
 St. John V. Kidd 
 
 97 
 
 V. Richardson 
 
 
 484 
 
 St. Louis V. Murphy 
 
 535 
 
 Sully V. Noble 
 
 
 111 
 
 Stocking V. State 
 
 315 
 
 Sultana «. Chapman 
 
 
 330 
 
 Stockton V. Frey 
 
 745 
 
 Summerville v. Painter 
 
 
 640 
 
 V. Graves 
 
 325 
 
 Sumner v. Com. 
 
 
 684 
 
 Stockwell V. Holmes 
 
 440 
 
 V. State 
 
 
 265 
 
 Stoddard v. Long Island 
 
 59 
 
 Sumrall v. State 
 
 
 169 
 
 V. ]\lcllwain 
 
 287 
 
 Sun V. De wight 
 
 
 757 
 
 V. Newman 
 
 726 
 
 Sutcliffe v. State 
 
 
 119
 
 Ixx 
 
 TABLE OF CASES CITED. 
 
 
 ] 
 
 PAGE 
 
 
 PAGE 
 
 Sutherland r. Phelps 
 
 
 744 
 
 Taylor v. Sors])y 
 
 220 
 
 Sutlilli'. Gilbert 
 
 
 233 
 
 V. Strong 
 
 614 
 
 Sutlle V. Batie 
 
 
 173 
 
 V. Sutton 
 
 590 
 
 Suttou V. Dana 
 
 
 137 
 
 V. Wat kins 
 
 343 
 
 V. ^ladre 
 
 
 306 
 
 Teackle v. Crosl)y 
 
 750 
 
 V. Mitchell 
 
 
 66 
 
 Teas V. Robinson 
 
 705 
 
 V. Petty 
 
 
 167 
 
 Tedd V. Douglas 
 
 574 
 
 Suydam v. Huprgeford 
 
 
 735 
 
 Tefft V. Marsh 
 
 546 
 
 f. Williamson 
 
 
 643 
 
 Tegarden v. Carpenter 
 
 487 
 
 Swain v. Etling 
 
 
 837 
 
 Teller v. Wethcrcll 
 
 627 
 
 Swagi-x-rty v. Stokley 
 
 
 473 
 
 Ten Broeck v. Woolsey 
 
 528 
 
 Swamscott v. Walker 
 
 411 
 
 424 
 
 Tenney v. Butler 
 
 380 
 
 Swan V. Hyde 
 
 
 452 
 
 Terre Haute v. Vanatta 
 
 6. 579 
 
 Swartzel v. Dey 
 
 
 583 
 
 Territory v. Lutshaw 
 
 505 
 
 V. Rogers 
 
 495 
 
 528 
 
 Terry v. Robins 
 
 24 
 
 Sweaney v. Bledsoe 
 
 
 469 
 
 V. Sickles 
 
 283 
 
 S-\veem v. Steele 
 
 
 351 
 
 V. State 
 
 379 
 
 Sweeney v. Jarvis 
 
 
 7 
 
 Testard v. Neilson 
 
 635 
 
 V. People 
 
 620 
 
 , 645 
 
 Teyhnam v. Tyler 
 
 415 
 
 Swift V. Bennett 
 
 
 848 
 
 Thacher v. Jones 
 
 56 
 
 V. Whitney 
 
 
 435 
 
 Thayer v. Davis 
 
 396 
 
 Swingley r. Ilaynes 
 
 732, 
 
 740 
 
 V. Society 
 
 142 
 
 Swij)es V. Pemourssin 
 
 
 458 
 
 V. Stevens 
 
 123 
 
 Symmes v. Brown 
 
 
 321 
 
 V. United 
 V. Van Vleet 
 Thelluson v. Fletcher 
 Theobald v. Hare 
 
 129 
 224 
 565 
 539 
 
 T. 
 
 
 
 Thigpen v. Mississipi)i 
 Thomae v. Zushla 
 V. Zushlag 
 
 312 
 149 
 244 
 
 Taber v. Hutson 
 
 385, 
 
 386 
 
 Thomas v. Brashear 
 
 605 
 
 Tahor v. Staniels 
 
 
 313 
 
 V. De Graffeureid 
 
 82 
 
 Talbott V. Jones 
 
 
 136 
 
 V. Harris 
 
 577 
 
 Taliaferro v. Branch 
 
 
 598 
 
 V. Hatch 
 
 466 
 
 Tallahassee v. Macon 
 
 
 458 
 
 V. Lawsou 
 
 31 
 
 Talmadge v. Nortlirop 
 
 
 213 
 
 V. State 167, 180, 
 
 288, 386, 
 
 V. Potter 
 
 
 690 
 
 
 400, 544 
 
 Talmage v. Davenport 
 
 
 271 
 
 V. Sternheimer 
 
 388 
 
 Tamvaco v. Lucas 
 
 
 327 
 
 V. Tanner 
 
 59 
 
 Tapp V. Beverley 
 
 
 605 
 
 V. Thomas 
 
 318 
 
 Tappan v. Brucu 
 
 
 717 
 
 V. Zushla 
 
 149 
 
 V. Burnham 
 
 43, 45 
 
 Thomason v. Odum 
 
 323 
 
 Tappin v. Clarke 
 
 
 506 
 
 Thomkins v. Hill 
 
 407 
 
 Tarbox v. Fisher 
 
 
 733 
 
 Thompson v. Andrews 
 
 347 
 
 Tardy v. Murray 
 
 
 281 
 
 V. Barclay 
 
 225 
 
 Tarlington v. Spencer 
 
 
 483 
 
 V. Callison 
 
 517 
 
 Tarra v. Nuuamaker 
 
 
 258 
 
 ^\ Clendeuing 
 
 542 
 
 Tate V. Tate 
 
 
 741 
 
 V. Farr 
 
 128 
 
 Tattersall v. Haas 
 
 435, 
 
 720 
 
 V. French 
 
 629 
 
 Taunton v. Smith 
 
 
 575 
 
 V. Gallison 
 
 517 
 
 Taylor v. Betsford 
 
 212, 
 
 223 
 
 V. Lothrop 
 
 54 
 
 V. Com. 
 
 
 640 
 
 V. McConnell 
 
 658 
 
 V. Cook 
 
 
 123 
 
 V. jMcKim 
 
 704 
 
 V. Jones 
 
 
 238 
 
 v. Morris 
 
 432, 584 
 
 V. Kelley 
 
 273, 
 
 367 
 
 V. People 
 
 156 
 
 V. Morrison 
 
 
 260 
 
 V. Perkins 
 
 163
 
 TABLE OF CASES CITED. 
 
 Ixxi 
 
 PAGE 
 
 Thompson e. State 179 
 
 V. Thompson 298, 551, 
 
 734 
 
 V. Timlin 188 
 
 V. Turner 631 
 
 V. Uiidcgraff 456, 529 
 
 V. Williams 99, 100 
 
 V. Wright 311 
 
 Thompson's 162, 201, 235, 491, 509 
 
 Thomson v. Wilson 88 
 
 Thorn v. Clendcuin 620 
 
 Thorndike v. Boston 54 
 
 Thornton ». Lane 153, 461 
 
 Thorp y. Thorp 603 
 
 Thorpe d. County 689 
 
 Thrasher v. Tyack 24 
 
 Thurman v. Cameron 88 
 
 Thurmond v. Trammell 411 
 
 Thurtell y. Beaumont 66, 508, 524 
 
 Thwaites v. Sainsbury 69 
 
 Tiffin V. Forrester 445 
 
 Tifield V. Adams 150, 300, 382 
 
 Tilden v. Gardiner 586 
 
 Tiley v. Moyers 320 
 
 Tilford 1). Ramsey 684 
 
 Tilley v. Spalding 444 
 
 Tilman v. Stringer 44 
 
 Tillman v. Hatcher 498 
 
 V. Jackson 716 
 
 Tillotson V. Cheetham 581 
 
 Tillson V. Crim 498 
 
 Tilton V. Kimball 83 
 
 Timlin v. Den 208 
 
 Tindal v. Brown 333 
 
 Tipton V. Triplett 258 
 
 Tisdale v. Mitchell 396 
 
 Titcomb v. Potter 597 
 
 Tobin V. Gregg 311, 338 
 
 Todd «. Boone Co. 458, 571 
 
 V. Campbell 258 
 
 v. Fish 591, 597 
 
 «. Hale 652 
 
 V. Philhower 341 
 
 V. State 523, 545 
 
 Toledo V. Foster 358 
 
 V. Goddard 302 
 
 Tolland v. Willington 17, 658 
 
 Tolman v. Race 449 
 
 Tomkins v. Corry 461, 491 
 
 V. Easton 29 
 
 Tomlin w. Den 503 
 
 V. State 623 
 
 Tomlinson v. Wood 680 
 
 Tompkins v. Hyatt 714 
 
 Tooker v. Gormer 426 
 
 Totten's 731 
 
 Toulmin v. Lescsne 144 
 
 PAGE 
 
 Tovel'B 233 
 
 Tovey v. Young 588 
 
 Tower v. Lamb 749, 752 
 
 Townley v. Jones 550 
 
 Towns V. Riddle 395 
 
 Townsend v. Hughes 582 
 
 V. Masterson 722 
 Townshend v. Townsheud 314 
 
 Townson «. Moore 392 
 
 Trabue v. McKettrick 40 
 
 Tracy v. Card 218 
 
 V. Hartman 459 
 
 Tradesmen's v. Fairchild 634 
 
 Traherne v. Gardner 152 
 
 Train v. Collins 372 
 
 Traun v. Kiefter 273, 278 
 
 V. AYittick 146 
 
 Travis v. Barger 418 
 
 Traynor v. Johnson 361 
 
 Treauor v. Donahoe 563 
 
 Treat v. Lord 296, 385 
 
 V. Reilly 450 
 
 Treeling v. Seeley 10 
 
 Trellinger v. ^Yehh 84 
 
 Trevor ■». McKay 597 
 
 Trice V. Smith 638 
 
 Trigg V. Conway 407 
 
 Triplett V. Turner 615 
 
 Tronson v. Dent 722 
 
 Trott V. West 80, 135 
 
 Trow V. Messer 676 
 
 Troxdale v. State 177 
 
 Troxel v. Clarke 729 
 
 Troy V. Clarke 147 
 
 Trubody v. Brain 68 
 
 Truesdale v. Ford 340 
 
 Trullinger v. Webb 188 
 
 Trulock V. State 523 
 
 Trulnck v. Peeples 106 
 
 Trustees, «fec. 780 
 
 Trustees v. Crouin 82 
 
 Tucker v. Cochran 148 
 
 t. Gordon 77 
 
 V. Heniker 226 
 
 V. Peaslee 46, 384 
 
 V. Respass 336 
 V. South Kingstown 148,157 
 208, 243, 246 
 
 V. The Town 157 
 
 Tudor V. Peck 654 
 
 Tuey V. Owens 264 
 
 Tufts «. Seabury 362 
 
 Tullv V. Harioe 352 
 Tullidge V. Wade 410, 567, 586 
 
 Tunnell v. Watson 143 
 
 Turnbull v. Witherspoon 88 
 
 Turuley v. Evans 515, 543
 
 Ixxii 
 
 TABLE OF CASES CITED. 
 
 
 F 
 
 AGE 
 
 Turner e. Collins 
 
 
 670 
 
 V. Commonwealth 
 
 
 713 
 
 v. Hamilton 
 
 Ct") 
 
 GOO 
 
 V. Loler 
 
 •SOo 
 
 807 
 
 T. Ross 
 
 
 80 
 
 V. Smith 
 
 
 132 
 
 •v. Tuolumne 
 
 
 Ifil 
 
 V. "Waters 
 
 
 751 
 
 Turns v. Com. 
 
 
 160 
 
 Turquand v. Moss 
 
 
 758 
 
 Tursou V. Welch 
 
 
 123 
 
 Turton v. Burk 
 
 
 338 
 
 Tuten V. Stone 
 
 
 458 
 
 Tutton V. Andrews 57, 
 
 428 
 
 572 
 
 Tuttle V. Brown 
 
 143 
 
 311 
 
 V. Buck 
 
 
 274 
 
 V. Cooper 
 
 
 506 
 
 Tyler v. Olney 
 
 
 652 
 
 Tyrrell v. Brlstow 
 
 
 203 
 
 u. 
 
 Ubsdell v. Root 
 
 
 719 
 
 Unan.nst v. Kraemer 
 
 409 
 
 Underhill v. Thomas 
 
 602 
 
 Union v. Crary 
 
 395, 
 
 430 
 
 Union Bank v. Middlebrook 
 
 85 
 
 V. < 
 
 3ollee 
 
 288 
 
 United States v. 
 
 Battiste 
 
 817 
 
 V. 
 
 Bird 
 
 153 
 
 V. 
 
 Collier 
 
 130 
 
 V. 
 
 CoolidiJ^e 
 
 555 
 
 V. 
 
 Cornell 194, 
 
 196 
 
 7). 
 
 Dickinson 
 
 175 
 
 V. 
 
 Gilbert 
 
 119 
 
 V. 
 
 Gomez 
 
 746 
 
 V. 
 
 Harding 
 
 82 
 
 V. 
 
 Holmes 
 
 440 
 
 V. 
 
 ^Minnesota 
 
 685 
 
 v. 
 
 One Still 
 
 283 
 
 V. 
 
 Pogo-y 
 
 738 
 
 V. 
 
 Preston 
 
 738 
 
 V. 
 
 Reid 219 
 
 248 
 
 V. 
 
 Riley 
 
 816 
 
 V 
 
 Shackleford 
 
 156 
 
 1). 
 
 Shaw 
 
 820 
 
 V. 
 
 Shine 
 
 317 
 
 V. 
 
 Stowell 
 
 166 
 
 V. 
 
 AVilkinson 23, 86 
 
 Updike V. Pkillman 
 
 311 
 
 Upson V. Raiforti 291 
 
 849 
 
 Urban v. Kraig? 
 
 198 
 
 Utica V. Badger 
 
 279 
 
 Vaden v. Ellis 
 Vaise v. Delaval 
 Vale ®. Bajdc 
 Valentine v. Norton 
 Valier v. Hart 
 Vallance v. King 
 Vananken v. Beemer 
 Van Blaricum v. People 
 Vance v. Carle 
 
 V. Com. 
 
 V. Schuyler 
 Van Cort v. Van Cort 
 Vandegrift v. Page 
 Vandervoort v. Smith 
 Van Eman v. Stanchfield 
 Van Hook v. Walton 
 Van Huss v. Rainbolt 
 Vannerson v. Pendleton 
 Van Ness v. Cheeseborough 
 Van Norman v. Wheeler 
 Vannoy ?;. Givens 
 Van Orman v. Spafford 
 Vaupool ('. Commonwealth 
 Van Schoonhoven v. Corn- 
 stock 
 Vantilburgh v. Shann 
 Van Vaceter v. Brewster 
 Van Valkeuburg v. Hull 
 Vardeman v. Byrne 
 
 V. Edwards 
 Vamey v. Caswell 
 Varnum v. Taylor 
 Vasquez «. Ewing 
 Vaughn v. Fuller 
 V. Jolmson 
 V. Montgomery 
 Vedder v. Fellows 
 Veiths n. Hagge 
 Vennard v. McConnell 
 Vennum y. Harwood 
 Venus 
 
 Verbcck v. Verbeck 
 Verdier v. Trowell 
 Vernon «. Hankey 
 Verzen v. McGregor 
 Vestal V. Burditt 
 Vicary v. Farthing 
 Vick V. Maulding 
 Visher v. Webster 
 Violet V. McKay 
 Violet t V. Dale 
 V'^ivion V. Lafaj'ette 
 Voltz V. Newbert 
 Von Phul V. MiAui 
 
 V. St. Louis 
 
 p 
 
 134, 
 242, 
 
 VGE 
 
 165 
 245 
 
 66 
 628 
 633 
 388 
 168 
 
 86 
 
 20 
 225 
 
 79 
 401 
 669 
 497 
 318 
 352 
 487 
 529 
 622 
 448 
 738 
 425 
 684 
 
 675 
 722 
 
 62 
 
 22 
 501 
 498 
 761 
 224 
 322 
 597 
 591 
 458 
 330 
 
 82 
 138 
 176 
 737 
 703 
 575 
 
 16 
 313 
 638 
 218 
 671 
 382 
 411 
 653 
 
 17 
 648 
 295 
 484
 
 TABLE OF CASES CITED. 
 
 Ixxiii 
 
 W. 
 
 PAGE 
 
 Waddams v. Humphreys G 
 
 Wade V. Ilalli^au 71 C 
 
 •y. Simeon 4;59 
 
 Waddel ». Slate 457 
 
 Wadlington v. Gary 35 
 
 Wadswortli v. Harrison 455 
 
 V. Thompson 403 
 
 Waffle V. Dillenbeck 376 
 
 Waujgeuheim v. Hook 112 
 
 Wahner v. Shnlcuberger 713 
 
 Wait V. Maxwell 556 
 
 V. McNeil 405 
 
 Wakefield v. Smithwick 299 
 
 Wakeman v. Dalley 853 
 
 V. Robinson 45 
 
 V. Sprague 169 
 
 Walcott V. Keith 45, 381 
 
 AValden v. Murdock 11, 31 
 
 Waldie v. Doll 887 
 
 Walker v. Armour 6 
 
 V. Ayers G07 
 
 V. Badger 664 
 
 V. Blassiugame 70 
 
 V. Butler 835 
 
 V. Collier 268 
 
 V. Cox 6 
 
 V. Fields 415 
 
 V. Hale 38 
 
 V. Hawxhurst 408 
 
 V. Herron 355 
 
 V. Hunter 203, 217 
 
 V. Kennison 168 
 
 V. Leighton 412 
 
 9). Long 70 
 
 V. Mobile 638, 639 
 
 V. Robbins 597, 601 
 
 V. Sanborn 391 
 
 V. Smith 576 
 
 B.Taliaferro 136 
 
 V. Walker 203, 454 
 
 V. Wilson 578, 579 
 
 V. Wootten 295 
 
 Wall V. Coodenough 301 
 
 V. Provident 27, 102 
 
 Wallace v. Brown 751 
 
 V. Frazier 575 
 
 v. Hilliard 153 
 
 V. Jerone 255 
 
 V. Middlebrook 634 
 
 V. Seales 639 
 
 Wallen v. Williams 656 
 
 Waller v. Graves 494, 504, 505 
 
 Wallingford v. Dunlap 142 
 
 AValls V. Preston 22 
 
 Walsh V. Dart 112 
 
 V. Washington 319 
 
 PAGE 
 
 Walpole V. Renfroe 411 
 
 Walston V. Com. 156 
 
 AValter v. Brandies 559 
 
 Walters v. Chinn 729 
 
 Walton V. Pavne 49 
 
 V. Uiiited States 110 
 
 v. AValton 392 
 
 Walworth v. Walworth 626 
 
 Wampler v. Walker 9 
 
 Ward V. Bailey 151 
 
 ©.Fuller 391,402 
 
 V. Herring 256 
 
 V. Lathrop 672 
 
 V. Moore 639 
 
 V. Patterson 68 
 
 v. Taylor 150 
 
 v. Woodbury 66 
 
 Warden v. Hughes 272 
 
 Ware «. Robinson 711 
 
 V. Ware 392 
 
 Warne v. Baker 730 
 
 Warner v. Hardy 293, 383 
 
 v. Miltenberger's 319 
 
 V. Robertson 161, 452 
 
 Warnick v. Grosholz 326 
 
 Warren v. Hope 492 
 
 V. Jones 328 
 
 v. McHatten 391 
 
 i;. State 513,514 
 
 V. Williams 40 
 
 Warwick v. Bruce 508 
 
 V. Michael 616 
 
 Wash V. Com. 648 
 
 Washburn v. Gould 496 
 
 Washington v. Durant 620 
 
 Wassels v. Slate 391 
 
 Wassen v. Heflher 729 
 
 Watei-man v. Bristol 738, 740 
 
 Waters v. Bristol 384, 449, 489, 585 
 
 V. Gilbert 
 v. Riggin 
 V. Waters 
 Waterson v. Seat 
 Watkins v. Logan 
 v. Rogers 
 V. Watkins 
 Wats 1). Brains 
 Watson V. Gowar 
 
 ■y. Hamilton 
 V. McLaren 
 V. Sullivan 
 V. Sutton 
 V. Tarpley 
 V. Thrall 
 V. Walker 
 V. Watson 
 Watt V. Alvord 
 
 93 
 
 301 
 
 0, 12, 141 
 
 441 
 
 615 
 
 124 
 
 6 
 
 158 
 
 532 
 
 80 
 
 88 
 
 639 
 
 496 
 
 311 
 
 761 
 
 221, 355 
 
 243 
 
 898
 
 Ixxiv 
 
 TABLE OF CASES CITED. 
 
 
 PAGE 
 
 
 PACE 
 
 Watt V. Cobb 
 
 5!)9 
 
 Welsh V. State 
 
 
 515 
 
 Wattersou v. "Watterson 
 
 537 
 
 Wendall v. Satford 
 
 
 406 
 
 Wattingbam v. State 
 
 113 
 
 Wendell v. Moulton 
 
 2r,3, 
 
 449 
 
 Watts V. Gaylc 
 
 603 
 
 V. Salford 
 
 451 
 
 474 
 
 V. Greenlee 
 
 143 
 
 Werkheiser v. Werkheiser 
 
 405 
 
 V. Iloward 
 
 501 
 
 Wesley v. State 
 
 
 230 
 
 V. Jobuson 100, 308, 
 
 504, 538 
 
 West V. Duffey 
 
 
 455 
 
 Waujrb V. Andrews 
 
 756 
 
 Western v. Walker 
 
 
 260 
 
 Wayland v. Porterfield 
 
 737 
 
 V. Woods 
 
 
 589 
 
 ^Vayne v. Berry 
 
 46, 385 
 
 Weston 
 
 
 030 
 
 Ways w. Collins 
 
 451 
 
 Wetherbee v. Carroll 
 
 
 754 
 
 Weatbered v. Mays 
 
 323 
 
 Wetmore v. Plant 
 
 
 660 
 
 Wcatbers v. Dorster 
 
 33 
 
 V. Woodhouse 
 
 
 058 
 
 Weaver v. Commonwealtb 
 
 642 
 
 Wetzlar v. Northwest 
 
 
 445 
 
 V. Darby 
 
 277 
 
 Wharton v. State 
 
 
 624 
 
 Webb V. Kelly ' 
 
 434 
 
 Wheaton v. North 
 
 
 578 
 
 V. Mears 
 
 320 
 
 Wheeldon v. Lowell 
 
 
 363 
 
 V. Tbonipson 
 
 565 
 
 Wheeler v. Moody 
 
 
 296 
 
 Webber v. Davis 
 
 53 
 
 V. Pitt 
 
 
 487 
 
 V. Kinysland 
 
 413, 418 
 
 V. Schroeder 
 
 
 326 
 
 V. Stearns 
 
 346 
 
 V. Shields 
 
 
 58 
 
 V. Webber 
 
 707 
 
 V. State 
 
 
 88 
 
 Weber v. Kingsland 308, 
 
 413, 418 
 
 v. Troy 
 
 
 517 
 
 V. Zimmerman 
 
 388 
 
 Whelchell v. State 
 
 
 198 
 
 Webster v. Stearns 
 
 346 
 
 Whetmore v. Mnrdock 
 
 
 499 
 
 Weddle v. Stark 
 
 457 
 
 Whipple V. Wing 
 
 
 303 
 
 Weddiugtnu v. Sloan 
 
 711 
 
 Whirley v. Whiteman 
 
 
 358 
 
 Weed «."AVeed 
 
 642 
 
 Whitacre v. Culver 
 
 
 307 
 
 Weeding v. Mason 
 
 574 
 
 Whitaker v. Carter 
 
 
 156 
 
 Weeks v. Lowerre 
 
 408 
 
 1). Merrill 
 
 
 126 
 
 V. Robie 
 
 486 
 
 V. Perry 
 
 
 257 
 
 Weimer v. Lowery 
 
 498 
 
 Whitbeck v. Whitbeck 
 
 
 501 
 
 Weir V. McGee 
 
 343 
 
 Whitcher v. Shattuck 
 
 
 209 
 
 Weisenecker v. Kepler 
 
 716 
 
 Whitcomb v. Williams 
 
 
 107 
 
 AVeisiger v. Chisbolm 
 
 378 
 
 White V. Bailey 
 
 
 136 
 
 Welborn v. Spears 
 
 43 
 
 V. Barton 
 
 
 475 
 
 V. AVeaver 
 
 02 
 
 V. Cabal 
 
 590 
 
 608 
 
 Welch V. Butler 
 
 43 
 
 V. Cazenave 
 
 
 716 
 
 V. Van Bebber 
 
 649 
 
 V. Chadbourne 
 
 
 88 
 
 V. Watts 
 
 257 
 
 1). Clapp 
 
 764 
 
 768 
 
 V. Welch 
 
 233 
 
 V. Clayes 
 
 
 450 
 
 Weld V. Came 
 
 348 
 
 V. Crew 
 
 
 609 
 
 V. Chadbourue 
 
 459 
 
 V. Green 
 
 
 571 
 
 Weldcn V. Francis 
 
 453 
 
 ■y. Harvey 
 
 
 708 
 
 Wellington i\ Stratton 
 
 706 
 
 V. Hass 
 
 273 
 
 279 
 
 Wellboi-n v. Bonner 
 
 607 
 
 V. McCall 
 
 
 736 
 
 AVells V. Burbank 
 
 393 
 
 V. ^lalcolm 
 
 
 750 
 
 V. Clements 
 
 291 
 
 V. IMoses 
 
 
 178 
 
 V. INIelville 
 
 109 
 
 V. Newton 
 
 
 30 
 
 ■«/Prince 
 
 387 
 
 1). Palmer 
 
 
 625 
 
 V. Reynolds 
 
 747 
 
 V. Poorman 
 
 6, 13 
 
 108 
 
 V. Sanger 
 
 500, 538 
 
 V. Richmond 
 
 
 88 
 
 V. Sawyer 
 
 563 
 
 V. Ryan 
 
 
 529 
 
 1). Smith 
 
 600 
 
 D. Trinity 
 
 
 7 
 
 V. Waterhouse 
 
 444 
 
 V. Walleu 
 
 393 
 
 516 
 
 V. Walker 
 
 397 
 
 V. Walker 
 
 313 
 
 370 
 
 Welsh V. Dusar 
 
 79 
 
 ■». White 
 
 
 391
 
 TABLE OF CASES CITED. 
 
 Ixxv 
 
 ■White V. Wood 
 
 Wliite, &c. . 
 
 Whiteliouse v. Hemmant 
 
 Whiteside v. Button 
 Whitesidcs v. Russell 
 Whithead v. Keyes 
 Whitfield V. Westbrook 
 Whitman v. Boston 
 Whitmore v. Divilbis 
 Whitner v. Hamhu 
 Whiting V. Cochran 
 
 n^llwiUard..Goodenough 
 
 776 
 95 
 455 
 129, 143 
 217, 400 
 305 
 270 
 721 
 307 
 
 634, 687, 653, 
 
 654 
 
 680, 631, 663 
 
 V. Cook 
 V. Otis 
 Whitlock «. Bueno 
 Whitner v. HamUn 
 Wliitney^.Bayley 
 v. Blunt 
 V. Board 
 V. Cook 
 ti. Crim 
 V. Goin 
 V. Mills 
 V. Thayer 
 ^. Silver 
 V. State 
 -y Whitman 
 
 ^'>'"-:.Sicfctlony387,300,451 
 
 453 
 307 
 414 
 13 
 693, 694 
 663 
 874 
 385 
 756 
 391 
 768 
 336 
 217 
 389 
 
 Whittaker v. Perry 
 Whitten v. Kuox 
 Whittelsey v. Kellog 
 Whitwell V. Atkmson 
 
 Whitty V. Carr 
 
 Wichtrecht V. Fassnacht 
 
 Wickliffe v. Lynch 
 V. Sanders 
 
 Wickersham v. People 
 
 Wickwire v. State 
 Wiggiu V. Plumer 
 
 Wiggins ®- ^^■'^y 
 
 ^= V. HoUey 
 Wio-litman «. Providence 
 Witbor V. Gillicuddy 
 Wilcox V. Boothe 
 ^. Green 
 Wilder ». Sprague 
 Wildman v. Rider 
 Wildy V. Bonncy 
 Wiley v.Kelsey 
 D. State 
 1). Smith 
 Wilhelmi V. Thonngton 
 Wilkinson B.Greely 
 
 V. Griswold 
 V. Martin 
 V. Payne 
 
 «. ShatTer 
 v. Singer 
 «. Warren 
 t,. Wetherbee 
 Willcoxon V. Eason 
 Willie i).Perkii^s. 
 Williams v. Averiii 
 V. Baldwin 
 V. Bentlcy 
 v. Bradbury 
 v. Brasiield 
 1). Brickell 
 V. Buker 
 V. Burchinal 
 V. Caplinger 
 1). Coward 
 •J). Craig 
 1). Dewitt 
 v. Field 
 V. Gt. Western 
 v. Hart 
 V. Hartshorn 
 fl.Heywood 
 B. Insurance Co. 
 v. Jones 
 «. Judge 
 1). Lockwood 
 B. Mizell 
 v. O'Keefe 
 «. Pearson 
 75. People 
 v. Saunders 
 ^. Smith 
 V. State 
 
 PAGE 
 
 423 
 241, 581 
 518 
 
 83 
 555 
 351 
 
 13 
 393 
 
 519 
 326, 335, 349 
 
 607 
 
 461 
 49 
 461 
 708 
 601 
 679 
 ' 670 
 393 
 714 
 193 
 656 
 279, 349 
 328 
 
 •1 
 
 449 
 
 329 
 
 639 
 
 110 
 
 136 
 
 314 
 
 144 
 
 114 
 
 738 
 
 176 
 
 'B. Stewart 
 V. Vanderbilt 
 «. Williams 
 V. Wright 
 
 7191 Williamson ..Johnson 
 283, 431 
 
 335, 580 
 498 
 363 
 95 
 333 
 707 
 
 -y.ISfabers 
 t,. Western 
 Willing '0. Swasey 
 Willis V. Bullitt 
 V. Gordon 
 V. Lewis 
 fl. Willis 
 «n I Williston V. Fisher 
 485Pwillougl^by..Comstock 
 
 231 Wilmot V. Howard 
 ' Wilson «. Abrahams 
 -B. ^tna 
 -a. Brandon 
 -». Burks 
 1). Butler 
 v. Clarke 
 
 359 
 499 
 461 
 45, 59 
 546 
 444, 474 
 
 133 
 597 
 778 
 609 
 736 
 360 
 345 
 506 
 776 
 66, 67 
 86, 194, 195, 
 315, 316 
 636 
 489 
 360, 435 
 615 
 593 
 461 
 358 
 243 
 296, 399 
 605 
 444 
 289, 449 
 730 
 655, 656 
 363 
 199, 301 
 631 
 539 
 458 
 613 
 543
 
 Ix 
 
 XXVI 
 
 TABLE OF CASES CITED. 
 
 Wilson V. Edwards 
 T. Ehvood 
 V. Greer 
 V. Ilansoa 
 v. Ilorne 
 V. Lorame 
 V. Nations 
 V. Pearson 
 ■V. Potty 
 V. Rastall 
 V. Kobertson 
 V. Steamboat 
 V. Tatum 
 V. Terry 
 Willson V. Whitfield 
 Windham v. Kendall 
 
 V. Williams 
 Windwart v. Allen 
 Winfiekl v. State 
 Wing V. Gray 
 V. Owen 
 Wingate v. Haywood 
 Winkley v. Foye 
 Winn V. Young 
 Winnie v. Grayson 
 Winona v. Waldron 
 Winshell v. Latham 
 Winship v. Buzzard 
 Winslow V. Draper 
 Winter v. Norton 
 V. Peterson 
 V. Phelan 
 Wintz V. 3Iorrison 
 Wires v. Farr 
 AViswell V. Munroe 
 Witcher v. Shattuck 
 Witherell v. Goss 
 «. Jlaine 
 Withers v. Butts 
 Witherspoou v. Cain 
 
 V. Wallis 
 Wits V. Polehamptou 
 Wittick V. Traun 
 Wolcott V. Smith 
 Wolf «. Horton 
 V. Parham 
 V. State 
 Wolfe V. Knotts 
 Wolfran v. Eyster 
 Wood V. Barker 
 V. Brown 
 V. Cox 
 V. Cruismau 
 V. Figard 
 V. Gibbs 
 V. Goss 
 «. Gunston 
 
 PAGE 
 
 
 PAGE 
 
 
 7r,8 
 
 Wood V. JIcGuire 
 
 
 375 
 
 
 433 
 
 V. Ostrani 
 
 
 128 
 
 
 80 
 
 V. Steamboat 
 
 
 265 
 
 
 335 
 
 V. Stoddard 
 
 
 190 
 
 
 4C,2 
 
 Woodbeck v. Keller 
 
 
 363 
 
 
 273 
 
 Woodbury v. Obear 
 
 
 375 
 
 
 4o8 
 
 V. Taylor 
 
 
 336 
 
 
 34.-) 
 
 Woodcock V. Nuth 
 
 
 448 
 
 
 739 
 
 Woodman v. Dana 
 
 
 427 
 
 14 
 
 254 
 
 V. Valentine 
 
 
 98 
 
 
 593 
 
 Woodruff V. Bacon 
 
 635 
 
 661 
 
 
 39 
 
 V. Chapin 
 
 
 624 
 
 
 125 
 
 «. IIuisou 
 
 
 389 
 
 
 270 
 
 V. Luffin 
 
 
 36 
 
 
 318 
 
 V. Richardson 
 
 
 583 
 
 
 504 
 
 Woods V. Hynes 
 
 
 143 
 
 
 134 
 
 V. Rowan 
 
 
 168 
 
 
 001 
 
 Woodson V. Scott 
 
 
 567 
 
 
 469 
 
 Woodward «. Blanchard 
 
 
 340 
 
 
 343 
 
 V. Eades 
 
 
 575 
 
 
 21 
 
 V. Payne 
 
 
 490 
 
 
 599 
 
 V. Whitescarver 
 
 706 
 
 
 411 
 
 Worcester v. Harding 
 
 
 348 
 
 
 553 
 
 Wormley's 
 
 
 230 
 
 
 613 
 
 Wrey v. Thorn 
 
 
 173 
 
 
 413 
 
 Wright V. Alexander 
 
 
 510 
 
 
 272 
 
 V. Antrim 
 
 
 65 
 
 
 311 
 
 V. Bonta 
 
 
 103 
 
 233, 
 
 234 
 
 r. Bovnton 
 
 
 384 
 
 
 345 
 
 V. Cai-illo 371 
 
 451 
 
 502 
 
 
 854 
 
 V. Clark 
 
 
 263 
 
 
 48 
 
 V. Cumpsty 
 
 
 48 
 
 279 
 
 297 
 
 v. Eaton 
 
 
 591 
 
 
 674 
 
 ■y. Georgia 
 
 11, 
 
 358 
 
 
 677 
 
 V. Greenwood 
 
 449, 
 
 499 
 
 
 269 
 
 V. Haddock 
 
 '^i, 
 
 560 
 
 
 769 
 
 V. Hester 
 
 
 150 
 
 88, 
 
 345 
 
 D. Mattison 
 
 
 311 
 
 
 501 
 
 V. Milbank 
 
 
 81 
 
 
 398 
 
 ■V. Sharp 
 
 
 83 
 
 
 726 
 
 V. State 179, 238, 
 
 495, 
 
 505 
 
 524, 
 
 542 
 
 V. Talham 
 
 
 54 
 
 
 146 
 
 Wurtz V. Walton 
 
 
 495 
 
 
 41 
 
 Wyatt V. Steel 
 
 
 89 
 
 
 531 
 
 Wycth V. Richardson 
 
 
 19 
 
 
 757 
 
 Wyley v. Stanford 
 
 
 325 
 
 
 447 
 
 Wylie V. Cox 
 
 
 762 
 
 
 20 
 
 Wylly V. King 
 
 
 59 
 
 149, 
 
 151 
 
 Wyman v. Wood 
 
 
 35 
 
 
 434 
 
 Wyndham v. Williams 
 
 
 134 
 
 
 106 
 
 Wyuehamer v. People 77, 
 
 114, 
 
 115 
 
 
 488 
 
 Wyuu V. Bellas 
 
 633, 
 
 655 
 
 
 610 
 
 V. Harman 
 
 
 724 
 
 
 256 
 
 
 
 
 260, 
 
 396 
 
 Y. 
 
 
 
 671, 
 
 672 
 
 
 
 
 583 
 
 Yale V. Yale 
 
 445, 
 
 471
 
 TABLE OF CASES CITED. 
 
 Yancy v. Fcn^ick 
 Yanez v. State 
 Yantcs v. Bimlett 
 
 Yarborougli'y.Arool'i 
 D.Tate 
 V. Tlie State 
 Yate V. Swaine 
 Yater v. Huden 
 Yates v.Aldeu 
 
 t^. Brackenridge 
 t). Monroe 
 •0. State 
 V. The People 
 Yeaton-y. U. S. 
 Yeldell «. Sbuiliolster 
 Yelton V. Hawkins 
 Yonge i^. The Mutual, &c 
 Yon^ue v. BUlups 
 Youno- «• Beardsley 
 °«.Cbamberlm 
 «. Davis 
 
 pageI 
 609 
 529, 540 
 593 
 406 
 296, 468 
 710 
 533 
 530 
 853 
 274, 278 
 105 
 623 
 021 
 737 
 
 9'>9 
 
 Young V. Dendy 
 
 V. Englehara 
 D.Gibson 
 V. Ilairston 
 1). Mason 
 D. Mortens 
 v. Silkwood 
 V. Spencer 
 
 Ixxvii 
 
 PAGE 
 576 
 494 
 400 
 568 
 758 
 737 
 473 
 856 
 
 350, 377, 384 
 
 43 
 
 445 
 
 413 
 
 Zabriskie v. Smitli 
 Zei"-ler -y. Braddy 
 ° V. Scott 
 
 V. "Wells „-- 
 
 7pmr> V Wilmington, &c. , ^^^ 
 Zhnnre;iy«.RoadComin.ss.oners^ 
 
 Zimmerman «.Marcblaud 6,^5 
 Zulueta«. Vinent
 
 THE 
 
 LAW OF NEAV TRIALS.
 
 THE LAW OF NEW TRIALS. 
 
 CHAPTER I. 
 
 DEFINITION, &c., OF NEW TRIAL. 
 
 1. Definition. 
 
 2. History. 
 
 4. Importance. 
 
 6. Mode of obtaining; discretion; 
 appeal ; error, &c. 
 
 16. Form of proceeding ; rule 
 to show cause ; bill of exceptions, 
 &c. 
 
 17. Other forms of rehearing. 
 24. Habeas corpus. 
 
 § 1. A NEW trial is defined to be a re-examination of an 
 issue in fact, before a court and jury, which had been 
 tried, at least once, before the same court and jury} On 
 the other hand, Blackstone says: " If any defect of justice 
 happened at the trial, by surprise, inadvertence, or mis- 
 conduct, the party may have relief in the court above, by 
 obtaining a new trial."^(«) 
 
 ' Bouv. Law Diet.; Wharton's 
 Law Diet. 
 
 2 3 Bl. Comm. (Sharsw.) 386. 
 
 (a) In practice, in Hie United States, the italicized clauses of these 
 definitions are often departed from ; a court above frequently ordering 
 the cause to be tried anew at its own bar ; and, on the other hand, the 
 same court in which the cause was tried often having power to set aside 
 the verdict and order a new trial. The subject is very generally regu- 
 lated by express statute. A verdict cannot be set aside where no irre- 
 gularity or error is shown, and where it is in accordance with and justi- 
 fied by the evidence. Scott v. Haines, 4 Nev. 426 ; Goodall v. Batchel- 
 der, 17 N. H. 386. Nor to enable the defendant to plead matter in 
 discharge which has arisen since. 17 N. H. 386. A court is not bound 
 to grant a new trial, although both parties desire it. Aiken v. Bruen. 
 21 Ind. 137. Nor in order that both parties may be heard to better ad- 
 vantage, and the principles involved more carefully considered. Parsons
 
 2 THE LAW OF NEW TRIALS. [CH. 1. 
 
 § 2. It is said, " tlic origin of the practice of granting 
 new trials is concealed in the night of time.''^ The grounds 
 for new trial, enumerated by Coniyns,(rt) are want of 
 proper notice of trial; "if the judge certifies the verdict 
 to be contrary to the evidence ; or if he allowed what was 
 not, or denied what was, good evidence ; if the party was 
 disappointed of evidence by sickness, or other accident, 
 without his default; or the witnesses or counsel were 
 absent by surprise; if a juror declared a design to give a 
 verdict for one of the parties before the trial. But there 
 shall not be a new trial on account of the absence of a 
 witness whom the party might have had without his 
 neglect. Nor after two verdicts for the same party, with- 
 out proof of practice (6) nor upon an indictment or in- 
 formation, where the defendant is acquitted, though con- 
 trary to the direction of the judge, without proof of 
 practice; nor where the action is rigorous, as for not 
 taking care of his fire, &c. ; nor after an indictment for a 
 capital offence; or for perjury, though the witnesses were 
 absent by practice; or in quo warrcmto, where the defendant 
 is acquitted. It shall not be in an inferior court ; nor 
 shall be for want of notice, if the defendant made a de- 
 fence; nor shall be, where the verdict is with the right; 
 nor after an interlocutory judgment, nor usually in an 
 action for words or ejectment; nor after a motion in arrest 
 of judgment, or a trial at bar."^ Blackstone says:^ 
 
 ' Bouv. Law Diet. ^ 3 Bl. Comm. 388. 
 
 * 5 Com. Dig. Pleader R. 17. 
 
 V. Thrasher, 37 Ga. 694. A motion for a new trial, or in arrest of judg- 
 ment, is not the proper method of raising the question, as to the allow- 
 ance of interest on a verdict to the date of the judgment. Groves v. Ruby, 
 
 24 Ind. 418. 
 
 (a) Whose Digest is termed by Chancellor Kent " the best digest ex- 
 tant upon the entire body of the English law." 1 Kent, 509. 
 
 (&) A favorite term of the old law writers, e(iuivalent to fraud or 
 artifice, or the " any indirection" of Shakspeare.
 
 CH. I.] DEFINITION, ETC., OF NEW TRIAL. 3 
 
 "There are instances in the year-books of the reigns of 
 Edward III., Henry IV., and Henry VII., of judgments 
 being stayed even after a trial at bar, and new venires 
 awarded, because the jury had eat and drank without 
 consent of the judge, and because the plaintiff had pri- 
 vately given a paper to a juryman before he was sworn. 
 And upon these, the Chief Justice Glynn, in 1655, 
 grounded the first precedent that is reported in our books 
 for granting a new" trial upon account of excessive damages. 
 A few years before, a practice took rise in the Common 
 Pleas, of granting new trials upon the mere certificate of 
 the judge, unfortified by any report of the evidence, that 
 the verdict had passed against his opinion; though Chief 
 Justice Rolle (who allowed new trials in cases of mis- 
 behavior, surprise, or fraud, or if the verdict was noto- 
 riously contrary to evidence) refused to adopt that practice 
 in the Court of King's Bench. And at that time it was 
 clearly held for law, that whatever matter was of force to 
 avoid a verdict ought to be returned upon the postea., and 
 not merely surmised by the court ; lest posterity should 
 wonder why a new venire was awarded, without any 
 sufiicient reason appearing upon the record. But very 
 early in the reign of Charles II., new trials were granted 
 upon affidavits ; and the former strictness of the courts of 
 law^, in respect of new trials, having driven many parties 
 into courts of equity to be relieved from oppressive ver- 
 dicts, they are now more liberal in granting them; the 
 maxim at present adopted being this, that (in all cases of 
 moment) where justice is not done upon one trial, the 
 injured party is entitled to another. "(«) 
 
 § 3. Mr. Graham remarks: "As early as 1351, a venire 
 de novo w^as directed for the misbehavior of the jury. A 
 
 (a) The ruling of the court upon a demurrer cannot be assigned as a 
 reason for a new trial, nor can such ruling be reviewed by the Supreme 
 Court in connection with such a motion. Cincinnati. &c., R. R. Co. v. 
 Washburn, 25 Ind. 259.
 
 4 THK LAAV OF NEW TRIALS. [CII, I. 
 
 second instance is found in tlie year-books about 1410, 
 occasioned by the misconduct of the prevailing party in 
 tam})ering with the jury. During a period of about 250 
 years that succeeded, scarcely a vestige of the practice of 
 the court respecting new trials remains. — Down to 1598, 
 whatever was alleged as cause for a new trial must have 
 appeared of record. The first inroad upon this practice 
 was made by the Common Pleas, upon certificate of the 
 judge that the verdict passed against his opinion.* — Rolle, 
 J., held, the judgment ought not to be stayed, though it 
 had been done in the Common Pleas. — The first cause in 
 which a new trial is reported to have been 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 
 damages.^ — Prior to this, the party suffering injustice by 
 a verdict might resort to his writ of attaint, founded upon 
 an allegation of perjury in the jury having found against 
 law or evidence. — It consisted in trying the jury by an- 
 other jury of double their number, wliose verdict, if it 
 falsified the former, was followed by infamy, fine, im- 
 prisonment, forfeiture of goods, with other severe penal- 
 ties. — In cases not provided for by attaint, the complain- 
 ant 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."^ 
 
 § 4. With regard to the general importance of the right 
 to a new trial, Lord Mansfield remarks: " It is absolutely 
 necessary to justice that there should, upon many occa- 
 sions, be opportunities of reconsiderhig the cause by a 
 new trial."' So where, in an action brought by a daughter 
 against her mothei* for confining her two or three hours, 
 the jury gave a verdict for 2000/. damages; in ordering a 
 new trial. Holt, C. J., said: "The jury were shy of giving 
 their reason for their verdict, thinking they had an abso- 
 
 • Slade'3 Case, Style, 138. » Graham ou N. T. Introd. 2. 
 
 2 Style, 460. " Bright v. Eyuon, 1 Burr. 390.
 
 CH. I.] DEFINITION, ETC., OF NEW TRIAL. 5 
 
 lute power to find it as they pleased: this is a mistake, 
 for the jury are to try the cause with the assistance of the 
 jiidge.''^ And, in a late case in New York, the remarks 
 of the court well illustrate the value of this privilege. 
 "The jury have not had the best means of arriving at 
 the truth ; the plaintiffs have been deprived without their 
 fault of a very important piece of evidence differing in 
 character from that which they gave upon the trial, and 
 are now able, by this newly-discovered evidence, to re- 
 move a very just ground of suspicion that rested upon 
 their case. The case is important in amount, and in its 
 result involves the character of the principal witness. 
 The granting of a new trial does not reflect upon the 
 merits of the defence, as it does not touch the merits of 
 the action ; and if the signature of the defendant has 
 been forged, the production of the note will enable him 
 to prove it, most clearly, while to refuse the new trial 
 would be to exclude the very best evidence of which the 
 case is susceptible."^ 
 
 § 5. But, on the other hand, it is said : " Courts should 
 be very cautious how they overthrow verdicts that have 
 been given by twelve men upon their oaths."^ "It would 
 be extremely mischievous, if a verdict could be set aside, 
 because the court may think that the judge, who pre- 
 sided at the trial, has laid too much or too little stress 
 upon this or that part of the case. If it were so, the 
 number of new trials, which are a reproach to the law, 
 would be greatly increased. There can hardly be a greater 
 evil in the administration of justice, than the expense 
 and delay to which suitors are occasionally exposed from 
 the necessity of setting right those errors which some- 
 times unavoidably occur on the trial of a cause."* 
 
 ' Ash V. Ash, Comb. 357. Allen, 2 Wils. 160. See Field v. 
 
 2 Per Allen, J., Piatt v. Munroe, Campbell, 17 La. An. 30. 
 
 34 Barb. 297-8. ^ Per Maule, J., Doe v. Strick- 
 
 3 Per Wilmot, C. J., Leeman v. laud, 8 Man. G. & Sc. 742.
 
 6 THE LA"\\" OF NEW TRIALS. [CH. T. 
 
 § 6. Notwithstanding the general rules on the subject, 
 above stated (§ 2), it is said to be " diflieult to draw a line 
 as to the granting of a new trial; and i>erliaps the grant- 
 ing or not granting of it must always depend upon the 
 circumstances of the case."'(rt) Also, "that the granting 
 of a new trial, like the granting of a continuance, or 
 taking off a default, rests in the discretion of the court, 
 is fully established by all the authorities."^ And, in an- 
 
 ' Per Gould, J.. Francis v. Ba- ^ Per "Wilde, J., Graj' r. Bridge, 
 
 ker. r, Bac. Abr. G64. See Easter- 11 Pick. 18'J. Ace. Waters v. 
 
 Yinix V. Power, 12 Cal. 88 ; Laufear AVatcrs, 2C Md. 53. 
 V. Harper, 16 La. An. 383. 
 
 (a) The right is said to be liberally construed on feigned issues. 
 "Waddams v. Humphrey, 22 111. G61. Sometimes, by statute, in questions 
 of real estate, a new trial is granted as matter of right. Ewing v. Gray, 
 12 Tnd. 64 ; Walker v. Armour, 22 111. G.o8. The court will not reverse 
 au order f^ranting a new trial in an action to recover real property, as 
 being an abuse of the discretion conferred on the District Court by Rev. 
 ? 3584, where it does not appear that the negligence of the unsuccessful 
 party or his attorney pi'oduced the result, although they may not have 
 been entirely without blame in that particular, and the reversal is sought 
 on the ground of such negligence. White v. Poorman, 24 Iowa, 108. 
 In Indiana, a motion for a new trial, in an action to recover possession of 
 real property, need not be in writing. Zimmerman v. Marchlund, 23 
 Ind. 474. The provision of (Minnesota) Pub. Sts. c. 64, § 5, p. .595, 
 " that any person against whom a judgment for the recovery of specific 
 real property is rendered, may, . . . upon the payment of all costs and 
 damages recovered thereby, demand another trial," does not apply to the 
 plaintiff in ejectment. Howes v. Gillett, 10 ^liii. 397. Sect. 574 of the 
 (Kansas) Civil Code, authorizing -a new trial, of course, in certain cases, 
 does not apply to a petition for partition. Swartzel v. Rogers, 3 Kans. 
 374. Sect. 601 of the (Indiana) Code (2 G. & H. 283), which allows a 
 new trial as of right in actions to recover possession of real property, 
 &c., does not apply to suits for the specific perfornumce of contracts for 
 the conveyance of land. Walker v. Cox, 25 Ind. 271. It is held that a 
 new trial will not l)e granted in cases sounding in damages, unless par- 
 tiality, &c., be shown. Terre, &c. v. Vanatta, 21 111. 108. Nor for 
 irregidar continuances. Huntsman v. Jarvis, 17 Tex. 161. In South 
 Carolina, new trials will more readily be granted in appeals from the 
 ordinary on the probate of wills and upon questions of location, than in 
 other cases involving questions of fact. Watkius v. Watkins, 13 Rich. 
 66.
 
 CII. I.] DEFINITION, ETC., OP NEW TRIAL. 7 
 
 other case, " an infinite variety of considerations, which 
 can never be brought to the test of a strict rule, and 
 which must be referred to the discretion of the judge, are 
 the basis of determination."' 
 
 § 7. It is sometimes held, in conformity with this 
 general theory, of discretion, that the granting or refusing 
 of a new trial cannot be assigned as error, nor be made 
 the ground of ajjpeal or certiorari.^ Thus a motion for 
 a new trial either in a criminal or civil case, on the 
 ground that the verdict is against evidence or the 
 weight of evidence, is addressed to the discretion of the 
 court to which it is made, and its decision cannot be re- 
 viewed.-^a) So no exception lies to the decision of the 
 court below, overruling a motion made for a new trial on 
 the ground of the alleged interest of a juror. (In this 
 case, the decision is predicated upon the ground that the 
 question was one of fact. The point of discretion is left 
 undecided.)'* So, where a new trial has been granted, on 
 the ground that the jury were misled by the instructions 
 of the court, the Supreme Court will not interfere.^ More 
 especially, if no motion for a new trial be made in the 
 court below, neither the action of the court in giving or 
 refusing instructions, or admitting or excluding evidence, 
 
 ' Per Hosmer, C. J., White v. Carter v. Bennett, 4 Florida, 283 ; 
 
 Trinity Church, 5 Conn. 187 ; Steinman v. Tolivar, 13 Mis. 590 ; 
 
 Marsh v. Webber, 13 Miu. 109. Eii^^s v. Savage, 4 Gihii. 129. 
 
 2 Sweeney v. Jarvis, G Tex. 36 ; ^ Holiday v. People, 4 Gilm. Ill; 
 
 Houghton ».' Slack, 10 Verm. 520; Long v. Gantley, 4 Dev. & Batt. 
 
 State Bank v. Hunter, 1 Dev. 100 ; 313. 
 
 Com. «. Manson, 2 Ashm. 31 ; San- * Kinnicutt v. Stockwell, 8 Cush. 
 
 ford, &c. V. Wiggin, 14 N. H. 441 ; 73. 
 
 Gant V. Hunsucker, 12 Ired. 254; ^ Reeves «. Royal, 1 Greene, 451. 
 
 (a) It is held in Massachusetts to be a matter of discretion with the 
 judge, whether to report the evidence^ as the foundation of a motion for 
 a new trial. Miller v. Baker, 20 Pick. 28.5. (Judge Shaw, in this case, 
 gives an elaborate view of the nature and history of new trials, more 
 particularly for the reason that the verdict is against evidence.)
 
 8 THE LAW OF NEW TRIALS. [CIL I. 
 
 nor of the jury in finding the verdict, will be considered 
 by the Supreme Court. ^ And if the finding of the jury 
 is in conformity with the charge of the court, and no 
 com})laint made of the charge, the refusal to grant a new 
 trial will not be reversed, although the law may not have 
 been properly submitted, the corrective court being satis- 
 fied with the verdict.^ So a refusal to grant a new trial, 
 on the ground that the motion was not made in time, is 
 a decision not revisable on error.^ So, on a motion for a 
 new trial, a brief of the evidence had been agreed on by 
 counsel, and filed in the clerk's office at the term of the 
 court at which the rule nisi was granted, but such agree- 
 ment was not entered on the minutes of the court at that 
 term. Held, on a motion to dismiss the rule nisi for a 
 new trial, on that ground, at a subsequent term of the 
 court, the Supreme Court would not control the discretion 
 of the court below, in ordering the agreement to be en- 
 tered on the minutes, nunc pro tunc^ 
 
 § 8. The qualification, however, as already suggested, is 
 sometimes added, that the power of revision will be used 
 with great caution, and not unless the court has grossly 
 abused its discretion.^ Or unless it is made to appear that 
 the court did not exercise a sound discretion. "(a) Or 
 
 ' Rhodes v. White, 11 jMis. G23 ; 41 ; Carter v. Carter, 5 Tex. 93 ; 
 
 Lyle V. White, 11 Mis. 624. Powers v. Bridges, 1 Iowa, 235 ; 
 
 2 The Mayor, &c. v. Howard, 6 Telft v. Marsh, 1 West Va. 38. 
 Geo. 213. <^ Parrott v. Underwood, 10 Tex. 
 
 3 Ililliard v. Carr, G Ala. 557. 48 ; Bylieer v. Kinncte, G Jlis. 53 ; 
 » Hardin v. Tlie Inferior Court, Jones v. Jones, 4 Blaclcf. 140 ; Qui- 
 
 10 Geo. ii3. uroti. Kenyon, 22 Cal. 82 ; McKay 
 
 '' Hooe V. Lockwood, 3 Chand. v. Thoringtou, 15 Iowa, 25. 
 
 (ffl) In Kentucky, the Court of Appeals will sometimes refuse to reverse 
 a judgment granting a new trial, where there has been afterwards a full 
 and fair trial, and the party at whose instance it was granted has been 
 successful, though the Court of Appeals, upon the ground made, would 
 not have reversed the judgment for a refusal to grant a new trial. Cald- 
 well V. Wright, 8 B. Mon. 525. 'I'lie Hupreme Court of Missouri will 
 not disturb a verdict of the Circuit Court, unless a new trial has been
 
 en. I.] DEFINITION, ETC., OP NEW TRIAL. 9 
 
 (where the ground is that the verdict is against evidence) 
 except in a very flagrant case.^ Or unless the judgment 
 
 ' Lackey v. Lane, 7 Mis. 230. 
 « 
 
 asked in the latter, and improperly refused. Polk v. The State, 4 Mis. 
 544. The power of the Circuit Court of Missouri, in granting new trials, 
 is subject to be reviewed by the Supreme Court and its judgment therein 
 reversed. Hill w. Wilkins, 4 Mis. 86. It must be a clear case to justify 
 the reversal of a decision refusing a new trial. Bobbs v. Lambdin, 7 
 Mis. 601. In North Carolina, where it appears, from the record sent up, 
 that on the trial below a question of law was reserved by the court, to 
 which the verdict was subject, and that question was decided in favor of 
 the appellee, the verdict set aside and a nonsuit ordered, but the judge 
 fails to state what the question was ; there must be a venire de novo. 
 Brown v. Kyle, 2 Jones, 442. In Ohio, the denial of a motion for a new 
 trial will not be overruled, when the motion is based on alleged incompe- 
 tency of a juror who had expressed an opinion, and when all the evi- 
 dence which was before the court upon the determination of the motion 
 is not before the Supreme Court. Cooper v. State, 16 Ohio St. 328. 
 When no reasons for granting a new trial are assigned in the motion 
 therefor, a refusal to allow it cannot be assigned as error. Hoffman v. 
 Gordon, 15 Ohio St. 211. In Massachusetts, an order of the Court of 
 Common Pleas, granting a review, or allowing an amendment of a peti- 
 tion for a review, is subject to revision in the Supreme Judicial Court, on 
 exceptions. This decision proceeds upon the ground, that, although the 
 court below is invested by statute with discretionary power to grant a 
 review, yet questions of law, like that of amendment, may be involved 
 in the decision, and by another statute exceptions are authorized to all 
 decisions whatever in matter of law. Davenport v. Holland, 2 Cush. 1. 
 In Texas the court established a rule, for all future cases, that a new 
 trial would not be granted by the Supreme Court, on the ground that 
 the verdict was not supported by the testimony, unless there had been a 
 motion for a new trial in the court below ; although, on account of the 
 different practice which had before prevailed, the rule was not applied to 
 cases which had been already decided by the courts below. Foster v. 
 Smith, 1 Tex. 70 ; Reynolds v. Williams, 1 Tex. 311. See Wampler v. 
 Walker, 28 Tex. 598. A cause will not be remanded for a new trial, 
 upon a motion made more than five years after the rendition of the judg- 
 ment in the court below, for the reason that the statement of facts was 
 not sent up in the transcript of the record, and has been lost. Dewees 
 V. Hudgeons, 1 Tex. 192. Where a motion is made for a new trial in 
 the court below, on the ground that the charge of the court was disre-
 
 10 THE LAW OF NEW TRIALS. [CII. I. 
 
 appears, from tlu! record, or a statement of the facts proved 
 at the trial, or a review of all the testimony, to be erro- 
 
 garded by the jury, and the motion is refused, it will be presumed, on 
 
 appeal, that the charge was not disregarded by the jury, unless there is 
 evidence to the contrary. Ashcroft v. Pouns, 1 Tex. 594. A motion 
 for a new trial was made, on the ground "that one of the jurors, when 
 asked under oath, by the counsel for the defence, if he had attended the 
 trial or licard the evidence at the trial of defendant liefore the examining 
 court, replied, ' that he had not been present at the trial, and had not 
 heard any portion of the evidence in the case,' and that defendant 
 can now prove by certain witnesses that the juror was present at the 
 trial, and within hearing of the proceedings of the court as an auditor." 
 The record failed to show what occurred on the examination of the juror 
 touching his qualifications or the action of the court, except that a 
 motion for a new trial was overruled. Held, the court would revise the 
 ruling of the lower court. Shaw v. State, 27 Tex. 750. In Tennessee, 
 it is no error, to refuse to postpone a motion for a new trial, for the pur- 
 pose of procuring a witness, respecting the purport of whose testimony 
 there was a misunderstanding between the attorneys. Miller v. Roger, 
 9 ITumph. 281. In that State, when there is no evidence to sustain a 
 verdict, it is error to refuse a new trial. Davidson v. Manlove, 2 C'old. 
 346. In South Carolina, in an action of trover for a negro, the defend- 
 ant relied on a gift, and the jury found for the plaintiff against the 
 opinion of the presiding judge. While an appeal was pending, a different 
 judge sustained the gift, in an action for other property embraced in it. 
 Under these circumstances, a new trial was granted in the first case. 
 Began v. White, Dudley, S. C. 87. In New York, where a party in- 
 tends to appeal from the decision of the circuit judge, granting or re- 
 fusing a new trial, an order to stay the proceedings must be obtained 
 within eight days after the making and signing the decision. Trceling 
 V. Seeley, 22 Wend. 629. In Vermont, a motion for a new trial is ad- 
 dressed to the discretion of the court below, and their decision of it can- 
 not be revised on exceptions, but only by petition for a new trial. Shel- 
 don V. Perkins, 37 Vt. 550. In Pennsylvania, refusal of the Court of 
 Oyer and Terminer to grant a new trial after conviction for murder is an 
 exercise of discretion with which the court above cannot interfere, even 
 if the court below misapi)lied its own rule of practice. Ilowser v. Com- 
 mon\v(>alth, 51 Penn. 332 ; Durkholder v. Stahl, 58 Penn. 371. In the 
 United States Supreme Court, no " exception" lies to overruling a motion 
 for a new trial, nor for entering judgment. Pomeroy v. State Bank, 1 
 Wall. 592 ; Labor v. Cooper, 7 Wall. 565. In California, a judgment 
 cannot be reviewed on appeal from an order denying a now trial, on the
 
 CII. I.] DEFINITION, ETC., OF NEW TRIAL. 11 
 
 neous.^ Or unless the reasons and evidence for a new trial 
 appear of record, and come within recognized rules of 
 
 ' Lloyd V. McCluro, 3 Greene, 139 ; Porter v. Hanley, 5 Eng. 186. 
 
 ground of a defective complaint, or that the judgment was not warranted 
 by the findings. Jenkins v. Frink, 30 Cal. 586. When a lower court 
 has denied a new trial, the court above will not examine conflicting testi- 
 mony, to determine whether the denial was right. Preston v. Keys, 23 
 Cal. 193. An order granting a new trial will not be set aside, because 
 the lower court erred in regard to the exact question on which the order 
 was made, provided there is any other ground which justifies it. Bolton 
 V. Stewart, 29 Cal. 615; Grant v. Moore, ib. 644; Coghill v. Marks, ib. 
 673. A motion to dismiss an appeal from an order denying a new trial 
 will be sustained by the Supreme Court, where the statement has not 
 been agreed to by the respective parties, or settled and authenticated by 
 the court below, although the motion was submitted to that court without 
 a statement by the consent of the appellee. Cosgrove'v. Johnson, 30 
 Cal. 509. An appeal from an order refusing a new trial, although not 
 taken within one year after judgment, brings up the whole record, and 
 the court above has a clear right to order a new trial, the efi'ect of which 
 is to vacate the judgment. Walden v. Murdock, 23 Cal. 540. In 
 Georgia, the correctness of a verdict will not be questioned in the Su- 
 preme Court, unless a motion for a new trial has been made in the court 
 below. Wright v. Georgia, 34 Ga. 330 ; Fish v. Van Winkle, ib. 339 ; 
 Ellington v. Coleman, ib. 425 ; Crim v. Sellars, 37 ib. 324. The inter- 
 ference, by the court above, with the discretion of the court below in 
 granting or refusing a new trial, is made a duty by the act of Feb. 20, 
 1854. Augusta v. Wellborn, 31 Ga. 365. Under § 2 of the ordinances 
 of the convention of 1865, a jury could decide an action upon a contract 
 made between June, 1861, and June, 1865, upon general principles of 
 equity; and, if the judge who presided at a trial refused a new trial, the 
 Supreme Court would not readily reverse his decision. McJjaughlin v. 
 O'Dowd, 34 Ga. 485. In Mississippi, the court above will not notice the 
 action of the court below in overruling a motion for a new trial, unless 
 the bill of exceptions shows that judgment of the court to have been 
 excepted to. Foudren v. Durfee, 39 Miss. 324 ; Hicks v. Wilson, 24 
 Ark. 628. Under the statutes of Arkansas, the Circuit Court has discre- 
 tion whether to receive a motion for a new trial, although filed after the 
 prescribed time ; and the Supreme Court would be slow to interfere with 
 this discretion. But where the Circuit Court considered the statute im- 
 perative, the Supreme Court may direct the Circuit Court to u.«;e, but 
 not how to use, its discretion. Gould v. Tatum, 21 Ark. 329. Where a
 
 12 THE LAW OF NEW TRIALS. [CH. I. 
 
 law.' As a general rule, the Supreme Court will always 
 more readily control the discretion of tlie court below in 
 
 ' Jones V. Foiininiorc, 1 Iowa, 134; Shaw v. Sweeney, 2 Greene 
 
 (Iowa), 587. 
 
 case was tried entirely upon the defendant's testimony, and a verdict was 
 rendered against him by a jury of his neighbors, which the judge who 
 presided at the trial refused to set aside ; the Supreme Court declined to 
 interfere. Thompson v. Patterson, 23 Ark. 159. In Kansas, where the 
 record docs not show the evidence in the court below, on a petition for a 
 new trial, the Supreme Court will presume that the decision was based 
 on sunicient evidence. Kycndall v. Clinton, 3 Kans. 85 ; Darrance v. 
 Preston, 18 Iowa, 396. A bill of exceptions to an order of court grant- 
 ing a new trial showed that the court gave a bad reason for directing a 
 new trial, but also showed that the motion was made upon several 
 grounds, which were suffkient if true. Held, the action of the court be- 
 low would be presumed to be correct. McCreary v. Cockrill, 3 Kans. 
 37. In Nevada, if the court below grants a new trial in a criminal case 
 because it is satisfied that a continuance was improperly refused the de- 
 fendant, the court above will not overrule the decision. State v. Salge, 
 2 Nev. 321. In Oregon, the District Court and Supreme Court have 
 concurrent jurisdiction to grant new trials ; and a party who has been 
 refused a new trial by one cannot obtain it from the other. Newby v. 
 Territory, 1 Oreg. 163. In Michigan, the overruling of a motion for a 
 new trial cannot be reviewed by the Supreme Court. Pennsylvania v. 
 Brady, 14 Mich. 260 ; Final v. Backus, 18 Mich. 218. Under the stat- 
 utes of Minnesota, a defendant, after conviction upon an indictment, may 
 within a year apply directly to the Supreme Court for a new trial, and 
 that court may grant a new trial, if justice has not been done. State v. 
 Heenan, 8 Minn. 44. In Maryland, under art. 5, ? 16 of the code, enact- 
 ing that " in all cases where judgments shall be reversed or affirmed by 
 the Court of Appeals, and it shall appear to the court that a new trial 
 ought to be had, a writ of procedendo shall issue," the propriety of a 
 new trial must appear from the record before the court, at the time of 
 the reversal or affirmance of the case. McCann v. Sloan, 26 Md. 81. 
 A court of law may grant a new trial in issues transmitted to it from 
 the Orphans' Court. Waters v. Waters, 26 Md. 53. In Louisiana, a 
 judgment granting a new trial is interlocutory, and no appeal lies. Mc- 
 Willie V. Perkins, 20 La. An. 168. In Missouri, whore a case was sub- 
 mitted to the court without a jury, and the court decided that the plain- 
 tiff was not entitled to recover, and, without entering judgment of record, 
 continued the case, and permitted the plaintiff to amend his petition, 
 and at a subsequent term the cause was tried again ; held, the action of
 
 CH. I.] DEFINITION, ETC., OP NEW TRIAL. 13 
 
 refusing a new trial, than in granting it, for the reason 
 that the refusal to grant a new trial operates as a final 
 adjudication of the rights of the parties.^ 
 
 ' Oliver v. Pace, 6 Geo. 185 ; 1 Wash. TeiT. 13 ; McGregor v. 
 
 Shepherd «. Brenton, 15 Iowa, 84; Christie, 37 Geo. 557; White v. 
 
 Whitney v. Bhmt, ib. 283 ; McNair Poorman, 24 Iowa, 108 ; Eobinson 
 
 V. McComber, ib. 3G8 ; House v. v. Bacon, ib. 40'J. 
 Wright, 23 Ind. 383; Gore». Moses, 
 
 the court was simply an exercise of the power to grant a new trial and 
 would not be reviewed. Simpson v. Blunt, 42 Mis. 542. In Iowa, to iu- 
 . terfere with the.decision of the court below in granting a new trial, the 
 court above will require a clearer showing of abuse of judicial discretion, 
 or legal error, than it would to reverse a refusal of a new trial. Chapman 
 V. Wilkinson, 22 Iowa, 541. An order of an inferior court, setting aside 
 a verdict as against the evidence, will not be interfered with by the Su- 
 preme Court, unless there is a conclusive preponderance of testimony in 
 favor of the verdict. Burlington v. Green, 21 Iowa, 335. The court 
 below having granted a new trial, because the defendant had been pre- 
 vented by accident, and without negligence on his part, from interposing 
 a good defence ; the Supreme Court refused to interfere on the ground 
 of newly-discovered evidence, as the statement of facts in the defendant's 
 affidavit in support of his motion for the new trial authorized the infer- 
 ence that there had been no abuse of discretion. Sanders v. Clark, 22 
 Iowa, 275. Where it does not affirmatively appear that all the evidence 
 is in the transcript, the presumption is that the court below had sufficient 
 evidence to sustain its order granting a new trial upon a motion therefor, 
 on the ground of newly discovered evidence, accident, surprise, and 
 fraud. Sawdon v. Craig, 21 Iowa, 580. The appellate court will not 
 interfere with the granting or refusing a new trial upon the ground of 
 insufficient evidence, unless the whole case is presented by the record. 
 Barker v. Brown, 15 Iowa, 70. Nor where a motion for a new trial, on 
 the ground that the instructions to the jury were partly written and 
 partly oral, alleged, that the party moving supposed at the time that the 
 instructions were all in writing, but, as soon as he ascertained the fact, 
 made this motion. Head v. Langworthy, 15 Iowa, 235. The discretion- 
 ary power to grant a new trial, given by the county court act, 9 and 10 
 Vict. c. 95, § 89, is not interfered with by the 141st of the county court 
 rules, made under sect. 12, of the 12 and 13 Yict. c. 101, which is merely 
 a directory rule of practice. Therefore, notwithstanding the omission to 
 give the seven days' notice required by such rule, the judge has juris- 
 diction to entertain an application for a new trial. Carter, 30 Eng. Law
 
 14 THE LAAV OF NEW TRIALS. [CII. I. 
 
 § 9, The following remarks of eminent judges adopt 
 this restricted view of judicial discretion. 
 
 § 9a. " That power — to set aside a verdict — is not a 
 matter of arbitrary discretion, but must be exercised in 
 accordance with established rules and the settled course 
 of the court."' 
 
 § 96. " Though this motion for a new trial is an appli- 
 cation to the discretion of the court, it must be remem- 
 bered that the discretion to be exercised on such an 
 occasion is not a wild but a sound discretion, and to be 
 confined within those limits within which an honest man, 
 competent to discharge the duties of his office, ought to 
 confine himself. And that discretion will be best exer- 
 cised by not deviating from the rules laid down by our 
 predecessors ; for the practice of the court forms the law 
 of the court. "^ 
 
 § 10. A court has no discretionary power, in opposition 
 to the settled principles of law and equity .^ 
 
 § 11. In another case a distinction is made between 
 judicial and arbitrary discretion.^ 
 
 § 12. "An application for a new trial 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."* 
 
 ' Per Bellows, J., Cummings v. ^ Per Brevard, J., Hudson v. 
 
 White, &c., 43 N. IT. ll.'). Williamson, 1 S. C. Con. ;;C0. 
 
 2 Per Lord Kinyon, Wilson v. '^ Per Ashliurst, .J., Edniondson 
 
 Rastall, 4 T. K. 753. v. Macliell, 2 T. 11. 4. 
 
 * Per WahvortU, Cli., President, 
 &c. V. Patclien, 8 Wend. 47. 
 
 and P]q. 171. If a cause, brought in a superior court, is tried in a county 
 court by the judge's order, the jurisdiction to grant a new trial remains 
 in the superior court. Balmforth v. Pledge, Law Rep. 1 Q. B. 427.
 
 en. I.] DEFINITION, ETC., OF NEW TRIAL. 15 
 
 § 13. " Motions for new trials are addressed to the dis- 
 cretion of the court, whether based upon the weight of 
 evidence, surprise, or newly-discovered evidence, or the 
 fact that the party has been deprived of his evidence by 
 accident or other like grounds. In modern practice they 
 are liberally granted, in furtherance of justice. The dis- 
 cretion spoken of is said to be a legal discretion, not arbi- 
 trary, and yet it is not governed by fixed rules, for then 
 there were no discretion. Lord Mansfield says that 
 'discretion, when applied to a court of justice, means 
 sound discretion, guided by law. It must be governed by 
 rule, not by humor ; it must not be arbitrary, vague, and 
 fanciful, but legal and regular.' "^ 
 
 § 14. "If they grant a new trial, their decision upon 
 the merits is not subject to a revision; yet, if they grant 
 a new trial in a case where they had no legal authority to 
 do so, it is error. "^ 
 
 § 15. "An improper exercise of discretion, as in refusing 
 a new tiial, &c., is not a ground for a writ of error. But 
 where palpable injustice has been done by an inferior 
 jurisdiction, in the exercise of a discretionary power, in 
 opposition to the settled principles of law and equity, 
 their proceedings may be corrected either by certiorari or 
 mandamus. ''\a) 
 
 § 16. In England, the first movement towards a new 
 trial is in the form of a motion to show cause why a new 
 trial should not be granted. (6) The practice does not pre- 
 
 ' (Rex V. Wilkes, 4 Burr. 2539) ; 2 Per Phelps, J., Houghton v. 
 per Allen, J., Piatt v. Munroe, 34 Slack, 10 Vemi. 520. 
 Barb. 292-3. » Per Wahvorth, Ch., President, 
 
 &c. ■». Patchen, 8 Wend. 47. 
 
 (a) In Illinois and Mississippi, the granting and refusing of new trials 
 are by statute made subject to writs of error. Smith v. Shultz, 1 Scam. 
 490 ; Miss. Ses. L. I 109. 
 
 {h) In Georgia, it is no error to grant a rule nisi, to show cause why
 
 16 THE LAW OF NEW TRIALS. [CH. I. 
 
 vail in the United States; and in reference to it the follow- 
 ing remarks are made in an English case: " A rule to show 
 cause why there should not be a now 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 liti- 
 gation to an enormous degree. Value alone is not a 
 ground for granting a new trial, although it frequently 
 weighs in granting a rule."^ 
 
 § 17. The following points of distinction may be no- 
 ticed, between a new trial and other forms of rehearing. 
 
 § 18. In the United States, the probably prevailing mode 
 of application for a new trial is by hill of excejytions. In 
 a late case in Massachusetts it is remarked: "Exceptions 
 are in effect nothing more than a motion for a new trial 
 on the ground of error in law, the only difl'erence between 
 the two being that the latter is addressed to the discre- 
 tion of the court before which the case was tried, while 
 
 I Per BuUer, J., Vernon i'. Han- key, 2 T. R 118. See Odell v. 
 
 Sargent, 3 Kans. 80. 
 
 a new trial should not be granted. Spence v. Ilolraan, 30 Ga. 646. 
 Such rule may be moved for without previous notice. And, when granted, 
 if the adverse party agrees to a brief of evidence, but objects that he 
 has not been served with notice, it is not error to postpone the hearing 
 to the next term. Gauldin v. Crawford, 30 Ga. 674. Where a statute 
 provides, that a statement on motion for a new trial shall be settled by 
 the judge upon notice, if it is not agreed to by the adverse party, it is 
 not necessary that he should be present at such settlement, if he had 
 notice. Where the statute does not specify the time within which pro- 
 posed amendments shall be made or filed, it is for the court to specify the 
 time. A statement must be certified as correct by the judge or the 
 parties. It must specify the particulars in which the evidence is alleged 
 to be insufficient, and the errors upon which the application relies. Vil- 
 hac V. Biven, 28 Cal. 409.
 
 ClI. I.] DEFINITION, ETC., OF NEW TRIAL. 17 
 
 the former lie as a matter of right to the court for the 
 correction of errors."'(a) 
 
 § 19. In England, a party cannot move for a new trial 
 upon a point which might have been included in excep- 
 tions previously tendered, without abandoning the excep- 
 tions.^ 
 
 § 20. It is held that a motion for a new trial is the 
 proper remedy for error in admitting or rejecting testi- 
 mony, or in the charge of the judge to the jury ; a motion 
 in en-or, for errors in the declaration, pleadings, and judg- 
 ment.^(&) So a new trial will be granted, where judgment 
 was rendered upon a point reserved, which did not appear 
 on the record.* But, in general, an error apparent on the 
 record cannot be taken advantage of on a motion for a 
 new trial.* 
 
 § 21. In 'New York, the Court of Apyeals has no power 
 to review a decision of facts. Where a question of fact 
 enters into the decision of a motion for a new trial, the 
 proper course is to submit to a new trial, and not appeal.^ 
 
 § 22. In general, a motion in arrest of judgment affirms 
 
 ' Per Bigelow, C. J., Seccomb v. 444 ; Vivion v. Lafayette County, 
 
 Provincial, >S:c., 4 Allen, 154. See ib. 453. 
 
 Meeker v. Turner, 8 Dutch. 2G2. ■» Dunett v. Barksdale, 2 Dev. 
 
 2 Adams v. Andrews, 15 xVd. & 251. 
 
 Ell. N. S. 1001. 5 Beers v. Broome, 4 Conn. 247. 
 
 3 Tolland ti. Willington, 26 Conn. ^ Miller v. Scliuyler, 20 N. Y. (6 
 578 ; Pogue «. The State, 13 Mis. Smith) 522. 
 
 [a) In reference to the proceeding by a Case on the Report of the 
 Judge, see Banchor v. Mansel, 47 Maine, 58. 
 
 (6) See p. 1, n.; chap. 2, ? 1. In some of the States, this distinction does 
 
 not prevail ; the technical term of error being applied to those grounds of 
 
 exception and applications for rehearing, which ordinarily fall under the 
 
 head of neto trial. In Connecticut, the court above advise a new trial. 
 
 2
 
 18 THE LAW OF NEW TRIALS. [CII. I. 
 
 the verdict, and precludes a motion for a new trial. ^ (See 
 Cluip. 2.) 
 
 § 23. "Tlie UTit ofrcvieiD was unknown at common law, 
 and seems to have been borrowed from courts of equity, 
 where it was in the nature of a writ of error, its object 
 beino- to procure a reversal or alteration of a decree upon 
 a former bill, which decree had been signed and enrolled. — 
 A distinct and independent proceeding, commenced by- 
 writ, and not necessarily in the court where the judgment 
 reviewed was rendered, and not operating to vacate the 
 judgment, or even as a supersedeas or stay of execution. 
 In these respects it is the same, whether brought as of 
 right or by grant upon petition. "-((() 
 
 > Shrewsbury v. Smith, 13 Ind. « Per Bellows, J., Barron v. 
 317. Jackson, 42 N. II. 423. 
 
 (a) The following recent cases illustrate the somewhat peculiar prac- 
 tice in the State of New York: — 
 
 ISIotion for leave to open a case after judgment, to prove a lien. This 
 lien was held at the trial not to be shown, by proof of the pendency of 
 proceedings in the Court of Common Pleas, according to the statute, to 
 bring a previous lien to a close, and thus give to the mover a share in 
 the fund arising from the sale of the premises ; which fund was in court, 
 awaiting the event of an action by the owner against several claiming 
 liens, to ascertain their amount and priority and liquidate them. Held, 
 on motion for a new trial, that an order denying it was therefore appeal- 
 able, and the delay in making the motion had not placed the opposing 
 party in any worse position, or deprived him of any advantage which he 
 ought in justice to have or keep; and, as the failure to produce the evi- 
 dence at the trial arose from the mistaken conviction of counsel that the 
 proof produced was sufficient, and no injustice would result, such motion 
 should be allowed. Levy v. Joyce, 1 Bosw. C'22. In a late case in New 
 York, a statute of 1860, entitled "an act in relation to capital punish- 
 ment, and to provide for the more certain punishment of the crime of 
 murder," was held by the Court of Appeals, on the one hand to have 
 absolutely repealed all previous statutes on the subject, and on the other 
 to be itself unconstitutional in relation to a past crime. In a case, there- 
 fore, where there had been a conviction in the court below, but no error 
 in the trial or conviction itself, the judgment was reversed, and the
 
 en. I.] DEFINITION, ETC., OF NEW TRIAL. 19 
 
 § 24. It has been recently held in Massachusetts, that 
 exceptions do not lie to the discharge of a prisoner on 
 habeas corjms.^ The court remark: "The great pur^DOse of 
 the writ is the immediate delivery of the party. The 
 allowance of exceptions would be inconsistent with the 
 object. The consequence must be, either that all further 
 proceedings be stayed, which would be wholly inconsistent 
 with the purpose of the writ, or that the exceptions be 
 held frivolous, and judgment rendered 7ion obstante for the 
 discharge of the party, in which case the exceptions 
 would be unavailing."^ 
 
 ' "Wyetlii). Ricliardson, 10 Gray, 2 (j^ substance) Shaw, C. J., ib. 
 240. 241. 
 
 prisoner discharged ; the statute in regard to writs of error authorizing a 
 new trial only where the trial and conviction are illegal. Kuehler v. 
 The People, Law Reg., Nov. 18G2, p. 43.* 
 
 * The legislative has rarely if ever received a more cutting rebuke from the judiciary 
 department of the government, than by the expressions contained in this opinion. 
 "Blind and sweeping changes." — "The legislature, omnipotent both in wisdom and 
 folly." — " It was no fault of his that the legislature had deprived him of his well-earned 
 deserts to be hanged."—" If the result shall form beacons to warn against future imita- 
 tion of the folly and stupidity," &c.
 
 20 THE LAW OF NEW TRIALS. [cil. IT. 
 
 CITArTEPt 11. 
 
 GROUNDS OF NEW TRIAL. 
 
 1. General grounds — dehors the 
 record. 
 
 Verdict presumed correct ; 
 
 18. Amendment of bill of ex- 
 ceptions. 
 
 2.J. Limitations of the rule. 
 
 motion for new trial must show 20. Other evidence as to the 
 affirmatively the ground of alleged points contained in the bill of ex- 
 error, ceptions. 
 
 13. Qualifications of this rule. 28. Motion in arrest of judg- 
 
 15. Form of exceptions^ founded ment. 
 upon the foregoing rule. I 29. Writ of error. 
 
 § 1. The general grounds for a new trial arc said to be 
 errors of a judge in matters of law, and errors of a jury 
 in matters of fact.' And, in either case, matters foreign 
 to, or dehors, the reeord.-{a) 
 
 I Rochell z). Phillips, 1 Hemp. 2 Bowie r. State, 19 Geo. 1; War- 
 22. ren v. Litchfield, 7 Greenl. 69. 
 
 (a) See p. 1 ; chap. 2, § 20. In Ohio, a new trial will not be granted in 
 ejectment, upon the application of the plaintiff, except under peculiar cir- 
 cumstances. Socknian v. Sockman, 18 Ohio, 362. In South Carolina, 
 on a question of location, a new trial will more readily be granted than 
 on most other cases depending upon facts, in consequence of their near 
 approach to questions of law. Felder f. Bonnett, 2 McMullan, 44; 
 Wolfe V. Knotts, 2 McMullan, 75; Matthews v. Horlbeck, 1 Rich. 382. 
 'J'he finding of the court on an issue of fact, by consent of parties, is 
 entitled to the same consideration, on a motion for a new trial, as the 
 verdict of a jury. Oakly v. Aspimvall, 2 Sandf 7. In Maine, it seems 
 that exceptions lie to a rejection, by the Court of Common Pleas, of a 
 report of referees appointed by a rule of court. Vance v. Carle, 7 
 Greenl. 164. So of an order directing a nonsuit. Feyler v. Feyler, 2 
 Greenl. 310. The statute of AVestminster 2, c. 31, is no longer in force 
 in Maine, it seems; being superseded by the statute providing for ex- 
 ceptions. Colley V. Merrill, 6 Greenl. .5.5. In Massachusetts, a decision 
 on a motion to dismiss an action for a defect in the process, apparent of
 
 CE. II.] GROUNDS OF NEW TRIAL — HOW STATED. 21 
 
 § 2. The law presumes a verdict to be correct. Hence, 
 on a motion for a new trial, the party must set forth the 
 grounds upon which he intends to rely, or the objections 
 will be considered as waived.'(«) (See Waiver.) '"Denon 
 
 • Wiug«. Owen, 9 Cal. 247 ; Col- lier v. The State, 20 Ark. 36. See 
 
 Hamilton v. Conyers, 25 Geo. 158. 
 
 record (as for want of legal indorsement of a writ), is a matter of law, to 
 which exceptions may be taken. Purple v. Clark, 5 Pick. 206. Excep- 
 tions do not lie to a judgment on a report of referees, under a submission 
 entered into before a justice of the peace. Dean v. Dean, 2 Pick. 25. 
 But under the statute, allowing exceptions to opinions, directions, or 
 judgments of the Common Pleas, in matters of law; a bill lies to a judg- 
 ment of that court on a report of referees under a rule thereof, in an 
 action originally commenced there, though the rule state that the judg- 
 ment shall be final. Miller v. Miller, 2 Pick. 570. So though the action 
 referred was originally brought before a justice of the peace. Olney v. 
 Brown, 2 Pick. 572. Exceptions lie to a refusal to receive the petition 
 of an assignee of a debt, that the jury may try the question of assign- 
 ment, when the delator has been summoned and adjudged to be garnishee 
 of the assignor. Ammidown v. Wheelock, 8 Pick. 470. The decision, 
 by a single judge, of a question of fact upon the hearing of a probate 
 appeal, may be excepted to, and may be revised by the whole court, if 
 the judge fully reports the evidence. It is, however, discretionary with 
 the judge to report the evidence or not. Stearns v. Fiske, 18 Pick. 24. 
 So exceptions may be taken to instructions, &c., of a judge of the Su- 
 preme Court on the trial of a probate appeal. Higbee v. Bacon, 11 
 Pick. 423. Under Rev. Sts. of Massachusetts, c. 86, § 11, and c. 146, 
 § 5 (See Gen. Sts.), exceptions may be taken to a decision of the muni- 
 cipal court in a matter of law, upon the trial of an action commenced 
 before the Rev. Sts. went into operation. McManagil v. Ross, 20 Pick. 
 99. So to the instructions, &c., of the Court of Common Pleas upon' 
 the trial of the question of damages sustained by the owner of land taken 
 for widening a street in Boston. Parks v. Boston, 15 Pick. 198. A bill 
 of exceptions does not lie, where there is a right of appeal. Rathbone 
 V. Rathbone, 4 Pick. 93; Piper v. Willard, 10 Pick. 34; Champion v. 
 Brooks, 9 Mass. 228. See 1 Greenl. 291 ; Hemmenway v. Hickes, 4 Pick. 
 497. A bill of exceptions cannot be taken to the judgments and de- 
 crees of the Orphans' Court, in Maryland. Mayhew v. Soper, 10 Gill & 
 Johns. 36. 
 
 («) In Indiana, an application for a new trial must be verified. Cox 
 V. Hutchings, 21 lud. 219. In California, when there has been no legal
 
 22 THE LAW OF NEW TRIALS. [ciI. IT. 
 
 apparent i])iis et de noii existentibiis eadcm est ratio' is an 
 old and well-established maxim in legal proceedings, and 
 
 notice of a motion for a new trial, the statement cannot be made the 
 foundation of such a motion, nor annexed to the record of the judgment 
 or order from which the party may appeal. Flateau v. Lubcck, 24 Cal. 
 364. All errors, to which objection is made on motion for a new trial, 
 should be specified in the statement of facts. Crowthcr v. llowlandson, 
 27 Cal. 376 : Burnett v. Pacheco, ib. 408 ; Partridge v. San Francisco, 
 ib. 415. The statement on motion for a new trial must set forth the 
 grounds intended to be relied on, if they are not contained in the notice 
 of intention to make such motion. "Walls v. Preston, 25 Cal. 59. If the 
 parties stipulate in writing, that the statement on motion for a new trial 
 and the judgment-roll are correct, and may be used as such without 
 further certificate or identification ; it will be held that notice of a motion 
 for a new trial was regularly served, and that all technical o])jections to 
 the statement are waived. Godchaux v. Mulford, 26 Cal. 316. When 
 the statute notice of a motion for a new trial is not given, an order 
 granting a new trial will be reversed. A record of court, viz.: "Now 
 come the defendants, &c., in open court, add give notice of a motion for 
 a new trial," &c., is not a sufiicient notice to the plaintiff, the record not 
 showing the plaintiff's presence in court, at the time the entry was made. 
 An order: "It is ordered that all proceedings under the judgment re- 
 covered by plaintiff against defendants be, and they are hereby, stayed 
 and superseded until the 5th day of May next, in order that counsel may 
 present and prepare his statement on motion for a new trial," made the 
 day after the rendition of judgment, will not operate to extend the 
 time fixed in the statute for preparing and presenting a motion for a new 
 trial. Bear v. Boles, 24 Cal. 354. In Texas, an application for a new 
 trial must be accompanied by a statement of the facts or a bill of ex- 
 ceptions. Arnold v. Williams, 21 Tex. 413: AngcU v. Street, ib. 485. 
 In Nevada, a paper headed " motion for a new trial," containing a notice 
 that a new trial would be moved for on a specified day, and that the mo- 
 tion would be founded on certain grounds, viz., that the evidence is in- 
 sufficient, &c., and comprising a statement that certain writings, notices, 
 &c., would be relied on in support of the motion, is a sufficient statement 
 to support the motion, although informal. Van Valkenburg v. Hull, 1 
 Nev. 142. In Missouri, a motion for a new trial need not be accompanied 
 by a written specification of the reason upon which it is founded, under 
 Rev. Code, 1855, p. 1026. State v. Marshall, 36 Mis. 400. In Iowa, 
 where a motion for a new trial, except for newly-discovered evidence, is 
 required by statute to be made at the term, and within three days after 
 the verdict or decision was rendered, such a motion, made within the
 
 CH. II.] GROUNDS OP NEW TRIAL — HOW STATED. 23 
 
 is founded on principles of justice as well as of law."^ 
 " It is the business of the party who takes exceptions to 
 show that the decision is wrong. It is not enough that 
 he succeeds in mystifying it by adopting language which 
 subjects the judge to the suspicion that he did not under- 
 stand the safest ground on which to place it."^ Thus, 
 
 1 Per Taney, C. J., United States Cobb, 21 Ind. 492; State v. Galla- 
 V. Wilkinson,' 13 How. 253 ; Beal glicr, IG La. An. 388. 
 V. Stone, 22 Iowa, 447; Aurora v. ^ Per Morgan, J., Munro v. Pot- 
 ter, 34 Barb ."360-1. 
 
 required time, may be amended, subsequently, by leave of court, the 
 amendment being german to the object and purpose of the original 
 motion. Sowden v. Craig, 20 Iowa, 477. In Louisiana, any party has 
 the right, within three judicial days from judgment, to move for a new 
 trial, though the judgment have been prematurely signed, unless the 
 court has adjourned. McWillie v. Perkins, 20 La. An. 168. In Massa- 
 chusetts, where the judge of the superior court took a bill of exceptions, 
 which had been agreed upon, for the purpose of examining it and making 
 corrections if necessary, and retained it for more than a year, and until 
 after his resignation ; held, the superior court might, in their discretion, 
 grant a new trial, though the excepting party omitted to prove his ex- 
 ceptions under the Gen. Sts. c. 115, § 11. Borrowscale v. Bosworth, 98 
 Mass. 34. In Nevada, a statement of evidence on motion for a new trial 
 must be agreed to by both parties or settled by the judge. So an 
 amendment of the original statement and a supplemental statement. 
 Levey v. Fargo, 1 Nev. 415. A refusal to argue a motion for a new trial 
 does not operate as an abandonment of it, when the statement sets forth 
 specifically the grounds of the motion, and it has been duly made and 
 submitted. Carder v. Baxter, 28 Cal. 99. Errors relied on for a new 
 trial must, under I 372 (Ky.), Civil Code, be specified in writing. Hop- 
 kins V. Commonwealth, 3 Bush, 480. Under ? 195 of the (Cal.) practice 
 act, the application for a new trial on the ground that the evidence is 
 insufiBcient to justify the findings, must "specify the particulars," &c. 
 Beans v. EmauucUi, 36 Cal. 117. Such applicant, who states that he 
 " will rely on the argument of the motion for a new trial in this cause 
 on the following grounds," enumerating them, abandons all other grounds. 
 lb. The cases upon this subject are so numerous, and the subject itself 
 so much one of practice, regulated to a considerable extent by express 
 statute and local usage, that a connected and systematic view of it is 
 very difficult, if not quite impracticable. Any apparent repetition or 
 confusion in the text of the present chapter may be partially explained 
 by this consideration.
 
 24 THE LAW OF NEW TRIALS. [CII. 11. 
 
 where tlic motion (for a new trial) merely shows, that a 
 party claiiiicd that certain evidence was not admissible in 
 any way to aftect the terms of a written instrument; 
 without showing that the claim was made when the evi- 
 dence was oifered, or that the evidence was let in subject 
 to exception, and the claim subsequently made that it 
 should be excluded, or that the court were requested to 
 charge as to its effect or the consideration to be given to 
 it : no question is raised which the court is bound to con- 
 sider.^ So, although the evidence, appearing of record, 
 does not sustain the verdict and judgment, a new trial 
 will not be granted, unless it appear also that no other 
 evidence was offered.- All the facts must be stated.' 
 And error must distinctly appear in the exceptions.'* So, 
 when there are two issues, one material and the other 
 valid, and a general finding for the defendant, it will be 
 presumed that the jury disregarded the immaterial issue, 
 and a new trial will not be granted.'^ 
 
 § 3. In conformity with these general principles, a bill 
 of exceptions for misdirection must contain enough of the 
 evidence to show that the judge ruled erroneously.'' It 
 must appear what particular rulings were excepted to.'^ 
 A general exception to the charge is insufficient.'^ It is 
 said that the correctness of instructions, in most if not in 
 all cases, depends upon the facts developed upon the trial; 
 and where their applicability or irrelevancy is not shown, 
 by a bill of exceptions, embodying sufficient of the testi- 
 
 ' Per Butler, J., Ratlibone v. ^ Ilarvoj' v. Lafliu, 3 Cart. 477. 
 
 City, etc., :il Conn. 204. s Fuller v. Kuby, 10 Gray, 285 ; 
 
 2 Ballard v. Noaks, 2 Pike, 45; Ilewes v. llanscom, ib. 33G. 
 Millett V. Hayfbrd, 1 Wis. 401 ; ? Woolf v. Chalker, 31 Conn. 
 Terry v. Robins, 5 Sm. & ]\r. 201 ; 121 ; Peck v. Hensley, 21 Ind. 344; 
 Benoist v. Powell, 7 Mis. 224; Estep r. Larsh, 21 Ind. 183; Pogers 
 Overman v. Cobb, 13 Ired. 1. ». Marshal, 1 Wall. G44 ; Jack v. 
 
 3 Ba.\ter v. Abbott, 7 Gray, 71 ; Naber, 15 Iowa, 450 ; Thrasher v. 
 Waller p. Tiie State, 4 Pike. 87. Tyack, 15 Wis. 250. 
 
 * Brown ('. Gray. G Jones, 103 ; ^ Reynolds v. Boston, &c., 43 N. 
 Dickey v. Maine, "&c., 46 Maine, II. 500. 
 483.
 
 en. II.] GROUNDS OF NEW TRIAL — HOW STATED. 25 
 
 mony, the appellate court cannot determine upon their 
 correctness, nor whether the court erred in granting a 
 new trial, on the ground that they were erroneous.' So 
 in a late case it is said, " none of the assignments (of error) 
 are properly made. They aver that tlic court erred in 
 their answers to each of the six points submitted, but 
 they do not specify how the court erred, or in what the 
 alleged mistakes consisted. This mode of assigning errors 
 is altogether insufficient. It would be at common law, 
 and it is, if possible, even more so under the rules of this 
 court. It compels us to gather the complaints of the 
 plaintiffs in error rather from their arguments than from 
 the record, and tends to obscure the matters really in 
 controversy."^ So, in an action on a policy of insurance, 
 where the defence was cancellation ; it was proved, without 
 objection, that the insured was told by his agent, that the 
 company charged an extra premium for a voyage between 
 two ports. Held, a refusal to instruct the jury, that the 
 company had no right to make such a charge, was not 
 ground for new trial, if accompanied by the reason, that 
 the case did not involve any such question; and as it did 
 not appear, by the bill of exceptions or otherwise, that it 
 was urged to the jury that the company had any such 
 right, or that the point was material or pertinent.^ So, 
 in an action upon a warranty and for deceit in the sale of 
 a horse, the defendant's counsel, in his argument before 
 the court and jury, oftered to read from a work on 
 Yeterinary Surgery, which he proved by a witness to be a 
 reputable and standard authority on that subject; but the 
 evidence was rejected. The court above refused to sustain 
 a bill of exceptions, because the bill did not show that 
 the passages proposed to be read had any relevancy to the 
 cause, or came within the proper scope of argument."* 
 
 • Farr v. Fuller, 8 Clarke, 347. » Bedell v. Commercial, &c., 3 
 
 2 Per Strong, J., Franklin, &c. Bosw. 147. 
 «. Updegraff, 43 Penu. 358. ^ Legg v. Drake, 1 McCook, 283.
 
 26 THE LAW OF NEW TRIALS. [CH. II. 
 
 § 4. And, upon exceptions to instructions, no objection 
 lies to incompetent evidence.^ 
 
 § 5. A general objection, to all and each and every 
 part of evidence offered, is properly overruled, if any part 
 of the evidence is admissible for the purpose for which it 
 was ottered.^ In a late case a new trial was refused, for 
 tlie reason that incompetent declarations were admitted 
 in evidence, the exceptions not showing what the decla- 
 rations were.^ So in another recent case the court would 
 not permit a certain draft to go to the jury. The excep- 
 tion alleged that the draft was testified to by witnesses 
 named in the exception; but that testimony as reported 
 did not mention the draft. A new trial was refused.'* So 
 evidence in contradiction of a levy is rejected, the nature 
 of the evidence not being specified. Evidence dehors the 
 record would be incompetent.^ 
 
 § 6. A ground of exception was the rejection of evi- 
 dence, that administrators did not purchase certain pro- 
 perty as such, but as individuals. The court, admitting 
 that such rejection would be ground for reversing the 
 judgment, proceed to remark : " But does the bill certify 
 us that any evidence tending to show that the adminis- 
 trators purchased in their individual and not their repre- 
 sentative characters was offered? It tells us that certain 
 proceedings were had with the Orphans' Court from which 
 this conclusion would follow, and it refers to them with' 
 a i^ro ut the same, but it does not set them forth, nor even 
 furnish us with an outline of them. If the offer was 
 made to the court below as it is certified to us, it was 
 rightly rejected, not indeed for the reasons assigned below, 
 but because it did not tend to establish any interest what- 
 
 ' Gardner v. Gooch, 48 Maine, ^ Hackett v. King, 8 AUon, 144. 
 
 487. ■* Kinter v. Jenks, 43 Penn. 445. 
 
 ^ Evorott ». XcfT, 28 Md. ITH ; ^ ]\icClcnaluiu v. Hunnes, 25 
 
 O'llagau v. Cliuesmitli, 24 loAva, Penn. 85. 
 249.
 
 en. II.] GROUNDS OF NEW TRIAL — HOW STATED. 27 
 
 ever in Frederick R. in the goods in question." In the 
 same case exception was taken to the rejection of a wit- 
 ness. The court expressly admit that he was wrongly 
 rejected for the reason assigned, but proceed to remark : 
 "But what was he called to prove? Anything the loss 
 of an opportunity to prove which was injurious to the 
 defendant? The bill gives no answer to these questions. 
 We are referred to the appendix of the paper-book for the 
 offer, but the offer is not to be found there. Either in the 
 body of the bill or in the appendix the substance of what 
 McCullough was to prove ought to have been furnished, 
 that we might see whether harm had been done."^ 
 
 § 7. The rule above referred to is applied to exceptions 
 relating to the pleadings, in connection with the evidence. 
 As, for example, in an action for slander, upon the ques- 
 tion whether the form of the answer admits the defence 
 that the words were privileged.^ 
 
 § 8. So the exceptions must state the answer to an im- 
 proper question, such question being the ground of ex- 
 ception.3 Thus, when a question put to a witness is 
 objected to, and the objection is overruled and the decis- 
 ion excepted to; a new trial will not be granted, merely 
 because an affirmative answer would be incompetent as 
 evidence, when it does not appear by the bill of excep- 
 tions that any answer was given.'* So, where a motion for 
 a new trial does not show, whether the court admitted the 
 evidence in the exercise of its discretion, or on the ground 
 that the party offering it was entitled to its admission as 
 a matter of legal right, the former will be presumed.^ 
 
 ' Per Woodward, J., Lothrop v. » Mavs v. Deaver, 1 Clarke, 316. 
 Wic-htman, 41 Penu. 304-5. * Fry v. Bennett, 3 Bosw. 200 ; 
 
 2"Lawler ». Earle, 5 Allen, 23. Buru'liardt «. Van Deiisen, 4 Allen, 
 
 See Wall v. Provident, &c., 3 Allen, 377-8. 
 98. ^ State «. Alford, 31 Conn. 40.
 
 28 THE LAW OF NEW TRIALS. [CII, II. 
 
 § 9. So, in reference to the admission of deeds in evi- 
 dence, the court in a late case remarked: "So far as any- 
 thing is disclosed they would seem to have been wholly 
 immaterial ; but, in the absence of any statements indi- 
 cating that they were improperly allowed to be submitted 
 to the jury, it is to be presumed that the course of pro- 
 ceeding in admitting them in evidence was correct."^ 
 And objection to a question, that it calls for the contents 
 of a written instrument, cannot be regarded in the higher 
 court, unless specifically taken in the court below.-(«) 
 
 § 10. The court will not order a new trial on the ground 
 of insufficiency of evidence to justify the finding, where 
 the moving party has failed to state that ground for his 
 motion.'' I^s'or where the record fails to show a total want 
 of evidence to support the finding.^ So, as already sug- 
 gested, an exception, that the verdict is against the iceigkt 
 of evidence^ cannot prevail, unless the report of the evi- 
 dence is duly authenticated by the presiding judge."^ And 
 in a late case in the Supreme Court of the United States, 
 involving the correctness of instructions in the court be- 
 low, as affected by a certain deposition, it is said: "It is 
 true that this court does not see anything in that part of 
 Baker's testimony embodied in the bill of exceptions 
 which justifies such an inference (as was contained in the 
 charge of the judge). But the bill of exceptions does 
 not purport to give all that he said, and according to a 
 well-known rule, this court, under such a condition of the 
 
 ' Per Merrick, J., Bnri:i;harclt v. * IMcmpliis «. Bnncre, 21 Ark. 
 
 Van Dcnson, 4 Allen, 377-8. 30G. 
 
 2 Carter v. Beals, 44 N. II. 408. ^ Simpson v. Norton, 45 Maine, 
 
 3 School )\ Lynch, ?>Z Conn. 330; 281. 
 Fitch V. Bunch, 30 Cal. 208. 
 
 (a) Where there is a confused statement in the bill of exceptions as 
 to the rejection of material and important evidence, leaving it in doubt 
 whether the same was actually rejected, the court will award a new 
 trial. Pearson v. Grice, 8 Florida, 214.
 
 CH. II.] GROUNDS OF NEW TRIAL — HOAV STATED. 29 
 
 record, is bound to presume that there was that in Baker's 
 testimony which justified the instruction. AVliat pur- 
 ports to be the entire deposition is sent up by the clerk, 
 and is printed in the record before us, an^l if properly be- 
 fore us might sustain the exception. But this deposition 
 is not incorporated into the bill of exceptions, nor so re- 
 ferred to in it as to be made a part of the record. It is 
 only a useless encumbrance of the transcript, and an ex- 
 pense to the litigating parties."^ So, where the insanity 
 of a juror is alleged as the reason of a new trial, it must 
 be fully proved.^ So, where, on a motion for a new trial, 
 the court was equally divided, the verdict was sustained.^ 
 
 § 11. The general rule, that the error complained of 
 must distinctly appear, applies to a motion made in a 
 higher court, after a similar motion in the court below.^(«) 
 As in case of refusal to grant a new trial in the court 
 below, and an application to reverse this decision in the 
 court above.* The court above cannot look into affidavits 
 offered below in support of the motion. They form no 
 part of the record.^ Affidavits must be embodied in the 
 exceptions, in order to be used in the court above. '^ So, 
 where the court below refused a new trial, in the appellate 
 court all the evidence must appear in the exceptions.^ So 
 the court above will not revise the action of the court 
 l)elow, in granting a new trial, unless the facts upon which 
 the court acted appear from the record. ^(/>) So an appeal 
 
 1 Per Miller, J., Russell v. Ely, Hollowell v. Cheek, ili. 614 ; Banks 
 2 Black, 580. v. Hempstead, ib. 618. 
 
 2 The State v. Scott, 1 Hawks, 24. e Crippen v. People, 8 Mich. 117. 
 
 3 Lehre v. Murry, 2 Brev. 19. ^ People v. Houshell, 10 Cal. 83. 
 * Brown v. Gray, 6 Jones, 103. « Tompkins p. Eason, SFlori. 14. 
 5 Fausett v. Voss, 12 Ind. 525 ; » Roberts v. HefiFner, 19 Tex. 129. 
 
 («) See chap. 1, § 7. If the charge, as written out by the judge, and sent 
 np with the record, varies from a statement of it in the rule nisi upon 
 motion for a new trial ; the former will prevail. Alston v. Grantham, 20 
 Geo. 374. 
 
 {b) In Vermont, the fact tliat a cause is pending in the Supreme Court
 
 30 THE LAW OF NEW TRIALS. [CH. II. 
 
 from tlio refusal of a motion for a new trial, on the ground 
 that the verilict was excessive and against evidence, and 
 the motion erroneously overruled, must bring before the 
 appellate court .the whole evidence.' So the court above 
 will not reverse the judgment of the court below, over- 
 ruling a motion for a new trial, upon an affidavit " that 
 three of the jurors were, during the trial, very much in- 
 toxicated, and so continued until its determination, and 
 that said affiant believed said jurors became intoxicated 
 during the recess of the court, and before the testimony 
 was heard;" where the evidence given upon the trial is 
 not put upon record, so that the Supreme Court may de- 
 termine whether the verdict was a just one, it not appear- 
 ing that the misconduct of the jurors was in consequence 
 of the act of either of the parties.^ So the rejection of a 
 deposition cannot be a ground for a new trial, unless it 
 appears that what it proved was material ; and the court 
 above cannot decide that it was so, unless the evidence 
 adduced on the trial is in the record.^ 
 
 » Nutter «. Ricketts, 6 Clarke, 93. ^ Kimbcrlin v. Farris, 5 Dana, 
 2 Pelham d. Page, 1 Eng. 535. 533. 
 
 upon exceptions, does not give that court jurisdiction to grant a new 
 trial in the County Court, for causes not appearing upon the record, upon 
 a motion for a new trial. The only proper proceeding, to secure a new 
 trial in such a case, is an original one, by petition, under the statute. 
 South Royalton Bank v. Colt, 31 Vt. 415. And such a petition cannot 
 be made returnable to a general term of the Supreme Court. lb. In 
 California, where the statement on motion for a new trial entirely fails to 
 specify the particulars in which the evidence is insuDicicnt to justify, or 
 contrary to, the finding, except as to an issue wherein the evidence is 
 substantially conflicting, this court will not disturb the finding. Pralus 
 V. Pacific, 35 Cal. 30. The statement will be presumed to contain all 
 the testimony offered. Clark v. Gridley, 35 Cal. 398. In Georgia, the 
 brief of the evidence, as approved by the court in a motion for a new 
 trial, need not be recorded by the cleric ; but only filed in his office. 
 White V. Newton, 38 Ga. 587. After a brief has been filed, and ap- 
 proved by the presiding judge, a motion to amend, on the affidavit of a 
 witness whose testimony has been incorporated therein, should not be 
 allowed. Baker v. Wright, 37 Ga. 327.
 
 CII. II.] GROUNDS OF NEW TRIAL — HOW STATED. 31 
 
 § 12. The prevailing rule upon the whole subject is well 
 illustrated by a late case in the Supreme Court of the 
 United States. "The objections urged against the ad- 
 mission of the deed from the sheriff to Lawson were: 1st. 
 That the deed and the certificate of its admission to 
 record bore upon their face unmistakable evidence of 
 fraud. What those clear marks of fraud upon the face 
 of those documents were, is not stated with sufficient 
 particularity, in order to a correct comprehension of their 
 character. The court, to whom this objection was pre- 
 sented, must have decided upon an inspection of the papers 
 (probably correctly); but whether correctly or otherwise, 
 this court cannot now inquire, in compliance with asser- 
 tions altogether vague, and pointing to no specific vice in 
 any one of those papers."^ 
 
 § 13. But on the other hand it is held, that a motion 
 substantially conformable to the statute is sufiicient.2(a) 
 And, in other respects, a more liberal indulgence has been 
 sometimes allowed to the applicant for a new trial. Thus, 
 where, in an action on a bond, judgment was entered for 
 too large a sum, and the plaintiff entered a remittitw for 
 the excess, and one of the judges, on error, thought the 
 excess the only error, and another thought that there were 
 
 1 Per Daniel, J., Thomas v. Law- ^ Humphries v. Marshall, 13 lud. 
 son, 21 How. 339. 609. 
 
 (a) In California, a statement of the gromids of a motion for a new 
 trial may be used in determining the appeal from the denial of the motion, 
 but not in determining the appeal from the judgment, unless so stipu- 
 lated. Casgrave v. Rowland, 24 Cal. 457. If the statement and notice 
 of a motion for a new trial are defective, in not specifying the grounds of 
 the motion, the objection should be taken in the court below ; and, if it 
 is overruled, the court above can then review the matter. Brady v. 
 O'Brien, 23 Cal. 244. When an appeal is taken from an order refusing 
 a new trial, a statement of appeal need not be filed after the order is 
 made, but the statement used in the court below on the motion will be 
 sufficient. Walden v. Murdoch, 23 Cal. 540.
 
 32 THE LAW OF NEW TRIALS. [CII. II. 
 
 Other errors, and the third was incapacitated to sit hy 
 reason of interest, a new trial was granted.' So, where 
 the judi^cs who composed a court had all hcen commis- 
 sioned suhsequently to a verdict, taken by a former court, 
 of murder as to one defendant, and manslaughter as to 
 others, which former court became vacant by the death of 
 all its judges, pending a motion for a new trial, on the 
 ground that the verdict was against evidence and against 
 law; held, the new court would not award sentence as to 
 those defendants who asked for a new trial, and would 
 not hear evidence, as to what opinion on the motion for a 
 new trial the former court had formed, and confidently 
 expressed to an officer of the court, but not pronounced 
 from the bench ; and a new trial was accordingly granted, 
 at the election of the defendants.- And it is sometimes 
 held, that, in a statement for a new trial, the evidence 
 may simply be referred to, and need not be contained in 
 the statement itself.^ So, wdiere the construction of a 
 written instrument is in question, as a point of law, and 
 the court are satisfied that this was the only evidence 
 relied on; the presumption in favor of the verdict will 
 not prevent the granting of a new trial."* So, where it 
 ai)pears from the certificate of the judge below, that he 
 intended to make up a case, but none comes up with the 
 record, the court above will grant a new trial .'^ 
 
 § 14. "With reference to the rule, above stated, that the 
 whole of the matter in relation to which objection is made 
 must be set forth in the application for a new trial; in a 
 late case in Massachusetts (where the form of application 
 to the Supreme Court for a new trial is by hill of exeep- 
 iions), the whole evidence being reported as a part of the 
 
 • McNutt V. Lancaster, 9 S. 6c M. « Nichols v. State Bank, 3 Yerg. 
 
 570. lf'~- 
 
 2 United States v. Harding. Wal- ^ The State v. Powers, 3 Hawks, 
 lace. Jr. 127. 37G. 
 
 3 Dickinson v. Van Horn, 9 Cal. 
 207.
 
 CH. II.] GROUNDS OF NEW TRIAL — HOW STATED. 33 
 
 exceptions, Bigelow, C. J., remarked: That it could not 
 " be laid down as a rule that a case cannot, under any 
 circumstances, be brought up in this way ; but, where all 
 the evidence in the case is plainly insufficient to warrant 
 a verdict for the plaintiff, if the whole of it is believed, 
 and taken with all the inferences which may be drawn 
 from it, and the jury, nevertheless, find a verdict for the 
 plaintiff", it may be proper to correct the error on ex- 
 ceptions."^ 
 
 § 15. Many, perhaps most, of the cases already referred 
 to in this chapter, have arisen on bills of exceptions. 
 With more particular reference to the form of a bill of 
 exceptions, as a recognized technical process for the cor- 
 rection of errors, it may be added, though at the risk of 
 some repetition, that such bill must precisely specify the 
 errors complained of, and the decision excepted to.- l^o 
 question is to be considered, unless it be necessarily and 
 clearly presented by the exceptions.^ Otherwise, where 
 the form of proceedings is by writ of error, such writ will 
 be dismissed.* And the assignment of errors cannot en- 
 large the bill of exceptions.' So a decision, overruling a 
 motion for a new trial, made " because the verdict was 
 contrary to law, and because the damages were excessive," 
 will be deemed correct in the Supreme Court, if the evi- 
 dence given on the trial is not brought before it ; or if it 
 is not shown that testimony was erroneously admitted or 
 excluded ; or if the instructions to the jury do not appear. 
 Even though the court assigned an insufficient reason for 
 overruling the- motion.^ So it is held, that a refusal to 
 grant a motion for a new trial, because the verdict was 
 against the evidence, cannot be assigned as error, when 
 
 ' Policy V. Lenox, &c., 4 Allen, ^ Smith v. Mitchell, 6 Geo. 456 ; 
 330. Perth, &c. v. Condit, 1 N. J. 659; 
 
 * 6 Geo. 227. Allaire v. Hartshorne, ib. 665. 
 
 ' Page V. Smith, 25 Maine, 256. '^ Dyer v. Hatch, 1 Pike, 339. 
 
 * "Weathers v. Dorster, 6 Geo. 
 237; Moran v. Green, 1 N. J. 563. 
 
 3
 
 34 THE LAW OF NEW TRIALS. [CII. II. 
 
 the whole evidence is not stated to he contained in the 
 hill of exceptions.^ So, even if it be a sufficient excep- 
 tion, that the verdict was contrary to law and evidence ; 
 yet the evidence must be taken and considered as a whole ; 
 any particular defect ought to be specially assigned.- So 
 it is not sufficient to state matter, rendering it probable 
 that improper evidence may have been received, but the 
 evidence itself nmst be stated.^ So it is not sufficient for 
 exceptions to state that "the witness was objected to," and 
 was admitted, without stating any cause of objection.'* 
 
 § 16. And the facts upon which an objection to evidence 
 is founded, must appear in the bill of exception, affirma- 
 tively ; even where proof of the facts is necessary to legal- 
 ize the evidence objected to.^ Unless the ground of objec- 
 tion to evidence is stated, the court will not reverse the 
 judgment, if the evidence could have been legal for any 
 purpose.^ So exceptions to the charge of a judge should 
 specify what is alleged to be erroneous, and a general ex- 
 ception to tlic whole charge is irregular, and may be dis- 
 regarded by the appellate court.^ 
 
 § 17. It is held in Isew York, that a bill of exceptions 
 must be signed and sealed, and the error-book produced 
 on the argument must contain a copy of the bill, with the 
 signatures of the judges, or the clerk's certificate that it 
 was signed by them.^ It should also give a plain and 
 concise statement of the facts which present the question 
 of law; and not set forth the evidence in detached and 
 scattered parcels. Otherwise, every doubt about facts 
 should be turned against the party excepting.^ 
 
 » Grani^or v. Warrington, 3 Gil- " Glidden v. Dunlap, 28 Maine, 
 
 man, 299? Hughes I'. Ellison, 5 3Iis. 379. . ^t t ».^o 
 
 -J 10. ^ Moran v. Green, 1 N. J. 562. 
 
 z'milebrant v. Brewer, 5 Tex. ^ n,. , ^^ ^ ,«^ 
 
 5(;g ' Oliver v. Phelps, 1 N. J. 597. 
 
 3 The State v Clark. 12 Ired. 151 ; *■ liadclifl" v. Khan, 5 Denio, 234. 
 
 Moran v. Green, 1 N. J. oG2. ^ Price v. Powell, 3 Comst. 323.
 
 CH. 11.] GROUNDS OF NEW TRIAL — HOW STATED. 35 
 
 § 18. A motion for a new trial may be amended by the 
 insertion of new grounds.' But a bill of exceptions, 
 allowed by a judge of the court below, cannot be amended 
 without his consent, even bj^ agreement of parties ; because 
 injustice might be thereby done to such judge.^ So a bill 
 of exceptions cannot be amended upon a certificate with- 
 out consent, after argument and submission of the case to 
 the court ; especially where the efiect is merely to obtain 
 a new trial.^ 
 
 § 19. A writ of error will be dismissed, unless it appear 
 affirmatively that the bill of exceptions was tendered and 
 signed within the time prescribed by the statute.^ 
 
 § 20. Instructions to the jury are no part of the record, 
 unless made so by a bill of exceptions.' 
 
 § 21. ]^or affidavits and other papers copied into a 
 record, unless incorporated into the bill of exceptions.^ 
 
 § 22. So a question of costs is not open upon a bill of 
 exceptions, unless the objection appear in the exceptions, 
 although appearing in the bill of costs, to which the ex- 
 ceptions refer.'' 
 
 § 23. So papers introduced at the trial must be either 
 copied, or specifically referred to, by the bill of exceptions, 
 in order to make a part of such bill.^ And the prevailing 
 rule is, that the court above cannot properly take them 
 into consideration, if merely referred to.' 
 
 1 Moore v. Ulm, 34 Ga. 565. ^ Edwards «. Patterson, 5 Gilmau, 
 
 ' Ashley v. Root, 4 Alleu, 504 ; 126 ; Petty v. Scott, ib. 209. 
 Piigg"m3 V. Brown, 12 Geo. 271. ^ Richardson v. Curtis, 2 Gray, 
 
 * Johnson v. Conillard, 4 Allen, 497. 
 446. ^ Hatch b. Potter, 2 Gilman, 725. 
 
 < Justices, &c. V. Barrington, 6 ^ Wymanr.Wood, 25Maine,436; 
 
 Geo. 578. Wadlington v. Gary, 7 S. & M. 522; 
 
 5 Roberts ?).Ward, 8 Blackf. 333. Corey v. Russell, 3 Gilman, 366.
 
 86 THE LAW OF NEW TRIALS. [ciI. II. 
 
 § 24. Upon the same prineiplc, the court above will not 
 notice a question of variance, unless it appears by the bill of 
 exceptions that the question was raised in the court below.* 
 
 § 25. But an agreed statement of facts will be consi- 
 dered as a part of the record, when made so by bill of ex- 
 ceptions.2 And the rule in question is not construed with 
 unreasonable strictness. Thus, where a bill of exceptions 
 stated evidence given by the plaintiff and defendant re- 
 spectively, naming the witnesses, and detailing their tes- 
 timony, and then stated that, " no farther testimony being 
 offered, the plaintiff asked the following instructions," 
 &c., and concluded by praying "that this bill of excep- 
 tions, containing all the facts of the case, be signed," &c. ; 
 it was held, that these statements excluded the idea, that 
 other testimony was given at the trial than that which 
 appeared by the bill of exceptions.^ So it is held that a 
 new^ trial will be granted, if depositions are improperly 
 admitted wdiich contain evidence material to the issue, 
 although the record does not show that they were all the 
 evidence offered.^ So the bill of exceptions, taken on the 
 trial of an action against the sureties on the official bond 
 of a postmaster, set forth that the plaintiffs offered in evi- 
 dence, " a certain instrument, being the bond annexed to 
 the petition or information in this cause, being an au- 
 thentic copy of a bond signed by "W. as principal, and the 
 defendants as sureties," &c., and that the court rejected 
 the evidence. Held, that it appeared, by the bill of excep- 
 tions, that the paper offered in evidence was legally admis- 
 sible, and that the judgment rejecting it was erroneous, and 
 must be reversed.^ 
 
 § 26. AVhile the application for a new trial is required 
 specifically to set forth the grounds of objection to the 
 
 ' Hard V. Brown, 18 Vt. 87. « Woodruff tJ. Luflin, 4 Pike, 527. 
 
 » Acheson v. Sutliff, 18 Ohio, 122. ^ United States v. Wilkinson, 12 
 3 Everett t. Clements, 4 Eug.478. IIow. U. S. 246.
 
 CH. II.] GROUNDS OF NEW TRIAL — HOW STATED. 37 
 
 verdict ; on the other hand, it is not open to be controlled 
 or contradicted by other evidence. Thus, in New York, 
 where the verdict has been set aside by the court at a 
 general term, and a new trial ordered, on the ground that 
 a deposition was admitted, without sufficient proof of the 
 deponent's absence from the State ; the court will not 
 allow evidence to be produced at bar or to a referee, on 
 motion to vacate the order for a new trial, to prove the 
 deponent's absence.^ 
 
 § 27. Contrary to the prevailing rule above stated, 
 where a case was sent to the Supreme Court of ISTorth 
 Carolina on a particular point, the court, discovering other 
 material points, declined to decide the point sent up, and 
 awarded a new trial.^ 
 
 § 28. It has been already stated (§ 1) that a new trial 
 is granted for grounds dehors the record. Arrest of judg- 
 ment^ on the other hand, is always for causes appearing on 
 the record. It is sometimes held, that a motion in arrest 
 of judgment, and a motion for a new trial, may be filed 
 at the same time, and the court may first act upon either. 
 (See ch. 1, § 22.) Also, that a new motion for a new trial 
 may be made after an unsuccessful motion to arrest judg- 
 ment.^ But, where there was a judgment on default, and 
 inquest of damages ; and the defendant then came in and 
 moved in arrest of judgment and for a new trial : it was 
 held, that the only motion he could make was to set aside 
 the inquest.* And the general rule seems to be, that an 
 application for a new trial comes too late, after a motion 
 in arrest of judgment has been overruled.^ The latter 
 motion assumes that the verdict is right ;^ supersedes the 
 
 ' Fry V. Bennett, 4 Duer, 651. ^ Hipp v. Ingram, 3 Tex. 17 ; 11 
 
 2 Cowan V. Green, 3 Miirph. 5G9. Mis. 116. 
 
 3 Pope v. Latham, 1 Pike, 06. ' McComas v. The State, 11 Mis. 
 Uewell».Blandford, 7Dana,472. 116. 
 
 5 Marion,&c.u.Lomax, 7 lQd.406.
 
 38 THE LAW OF NEW TRIALS. [CII. 11. 
 
 former;' or affinns the verdict.- (See ch. 1, § 22.) But this 
 rule applies, only where the party has knowledge of the 
 fact on which he grounds his motion for a new trial, at 
 the time of moving in arrest of judgment.^a) 
 
 § 29. We have also (ch. 1, § 7) referred to the application 
 for a new trial as a subject of error, technically so called, 
 in connection with the point of discretion. In the present 
 connection it may be repeated, with more special reference 
 to ivrits of error, that the practice is very diverse in diiFer- 
 ent States, upon the question whether the action of infe- 
 rior courts on motions for new trial is revisable on error ;* 
 or whether only an abuse of the discretion of the court, 
 if even that, can be assigned as error.* 
 
 § 30. In Alabama, if a party, after the grant of a new 
 trial on condition that he pays the costs, without comply- 
 ing with the condition sues out a writ of error to reverse 
 the judgment, it is a waiver of his right to the new trial.^ 
 So, if a party moves for a new trial, but, without await- 
 ing the action of the court, prosecutes a writ of error to 
 the Sux)reme Court, where the judgment is affirmed; the 
 primary court has no longer the poAver to grant his mo- 
 tion.^ So, in Pennsylvania, it seems that a party who 
 brings a writ of error, after tendering a bill of exceptions, 
 but before he has obtained the judge's signature to the 
 
 ' Smith V. Portor, 5 Ind. 429. « Martin v. IIi!j;,L,nns, 23 Ala. 775; 
 
 2 Chrismaii v. Mclnc, Ind. 487; Ilerhcr ;'. The Stale, 7 Texas, G'J. 
 Marion, etc. v. l.oniax, 7 ib. 400. ^ Brazelton v. Jenkins, 1 Morris, 
 
 3 Mason v. Pahnerton, 2 Carter, 15; Schoeffler v. State, n Wis. 823. 
 117; M' Kinney v. Springer, 6 Ind. ^ Edwards v. Lewis, 18 Ala. 494. 
 453. ' Walker v. Hale, 16 Ala. 20. 
 
 (a) Where a new trial was ordered, and had, and judgment rendered, 
 and afterwards the order reversed ; held, the judgment on the new trial 
 was thercV)y vacated, and the prevailing party could not avail himself of 
 it. Bigby v. Powell, 15 Geo. 91.
 
 CH. II.] GROUNDS OF NEW TRIAL — HOW STATED. 39 
 
 bill, thereby waives his exceptions.'(a) So, in Missouri, 
 where there is a judgment on a verdict, and no motion to 
 set aside the verdict and grant a new trial in the court 
 below, the Supreme Court will not disturb the judgment 
 for errors committed in the course of the trial, although 
 they were excepted to, unless a motion is afterwards made 
 to set aside the verdict for those errors.^ The Illinois 
 statute, authorizing the refusal to grant new trials to be 
 assigned for error, has no application to criminal cases.' 
 
 • Mecse v. Levis, 13 Penn. 384. 3 Martin w.The People, 13 111.341. 
 
 2 Higgins V. Breen, 9 Mis. 497. 
 
 (a) In Pennsylvania, the term ei-ror is applied to sucli exceptions or 
 objections as are ordinarily made the ground of a bill of exceptions or 
 motion for a new trial. An assignment of error in the admission or rejec- 
 tion of evidence must contain a copy or the full substance of the bill of 
 exceptions ; otherwise the Supreme Court will not notice it. Schwenk v. 
 Montgomery, 26 Penn. 281. Irregularity in swearing and impanelling 
 the jury below must be noted in the exceptions, or it will not be noted 
 above. Quinn v. Woodhouse, 29 Penn. 333. Admissions made at the 
 trial become evidence ; and, when stated in the charge to have been 
 made, must be taken, on error, to have been true, unless the evidence 
 brought up on exception contradicts them. McNair v. McLennan, 24 
 Penn. 384. It is the duty of the plaintiff in error, to furnish the court 
 with all the evidence in the case, which can elucidate the points raised 
 by the assignments of error. If he does not do so, the presumption will 
 be that there is no error. Himblewright v. Armstrong, 25 Penn. 428. 
 When no objection was made to a release, signed by all the mortgagees 
 excepting one, and reciting the assignment of his interest by that one to 
 one of the others ; it will be presumed that such assignment would have 
 been shown, had objection been made. Devling v. Little, 26 Penn. 502. 
 A verdict was given for the plaintiff, subject to the opinion of the court 
 on the whole case. Held, there was no point reserved, and the judgment 
 was affirmed. Clark v. Wilder, 25 Penn. 314. If a point of law is to be 
 reserved, it must be done by stating on the record the facts on which it 
 arises. Irwin v. Wickersham, 25 Penn. 316. In every case where a 
 general verdict is given, subject to a point reserved, the question of law 
 thus reserved must be stated, and the facts on which it arises must be 
 either admitted on the record or found by the jury. Wilson v. Steamboat, 
 &c., 25 Penn. 317.
 
 40 
 
 THE LAW OF NEW TRIALS. 
 
 [CIL III. 
 
 CHAPTER III. 
 
 GROUND OF NEW TRIAL — HARMLESS ERROR — 
 SUBSTANTIAL JUSTICE. 
 
 1. Party must have been injured. 
 
 2. Erroneous ruling of the court. 
 G. Admission or rejection of evi- 
 dence. 
 
 7. Jury. 
 
 8. Surprise. 
 
 9. New evidence, &:c. 
 
 10. Limitation of the rule — it mui^t 
 appear ih.?i.ino injury has been done. 
 
 11. Substantial justice done. 
 
 12. Erroneous rulings. 
 
 13. Errors in relation to evidence. 
 
 14. Verdict against evidence. 
 
 15. Newly-discovered evidence. 
 
 16. Surprise. 
 
 17. Damages. 
 
 18. Limitations of the rule. 
 
 § 1. It is the general rule, that a new trial will not be 
 granted for an entirely harmless error. ^{a) More especially 
 where there was no motion for a new trial in the court 
 below.^ A bill of exceptions must show some error preju- 
 dicial to the party excepting.^ It does not lie to correct a 
 mere theoretical error.* It is said, "motions for new trials 
 are addressed to the sound judicial discretion of the court, 
 and ought never to be granted except to subservie the pur- 
 
 ' "Warren v. Williams, 52 Maine, 
 343 ; McKay v. Leonard, 17 Iowa, 
 5G'J ; The .lustices, ifcc. v. Plank 
 Road Co., 15 Geo. 39; Boon v. 
 Boon, 29 Geo. 134; Aslop v. Magill, 
 4 Day, 42 ; i\Iarshall v. Morris, IG 
 Geo. 3G8 ; Pate v. Spotts, G Munf. 
 394; Carey v. Callan, G B. Mon. 44; 
 The Governor v. Campbell, 17 Ala. 
 
 566; per Sedgwick, J., Brazier v. 
 Clapp, 5 Mass. 10. 
 
 2 Ricks v. The State, 16 Geo. 
 GOO. 
 
 3 State V. Cowan, 7 Ired. 239 ; 
 Fuller V. Ruby, 10 Gray,'S85; State 
 «. Frank, 5 Jones, 384; State u.Pike, 
 20 N. H. 344. 
 
 * Per Morgan, J., Munro ^.Potter, 
 34 Barb. 3Gi. 
 
 (a) A writ of error will not lie to reverse a judgment on account of 
 an error in favor of the party applying. Sterret v. Creed, 2 Ilam. 343 ; 
 Trabue v. M'Kettrick, 4 Bibb, 180 ; Hughes v. Stickucy, 13 Wend. 280 ; 
 Henry v. Smoot, Minor, 18 ; Covey v. The State, 4 Port. 186 ; Hammitt 
 V. Bullett, 1 Call, 5G7. Nor where the plaintiff sustained no injury from 
 the error. Overley v. Paine, 3 J. J. Marsh. 717.
 
 en. III.] GROUNDS OF NEW TRIAL — HARMLESS ERROR. 41 
 
 poses of substantial justice."^ Thus, under the (Georgia) 
 act of February 20, 1854, as amended December 12, 1859, 
 the court is not required to grant a new trial in any case, 
 for an immaterial error.^ So, where a bill of exceptions, 
 to an order of court granting a new trial, showed that the 
 court gave a bad reason for directing a new trial, but also 
 that the motion was made upon several grounds, which 
 were sufficient if true ; held, the action of the court below 
 would be presumed correct.^ And a new trial will not be 
 granted, where a different verdict could not stand.* So 
 it is no ground for a new trial, that the court refused to 
 allow a claim of recoupment, when the same amount was 
 allowed under a difi'erent form.^ So, where, on a motion 
 for a new trial, an affidavit of a juror was erroneously 
 stricken from the files, but it appeared to have worked no 
 injury or prejudice to the party complaining ; held no 
 ground for a new trial. ^ So, in an action for entering a 
 house and killing a dog, the defendant cannot object that 
 no damages are assessed for the unlawful entry.'' So, 
 where a defendant, after a judgment coram non Judice, 
 moves for a new trial, when on the facts he is entitled to 
 go without day ; the plaintifl" cannot complain of the 
 order granting such inferior relief.^ So, if a defendant 
 makes two defences to the same claim, one of which is 
 sustained by the verdict, it is immaterial whether the 
 other has been correctly or incorrectly determined.^ So, 
 when a suit has been regularly prosecuted to judgment, 
 and substantial justice has been done, the parties are not 
 entitled to have it retried, at the expense of the public, 
 and to the delay of other suitors, although both join in 
 the application.^*' 'Nor will a new trial be granted in order 
 
 ' Per Sanford, J., Gold B.Ives, 29 s Brush v. Keeler, 34 Conn. 499. 
 
 Conn. 123. 6 Hall v. Robison, 25 lov^a, 9. 
 
 2 Morton «. Pearman, 30 Ga. 281. 7 Bishop v. Fahay, 15 Gray, Gl. 
 
 3 McCreary«.Cockrill,3 Kaus.37. « Garpentier v. Small, 35 Cal.346. 
 ^ Hegeler v. Henckell, 27 Cal. s Wolcott v. Smith, 15 Gray, 537. 
 
 491. 10 Nichols V. Sixth, 10 Bosw. 2G0.
 
 42 THE LAW OF NEW TRIALS. [CIL III. 
 
 to allow a technical correction.^ So it is no ground ibr a 
 new trial, that a demurrer to a special plea was errone- 
 ously sustained, when the facts alleged in such plea might 
 have been given in evidence under other pleas.- So, if, in 
 an action to recover for breaking and entering the plain- 
 tiff's close, consisting of a beach and upland, it appears 
 that the plaintiff has no sufficient title to the beach to 
 enable him to maintain his action for a trespass thereon, 
 and a general verdict is rendered for the defendant ; a 
 new trial will not be granted, unless it affirmatively ap- 
 pears that the case was submitted to the jury under im- 
 proper instructions in reference to his right to recover for 
 a trespass upon the land to which he established a title.^ 
 
 § 2. Erroneous instructions, either favorable or not inju- 
 rious to the losing party, are no ground for a new trial.^ 
 Thus, to instruct the jury upon the law governing a state 
 of facts not developed in the evidence.^ So with a remark 
 of the judge favorable to him, although irregular and 
 indicating the judge's private opinion.^ So in case of a 
 request for erroneous instructions, made by the prevailing 
 party, but favorable to the losing party.^ Thus, where, on 
 an indictment for murder, a new trial was moved for on 
 the a'round of an erroneous charge to the triors as to the 
 
 < Devenclorfi).Wert,42Barb.227. Ired. rA~i ; Mansfield v. Wheeler, 
 
 2 Powell V. Asten, 30 Ala. 140. 2:? AVend. 79 ; Freeman v. Kankin, 
 
 3 Tappaii fl.Burnliam, 8 Allen, G5. 8 Sliep. 446; Potter v. Hopkins, 25 
 ^ Fagan v. Williamson, 8 Jones, Wend. 417; Bosley v. Chesapeake, 
 
 433; ilook v. Craghead, 35 Mis. &c., 3 Gill, and J. 450; Selleck v. 
 
 380 ; Mirick v. Hemphill, 1 Hemp. Turnpike Co., 13 Conn. 453; Cam- 
 
 179; Mori'ord ». Woodworth, 71nd. den, 6cg. v. Belknap, 21 Wend. 
 
 83 ; Davis v. Jenney, 1 Met. 224 ; 354 ; People v. Scott, 6 Mich. 287 ; 
 
 Smith «. Page, 2 Salk. G44; Hobbs Armstrong v. Piersou, 8 Clarke, 
 
 V. Outlaw, (5 .Jones, 174; Depeyster 29; Darling v. Dodge, 3G ]Maiue, 
 
 ?;. The Columbian, t^'c, 2 Caines, 370; Salmons v. Koundtree, 24 
 
 85 ; Gardner v. Clark, 17 Barb. Ala. 458 : McCoy v. The State, 15 
 
 538; Means 11. Means, 7Bich, 533; Geo. 205; Ncwberg v. Farmer, 1 
 
 McCready v. South, Szc, 2 Strobh. Wash. Terr. 209. 
 
 35(J ; Maston v. Fanning, 9 Mis. ^ Qnint v. Ophir, 4 Nev. 304. 
 
 305 ; Kathbone v. City, &c., 31 « McDougall v. Shirley, 18 N. H. 
 
 Conn. 208 ; Price v. Evans, 4 B. 108. 
 
 Mon. 380 ; Katliff v. Huntly, 5 ^ Preston v. Lcightou, G Md. 88.
 
 CH. III.] GROUNDS OF NEW TRIAL — HARMLESS ERROR. 43 
 
 competency of a juror; but the motion did not state 
 whether the jurjanan was put upon the triors by the 
 State or by the prisoner, nor the bill of exceptions show 
 what the charge was : held, the court above could not say 
 whether the charge was favorable or adverse to him, and 
 therefore could not order a new trial. ^ So, in an action 
 upon a note given as a renewal, to which the defence of 
 usury was set up, the judge charged, that the second note 
 was good, though given on a usurious agreement; whereas 
 the proper instruction would have been, that the second 
 note was avoided by usury, but the plaintiff might still 
 recover upon the original loan, if not usurious. The 
 second note being given only for the amount of the loan 
 with interest ; held, a mere verbal error, and a verdict for 
 the plaintiff should stand.* 
 
 § 3. An erroneous instruction is held no ground of new 
 trial, if the verdict is correct under the law and facts.' 
 So it was no ground of new trial, that a question of law 
 was left to the jury, which they decided correctly.^ Or a 
 fact on which the admissibility of evidence depends, if 
 the party excepting could not be injured by it.^ So if it 
 be erroneously left to the jury to determine the amount 
 of damages, which they return correctly.® So where the 
 jury were instructed that they could give consequential 
 damages, not laid in the declaration, but the verdict 
 plainly did not award such damages.^ So, in a suit for 
 damages for flowing land, certain instructions were given, 
 and others asked and refused, all based on the assumption 
 that no actual damage had been done to the plaintiffs in 
 
 ' Bowie V. State, 19 Geo. T. • Stokes v. Arey, 8 Jones, 66 ; 
 
 2 Mansfield v. Wheeler, 23 Wend. Marshall v. Fisher, 1 ib. Ill ; Simp- 
 
 79. son V. Norton. 45 Maine, 381 ; 
 
 ' Hanna v. Renfro, 32 Miss. 125 ; Woodman v. Chesle}% 39 ib. 45 ; 
 
 Welborn v. Spears, ib. 138; Welch Great, &c. v. Buzzell, ib. 173. 
 
 V. Butler, 24 Geo. 445 ; Myrick v. ^ State v. Dick, 1 Wins. No. 2, 45. 
 
 Hicks, 15 Geo. 155; Pritchard v. « Howard v. Browne, 8 Shep. 
 
 Myers, 11 S. & M. 169 ; Cochrane 385. 
 
 V. Winburn, 13 Tex. 143. ? Zeigler v. Braddy, 11 Rich. 557.
 
 44 THE LAW OF NEW TRIALS. [CII. III. 
 
 flowing the laiul, and that they were entitled to nominal 
 damages only. The jury returned a verdict for the plain- 
 tiffs for $200. Held, on this finding, all these instruc- 
 tions became immaterial.* So two actions were brought 
 ao"ainst the same defendant for the same assault, one by 
 the person assaulted, a female, the other by her aunt, with 
 a -per quod servitiura amisit. On the trial of the latter, the 
 counsel for the plaintiff gave notice that the former would 
 be abandoned, and withdrew the record. The defendant 
 claimed that only nominal damages could be given for loss 
 of service, but the judge charged otherwise, and the jury 
 gave their verdict accordingly. Held, although the in- 
 struction was wrong, substantial justice having been done, 
 there should not be a new trial.^ So, in an action for libel, 
 the defence being set up, that the charge consisted in a 
 complaint made to a church of which the plaintiff was a 
 member ; the judge instructed the jury that there was no 
 evidence of express malice, which under the circumstances 
 was necessary to be proved. No such evidence was offered, 
 but there was slight evidence to sustain the action. Held, 
 a new trial should not be granted on the ground of error 
 in the instruction, "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.^ 
 
 § 4. And, in general, where a new trial is moved for on 
 the ground of misdirection, calculated to raise an imma- 
 terial issue ; if justice has been done, and there was no 
 evidence by which the parties would have been misled, 
 the verdict will stand.* So though the charge is wrong, 
 but the jury disregard it and render a correct verdict.* 
 So, in a clear case, though the judge slightly err in taking 
 
 ' Eastman v. Amoskcag, 44 N. * Prcscott v. Johnson, 8 Flor. 
 H. 14.3. 391. 
 
 2 Edmonson v. Macliell, 2 T. R. 4. s Tilman v. Stringer, 26 Geo. 171. 
 
 3 Kcniiiigtou V. Cougdon, 2 Pick. 
 310.
 
 en. III.] GROUNDS OF NEW TRIAL — HARMLESS ERROR. 45 
 
 down the testimony.^ More especially, where justice is 
 done, a new trial will not bo granted for the omission of 
 instructions which were not requested.- 
 
 § 5. And a new trial will not be granted for refusal of 
 an instruction which would not have changed the verdict.^ 
 Or for the omission to give instruction upon a matter of 
 law not requested, when such omission could not have 
 worked any prejudice.^ Or an erroneous ruling, when the 
 facts cannot be changed, and the facts proved are conclu- 
 sive in support of the judgment.' Or an incorrect ruling, 
 rendered immaterial by the finding of the jury.^ Or one 
 which had no effect.^ Or irrelevant instructions not tend- 
 ing to mislead the jury or prejudice the party's rights.^ 
 So a new trial will not be granted, where the court in- 
 structed the jury that a certain notice, in fact sufficient, 
 was insufficient ; provided the other evidence in the case 
 was sufficient to annul the effect of such notice.' So, 
 where, in an action of trover, an actual conversion is 
 shown, upon the other facts of the case, and a demand 
 and refusal are relied upon for that purpose ; it can fur- 
 nish no ground for setting aside the verdict, that the court 
 refused to instruct the jury, in relation to the sufficiency 
 of the evidence of a demand, that, under the circum- 
 stances, a demand and refusal would not be evidence of a 
 conversion.^*' And, where it appears that the plaintiff has 
 not a sufficient title to sustain the action, he cannot main- 
 tain a bill of exceptions, without showing affirmatively 
 that erroneous instructions were given as to his rio-ht to 
 recover upon proof of title.^^ 
 
 » Sarah v. State, 28 Geo. 576. ^ Marcly v. Shults, 29 K Y. (2 
 
 * Wakeman v. Robinson, 1 Bing. Tiff.) 346. 
 
 213. 7 Ilubby V. Stolies, 22 Tex. 217. 
 
 3 Wilkinson v. Griswold, 12 S. & « McCall v. Seevcrs, .5 Ind. 187. 
 
 M. 6G9 ; Douglas v. McAlister, 3 ^ Findav v. Parker, 24 Geo. 333. 
 
 Cranch, 298; Hoyt v. Dimou, 5 '« AValcott y. Keith, 2 Fost. 196. 
 
 Day, 479. " Tappan v. Burnham, 8 Allen, 
 
 * Olnev V. Chadsey, 7 R. I. 224. 65. 
 5 Brown v. Bowen, 30 N. Y. 519.
 
 46 THE LAW OF NEW TRIALS. [CU. III. 
 
 § G. The same rule is applied with reference to the 
 wroiifj^ful admission or rejection of evidence ;^ and the cases 
 which illustrate this particular application of it are very 
 numerous and various. As where, in general, the evi- 
 dence is not material, or important, or is superfluous, 
 the same facts being proved by other unquestionable tes- 
 timony; or conceded.'^ Unless it be proved that injury 
 resulted.^ Or where it cannot possibly afi'ect the result.'* 
 Or, more especially, where evidence wrongly admitted 
 was favorable to the ^ixviy objecting.^ It is held that the 
 admission of incomjpeteiit evidence is no ground for a new 
 trial, unless it appears that it probably influenced the 
 verdict.^ So it is held that judgment will not be reversed 
 on the ground that interested witnesses were allowed to 
 testify, if under the present practice they would be com- 
 petent at another trial, or if no exception was taken, 
 and their evidence not very important.^ So, where a 
 contract sued on sufliciently expresses the consideration 
 on its face, a new trial will not be granted, for error in 
 admitting evidence of the actual consideration in sup- 
 port of the contract.^ So where wrong evidence is ad- 
 
 ' See Blain v. Stewart, 2 Clarke, » Tucker v. Peaslec, BO N. II. 1G7; 
 
 378 ; Grosvernor t). Atlantic, &c., 1 Browning «. State, 33 Miss. 47; 
 
 Bosw. 4C1) ; Arclulale v. Moore, 19 Skowliegau v. Cutter, 52 Maine, 
 
 111. 565 ; Hunt v. Bennett, 4 E. D. 509. 
 
 Smith, G47 ; Wise v. State, 2 Ivans. * Lowrey v. Steward, 3 Bosw. 
 
 419. 505 ; Pccplcs v. Smith, 8 Rich. 90 ; 
 
 2 Sharp I). Johnson, 22 Ark. 79 ; Bird v. The State, 14 Geo. 43 ; Van 
 Metton V. Cobb, 21 Tex. 539 ; Eck- Cort t\ Van Cort, 4 Edw. Ch. 621 ; 
 ert V. Cameron, 43 Penn. 120; 7 Barb. 5H5 ; 5 Ind. 286 ; Irwin i;. 
 Bragg «. Boston, 9 Allen, 54 ; Dim- Treii;o, 22 Penn. 368. 
 mick V. Milwaukee, 18 Wis. 471 ; ^ pju-ker v. Foster, 26 Geo. 465 ; 
 Sibley t\ Lcllingwell, 8 Allen, 584; Lumday -v. Thomas, ib. 537; 10 
 Cogan«. Frisby, 36 Miss. 178; The ib. 208; Ellis v. Smith, ib. 253; 
 Wayne, &c. v. Berry, 5 Ind. 280 ; Smith v. Kerr, 1 Barb. 155 ; Smith 
 Lee V. Baldwin, 10 Geo. 208 ; Bea- v. Ilarmanson, 1 Wash. 6. 
 gles V. Scftou, 7 Ind. 490 ; Carr v. g Ames v. Potter, 7 R. I. 265 ; 
 Gale, 1 Curl. 384; Campbell c. Wil- Bridier v. Yulee, 9 Flori. 481 ; Pat- 
 son, 6 Te-K. 379 ; Lockctt v. Mims, ton v. Gregory, 21 Tex. 513 ; Field 
 27 Geo. 207; Robson v. .Tones, ib. v. Avery, 17 Wis. 672, 
 266; Clement r. Brooks, 13 N. II. ' ]\IcCall v. Seevers, 5 Ind. 187; 
 92; McCall y. Brock. 5 Strobh. 119; Carol ('. I\Iayo, 8 Dana, 198. 
 School, A:c. v. Bragdon, 3 Fost. ^ Howard v. Holbrook, 9 Bosw. 
 507. 237.
 
 CH. III.] GROUNDS OF NEAY TRIAL — HARMLESS ERROR. 47 
 
 mitted, but the case turns upon the construction of a 
 paper.^ So it is held, that, if illegal testimony be ad- 
 mitted, a new trial will not be granted on that account, 
 provided there was sufficient other evidence to autliorize 
 the verdict. ° Thus, though it is incompetent for the 
 plaintiff to prove his own declarations, yet, if the facts 
 are proved by other legal evidence, the admission of such 
 evidence is held no ground for a new trial. ^ IS'or the re- 
 jection of testimony, which, if admitted, would have 
 proved every fact in issue, and made the decision of the 
 court, on the whole, right.^ JSTor the admission of a de- 
 position which does not tend to prove the issue ao-ainst 
 the excepting party. ^ Nor the rejection of an unimportant 
 deposition.^ So suppression of a portion of a depo- 
 sition, on motion, before trial, is no cause for a new trial 
 on the ground of surprise, when the portion suppressed 
 could have been of no benefit to the party moving for the 
 new trial.^ So, where there are several counts in the 
 declaration, and a general verdict is given, the court will 
 not set it aside, because the evidence which would support 
 one count was received as applicable to another, to which 
 it was inapplicable.^(rt) Nor because a copy of the statute 
 of another State, which was improperly certified, was ad- 
 mitted at the trial, if it appear by a copy, properly certified, 
 
 ' Churcliill V. Corker, 25 Geo. ^ Dodge v. Greeley, 31 Maine, 
 
 479. 343. 
 
 2 ]\Iurpliy V. The Justices, &c., ^ Hill v. Meyers, 43 Peun. 170. 
 11 Geo. 331 ; Stephens v. Crawford, ^ Hirsch v. Patterson, 23 Ark. 
 1 Kelly, 574. 113. 
 
 3 Bradford?). Pearson, 13 Mis. 71. ^ ciark v. Pendleton, 20 Conn. 
 * The State v. Lawson, 14 Ark. 495. 
 
 114. 
 
 (a) Where there are objectionable counts, the defendant should either 
 demur to them, or ask the court to instruct the jury to discriminate be- 
 tween the good and bad counts. But, where error is allowed after motion 
 for a new trial, if there be evidence enough to support the verdict, appli- 
 cable to the good counts, the court will not award a new trial. Sexton 
 V. Brock, 15 Ark. 345.
 
 48 THE LAW OF NEW TRIALS, [CH. III. 
 
 that tlie former copy was a correct ono.^ So the erroneous 
 admission of a deed, under which both parties chiim title, 
 is no o-round for a new triah- Xor of testimony which 
 the jury were instructed to and apparently did disregard.^ 
 So a new trial was refused to the defendant, where the 
 testimony was wrongly admitted to contradict a witness 
 for him, but such witness proved nothing beneficial to the 
 defendant. The court say : " The error was innoxious in 
 so far as this case is concerned."* So the court above 
 refused to grant a new trial, where substantial justice was 
 done, although the court below had improperly admitted 
 a parol award in evidence.^ And erroneous admission of 
 evidence, which is at the time inadmissible, is cured by 
 the subsequent introduction of evidence which renders it 
 admissible.^ As where a paper not authenticated was 
 admitted, but the proper proof afterwards supplied.^ Or 
 where evidence was admitted of the contents of a written 
 instrument, upon the assurance of counsel that he would 
 subsequently show the destruction of such paper; which 
 evidence was afterwards produced.^ So the erroneous 
 rejection of a witness is cured by subsequently admitting 
 him to testify.^ And the same rule is applied, where, 
 even in a criminal case, an attested deed is allowed to be 
 proved by other evidence than that of the subscribing 
 witness ; such witness being afterwards called by the de- 
 fendant, and testifying to the circumstances attending the 
 execution of the deed.'" Or in case of the admission of 
 wrong evidence, to prove a fact admitted in the pleadings, 
 or otherwise properly proved." Or for the admission of 
 
 1 McDugald V. Smith, 11 Ired. « Scott v. State, 30 Ala. 503. 
 576. ' State v. Douglass, 7 Clarke, 
 
 2 Rhines v. Bainl, 41 Pcnn. 256. 413. 
 
 3 Smith V. Whitman, G Allen, ^ state v. Black, 6 Jones, 510. 
 562; Beck ij. Cole, 16 Wis. 1)5; » Morrison v. ISIcKirnon, 13 
 Thomas v. Henderson, 27 Ala. 523 ; Flori. 552; Commonwealth «. Ohio, 
 Winter v. Phelan, ib. 049. &c., 1 Grant's Cases, 329. 
 
 ^ Wright V. Cumpsty, 41 Penn. '" Com. v. Castles, 9 Gray, 121. 
 
 102, 111. " Brown v. liobinson, 25 Geo. 
 
 5 McMuUen v. Mayo, 8 S. i& M. 144; Fore». Williams, 35 Miss. 533. 
 298.
 
 CII. III.] GROUNDS OF NE^y TRIAL — HARMLESS ERROR. 49 
 
 parol evidence of a letter, if confirmed by an admission 
 of the party.^ Or where the admissions of a [)erson were 
 received as those of a partner, without objection; but 
 subsequent proof was oftered, that he had ceased to be 
 such.^ So no exception lies, for the want of evidence of 
 the negotiability of bonds in the State where the bond in 
 question arose ; if the Secretary of State certifies to the 
 court, that, from the statutes of that State filed in the 
 executive office, bonds are there negotiable.^ So, where, 
 on the trial, exception is taken to the sufiiciency of the 
 proof of the contract sued on, and subsequently the defect 
 is supplied by other evidence; such objection cannot be 
 used on a motion for a new trial, upon a case.'' So, though 
 there be a doubt whether the evidence of a discredited 
 witness has been properly excluded; a new trial will not 
 be granted, if the fact to which he testified is admitted 
 l)y the answer of the opposite party.^ So, where a fact, 
 which the defendant calls a witness to j^rove, has already 
 been proved by the plaintifi", the admission of the witness 
 is no cause for setting aside the verdict.® Nor will a new 
 trial be granted, on account of the exclusion of a depo- 
 sition, though erroneous, where no injury resulted, as the 
 minutes of counsel, containing the testimony of the wit- 
 ness on a former trial, went to the jury, and, for aught 
 which aj'jpeared, contained all that was material in his 
 deposition.^ So in a motion for a new trial, because an 
 official letter from the commissioner of the patent office, 
 on an official matter, was admitted as evidence tending to 
 prove the time of making the invention: there is some 
 analogy to justify its admission, after proving its signa- 
 ture, as official correspondence, and also as a declaration 
 made at the time, concerning a particular 'act, as part of 
 the res gcstce ; and, though its competency ma^'^^ be ques- 
 
 ' Williams v. Brickell, 37 Miss. * Bronson v. Wiman, 10 Barb. 
 
 683. 406. 
 
 2 Walton v. Payne, 18 Tex. 60. s Emory v. Phillips, 23 Mis. 499. 
 
 3 Grace v. Hannah, 6 Jones, 94. ^ Knowles v. Dow, 3 Fost. 387. 
 
 7 Allen V. Blunt, 3 W. &IL 121.
 
 50 THE LAW OF NEW TRIALS. [CH. III. 
 
 tionable, if subsequent evidence, in the progress of the 
 case, rendered it unnecessary to i)rove the fact for which 
 it was oftered, a new trial will not be granted on account 
 of its admission.^ So it is held that no exception lies for 
 the admission of a perjured witness, unless it appear that 
 without such evidence a difierent verdict would have been 
 rendered.- ^S'or for the rejection of the opinion of a wit- 
 ness bearing on the question of damages, when there was 
 sufficient positive evidence to sustain the verdict, unless 
 it appear that injustice has been done.' Nor where the 
 demandants showed a good title prior to that under which 
 the tenant claimed, thus rendering immaterial all ques- 
 tions relating to a mortgage given to the tenant." Nor 
 where incompetent evidence, offered without objection, 
 was struck out by the judge after the arguments to the 
 jury had commenced.^ Nor for application, by the court, 
 of evidence properly admitted for some purpose, to prove 
 a fact, for the proof of which it was not proper, but which 
 it was unnecessary to prove." Nor for the admission of 
 evidence of a usage, when, by an express contract proved, 
 the same liability is established.^ Nor where a paper did 
 not go to the jury, but they remembered its contents.^ Or 
 where evidence is rejected, but the jury are afterwards 
 instructed to consider the fact as proved.^ Or for the ad- 
 mission or rejection of evidence to prove a presumption 
 of law ; as the sanity of a grantor.^" Or of evidence against 
 a point fully proved.'^ So, where the books of the plaintiff 
 were made testimony by the defendant, and the judge 
 afterwards erroneously excluded them, and the plaintiff' 
 moved for a new trial on that ground alone ; it was held 
 
 " 2 W & M. 121. ^ Emmons v. Lord, 6 Shep. 351. 
 
 2 Ilichanlson v. Roberts, 25 Geo. » state v. Pike, 20 N. II. ^44. 
 
 671 See State v. Whit, 5 Jones, ^ Morehead v. Brown, 6 Jones, 
 
 324.' 367. 
 
 » Rcnaud I'. Peck, 2 ITilt. 137. '" Deannond v. Dearmond, 12 
 
 « Glover v. Ilolbrook, 5 Allen, Ind. 455 ; Hutchinson v. Moody, 6 
 
 ir^-f Shepl. 393. 
 
 •^Selkirk v. Cobb, 13 Gray, 313. " Smith v. Northern, &c., 1 Met. 
 
 6 Jones V. Gilbert, 13 Conn. 507. (Ky.) 575.
 
 en. III.] GROUNDS OF NEW TRIAL — HARMLESS ERROR. 51 
 
 that the court could not reverse the judgment on that 
 ground, as the plaintift' couhl not make liis hooks testi- 
 mony again, the defendant objecting.^ So the inability 
 of a witness to answer an improper question cures the 
 error of allowing it to be put.^ 
 
 § 7. A new trial will not be granted, on account of the 
 misconduct of a juror ^ which has been no injury to either 
 party .2 Thus a juror stated that "he had formed an 
 opinion from talking with neighbors, which, however, 
 would not influence his verdict ; that he had an opinion, 
 whether the stories he had heard were correct or not." 
 He was challenged for cause, and the challenge was over- 
 ruled. Held, that in view of the difficulty of deciding 
 upon the degree of strength of opinion which constitutes 
 ground of principal challenge, or to the favor, &c. ; of the 
 facts, that the juror in question did not serve on the jury, 
 was not challenged to the favor, and no peremptory chal- 
 lenge appeared to have been wasted upon him: the error, 
 if any, was no injury to the defendants, and no ground 
 for a new trijil.'* So where a juror, contrary to statute, 
 was chosen and drawn more than twenty days before the 
 sitting of the court at which the venire was returnable ; 
 but no fraud nor tampering with the jury was suggested, 
 nor any prejudice to the losing party arising from this 
 cause : held, the objection, appearing on the record, would 
 not be ground of error, and was not ground for a new 
 trial.= 
 
 § 8. The same rule is applied to the suggestion of sur- 
 2)7ise, as ground for a new trial. Thus a witness, on the 
 trial of an action of ejectment, stated that he had reco- 
 vered possession of the land from the lessors, and had sold 
 it to one under whom the defendant claimed, which evi- 
 
 ' Brown v. Williams, 4 Humph. ^ Xewell v. Aver, .32 Maine, 334. 
 
 23. ■• Scboeffler i'." State. 3 Wis. 823. 
 
 ^ Lewis V. Baker, 5 Rawle, 114; ^ Amherst v. Hadley, 1 Pick. 38. 
 Allen V. Rostaiu, 11 S. & R. 362.
 
 52 THE LAW OF NEW TRIALS. [CII. III. 
 
 (leiieo Avas rejected for want of the record. The verdict 
 was for the plaintift", and tlie defendant moved for a new 
 trial on liis affidavit that he never knew of that recovery 
 till it was spoken of by the wntness ; that ho had been 
 but six years in the country; that he had found those he 
 purchased of in quiet possession ; and that there was 
 nothing to direct his attention to the record, which w\as 
 in another county. Held, though these facts hardly 
 amounted to sufficient diligence, yet a new trial might 
 have been allow^cd, liad nothing else appeared ; but as the 
 inference from all the rejected evidence was, that the 
 record w^ould operate against the defendant, and he failed 
 to shoAv how it would operate for him, the new^ trial must 
 be denied ; the bare possilnlity that the record, if pro- 
 duced, might help him, not being sufficient.^ 
 
 § 9. The same principle is applied to questions of neidy- 
 discovered evidenced So also to incidental and interlocu- 
 tory proceedings in a trial. Thus, if the plaintiff fails 
 to offer evidence sufficient to maintain the action, it is 
 ground of motion for nonsuit ; but if such evidence is 
 afterwards given, a new^ trial will not be granted.-'' On 
 the other hand, no exce})tion lies to a ruling, that the evi- 
 dence introduced by the plaintiff will not support the 
 action, if by a special verdict, afterwards taken at his 
 request, the jury find against him a fact essential to his 
 case.* So where to a declaration in assumpsit the defend- 
 ant pleaded the general issue and the statute of limita- 
 tions ; and the plaintiff moved to strike out the latter 
 plea, on the ground that it was not filed in season, which 
 motion was overruled, and the cause was tried on both 
 issues, which were found for the defendant : held, a new 
 trial should not be granted, for the plaintiff had suffered 
 no injury by the refusal of his motion.^ So, although in 
 
 • Harris v. Price, 4 Dana, 79. * Bowditcli, &c. v. Buffum, 2 
 
 2 Bullock T. Beach, .3 Verm. 73. Gray, ooO. 
 
 3 Barrick i'. Austin, 21 Barb. 241. ^ (jross v. Hall, 4 Md. 42G.
 
 CH. III.] GROUNDS OF NEW TRIAL — HARMLESS ERROR, 53 
 
 general a judgment will be reversed, if exceptions to a 
 plea have been improperly allowed, yet, if the cause was 
 tried upon the matters embraced in the plea, notwith- 
 standing the exceptions, and the jury have been instructed 
 in reference to them, and have passed upon them as if they 
 were properly in issue, so that the defendant has suffered 
 no injury from the ruling of the court; a new trial will 
 be denied.' So, if the object of a new trial is merely to 
 nonsuit the plaintiff, for a defect which might be cured 
 by amendment ; it will not be granted.^ So, a demurrer 
 to a declaration being sustained, an amendment was al- 
 lowed, reserving the terms for future consideration, con- 
 trary to the rule of court, which requires payment of a 
 term fee; but the exceptions did not show that a trial was 
 permitted before deciding upon such terms, and conse- 
 quently that the party thereby suffered any injury. Xew 
 trial refused.^ So, when a motion for a new trial is not 
 drawn up for some weeks, and the counsel disagree as to 
 some of the rulings ; the court must settle the differences, 
 and not award a new trial on account of them, if no injus- 
 tice seems, on the whole case, to have been done by the 
 verdict.^ So it is held, that an erroneous refusal, to allow 
 a party to open and close, does not entitle him to a new 
 trial, in the absence of proof that he was prejudiced by 
 the refusal.^ 
 
 § 10. It is obvious, however, that the question, whether 
 any injury has resulted from the error relied on as the 
 ground of new trial, must open a very inconvenient lati- 
 tude of inquiry, unless the rule above stated is somewhat 
 strictly construed in favor of the prevailing party. Ac- 
 cordingly there is a class of cases which hold, that the 
 fact, that no injury has accrued to the losing party from 
 
 ' McClenny v. Floyd, 10 Tex. » "W'eljber v. Davis, 5 Allen, 303. 
 
 159. 4 Allen v. Blunt, 2 W. it M. 121. 
 
 2 Gerbier v. Emery. 3 Wash. Cir. s Bethea v. Prothro, 28 Geo. 109. 
 413.
 
 54 THE LAW OF NEW TRIALS. [CH. III. 
 
 tlic error ('(nnplaincd of, must be distlndhj shoicn^ in order 
 to prevent ii new trial. It is said, witli more particidar 
 reference to the admission of incompetent evidence, " It 
 is not always easy for the court to distinguish between 
 the force and effect of the competent and incompetent 
 evidence. But there is an ol)jection deeper and more for- 
 midable ; it arises from that fundamental rule in the con- 
 duct of jury trials, that it is as much the province of the 
 jury to ascertain the truth of the facts upon competent 
 evidence, as it is the province of the court to decide upon 
 the competency of evidence, and generally upon the rules 
 of law by which a jury are to be governed."^ Hence, if 
 improper evidence be admitted, a new trial will be granted, 
 unless it can be seen that such evidence could have had no 
 influence on the verdict.^ More especially, judgment will 
 be reversed, when illegal evidence is admitted, and the 
 other evidence is not sufficient to sustain the verdict.' 
 And although, where a point in the cause is clearly proved 
 by competent evidence, and found by the jury, a new trial 
 will not be granted because of the incidental admission 
 of improper and not very important evidence, tending to 
 prove the same point ; yet it must appear very satisfacto- 
 rily that the verdict must and ought to have been the 
 same, whether the questionable evidence was admitted or 
 not.'' Or that a verdict the other way would be set aside 
 as against evidence.^ So it must be clear that justice has 
 been done, and there must be little reason to believe a dif- 
 ferent result would ensue upon a second trial.^ And the 
 distinction is made, that, although a new trial will not 
 be granted on a case made, because incompetent evidence 
 has been received, if it has not affected the result ; it is 
 
 ' Per Shaw, C. J., Thorndike «. s Tij^^j^^-^jj-e ^ Boston, 1 Met. 
 
 Boston. 1 j^Iet. 248. Sec Lynes v. 243 ; Kutzen v. Farr, 4 Ad. & El. 
 
 State, :3G Miss. CAI ; Madden v. 50; Crease v. Barrett, 1 Cr. iVI. S: R. 
 
 State, 1 Kans. 840. 91!); Wright v. Tatham, 7 Ad. &, El. 
 
 2 Santillan v. Mooes, 1 Cal. 92. 330. 
 
 3 Owen V. Jones, 14 Ark. .502. « Barringer m. Nesl)it, 1 Sm. & M. 
 
 4 Prince v. Siiepard, 9 Pick. 17rt; 22. But sec the Slate v. Allen, 1 
 Tlioinpson v. Lothrop, 21 Pick.33G. Hawks, 6.
 
 CH. III.] GKOUNDS OF NEW TRIAL — HARMLESS ERROR. 55 
 
 otherwise with a bill of exceptions.^ As where, in an 
 action of trespass, it was a material question whether the 
 defendant had notice that the property was under attach- 
 ment, and an interested witness was allowed to testify to 
 circumstances which indicated such notice ; although the 
 verdict for the plaintiff was sustained by other evidence.^ 
 So the case must be clearly and indisputably made out 
 without the objectionable evidence, or a new trial will be 
 granted, although the referee, before whom the former 
 trial was had, report that in making up his decision he 
 rejected this improper evidence.^ So it is held, that, if the 
 testimony of an incompetent witness has been admitted, 
 the verdict will be set aside, notwithstanding, at a subse- 
 quent trial, the same witness would be competent.^ (See 
 p. 35.) And the same rule is applied to the erroneous ex- 
 clusion of competent evidence. It must appear beyond 
 doubt that the error complained of neither did prejudice 
 nor could have prejudiced the party against whom the 
 error was made. Hence, where, by an error of the court 
 below, a plaintiif had not been allowed to introduce the 
 first item of her testimony, and had no interest therefore 
 to show anything which might avoid the proof of the 
 other side — proof which, though apparently fatal to her 
 case, even though the error had not been made, she might 
 possibly have avoided but for the error; the judgment was 
 reversed.^ So statements made by a client to his attorney, 
 in presence of a third person, were held not admissible 
 upon the testimony of such person ; but the same witness 
 testified to similar declarations, not confidentially made. 
 Held, the former evidence was admissible, and a new trial 
 should be granted for its exclusion; that the party was 
 entitled to the benefit of a repetition of the same state- 
 ments made on another occasion, and also of the peculiar 
 
 ' Lothrop V. Wright, 24 Wend. * Doe v. President, &c., 7 Ind. 
 
 221. G41. 
 
 2 21 Pick. 336. 5 Oeery v. Cray, 5 Wall. 795. 
 
 3 Allen V. Way, 7 Barb. 585.
 
 56 THE LAW OF NEW TRIALS. [CII. III. 
 
 formality and soloniiiity which attached to them as made 
 to a leii'al adviser.^ So although the court may not think 
 the verdict unreasonable in amount or otherwise, yet a 
 new trial will be granted, if the jury are erroneously in- 
 structed upon a point that might have affected their ver- 
 dict.- As where money was brought into court, and taken 
 out, ])ut not in satisfaction, and a balance of fourteen cents 
 and four mills was unpaid; but the court instructed the 
 jury to iind for the defendant if the defence was just, even 
 though a small balance remained due.^ And a wrong in- 
 struction is held to be a ground of new trial, though it is 
 not certain that it afiected the jury.' The distinction is 
 made, that a new trial should be granted, when there is 
 reason to apprehend that the instructions inai/ have misled 
 the jury in an important particular. Otherwise, when it 
 is merely conjectural whether any misapprehension has 
 occurred in the minds of the jury, and especially if the 
 matter be of slight im})ortance.^ And the more stringent 
 rule is sometimes ado})ted, that the court above will j;re- 
 same injury from error in the court below, uidess the record 
 itself rebuts the presumption, and shows affirmatively that 
 no injury could have resulted." That, where the instruc- 
 tions are erroneous, the verdict will be set aside, unless 
 the court is satisfied that under correct instructions no 
 other verdict could rightfully have been found. ^ It should 
 appear to be morally certain, that erroneous instructions 
 have not been injurious, before the party aggrieved can 
 be deprived of a new trial.'^(a) "A judgment will not be 
 
 ' Goddard v. Gardner, 28 Conn. ^ Sherman v. Clianiplaiu, itc, 31 
 
 172. Yt. 102. 
 
 2 Yonge V. The Mutual, &c.., 1 « Minis v. Sturdevant, 23 Ala. 
 Cal. 353; Tufts v. Seabury, 11 GG4; Dave ?j. The State, 22 Ala. 23. 
 Pick. 140. ' ' Noyes v. Shepherd, 30 ]\Iaine, 
 
 3 Boyden v. Moore, 5 Mass. >iCt~j. 173. 
 
 1 Baldwin v. Peet, 22 Tex. 708. « Thacher v. Jones, 31 IVIaine, 
 
 528. 
 
 (a) On a motion for a new trial in the Supreme Court of New York, 
 the court will not examine the decision of the Circuit Judge against the
 
 en. III.] GROUNDS OF NEW TRIAL — HARMLESS ERROR. 57 
 
 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 liave affected the verdict 
 or the judgment. But this very position implies that we 
 are to look beyond the letter of the exception into the case 
 itself, to ascertain what the effect of the error was."^ So 
 a new trial will be granted, on appeal for erroneous in- 
 structions, although, in the opinion of the appellate court, 
 the verdict was right on both the law and the evidence.^ 
 Or, although a verdict may be in accordance with the 
 weight of evidence, if the essential points in dispute were 
 by the charge withdrawn from the consideration of the 
 jury .3 
 
 § 11. We have considered the general proposition, with 
 its qualifications, that a new trial will not generally be 
 granted, where the party has not been injured by the result 
 of the former one. Another form of expressing the same 
 rule is often adopted, namely, that a verdict will not gene- 
 rally be set aside, by which substantial justice has been done 
 between the parties. The chief distinction between these 
 forms of expression seems to be this : The former means, 
 that the result of the trial would have been the same, 
 though the error complained of had not occurred ; the 
 latter, that, notwithstanding the error, the real merits of 
 the controversy have been reached, and therefore it would 
 
 1 Per Sutherland, J., Clarke v. » Highland Bank v. Wynkoop, 
 Butcher, 9 Cow. 674. Hill & Denio, 343. 
 
 2 James v. Langdon, 7 B. Mon. 
 193; Chandler v. Fulton, 10 Tex. 2. 
 
 party who obtained the verdict, unless the point is such that, when cor- 
 rectly determined, it would render the new trial useless. Elsey v. Met- 
 calf, 1 Denio, 323. In Vermont, where a case comes into the Supreme 
 Court upon exceptions, it is to be treated as though upon a formal writ 
 of error ; and, though the case be of so trifling importance that a new 
 trial would be refused on motion or petition, yet, if error have intervened, 
 the judgment must be reversed. Fullam v. Cummiugs, 16 Verm. 697.
 
 58 THE LAW OF NEW TRIALS. [CH. III. 
 
 l)c unjust to revive it for any mere teelmical cause.' Hence 
 a new trial cannot be had, to enable a party to avail him- 
 self of a legal defence, or a technical objection, where it 
 is inequitable, and substantial justice has been done.^ 
 There should be strong probable grounds to believe, that 
 the merits of the case have not l)een fully and fairly tried, 
 and that injustice has been done.^ "A verdict ought not 
 to be set aside for a slight slip, when the verdict is clearly 
 right."* More especially, where a very trifling amount is 
 in controversy; as where, in an action on a bond for $113, 
 payment was pleaded, and a receipt produced for $113, in 
 full payment of the bond ; and it appeared that, at the 
 time of payment, some interest was also due, and the 
 verdict was for the defendant. Held, the court rightly 
 refused a new trial.-^ Upon these grounds, it is held that 
 an affidavit for a new trial must contain a positive aver- 
 ment of merits.^ So, to entitle a party to invoke the 
 equitable powers of the court to grant him a new trial, he 
 must not only show a sufficient excuse for not having pur- 
 sued his ordinary legal remedy, but must bring liis case 
 within those equitable rules and principles which govern 
 the granting of new trials.^ And the rule applies equally 
 to a finding against evidence, or against the instructions 
 of the court, or under misdirection of the court. "^ 
 
 § 12. Numerous cases are to be found, illustrating the 
 application of this general principle to the several grounds 
 upon which a new trial may be claimed. Thus, as we have 
 
 > Georgia v. ScoU, 87 Ga. 94; 280; Fanning «. McCrancy, 1 Mor- 
 
 Union Bank v. ]\riddlobrook, 33 ris, 398. 
 
 Conn. J»o ; Graham r. Houston, 4 ^ Wheeler v. Shields, 3 Scam. 
 
 Dev. 233 ; Allen v. Blunt, 2 W. & 348. 
 
 M. 131 ; Gould r. White, G Fost. » Per Parker, C. J., Prince v. 
 
 178; Goodc ». Love, 4 Leigh, 033; Sheiiard, 9 Pick. 183. 
 
 Cartwriglit v. Carpenter, 7 How. ^ Thompson «. Lemoyne, 5 Pike, 
 
 (Miss.) 328; Robinson v. State, 2 312. 
 
 En;^ 123 ; Doc v. Tvler, Bing. ^ Elliott v. Leak, 4 Mis. 540. 
 
 ncf ; Hosford V. Wilson, 1 Taun. ? Miller o. Hall, 13 Te.x. nm. 
 
 12. See Marchman o. Todd, l."> ^ Leigh v. Hodges, 3 Scam. 15 ; 
 
 Geo. 25. King v. Hill, 2 Tayl. 211 ; Gillett 
 
 2 McConnell v. Strong, 11 Verm. v. Sweat, 1 Gilra. 475.
 
 CH. III.] GROUNDS OF NEW TRIAL — HARMLESS ERROR. 59 
 
 already suggested, a new trial ought never to be granted, 
 notwithstanding some mistake, or even misdirection, by 
 the judge, or the giving or refusing of irrelevant instruc- 
 tions, provided the court is satisfied that justice has been 
 done; that a new trial ought to produce the same result ; 
 that the verdict is conformable to law and evidence ; and 
 that upon the evidence no other verdict could properly 
 have been found.^ More especially, where the erroneous 
 instruction could not have influenced the jury or changed 
 the verdict.^ Or where the jury would be bound in law 
 to find such a verdict as they did find.^ And under these 
 circumstances it is no ground of new trial that the court 
 gave no instruction on the turning point in the case.* So, 
 when the question of facts, on which alone the cause de- 
 pended, was properly submitted to the jury, an error of 
 law in the charge of the judge will be disregarded.^ So 
 it is sometimes held, that a new trial will not be granted, 
 because the judge has allowed the wrong party to begin, 
 unless injustice is shown to have resulted from it.^ ISTor 
 for the allowance of an amendment of a declaration in 
 tort, by adding a count in contract, the verdict being ren- 
 dered under such instructions, that the jury must have 
 found a state of facts which would support either count.^ 
 Kor for the reason that a party is convicted, by a general 
 verdict, where there are several good and bad counts, if 
 
 ' Johnston v. The State, 14 Geo. Myers, 11 S. & M. 169 ; 7 Ind. 
 
 55 ; Arrington v. Cherry, 10 ib. 222 ; Randall v. Parramore, 1 
 
 429 ; Harris v. Doe, 4 Blackf. 309 ; Branch, 409 ; 3 Gilm. 202. 
 
 Morton v. Lawson, 1 B. Mon. 45 ; 2 Wood v. Wylds, 6 Eng. 754 ; 
 
 Bolan v. Peeples, 1 Brev. 109 ; In- Wilkinson v. Griswold, 12 S. & M. 
 
 graham v. S. Carolina, &c., 3 Brev. GG9 ; Vanuxen ?'. Rose, 7 Ind. 222 ; 
 
 522; Graham «. Bradley, 5 Humph. Greenup v. Stoker, 3 Gilm. 202 ; 2 
 
 476 ; Wylly v. King, Geo. Decis., W. & M. 121. 
 
 Part II. 7; Princeton, &c. v. Gu- » Duckett v. Cridef, 11 B. Mon. 
 
 lick, 1 Harr. 161 ; Emanuel v. 188. 
 
 Cocke, 6 Dana, 212; Thomas v. ' Sims «. Reed, 12 B. Mon. 51. 
 
 Tanner, 6 Monr. 52 ; Howard v. ^ Stoddard v. The Long Island, 
 
 Miner, 7 Shep. 325 ; French v. &c., 5 Sandf. 180. 
 
 Stanley, 8 Shep. 512; Freeman v. ^ Leete v. The Gresham, »fcc., 7 
 
 Rankin, 8 Shep. 446 ; Reynolds v. Eng. L. & Eq. 578. See chap. 12. 
 
 Magness. 2 Ired. 26; Jewett ii. Lin- ? Crane r. Lincoln, 2 Gray, 401. 
 coin, 3 Shep. 116 ; Pritchard v.
 
 60 THE LAW OF NEW TRIALS. [CII. III. 
 
 tliev relate to the same offences, to whieli the same puuisli- 
 ment api)lies.' 
 
 So, it' no injustice seems, on the whole case, to have been 
 done by the verdict, the court will not allow a new trial, 
 though the counsel believe that, in his argument, he ex- 
 pressed a wish for the court to instruct the jury on some 
 points, and it was not done, but furnished no written list 
 of the instructions desired, nor stated verbally, after the 
 charge was through, and before the jury retired, that any 
 point had been omitted, or any further direction was de- 
 sired.^ Xor for an omission of the court to instruct the 
 jury on abstract or irrelevant questions, which did not 
 arise on the evidence ; or upon points of which, in the 
 course of the trial, the evidence became immaterial.^ So, 
 Avhere a bill of exception was taken, on the part of the 
 plaintiff, to the judge's charge, in respect to a notice of a 
 special matter, and it appeared that the jury had properly 
 found a verdict for the defendant under a good plea in bar; 
 it was held, that, though the charge was erroneous, the 
 plaintiff was not entitled to a new trial.* So a new trial 
 will not be granted, because instructions of the court were 
 based upon an assumption of facts, if the jury would be 
 bound to find the facts as assumed, and the instructions 
 are correct.^ So, where the ruling or the judgment is right, 
 a wrong reason given by the judge for his decision is not 
 ground of exception.^ 
 
 § 13. And the same rule applies to questions of evidence^ 
 in connection with the rulings or instructions of the 
 judge. Thus, although the construction of a paper was 
 erroneously submitted to the jury, yet, if they decided 
 correctly, this is not ground for a new trial. ^ Xor that 
 
 ' State «. Pace, 9 Rich. Law, 355. « Gast v. Porter, 13 Penn. 533; 
 
 2 Allon V. Blunt, 3 W. & M. 121. Ellis )'. .Taraeson, 5 Shep. 235. 
 
 3 Iliid. J Millikcn v. Tufts, 31 Maine, 
 * llayilou V. Palmer, 7 Hill, 385. -197. 
 
 5 Evans v. Spillman, 6 B. Mon. . 
 334.
 
 en. III.] GROUNDS OP NEW TRIAL — HARMLESS ERROR. 01 
 
 the judge decided a question which should liave been 
 submitted to the jury, if he decides it rightly.^ Thus, 
 although the question of fraud is for the jury, yet, if the 
 judge decide that upon the facts there is no fraud, and 
 the testimony would not authorize a jury in finding fraud ; 
 a new trial will not be granted.^ So, where the plaintiff 
 declared for the value of labor done and materials fur- 
 nished in the erection of a grist-mill, mill-house, and ap- 
 pendages ; and the proof showed, that there was a saw- 
 mill built, and that it was attached to the grist-mill ; and 
 the jury included in their verdict the value of the labor 
 and materials for the saw-mill: held, the court would not 
 disturb the verdict, it appearing that substantial justice 
 was done, and the jury having in effect found the saw- 
 mill to be an "appendage."^ So, where the verdict is sub- 
 stantially sustained by the evidence, the judgment will 
 not be reversed, though evidence has been improperly ex- 
 cluded." So a new trial will not be granted because a 
 deposition was improperly ruled out by the court below, 
 which, if admitted, would not have justified a verdict in 
 favor of the party offering it.' Nor will the Supreme 
 Court reverse a judgment, because the court below refused 
 an instruction, which was correct upon the facts assumed, 
 but which the jury negatived by their verdict.^ Nor a 
 verdict fully sustained by the evidence, for an erroneous 
 instruction.^ So, in an issue of devisavit vel non^ the court 
 will not remand a cause for a rehearing, notwithstanding 
 the judge announced, at the close of the testimony, that 
 his mind was fixed and unalterably made up upon the 
 merits of the case, and arrested the argument of the pre- 
 vailing party before its conclusion, with the remark that 
 
 ' Greene v. Dingley, 11 Shep. ^ Bohr «. Steamboat, &c., 7 S. & 
 
 131. M. 715. 
 
 2 McDonald v. Trafton, 3 Shep. « Patterson v. ]McChmahan, 13 
 
 32o. Mis. 507. 
 
 » Allen V. McNew, 8 Humph. 4G. ^ McCall v. Seevers, 5 Ind. 187 ; 
 
 * Parsons v. McKibbin, 5 Ind. 14 Geo. 55 ; 13 Mis. 507. 
 261.
 
 G2 TUE LAW OF NEW TRIALS. [CII. III. 
 
 it was unnecessary; where the appellate court are satis- 
 lied, from the testimony, that justice has been done; 
 especially if the provisions of the will furnish intrinsic 
 evidence of its reasonableness, and the court and jury, on 
 the trial below, concurred in opinion, both as to the 
 capacity of the testator and the fairness of the will.' 
 
 § 14. So it is held, that the court will not set aside a 
 verdict as against evidence^ because they might upon the 
 evidence have arrived at a different result; where sub- 
 stantial justice has been done.^ Or, as is sometimes said, 
 the verdict of a jury upon questions of fact, or the judg- 
 ment of the court acting in place of a jury, will not be 
 disturl)Gd, unless clearly and ixdpably wrong.^ Thus, where 
 there has been a verdict on an issue of fraud, suggested 
 by a creditor, under a statute for the relief of honest 
 debtors; a new trial will not be granted, if there has 
 been evidence on both sides, and no rule of law violated, 
 nor manifest injustice done, although there may appear to 
 have been a preponderance of evidence against the verdict.^ 
 And a new trial will not be granted, because the verdict 
 is contrary to the charge of the court, if the verdict is 
 according to law and evidence, and the charge against it.' 
 
 § 15. A new trial wnll not be granted for newly-dis- 
 covered evidence, if, admitting such evidence, the case is 
 still, in law, what the jury found it.*' 
 
 § 16. Surprise to a party, arising from the unexpected 
 statements of a witness, who had been twice before ex- 
 amined in the case, without disclosing the facts to which 
 he now testifies, is not sufficient cause for a new trial, 
 when the verdict is justified by the other evidence and 
 
 ' Bcall V. Mann, 5 Geo. 45C. ^ Welborn v. Weaver, 17 Geo. 
 
 2 Gould V. "White, 6 Fost. 178. 2G7 ; Van Vacter v. Brewster, 1 
 
 3 jMann i-. AVitbeck, 17 Barb. ;388. Smedes & Marsh. 400. 
 
 * Anuis V. Barker, 40 Geo. 170. '' Carr v. The State, 14 Geo. 3o8.
 
 CH. III.] GROUNDS OF NEW TRIAL — HARMLESS ERROR. 63 
 
 substantial justice is done.^ Xor the absence of a wit- 
 ness, whose testimony wouhl not be sufficient to change 
 the verdict.^ 
 
 § 17. So, in a case of excessive damages, a new trial was 
 refused, where, though the damages should be reduced, 
 the defendant would still be the sufferer.^ So, " as a 
 general rule, a new trial ought not to be granted merely 
 to enable a party to recover nominal damages;" more 
 especially where by statute, in such case, the plaintiff not 
 only loses his own costs, but is made liable to pay costs 
 to the defendant.^ With the exception, however, of cases, 
 where a question of right or title to property is involved.^ 
 The same rule is applied, where the only effect of a new 
 trial would relate to the costs. As where, upon an infor- 
 mation in the nature of a quo loarranto, a verdict being 
 rendered for the State, the defendant's term had expired, 
 and a new election taken place. ^ 
 
 § 18. The same qualifications, however, are sometimes 
 adopted with reference to this point, of substantial Justice, 
 which have already been stated in regard to the analogous 
 consideration, that a party has suffered no injury from the 
 verdict complained of. Thus it is held that a new trial 
 will not be granted, unless it appears that injustice either 
 was or might have been done, on the former trial.'' And 
 more especially in a criminal and capital case, the burden 
 of showing actual injustice is not imposed upon the party 
 moving for a new trial. Thus A., the sheriff of the county, 
 being prosecutor, B. Avas indicted for murder and con- 
 
 1 Stiles V. McKibben, 2 Ohio (N. s Allen v. Sawyer, 2 Peun. 325. 
 S.) 588; McClusky v. Gerhauser, See Bullock v. Beach, 3 Verm. 73 ; 
 2 Nev. 47. Smith v. Surber, 2 Marsh. 450 ; 
 
 2 Robinson v. Martel, 11 Tex. Hunter v. Dickerson, ib. 546. 
 149. ^ Connecticut v. Tudor, 5 Day, 
 
 3 Buddington v. Knowles, 30 329. 
 
 Conn, 26. " Brown v. Keach, 24 Conn. 73. 
 
 * Per Sanford, J., Gold v. Ives, 
 29 Conn. 123.
 
 G4 THE LAW OF NEW TRIALS. [CIL III. 
 
 victed of inan>laug-liter. 13. consenting in person, A. 
 summoned the jury, l>y direction of the court; and, though 
 the jury when they retired were put under the charge of 
 a constable, yet A. spent a night in the room witli them. 
 A. made afHdavit that he "made use of no means of any 
 sort to influence the jury." Held, in order to obtain a 
 new trial, B. was not bound to show, that in fact his 
 rights were thus prejudiced. It was sufficient that they 
 might have been prejudiced.^ So a new trial will be 
 granted, where, the plaintiff being entitled to the verdict, 
 it was rendered for the defendant, and the court allowed 
 it to stand, on condition that he paid nominal damages 
 and costs.- So, where the verdict is unreasonable and un- 
 just, as well as unlawful, a new trial will be ordered, 
 although the verdict may appear to be fair and equitable.^ 
 
 ' McElrath v. State, 2 Swan, 378. ' Iloustou v. Gilbert, 3 Brcv. 03. 
 2 Jones V. Water, &c., 18 Geo. 
 539.
 
 en. IV.] TERMS OF GRANTING A NEW TRIAL. 65 
 
 CHAPTER TV. 
 
 TERMS OF GRANTING A NEW TRIAL. 
 
 1. Costs. 1 15. Refusal of terms. 
 
 8. Other terms — new trial in j IG. Terms imposed upon prevail - 
 part — miscellaneous. ; ing party. 
 
 13. Terms, as atfected by the 1 19. Abandonment of exceptions. 
 form of action. I 
 
 § 1. "Where a judgment is reversed and the cause re- 
 manded for a new trial, such trial must be allowed uncon- 
 ditionally, unless the mandate is otherwise; and any judg- 
 ment or order for costs, in such case, by the court below, 
 is erroneous.^ And even where a new trial was granted, 
 on condition of the payment of all costs on or before the 
 first day of the next term ; held, the order being condi- 
 tional was null and void, and the first judgment remained 
 in full force.^ But, in general, it is within the discretion 
 of a court to grant a new trial on such terms as it may 
 think proper.^ And the court above will not interfere 
 with them. Thus the question of costs is in the discre- 
 tion of the court.* 
 
 § 2. It is stated as the general rule, in England, that, in 
 case of a new trial for irregularity., no costs are imposed. 
 Otherwise if on the merits.\a) 
 
 • Ely v. Horine, 5 Dana, 398. 158 ; Rice v. Gashirie, 13 Cal. 58 ; 
 
 2 Secrest v. Best, 6 Tex. 199. But Edwards v. Lewis, 18 Ala. 494. 
 
 see 15 111. 380 ; 5 Blackf. 409. < AY right v. Antrim, 1 Morris, 
 
 ' Lancey v. Bradford. 4 Rich. 1. 258. 
 
 See Keate v. Temple, 1 Bos. & P. ^ 13 Mod. 370. 
 
 (a) In Indiana in an action to quiet title, a party may have one new trial 
 without showing cause, upon payment of all costs and of the damages, if 
 the court so direct ; but payment of costs is a condition precedent, and 
 5
 
 66 THE LAAV OF NEW TRIALS. [CH. IV. 
 
 § 3. In England, and in Xew York, a venliet will not 
 be set aside as against evidence, cxcc[)t upon iiayment of 
 costs.^ But in England, where, since the 17 and 18 Vict, 
 c. 125, § 44, a new trial was granted on the ground of the 
 verdict's being against the weight of evidence, and was 
 also moved on affidavits ; the court directed the costs to 
 abide the event, excepting those of the affidavits, which 
 the party who succeeded on the rule ought to pay in any 
 eveut.^ 
 
 § 4. In England, costs are imposed where a party relies 
 on a ground not taken at the trial ; as upon a clause of a 
 statute not before relied upon.' So in case of surprise.* 
 liut not in case of a perverse verdict.* Or misbehavior 
 of the jury." Or misdirection of the judge.^ So costs 
 
 1 Brown «. Braclshaw, 1 Ducr, Fourdrinicr v. Bradbury, 3 B. & 
 l!t9-, Ward fl. Woodlmrn, 27 Barb. Aid. :«8. 
 
 34G '; Scott v. AVatkinson, 4 Moo. & ^ Hodgson v. Barvis, 2 Chit. R. 
 
 P 237 ; Bright v. Eyiion, 1 Burr. 268. 
 
 300 ; Marrow v. Hull, 1 Burr. 11 ; « Hall v. Cove, 1 Str. 642; Shilli- 
 
 Bur'ton v. Thoiu])bon, 2 Burr. G64. toe v. Claridge, 2 Clnt. K. 425. 
 
 2 Abbott V. Bult, 29 Eng. L. & ' Williams v. Smith, 2 Caines, 
 Eq 481 253; Buscall v. Hogg, 3 Wils. 146; 
 
 3'Sulton T. Milchcll, 1 T. R. 18. Vale v. Bayle, 1 Cowp. 297; Po- 
 « Thurlcll V. Beaumont, 1 Bing. chin v. Pawlcy, 1 W. Bl. 670. 
 339; Shillito v. Theed, 6 Bing. 753; 
 
 the court has no power to order that they shall abide the event of the suit. 
 Zimmerman v. Marchland, 23 Ind. 474. On the other hand, under § 601 
 of the Code, the right to a new trial in ejectment within one year is ab- 
 solute, on payment of costs, and is unaffected by failure to comply with 
 an unauthorized condition ; as that the costs shall be paid within a cer- 
 tain number of days. Schrodt v. Bradley, 29 Ind. 352. In an action 
 based upon an alleged contract to procure enlistments, which the defend- 
 ant admitted that he had not fulfilled, if made, the phiintifT was allowed, 
 after the charge, to file a count to recover back money paid without con- 
 sideration under a mistake of facts, but the court refused the plaintiff's 
 request to give additional instructions, although, under the charge, if the 
 jury found no previous contract, their verdict must be for the defendant 
 on all the counts. A verdict for the defendant was set aside, and a new 
 trial granted upon the last count alone, upon condition that the plaintiff 
 pay costs to the time of filing that count, and recover no costs previous 
 to that time in any event. Johnson v. White, 98 Mass. 330.
 
 CH. IV.] TERMS OF GRANTING A NEW TRIAL. 67 
 
 were not imposed, where tlie verdict was obtained by an 
 unfair and unconscionable advantage, and the real ques- 
 tion not tried.^ As where the plaintiii' had concealed iu 
 his house a material witness for the defendant.^ 
 
 § 5. In an old case in New York the court remarked, 
 that "the granting new trials was always on payment of 
 costs, unless otherwise expressed, or when for the mis- 
 direction of a judge ; in which case they abide the event 
 of the suit. "2 
 
 § 6. It is held, that, if payment of costs be made a con- 
 dition precedent to a new trial, and the defendant neglect 
 to perform the condition within the prescribed time, the 
 judgment remains in force, and may be inquired into by 
 writ of error.^ Payment or tender of the costs is a con- 
 dition precedent to the notice of the cause for trial.^ But 
 on the other hand it is held, that an order for a new trial, 
 upon payment of costs within a specified time, is an abso- 
 lute order, not depending upon such payment as a condi- 
 tion precedent ; that the opposite party has his legal 
 remedy to recover the costs.^ Hence it is error for the 
 court, at the next term, to iion jjros. the plaintiff because 
 the costs have not been paid, and enter judgment for the 
 defendant upon the verdict.^ So an order, that a new trial 
 " is granted, upon payment of costs within ninety days, 
 for which let execution issue," is absolute, and not condi- 
 tional upon payment of costs. ^ 
 
 § 7. It will sometimes be ordered, that the attorney of 
 the prevailing party pay the costs. Thus, a witness for 
 
 ' Anderson v. George, 1 Burr. * Somers v: Sloan, 3 Harr. 4G ; 
 
 352. Moberly v. Davar, 5 Blackf. 40». 
 
 2 Bull. N. P. 328. ^ Johnson v. Taylor, 3 Sm. & M. 
 
 » Williams v. Smith, 2 Caines, 92. 
 
 253. ' Gilliland v. Rappleyea, 3 Green, 
 
 « Adams v. Neeley, 15 111. 380. 139. 
 
 But see 6 Tex. 199. * Bearers, 34 Ala. 71.
 
 G8 THE LAW OF NEW TRIALS. [CII. IV. 
 
 the (k'lV'iidaiit having testified that lie never conversed 
 with tlie attorney for the plaintiff as to the matter in 
 question, the attorney testified to the contrary, and also 
 stated what the conversation was. The former witness 
 was then committed for perjury, hut discharged upon the 
 statement of the attorney that it might have been the 
 brother of the witness, who resembled him. A new trial 
 was granted, and the attorney ordered to pay the costs of 
 the former trial. ^ 
 
 § 8. Other terms than the payment of costs may be im- 
 posed on the party applying for a new trial.(rt) Thus, 
 where the jury found for the plaintifi:' the whole value of 
 certain slaves, when the plaintiff's interest, it was alleged, 
 was only for life ; a new trial was granted to the defend- 
 ant, on condition that he would first tender the slaves to 
 the plaintiff, and give him the election to accept them, 
 and remit the verdict, except costs, or to refuse them and 
 have the trial limited to a single point.^ So a new trial 
 was granted, the former verdict standing as security for 
 the damages in another trial.^ So the practice of grant- 
 ing a new trial after judgment, as to part, and letting the 
 judgment stand as to the residue of the demand sued for, 
 although sometimes questioned, is held to have been too 
 long sanctioned to be now disturbed.'' 
 
 ' Trubody v. Brain, 9 Prico, 76. ' Pleydell r. Dorcliestor, 7 T. R. 
 
 2 Laney v. Eradford, 4 Rich. 1. 525 ; Sty. 406. 
 
 ^ Edwards v. Lewis, 18 Ala. 494. 
 
 (a) In a late case in New York it is said : " There is no reason, as the 
 merits are wholly with the plaintiffs, for sending the case back for a new 
 trial ; but the judgment should be niodiliod and made to conform to the 
 provisions of the code." Per Seldcn, J., Fitzhugh v. Wiman, 5 Sold. GGf). 
 Where a new trial was granted on motion of the plaintiff, on conditions 
 precedent, and he failed to comply with the conditions for eight or nine 
 years; held, the right to new trial was lost. Ward v. Patterson, 4G 
 Pcuu. 372.
 
 CH. IV.] TERMS OF GR ANTING A NEW TRIAL. 69 
 
 § 9. T\''hcrc there are several defendants in trespass, and 
 the verdict is in favor of some and against the others ; 
 there may be a new trial for a part only.^ 
 
 § 10. A new trial may be ordered upon a particular 
 question, without reopening the whole case. Thus, where 
 in an action of assumpsit the defence was, that the plain- 
 tiff had taken certain bills at his own risk in payment of 
 the demand sued on ; a verdict being given for the plaintiff, 
 the defendant moved for a new trial, which was ordered, 
 but upon the conditions of payment of costs, bringing 
 into court the sum claimed, and restricting the second 
 trial to the point above stated alone, in the same way as 
 if the defence had been specially p]eaded.-(a) 
 
 § 11. If a new trial is ordered on motion, for the pur- 
 pose of trying a single question, and the prevailing party 
 reopens the whole case ; this is a waiver of the limitation, 
 and the case shall be retried, generally.^ 
 
 § 12. Where the plaintiff was a bankrupt, and his 
 assignees moved to set aside a verdict against him ; the 
 motion was granted, on condition of their agreeing to be 
 bound by the result, and becoming responsible for the 
 costs.^ So on granting a new trial it was ordered, that 
 
 ' Roberts «. Heffner, 19 Tex. 129. ^ Seccomb v. Provincial, &c., 4 
 2 Thwaites v. Sainsbury, 7 Bing. Allen, 152. 
 437. * Noble v. Adams, 7 Tann. 59. 
 
 See 2 Chit. 272 ; W. Bl. 929. 
 
 (a) The court, under (Iowa) Rev. U 3122-3, 3536, on finding an error 
 only in an allowance of the defendant's cross-action, will order a new trial 
 to extend thereto, without disturbing the judgment for the plaintiff's 
 claim. McAfferty v. Hale, 24 Iowa, 355. When exceptions are sus- 
 tained only for the rejection of evidence which merely affected the 
 damages, a new trial will be confined to the assessment of damages. 
 Kent V. Whitney, 9 Allen, 62.
 
 70 Tin: LAW OF NEW TRIALS. [CII. IV. 
 
 the jndiro's note, of the evidence of a witness, who was 
 very old and sick, should ho read at the second trial.' 
 
 § 18. A new trial may he ordered upon the merits, with- 
 out regard to the form of action.- But, on setting aside 
 an inquest taken at the circuit, the Supreme Court of ISTew 
 York will not, in addition to the usual terms of relief, 
 impose the condition, that the defendants shall abandon 
 the defence of usurj-, or the statute of limitations.^ 
 
 § 14. In one case a change of the form of action was 
 allowed ; though admitted to go beyond any precedent." 
 But if a new trial is granted to the plaintiff, with leave 
 to amend his declaration, as in case of non-suit for vari- 
 ance; the defendant will also be allowed to plead de novo 
 or demur.^ 
 
 § 15. The court refused, on motion for a new trial by a 
 defendant eighty-seven years old, to impose, as a condition, 
 that the suit should not abate by his death. ^ 
 
 § 16. The court may impose terms upon the prevailing 
 party as the condition of refusing a new trial.'^(rt) 
 
 ' Sliillitoo V. Claridgp, Chit. R. ^ Lopoz v. De Tastet, 8 Taun. 
 
 42.'). 712; 7 Moo. 129. Sen Plovdell v. 
 
 2 Welsh v. Dusar, 3 Einn. 32!). Dorchester, 7 T. R r)25; Palmer u. 
 
 3 Allen V. Mapes, 20 Wend. 0:53. Colien, 2 B. & Ad. 900 ; Griffith v. 
 * Walker v. Long, 2 Browne, Williams, 1 Cr. & Jer. 47. 
 
 120. ' Stephenson v. INIansonv, 4 Ala. 
 
 6 Hoar V. Mill, 4 M. & S. 470 ; 317 ; Walker v. Blassingame, 17 
 Halhoad v. Abrahams, 3 Taun. 81. Ala. 810. 
 
 (a) Where in an action, under 9 & 10 Vict. c. 93, for the loss to the 
 •widow and eight children of a man, killed by the negligence of a railway, 
 who was tenant for life of an estate of £4000 a year, and to whose widow 
 was secured a jointure of £1000 a year, and to his children the sum 
 of £20,000, the jury gave tlic widow £1000 damages and each child 
 £1.")00; tlie court refused a new trial, only on condition that the plaintiff 
 would assent to a reduction of the damages to £1000 for each child.
 
 CH. IV.] TERMS OF GRANTING A NEW TRIAL. 71 
 
 § 17. Where, on motion for a new trial by the defend- 
 ant, the plaintiff was ordered to remit one thousand dol- 
 lars damages assessed by the jury, or a new trial would 
 be granted on payment of costs ; and the defendant paid 
 the costs soon after the court adjourned ; and, the second 
 term after, the plaintiff moved to strike the case from the 
 docket on his releasing damages: held, the costs were 
 paid in due time, but the offer to remit came too late, and 
 the cause could not be dismissed.^ 
 
 § 17a. On the defendant's motion for a new trial after 
 a verdict against him in an action for malicious prosecu- 
 tion ; held error to declare that the motion would be 
 
 ' Stephenson -y. Mansony, 4 Ala. 817. 
 
 Pym V. Great, 2 B. & S. 759. Where a verdict was rendered upon mate- 
 rial, incompetent evidence, and there was much reason to suppose injustice 
 had been done ; and the defendant, though personally liable, was acting 
 in a representative capacity : held, although there was no sufficient ex- 
 ception to the incompetent evidence, a new trial should be granted on 
 terms, unless the plaintiff would stipulate to reduce the verdict. Scott 
 V. Lilienthal, 9 Bosw. 224. In a recent case in Pennsylvania (Boom v. 
 De Bois, Leg. Intell.), is found the following opinion: "The sixth 
 assignment of error is to the entry of the nolle jyrosequi as to John 
 Conrad, who was sued as a partner with Ganger & Fisher. At com- 
 mon law a joint action of assumpsit against three could not be sup- 
 ported by evidence that the contract was made only by two. The 
 misjoinder of the third person, who was no party to the contract, could 
 not be cured by a nolle prosequi. But the acts relative to amend- 
 ments passed the 16th of April, 1846, § 2, and 12th April, 1858, § 1, 
 embrace this case. There being no sufficient proof on the trial that Con- 
 rad was a partner, this fact was pressed upon a motion for a new trial, 
 and the judge refused the motion on the condition of the plaintiff's enter- 
 ing a nolle prosequi as to him. This was merely equivalent to an amend- 
 ment by striking out Conrad's name. He could have done this before 
 verdict and we see no reason why it should not be done after verdict. 
 Under the act of 1846, amendments can be made in ' any stage of the 
 proceedings.' It was therefore not too late to strike out the name of 
 Conrad before judgment." And see Rangular v. Hummel, 1 Wright, 132 ; 
 Hite V. Kier, 2 ib. 72.
 
 72 THE LAW OF NEW TRIALS. [CH. IV. 
 
 granted, unless the jilaiiitill' would accept a judgment for 
 a sum much smaller than the verdict.' 
 
 § 18. It is also held that a new trial may he ordered, 
 unless the party recovering a verdict enter into certain 
 stipulations relating to the subject matter of the cause ; 
 and such stipulations may he relied upon in a subsequent 
 suit between the parties. Thus, in assumpsit, some of the 
 plaintiff's claims having been excluded from the jury, 
 under the charge of the court, he moved for a new trial; 
 whereupon it was ordered " that a new trial be granted, 
 unless the defendants enter into an agreement of record, 
 that, upon any future settlement in chancery, or bill tiled 
 for an account between said parties, or any transactions 
 between said defendants and A. and B., the said defend- 
 ants will not plead the verdict and judgment in said 
 cause; or use the same in any manner to bar tlie claim of 
 said plaintifls or said A. and B., for an amount and set- 
 tlement in relation to said excluded claims, all which 
 were included in the account read and produced to the 
 jury by the plaintiffs on the trial. And thereupon came 
 said defendants by attorney, and covenanted and agreed 
 to the above terms imposed by the court, and it was there- 
 upon considered by the court that the said motion for a 
 new trial be overruled." Held, the effect of this order 
 or agreement was to exempt the excluded claims from the 
 effect of the payment, and the plaintiffs might use them 
 as a set-off in an action at law subsequently brought 
 against them by the defendants.-(a) 
 
 ' Brown v. Morris, 3 Bash, 81. 2 Iloyt v. Murphy, 23 Ala. 456. 
 
 (a) An entry on the clerk's journal, that two hundred dollars had been 
 deposited, " to be held for the benefit of the defendant in this case in lieu 
 of an undertaking for a second trial in said case, to be paid back to said 
 plaintiff upon the condition that said plaintiff shall abide and perform 
 the order and judgment of said court, and pay all moneys, costs, and 
 damages which may be required or awarded against said plaintiff, conse-
 
 en. IV.] TERMS OP GRANTINa A NEW TRIAL. 73 
 
 § 19. In England, it is held that, when a bill of excep- 
 tions has been tendered, a motion for a new trial will be 
 refused, unless such bill be abandoned; and, in general, a 
 party will be required to elect between a motion for a new 
 trial and a bill of exceptions.^ 
 
 ' Doe V. Roberts, 3 Chit. R. 273. (But see 1 Eng. L. & Eq. 305.) 
 
 Corlics V. Cummings, 5 Cow. 415. 
 
 quent upon such second trial, otherwise the said money is to be apj^lied 
 by me to the payment thereof," and signed by the clerk, is not an under- 
 taking for a second trial sufficient to give jurisdiction to the court ; nor 
 is it susceptible of amendment. Shamokin v. Street, 16 Ohio St. 2.
 
 THE LAW OF NEW TRIALS. [CH. V. 
 
 CHAPTER V. 
 
 NATURE AND EFFECT OF THE MOTION FOR, AND THE 
 GRANTING OF, A NEW TRIAL ; POINTS OF PRACTICE ; 
 SUCCESSIVE NEW TRIALS. 
 
 § 1. IV^iTii regard to tlie cffcH of a motion for a new 
 trial ; independently of express statntory provision, judg- 
 ment is thereby suspended. If a remittitur l)e entered by 
 a plaintiff in favor of one of two defendants, against 
 whom a verdict in an action of debt has been returned : 
 until the suit has been disposed of as to him, no judg- 
 ment can be entered against the other ; and, in such a 
 case, a new trial should be granted.^ A motion for a new 
 trial precludes, while it is pending, all motions for further 
 proceedings in the case.^ 
 
 § 2. The actual granting of a new trial supersedes the 
 effect of the former trial; or lui-pes out the verdict: no 
 judgment can be rendered upon it, nor is it a bar to any 
 proceed ing.3 The case goes back upon all the issues of 
 fact.'' Hence, where, upon an indictment containing two 
 counts, the jury found the defendants guilty on the second 
 count, and a new trial was granted ; held, the effect was, 
 to set aside all the proceedings since the filing of tlie bill, 
 and the whole case stood as though it had never been 
 tried.' 
 
 § 3. When a jury cannot agree, or when their verdict 
 is set aside, and a new trial awarded; upon the new trial, 
 
 ' Reynolds v. Ilorine, 19 B. Mon. » Edwards v. Edwnrds, 23 111. 
 234. 121. 
 
 2 Wright V. Haddock, 7 Dana, ' Hidden «. Jordan, 28 Cal. 301. 
 253 '^ The 8late v. The Commission- 
 
 ers, Riley, 273.
 
 en. v.] NATURE AND EFFECT OF THE MOTION, ETC. 75 
 
 any opinion expressed by the former jury, or by tbe court 
 upon the former trial, is improper for the consideration 
 of the jury.^ 
 
 § 4. It is held that a new trial cannot be granted at a 
 term subsequent to the judgment, unless the court has 
 done some act to suspend the judgment, and continue the 
 
 cause.^(a) 
 
 § 5. The consent of parties, however, will dispense with 
 the application of this general rule, even though they act 
 only by their attorneys, whose authority is denied. Thus, 
 m ^ scire facias to revive a judgment, the administrators 
 pleaded an order of court, made at a term subsequent to 
 that at which the judgment was rendered, granting a new 
 trial "by consent of parties, as per agreement of parties, 
 by their attorneys filed." Replication, that the agreement 
 
 ' Crawford v. Morris, 5 Gratt. 90. 2 1 Monr. 3 ; The People v. Pear- 
 son, 3 Scam. 406. 
 
 (o) In Kentucky, it is not sufficient that the counsel files grounds for 
 a new trial, which were indorsed by the clerk " filed," &c., without an 
 entry on the record. Buckner v. Cowley, 1 Monr. 3. Where an action 
 has been tried by a county court judge under 19 & 20 Vict. c. 108, § 26, 
 the time within which a motion for a new trial must be made runs from 
 the day of the hearing, and not from the filing in the master's office of 
 the registrar's certificate of the result. Copcutt v. Great, Law Rep. 2 C. 
 P. 465. In California, upon a trial by the court, a judgment for the plain- 
 tiff was announced, February 24, and entry was made on the minutes of 
 the court. On the 11th of March, the judge signed and delivered to the 
 plaintiff the written findings and a draft of the judgment, to be filed, and 
 such filing was made by the clerk, March 13. On the same day the 
 plaintiff served a written notice on the defendant, "that the findings in 
 the above entitled cause have this day been signed by the judge, and his 
 decision herein rendered in favor of the plaintiff, March 11, 1865." Held, 
 this notice referred to the decision of the 11th of March, and the defend- 
 ant had ten days from March 13 to file his intention to move for a new 
 trial, the day of filing by the clerk being the day upon which the judg 
 ment should be considered to have been rendered. Carpentier v. Thurs- 
 ton, 30 Cal. 123.
 
 7G THE LAW OF NEW TRIALS. [CU. V. 
 
 was made witliout the autliority or sanction of tlie }»lain- 
 titi^", and tl:at the order for the ne\v trial was made in his 
 absence, without any ap[)earance by him, or his authority, 
 and without any notice to liim. Held, the order was con- 
 clusive evidence that the parties appeared and consented, 
 as stated, and that the suit could not be maintained; also, 
 that the effect would be the same, if the order should be 
 understood as stating that they appeared by their at- 
 torneys.^ 
 
 § 6. In Xew York, a new trial may be granted, even 
 after judgment and appeal;^ but will not be, where the 
 matter is still before the court, undecided. As where a 
 case was under advisement before a county judge, when 
 his term of office expired.^ 
 
 § 7. Where a statute required, that exceptions should 
 be allowed within fifteen days after being presented ; held, 
 the Supreme Court could not take cognizance of excep- 
 tions not conformable to this act. Held, further, under a 
 rule of court, requiring that a petition for the allowance 
 of exceptions, not seasonably allowed, should be entered 
 at the regular term for entering the exce[)tions ; such peti- 
 tion could not be entered afterwards, although the excep- 
 tions were allowed after the time prescribed by law.*(a) 
 
 • IIolbcrt».Montgomery,5Dana, ^ Putnam v. Crombio, o4 Barb. 
 
 11. 233. 
 
 2 Nash «. Wetmore, 33 Barb. 155. * Ehvell v. Dizer, 1 Allen, 484. 
 See Jackson v.Fassitt, 83 Barb. 644. 
 
 (a) In case of a verdict against the plaintiff, who afterwards dies ; it 
 seems no motion lies for a new trial till administration is taken. Lloyd 
 V. Ogelby, 5 Com. B. N. S. 667. 
 
 Questions sometimes arise, in reference to the respective bearing upon 
 the riglit to a new trial, of a bill of exceptions, and a mere motion. They 
 usually turn, however, upon express statute or local usage. Thus it is 
 held iu New York, that bills of exceptions, being created by statute, 
 are limited to exceptions taken on the trial of the main issue — including
 
 CH. v.] NATURE AND EFFECT OF THE MOTION, ETC. 77 
 
 decisions on preliminary questions, such as motions to quash the indict- 
 ment, for irregularity in organizing the grand jury, challenge to the 
 array, &c. Wynehamer v. People, 2 Parker, 377. In Arkansas, a party 
 moving for a new trial waives previous exceptions, unless made grounds 
 of the motion, and preserved by bill of exceptions to the opinion of the 
 court overruling the motion. Ford v. Clark, 7 Eng. 99; ace. Parley v. 
 Bobbins, 3 Pike, 144. The party moving for a new trial may set forth 
 the points on which he relies, and incorporate the evidence adduced 
 at the trial. He stands then in the same position as if he had taken no 
 exceptions. But if he fails to set out the evidence, he abandons the 
 bill of exceptions incorporating the evidence, and the evidence no longer 
 appears of record. Parley v. Robbins, 3 Pike, 144. He may reserve 
 the exceptions for revision, in case the motion for a new trial is over- 
 ruled, by making them ground for the motion, and incorporating them 
 in the bill of exceptions to the refusal to grant a new trial. Berry v. 
 Singer, 5 Eng. 483. But a party cannot put evidence upon the record 
 by incorporating it in his motion for a new trial, and referring to it as 
 incorporated in his bill of exceptions to the decision refusing a new 
 trial. lb. In Alabama, the court trying a cause ought not to grant a 
 new trial for the causes embraced by a bill of exceptions, unless the party 
 distinctly waives the exception. But if the court make no such requi- 
 sition, but allow the exception, and consider and overrule the motion for 
 a new trial, the appellate court cannot refuse to consider the exceptions. 
 And where the motion is rested upon grounds not embraced by the bill 
 of exceptions, the primary court cannot put the party excepting to an 
 election. Sorrelle v. Craig, 9 Ala. 535 ; West v. Cunningham, 9 Port. 104. 
 In Maine, where, in the Court of Common Pleas, exceptions are taken to 
 the opinion of the judge, and a motion at the same time made for a new 
 trial, the judge may require the party to elect whether to proceed on 
 the exception or rely on his motion ; and an election to proceed on the 
 motion for a new trial is a waiver of the right to proceed on the excep- 
 tion. State of Maine v. Call, 2 Shep. 421. In Mississippi, where a bill 
 of exceptions showed that it was taken, after the adjournment of the 
 court, to a judgment overruling a motion for a new trial, without its ap- 
 pearing that the motion was taken under advisement, it was held in- 
 Bufiicient. Tucker v. Gordon, 7 How. 306. In Massachusetts, a motion 
 for a new trial may be made in the Supreme Judicial Court, in a criminal 
 case brought from a lower court on exceptions, simultaneously with the 
 argument of the exceptions. Cora. v. Peck, 1 Met. 428. The words, 
 " motion for a new trial," in the Massachusetts Act of 1842, c. 89, | 2, 
 authorizing the entry of judgment as of the term when the verdict was 
 rendered, if necessary to efifect justice, are not there used in a strict tech- 
 nical sense, but are intended to include all cases, which are continued, 
 on the motion of a dissatisfied party, with a view to obtain some new
 
 78 THE LAW OF NEW TRIALS. [CII. V. 
 
 disposition thereof, in order to relieve himself from a verdict. Judge 
 Metcalf remarks, that a different " construction would defeat the inten- 
 tion of the legislature in half the cases for which they evidently meant 
 to provide." Springfield v. "Worcester, 2 Cush. .52, Gl. In Pennsylvania, 
 a party who takes a bill of exceptions to the rulings at nisi prius can- 
 not assign for error the refusal of the judge to grant a motion for a new 
 trial. Klein v. Franklin, &c., 13 Penn. 247. In Vermont, a motion for 
 a ni;\v trial cannot be entertained in the Supreme Court, in a case which 
 came there on exceptions to the decision in the county court. Blodgett 
 V. lloyalton, 10 Verm. 497. In Engkuul, after bill of exceptions tendered, 
 the party cannot move for a new trial upon a point which miglit have 
 been (but was not) included therein, without abandoning the bill of ex- 
 ceptions. But, it seems, if the point could not have been made in a bill 
 of exceptions, the motion might have been made concurrently. Adams 
 V. Andrews, 1 Eng. Law k Eq. 305. See ch. 4, s. 19. 
 
 Questions often arise in reference to the right of claiming successive 
 new trials. Where, in an action upon a policy of insurance, three ver- 
 dicts were returned for a total loss, although the loss was manifestly less 
 than fifty per cent, of the value; the third verdict was set aside. Bryant 
 V. Com., 13 Pick. 543. This also frequently depends upon express 
 statute. (See Ewing v. Gray, 12 Ind. 64.) In Indiana, in civil causes, 
 only two new trials can be granted. Koberts v. Robeson, 22 Ind. 456. 
 This provision of the Code means, that, when three juries have concurred 
 in finding the matters actually in litigation against a party, the courts 
 shall not disturb the verdict on his application. Judah v. Viucennes, 23 
 Ind. 273. Action for the unlawful detention of real estate, trial by jury, 
 and verdict for the plaintiff for $51 damages. The cause was tried a 
 second time by the court, and the defendants had judgment. In the 
 mean time the defendants surrendered possession. A third trial was after- 
 wards had in the absence of the defendants and their counsel, who had 
 gone to the war ; and $500 were recovered against them. After the close 
 of the term, the defendants filed a complaint for a new trial, sworn to, in 
 which the.se facts ajjpeared ; also that they did not discover, until after 
 the close of the term, that the cause had been tried in the absence of their 
 attorney ; that they had a meritorious defence ; that reasonable ground 
 existed for belief on their part, that their cause would be well attended 
 to without their personal presence, and that they were excusable in being 
 absent. Held, the new trial should have been granted. Sturgeon v. 
 llitchens, 22 Ind. 107. Where A. made a mortgage to secure a loan 
 from the trust funds, and, after several transfers of the property, the 
 auditor, to collect the debt, advertised and sold the property in the 
 name of the mortgagor, and B. became the purchaser on a credit of a few- 
 days, and, before the purchase-money was paid, the owner of the fee at
 
 CH. v.] NATURE AND EFFECT OF THE MOTION, ETC. 
 
 79 
 
 the time of the sale offered to pay the debt and interest, which was 
 refused by the auditor, and the owner then sued to enjoin the execution 
 of a deed to B., and to set aside the sale, and had judgment upon the 
 trial, and B. then demanded a new trial as of right, under art. 29 of the 
 Code (2 G. & II. 281), which was refused by the court; held, the new 
 trial should have been granted. Bender v. Sherwood, 21 Ind. 167. 
 In Illinois, the unsuccessful party in ejectment, as in other civil cases, is 
 entitled to new trial for sufficient legal cause, such as an erroneous ruling 
 of the court in the admission or exclusion of evidence, &c. ; and, in addition 
 to this common law right, he may have a new trial under the statute, 
 without showing any cause therefor; and after he has had one or more 
 new trials for cause shown. Emmons v. Bishop, 14 111. 152. The vacating 
 of a judgment, and granting a new (rial, under the 30th section of the 
 Illinois Act of 1838-9, is a matter of right, under the first motion 
 made for that purpose ; but, whether a second motion shall be sustained, 
 is a matter which rests in the sound discretion of the court. Yance v. 
 Schuyler, 1 Gilm. 160. In Missouri, the following points have been succes- 
 sively decided. For the errors of the jury in matters of law, but not for 
 the errors of the court, a second new trial may be granted. Hill v. Wil- 
 kins, 4 Mis. 86. Under the Missouri statute (Rev. Code, 1835, 470), a 
 second new trial can be granted only for a misconception of the instruc- 
 tions of the court, or of the general law governing the case, if no in- 
 structions are given, or if there is an entire disregard of such instructions, 
 which must be inferred from a comparison of the verdict with the facts 
 in evidence. Hill v. Deaver, 7 Mis. 57. And a second new trial cannot 
 be granted, except for the causes stated in such statute. Humbert v. 
 Eckert, 7 Mis. 259. Unless the jury have erred in matter of law or mis- 
 behaved, a second new trial will not be granted. Ramsey v. Hamilton, 
 14 Mis. 358. The statute, specifying the only causes for which a second 
 new trial may be granted, is only applicable to cases in which the law 
 has been correctly expounded to the jury. Boyce v. Smith, 16 Mis. 317. 
 If a second new trial has been improperly granted, the matter can only 
 be corrected by a mandamus from the Supreme Court. lb. If a new 
 trial has been asked for and refused, the Supreme Court will, on appeal 
 or writ of error, look into the record, and see if the verdict may have 
 been caused by the misdirection of the court below; and, if so, will re- 
 verse the judgment and award a new trial, without regard to the number 
 of new trials previously awarded to the party. lb. A court above will 
 grant any number of new trials for error in the instructions to the jury. 
 Harrison v. Cachelin, 23 Mis. 117. In Virginia, where a prisoner was 
 convicted on two trials, at both of which his motion to set aside the 
 verdict was overruled by the presiding judge, a new trial was granted by 
 the court above, the evidence not being sufficient to sustain the verdict, 
 (irayson v. The Commonwealth,. 7 Gratt. 613. (The prisoner, in this
 
 80 THE LAW OF NEAV TRIALS. [CII. V. 
 
 case, was tortured at tlio primary oxamination to compel him to confess, 
 and was hung by a mob before his third trial.) The Tennessee Act of 
 1801, c. 6. ? 59, which provides that not more than two new trials shall 
 be granted to the same party, does not apply to cases where the record 
 shows upon its face error in the verdict of the jury, or irregularity 
 amounting to error in the proceedings. Wilson v. Greer, 7 Humph. 513. 
 If a party seek to set aside the third verdict, the record must show that 
 one or both of the previous verdicts have been set aside from error in the 
 charge of the court, or in the admission or rejection of testimony, or for 
 the misconduct of the jury, and the like. Turner v. Eoss, 1 Humph. 16; 
 Trott V. West, 1 Meigs, 163 ; 10 Yerg. 499. When three new trials 
 were granted to the defendant, but, in each trial, the verdict was for 
 more than the plaintiff could claim in any court, and on the third trial 
 there were but eleven jurors, all of which appeared on the record; it was 
 held that the act did not apply. lb. In a very recent case it is held, 
 that the statute forbidding more than two new trials applies to a case 
 where new counts are added after such trials, especially if for the same 
 cause of action; but not where the new trials are granted for misdirec- 
 tion, wrong admission or rejection of evidence, or misconduct of the jury, 
 if so stated in the record at the time. East, &c. v. Hackney, 1 Head, 
 169. Where the record is silent as to the reason for granting a new trial, 
 the court will presume it was granted on the merits, and not from any 
 special cause, excepted by judicial construction from the inhibition of 
 the Act of 1801, c. 6, § 59, Ferrell v. Alder, 2 Swan, 77. In Mississippi, 
 the statutory prohibition of over two new trials does not apply to erro- 
 neous rulings. Garnett v. Kirkham, 33 Miss. 389; Wildy v. Bonney, 35 
 Miss. 77. In Mississippi, where there have been two trials with a like 
 result, a new trial will not be granted because the verdict appears to be 
 against the weight of evidence. Philbrick v. Holloway, 6 How. 91. And 
 where two new trials have been granted to the same party, the court has 
 no authority to entertain a motion for a third. Ray v. McCary, 26 Miss. 
 404. In Georgia, in cases of doubt, the court will not interfere, espc- 
 cially after (wo concurrent verdicts. Mayer v. Wiltberger, Geo. Dccis. 
 Part II. 20. (In Georgia, Mississippi, and Kentucky, a new trial will 
 not be granted where there have been two concurrent verdicts, and no rule 
 of law has been violated. Davis v. Hale, Geo. Decis. Part II. 82 ; Ross 
 V. Ross, 5 B. Mon. 20; Cuming v. Frier, Dudley, Geo. 182; Mum v. Per- 
 kins, 1 Sm. & M. 412.) In South (^irolina, in trespass for killing a slave, 
 the plea was not guilty; and the defence, that the defendant killed the 
 slave in self-defence. After a second verdict for the defendant, the court 
 refused the plaintiff's motion for a third trial. AVatson v. Hamilton, 6 
 Rich. 75. In Kentucky, a verdict was given for a plaintiff upon slight 
 evidence, and a new trial granted. Upon the second trial, a verdict was 
 given for the defendant, to which the plaintiff took no exception. Held
 
 CH. v.] NATURE AND EFFECT OF THE MOTION, ETC. 81 
 
 the latter verdict must be presumed to lie according' to the rif,^ht of the 
 case, and there should be no reversal for error in g-ranting the new trial. 
 Bank of Commonwealth v. lilies, 4 Dana, 598. AVherc there were two 
 verdicts for the same party, and the last was sustained by the court 
 below, it was held that the court above would not disturb it, " though 
 there seemed to be clear preponderance of evidence against it." Bennett 
 V. Runyon, 4 Dana, 422. In Texas, where there have been two trials 
 and two verdicts, the court will not set aside the second verdict, though 
 the verdict is not satisfactory, and the evidence does not appear on which 
 it was found. Duggan v. Cole, 2 Tex. 381; Perry v. Robinson, ib. 
 490. A case which has already been before the court once on an appeal, 
 and in which there have since been two concurring verdicts, and the 
 evidence of which leads to no certain conclusion, is a proper case for the 
 application of the statute, prohibiting the granting of " more than two 
 new trials to either party in the same cause, except the jury have been 
 guilty of some miscondnct, or erred in matter of law." Rains v. Hood, 
 23 Tex. 525. In New York, a defendant in ejectment cannot have a 
 third new trial under the statute (2 Rev. Sts. 309, ? 37), though the first 
 two were granted by the Court of Common Pleas, whence the cause was 
 removed to the Supreme Court. Brown v. Crim, 1 Denio, G65. The 
 court will not, in the exercise of its discretion, grant a third trial of an 
 action to recover possession of lands to a party, who upon the two pre- 
 vious trials has lost his ease by overlooking a point of law, or conceding 
 a fact, or by omitting to seek a remedy by an appeal from an erroneous 
 ruling on an important question of evidence, unless he is shown to have 
 been thrown off his guard. The fact that the defendant, in another 
 cause, tried subsequently, succeeded by raising the objections which were 
 not raised in the present case, is not, necessarily, ground for granting the 
 application. Wright v. Milbank, 9 Bosw. 672. In Rhode Island, the 
 court will not entertain a second application for a new trial by the same 
 party in the same suit, unless it appears that he did not know, and could 
 not have known, the grounds upon which the second application rests, at 
 the time the former application was submitted, Hayes v. Kenyon, 7 
 R. I. 531.
 
 82 
 
 THE LAW OF NEW TRIALS. 
 
 [CH. VI. 
 
 CHAPTER VI. 
 
 WAIVER. 
 
 1. General rule. 
 
 2. Incomi)etcncy,&c., of jurors. 
 7. Evidence. 
 
 13. Written evidence. 
 15. Miscellaneous points of evi- 
 dence. 
 20. Erroneous rulings. 
 
 24. Surprise. 
 
 29. New evidence. 
 
 30. Excessive damages. 
 
 31. Miscellaneous cases. 
 33. Negligence of counsel. 
 d'Sn. Waiver in respect to time. 
 
 § 1. A PARTY cannot move for a new trial, on ground 
 not distinctly made at the trial, more especially where it is 
 such as, if then offered, might have been distinctly ob- 
 viated by proof.'(a) In such case exceptions are con- 
 sidered as waived? And the waiver precludes objections 
 in the court above.^ So a new trial will sometimes be 
 refused, because the party neglected to apply for it in the 
 court trying the cause." It is said, in an old case, "You 
 should have insisted on your exception at the trial ; you 
 waive it if you acquiesce, and shall not resort back to 
 your exception after a verdict against you, when, perhaps, 
 
 ' Darrancc v. Preston, 18 Iowa, 
 300 ; New York, &c. v. Cook, 2 
 Sandf. 732. (But see Farr v. Fuller, 
 8 Clarke, 347 ; Yeitbs v. Hagge, 8 
 ih. 103.) Cobb v. Norwood, 11 
 Tex. 050 ; State v. Norwood, 13 
 Md. 177; Hughes v. Jackson, ib. 
 450 ; Trustees, &c. v. Cronin, 4 
 Allen, 141; Fisk v. Miller, 20 Tex. 
 572 ; Peebles v. Hand, 43 N. II. 
 337 ; Goss v. McClaren, 17 Tex. 
 107 ; Dodson v. Counally, Geo. 
 Decis. Part I. 132 ; Chambers v. 
 
 Dickson, Geo. Decis. Part I. 104 ; 
 Commercial. &c. v. Lum, 7 How. 
 Miss. 414 ; Bowen v. Argall, 24 
 Wend. 490 ; Lewis v. Bank, etc., 
 12 Ohio, 132 ; Richards v. Griflin, 
 5 Ala. 195; Porter v. Sherl)urn, 8 
 Shep. 258 ; Willard v. Warren, 17 
 Wend. 257. 
 
 2 Kimball v. Irish, 20 IMaine, 444. 
 
 3 Steinman v. Tolivar, 13 Mis. 
 590. 
 
 * Gales V. Shipp, 2 Bibb, 241. 
 
 (a) Only the parties to a motion for a new trial can complain of au 
 order denying such trial. Calderwood v. Brooks, 28 Cal. 151.
 
 cir. VI.] WAIVER. 83 
 
 if you had stood upon your exception, the party had 
 other evidence, and need not have put the cause upon 
 this point. "^ 
 
 § 2. In reference to the particular ground of motion for 
 a new trial, consisting in tJie incompetency or misconduct of 
 jurors; the distinction is made, that incompetency of a 
 juror, if known to the losing party before trial, and not 
 objected to, is no ground for a new trial f as in case of rela- 
 tionship •.''(a) though it is otherwise with an objection to a 
 juror which would be good cause of challenge, if not dis- 
 covered till after the verdict.^(Z/) Thus, if a person, who 
 was a juror in one trial, is also a juror in another trial of 
 the same cause, the verdict will not be set aside for that 
 reason, more especially without proof of the party's igno- 
 rance of the fact. And even such proof might be un- 
 availing ; since, by the exercise of ordinary diligence, 
 the party might have ascertained the fact, and made the 
 objection at the time of impanelling the second jury.^ 
 So, that a petit juror had been a member of the grand 
 jury, which had returned a true bill against the defend- 
 
 ' Per Lord Holt, Wright v. Sharp, See Orrok v. Com. Ins. Co. , 21 Pick. 
 
 1 Salk. 288. 457; Brunshill y. Giles, 9 Bing. 13. 
 
 2 Lisle V. The State, 6 Mis. 426 ; ' Hayward v. Calhoun, 2 Ohio 
 Looper v. Bell, 1 Head, 37-3. (N. S.) 1G4 ; Fitzitatrick v. Harris, 
 
 3 Tilton V. Kimball, 53 Maine, 16 B. Mon. 501; Quincbaug, &c. ». 
 500. Leavens, 20 Conn. 87. 
 
 * Cain V. Cain, 1 B. Mon. 213. 
 
 [a] An objection that a judge is not impartial must be taken at the 
 trial, if then known to the counsel. Crosby v. Blanchard, 7 Allen, 385. 
 Any objection to the competency of a sheriff's jury, on the ground that 
 they were not regularly certified or summoned, will be waived, unless 
 taken at the tiial. Jameson v. Androscoggin, 52 Maine, 412 ; Fowler v. 
 Middlesex, 6 Allen, 92. 
 
 (&) In all trials in courts of record, it is the constitutional right of a 
 party to demand a jury of twelve men, and, though no exceptions are 
 taken to proceeding to trial with a less number, the party may still move 
 in arrest of judgment. The defect will not be considered as waived or 
 consent presumed, unless entered of record. Scott v. Russell, 39 Mis. 407. 
 See p. 86.
 
 84 THE LAAV OF NEW TRIALS. [cil. VI. 
 
 ant, if a sufficient ol)jeetion, sliould ]iavcl)ccn urged wlicu 
 the jury Avero iiiijianelled ; or the respondent sLould have 
 presented liis atHdavit, that the fact was not then known 
 to hinu' So in case of any irregularity in impanelling 
 the jury.^ So, where, at the trial of an action against an 
 insurance company, it appeared that the sheriff, who had 
 returned a talesman to serve on the jury, was a stock- 
 holder in such company, and this circumstance was 
 known to the junior counsel for the plaintiff soon after 
 the trial hegan, but no objection was made till after the 
 trial had proceeded for some time; held, this was a waiver 
 of any exception to the competency of such juror.^ So, 
 in a criminal case, the defendant is not entitled to a new 
 trial on the ground that a juror was taken from the panel, 
 under the erroneous supposition that there was good 
 ground to challenge him, and another juror substituted, 
 if the defendant did not object at the time.* So a party 
 who refuses to challenge any jurors, giving as a reason, 
 that, if he does, the panel will be filled from the by- 
 standers, all the drawn jurors except twelve having been 
 discharged by the court ; thereby waives his right to chal- 
 lenge, and cannot afterwards object, on writ of error, to 
 the jury.-^ So, if a juror is permitted to be sworn without 
 being interrogated as to his competency, it is a waiver of 
 objection to him on the ground that he is prejudiced ; but, 
 if he was examined, it must be presumed that he was 
 impartial unless it appear otherwise.^ So a party may 
 object to the examination of a juror, without oath, as to 
 his competency ; but if he permits the question to be put 
 to the juror, and answered by him, without requiring him 
 to be sworn, he waives the objection.^ So, where a party 
 applied for a review, upon the ground that a juror was 
 jjartial, having before the trial formed and expressed a 
 
 • McGrhee v. Sliafer, 9 Tex. 20. < Com. v. Stowell, Mot. 572. 
 
 - People V. Coffman, 24 Cal. 230. ^ Miller v. Wilson, 24 Pciin. 114. 
 
 ' Orrok r. Commonwealth lus. ^ Ale.xander v. Dunn, .1 Ind. 122. 
 
 Co., 21 Pick. 456. " Trellinger v. Webb, 3 Ind. 198.
 
 CII. VI.] WAIVER. 85 
 
 decided oj.inion against the petitioner's case, and also pre- 
 judice and hostility against him personally ; and the juror, 
 being called on to explain, testified that he had spoken 
 on the subject, but denied any hostility to the petitioner: 
 held, the objection should have been taken before the trial, 
 and the petition was overruled.^ So, where, during the 
 trial, one of the parties was informed of the incompetency 
 of a juror, l)ut neglected to ascertain the fact or make 
 objection ; held, a motion for a new trial upon this ground, 
 upon affidavits showing that proof of the fact could not 
 be sooner obtained, was rightly overruled.^ 
 
 § 3. The same rule is adopted with reference to the im- 
 proper change of a juror.^ So a juror v^as asked, " Do you 
 reside in the city?" and answered in the affirmative. To 
 the next question, "Have you lived here six months?" he 
 answered in the negative. The State's counsel challenged 
 him for cause, and the challenge was sustained. Held, 1, 
 that there was no necessary connection between the above 
 questions, and that the second question and answer must 
 be taken to refer to the county and not the city. And 
 further, that silence of the opposing counsel at the time 
 showed an acquiescence in the construction put by the 
 court upon the answer, and especially, since he had made 
 no effort to show such juror to have been competent, he 
 could not assign the sustaining of the challenge as error.* 
 So, although (in Georgia) a juror is disqualified from serv- 
 ing on a trial of felony who has not resided in the county 
 for six months; after such juror has been sworn, the ob- 
 jection is too late, even though the disqualification was 
 not known to the prisoner nor his counsel.^ (So, after the 
 jury list had been called over in the presence of the ac- 
 cused and his counsel, five jurors sworn, and four peremp- 
 
 • Haskell v. Becket, 3 Grcenl. 92. tcr v. State, 17 Ala. 434 ; Romainc 
 
 2 Sleight V. Heuuing, 13 Mich. v. State, 7 Ind. G3. 
 
 371. * Boyd v. State, 17 Geo. 104. 
 
 3 Com. V. Stowell, 9 Met. 573 ; s Epps v. State, 19 Geo. 103. 
 State V. Lytle, 5 Ired. 58; McAUis-
 
 86 THE LAAV OF NEW TRIALS. [CII. VI. 
 
 tory challenges made by tlie i)risoner; his counsel moved 
 for a continuance, on the ground that various jurors in 
 the list were not in attendance, nor within the jurisdiction 
 of the court, and were not liable to jury service, and that 
 some of thoni had been excused previous to the list being 
 served on the prisoner. Held, on the same i»rinciple 
 adopted in ap[)lications for new trial, the accused had 
 waived any objection to the jianel, and it was too late 
 to move for a continuance for the reasons above stated.') 
 So (in Mississippi) although under Rev. Code, 497, art. 
 12G, a juror over sixty years of age is incompetent, the 
 objection is waived unless made at the trial, whether the 
 party then actually knew the fact of tlie juror's disquali- 
 fying age or not.^ So the objection to a jury that it con- 
 sists of less than twelve is held to be waived by consent 
 of the party who has been tried by such jury.^(a) 
 
 § 4. More especially partiality of a juror is held no 
 ground of objection, if waived by both parties.* So in a 
 suit against a town, for injury caused by defect in a high- 
 way, a verdict was rendered for the plaintiff. The de- 
 fendants moved in a; rest of judgment, upon the ground 
 that a juror was a land-owner and tax-payer of the town. 
 Eut the court, remarking ujion the " ungracious" character 
 of the application, as the juror's interest was wholly in 
 favor of the town, and for the reason that the interest 
 
 ' Rtator. Lindspv, 14La. An.42. « Van I51anciim v. The People, 
 
 2 Wil iams v. State, 87 Miss. 407. IG 111. o(J4. 
 
 3 ISIurphy v. Com., 1 Met. Ky. 
 365. 
 
 (a) See p. 83, n. b. In the case of Lord Pacres, tried in the reign of 
 Henry VIII. for treason, one question was whether he might waive a 
 trial by his peers, and be tried by the country; and the judges agreed 
 that he could not, for it would be contrary to Magna Charta, and the 
 prosecution was at the King's suit. Kelyng, 59. Ace. 1 Woode. Lect. 
 340 ; 3 Inst. 30 ; Canccmi c. the Teuple, 4 Sniilh (18 N. Y.) 128.
 
 CH. VI.] WAIVER. 87 
 
 must have been known to the town officers, overruled the 
 motion.^ 
 
 § 5. It is no ground for a new trial, that the jury who 
 tried the case had been reprimanded by the court for mis- 
 behavior in a previous case, no exception having been 
 made at the trial.^ jSTor that a juror was related to one 
 of the parties, if, at the opening of the case, the other 
 part}-- was present, and knew of the disqualification, and 
 did not object, although he was then ignorant of the law 
 creating the disqualification.^ 
 
 § 6. Upon the grounds above stated, to obtain a new 
 trial for the disqualification of a juror, it is held that 
 both the party and his attorney must show, by affidavit, 
 that it was impossible for either of them, by reasonable 
 diligence, to have discovered the fact in time to object at 
 the impanelling of the jury.'' Though, in the same State, 
 the less stringent rule was adopted, that, upon an indict- 
 ment for murder, a motion for a new trial, on the ground 
 that a juror had expressed an opinion before the trial, but 
 denied it when questioned, before being sworn, cannot be 
 supported, without proof, by affidavit, or otherivise, that 
 the fact was unknown to both the accused and his counsel, 
 at the time the jury was impanelled.^ So, on a motion 
 for a new trial, because one of the jurors was an alien, 
 the affidavit of the juror to that efi'ect was read, but 
 there was no affidavit of the party that he did not know 
 this at the time of the trial ; and it was held that, if the 
 party did know it, he had waived all objection, and, if he 
 did not, he should have supported his motion for a new 
 trial by an affidavit to that effect.^ 
 
 • Bailey f. Trumbull, 31 Conu. * Eastman v. Wvj;]it, 4 Ohio (N. 
 
 581. S.) l.-.G. 
 
 2 Kelly V. State, 19 Geo. 425. s p^rks v. State, 4 Ohio (N. S.) 
 
 3 Dollofi" V. Stimpson, 33 Maine, 234. 
 
 540. Ace. McLellan v. Crofton, 6 « Seal v. The State, 13 S. & M. 
 Greenl. 307. 398.
 
 8S THE LAW OF NEW TRIALS. [CII. VI. 
 
 § 7. The same rule is adopted with reference to the 
 evidence upon a trial.^ Objections cannot, in the first in- 
 stance, be made upon the motion for a new triah The 
 absence of the party against whom the evidence is offered 
 makes no difference.^ Thus the proper time to object to 
 the formal proof of a paper is when it is offered in evi- 
 dence f or that a note was not properly stamped.'* So 
 there can be no exception for variance, unless taken at the 
 trial. ''The respondent, by not raising the question of 
 variance at tlie projier time, must be held to have waived 
 it, because his omission deprived the petitioner of an 
 opportunity to make the necessary amendment."^ So the 
 admission of illegal testimony, not objected to at the 
 time, or, at least, on the argument of the case, is not a 
 good ground for a new trial.^ And the refusal of a new 
 trial is not ground for a writ of error; though exception 
 need not be taken at the time.^ So, where none of the 
 evidence is excepted to, and no instructions asked, the 
 Supreme Court will not disturb a verdict, found by the 
 court sitting as a jury, if the evidence supports it.^ 
 
 ' WUhereU v. Maine, 49 Maine, 2?, Geo. 57; "Wheeler v. State, ib. 
 
 200 ; Morrison v. Hays, 10 Geo. 202 ; McCoy v. Jones, 9 Tex. 363 ; 
 
 294; State v. Gordon, 1 R. I. 179. Hunter v. Waite, 11 ib. Bo; White 
 
 2 Clark V. Gridley, 35 Cal. 398. v. Chadbourne, 41 Maine, 149 ; 
 
 3 Perrott v. Shearer, 17 Mich. 48. Stone v. The State, 4 Humph. 27; 
 * Thomson ». Wilson, 2G Iowa, Jacobs v. Banu-or, 4 Shcp. 187; 
 
 120. Goldsby v. Gentle, 5 Blackf. 436 ; 
 
 5 PerBigelow, C. J., Hutchinson Lee v. Oppenhcimer, 34 Maine, 181; 
 V. Gurley, 8 Allen, 23; Slier v. Main i'. Gordon, 7 Eng. 651 ; Frost 
 Suriiet, iO S. ct M. 154. See White v. Goddard, 25 Maine, 419; Gold- 
 V. Ilichmoud, 16 Oliio, 5; Watson smith v. Picard, 27 Ala. 142 ; Hub- 
 V. McLaren, 19 Wend. 557 ; Turn- bard p. Knssell, 24 Barb. 404 ; Bond 
 bull V. Withersiioon, Walker, 350 ; v. Baldwin, 9 Geo. 9 ; Bishop v. 
 Hennen v. Gilman, 20 La. An. 241 ; The State, ib. 1^1 ; Flint v. Clark, 
 Clark V. Bouvain, il). 70; Burn- 13 Conn. 361 ; Thurman ?'. Came- 
 side V. Grand, 47 N. H. 554. ron, 24 Wend. 87 ; Gilliam v. State 
 
 6 Conway v. Case, 22 HI. 127; Bank, 2 Scam. 245; S. C, 6 ib. 
 Waudiop ?). Weeks, ib. 350 ; Com- 248; Harmon d. Thorneton, 2 ib. 
 mcrcial liank w. Martin, 9 S. & 351. See p. 96. 
 
 ]\L 613; Montecth v. Caldwell, 7 ' 9 Geo. 9; Kenyon v. Suther- 
 
 Humph. 13; Burnside ?;. Union, land, 3 Gilm. 99 ; McRaven ». Mc- 
 
 &c. , 10 Rich. 113 ; Johnson v. Ale.v- Guire, 9 S. &: M. 34. 
 
 under, 14 Tex. 382; Licet v. State, ** Reed v. Harrington, 13 Mis. 39.
 
 en. VI.] WAIVER. 89 
 
 § 8. The same rnle applies to that part of the charge of 
 the court which relates to the evidence.' Unless parties 
 moving instructions, in regard to the admissibility of evi- 
 dence, point out the peculiar testimony objected to, the 
 court may refuse the instruct ions.^ 
 
 § 9. And no exception lies for the admission of evi- 
 dence applicable/or cmypmyoses, but objected to generally ; 
 more especially unless the judge is requested to instruct 
 the jury what those purposes are.^ So a motion to ex- 
 clude evidence, a part of which is legal, may be overruled ; 
 since the court is not authorized to reject that portion 
 which is proper, nor required to sift the evidence so as to 
 separate the legal from the illegal.* 
 
 § 10. So an objection to testimony on one ground is a 
 waiver of others.* 
 
 § 11. "Objections to the competency of a witness must 
 be made before his examination, if known to the party 
 objecting, or they will not avail. And, if this knowledge 
 is first acquired after the examination of the witness has 
 commenced, the objection is waived if the witness is 
 suffered to proceed after the discovery."^ So, if a witness, 
 in answering a question, proper in itself, propounded by 
 the party calling him, state matter illegal, and not in re- 
 sponse to the question; the party calling him may except 
 to the testimony, and, on his exception, the court should 
 exclude so much of the answer as is improper from the 
 jury.^ But, unless objection to a question put to a witness 
 
 • Coil V. Wallace, 4 Zabr. 291 ; ^ Wyatt v. Steele, 20 Ala. 639 ; 
 
 Deloachw. Walker. 7 How. (Miss.) Martin v. Herdostv, 27 ih. 458. 
 
 164. 5 Garrett v. Garrett, 27 Ala. 087. 
 
 2 Harvey v. Epes, 12 Gratt. 153. s Per Tenney, C. J., State v. 
 
 3 Peo;g V. Warford, 7 Md. 582 ; Damery, 48 jMaine, 830 ; Donelsou 
 Christian v. Dripps, 28 Penn. 271 ; «. Taylor, 8 Pick. 390 ; 27 Ala. 142; 
 Smith V. Cansey, 28 Ala. 655 ; Up- Crnnip v. Starke, 23 Ark. 131. 
 son «. Raitord,29 ib. 188 ; Bigelow ^ Morgan o. Winston, 2 Swan, 
 V. Ward, ib. 471. 472.
 
 90 THE LAW OF NEW TRIALS. [flL VI. 
 
 1)0 seasonably made, the answer will not furnish g-round 
 for exception.' And a g-eneral ohjection to the eompe- 
 tency of a witness is of no avail.- Thus, in an action by 
 a sheriff for the use of execution creditors to recover the 
 price of property sold under tlie execution, the record 
 showed that tliey proposed to indemnify him against costs, 
 and that he then testified, although in fact he had not 
 been indemnified. Held, the defendant waived the ob- 
 jection.3 ^,^(j where objection was talcen to evidence ad- 
 mitted by the court, and the party objecting agreed that 
 the objection might rest until the argument, to be then 
 pursued if he should think fit, and in the argument no 
 allusion to it was made nor any ruling asked of the court; 
 licld, the objection was waived.^ So objection to the com- 
 petency of a defendant to testify, in an action brought by 
 the assignees of a deceased insolvent debtor, must be made 
 before the testimony has been given.-'^ So, where a (juestion 
 of usury was raised, and the defendant, who was a com- 
 petent witness to prove the usury, was allowed without 
 objection to testify to other facts; held, an objection to 
 his general competency could not be taken on error, or in 
 the form of instructions to disregard his evidence." And 
 an objection to a question in toto is such a waiver of an 
 objection merely to its form, that, if it is otherwise valid, 
 its improper form will not alone be a ground for reversal; 
 the exception having been taken without mentioning the 
 grounds of objection.'' So, when the only objection to the 
 admission of evidence was because it was "irrelevant and 
 incompetent," it cannot afterwards be objected to on the 
 ground that no proper foundation was laid for it.* So the 
 omission, in the motion for a new trial, to make an alleged 
 illegal admission of evidence a ground therefor, is a waiver 
 
 • State t). Xnttiivj:,:{nMain(\ 5:59. '' Lovcriug b. Langlcy, 8 Minn. 
 
 2 Pegg V. Wartbrd, 7 Mel. 582. 107. 
 
 3 Glenn V. Black, 31 Ga. 8!):$. ^ Gordon «. Godell, 34 111. 429. 
 
 * Iloxie V. Home Ins. Co., 33 ^ BulU-ick v. Gllman, 22 Wis. 
 
 Conn. 21. ^•">^>- 
 
 8 People V. Frank, 28 Cal. 507.
 
 CH. vl] waiver. 91 
 
 of the question of illegality in the court of appeal.' So, 
 where a plaintiff offered certain evidence, which was ruled 
 out on the defendant's objection, and did not insist at the 
 time, but in his argument upon the prayers for instruc- 
 tions claimed a right to rely on this evidence, and excepted 
 to the decision of the court sustaining the defendant's 
 objections to his doing so ; held, he had waived his right 
 to except.^ 
 
 § 12. The same rule applies, where evidence consists of a 
 mere inference of the witness,^ or where counsel did not 
 continue to press the examination of a witness unwilling 
 to testify, lest the court should commit the witness for 
 contempt,'' or to the allowance of a leading question,^ or 
 even in a criminal case, where a witness for the prosecu- 
 tion testified to material facts without being sworn ; if it 
 is not alleged in the petition that the respondent and his 
 counsel were ignorant of the fact till after the verdict, 
 and it is not shown that the respondent has thereby sus- 
 tained any injury, or that the statements made by the 
 witness were not true.^(a) So, where a witness, called for 
 the defence, was too much intoxicated to comprehend the 
 obligation of an oath, and the court refused to permit 
 him to testify, but told the prisoner he might afterwards 
 recall him, but he was not so recalled ; held, no ground 
 for a new trial.^ l^or that an important witness was drunk 
 and stupid, or "so disguised with liquor" that he could 
 not testify as clearly as he would otherwise have done, 
 &c., this being a fact known to the party at the time, and 
 
 ' Graham v. Roark, 28 Ark. 10, * Hinds v. Terry, Walker, 80. 
 
 2 Cecil Bank v. Heald, 35 Md. s Kemmerer®. Edelman, 2oPenn. 
 
 5G2. 143. 
 
 » Nichols V. Turney, 15 Conn. •* State v. Camp, 23 Vt. 551. 
 
 102. 7 State v. Underwood, 6 Ired. 06. 
 
 (a) Though counsel object to a question put to a witness during- the 
 trial, the exception will not be considered as made, unless it is actually 
 taken and signed by the judge. Scott v. Lloyd, 9 Pet. 418.
 
 92 THE LAW OF NEW TRIALS. [CH. VI. 
 
 ■which Avoiild liavc entitled him to ii contimiance.' So, 
 where persons are made defendants to a criminal prosecu- 
 tion, to prevent their testifying for the defence, the party 
 desiring their testimony should move for a separate trial, 
 which the court will grant or not in its discretion. If 
 there be no testimony against one of several defendants, 
 motion should be made for a separate verdict in his case, 
 whicli being had, he would become a comjietent witness 
 for the defence. And the neglect or omission, in such a 
 case, to move for a separate trial or verdict, is a sufhcient 
 ground for refusing, though it is competent for the court 
 to grant, a new trial.^ 
 
 § 13. Exceptions to all the answers to interrogatories, 
 not well founded as to some of them, will be overruled. 
 The objectionable parts should be pointed out.^ So, where 
 objection is made to the admission of two depositions, and 
 one is unobjectionable, the objection nuxy be overruled.^ 
 And, in general, a party objecting to written evidence for 
 any cause not going to its relevancy or com])etency, but 
 only to the manner of its authentication or proof, must 
 specially assign the grounds of objection.^ 
 
 § 14. AVhen objection is made to the admission of a 
 record in evidence, the j)articular objections must be speci- 
 fied." Tlie court is not bound to search through a long 
 record or other instrument otlered in evidence, to see if 
 there may not possibly be some objection to its admission, 
 which might have been taken. ^ kSo, where a deed was 
 invalid to pass the title it was intended to convey, but 
 was admissible as a link in the plaintiff's chain of evi- 
 
 ' Land v. IVIillor, 7 Tox. 453 ; 5 j^yan v. Jackson, 11 Tex. 301. 
 
 Shipp 11. Sugu:ott, y B. Mon. 5. ^ g,atc v. Gates, 30 Mis. 400 ; 
 
 2 Anthony v. The State, 2 R. I. McCartney y. Sheiianl, 21 Mis. 573. 
 305. ' McCartney v. Shepard, 21 Mis. 
 
 3 Ford ». Clements, 13 Tex. 592. 573. 
 ^ Tliomas v. De Graffcnreid, 27 
 
 Ala. GDI.
 
 CH. VI,] WAIVER. 93 
 
 dence, a motion to excliule it altogether was rightly over- 
 ruled.^ So, if a party reads in evidence to the jury a certi- 
 fied copy of a deed, which purports to have been executed 
 by husband and wife, without any attempt to limit its 
 effect as proof; he thereby concedes its genuineness, and 
 cannot be heard, in an appellate court, to say that it was 
 not proved ; although, according to the memorandum 
 indorsed on it by the clerk of the court in which it was 
 recorded, it was admitted to record on the acknowledg- 
 ment of the husband alone, and the party against whom 
 it was ottered " admitted that the original had been ex- 
 ecuted, proved, acknowledged, and recorded, as indorsed 
 and certified on said copy."^ So, a deposition, with a paper 
 annexed, being offered in evidence and objected to gene- 
 rally, and the objection being overruled, and the deposi- 
 tion and jiaper read to the jury ; it was held, on exceptions, 
 that, as no specific objection was taken at the trial to the 
 use of the ^laper, such objection could not afterwards be 
 made.2 ISTor will a new trial be granted for the admission 
 of a deposition, upon the ground, that the notary public, 
 before whom it was taken, had no legal power to take 
 it ; if the deposition was objected to entirely on other 
 grounds.^ So, where a particular description of testimony 
 is held to be admissible, and some portion of the same 
 description is afterwards introduced, the objecting party 
 must take exceptions to it at the time when it is intro- 
 duced. It is too late to make the objection when the 
 cause has been argued and the j ury charged.^ So the read- 
 ing of an improper paper by counsel, in his argument to 
 the jury, cannot be assigned for error, unless it is objected 
 to at the time, and the objection overruled, and made part 
 of the bill of exceptions.^ So, where particular entries 
 
 ' Olinger v. Sheplicrd, 12 Gratt. " Lyon v. Ely, 24 Conn. 507. See 
 
 462. Kent v. Tyson, 20 N. II. 121. 
 
 2 Jenkins v. McConico, 26 Ala. ^ prost v. Goddard, 25 Maine, 
 213. 414. 
 
 3 Waters v. Gilbert, 2 Gush. 27. ^ Kenyou v. Sutherland, 3 Gilm. 
 
 99.
 
 94 THE LAW OF NEW TRIALS. [CIL VI. 
 
 ill the Looks of a firm, offered in evidence for the ]mrpose 
 of sliowino; their insolvency and their knowledge of it at 
 the tiniL' of making a conveyance to a pre-existing creditor, 
 were ohjected to solely on the ground that they were not 
 original entries, nor proved by the clerk who made them; 
 held, it could not be made the ground of a motion for a 
 new trial, that the most important entries objected to ap- 
 peared to have been made after the conveyance.^ So the 
 l)laintilf, to show that notice of protest had been for- 
 warded, in due season, from one bank to another, and 
 from that to the indorser, introduced, without objection, 
 proof of certain circumstances, and the usage of banks, 
 from which he claimed that the jury had a right to infer 
 such notice, and the court so instructed the jury. Held, 
 this was no ground for setting aside the verdict.^ So ex- 
 ceptions were taken to the records of a proprietary, on 
 the ground, that owners of a lot of land and the meeting- 
 house thereon were not such tenants in common as were 
 authorized by the statute to incorporate themselves as a 
 proprietary ; but the objection was overruled, and the 
 books admitted, wnth liberty to refer to them in the argu- 
 ment. It was insisted on the argument, that the propri- 
 etors did not organize themselves agreeably to the statute, 
 and that this would appear by the records, thus made part 
 of the case. But the court held, that these objections 
 were not now open, as they were not specifically made at 
 the trial. If this had been done, the defects in the record 
 might have been supplied by other evidence.^ So the ob- 
 jection, that an instrument given in evidence was without 
 seal, in a case where a seal is essential to its validity, must 
 appear to have been taken at the trial, in order to be 
 ground of exceptions.^ 
 
 • Holbrook v. Jackson, 7 Ciish. * Iloward v. Ilayward, 10 Met. 
 
 136. 408. 
 
 i New Haven, &c. V. Mitchell, 15 ' Gillett v. Campbell, 1 Denio, 
 
 Conn. 200. ^30.
 
 CH. VI,] WAIVER. 95 
 
 § 15. A new trial will not be granted upon the ground 
 that certain declarations were admitted in evidence, which 
 were not admissible; if the objection at the trial was, not 
 to the declarations themselves, but to the mode of i)roving 
 them, by the person to whom they were made, instead of 
 the one who made them.^ 
 
 § 16. The evidence must be objected to at the time, 
 though it involves both law and fact; as that certain per- 
 sons were the heirs of another person.^ 
 
 § 17. Ko exception lies for the admission of testimony, 
 without notice of special matter, unless objected to.^ 
 
 § 18. In accepting service of interrogatories, a party 
 stipulated that he thereby "waives no objection to their 
 legality, pertinency, relevancy, or competency." Held, 
 this did not dispense with an express objection to the wit- 
 ness on the ground of interest.* 
 
 § 19. It is held that a new trial will not be granted for 
 the rejection of evidence, unless it appears that it was 
 pi^essed^ and deliberately rejected.^ Nor where the evidence 
 is excluded on cross-examination, but the witness after- 
 wards called by the objecting party and fully examined 
 on the same subject.^ So where no objection was made 
 to want of proof of a signature.'^ Or where an objection 
 to evidence was first raised in a prayer for instructions.* 
 Or secondary evidence was received, but not objected to.^ 
 Or where there was a variance not objected to.''' (See p. 
 88.) Or a witness was not sworn, but there was no im- 
 
 ' Wilcox V. Green, 28 Conn. 573. ' Morris v. Henderson, 37 Miss. 
 
 2 Robson V. Watts, 11 Tex. 764. 492. 
 
 3 Miller v. Stem, 13 Penn. 883. « Nalle v. Gates, 20 Tex. 315. 
 * Hudson V. Crow, 36 Ala. 515. » Goode v. Smith, 13 Cal. 81. 
 
 5 Whitehouse v. Hemmant, 3 '« Blair w. Corby, 29 Mis. 480; Mc- 
 Hurl. & N. 945. Hardy v. Wadsworth, 8 Mich. 349. 
 
 5 Lilkin v. People, 8 Mich. 357.
 
 96 THE LAW OF NEW TRIALS. [CII. VI. 
 
 mediate objection.^ 80, wlicre one party offered evidence 
 of a declaration made in presence of tlie other, without 
 reply, and the latter objected, solely upon the ground that 
 it was not heard by him, and to this point alone the atten- 
 tion of the jury was called ; the objection cannot be raised, 
 upon a hearing of exceptions, that the declaration was not 
 one which called for a reply. ^ So, where, on a trial, cer- 
 tain facts are assumed which are necessary to the action, 
 the losing party on a motion for a new trial, on a case 
 made, cannot insist on the absence of such facts.^(a) 
 
 Nor will a new trial be granted where a witness was in 
 attendance a part of the term, and then absented himself 
 before trial without leave. The party should have de- 
 manded a capias.* ISTor wdiere new testimony is dis- 
 covered, after the argument, but the party desiring to 
 avail himself of it does not ask to have it admitted.* So 
 a new trial will not be granted because evidence was ad- 
 mitted, but without objection, proving two assaults, when 
 there was but one charged in the indictment. '^ 
 
 § 20. The same rule is applied to alleged misdirection of 
 the presiding judge. Objection must be made at the time 
 when the instructions in question are given or refused.^(6) 
 
 ' Slantcr v. Whitelock, 12 lud. ^ Drake v. The Commonwealth, 
 
 338. 10 B. Mon. 225. 
 
 2 Ilildreth V.Martin, 3 Allen, 371. ' Brown v. Bristol, 7 II. & N. 
 
 ' Holbrook v. Wight, 24 Wend. lOOG ; Sarle v. Arnold, 7 K. I. 582; 
 
 169. Hill V. Ward, 2 Gilni. 285 ; How v. 
 
 * Stewart v. Small, 5 Mis. 525. Simms, \(\ Mis. 431; Allen v. Blunt, 
 
 5 Fleet V. llollenkamp, 13 B. 2 \\. cV :M. 121 ; Geer ». Archer, 2 
 
 Mon. 219. Barb. 420; Floersh y. Bank, &c., 
 
 10 Mis. 515. 
 
 (a) But where a written instrument was admitted in evidence as an 
 original paper, on the assumption and belief, without question, that it 
 was such, and it appeared by the evidence that this conclusion was not 
 warranted, a new trial was granted. Savage v. D'Wolf, 1 Blatch. Ct. 
 Ct. 343. 
 
 (fe) But where the court above have by law authority to grant a new 
 trial for any cause, the strictness of this general rule may be relaxed,
 
 CH. VI.] WAIVER. 97 
 
 Every point of law intended to bo made must be brought 
 to the attention of the court at the trial, and, if not, it is 
 not matter of exception that the court did not express an 
 opinion upon it.^ Matter of law not brought to the at- 
 tention of the court during the trial will be considered as 
 waived, and cannot be taken advantage of, on the argu- 
 ment of other points of law raised by exceptions.^ So, when 
 a charge is not full upon the evidence, or is even ambig- 
 uous, this is no cause for a reversal, when no instructions 
 beyond those given are asked for.^ Error in stating the 
 evidence is waived unless noticed at the time.* Thus 
 the question, whether the court should not have instructed 
 the jury, that the release of one defendant released the 
 other also, must be raised before verdict.^ So it is no 
 
 ' Emery fl. Vinall, 26 Maine, 295. •* Cutler v. Welsh, 48 N. H. 497. 
 
 2 Parker y. Flagg, 26 Maine, 181. ^ Gordon v. Pitt, 3 Clarke, 385. 
 
 3 Rhodes v. Sherrod, 9 Ala. 63. 
 
 and a new trial granted, on petition. Thus, although a party, who at the 
 trial does not make a question as to a certain fact, and present it to the 
 jury, cannot except because the judge refuses his request, made after the 
 argument, to instruct the jury as to the law which would arise upon 
 such fact; yet, upon petition for a new trial, the court may receive evi- 
 dence of what passed at the trial, and, if they are satisfied that evidence 
 was given upon which the jury might have found such fact, and also that 
 the party intended to make it a point in his case, may grant a new trial, 
 provided such fact, if proved, would change the result. Dole v. Thurlow, 
 12 Met. 157. So the court may in its discretion allow exceptions to in- 
 structions, although not taken until after the jury had withdrawn. St. 
 John V. Kidd, 26 Cal. 263. In Pennsylvania, a bill of exceptions to the 
 charge of a court should be taken, before the verdict, in open court ; and 
 a request to charge the jury in a certain way, and to file the opinion of 
 record, is not equivalent to a bill of exceptions so taken, without which 
 the charge of the court, filed in pursuance of such request, is not a sub- 
 ject for the assignment of error. Brattou v. Mitchell, 3 Barr, 44. In 
 England, where counsel does not ask that a certain point should be sub- 
 mitted to the jury, but gets leave to move reserved, he cannot ask for a 
 new trial, on the ground that that point was not submitted to the jury. 
 Morgan v. Couchman, 24 P^ug. L. & Eq. 321. Where the case was re- 
 ferred to the judge, this was held a waiver of objections to previous evi- 
 dence and rulings. Hersey v. Verrill, 39 Maine, 271. 
 
 7
 
 98 TIIK LAW OF NEW TRIALS. [CU. VI. 
 
 o-roiind of exception, that the court submitted the con- 
 struction of a written instrument to the jury, if done at 
 the request of the party excepting, and if the true legal 
 construction be against such party.^ 
 
 § 21. More especially the rule is laid down, that a party 
 cannot on a motion for a ncAV trial complain of any errors 
 in the charge, to which he did not object, and which did 
 not j)rejudice him.^ 
 
 § 22. So, if a dcfdulf be entered by consent of the de- 
 fendant, he cannot take exceptions to the ruling of the 
 judge." Upon the same princii)lo, a new trial will not be 
 granted for erroneously ordering a nonsuit, unless the 
 plaintiff claimed to go to the jury.< As where, upon the 
 judge's instructing the jury that the plaintiff was entitled 
 to only nominal damages, he elected to be nonsuited;'^ or 
 where a plaintiff replied to a plea of the statute of limita- 
 tions, that the cause of action arose within six years, but, 
 being unable to prove it, voluntarily became nonsuit, and 
 moved to have the nonsuit set aside, in order that he 
 might reply the issuing of a writ within six years.*' But 
 it is said, "If a counsel assents to a nonsuit, on hearing 
 from a learned judge, that, if the case goes to tlic jury, he 
 shall direct them in a manner which the court above 
 afterwards thinks incorrect, we are bound to consider the 
 case as if it had gone to a jury with that direction, ami a 
 verdict had been found accordingly."' 
 
 1 Kamlon «. Toby, 11 IIow. U. S. ?;. Boggess, 1 Scam. 281; Holdcn 
 493 V. Cole, 1 Pcnn. ;]03 ; Milton v. 
 
 2 McDanicl v. Walker, 29 Geo. Rowland, 11 Ala. 7:52. 
 
 2GG. Ace. Hawkins ;;. Tucker, 3 ^ Woodman o. Valentine, 9 Shcp. 
 
 Clarke, 2i;'. ; Govern. Dill, ib. ;537; 401. 
 
 Hall i\ Denise, ib. 'uU ; Cotton v. * Kindred v. Bagg, 1 Taun. 10 ; 
 
 AVatkins, (I Wis. (;29 ; Baltimore, People v. Browne, 3 Gilm. 87; 
 
 &c V. Besley, 14 j\Id. 424 ; IMartin Loin])ard v. Ciieever, ib. 409 ; Kls- 
 
 V The People, 13 111. 341; Ken- worthy i'. Bird, 1 McClel. 09. 
 
 ncdy p. Cunningham, 2 Met. (Ky.) ^ ]]utler v. Dorant, 3 Taun. 229. 
 
 538- Letton r. Young, ib. 538; ^ llulchiuson v. Brice, Burr. 
 
 Buckmastcr v. Cool, l2 111. 74; 2692. 
 
 Powers V. Allen, 14 Mis. 367 ; Gor- ^ Per Ld. Lyndhurst, C.B., Alex- 
 don V Gordon, 13 ib. 2ir); Com- auder «. Barker, 2 Tyrwh. 140. 
 paret v. Hedges, G Blackf. 417; Peck
 
 CH. VI.] WAIVER. 99 
 
 § 23. So, leaving to tlie jury a point of law is no ground 
 of new trial, unless noticed at the time.^ 
 
 § 24. Upon the same principle, if a party who is sur- 
 prised at the trial allows it to proceed, without making his 
 surprise known and applying for a delay, and the verdict 
 is against him, he cannot have a new trial by reason of 
 that surprise.^ And to entitle a party to a new trial, on 
 the ground of surprise, not only must he show merits, but 
 the surprise must be of such a character as care and pru- 
 dence could not provide against. The slightest negli- 
 gence will defeat the application or occasion the imposi- 
 tion of the most rigorous terms.^ Thus, on a motion for 
 a new trial for non-attendance of witnesses, due diligence 
 must be shown to procure their attendance. Subpoenaing 
 them on the morning of the day for which the cause was 
 set down for trial, and actually tried, is not due dili- 
 gence.^(a) So the plaintiff agreed to make certain admis- 
 sions on the trial. He did make admissions, which were 
 not objected to at the time, on the ground that they were 
 not the admissions he agreed to make. Held, that after 
 verdict it was too late to object to the sufficiency of the 
 admissions, and the defendant could not base a motion 
 for a new trial upon the ground of surprise in respect 
 thereof.^ So a new trial will not be granted, to enable a 
 party to put in a defence known to him before the verdict.'^ 
 So a suit was instituted against several defendants in 
 
 ' Doe V. Stricklaud, 8 Man. G. & 244 ; Sheftall v. Clay, R. M. Charlt. 
 
 Sc. 724. 7. 
 
 2 Can- V. Gale, 1 Curt. 384. * Rogers v. Huie, 1 Cal. 429. 
 
 3 Thompson v. Williams. 7 S. & ^ ciark v. Carter, 13 Geo. 500. 
 M. 370; Burr v. Palmer, 23 Vt. s Case v. The State, 5 Ind. 1. 
 
 (a) The affidavits should set forth particularly the facts expected to 
 be proved by the absent witnesses on the new trial ; and the affidavits of 
 the witnesses should be procured also, if practicable, stating what they 
 will testify to. The same rules apply, where a new trial is asked on the 
 ground of newly-discovered evidence. Rogers v. Huie, 1 Cal. 429.
 
 100 THE LAW OF NEW TRIALS. [CH. VI. 
 
 May, 1S41, a trial had, and judgment entered against 
 tliem all in November, 1843, and there was nothing on 
 the record showing the verdict and judgment to be in- 
 correct. One of the defendants filed an athdavit as the 
 foundation of a motion for a new trial, stating, that, on 
 the day before the trial it was agreed between the plaiutiif 
 and himself, that the case should not be tried until they 
 had made an effort to compromise it, and he, relying on 
 that agreement, went home, and returned the next day, 
 and found the case in progress of trial before the jury; 
 and that the disposition manifested to compromise the 
 suit, and the agreement to let the case stand, prevented 
 him from asking leave of the court to put in a defence 
 which had arisen since the commencement of the suit, 
 namely, his discharge under the bankrupt law. Held, the 
 defence went merely to the defendant's personal discharge, 
 and not to the merits of the action; that he had more- 
 over been guilty of negligence in not making application 
 to put in his defence at the first tprm after his discharge 
 occurred, for which no excuse was offered; and the motion 
 for a new trial was overruled.^ 
 
 § 25. An excuse, which would have been a good reason 
 for a continuance, is not necessarily a good reason for a 
 new trial.2 Nor want of recollection of a fact, which, by 
 due attention, might have been remembered.^ Nor that 
 the party managing the cause was not present when the 
 verdict was rendered, and the court adjourned the next 
 day." Nor that a party neglected to defend, supposing 
 his case could not bo reached during his absence.^ So, 
 where a plaintiff", with full knowledge of his right to 
 delay trial till an absent defendant should be served, 
 
 ' Thompson r. AVilliams, 7 S. & « Paul v. Williams, 2 B. Moiir. 
 
 M. 270. 26'5. 
 
 2 Strippelmann «. Clark, 11 Tex. ^ Yelton v. Ilawkms, 2 J. J. 
 296. Marsh. G42. 
 
 3 Watts V. Johnson, 4 Tex. 315; 
 Cochrane c. Middletou, 13 ib. 275.
 
 CH. VI.] WAIVER. 101 
 
 agreed without reservation, that the issue between him 
 and the other defendants shoiikl be set for trial at a par- 
 ticuhar day, then asked for a continuance only on the 
 ground of absence of his witnesses, and, in consideration 
 of such continuance by consent, agreed of record that the 
 case should be tried on a certain day ; held, such agree- 
 ments are not only between the parties, but between them 
 and the court, and he thereby w^aived his right to delay 
 the trial till issue should be joined "with the absent de- 
 fendant.* 
 
 § 26. Although a person indicted for a capital offence 
 is entitled to a copy of the indictment, he may waive 
 that right; and, if he go to trial without objecting to the 
 want of such copy, he cannot object after trial.^ 
 
 § 27. It is no ground for a new trial of a scire facias 
 against bail, that the defendant "believed, supposed, and 
 was informed that he had fully and legally discharged 
 himself as bail," when he had omitted to do all that was 
 necessary by law for a discharge.^ So, in a capital case, 
 the prisoner, before arraignment, in reply to the question 
 whether he had received the copy of the indictment pro- 
 vided by statute, replied that he had. Held, no ground 
 of new trial, that the copy was slightly defective in form.* 
 
 § 28. Upon a libel for divorce for cruelty, the respondent 
 cannot except to the refusal of the presiding judge to 
 order further specifications of the places of the acts 
 charged with the usual precision : especially when ac- 
 companied by the intimation, that he should be allowed 
 a reasonable postponement to meet any unexpected evi- 
 dence; and when he does not during the trial ask for any 
 such postponement.^ 
 
 1 Meager o. Gagliardo, 35 Cal. " U. S. v. Cornell, 2 Mas. 91. 
 603. 5 Gardner v. Gardner, 2 Gray, 
 
 2 Lisle V. The State, 6 ]Mis. 426. 434. 
 « Howard v. Caprou, 3 R. 1. 182.
 
 102 THE LAW OF NEW TRIALS. [CH. VI. 
 
 § 29. The same rule ap})lies to the case of newly-disco- 
 vered evidence} As where by due diligence it might have 
 been discovered, that a witness, who had been examined 
 on his voir dire^ and had testified that he had no interest, 
 was securit}^ for the costs.^ And, on the other hand, ob- 
 jections to the sufficiency of newly-discovered evidence, 
 to the affidavits filed in sup[)ort thereof, and to the sufii- 
 ciency of the averment of the petition, must be taken 
 upon the hearing bclow.^ 
 
 § 30. If a new trial is refused for excessive damages^ a 
 1)111 of exceptions to such refusal should state that the 
 objection was taken in the motion.' And a new trial will 
 not be decreed where the defence could only go in miti- 
 gation of damages, if negligence on the part of the appli- 
 cant is shown.^ So the court above refused a new trial, 
 where the evidence was that the property was worth 
 "about $20," and the verdict was for $21, no objection 
 being taken in the court below.^ And an objection that 
 the damages are excessive is waived if not insisted on as 
 a ground for a ncAV trial.^ 
 
 § 31. The same rule applies to many other miscellane- 
 ous cases. As in case of neglect to instruct counsel.^ Or 
 neglect to move for a continuance.'' Or where the party 
 mifrht have claimed a continuance or nonsuit for want of 
 evidence.^" So the pleading is not open on exception, un- 
 less objected to at the trial. ^'(«) Thus, where a complaint 
 
 • Parker v. Chambers, 24 Goo. ^ Roots v. Brown, 1 Bibb, 354. 
 518; Border i\ Spalding, 13 La. An. " Wriiilit v. Bonta, 1!) Tox. 385. 
 580 ; llarri'll r. Hill, 15 Tox. 2'M) ; ' C'rnnip v. Starko, 23 Ark. 131. 
 MoComhs V. Chandlor, 5 Ilarring. « Claussen «. Salinas, 12 Rich. 
 423. ■ 124. 
 
 2 ChiapcUa v. IJrown, 14 La. An. ^ Borry v. Matzlor, 7 Cal. 418. 
 189. '° Kilnoro t). .Jordan, 17 Tex. 341. 
 
 3 Darrance v. Preston, 18 Iowa, " Wall «.Provideut,&c., 3 Allen, 
 396. 90. 
 
 * Law V. Law, 2 Gratt. 3G0. 
 
 (a) Where the plaintiff was bonnd to support the affirmative of an 
 issue made by the pleadings, and the judge wrongly instructed the jury
 
 CII. VI.] WAIVER. 103 
 
 under the bastardy act is brought to the court above on 
 other grounds, an objection cannot be there made for the 
 first time to the form of complaint.^ And where the court 
 is called upon to instruct the jury as to the law arising on 
 the facts, this impliedly assumes the correctness of the 
 pleadings.^ So the objection, tliat there is no replication 
 to a special plea, cannot be taken on error, if it was not 
 taken at tlie trial.^ ISTor can objection be made to an 
 amendment, by striking out the name of one defendant 
 without actually erasing it, unless made on this ground 
 at the trial.^ N^or for want of jurisdiction of the court 
 on account of an insufficient service, after appearance and 
 pleading to the merits.* So points of law, not made in 
 the original argument of a case, will not be noticed on an 
 application for a rehearing, where justice does not require 
 it.^ The same rule applies, where the defendants were 
 in court on the argument of a rule for a new trial, and, 
 though called on to support the ground taken by affidavit, 
 declined to do so.^ So a motion was made, for a party to 
 show cause why he should not pay over certain money 
 derived from the sale of one vessel, and afterwards, on a 
 hearing of the motion, it was agreed to include the case 
 of another vessel, and judgment was rendered against him 
 in both cases. Held, the parties had a right to include by 
 agreement other matters than those for which the motion 
 was first made, and there was no ground for granting a 
 
 • Murpliy V. Spence, 9 Gray, 399. ^ Lawrence v. Bassett, 5 Allen, 
 
 2 Guy B.'Taras, 6 Gill, 82. 140. 
 
 3 Hubbert v. Collier, G Ala. 2G9. ^ Garland v. Holmes, 1 La. An. 
 
 * Hawkes v. Davenport, 5 Allen, 405. See Couch v. McKee, 1 Eug. 
 390. See Haynes W.Morgan, 3 Mass. 484; Cami)bell n. Hawkins, ili. 441 ; 
 208 ; Pease v. Wliitnev, 4 ib. 507 ; Clark v. Bank of Mississippi, 3 ib. 
 Balcom v. Woodruff, 7 Barb. 13. 220. 
 
 7 Clark V. Blount, 3 Hawks, 208. 
 
 that the evidence offered by him was sufficient for that purpose, and all 
 this appeared upon the record ; held, the court above would notice the 
 error, although no specific exception was taken on the trial. Grist v. 
 Backhouse, 4 Dcv. & Batt. 362.
 
 104 THE LAW OF NEW TRIALS. [ClI. VI. 
 
 new trial.' So exceptions are waived by the acceptance 
 of an order granting a new trial, on motion, though the 
 order leaves open only one question.- So, after arguing a 
 motion for a new trial, it is not admissible to object that 
 the statement was not agreed to by the party and not set- 
 tled by the judge.^ So, although after final judgment or 
 the overruling of an application for a new trial it is irre- 
 gular to entertain a second motion for that object ; yet, 
 after the court has granted such new trial, the plaintiff, 
 by appearing and amending his declaration, will be held 
 to have waived the irregularity.'* So, where the exclusion 
 of testimony is assigned for error, the bill of exceptions 
 must show that the opinion of the court was excepted to 
 at the time it was given.^ So, where exceptions to an 
 order accepting an award have been overruled ; the party 
 excepting cannot renew the motion to set aside the aw' ard, 
 and to support it by new evidence. " He cannot try his 
 case piecemeal."* So there is a waiver, unless the defend- 
 ant objects, by demurrer, or at the trial, to the plaintiff's 
 capacity to sue, or to the jurisdiction.^ So an objection 
 to the revival of a suit in the name of an administrator 
 cannot be made on error, unless made in the court below.^ 
 So equity will not order a new trial, if there has been 
 want of diligence at law.^ So an objection to the non- 
 joinder of defendants is waived, when not taken by the 
 pleadings.!" So under (Miss.) Rev. Code, 504, §§ IGl, 2, 6, 
 the Supreme Court cannot consider any other objections 
 to the proceedings, trial and verdict than those stated in 
 the motion for a new trial.'^ So the filing of a brief of 
 evidence, on a motion for a new trial, is waived by the 
 opposite party's appearance and argument of the motion. '^ 
 
 ' Bates V. The Republic, 2 Tex. e Fay v. Bond, 8 Allen, 433-4. 
 616. ' Mosselman».Caen, 34Barb. 06. 
 
 2 Seccorab v. Provincial, &c., 4 * Patterson y. Burnett. Ala. 844. 
 Allen, 102. s Hamilton y. Moore, 32 Miss. 625. 
 
 •'' Dickinson v. Vanliorn, 9 Cal. "> McV(>an v. 8cott, 40 Barb. 379. 
 207. " Barney v. Scherling, 40 Miss. 
 
 * Powers V. Bridges, 1 Iowa, 235. 320. 
 
 ^ Deloacli v. Walker, 7 Miss. '^ Goodwyn v. Hightower, 30 Ga. 
 
 164. • 249.
 
 en. VI.] WAIVER. 105 
 
 So, when a demurrer is filed to an answer, and has not 
 been disposed of when the case is tried, hut no ohjection 
 is made on that account at the time of trial ; a new trial 
 will not be granted on account of the irregularity.* l^or, 
 after verdict, where the defendant, without objection, per- 
 mits the plaintiff's counsel to draw inferences from facts 
 in the case, which lie deems unjust and unfair, or to 
 indulge in a course of argument calculated, in the de- 
 fendant's opinion, to improperly influence, prejudice, or 
 mislead the jury.^ So a party who goes to trial before 
 the judge alone, without objection, waives a jury.' 
 
 § 32. The same rule has been applied to an irregular 
 course of proceeding on the part of the objecting party 
 himself. It is said: "It is not for a party to comj^lain 
 that the j^ersonal knowledge of jurors was ai^pealed to by 
 himself unsuccessfully. Having chosen to adopt, and 
 been permitted without objection to pursue, an unusual 
 course of argument, and having therein ventured to rely 
 upon a species of evidence usually regarded as loose, un- 
 certain, and dangerous in its character, he cannot take 
 advantage of his own act, and avoid a verdict against 
 himself on account of his own conduct in the manage- 
 ment of his cause."'* 
 
 § 33. The negligence of counsel has the same effect as 
 that of the party himself.^ Thus, where, at the trial of an 
 action against an insurance company, it appeared that the 
 sheriff, who had returned a talesman to serve on the jury, 
 was a stockholder in such company, and this circumstance 
 was known to the junior counsel for the plaintiff soon 
 after the trial began, but no objection was made till after 
 
 1 Caldcrwood v. Tevis, 23 Cal. ^ Yates v. Monroe, IR 111. 213 ; 
 335. Green v. Robinson, 3 How. Miss. 
 
 2 Ames V. Potter, 7 R. I. 2C)5. 105; Patterson «. Matthews, 3 Bibb, 
 
 3 Leonard r. Rogan, 20 Wis. 540. 80. 
 * Per Fowler. J., Nuttiug v. Her- 
 bert, 37 N. H. 35-4.
 
 106 THE LAW OF NEW TRIALS. [CII. VI. 
 
 the trial had proceeded lor some time; held, a waiver of 
 any exception to the competency of such juror.* So the 
 interest of a juror, if known to counsel hefore the trial, 
 though not known to his client until after verdict, is no 
 ground for a new trial. -(a) 
 
 ' Orrok v. CommomvcaUh Ins. 2 Kent v. Cli;irlestowu, 3 Gray, 
 Co., 21 Pick. 406. 281. 
 
 (a) Where no writ issued against a defendant, it is no ground for a 
 new trial, if he, by his attorney, defended the cause. Ilaiidley v. State- 
 lor, 6 Litt. 186. And a new trial will not be granted, because the at- 
 torney of the party moving was absent from llie trial. l)eing mistaken as 
 to the time of the meeting of the court. Stcigers r. Darljy, 8 Miss. 679; 
 Field V. Matson, 8 Mis. 686. So, where a defendant, from tlie beginning, 
 neglects his case on very insufficient grounds, whereby a default is ren- 
 dered against him, and afterwards employs counsel who does not prac- 
 tise in the court; he is not entitled to any indulgence of the court, and 
 cannot claim any because of the absence of his counsel. Cogdell v. Bar- 
 field, 2 Hawks, 3.32. 
 
 The principle of waiver hy neglect is applied, in reference to the time 
 at or within which the application for a new trial shall be made. The 
 cases relating to this point of course depend upon the varying statutes 
 and course of prS,ctice in the different States. 
 
 In Alabama, where the counsel for both parties agree that an excep- 
 tion, taken at the trial shall be examined after the adjournment of the 
 court, and the bill of exceptions then .scaled and allowed ; this is not a 
 failure or refusal of the judge, within the Alabama act of 1826, so as 
 to warrant the Supreme Court to allow the exceptions. Wood v. Brown, 
 8 Ala. 742. In the same State, an act which provides, that it shall not be 
 lawful forjudges "to sign bills of exception after the adjournment of the 
 court, unless, by counsel's consent in writing, a longer time, not beyond 
 ten days, is given ;" is mandatory in its terms, and intended to provide 
 for an evil, which requires that it should be interpreted according to the 
 import of the language employed ; consequently such a consent must be 
 in writing. AVood v. Brown, 8 Ala. 563. In Georgia, a bill of excep- 
 tions must be drawn up, certified, and signed, within four days after the 
 trial. Truluck v. Peeples, 1 Kelly, 1. And if not thus signed, will be 
 dismissed. Smith v. Burn, 2 Kelly, 262. But when there is no evidence 
 as to the time, the court will presume that it was signed within the 
 proper time. Truluck v. Peoples, 1 Kelly, 1. Where, on motion for a 
 rule nisi for a new trial, the brief of evidence had been agreed on by
 
 en. VI.] WAIVER. 107 
 
 counsel, and approved liy the court, and ordered to be entered on the 
 minutes of tlie court; but, owing to the sickness or fault of the clerk, 
 was not entered: on a motion to dismiss the rule it was held, that, as the 
 65th common-law rule had been substantially complied with, an order for 
 the entry of the brief might be taken nitnc pro tunc. Dunn v. Crozier, 
 17 Geo. 70. Where a party tenders a bill of exceptions to the opinion 
 of the Superior Court, within the thirty days prescribed by law, it is the 
 duty of the presiding judge to certify and sign it, if true, though there 
 was no notice of a purpose to except at the time. Carey v. McDougald, 
 4 Geo. 609. In Massachusetts, exceptions to instructions to the jury 
 may be first alleged after the verdict. Buckland v. Charlemont, 3 Pick. 
 173. Exceptions must be taken before the adjournment of the court 
 below; but the Supreme Court will not notice an irregularity in this 
 respect, unless it appears by the certificate of the judge who allows the 
 exceptions. Whitcomb v. Williams, 4 Pick. 288. In general, a party 
 cannot except to an interlocutory order, until final judgment. Piper v. 
 Willard, 6 Pick. 461. If he do except before final judgment, and still 
 wish the action tried, he must enter the exceptions in the Supreme Court, 
 where they will be dismissed, and the action may be brought forward on 
 the docket of the court below. Ely v. Ball, 8 Pick. 3.52. It is the duty 
 of this court so to bring forward a case, and proceed to judgment, when 
 the Supreme Court refuse to take cognizance of exceptions; and, on 
 certiorari, it will be presumed that the case was not brought forward 
 without notice to the party who took the exceptions. Com. v. Moore, 3 
 Pick. 194. In Vermont, exceptions to an interlocutory judgment of the 
 Court of Common Pleas must be allowed and filed when such judgment 
 is rendered. Gage v. Ladd 6 Yerm. 174. Where a judgment is ren- 
 dered by a county court, under a rule that such judgment is to be re- 
 versed by the Supreme Court, in a certain event; such rule, though 
 binding upon the parties, is not necessarily imperative upon the court ; 
 and where the case turns upon a point not anticipated when the rule was 
 made, and in the opinion of the court requires the further action of a jury, 
 it will be remanded for a new trial. Foster v. Callamer, 10 Verm. 466. 
 In Iowa, Avhen, by agreement, twt ty days were granted a party to pre- 
 pare a bill of exceptions, and within that time he presented the bill to 
 the judge for his signature, though it was not filed with the clerk till five 
 days after, it was held to be sufficient. Humphrey v. Burge, 1 Iowa, 223. 
 A defendant having appealed from a judgment by default, on the ground 
 that he was served with notice by publication only, the judgment was 
 affirmed, because no motion had been made for a retrial, as provided by 
 Rev. 1860, § 3160. Held, the defendant was not precluded thereby 
 from making such motion within the time prescribed by the statute. 
 Berryhill v. Jacobs, 20 Iowa, 246. A court has jurisdiction of a petition 
 for a new trial, filed by the plaintiff at a term subsequent to that in
 
 108 THE LAW OF NEW TRIALS. [CII. VI. 
 
 which the original judgment was entered, which was in his favor, but for 
 a very small sum, when the real estate of the defendant, a non-resident 
 of the State, was attached at the commencement of the suit, and he ap- 
 peared and answered, and when notice by publication of the petition has 
 been given, and notice left at his usual place of residence. Darrance v. 
 Preston, 18 Iowa, 396. On an application for a new trial in an action 
 for the recovery of real property, the court, under Rev. 3584, is not 
 limited to the grounds specified in §§ 3112-3120. White v. Poormau, 24 
 Iowa, 108. In such actions the right to apply for a new trial is not 
 limited to the party to the suit. lb. The applicant has two years in 
 which to make his application. lb. Where, on appeal, a cause in eject- 
 ment is remanded, and judgment entered in the District Court for the 
 plaintiff, it is the same as if such judgment had been entered there and 
 DO appeal had been taken, and under H 3582-3588 of the Revision the 
 unsuccessful party has the riglit to apply to the District Court for a new 
 trial within two years from the judgment. Butterfield r. Walsh. 25 Iowa, 
 263. Under ^§ 3582-3588 of the Revision, the unsuccessful party in an 
 action of right is entitled to the benefit of the provisions respecting new 
 trials as well where his defence is equitable as where it is legal. .lb. In 
 New York, the bill must be presented to the judges of the Court of 
 Common Pleas, and must be signed and sealed by them, while sitting to- 
 gether as a court. Clark v. Dutcher, 19 Johns. 246 ; Midbcrry v. Collins, 
 9 Johns. 345. If, however, a copy has been served on the opposite party, 
 and produced in court, and no objection taken to the judges' signing it, 
 except that it was not seasonably presented ; they may sign the bill 
 separately. People v. Herkimer, C. P., 7 Wend. 536. If there be an 
 order to stay proceedings till exceptions are settled, the party excepting 
 shall have reasonable time, after attending before the judge for settle- 
 ment, to engross the bill, and obtain the judge's signature ; and, till his 
 signature is obtained, the bill is not settled, and a judgment entered pre- 
 viously thereto will be set aside for irregularity. Pellatreau v. Moore, 9 
 Wend. 493. Where a bill has been taken, but not entered on the roll, 
 nor filed, nor attached to the record, the court, even after the lapse of 
 several years, will order it to be so filed and attached, to enal)le the party 
 to bring error. Manhattan Co. v. Osgood, 1 Cow. 65. A defendant in 
 error cannot take advantage of the fact that a bill purports to have been 
 signed subsequent to the trial ; for the court will permit the bill to be 
 amended. A bill improperly allowed or wrongly dated will be set aside 
 on a special motion. Dean v, Cridlcy, 10 Wend. 254. It is too late to 
 make a motion for a new trial after entry of judgment. Sheldon v_ 
 Stryker, 42 Barb. 284. In Kentucky, reasonable time should be given 
 to prepare exceptions, and for the court to consider on them ; and, when 
 a case is tried at the last hour of the term, time may properly be given 
 until the next terra. Gordon v. Ryan, 1 J. J. Marsh. 58. The court is
 
 CH. VI.] WAIVER. 109 
 
 not bound, in all cases, to allow exceptions, after the trial is closed, to 
 opinions given in the course of the trial. Halloway v. ITalloway, 1 Monr. 
 131. The exceptions should regularly be made, while the transactions to 
 which they refer are proceeding. Hughes v. Robinson, 1 Monr. 216. 
 They should be prepared and finished before the close of the trial. 
 Hawkins v. Lowry, 6 J. J. Marsh. 247. The application for a new trial 
 must be made at the term the verdict or decision is rendered, and, except 
 for the cause mentioned in subdivision 7 of § 369 of the Civil Code, shall 
 be within three days after the verdict or decision was rendered, unless 
 unavoidably prevented. Harris v. Eay, 15 B. Mon. 028. In Tennessee, 
 though a judge certify that the facts set forth (in a paper intended for a 
 bill of exceptions) are true, yet, if he state that it was not offered "while 
 the thing was transacting," and do not put his seal to it, it will not be 
 regarded as a part of the record, nor be noticed in any way by the court 
 above. Powers v. Wright, Minor, 66. In Texas, in an application for 
 a new trial after the adjournment of the court, the applicant must show 
 that injustice has been done by the verdict and judgment at law, and why 
 he did not make his defence on the trial of the action. Spencer v. Kin- 
 nard, 12 Tex. 180. To entitle a party to a new trial after the term, he 
 must shoV sufficient matter to have entitled him to a new trial if applied 
 for in the term, and a sufficient legal excuse for not having then made 
 his application. Cook v. Garza, 13 Tex. 431. It is competent for the 
 District Court, in the exercise of equity jurisdiction, to grant a new trial 
 after the adjournment of the court at which it should have been asked. 
 Gorman v McFarlaud, 13 Tex. 237. Where a new trial was granted on 
 condition that the plaintiff pay costs on or before the next term, if the 
 defendant intends to insist upon the nullity of the order, he must do it 
 at the next term. lb. A court, after granting a new trial, cannot rescind 
 the order and enter judgment on the verdict at a subsequent term. Wells 
 V. Melville, 25 Tex. 337 ; Brooks v. Hanauer, 22 Ark. 174. In Yir- 
 ginia, a party wishing to move for a new trial at law is not bound to do 
 so on the day of the trial, but may do it ou a subsequent day of the 
 term. Foushee v. Lea, 4 Call, 279. In Mississippi, instructions which 
 appear by the record, as made under the practice of the State, to have been 
 given or refused, are open for consideration upon a motion for a new trial, 
 although not specially excepted to at the trial below. Mayer v. Mc- 
 Lure, 36 Miss. 389. A bill of exceptions to the ruling of the court at the 
 trial, sealed at the term subsequent to the term of the trial, though the 
 exceptions were taken at the time, is incompetent. Gray v. Thomas, 12 
 S. & M. 111. Where, upon an application to the Circuit Court for a 
 mandamus, to compel a board of police to sign a bill of exceptions, with 
 the view of taking up a case by appeal to that court, the defendants 
 answered, that no appeal had been prayed by the party seeking the 
 mandamus, either at the term when the judgment was rendered from
 
 110 THE LAW OF NEW TRIALS. [CIL VI. 
 
 wliieli llio iippoal was souulit, or the next succeeding one, anil on this 
 answer the plaintifl" moved for a peremptory ??ia?u/«»i»s; it was held, 
 that this motion admitted tlic-truth of the answer, which showed that the 
 application for an apjieal was made too late, the law requiring it at the 
 judgment term or succeeding one, *' and not after." Board of Police v. 
 Ray, 12 S. & M. 342. In Arkansas, when the court gave the plaintiff 
 " until the .5th of July" to tender a bill of exceptions, and it was pre- 
 sented, signed, sealed, and ordered to be made part of the record, on the 
 r)tli of July ; held, it was within the time allowed. Thorn v. Delaney, 1 
 Eng. 219. Where the transcript showed an entry of the trial and judg- 
 ment on the 28th, and a similar entry dated the 30th of July, and the 
 judge certified, in the bill of exceptions, that the trial was had on the 
 30th; held, the trial and judgment must be considered as having taken 
 place on the 30th, and the entry of the 28th as being a clerical error; or 
 the first judgment as having been set aside, and a new trial granted on 
 the 30th. lb. AVhere an appeal is asked from a decision of a probate 
 court, the party has, during that term, to present his bill of exceptions 
 for allowance. Dillard v. Moore, 2 Eng. 16G. In Illinois, in appeal 
 cases where the judge tries the facts, a bill is in season after the judgment 
 is rendered. Johnson v. Ackless, 1 Brcese, 59. In Connecticut, the 
 court will not reject a bill of exceptions to a judge's charge, merely be- 
 cause it was not filed till after the verdict ; no specific time being fixed 
 by law. Camp v. Tompkins, 9 Conn. .545. In Delaware, a new trial 
 must be demanded, but need not be had, within fifteen days after the 
 judgment. Deputy v. Betts, 4 Harring. 352. In the Supreme Court of 
 the United States, the bill must appear on its face to be taken and signed 
 at the trial, though in practice it may be signed afterwards, when re- 
 duced to form ; but, if it be afterwards signed, it must be nunc pro tunc; 
 and if it appear otherwise it is a fatal defect. Walton v. The United 
 States, 9 AVheat. 651; Law v. IMerrils, G Wend. 2G8. See 2 Sumn. 19. 
 In England, where a party has obtained a rule nitii for a new trial, by 
 leave of the court, after the expiration of the first four days of the term, 
 but without giving notice within that period to the opposite party of his 
 intention to move, and the opposite party has signed judgment without 
 any notice of the motion; the court will not permit the rule to be made 
 absolute, if the objection is nuule on showing cause. AVhitly v. Carr, 2 
 Eng. Law and Ya[. 1G7. See Mossop v. Great Northern Railway Co., 32 
 Eng. Law and Eq. 380. A plaintiff is entitled to the same time for pro- 
 ceeding to trial, after a rule made absolute for a new trial, as he had for 
 proceeding to trial originally. Consequently, where a rule had been 
 made absolute for a new trial, and the plaintiff had gone down to try at 
 the sittings after Michaelmas term, but the jury, being unable to agree, 
 ■were discharged from giving a verdict ; held, it was not competent to the 
 defendant to take down the record for trial by proviso at the sittings
 
 en. VI.] AVAIVER. Ill 
 
 after Hilary term, the plaintiff not being in default. Oakeley v. Ooddeen. 
 11 C. B. (N. S.) 805. Where notice of trial has been given for a par- 
 ticular sitting, and at the request of the defendant the cause is made a 
 remanet to a subsequent sitting, a countermand of trial by notice four 
 days before such subsequent sitting is sufficient. Sully v. Noble, 1 Hurl. 
 & Colt. 809. A rule for a new trial having by mistake of counsel been 
 moved in the Queen's Bench instead of the proper court, the court per 
 mitted the motion to be renewed here after the expiration of the four 
 days. Johnson v. Warwick, 34 Eng. Law and Eq. 413. A cause was 
 tried before Lord Truro, when chief justice of the court, and a bill of 
 exceptions tendered, and the draft thereof submitted to his lordship; but, 
 in consequence of his elevation to the woolsack, and subsequent illnes.s, 
 all hope of getting it settled and sealed being at an end, the court di- 
 rected a new trial. Benett v. Peninsular, &c., Steamboat Co., 32 Eng. 
 Law and Eq. 318. In Vermont, uuder the statute, requiring a petition 
 for a new trial to be brought within two years next after the rendition 
 of the original judgment, such time is to be reckoned from the last day 
 of the term at which judgment is rendered. Bradish v. State, 35 Vt. 
 452. Under the (Ind.) Code, a new trial after the term can only be 
 granted for a cause for which it might have been granted during the 
 term, had the cause then been known. Glidewell v. Daggy, 21 Ind. 95. 
 A motion for a vemre de novo is not a waiver of a motion for a new 
 trial. Jenkins v. Parkhill, 25 Ind. 473. In California, when leave is 
 granted to file a statement of the grounds of a motion for a new trial 
 within twenty days, the time runs from the date of the order, and not 
 from the time of giving notice of the motion. Easterby v. Larco, 24 Cal. 
 179. A party who claims the benefit of a waiver of the failure to file, 
 within the proper time, the statement required on an application for a 
 new trial, must prove the waiver beyond question. Munch v. William- 
 son, 24 Cal. 167. A record of court, viz.: "Now, at this day, in open 
 court, comes on to be heard the defendant's motion for a new trial ; and, 
 thereupon, after having heard the arguments of counsel, the court over- 
 rules the same, to which ruling of the court the defendants, by counsel, 
 except," shows no appearance of the counsel of the plaintiff, by which he 
 can be held to have waived any objection to the filing of the statement 
 of the grounds of the motion, after the time prescribed by the statute 
 for such filing had expired. lb. The right to move for a new trial is 
 waived, if the notice of the motion is not filed and served until twenty 
 days after judgment. Ellsasser v. Hunter, 26 Cal. 279. When the 
 court orders that the defendant have twenty days within which to file a 
 statement on motion for a new trial, it is too late to file such statement 
 on the twenty-first day after the order. Jenkins v. Frink, 27 Cal. 337. 
 The court has power, upon good cause shown, to extend the time for 
 serving notice of intention to move for a new trial thirty days beyond
 
 112 THE LAW OF NEW TRIALS. [CH. VI. 
 
 the time allowed by ? 195 of the practice act. If the time is extended, 
 the appellant has five days from the time when notice is served to file his 
 statement, and the court can extend the time to twenty days further. 
 Harper v. Minor, 27 Cal. 107. The objection, that it docs not appear in 
 the transcript when the statement on motion for a new trial was filed 
 below, must be made before the submission to the court above on the 
 merits. Ross v. Roadhouse, 3G Cal. 580. A motion for a new trial was 
 argued without the settlement of any statement, and an order denying 
 the motion was made August 29. 1865, more than a year after the motion 
 was submitted, accompanied by an order granting a stay of proceedings 
 for sixty days, to enable the plaintiffs to prepare papers on appeal. In 
 April, 1867, the plaintiffs moved to set aside the order of August 29, and 
 to restore the motion. This was granted in August, 1867, and a state- 
 ment on motion for a new trial was certified by the judge, and ordered 
 filed as of that day ; the motion for a new trial was then denied, and an 
 appeal taken. Held, the appeal must be dismissed. Waggenheim v. 
 Hook, 35 Cal. 216. In Missouri, a writ of error does not lie from a refusal 
 to grant a motion for a new trial, when it was not filed within the time 
 prescribed by statute. Richmonds v. Wardlaw, 36 Mis. 313. In Kan- 
 sas, where the grounds for a motion for new trial are irregularity, and 
 accident or surprise, without proof applying that the party had been 
 " unavoidably prevented" from making the motion before, it is error to 
 hear and grant the motion after three days from judgment. A motion, 
 for leave to make a motion for a new trial, is one unknown to the law, 
 and a nullity. A motion for a new trial upon the ground of newly-dis- 
 covered evidence must be made at the term in which the judgment was 
 rendered. Odell v. Sargent, 3 Kans. 80. In Nevada, when no notice of 
 intention to move for a new trial is made within two days of the rendi- 
 tion of judgment, the court by adjourning loses jurisdiction of the case, 
 and has no authority subsequently to grant leave to give the notice 
 nunc pro tunc. An informal verbal notice, given out of court in con- 
 versation with the opposing counsel, is not sufficient. Killip v. Empire, 
 2 Nev. 34. In Wisconsin, a motion upon the judge's minutes for a new 
 trial cannot be heard after the term at which the cause was tried. Pren- 
 tiss V. Danaher, 20 Wis. 311. Where a statute provided, that, when a 
 new trial is ordered by the Supreme Court, the record shall be transmitted 
 to the court below, and proceedings be had there within one year from 
 such order ; held, the issuing of a commission to take depositions, which 
 was returned with important evidence within the year, was a sufficient 
 compliance with the statute. Walsh v. Dart, 19 Wis. 433.
 
 en. VII.] NEW TKIAL IN CRIMINAL CASES. 
 
 118 
 
 CHAPTER VII. 
 
 NEW TRIAL IN CRIMINAL CASES. 
 
 1. General rule. 
 
 5. Bill of exceptions. 
 
 6. Whether there can be a new 
 
 trial after acquittal ; constitutional 
 provisions. 
 9. Or even after conviction. 
 10. Miscellaneous. 
 
 § 1. In this country, new trials may be granted in cri- 
 minal cases, after conviction, for substantially the same 
 causes as in civil actions ; in general, as is said, on the 
 ground that the verdict is contrary to law and the 
 evidence.^ The distinction between the practice in the 
 United States and that prevailing in England on this sub- 
 ject is thus stated in a leading case in Massachusetts. 
 Subsequent statutes have doubtless changed the law in 
 both countries. "In England, the utmost caution is used 
 on capital trials in favor of life ; and if an irregularity 
 materially affecting the trial occurs to the injury of the 
 accused, the court usually represents such matter to the 
 crown ; and a pardon is generally granted. But it is a 
 right of every subject of that country, and of every citi- 
 zen of this, to have a fair and legal trial before his peers, 
 the jury ; and it is hardly consistent with that right, that 
 it should be left to the will or discretion of the judge, 
 whether a representation of an actual irregularity shall 
 be made to the pardoning power; or to the discretion of 
 
 ' TheStatew.Sims, Dudley, Geo. Sneed, 64; The State v. Simons, 
 
 213; Grayson «. Com., OGratt. 712; Dudlev, Geo. 27; Dilby v. The 
 
 The State v. Prescott, 7 N. 11. 287. State, Riley, 302. 
 See Wattingham v. The State, 5 
 
 8
 
 114 THE LAW OF NEW TRIALS. [CH. VII. 
 
 tliu latter, whotluT that power sliall 1)0 exercised in favor 
 of a person unknvfully convicted. '"'((;) 
 
 § 2. Motions for new trials are said to be governed by 
 the same rules in criminal as in civil cases f and, in the 
 various chai)tcr3 of the present work, it may be seen that 
 both classes are for the most part indiscriminately cited. 
 But it is also held, that, in criminal cases, the court above 
 will award now trials, whenever, in its judg-ment,the ver- 
 dict is not warranted by proof; that the rule in civil cases 
 does not apply. ^ And that a new trial will bo awarded to 
 a defendant in a criminal case, though it may appear to 
 the court that the verdict was correct.^ Though not 
 merely because the jury may be supposed to have mis- 
 taken the laws, or may have judged mistakenly of the 
 weight of the evidence.' 
 
 § 3. A new trial may be granted in case of conviction 
 upon insufficient evidence,'^ or without any evidence." But, 
 in criminal as well as civil cases, a verdict will always 
 have great weight with the court ; and a new trial will 
 not of course be granted because the court are not satis- 
 fied beyond a reasonable doubt, from the evidence in the 
 record, of the guilt of the defendant.^ 
 
 § 4. A now^ trial may be had, in a criminal case, at the 
 same term, where the first jury, having been unable to 
 agree, were discharged by the court.^ 
 
 1 Per Parker, C. J., Com. r. « Ball's Case. 8 Leij^li, 726; Bed- 
 Green, 17 Mass. 534. ford r. The State, 5 liumiih. 502. 
 
 •<■ Grayson ■». Com., G Gratt. 712. " The State i'. Spenlove, Riley, 
 
 3 Dains v. The Stale, 2 Humph. 260. 
 439. 8 Kirby i\ The State, 3 Humph. 
 
 « Peck V. The State, 2 Humph. 289. Ace. The State «. Prescott, 7 
 
 78. N. II. 287 ; Stevens «. The State, 3 
 
 5 Wickersham v. The People, 1 Pike, 66. 
 Scam. 130. ^ The State v. Updike, 4 Harring. 
 
 581. 
 
 (a) In England a new trial cannot be granted on the ai)pliealion of 
 the prisoner, in a case of ielouy. The Queen v. Eertrand, Law Rep. 1 
 P. C. 520.
 
 CH. VII.] NEW TRIAL IN CRIMINAL CASES. 115 
 
 § 5. It is held in New York, that bills of exceptions, in 
 criminal cases, were unknown to the common law. The 
 right to a bill of exceptions in such a case is given by 
 statute. Its office is, to bring up for review questions of 
 law made and decided on the trial. But the statute, 
 which gives the right, limits it to exceptions taken on 
 the trial of the main issue.' 
 
 § 6. It is the general rule, that the right to file excep- 
 tions, in a criminal case, is confined to the defendant} 
 And that a new trial will not be granted after an acquit- 
 tal^ Thus, a defendant having been acquitted under an 
 instruction from the court, the court above will not set 
 aside the verdict because the instruction was erroneous.* 
 So, where a defendant has been regiilarl}- tried, acquitted, 
 and discharged, the Supreme Court will not adjudicate 
 points, raised by a bill of exceptions, and brought up, by 
 a writ of error, on the part of the State.* So, upon an 
 indictment for a nuisance, the prosecuting oflicer moved 
 for a new trial, after acquittal, on the ground that the 
 verdict was against law and evidence. But the court 
 held, although the case was one of mere misdemeanor, 
 " in which neither the life nor body can be called in ques- 
 tion," yet "the same rule holds good in all cases upon 
 penal statutes, and upon indictments and informations for 
 misdemeanors, as well as felonies," and a new trial was 
 refused.® 
 
 § Qa. It is said, in a late case, " We believe it is under- 
 stood, that in England, though there may have been a few 
 
 ' Wynhamer v. People, 20 Barb. 54. See Com. v. Rol)y, 12 Pick. 
 
 567. 496. 
 
 2 The Commonwealth v. Cum- * State «. Baker, 19 Mis. 683. 
 
 miugs, 3 Cush. 212. 5 gtate v. Hand, 1 Eng. 169 ; 
 
 » The State v. Taylor, 1 Hawks, State v. Denton, ib. 259. 
 
 462 ; The State v. Martin, 3 ib. « State t. Wriglit, 3 Brev. 421. 
 
 381; The State v. Hanouse, 1 Spen- Ace. Leemaun v. Day, Str. 899 ; 2 
 
 cer, 115 ; The State «. Wright, 3 ib. 1238; The King v. Bear, Salk. 
 
 Brevard, 421; The State v. Riley, 2 646 ; 1 Show. 336. 
 ib. 444 ; State v. Brown, 16 Conn.
 
 116 THE LAW OF NEAV TRIALS. [CH. VII. 
 
 doubtful cases to the contrary, a bill of exceptions cannot 
 be taken in a criminal case, even by the party accused and 
 brought to trial; but we are not aware that the right has 
 ever licen claimed by the crown, to file a bill of exceptions, 
 with a view of bringing a writ of error, in case of a judg- 
 ment of acquittal. We believe that a bill of exceptions, 
 ill favor of the accused in this commonwealth, is of com- 
 paratively recent origin, and given by statute."^ 
 
 § 7. In a recent English case the judges were much 
 divided in opinion upon the point, whether, in an indict- 
 ment involving a civil right which may be bound by the 
 verdict, a new trial may be granted after a verdict for the 
 defendant. A majority of the judges were of opinion, 
 that, where an indictment charged the defendant with 
 erecting an obstruction to the navigation of the Menai 
 Straits, and the right to an oyster fishery was in question, 
 the court ought not to grant a new trial, after verdict for 
 the defendant.^ 
 
 § 7rt. Two early English cases seem to furnish a deep 
 and strong foundation for the above stated (§ 6) and now 
 well-established rule of American law. In the ancient 
 case of The King v. Eenwick, 1 Sid. 153, the defendants 
 were indicted for perjury, and acquitted. A new trial 
 was moved for, upon the ground that their acquittal had 
 been procured by unlawful practices of Sir John Jackson, 
 in whose behalf they had committed the alleged perjury. 
 The point appears to have been much discussed, but the 
 court arrived at the conclusion, that, although it was a 
 case authorizing the imposition of a heavy fine upon Sir 
 John Jackson, yet there was no precedent for a new trial, 
 but the record of acquittal, which, contrary to the prac- 
 tice in mere civil cases, was before the court, precluded 
 such an interposition. So (in the words of the Report), 
 
 « Per Shaw. C. J., Com. v. Cum- ^ Regina v. Russell, 20 Eug. Law 
 mings, 3 Cush. 210-6. and Eq. 2:j0.
 
 CH, VII.] NEW TRIAL IN CRIMINAL CASES. 117 
 
 in case of an information for assault and riot — and a ver- 
 dict for the defendants. Tremain Sergeant moved for a 
 new trial upon affidavits of the fact, and that the judges' 
 directions were to find the assault : which I opposed be- 
 cause in a criminal proceeding, and no corruption or prac- 
 tice showed. And a new trial was denied, for that the 
 court said there could be no precedent shown for it in case 
 of acquittal,' 
 
 § 8. The result of the cases is thus stated by an ap- 
 proved writer upon criminal law. " After an acquittal of 
 the defendant, on an indictment for either felony or mis- 
 demeanor, there can in general be no new trial, though 
 the result be produced by error of law or misconception 
 of fact. But in England in cases of misdemeanor, and in 
 this country in all eases where the verdict has been ob- 
 tained by fraud of the defendant, or in consequence of 
 irregularity in his proceedings, as by keeping back wit- 
 nesses for the prosecution, or neglecting to give due notice 
 q£ trial, and in cases where the object of the proceeding 
 substantially is to try a right, and the verdict would bind 
 the right, as in cases of indictments for non-repair of a 
 highway or a bridge, a new trial may be had after verdict 
 for the defendant, if evidence have been improperly re- 
 ceived, or there have been misdirection or a verdict con- 
 trary to the evidence. — The test seems to be this: Where 
 only a fine can be imposed, there can be a new trial after 
 an acquittal. VYhere the punishment involves imprison- 
 ment or other personal discipline, the acquittal is final. "^(a) 
 
 > The King t. Davis, 1 Shower, « 2 Whart. Cr. L. 3054. 
 336. 
 
 {a) In case of The Queen v. Chorley, 12 Ad. & Ell. N. S. 513, a new 
 trial was ordered for misdirection, after verdict for the defendants on an 
 indictment. Tlie general point was not alluded to. Ace. the Queen v. 
 Leigh, 10 Ad. & Ell. 398.
 
 118 THE LAW OF NEW TRIALS. [CH. VII. 
 
 § 9. It lias been sometimes questioned, whether the de- 
 fendant in a criminal case could, even on his own motion, 
 and after conviction, be tried a second time; whether the 
 common law doctrine and the constitutional provisions 
 on this subject could be effectually waived, even by his 
 deliberate consent and formal action. In what may be 
 regarded as the leading case upon this point, a capital case 
 of robbery upon the high seas, the clause in the Constitu- 
 tion of the United States — "nor shall any person be sub- 
 ject, for the same offence, to be twice put in jeopardy of 
 life or limb," was held to preclude a new trial on motion 
 of the prisoner after conviction. In his elaborate opinion, 
 Judge Story says: "It is nowhere laid down as a part of 
 the maxim, that if he is acquitted he shall not be tried 
 again; but if he is convicted he may be allowed a new 
 trial. And if the court are to assume the power in favor 
 of the prisoner, why may it not equally assume it when it 
 will prevent (effect) a manifest fraud, to suffer his acquittal 
 to remain. Cases may easily be put where an acquittal 
 may have been produced by gross bribery of the witnesses, 
 by false testimony fraudulently procured by the prisoner, 
 by spiriting witnesses away, and even by means still more 
 offensive and revolting to public justice. — Cases of con- 
 viction may readily be conceived, in which a new trial 
 may be injurious to the prisoner. Suppose a man indicted 
 for murder and convicted of manslaughter; can a new 
 trial be granted at all, unless by putting him twice in 
 jeopardy of his life. Many other cases of a like nature 
 may be easily put where the offence in an aggravated form 
 is a capital felony, and without such aggravations not. I 
 am, upon the most mature deliberation, of opinion that 
 this court does not possess the power to grant a new trial 
 in case of a good indictment, after a trial by a regular 
 and competent jury, whether there be a verdict of acquittal 
 or conviction. My judgment is that the words in the Con- 
 stitution 'nor shall any person for the same offence be 
 twice put in jeopardy of life or limb,' mean that no person
 
 en. VII.] NEW TRIAL IN CRIMINAL CASES. 119 
 
 shall be tried a second time for the same oifence where a 
 verdict has already been given. The party tried is, in a 
 legal as well as common sense, in jeopardy of his life when 
 a lawful jury have once had charge of his ofience as a 
 capital offence upon a good indictment, and have delivered 
 themselves of the charge by a verdict. This, too, is the 
 clear, determined, and well-settled doctrine of the common 
 law, acting upon the same principle as a fundamental rule 
 of criminal jurisprudence. I deem it a privilege of inesti- 
 mable value to the citizen, and that it was introduced into 
 the Constitution upon the soundest principles of prudence 
 and justice. But if it were otherwise, it is my duty to 
 administer the Constitution as it stands, and not to incor- 
 porate new provisions into it. If this clause does not pro- 
 hibit a new trial when there has already been a regular 
 trial and verdict, then it is wholly immaterial whether the 
 verdict is of acquittal or of conviction ; and the same party 
 may, in the discretion of the court, be put upon his trial 
 ten, nay twenty, times if the court should think fit. "'(a) 
 
 § 10. A. was indicted for murder, and was arraigned 
 on Thursday. Friday was assigned for his trial. He in- 
 sisted on a continuance, as he had a right to a copy of 
 the indictment three days before trial. He was tried on 
 Friday and convicted. Held, that what A. said amounted 
 to a demand for a copy of the indictment, and a new trial 
 was granted.^ 
 
 ' Per Story, J., U. S. v. Gilbert, 2 State v. Winningliam, 10 Rich. 
 2 Sumn. 19. Law (S. C.) 257. 
 
 (a.) This is termed by Mr. Wharton (2 Crim. L. § 3075), "an argument 
 of singular learning, ability, and boldness ;" but, says the same author 
 (ib. § 3078), " it cannot be held to have shaken the practice of the 
 country." 
 
 After a verdict of guilty of manslaughter, and a reversal of the judg. 
 ment, the prisoner is not protected from a second trial by the provision 
 in the bill of rights, that "the accused shall not be twice put in jeopardy 
 for the same offence." SutclifTe v. The State, 18 Ohio, 469.
 
 120 THE LAW OF NEW TRIALS. [CH. VII. 
 
 § 11. B. was indicted jointly with A. for murder. He 
 was arraigned on Thursday, and his trial assigned for 
 Friday. Without asking for a continuance, he moved 
 for a bench warrant for witnesses. On Friday, he insisted 
 on a continuance, for the reason that he was entitled to a 
 copy of the indictment. A continuance was refused, and 
 he was tried and convicted. On appeal, the court ordered 
 ex gratia^ that he should have a new trial. ^ 
 
 § 12. "Where a female is convicted of a penitentiary 
 otfence, her pregnancy is no cause for a new trial.^ 
 
 § 12a. In England, where a defendant has been found 
 guilty of an oflence which does not subject him to corporal 
 punishment, it is not necessary that he should be present 
 in court in order to move for a new trial.^ Otherwise, 
 where a defendant has been found guilty of perjury and 
 sentenced to transportation, but is not in custody under 
 the sentence.^ But, it seems, where several defendants 
 have been convicted, it is not necessary that all should be 
 in court in order to move for a new trial in behalf of one 
 or more of them.^ In Arkansas and Tennessee, in all cases 
 of treason and felony, unless the defendant be present 
 when the verdict is rendered, the verdict cannot stand.^ 
 
 ' State V. Winningliam, 10 Ilich. ■» Ilrsina v. CaudwcU, 6 Eng. 
 Law (S. C.) 257. Law A:' Eq. 353. 
 
 2 Holeman v. The State, 8 Eng. ^ lb. 
 
 105. 6 Clark i\ The State, 4 Humph. 
 
 3 Regina v. Parkinson, G Eng. 254; Cole v. The State, 5 Eng. 318. 
 Law and Eq. 352.
 
 en. VIII.] JURY. VERDICT AGAINST LAW, ETC. 
 
 121 
 
 CHAPTER VIII. 
 
 GROUNDS OF NEW TRIAL— GROUNDS RELATING TO THE 
 JURY; VERDICT. 
 
 1. General gronnds — irregu- 
 larity and injustice. 
 
 10. General and special verdicts. 
 
 19. Form of verdict — uncertain- 
 ty, generality, inconsistency, &c. 
 
 30. Amendment of verdict; send- 
 ing back of jury, remittitur. 
 
 § 1. Before proceeding to consider in detail the grounds 
 upon which a new trial may be granted, it may be stated 
 as a general proposition, that a motion for a new trial, 
 based upon facts, is addressed to the sound discretion of 
 the court, but should always be allowed, if the verdict is 
 contrary to law, or works manifest injustice to the party 
 applying.^ Wlien the jury have misunderstood or disre- 
 garded the evidence or instructions, or neglected properly 
 to consider the facts, or overlooked prominent and essen- 
 tial points in them, and have failed to do substantial 
 justice, the verdict must be set aside, and a new trial 
 granted.^(a) 
 
 1 Cook V. U. S., 1 Iowa, 56. 
 
 2 Higgins V. Lee, 16 111. 495. 
 
 (a) See chapters 1, 3. In Connecticut, a motion in arrest of judg- 
 ment was sustained, for improper conduct of a juror. 29 Conn. 100. The 
 rule stated in the text is not inconsistent with the other proposition, 
 equally well established, that all questions of fact are for the jury. 
 Schilling v. Durst, 42 Penn. 126 ; Garrett v. Gonter, 42 Penn. 143. As 
 to finding the facts, yvhen the trial is by the court, see Kurlbaum v. 
 Roepke, 27 Mis. 161; Brosius v. McGaugh, ib. 230; Chick v. Parker, 
 ib. 418. In California, a jury trial is waived by a party, if he fails to 
 file a notice six days before the commencement of the term that a jury 
 will be required ; but the court still has a right to direct an issue of fact 
 to be tried by a jury. Doll v. Anderson, 27 Cal. 248. Upoa the trial
 
 122 THE LAW OF NEW TRIALS. [CH. VIII. 
 
 § 2. On the other hand, the general proposition is laid 
 down, that a verdict (as in case of a verdict impeaching 
 
 of an issue of fact by the court, its decision is required to be in writing, 
 and the court may re-open and continue the case though it has announced 
 orally a decision. Hastings v. Hastings, 31 Cal. 95. The rule, that the 
 judge may draw up, sign, and file his findings, without notice to the attor- 
 neys, prevails, whether they are drafted by him or by another. Hatha- 
 way V. Ryan, 35 Cal. 188. If there is a material fact in respect to which 
 the findings are silent, the aggrieved party may except, and, if the court 
 still refuses to find as to that fact, it will be error, on appeal. If the 
 court finds contrary to the evidence, or without sufficient evidence, this 
 is ground for a new trial, and not for exception. lb. Ex parte affidavits 
 cannot supply the want of findings. If upon request the court refuses 
 or fails to put its findings in writing, &c., the remedy is by exception and 
 appeal. Sanchez v. McMahon, 35 Cal. 218. If on appeal from an order 
 denying a new trial the court finds, on review of the evidence, that it was 
 against such of the implied findings of the court as were essential to sus- 
 tain the judgment, and was not substantially conflicting; it will reverse 
 the judgment and grant a new trial. Steinback v. Krone, 36 Cal. 303. 
 The finding of a fact on a material point, contrary to a stipulation made 
 as a substitute for evidence, is ground for a new trial. Carpcntier v. 
 Small, 35 Cal. 346. In North Carolina, the fact that a county court, by 
 a special statute, cannot hold jury trials, does not deprive a party of his 
 common law right, to have issues of fact tried by a jury; and in such 
 case the cause should be transferred to the superior court. Buchanan v. 
 McKenzie, 8 Jones, L. 91. In Mississippi, if an issue of fact by agree- 
 ment is submitted to a probate judge " in lieu of a jury," his decision 
 will have the force and eff'ect of a verdict. Kelly v. Miller, 39 Miss. 17. 
 In New York, where, in case of a breach of trust, the fund remains land, 
 and the plaintiff" seeks specific, equitable relief, joining, as defendants 
 with the trustees, third persons who claim an interest in the land, and 
 pending the action files a supplemental complaint, in which he alleges 
 that the land has meanwhile been converted into money, and claims 
 damages, as well as all the relief originally asked, not inconsistent there- 
 with ; the action is still triable by the court without a jury. Currie v. 
 Cowles, 9 Bosw. 642. The findings of a judge in a case of conflicting evi- 
 dence are conclusive as to questions of fact. Ritter v. Cushman, 7 Rob. 
 294. In Wisconsin, where a court finds that A. was a grantee of land 
 from B., and not that such conveyance was voluntary or fraudulent; this 
 is equivalent to finding that A. was a purchaser in good faith and for a 
 valuable consideration. Coyle v. Davis, 20 Wis. 564. The court above 
 will order a new trial, where it is probable that the ends of justice will 
 be thereby subserved better than by sending the judgment down to be
 
 CH. VIII.] JURY. VERDICT AGAINST LAW, ETC. 123 
 
 the report of Commissioners in a case of flowage) will not 
 be set aside, unless it appears that the jury were under 
 improper influence, guided by prejudice, or aftected by 
 some bias unwarranted by the evidence, or that they, in 
 some important particular, misconceived the facts.^ 
 
 § 3. More especially, if the jury, in a civil case^ disre- 
 gard the instructions, a new trial should be granted by 
 the court below, or, on refusal, by the court above.-(a) 
 
 § 4. The cases illustrative of the general proposition 
 above stated (§ 1) are numerous, and of course of a miscel- 
 
 i Bryant v. Glidden, 39 Maine, ^ Hayward v. Ormsbee, 7 Wis. 
 458. Ill- 
 
 amended. Curtis V. Brown County Supervisors, 22 Wis. 161. In Ne- 
 vada, when one of the facts found by the judge, and the one on which, 
 in his opinion, the case turns, is unsupported by evidence; the court 
 above will not treat that finding as surplusage, and afBrm the judgment 
 on other findings, particularly if the weight of testimony is against the 
 others. Lockhart v. Mackie, 2 Nev. 294. In Michigan, when a judg- 
 ment is entered in term, and signed by the judge (except where a special 
 finding is needed), the signing is equivalent to a written finding. Cleve- 
 land V. Stein, 14 Mich. 338. 
 
 In New Hampshire, under Rev. Stats, c. 192, § 2, the Supreme Court 
 is authorized to grant a new trial or review in any case where the party 
 has not enjoyed that right, when it shall appear that justice has not 
 been done, through any accident, mistake, or misfortune, and that a fur- 
 ther hearing would be just and equitable. It is clearly the misfortune 
 of the defendant to have a judgment rendered against him in his absence, 
 and without actual notice, for a larger sum than appears to have been 
 justly due, and in such case a new trial will be granted. Chase v. 
 Brown, 32 N. H. 130. See Farley v. Budd, 14 Iowa, 289 ; Taylor v. 
 Cook, ib. 501 ; Turson v. W^elch, 7 Rob. (N. Y.) 392. 
 
 (a) A new trial will be ordered, if a verdict is found on a misapplica- 
 tion of facts in the charge, although two juries may have rendered the 
 same verdict upon the same state of facts. Pensacola v. Nash, 12 Fla. 
 497. A petition for a new trial will not be granted, because the jury 
 misunderstood the instructions and mistook the rule of damages, unless 
 due diligence has been used to correct the mistake. Thayer v. Stevens, 
 44 N. H. 484.
 
 124 THE LAW OF NEW TRIALS. [CII. VIII. 
 
 lancoiis character. Thus a new trial was granted, where, 
 in an action for lil)el u}ion an officer, the judge instructed 
 tlie jury that the publication was libellous ; and being 
 told, upon inquiry, that a verdict for a shilling wpuld 
 carry costs, they found for the defendant.* So where the 
 judge, in summing up in favor of one party, was stopped 
 by the jury, who declared themselves satisfied, but found 
 immediately for the other.^ So where, in an action for 
 libel, the justification was fully proved, but the jury, 
 contrary to the judge's direction, found for the plaintiif, 
 though for small damages.^ So it is regarded as special 
 ground for setting aside a verdict against evidence, if the 
 judge reports that the verdict was rendered through pre- 
 judice, and against his direction.^ 
 
 § 5. Other examples are the following: A witness for 
 the defendant denied having conversed with the plain- 
 tift"'s attorney ; who, however, testified to such conversa- 
 tion, and the former witness was committed for perjury. 
 The next day, the attorney informed the judge that he 
 had mistaken the person of the witness; who was accord- 
 ingly discharged, and a new trial granted, and the attor- 
 ney ordered to pay the costs.-\«) Where the evidence has 
 failed to support several material allegations of the decla- 
 ration.^ Where the state of the pleadings was calculated 
 to confuse the minds of the jury, and to make it impossi- 
 ble for them to render an intelligent verdict.^ AVhere a 
 
 ' Levi V. Milne, 2 Bing. 195 ; 13 < State v. Caleb Jones, 2 Bay, 
 
 Moore, 418. 520. 
 
 2 Gainsford v. BlatcUford, 6 ^ Trubodj' v. Brain, 9 Price. 76. 
 Price, 36. ^ Watidns v. K().-;ers. 21 Ark. 298. 
 
 3 Freeman v. Price, 1 Y. and J. ^ Pearce v. Jordan, 9 Flor. 526. 
 402. 
 
 (a) The court has power to grant a new trial where it is satisfied that 
 perjury has been committed, and that an improper verdict was occa- 
 sioned thereby; but the matter rests in the sound discretion of the court, 
 and it would require a case of the grossest character to authorize the 
 appellate court to interfere. Jaccard v. Davis, 43 Mis. 535.
 
 CH. VIII.] JURY. VERDICT AGAINST LAW, ETC. 125 
 
 declaration contains two counts, one of them defective, or 
 an error being committed as to one of them, and testimony 
 is given, and the judge charges as to both, and a general 
 verdict is given for the j)laintifF.^ Where a verdict is 
 taken by agreement, but the parties mistook the effect of 
 the agreement.^ So it is ground for new trial, that the 
 plaintiff's attorney failed to produce a paper, which after 
 suit commenced he had admitted to the defendant Avas in 
 his hands, but which he had since parted with.^ Or that 
 a party produced an interested witness, the interest being 
 known to him, but not to the other party, and the case 
 being nicely balanced.^ In a penal action, upon the statute 
 to prevent the slave-trade, a verdict for the defendant was 
 set aside, on the ground that he had offered in evidence 
 false depositions and documents; the court remarking, 
 that even in a criminal prosecution a verdict obtained by 
 forgery and perjury would be set aside.* (See p. 2 and 
 chap. 7.) The plaintiff" had sold goods to the defendant, 
 and taken in payment the note of a third person, indorsed 
 by the defendant, but gave time to the maker of the note, 
 and the latter failed. The plaintiff then brings an action, 
 declaring upon the note and for goods sold. The defend- 
 ant of course could not produce the note, and, it being un- 
 derstood that the real claim was against him as indorser, 
 gave the plaintiff no notice to produce it ; but the plain- 
 tiff* at the trial relied upon the other count and recovered. 
 Held, the verdict was founded upon an unfair advantage, 
 contrary to justice and good conscience, and should be set 
 aside without costs; the court declaring, at the same time, 
 that in another similar case they would require the plain- 
 tiff to pay costs.^ (The case is somewhat peculiar, in that 
 Lord Mansfield, before whom it was tried, warned the 
 plaintiff' that the verdict would not stand, but he still 
 
 ' Wilson V. Tatum, 8 Jones, 300. * Niles v. Brackett, If) Mass. 378. 
 
 2 Lucas V. Lucas, 30 Ga. 191. ^ Hylliard v. Nickols, 2 Root, 170. 
 
 =* Jackson v. Warford, 7 Wend. ^ Anderson v. George, 1 Burr. 
 
 63. 353.
 
 126 " THE LAW OF NEW TIUALS. [CII. VIII. 
 
 refused to produce tlie note, and tlie verdict was in his 
 favor.) Other examples are the following: In an action 
 for freight and demurrage, the verdict was, "We find for 
 the plaintitf, and are of opinion that the plaintiff has 
 ah-eady received out of property of the defendant payment 
 in full," &c.^ Verdict in debt, specifying no sum. The 
 defect cannot be supplied by a writ of inquiry.^ In debt 
 on bond with penalty and damages assessed, if the verdict 
 finds that the defendant owes the debt and one shilling 
 damages ; the real damages should be assessed.^ "Where, 
 in an action for loss of service of an apprentice during 
 the whole residue of his term, the jury found a verdict 
 for the plaintiff, not specifying for what time.^ So it is 
 ground for new trial, where the jury, in a special verdict, 
 find the evidence and not fasts. ^(a) 
 
 § 6. So a new trial was granted in the following case. 
 While the plaintiff's counsel was drawing a special ver- 
 dict, the defendant's witness came in, and his counsel 
 moved to appear and try the case; ])ut the motion Avas 
 overruled. A special verdict was then drawn and found, 
 that the defendant " does not appear, nor offer any evi- 
 dence," &c.^ 
 
 § 7. In an action for false imprisonment for two or 
 three hours, the jury gave a verdict for £2000 damages. 
 In ordering a new trial for excessive damages. Holt, C. J., 
 
 1 1 S. & R. 3G7. rested. Sec Morice v. Prince, Cro. 
 
 * jNIiller «. Ilowcr, 2 Rawle, oS. Car. 520. A case of tcrtt of error, 
 
 3 Drodge v. Brand, 2 Wil. 377. for uncertainty of verdict. 
 
 •• Hambledon v. Veere, 2 Saun. '^ Cherry v. Slade, 3 Murph. 82. 
 
 171. In this case judgment was ar- ^ Mirwan v. Ingersol, 3 Cow. 367. 
 
 (a) A verdict subject to the opinion of the court must present only 
 questions of law. Whitaker v. Merrill, 28 Barb. 526. In case of a spe- 
 cial verdict, it is held error to re-submit the case, with instructions for a 
 general verdict. Spalding v. Mayhall, 27 Mis. 397. See Cleveland v. 
 Terry, 8 Ohio N. S. 570.
 
 CH. VIII.] JURY. VERDICT AGAINST LAW, ETC. 127 
 
 remarked : "The jury were very shy of giving a reason — 
 but I did rectify that mistake, for the jury are to try 
 causes with the assistance of the judge, and ought to give 
 reasons when required, that, if they go upon any mistake, 
 they may be set right."^ 
 
 § 8. So a new trial w^ill be granted, wdiere the jury find 
 a verdict. for the plaintift', subject to the opinion of the 
 court as to the operation of the law upon certain wu'itten 
 and oral evidence, without finding what facts were proved 
 by such evidence.2 So where, in an action depending 
 upon a will, the jury were instructed to find whether the 
 will had been altered, and by whom; and they found 
 that, "the will had been altered by some interested 
 person."^ 
 
 § 9. But it seems a new trial will not be granted, where 
 in ejectment the jury find for the plaintiff, and also that 
 he pay the defendant a just compensation for improve- 
 ments; although the latter finding is void for uncertainty.^ 
 So a verdict in detinue in these words : " We find all the 
 issues for the plaintifif, and that the slaves named in the 
 proceedings" (specifying them by name) " are the property 
 of the plaintiff, and that the said slaves are in value worth 
 as follows," &c. ; " and as the plaintifi' releases all damages 
 for hire, we assess the value of said slaves, to wit, $3450, as 
 damages for the plaintifi', to be discharged upon delivery 
 of said slaves by the defendant to him ;" was held sub- 
 stantially corrrect and proper in form. And a judgment, 
 that the plaintiff recover the slaves, and, on failure to 
 deliver on demand, the said sum of $3450, his damages 
 so assessed, though not in the proper form, will be cor- 
 rected on error and affirmed.^ So the disclosure of the 
 verdict in a criminal case, by the jury, by direction of 
 
 • Ash V. Ash, Comh. 357. ^ Allen v. Flock, 2 Penn. (P. & 
 
 2 Blanks v. Foushee, 4 Munf. 61. W.) 159. 
 
 3 Maliu V. Malin, 15 John. 293. ^ Rambo v. Wyatt, 32 Ala. 363.
 
 128 THE LAW OF NEAV TRIALS. [CII. VIII. 
 
 tlie court, before the verdict is actually taken iu court, 
 is no ground for a new trial.' 
 
 § 10. Unless otherwise directed by the court, the jury 
 may render either a general or special verdict ; but, upon 
 the request of either party, it is held that the court must 
 direct a special verdict upon all or any of the issues ; and, 
 if requested by either party, the court must direct the 
 jury, if they render a general verdict, to find specially 
 upon particular questions of fact.^ So the court may order 
 the jury to return with a general verdict answers to spe- 
 cific questions, though one or both of the parties object.^ 
 And where a case turned upon the legality of an election, 
 which the judge considered to be valid, and so instructed 
 the jury, ordering them to find a special verdict; but 
 they returned a general verdict, annulling the election : a 
 new trial was ordered.^(«) 
 
 ' The State v. Bryant, 21 Vt. 479. 93 ; Com. v. Fischblatt, 4 Met. 
 
 ■* Michigan, &c. v. Bivens, 13 354. 
 Ind. 2(i:i ;"Ruffing v. Tilton, 12 ib. ^ Barstow v. Spraguo, 40 N. H. 
 2.')9. See Sharp v. Baker, 22 Tex. 27. - i' 
 
 300 ; Thoniijson v. Farr, 1 Speers, « King v. Poole, Rep. temp. 
 
 Hardw. 23. 
 
 (a) After a finding on the special issues, and a general verdict for one 
 party, it is too late for the other to submit other special issues. Bur- 
 leson V. Burleson, 28 Tex. 383. The defendant cannot require the jury 
 to respond to certain interrogatories in case they should find for the 
 plaintiff. The interrogatories, if put, must be answered, for whichever 
 party a general verdict is found. AVood v. Ostram, 29 Ind. 177. Each 
 question submitted to a jury as a basis of a special verdict should relate 
 only to one fact. Phccnix v. Fletcher, 23 Cal. 481. Whore the parties 
 agree in writing that the court shall propound special interrogatories to 
 the jury, touching certain facts, which is done, and the jury retire, and 
 the parties then further agree that the jury may return their verdict to 
 the clerk, in the ab.scnce of the court and counsel, and, if their verdict 
 should be defective tliey may " be recalled, and required to make a com- 
 plete finding to said interrogatories ;" it is too late to object to the in- 
 terrogatories. Aiken v. Bruen, 21 Ind. 137. The plaintiff's declaration 
 contained three counts, showing three different versions of the contract 
 out of which the action arose, and at the trial evidence was given capable
 
 CH. VIII.] JURY. VERDICT AGAINST LA\y, ETC. 129 
 
 § 11. It is sometiiiies licld, however, that a jury may 
 refuse to find any other than a general verdict.' 
 
 § 12. What is not found by a special verdict will be 
 taken not to exist.^ It should find every fact essential to 
 the plaintiiF's right of recovery, and cannot bo aided by 
 intendment or a reference to extrinsic facts. If the facts 
 found show that there were others, touching which there 
 was evidence, the truth of which is not negatived by the 
 finding, the court, without rendering a verdict, should 
 award a venire de novo.^ The distinction, however, is made, 
 that, if a special verdict is uncertain, so that the court 
 cannot say for which party judgment ought to be given, 
 there ought to be a venire de novo ; but if the verdict is 
 not uncertain, but the plaintiff's case, as thereby shown, 
 is a defective case or a defective title, judgment should be 
 given for the defendant.* And where a jury, in a crimi- 
 nal case, find and tender a special verdict, which is re- 
 ceived by the court, and the jury are discharged, the court 
 must proceed upon the verdict.' So it is no objection to 
 a special verdict, that it was drawn up by counsel, in order 
 to show what facts must be inserted, if true and in proper 
 form, and if the rights and duties ot the jury, the effect 
 of their verdict, &c., were fully explained to them by the 
 court.^(a) 
 
 ' Fuller v. The Kennebec, &c., * Brown v. Ferguson, 4 Leigh, 
 31 Maine, 325. 37. See Dyer v. Greene, 10 Sliep. 
 
 2 Thayer v. United, &c. , 20 Pcnn. 464 
 
 60. See Com. v. Call, 21 Pick. ^ gi^ort v. The State, 7 Yerg. 
 
 509 ; Whitcsides v. Russell, 8 W. 510. 
 
 & S. 44 ; State v. Wallace, 3 Ired. ^ Miller v. Shackleford, 4 Dana, 
 
 195. 264. 
 
 3 Sewall V. Glidden, 1 Ala. 52. 
 
 of supporting any one, but one only, of these counts. The jury found a 
 general verdict for the pUiintiff, and the judge was desired, on behalf of 
 the defendants, to ask on which count they found, but refused to do so. 
 Held, he was entitled to refuse. Brown v. Bristol, Hurl, k Nor. lOOG. 
 (a) A special finding cannot control a general verdict, unless it is 
 sufficiently definite to authorize a judgment. Delawter v. Sand, 26 lud- 
 9
 
 130 THE LAW OF NEW TllIALS. [CII. VIII. 
 
 § 13. As a matter of practice, juries should either not 
 state the evidence upon which the conclusions of fact are 
 
 407. By § 261 of the (N. Y.) Code, the court may in all cases instruct 
 the jury, if they render a general verdict, to find upon particular ques- 
 tions of fact, to be stated in writing, and may direct a written finding 
 thereon, which shall be filed with the clerk, and entered on the minutes. 
 In a case where the jury were so directed, and questions duly stated, a 
 general verdict was rendered, and the foreman stated orally, in answer to 
 11 question by the clerk, the special findings, but no entry was made 
 thereof at the time on the minutes. Held, upon a subsequent motion by 
 the losing party to enter such answers upon the minutes, the adverse 
 party might show that such answers were given under misapprehension 
 of the clerk's question, and did not conform to the opinion of the jurors, 
 and that the entry must be of tlie answers as intended to be given. Moss 
 V. Priest, 1 Eob. 032. The defendants having generally denied the 
 allegations of a petition brought to subject the unexempted part of their 
 homestead to the payment of a judgment, a special verdict, which fails 
 to find that the judgment was rendered as alleged in the petition, is not 
 sufficient to sustain a decree of condemnation. Paschal v. Cushman, 26 
 Tex. 74. When a special verdict allows certain items of account, and 
 yet declares that such allowance dei)ciids on questions of law to be con- 
 sidered by the court; the whole matter may properly be passed upon by 
 the court. United States v. Collier, 3 Blatchf 0. C. .325. A judgment 
 will not be reversed for a defective finding of facts, when no exception is 
 taken on that account. McClusky v. Gerhauser, 2 Nev. 47. "Where the 
 jury make an act of Congress a part of their verdict, they will be held 
 to have found all the facts set forth in the act, whether by way of in- 
 ducement or otherwise. MaGee v. Doe, 9 Flori. 382. It is in the dis- 
 cretion of the court, what facts the jury shall find specially; and it is 
 not bound to submit questions to them which are asked by either party- 
 American V. Bradford, 27 Cal. 360. In an election case contested by in. 
 formation, in which the sole issue was, whether the relator or defendant 
 was entitled to an office, the judge charged the jury that, if they found 
 that a majority of the legal votes were cast for the relator, the form of 
 their verdict should be, " we, the jury, find the defendant guilty of un- 
 lawfully holding and cxcrci.sing the ofiicc of," ifec. Held, a verdict in the 
 above words warranted a judgment, that the defendant should be ousted 
 and excluded from liis office, and that the relator should be placed in 
 possession of the same, and empowered to perform all the duties thereof. 
 State V. Funck, 17 Iowa, 365. If the jury are unable to agree upon the 
 special issues that have alone been submitted to them, they may bring in 
 a general verdict with the consent of counsel. Mitchell v. Hockett, 25 
 Cal. 538.
 
 CH. VIII.] JURY. VERDICT AGAINST LAW, ETC. 131 
 
 founded, or, should they do so, the highest evidence es- 
 tablishing the fact should be referred to.^ And if a spe- 
 cial verdict find not facts, but the evidence from which 
 facts may be inferred; a venire facias de novo will be 
 awarded.^ 
 
 § 14. And to authorize a judgment upon a special ver- 
 dict, all the facts essential to the right of the prevailing 
 party must be found, not merely prima facie evidence of 
 such facts.^ Even though the circumstances stated may 
 be sufficient to warrant an inference or presumption of 
 the existence of the matter omitted.^ Thus a verdict was 
 as follows: "We, the jury, find that in case court, upon 
 the foregoing statement of facts, should be of opinion, 
 that the law of the case is with the plaintiffs, that then, 
 we find for the plaintiff, &c. But in case that the court, 
 upon the foregoing statement of facts, should be of opinion 
 that the law of the case is with the defendant, then we, 
 the jury, find for the defendant, &c." The foregoing 
 statement of facts, referred to by the jury, seemed to have 
 been the written and oral testimony, and was not em- 
 bodied in the verdict; and the court below rendered judg- 
 ment in favor of the plaintiffs. The judgment was re- 
 versed.* But on the other hand, in some cases, it may be 
 insufficient to find merely the facts. Thus, upon a question 
 of fraud tried by the court sitting as a jury, the finding 
 or verdict must be express, and the finding of special facts 
 is not sufficient to warrant a judgment, since fraud can- 
 not, as a matter of law, be inferred.^(a) 
 
 ' Houston V. Perry, 3 Tex. 390. N. H. 347 ; Marmaduke v. McMas- 
 2 Kinsley v. Coyle, 58 Penn. 401. ters, 24 Mis. 51. 
 » Blalic k Davis, 20 Ohio, 331. s Hambleton v. Dempsey, 20 
 
 » Jones V. State. 2 Swan, 309. Ohio. 108. 
 See Litchfield v. Londonderry, 39 ^ Poarce r. Burns, 33 Mis. 577 ; 
 
 Pearce v. Roberts, ib. 583. 
 
 (a) In a special verdict where usury is pleaded, the jury need not find 
 the usury, if any: they find the facts, and the law infers the usury. 
 Brummel v. Enders, 18 Gratt. 873. A special verdict, that the assignee
 
 132 THE LAW OF NEW TRIALS. [CH. VIII. 
 
 § 14rt. "Where a verdict entered subject to tlie opiuiou 
 of the court is set aside, the court cannot, at a subsequent 
 term, make a new judgment in bar of the defendant, but 
 must proceed to try the causc.^ 
 
 § 15. Where a verdict for the plaintiff was taken, 
 "subject to the opinion of the court, to be heard at the 
 first general term, with liberty to either party to turn the 
 case into a bill of excej^tions or general verdict," and 
 the exceptions were heard and overruled, and judgment 
 rendered for the plaintiff on the verdict; held, not a 
 mistrial.^ 
 
 § 16. When a verdict is taken, subject to the opinion of 
 the court, every inference, which a jury would be justified 
 in drawing from the evidence, the court will draw, in 
 support of the verdict.^ 
 
 § 17. Where the parties agreed upon the form of a ver- 
 dict and consented thereto, and in addition to a general 
 verdict for the plaintiff' they agreed to a special finding 
 of certain facts, upon which questions of law arose ; such 
 general verdict must stand, unless the finding is incon- 
 Bistent therewith; and, though the whole verdict is taken 
 " subject to the opinion of the court," the defendant cau- 
 
 1 Robinson ?). Scott, 5 Monr. 278. ^ Williams v. Ins. Co., &c., 1 
 
 2 City Bunk v. McChesuey, 20 Hilt. 345. 
 N. Y. (6 Smith) 240. 
 
 of a life interest held iininterruptcd possession for a period sufTicicnt to 
 create a bar against the remainder-man, with nothing to show that it was 
 by the authority and permission of the remainder-man or his representa- 
 tive, finds, in effect, adverse possession. Laync v. Norris, 16 Gratt. 23G. 
 From a special verdict, that there was an entry upon land by a grantee 
 of a rent-charge upon it, and a holding by him and those claiming under 
 him for forty-three years, the court cannot infer that the original entry 
 was under the right of entry given by the deed, for non-payment of rent, 
 or that the parties held adversely. Turner v. Smith, 18 Gratt. 831.
 
 en. VIII.] JURY. VERDICT AGAINST LAW, ETC. 133 
 
 not claim tliat the issues of fact were not established by 
 the evidence in favor of the plaintiff, except so far as 
 such finding may control them. The finding agreed upon 
 establishes the facts therein stated, and the general ver- 
 dict all other facts in issue, in the plaintifi:''s favor.^ 
 
 § 17a. In debt upon a bond for the purchase-money 
 of land, it is held that the jury may give a verdict for 
 the plaintiff, with the condition, that no execution shall 
 issue until the plaintiff shall have removed an incum- 
 brance from the land.^ 
 
 § 17/;. The question being, whether a woman had, after 
 the death of her husband, re-delivered a deed, which she 
 had signed and sealed with him in his lifetime, but which 
 was invalid as to her, for want of a sufficient certificate 
 of acknowledgment; the jury made the deed part of a 
 special verdict, and found specifically all that she did and 
 said about it after her husband's death, and, among other 
 things, that she, together with her husband, did " convey" 
 the land by that deed. Held, not a finding that she had 
 parted with her title, but only that the deed, as it is, was 
 executed by her when it was made.^ 
 
 § 18. Interrogatories put by the court to the jury, for a 
 special verdict, may be leading." Where the language is 
 ambiguous, it is the duty of the court to give it such con- 
 struction as will make it effective.'' Equivocal terms will 
 be understood in the sense most favorable to sustaining a 
 verdict, if equally consistent with the contract and the 
 circumstances of the case.^ 
 
 § 19. With regard to verdicts in general, it is held that 
 a verdict, however informal, is good, if the court can un- 
 
 > Sharp V. Whipple, 3 Bosw. 474. * Rice v. Rice, 6 Ind. 100. 
 
 2 Roland v. ^liller. 3 W. & S. 390. ^ Carr v. Stevenson, 5 Humph. 
 
 ' Miller v. Shackleford, 4 Dana, 559. 
 
 264. ^ Nye v. Maxwell, 14 Verm. 14.
 
 134 THE LAW OF NEW TRIALS. [CU. VIII. 
 
 derstand it.' Verdicts arc to have a reasonable intend- 
 ment, and to receive a reasonable construction, and are 
 not to be avoided, unless from necessity.^ If rendered 
 upon substantial issues of fact, fairly presented by the 
 pleadings, they should not be disturbed on account of mere 
 technical defects.^ So, where the record is irregular and 
 confused, but shows a verdict to have been rendered, the 
 presumption will be in favor of the validity.'* And 
 superfluous matter in a verdict may be disregarded as 
 surplusage.' 
 
 § 20. The distinction is made, that a verdict which is 
 so uncertain, that it cannot be clearly ascertained whether 
 the jury intended to find the issue or not, is bad. But a 
 verdict is not bad for informality, if the finding of the 
 matter in issue may be concluded from it.^ It is sufficient 
 if the verdict respond to the issue, though it do not pursue 
 the very words.^ Thus a verdict which finds the issue for 
 the plaintiff', and assesses his damages, is sufficient.^ So a 
 verdict of guilty in an action of assumpsit, although not 
 strictly technical, may be put in form by the court, or if 
 not objected to will be held sufficient.''(«) 
 
 ' Jones V. Julian, 12 Ind. 274; » Kiggs «. Maltby, 2 Mot. (Kv.) 
 
 McRae v. Colclmigh, 2 Ala. 74; 88. 
 
 Longacre v. The State, 2 IIow. ^ Dixon ». State, 3 Clarke (Iowa), 
 
 Miss. fi;]7; State v. Goodwin, 5 41G. 
 
 Ired. 401 ; Buttles v. Braintree, 14 ^ "Windham ®. Williams, 27 3Iiss. 
 
 Verm. 348; Meade v. Smith, IG 313. 
 
 Conn. 340 ; Ciiambcrs v. The Peo- « Allen v. Aldrich, 9 Fost. 63 ; 
 
 ])le, 4 Scam. 3.-)l; Campbell v. The Pettes v. Bingham, 10 N. H. 514. 
 Queen, 11 Ad. .t Ell. N. S. 791); ^ Patterson «. Cook, 8 Port. G6. 
 Vaden v. Ellis, 18 Ark. 3r)5. » Atlantic lus. Co. v. Wright, 33 
 
 2 Simmons v. Harden, 9 Geo. 543. 111. 4G3. 
 
 9 Parmelec v. Smith, 21 111. G30. 
 
 (a) In an action for deceit in the sale of a chattel, the jury returned 
 a verdict for a certain sum, adding : " believing the i)laintifr to have been 
 misled by the catalogue." Hold, the verdict was general, and the court 
 miglit direct the words to be disregarded in recording the verdict. Gover 
 V. Turner, 28 ]Md. 000. In an action for false warranty in the sale of a 
 horse, the jury rendered a sealed verdict, "that the horse was lame other-
 
 CH. viil] jury, verdict against law, etc. 135 
 
 § 20a. An objection to tlie form of a verdict, where it 
 is substantially correct, cannot be first raised in the court 
 
 wise than warranted on the sale ; that there was a warranty, and that 
 the plaintiff was entitled to $95 damages." Held, in substance, a gene- 
 ral verdict for $95, and properly received as such. Ross v. Mather, 47 
 Barb. 582. " "We the jury find for the plaintiff and assess his damages 
 at two hundred and sixty-two j%°q. — .$262.50. May 7. James Montgo- 
 mery, Foreman." Held sufScient. Hall v. King, 29 Ind. 205. A special 
 verdict, that the "defendants are entitled to the quartz lode, or ground, 
 as situated between their notices, . . . and being three hundred and fifty 
 feet, more or less," is to be interpreted as giving the defendants all the 
 ground between their notices, whatever the distance. Gonzalez v. Leon, 
 31 Cal. 98. By agreement it was ordered, that, if the jury should find a 
 verdict after adjournment of the court, they might seal it and deliver it 
 to the clerk. They did so, and then separated. The verdict was merely 
 " for the plaintiff," and the jury were sent out again, and returned a ver- 
 dict fixing the amount of damages. Held, it was error to enter judgment 
 on the second verdict. Trout v. West, 29 Ind. 51. In an action upon 
 an account, the pleadings showed that there was no controversy as to the 
 amount, but only as to the right of the plaintiff to recover at all. The jury 
 returned a verdict, " we the jury find for the plaintiff." The court, at 
 the request of the plaintiff, and against the objection of the defendant, 
 directed the jury to retire and find the amount due, which was done. 
 Held, not to be error. Lee v. Bradway, 25 Iowa, 216. A verdict in the 
 form, " we, the jury, believe," is not objectionable. Patton v. Gregory, 
 21 Tex. 513. Where, in a suit upon a note, the only material issue was, 
 whether usury was embraced in it, and the verdict was, " We of the jury 
 find for the plaintiff;" held, that judgment was properly rendered for the 
 amount of the note with interest, the provision of the (Ky.) Code, that 
 the jury must assess the amount of recovery, not applying. Cooper v. 
 Poston, 1 Duv. 92. In an action on a sheriff's bond, a verdict "we find 
 for the plaintiff, that the condition of the bond is broken, and assess his 
 damages at," etc., is not irregular. Bartlett v. Hunt, 17 Wis. 214. 
 Where a verdict, in an action under a "mill-dam act," finds the damages 
 the plaintiff has sustained up to the commencement of the action at a 
 specified sum, and the annual damages which he would sustain thereafter 
 at a certain other sum ; held, substantially a finding of the damages 
 which the plaintiff had sustained up to the time of the trial, as the 
 damages sustained during the pendency of the action could be computed 
 on the annual damages. Newton v. Allis, 16 Wis. 197. In Louisiana, 
 the article of the Code which prescribes the form of a verdict is direc-
 
 136 THE LAW OF NEW TRIALS. [CII. VIII. 
 
 abovo.^ ^lorc especially where tlie objection might have 
 beeu remedied by the court below.' 
 
 § 21. "With more particular reference to the -pleadings^ 
 though a verdict be not technically responsive to the 
 issues, yet if, in its sense and legal effect, it makes a re- 
 sponse to the pleadings, it is sufficient.^ And one general 
 verdict may be a sufficient finding upon several issues, 
 when all of them must necessarily be passed upon, in 
 order to such finding.^ Though it is a general rule that 
 the jury are to answer all the issues, yet, if the whole 
 question in the case is settled by the verdict, it is not to 
 be set aside, unless the omission to find the other issues 
 may in some way prejudice the party complaining.'(rt) 
 Thus, where several issues are made up, if the jury find 
 for the defendant on any one of them, it will be sufficient; 
 and they need not find for the plaintiff on any of the 
 others, though he would be entitled to have them decided 
 in his favor if it were necessary to decide them.^ So, 
 where there arc several material issues, a general finding 
 for the plaintiff, assessing damages, &c., is sufficient.^ And 
 a general verdict "for the defendant," though expressed 
 to be "on account of" one of the main issues in the case, 
 includes the finding, in his favor, of every material fact 
 
 ' Sclilencker v. Risley, 3 Scam. ^ White v. Bailer, 14 Conn. 272; 
 
 483. Talbott v. Jones, 5 Miss. 217. 
 
 2 Bank, &c.?). Batty, 4 Scam. 200. e -yValker v. Taliaferro, 2 Brev. 
 
 3 Lowrcy v. Brown, 3 Sneed, 17. 390. 
 
 < Chcswell ?'. Chapman, 42 N. II. ^ Street v. Colver, G Mis. 354. 
 47 ; Talbott v. Jones, .') AVis. 417 ; 
 Agee V. Medlock, 25 Ala. 281. 
 
 tory, and a substantial compliance with its provisions will be snfiicient, 
 if no objection is raised at the trial. \Vichtrecht v. Fassuacht, 17 La. 
 An. 166. 
 
 (a) In Indiana, one good count sustains a general verdict. The de- 
 fendant should ask to have the jury assess on that count alone; but 
 where the record is silent this is presumed to have been done. Indiana- 
 polis, &c. Railroad Co. v. Tafie, 11 lud. 458.
 
 CH. VIII.] JURY. VERDICT AGAINST LAW, ETC, 137 
 
 well pleaded.' So, where the general issue and a special 
 justificatiou are pleaded, and a verdict is found for the 
 plaintiff on the general issue which could not have been 
 found if the special plea had been supported ; the omission 
 is matter of form only.^ So, where separate pleas of pay- 
 ment were filed to separate counts, a general verdict for 
 the plaintiff is good.^ So, where there are two counts, and 
 evidence given on both, and a general charge on the facts 
 applying to each count ; a general verdict on both is good.^ 
 Thus a complaint counted on a note, and an account stated. 
 The defence to the first count was usury, alterations, &c., 
 and to the second, that the account had been paid by the 
 note. The verdict was "for the plaintiff on the counting 
 $166.50, without interest on said claim, regarding said 
 note invalid." The evidence was not on the record 
 on appeal. Held, the verdict was substantially for the 
 defendant on the first, and for the plaintiff on the second 
 count, and, though informal, was good.* 
 
 § 21a. Where a verdict which is decisive of the case 
 is found on one or more of several issues, and the jury 
 cannot agree as to another issue, the party prevailing may 
 waive the other issue, or consent that a verdict be entered 
 thereon against him.^ So, if a declaration in trespass con- 
 tain two counts for the same trespass, and the defendant 
 plead the general issue to both, and a special plea in bar 
 to one of them, and a verdict be found for him on the 
 special plea ; he is entitled to a verdict on the general 
 issue likewise.^ 
 
 § 21b. Where special issues are submitted to the jury, 
 it is enough if they find upon those on which, regardless 
 
 » Hamiltou v. Eice, 15 Tex. 383. ^ Collins v. Makepeace, 13 Ind. 
 
 2 Browning v. Skillman, 4 Zabr. 448. 
 
 351; 19 Pick. 25. ^ Sutton v. Dana, 1 Met. 383. 
 
 3 Dillard v. Noel, 2 Pike, 449. ' Curl v. Lowell, 19 Pick. 25 ; 4 
 * Morchead v. Brown, G Jones, Zabr. 351. 
 
 367. See Goodman v. Gay, 15 
 Penn. 188.
 
 138 THE LAAV OF NEW TRIALS. [Cll. VIII. 
 
 of the finding on the other, judgment can staud.^ And 
 where there are several counts for tlie same cause, one only of 
 which is good, and a general verdict is found for the plain- 
 tiff ; judgment will not be arrested, hut the verdict will 
 be applied to the good count.^ So, where, on a feigned 
 issue, there are several counts, and evidence is given on 
 one only, the court will order the verdict to be rendered 
 on that count.3 And where the attention of the jury is 
 directed to but one count, a general verdict will be pre- 
 sumed to be on that count.'(ft) 
 
 § 22. A verdict in figures, with the symbolical prefix 
 ($) denoting dollars, is good, in an action of tort.^ So a 
 verdict for "seven hundred dollars, the amount of the 
 note sued on, with legal interest from the maturity of the 
 note," is sufficiently certain.^ So, where the plaintiff, in 
 
 • (rBricn v. Hilburn, 22 Tex. ^ Rhoads w. Hoopes, 2 Miles, 51. 
 
 616, '' Jones v. Cooke, -5 Dev. 112. 
 
 2 Smith V. Cleveland, G IMet. 332; ^ Maysou v. Slieppard, 12 Rich. 
 
 Nelson v. Emerson, 1 Brev. 48 ; 254. 
 
 Bridi^rc Co. v. Williams, 9 Dana, ^ Parker v. Leman, 10 Tex. 116. 
 403; "state v. Pace, 9 Rich. 355. 
 
 (a) The court will not render a decree upon a special verdict, which is 
 not responsive to the pleadings, and is incomplete with reference to the 
 objects of the suit. Thompson v. Tinnin, 25 Tex. (Supp.) 5G. AVhere 
 several issues were presented to the jury, and they found the " issue" for 
 the plaintiif; held, not error. The court below might have changed 
 "issue" into "issues." Laber v. Cooper, 7 Wall. 565. Where, during 
 the trial, the plaintiff only claimed to recover on one count, to which all 
 his evidence was applicable ; held, a general verdict might be applied to 
 such count, although others were defective. Small v. Rogers, 46 N. H. 
 176. If a jury agree to a verdict upon some or several entirely separate 
 and distinct issues, but fail to agree upon others, and thereupon seal their 
 verdict and separate without permission ; such separation, though irre- 
 gular, will not affect their finding on the former issues. Vennard v. 
 McConnell, 11 Allen, 555. Where certain issues are submitted to the 
 jury, and a verdict is returned " for the defendant," such verdict is suffi- 
 cient, if from the nature of the issues it is certain that the jury must 
 have found for the defendant upon all of them, in order to render such 
 verdict. Browne v. Browne, 22 Md. 103.
 
 CH. VIII.] JURY. VERDICT AGAINST LAW, ETC. 
 
 139 
 
 an action for a wager on a horse-race, averred that so 
 much money and property was deposited with stake- 
 holders, and the jury found "for the plaintiff the amount 
 of money and property in the hands of" the stakeholders; 
 held, the verdict was made sufficiently certain by refe- 
 rence to the pleadings.^ So, where, in an action of forcible 
 entry and detainer, the jury returned a verdict, which? 
 though informal in omitting to state the result, was yet 
 sufficient to enable the court to ascertain it by a simple 
 operation in arithmetic; held, the judgment ought to be 
 affirmed.2 j^^^^ where a verdict is for " principal, interest, 
 and costs, and 12i per cent, damages," it will be presumed 
 that the "principal" meant is the principal claimed in the 
 declaration; which presumption is strengthened, if judg- 
 ment is entered up for that sum as principal without ex- 
 ception by the defendant.^ So, where, in an action on a 
 note, the jury "found for the plaintiff the amount of the 
 note and interest ;" and the clerk assessed the damages, 
 and entered judgment by order of the court: held, there 
 was no fatal error.* 
 
 § 22a. "Where several parties, over whose respective 
 lands a highway had been laid out by the county com- 
 missioners, applied for a jury to make alterations in the 
 location, and to reassess their damages, and all the cases 
 were submitted to the same jury at the same time, and a 
 verdict was returned confirming the location over the 
 lands of some of the parties, and assessing their damages 
 severally, and stating that, as to another part of the loca- 
 tion, the jury could not agree ; held, the verdict was a 
 several verdict in each case, and, accordingly, that it 
 ought to be received and accepted in each case in which 
 the damages were assessed, and the case in which the jury 
 
 > Galbrcath v. Atkinson, 15 Tex. » Phillips v. Behn, 19 Geo. 298. 
 21. ■* McGregor v. Armill, 2 Clarke 
 
 2 Gibson v. Lewis, 27 Mis. 532. (Iowa), 30.
 
 140 THE LAW OF NEW TRIALS. [CII. VIII. 
 
 could not agree ought to be submitted to a new juiy.' So, 
 in an action against two defendants, a verdict " in favor 
 of the defendant" was held to be a iinding for both de- 
 fendants.2 ^^fi where, in an action against two, the plea 
 of the statute of limitations and the replication arc joint, 
 the verdict for one and against the other defendant will 
 be supported. 3 So a verdict by the jury in favor of the 
 plaintift', where there were more plaintiffs than one, and 
 where the record shows that the jury were impanelled to 
 try the issue in the case, is sufficient.'' 
 
 § 226. A verdict in a chancery suit, which determines 
 that the complainant has no title to the premises in con- 
 troversy, is ordinarily good.* 
 
 § 22c. Inasmuch as the day of trial is matter of record, 
 and the rate of interest fixed by statute; a verdict "for 
 the plaint ift", a judgment for the amount due on said note 
 with legal interest less $51, with interest on the same 
 from January, 1856," is sufficiently certain." Or a verdict 
 for a debt claimed in the declaration, wdth interest, &c., 
 subject to a credit for a specified sum, paid at a specified 
 date.^ So a verdict for a specified sum of money, " with 
 interest thereon from the 16th of February, 1836," is not 
 void for uncertainty, either as to the principal sum or the 
 interest, but the plaintift' is entitled to sign judgment for 
 both, computing the interest according to the verdict, 
 even if the demand be unliquidated.''' So a verdict, " we 
 of the jury find for the plaintift' the debt in the declara- 
 tion mentioned to be discharged by payment of the sum," 
 &c., is sufficient in substance and certainty.^ 
 
 • Lanosborough v. Bcrksliire, 22 <= Darden v. Mathews, 22 Tex. 
 Pick. 278. 320. 
 
 ' Porter v. Cotney, 3 Ala. 314. ' Barrett v. Wills, 4 Leigh, 114. 
 
 3 Ivey V. Gamble, 7 Port. 54o. ^ Bank v. Bowie, 1 :McMullan, 
 
 * Henrv v. llalsey, r, S. 6c M. 073. 429. 
 
 5 McUaniels. Mary gold,2 Clarke, » Maulding v. Rigby, 1 How. 
 500. Miss. 579.
 
 CH. VIII.] JURY. VERDICT AGAINST LAW, ETC. 141 
 
 § 23. Where a verdict was inadvertently rendered, after 
 an injunction to stay the suit; the court refused to set 
 aside the verdict, but ordered it not to be enforced, until 
 the injunction should be dissolved.^ 
 
 § 24. If a judgment is entered upon a verdict, without 
 appeal or motion in arrest, the verdict warrants the judg- 
 ment, although not signed by the foreman.-(a) 
 
 • Kile v. Thompson, 26 Geo. 352. 2 Harris v. Bardeu, 24 Geo. 73. 
 
 (a) In the Circuit Court of Illinois, the jurors need not sign their ver- 
 dict, but only where the trial is before a ministerial of&cer. Harrison v. 
 Singleton, 2 Scam. 21. Under the new code of Kentucky, a verdict is 
 sufiBciently certain, which finds for the plaintifif the debt mentioned in the 
 petition. Braunin v. Force, 12 B. Mon. 506. In Louisiana, when the 
 jury find for the plaintiff " the full amount claimed," the amount must 
 be ascertained from the allegations and prayer of the petition. Newton 
 V. Kerr, 14 La. An. 704. In Kentucky, the court is authorized by the 
 Civil Code, § 257, to impanel a jury to inquire into the fact whether the 
 claimant was owner, and entitled to possession, of the property, at the 
 time an attachment was levied ; and a verdict in his favor, in response to 
 that inquiry, must be rgarded as relating to that period, although no time 
 be specified. Schwein v. Sims, 2 Met. (Ky.) 209. In Indiana, where a 
 special fiding covers the issue, but omits to find a fact rendered material 
 by the evidence, and on which there is a conflict of testimony ; the proper 
 remedy is by motion for a new trial, not for a venire cle novo. Schmitz 
 V. Lauferty, 29 lud. 400. If a verdict contains but one finding, where 
 the pleadings present other necessary questions of fact, and the finding 
 is such that judgment cannot be rendered irrespective of the other mat- 
 ters ; it is a mistrial. People v. Doesbury, 17 Mich. 135. In Maryland, 
 a transcript, sent to the orphans' court, of proceedings in the circuit 
 court, set forth, that the first verdict had been set aside and a new trial 
 granted by the circuit court, in which a second verdict was rendered, but 
 the certificate of the judge referred only to the last verdict. Held, the 
 first verdict could not be considered by the orphans' court, and there- 
 fore the certificate was right. Waters v. Waters, 28 Md. 11. In ren- 
 dering judgment upon a special verdict, the court must be confined to 
 the verdict, and cannot refer to other facts upon the record for the pur- 
 pose of aiding the verdict. Kuhlman i'. Medliuka, 29 Tex. 385. No 
 judgment will be rendered upon a verdict which cannot be made certain 
 without looking out of the record to the evidence. As where the verdict
 
 142 THE LAW OP NEW TRIALS. [CII. VIII. 
 
 § 25. AVhcrc a bill was liled by A. and B. bis wife, to 
 recover certain shares, in right of the wife, the marriage 
 being denied by the answer; and the jury found the fol- 
 lowing verdict: "We, the jury, find and decree, that the 
 complainant B., in her own right and for her own use, do 
 recover of the defendant the negro slaves, C, D., &c.:" 
 held, on a motion in arrest of judgment, that the legal 
 efiect of the verdict was in favor of the marriage.^ 
 
 ' Simmons v. Rarden, 9 Geo. 543. 
 
 in an action of trespass to try title found for the plaintiff " the land de- 
 scribed ill the petition, less 7G7^ acres, as described in the deed read in 
 evidence from B. F. Hopper to C. M. Adams." Smith v. Tucker, 25 
 Tex. 594. In a late case in Pennsylvania, the rule of law is thus stated, 
 per Williams, J. " A special verdict must find all the essential facts in 
 the case, and cannot be aided by intendment or a reference to extrinsic 
 facts appearing upon the record. Wallingford v. Dunlap, 2 Harris, 31 ; 
 Sewall V. Glidden, 1 Ala. 52; Tunnell v. Watson, 2 Munf. 283-; Lee v. 
 Campbell, 4 Port. 198 ; Allen v. Folger, 6 Rich. 14. And what is not 
 found by a special verdict will be taken not to exist. Thayer v. Society 
 of the United Brethren, 8 Harris, 60 ; Berks Co. v. Jones, 9 Harris, 416. 
 And this is so, although the circumstances stated may be sufficient to 
 warrant an inference or presumption of the existence of the matter omit- 
 ted. Jones V. State, 2 Swan. 399. The court is confined to the facts 
 found in a special verdict, and cannot supply the want thereof by any 
 argument or implication from what is expressly found ; Cronsillat v. Ball, 
 3 Ycates, 386; Ingersoll v. Blanchard, 2 ib. 545. And if the spe- 
 cial verdict is defective or uncertain, no judgment can be entered upon 
 it, but it must be set aside, and a venire de novo awarded. Whitesides 
 V. Russell, 8 W. & S. 47 ; Peterson v. United States, 2 Wash. C. C. R. 
 39 ; State v. Duncan, 2 McCord, 129. The bond upon which the suit 
 was brought was given to indemnify Francis Stocker, the plaintiff below, 
 for levying upon and selling personal property upon an execution which 
 had come into his hands as sheriff. The special verdict finds ' that an 
 action was brought against Francis Stocker, sheriff of Carbon County, 
 and a recovery had against him, which, with costs and interest, amounts 
 to more than $3000,' the penalty of the bond. But it does not find that 
 the action was brought and the recovery had for levying upon and selling 
 the goods mentioned and described in the bond, and for which it was 
 o-ivcn as indemnity, and we cannot intend or infer that such was the fact^ 
 Jud""ment reversed, special verdict set aside, and a venire facias de novo 
 awarded." Loew v. Stocker, Leg. lutell. 1869.
 
 en. VIII.] JURY. VERDICT AGAINST LAW, ETC. 143 
 
 § 26. But there are numerous cases, where the improper 
 form of a verdict has been held fatal to its validity.^ A 
 verdict, obviously imperfect and uncertain on its face, 
 cannot be supported and must be set aside.'^ So if no 
 judgment can be rendered, in consequence of the imper- 
 fection of the verdict.^ 
 
 § 26a. A verdict must respond to the issue made by the 
 pleadings. Hence a verdict, that the jury agree that the 
 plaintiff pay the costs, is bad.'* So where, in an action on 
 a note payable in stock, the defendant pleaded payment, 
 and the jury found specially that he had tendered the 
 stock, &c. ; held, the verdict was invalid, and no valid 
 judgment could be rendered thereon.^ So, in a suit for 
 shooting mules, the defendant pleaded that the mules had 
 broken into his inclosure, and were destrojang his crops, 
 &c. The jury found "the damages to be equal, and that 
 each party pay equal proportions of the costs incurred, 
 and go out of court." Held, no judgment could be ren- 
 dered.^ So, where the jury found only an agreement of the 
 parties, not in issue, that the matters in controversy were 
 not to be determined in the court below, until after the 
 appellate court should have decided the question of title 
 in favor of the plaintiff; held, not a legal verdict, upon 
 which the court below could give final judgment ; and 
 that the acquiescence of the parties in such verdict, both 
 in the court below and in the appellate court, did not cure 
 the objection, or authorize the latter court to proceed to 
 the disposition of the case, as contemplated in the agree- 
 ment.^ So a verdict on a count alleging a wrongful taking 
 
 1 Lusk V. Miles, 1 Brev. 17; ker «. Moore, 29 Mis. 218; 16 Tex. 
 Nixon V. Bullock, 9 Yerg. 414; 18; 3 ib. 397. See Duval v. 
 Barnard ■». Young, 5 Humph. 100; Malone, 14 Gratt. 24; Woods v. 
 Tuttle V. Brown, 10 Cusli, 2G3; Hynes, 1 Scam. 103; Moody v. 
 Watts V. Greenlee, 2 Dev. 87. Keener, 7 Port. 218 ; Spurlin v. 
 
 2 Heyward v. Bennett, 3 Brev. Rutherford, 2 Mur. 3G0. 
 
 113. 5 Barker v. Brink, 5 Clarke 
 
 3 Boxley v. Collins, 4 Blackf. (Iowa), 481. 
 
 820. 6 Ford v. Taggart, 4 Tex. 493. 
 
 * Hall V. York, 16 Tex. 18; Par- ' Phillips v. Hill, 3 Tex. 397.
 
 144 TUE LAAV OF NEW TRIALS. [CII. VIII. 
 
 of tlio plaintiff's goods, not saying with force, and selling 
 them, &c., is bad.^ Or a verdict in trover "that the de- 
 fendant does detain."^ So, where the plaintiff charged an 
 unlawful taking and detaining of his property; and the 
 defendant denied the wrongful taking, and affirmed a 
 lawful delivery to the plaintiff; and the jury found a 
 wrongful detainino;: held insufficient.^ So in an action 
 for goods lost, against a railroad, when the jury fail to 
 find whether the loss occurred before or after the arrival 
 of the goods at the warehouse of the company, and there 
 is uo proof of want of ordinary care.^ And where the 
 jury do not respond to all the issues on the record, their 
 verdict is defective, and no judgment can be rendered on 
 it.^ Thus where there were several counts, and a jury 
 found for the defendant on all but one, and for the plain- 
 tiff on that ; held, though the evidence showed a good 
 cause of action, yet, as it was inapplicable to the count 
 on which the jury had placed their verdict, the verdict 
 could not be sustained.^ So a verdict is bad, which 
 responds to but one of the pleas filed.^ Whether the 
 jury find a general or a special verdict, it is their duty to 
 decide the very point in issue ; and although the court in 
 which it is tried may give form to a general finding, so 
 as to make it harmonious with the issue, yet if it appear 
 to that court, or to the appellate court, that the finding 
 is difterent from the issue or is confined only to a part of 
 the matter in issue; no judgment can be rendered on the 
 verdict ; and this principle applies equally to a plea vary- 
 ing from the substance of the declaration.^(«) And the 
 
 1 Wickliffc 1). Saudcrs, G Mour. s Vines®. Brownrigg, 2 Dev.537. 
 29G. ^ Horscly v. Braucli, 1 Humph. 
 
 2 Toulmin v. Lcsosne, 2 Ala. 359. 199. 
 
 3 Allison V. Darton, 24 i\Iis. 343. ' Carr v. Stevenson, 5 Humph. 
 * Jackson v. Sacramento, 23 Cal. 559. 
 
 268. ^ Garland v. Davis, 4 How. 131. 
 
 (a) Where the jury find for the plaintiff on the first of two issues, and 
 it appears from the pleadings, that, in order to such a verdict, they must 
 have found for him on the second, the court will infer that they did thus 
 find, and give judgment accordingly. Pearco v. Bell, 21 Tex. 688.
 
 CII. VIII.] JURY. VERDICT AGAINST LAW, ETC. 145 
 
 finding of the court., in a case where no jury was demanded, 
 is equivalent to the verdict of a jury, and cannot he en- 
 larged by intendment.^ So, " if the point on which the 
 verdict is given is so uncertain that it cannot be clearly 
 ascertained, whether the jury mean to find the issue or 
 not, it cannot be helped by intendment."^ But where, in 
 an action against two defendants, the plea alleged that 
 the promises were made by them and T., and not by them 
 alone ; and the replication, that the promises were made 
 by the defendants alone ; and the verdict found that the 
 defendants " did promise in manner, &c., as the plaintift" 
 has declared:" held, if the verdict failed to find the pre- 
 cise point of the issue, " the finding of the matter in issue 
 might be concluded out of it," and therefore it was suffi- 
 cieut.^(«) 
 
 § 27. In Texas, in a suit on open account, or for an un- 
 liquidated demand, a general verdict is of doubtful vali- 
 dity, especially before a justice of the peace ; and will not 
 support a judgment.^ So with a verdict for the "full 
 amount specified in the promissory notes adduced in the 
 
 ' Heeron v. Beckwith, 1 Wis. 17. ' Chase «. Deming, 42 N. H. 274. 
 2 Per Bell, C. J., Chase v. Dem- * Harrell v. Babb, 19 Tex. 148. 
 ing, 42 N. H. 281. 
 
 (a) When a joint verdict is rendered against parties improperly joined, 
 there must be a new trial, as separate judgments cannot be rendered. 
 The judgment must follow the verdict. McVean v. Scott, 46 Barb. 379. 
 Where there are several defendants, each of whom pleads separate de- 
 fences, upon which issues are joined, and a second trial is taken under 
 the (Ohio) Code by one of the defendants ; the only issues then for trial 
 are those between the plaintiff and such defendant. It seems, that, if 
 such defendant's defence goes no farther than to exonerate himself from 
 liability, the liability of the others will remain unaffected by the result 
 of the second trial. But if the defence goes to the plaintiff's right to 
 recover against any of the defendants, it will, so far as it is established, 
 inure to the benefit of the other defendants as fully as it would have done 
 upon the first trial, had they been in default. Sprague v. Childs, 16 Ohio 
 St. 107. 
 
 10
 
 146 THE LAW OF NEW TRIALS. [CII VIII. 
 
 case."^ So a verdict for the plaintiff, in assumpsit, with- 
 out assessing damages, is erroneous.^ Or a verdict " upon 
 tht'ir oaths do say $418 75 (four hundred and eighteen 
 (hollars and seventy-live cents). "^ Or a "verdict in favor 
 of i)haintiff.""' And, as we have seen (§ 26a), the verdict 
 must comi)relicnd the whole issue. AVhere the jury ex- 
 press their moaning in an informal manner, the court will 
 work the verdict into shape, and make it serve. Other- 
 wise, where the jury as to part of the issue fail to express 
 any opinion at all.^ So a judgment, that the plaintiff 
 recover of the defendant, "according to the provisions of 
 the act of Assemhly in such case made and provided, the 
 sum of, &c.,'' is informal and uncertain, and will he set 
 aside, and the cause remanded.^ So, where, in an action 
 on contract, the jury are sworn tarn ad triandum quam ad 
 inquirendum^ it is their duty, if they find for the plaintiff, 
 to assess entire damages against the defendants, and it is 
 error to receive a separate verdict against each defendant.^ 
 And wdiere there are two plaintiffs, the jury cannot find 
 against one and in favor of the other.** Or, in detinue 
 for eight slaves, a verdict " for the plaintiff", and assess the 
 value of the slaves su-ed for as follows," &c., naming all the 
 slaves hut one.^ So, where the plaintiff" claimed title under 
 the hushand, and the defendant under the commimity, and 
 the evidence show^ed, that the consideration paid for the 
 land in controversy consisted of a slave and a yoke of 
 oxen, of a certain value respectively; the jury found a 
 special verdict, that the land was paid for hy a slave, who 
 was the separate property of the wife, and a yoke of oxen, 
 the property of the community, hut w^ithout finding their 
 respective value. Held, the court had no power to look 
 
 » Mays V. Lowis, 4 Tex. 38. ^ Harman v. Childress, 3 Yerg. 
 
 2 Ames V. e^loat, W'ri->;ht, 577. 327. 
 
 3 Knox V. 15reed, 12 111. (Jl. ^ Day v. Brawley, 1 Pcnii. 439. 
 
 « Hampton i). Watterston, 14 La. ^ i^uckhanan v. Gamble, Geo. 
 An 239. Deeis. Part I. 156. 
 
 5 Wood V. McGuire, 17 Geo. 3G1. ^ Witliek v. Traun, 27 Ala. 503 ; 
 
 Trauu v. Wittick, ib. 570.
 
 en. VIII.] JURY. VERDICT AGAINST LAW, ETC. 147 
 
 at the testimony, though not conflicting, in order to fix 
 the value and make up the decree, but there must be a 
 new triah^ 
 
 § 27a. In reference to criminal cases, a general verdict 
 is good, where there is one good count in the indictment, 
 to which the evidence applies.^ And a verdict of " guilty 
 on the first charge," there being more than one count, will 
 be considered as a verdict of guilty on the first count, and 
 not guilty on the others.^ So a verdict is sufficient, if the 
 proper judgment to be rendered upon it can be pleaded in 
 bar of another indictment for the same cause.* But, where 
 the facts found by the verdict are so defective, that no 
 judgment can be rendered upon it, an inferior court may 
 set it aside and award a venire de novo.\a) 
 
 § 276. A verdict which does not pass distinctly upon a 
 claim of the defendant is bad.^ Or, in an action of tort, 
 finding one defendant guilty, not ascertaining which, and 
 nothing as to the other.'^ Or a verdict " for the amount 
 of the note less the credits, and that the note was for the 
 land set out in plaintiff's petition ;" where no land is set 
 out in the petition, which only refers to a deed as intended 
 to be oflered in evidence.*(6) 
 
 ' Claiborne v. Tanner, 18 Tex. ^ Lawrence v. The People, 1 
 
 68. Scam. 414. See Kirby v. The 
 
 2 Poole V. The Slate, 3 Brev. 416. State, 7 Ycrj?. 259. 
 
 3 Nabors v. The State, 6 Ala. 200. s Collins w^Graves, 13 La. An. 95. 
 1 Chambers v. The People, 4 ^ Richards v. Sperry, 7 Wis. 219. 
 
 Scam. 351. ^ Brown ». Horless, 22 Tex. 645 . 
 
 (a) In Tennessee, where the defendant was indicted for maliciously 
 stabbing, and the jury found him "not guilty of stabbing, but guilty of 
 an assault and battery;" it was held that no judgment could be pro- 
 nounced against him. The State v. Valentine, 6 Yerg. 533. 
 
 (&) AVhere it is found that hay alleged to have been converted by the 
 defendant to his own use was worth twenty dollars per ton, but there is 
 no finding as to the number of tons converted, the plaintiff is not enti- 
 tled to a judgment. Troy v. Clarke, 30 Cal. 419. Under the (N. C.) 
 ordinance of October 18, 1865, and the acts of 1866, c. 38, 39, money
 
 148 THE LAW OF NEW TRIALS, [CIL VIII. 
 
 § 28. If a verdict be wurraiited ])y the evidence, it is 
 of no importance that some of the jurors mistook or did 
 not understand the whole of it, or did not know that 
 their verdict was conclusive, or how it would affect the 
 judgment.^ 
 
 § 29. An inconsistent verdict will be set aside.^ But 
 where a verdict taken together is inconsistent and re- 
 pugnant in itself, this is no ground for rendering a judg- 
 ment for the party against whom the verdict is found. 
 It only shows a mis-trial, and the case will be sent back 
 to another hearing.^ 
 
 § 30. A verdict may be amended in form, conformably 
 with the manifest intent of the jury, and, as will be seen, 
 
 1 Tucker v. South Kingstown, 5 2 ]\iitclicll v. Printup, 27 Geo. 
 K. I. 558. 469. 
 
 3 Potter V. Hiscox, 30 Conn. 519. 
 
 contracts are presumed to be solvable in Confederate money, and the 
 value thereof must be estimated by the jury in coin, according to the 
 legislative scale, and then the depreciation of United States treasury 
 notes must be added to such nominal amount of coin. The legislative 
 scale is only applicable to contracts where Confederate money was the 
 consideration. In all other kinds of contracts, the value of the property 
 or other consideration may be shown in evidence, and the jury must esti- 
 mate such value in United States treasury notes. Robeson v. Brown, 63 
 N. C. 554. The refusal of the court, to require the jury to return a special 
 finding upon an immaterial fact is not erroneous. Bonham v. Iowa, 25 
 Iowa, 328. A party, requiring a finding upon any particular fact at 
 issue, should specify the point, without dictating the terms of the finding. 
 Miller v. Stcen, 30 (!al. 402. A jury cannot properly award costs ; but, 
 if they do, it will not affect the residue of the verdict, if otherwise legal, 
 and the part relating to costs will be rejected as surplusage. Tucker v. 
 Cochran, 47 N. H. 54. In an action of debt, if the petition sets forth 
 two notes, the statement of each debt may bo considered as amounting 
 to a several count, though one promise is alleged in consideration of both 
 debts, and, on a plea answering fully each count or cause of action, the 
 findin", if sustained by the proof, may be for the plaintiff on one count, 
 and for the defendant on the other. Uangcr v. Uodge, 24 Ark. 205.
 
 CH. VIII.] JURY. VERDICT AGAINST LAW, ETC. 149 
 
 this may be clone in somewhat various ways.'(«) Thus 
 a verdict incorrectly recorded may be amended by the 
 court.^ So the jury may be sent back with instructions 
 to put their verdict in form, or make it more certain.^ 
 
 • Tliomae v. Znslila, 25 Tex. ncy, 8 Dcv. 43; Russell «. Wheeler, 
 
 225; Corbett v. Gilbert, 24 Geo. 1 Hemp. 3. 
 
 454; Montgomery v. Tillotson, 1 2 Iven's Appeal, 33 Penn. 337. 
 How. Miss. 215 ; Sawyer v. Hop- " Reitenbaiigli v. Liidwick, 31 
 
 kins, 9 Sliep. 26S ; Cook v. Scott, Pcnn. 131; Flinn v. Barlow, 10 111. 
 
 1 Gilman, ;'.:i3 ; Wolfran v. Eyster, 39 ; Smith v. Williams, 22 ib. 357 ; 
 7 Watts, 38 ; Blackley v. Sheldon, Jones v. Julian, 12 Ind. 274. See 
 7 Johns. 32 ; The State v. Under- McKeau v. Paschal, 15 Tex. 37. 
 wood, 2 Ala. 744; Donnell v. Van- 
 
 (a) It is the duty of the court to cause the jury to put in proper form 
 a verdict returned in defective form. Harrison v. Jaquess, 29 Ind. 208. 
 On an issue in assumpsit, a verdict of guilty was found, and damages 
 assessed. Held, amendable under the (N. J.) statute. State v. Gordon, 
 
 2 Vroom, 264. Upon the rendition of a general verdict for the plaintiff, 
 which is informal, the judge, after asking and receiving an explanation 
 from the jury in open court, may have it recorded accordingly and in 
 proper form. Haycock v. Greup, 57 Penn. 438. So although a verdict 
 does not find the technical issue raised by the pleadings, if one that the 
 court can understand and from which there is no difficulty in concluding 
 a verdict. Tucker v. Cochran, 47 N. H. 54. Thus, where the general 
 issue is pleaded, with pleas of special justification, a general verdict for 
 the plaintiff is valid, and will be recorded by the court in formal lan- 
 guage. Stewart v. Fitch, 2 Vroom, 17. Verdict, in assumpsit, " We, the 
 jurors, find, for the plaintiff, $450." The verdict was ordered to be put in 
 form, in the presence of the jury, and with their assent, as follows : " We, 
 the jurors, find for the plaintiff, and assess the damages at 1^450." Held, 
 proper. Osgood v. McConnell, 32 111. 74. Where the clerk, in preparing 
 a blank verdict, mistakes the name of one of the defendants, and the 
 error escapes the notice of the jury, it may be amended by the court, 
 after the return of their verdict, so as to conform to the writ and other 
 papers, the jury being present, and affirming the verdict, as amended. 
 Readfield v. Shaver, 50 ]\Iaine, 36. It is not error, in an attachment 
 execution, where the jury found a "verdict for the plaintiff ,$354 34," to 
 allow an amendment, "the jury find for the plaintiff, and that at the 
 time of the service of the writ in this case upon the garnishee, there was 
 a debt of $354 34 due by the garnishee to the defendant." Keen v. 
 Hopkins, 48 Penn. 445. In Indiana, where a verdict is defective, the 
 objection should be taken by a motion for a venire de novo. Marcus 
 V. State, 26 Ind. 101.
 
 150 THE LAW OF NEW TRIALS. [CIL VIII. 
 
 Or, if the jury return a verdiet wliicli is not sucli as the 
 issue requires, the court may send them hack to reconsider 
 their verdict, with appropriate instructions, at any time 
 before it is received and recorded as a verdict.' Thus, 
 where the jury find a verdict for the difference between 
 two notes, they may be sent back to cast that difference.^ 
 So, where a jury bring in a general verdict for the plain- 
 tiff, in an action for obstructing a right of way ; the court 
 may send them out to assess the damages.' So, in a penal 
 action for marrying the plaintiff"'s minor son, if the jury 
 return a verdict that the defendant is guilty in manner 
 and form as he stands indicted ; the court may refuse to 
 receive this verdict, and send them out again, and they 
 may return a verdict against the defendant in proper 
 form.^ So a jury, who return a verdict that does not 
 pass upon the whole matter submitted to them, may be 
 sent out again by the court, even if they separated after 
 agreeing upon and sealing up their first verdict, before 
 they came into court.-^ So, where it was agreed that the 
 jury might seal up their verdict and separate, the verdict 
 was "for the i)laintift' according to contract," and the 
 plaintiff' moved it be recommitted, with instructions to 
 amend it, which was done, the defendant objecting. The 
 appellate court held that this proceeding was correct ; 
 certainly so, if the jury were present when the verdict 
 was opened; which the court would- presume.^ So, al- 
 though, where there are several defendants, the jury 
 sliould find as to all; yet, where they do not, the irregu- 
 larity may be cured, in Pennsylvania, by entering a not. 
 pros, in the Supreme Court or Court of Common Pleas, 
 the record being remanded for that purpose.^ So, where 
 
 ' Goodwin v. Appleton, Shop. ^ PritcbarcIiJ.Hennessey, 1 Gray, 
 
 453 ; The State v. Arringtou, 3 29-t. 
 
 Murph. 571. ^ Tifield v. Adams, 3 Clarke 
 
 2 ^Vri^^llt V. Hester, 24 Geo. 485. (Iowa), 4m;. 
 
 3 Fisher v. Farley, 23 Penn. 501. ' Ward v. Taylor, 1 Pcmi. 238. 
 * Bcates v. Rctallick, 23 Penu. 
 
 288.
 
 CII. VIIT.] JURY. VERDICT AGAINST LAW, ETC. 151 
 
 no evidence is offered on one of two counts in the decla- 
 ration, and the verdict, by mistake, is entered generall}'- 
 on both of them, it may be corrected from the notes of 
 the judge.* So a jury, under instructions from the court 
 below, found for the plaintiff on both counts in his decla- 
 ration, and assessed separate damages on each count. The 
 court thereupon instructed the jur}-, that the [)laintiff was 
 not entitled to recover on his second count, and ordered 
 them to find a verdict for the defendant on that count, 
 which they accordingly did. The case being Ijrought into 
 the court above, upon exceptions; held, this court had no 
 authority to amend the verdict, so as to conform it to the 
 first finding of the jury, although the first instructions to 
 them were right, and the last wrong ; and a new trial was 
 ordered.^ So if the jury, through a misconception of the 
 effect of legal terms, have returned a verdict the reverse 
 of what they intended, and such verdict has been affirmed ; 
 the papers may be again delivered to the jury, by direc- 
 tion of the presiding judge, before they have separated or 
 left their seats, and the judge may explain to them the 
 meaning of those terms, and they may correct their ver- 
 dict, although the writ in the next action may have been 
 read to them.^ So, when a jury render an informal verdict 
 requiring explanation, the court may inquire of them, 
 even after they have separated, what they intended to 
 find, and the verdict may then be reduced to form.^ So 
 a verdict entered by mistake upon the declaration may be 
 transferred to the proper paper, and signed by the foreman 
 after the jury have dispersed.' 
 
 § 31. "Where damages are duly assessed, but not in- 
 serted in the verdict before separation of the jury, they 
 may be inserted by amendment of the verdict before it 
 
 ' Smith V. Norman, 3 Dev. 496. " Clough v. Clou2:h, 6 Fost. 24 ; 
 
 2 Rohberts v. Kockbottom Co., 7 Wolfnin r. Eij;stor, 7 Watts, o8. 
 Met. 40. 5 ci-aiy „. Carradiue, 4 Pike, 21fi. 
 
 3 Ward V. Bailey, 10 Sliep. 316.
 
 152 THE LAW OF NEW TRIALS. [CIL VIII. 
 
 is accepted or affirmed.' So permission was given to a 
 jury, in presence of counsel who did not object, to dis- 
 perse on finding a verdict. Verdict, "We the jury find 
 for the plaintiif." The next morning, the court directed 
 this verdict to be amended, according to the statement of 
 the foreman, in presence of the jury, as to the amount of 
 damages which they intended to find. Held, such amend- 
 ment was rightly allowed.^ 
 
 § 32. A wrong verdict, the amount of which depends 
 on computation, may be cured by a remittitur.'^ So to an 
 action of debt for money had and received, in respect of 
 sums paid, under protest, on the admission of the plain- 
 tifl' to copyhold premises, alleged to be charged in excess ; 
 the plea was never indebted. The particulars of demand 
 consisted of eleven items, amounting in all to £17 Is. 
 On a case reserved, it appeared that the plaintiff insisted 
 that the principle on which the fees were charged was 
 faulty ; and, part of the items being allowed and part re- 
 jected, it was held, that the defendants were entitled to 
 have the verdict entered distributively, viz., as to £9 Is. M. 
 for the plaintiff, and as to the residue, £7 195. M. for the 
 defendants.^ So, where, in trespass against several, there 
 was a general verdict of guilty against all, it was held 
 competent for the jury, on being called back immediately 
 after leaving the court-room, to correct the verdict by 
 finding against part only.^ 
 
 § 33. A condition, annexed to a verdict, is in the nature 
 of an injunction to stay proceedings at law, and uncer- 
 tainty therein will not vitiate the verdict. The court 
 may reduce the condition to a certainty either with or 
 without an issue. ^ 
 
 ' DocB. Scribncr, oG Maino, 108. ^ Prussel v. Kuowlos, 4 How. 
 
 2 Barnes v. Strohcckcr, 17 Geo. Miss. 90. 
 
 340. 6 iioury v. Raimau, 35 Pcun. 
 
 3 Cross t\ Wilkins, 43 N. IT. 383. 354. 
 * Traherne v. Gardner, 8 Ellis & 
 
 B. 161.
 
 en. VIII.] JURY. VERDICT AGAINST LAW, ETC. 153 
 
 § 34. But it is held that a verdict cannot be amended 
 in matter of su]>stance.'(rt) So it is sometimes held, that, 
 when a jury has returned an imperfect verdict, which is 
 received and recorded, and the jury discharged ; the court 
 cannot reassemble the jury, and amend the verdict ac- 
 cording to what the jury then state it was their intention 
 to find, such intention not appearing on the face of the 
 verdict.^ So it is held that a special verdict cannot be 
 amended without the consent of both parties; but a 
 venire facias de novo may be awarded, in order to complete 
 the verdict.^ So, in replevin, the jury came into court 
 with a verdict signed by the foreman. It was read by the 
 clerk, " the jury find that the defendant did take^' &c. 
 The verdict was reafiirmed and ordered to be recorded, 
 and the jury discharged. Afterwards, upon suggestion 
 that the verdict was wrongly read, which appeared from 
 the verdict itself and aflidavits of the jurors that they 
 intended to find for the defendant ; the verdict not having 
 been actually recorded, the judge ordered the verdict for 
 the defendant to be recorded, and judgment thereon. 
 Held, the verdict should be set aside, never having been 
 affirmed by the jury. ''(6) 
 
 ' Wallace v. Hilliard, 7 Wis. ^ xj. States v. Bird, 2 Brer. 8o. 
 627. * Bueknam v. Greenlcaf, 48 
 
 2 Settle V. Alison, 8 Geo. 201. Maine, 394. 
 
 (a) A general verdict, in favor of one party, rendered in obedience to 
 the instructions of the judge, cannot be corrected, on motion, so as to 
 transform it into a verdict for the other. Brush v. Kohn, 9 Bosw. 589. 
 
 (&) See further, as to verdicts against laxv, Cochrane v. Boston, 4 
 Allen, 178; Chambers v. Collier, 4 Geo. 193; Thornton i'. Lane, 11 ib. 
 459; Brock v. Garrett. 16 ib. 487; Tyler v. Gray, 9 ib. 408; Marr 
 V. Johnson, 9 Yerg. 1 ; Doggett v. Jordan, 4 Fieri. 121.
 
 154 
 
 THE LAW OF NEW TRIALS. 
 
 [CII. IX. 
 
 CHAPTER IX. 
 
 JURY. IRREGULARITIES CONNECTED WITH, AS GROUNDS 
 OF NEW TRIAL. INCOMPETENCY. 
 
 1. General principle. 
 
 3. Presumption of competency. 
 
 4. Challenge and new trial com- 
 pared. 
 
 8. Agreement of jury; mode of 
 proof on the subject ; affidavits ; 
 modes of arriving at the verdict, 
 &c. 
 
 14, 18. Incompetencj'^ of juror. 
 
 17. Swearing. 
 
 22. Aliens. 
 
 23. Drawing and impanelling, 
 26. Misnomer. 
 
 29. Talesmen. 
 
 31. Change of jurors. 
 
 32. Partiality ; preconceived 
 opinion ; examination on voir dire, 
 &c. 
 
 52. Relationship. 
 
 59. Other connections with a 
 party. 
 
 GO. Interest; inlia])itants of a 
 county or town ; members of an 
 association; miscellaneous cases. 
 
 72. Opinions of juror ; conscien- 
 tious scruples. 
 
 § 1. The last chapter relates more particularly to the 
 nature of the verdict^ as indicative of misconduct in the 
 jury,(«) or in itself imperfect and irregular. 
 
 § 2. In the natural order of subjects, we proceed to 
 consider, independently of the verdict itself, as a promi- 
 nent ground for new trial, any irregularity, incompetency, 
 prejudice, or other circumstance tending to affect the cor- 
 rectness of the verdict, in connection with the jury by 
 which the cause was tried; whether applicable to the 
 whole panel or only to some individual juror or jurors. 
 
 § 3. In reference to the qualifications of a juror — and 
 probably the same rule applies to other alleged objections 
 in connection with the jury — the presumption is, that a 
 juror properly drawn is competent, and a verdict will not 
 
 (a) It is said, "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." 
 Crane v, Sayre, 1 Ilalst. 110.
 
 en. IX.] JURY. IRREGULARITIES, ETC. 155 
 
 be set aside unless his incompetency be satisfactorily 
 proved. Thus to disqualify a juror on the ground of 
 alienage^ it is not sufficient to show that a search of the 
 records of the county has been made, and that no record 
 of the naturalization of his father, who was an alien, 
 could be found. ^ 
 
 § 4. In general, the same objection of this nature, which 
 affords ground of new trial, may be taken in the form of 
 a preliminary challenge.{a) But, on the other hand, it is 
 not every mere cause of challenge, which if made at the 
 time would set aside a juror, that is sufficient ground 
 afterwards to set aside the verdict.^ 
 
 § 5. If a ground of new trial is first discovered after a 
 motion in arrest of judgment, as in case of misbehavior 
 of the jury, the law allows it to be made.^ 
 
 § 6. In Kentucky, alienage., though cause of challenge, 
 is not ground of new trial, though unknown to the party 
 and his counsel till after verdict. "• And the same rule is 
 adopted in Illinois in reference to other disqualifications. 
 On the other hand, in Tennessee, where a juryman is se- 
 lected upon a criminal case, and ordered to take his seat, 
 but, before being sworn, is discharged by the court be- 
 cause he is less than twenty-one years of age; this is no 
 ground for new trial, although excepted to by the defend- 
 ant at the time.® But in England an inquisition was set 
 aside, on the ground that the writ had been entered at the 
 time of the assizes before jurymen, some of whom were 
 debtors taken out of prison for that purpose, and although 
 the defendant's attorney had attended the execution of 
 
 • Keenan v. State, 8 "Wis. 133. ♦ Prcsbnry v. The Coramon- 
 
 2 Cook V. Castner, 9 Cusli. 36G. wealth, <J Dana, 203. 
 » Philips V. Fowler, Barues, 441. ^ Hines y. State, 8 Humph. 597 ; 
 
 Greenup v. Stoker, 3 Gilman, 203. 
 
 (a) See Com. v. Marra, Leg. Intel!., Dec. 3, 1869.
 
 156 THE LAW OF NEW TRIALS. [CH. IX. 
 
 the writ. It was suggested, that, if the sherifi' liad l)een 
 made part}' to the rule, perhaps the court would have 
 required him to pay the costs of the aiiplication.^ 
 
 § 7. It is not ground of new trial that one of the venire^ 
 upon being called, was challenged by the State, and di- 
 rected to retire until the panel was gone through with, 
 and was not afterwards recalled, the prisoner making no 
 motion to that effect, and it being known that the juror 
 was a witness for the prisoner. -(a) ^N'or that a challenge 
 of a juror by a party for cause has been improperly over- 
 ruled, where he has been tried by a jury to whom he had 
 no objection, not having been prevented from exercising 
 his privilege of challenging peremptorily.-'' iN'or that 
 jurors were set aside who were not objected to hy the 
 
 • Stainton v. Beadle, 4 T. R. 473. » Wliitaker v. Carter, 4 Ired. 4G1, 
 2 State V. Lytle, 5 Ired. 58. 
 
 (a) As to the right of challenge by the Commonwealth, see Hartzell 
 V. Cora., 40 Penn. 4G2. On the general subject of challenge, see State 
 V. Knight, 43 Maine, 11; Cancemi v. The People, IG N. Y. 501 ; Hatha- 
 way V. Ilclmcr, 25 Barb. 29; Thompson v. The People, 3 Park. 467 
 King V. The State, 21 Geo. 220 ; Mitchell v. The State, 22 ib. 211 
 Pines V. The State, 21 ib. 227; Jordan v. The State, 22 ib. 545 
 Marsh v. The State, 30 Miss. 627 ; People v. Backus, 5 Cal. 275 
 People V. Koble, 4 ib. 198; People v. Reyes, 5 ib. 347; People v 
 Roberts, 6 ib. 214; People v. Christie, 2 Parker, C. R. (N. Y.) 579 
 People V. Cauiff, 2 Parker, 586 ; Zimmerly v. Road Commissioners, 25 
 Penn. 134; Cook v. State, 4 Zabr. 843; McFadden v. Commonwealth, 
 23 Peun. 12 ; Schumaker v. State, 5 Wis. 324 ; O'Byrne v. State, 29 
 Geo. 36 ; Scborn v. AVilliams, 6 Jones, 575 ; State v. Buckner, 25 Mis. 
 167 ; Cleveland, &c. v. Stanley, 7 Ohio (N. S.). 155 ; McGuffie v. State, 
 17 Geo. 497 ; Brister v. State, 26 Ala. 107 ; U. S. v. Shackleford, 18 
 How. 588; Vanhook v. State, 12 Tex. 252 ; Schoeffler v. The State, 3 
 Wis. 823 ; State v. Patrick, 3 Jones, 443; Keener v. State, 18 Geo. 194; 
 
 State V. Price, 10 Rich. 351 ; State v. Pierce, 8 Clarke, 231 ; v. 
 
 Wilson, ib. 407 ; v. Shelledy, ib. 477 ; Conkcy v. Northern, &c., 6 
 
 Wis. 477 ; State v. Boatwright, 10 Rich. 407 ; State v. Hays, 23 Mis. 
 287 ; Walston v. Com., 16 B. Mon. 15 ; Spencer v. De Fruuce, 3 Iowa, 
 216.
 
 CII. IX.] JURY. IRREGULARITIES, ETC. 157 
 
 prisoner, altliough the number of clmllenges to -wliicli he 
 Avas entitled was not exhausted.' ISTor tliat, where a jury- 
 man was rejected, and the sheriff' ordered to obtain a sub- 
 stitute, the prevailing l^arty pointed out a person to the 
 sheriff' who summoned him ; as it appeared that the fact 
 had no influence on the sheriff' in the selection, and it did 
 not appear that the defendant intended to influence him 
 improperly.^ 
 
 § 8. A verdict implies the agreement{(i) of all the jurors 
 by whom it is found. The absence of such agreement 
 therefore is held ground for setting aside a verdict, though 
 in form unanimous. And the same objection may involve 
 misbehavior on the part of the jury, which is itself an in- 
 dependent ground of new trial. As where the plaintiff' 
 claimed on two distinct grounds, either of which, if found 
 in his favor, would entitle him to a verdict, and it ap- 
 peared that the jury did not consider and decide on either 
 ground separately, but that some might have decided on 
 one, and some on the other.^ So a new trial was ordered, 
 where the jury told the officer they had agreed, and 
 thereupon separated, and talked of the case in a bar-room ; 
 and, the next morning, returned to the court a paper 
 signed by all of them, and stating that they did not 
 agree ; and were then sent out again, and returned a ver- 
 
 ' The State v. Wise, 7 Rich. 412. » Bitrgs v. Barry, 3 Curtis, C. C. 
 2 Park V. Harrison, 8 Humph. 209; tucker w. The Town, &c., 5 
 412. R. I. 561. 
 
 (a) " A verdict, as the name imports {veredictum), is taken, in theory 
 of law, to be absolute truth, and it is important that it be so regarded." 
 Per Shaw, C. J., Cook v. Castner, 9 Cush. 78. " The record of a ver- 
 dict implies an unanimous consent of the jury, and is conclusive and in- 
 controvertible evidence of the fact." Per Sewall, J., Grinnell ?-. Phillips, 
 1 Mass. 541. The affidavit of a juror is inadmissible, that he was sick 
 ■while in the jury-room, and assented to the verdict in order to obtain 
 release, although believing it erroneous. So the affidavits of three other 
 jurors, that, having a like belief, they assented in order to relieve the sick 
 juror. Browne v. Browne, 22 Md. 103.
 
 158 THE LAW OF NEW TRIALS. [CII. IX. 
 
 dict.\''^) So, wliorc, on tlie trial of an indictment a^-ainst 
 two dcfondantf^, the jury coming into court, and intimat- 
 ing an intention to ac(|uit one of them, the court remarked, 
 that, if one was guilty, both were, and the State's attorney 
 therefore ordered the clerk to enter a verdict of guilty 
 against both, and the jury were asked if any of them dis- 
 agreed to such verdict, to which the only reply was a nod.^ 
 So cither party may demand a i)oll of the jury, and if, 
 thereu}>on, a juror, even after signing the verdict, states 
 his dissent; the court cannot properly do anything to 
 overcome such dissent.^ 
 
 § 9. The general rule, which we shall hereafter (chap. 
 10) consider more particularly, tliat the affidavit of a juror 
 is not admissible to prove his own misconduct, has been 
 applied to the point of agreement. Thus a juror cannot 
 be allowed to impeach his verdict, by declaring that he 
 did not agree with, but submitted to the rest.^ So the 
 affidavit of a juryman, that he would not have agreed to 
 the answers given by the foreman to the court, if he had 
 known that they would have entitled the plaintiff to a 
 verdict, was held, if admissible, no ground for disturbing 
 the verdict.^ !N^or is it a ground of objection to the ver- 
 dict in a capital case, that, immediately after it was pub- 
 blished by the clerk, a motion was made by the prisoner's 
 counsel to have the jury polled, which motion was re- 
 fused; the court having no doubt respecting the concur- 
 
 ' Oliver v. Springfield, 5 Cow. * i\rorcer ». State, 17 Geo. 14G. 
 
 2^3. ^ Hiipluiol V. Bank, &c., 33 Eng. 
 
 2 The State v. Shule, 10 Ired. 153. Law ct Eq. 276. 
 
 3 Slate V. Austin, 6 Wis. 20.5. 
 
 (a) But even in a case of murder, whore the jury agreed to return a 
 verdict of not guilty, but, if the judge were dissatisfied, to change it into 
 a verdictof guilty ; the facts being disclosed by two jurors, the jury were 
 sent out again, and returned a verdict of guilty. Wats v. Brains, Cro. 
 Eliz. 778. Sec Bealc i'. Hall, 22 Geo. 431.
 
 Cir. IX.] JURY. IRREGULARITIES, ETC. 159 
 
 rence of tlio jury.^ Kor that some of tlic jurors agreed 
 to tlie verdict, because they erroneously believed that the 
 plaiutitf could review the cause.- Nor that the jury 
 agreed that a majority should decide the case, and were 
 at first equally divided, and then one changed his vote, 
 and gave the verdict to the prevailing party.^ Xor upon 
 the affidavits of some of the jurors, that, if they had 
 recollected certain items of the plaintift"'s claim, and in- 
 cluded them in their estimate, they should not have agreed 
 upon their verdict; especially, if other jurors give a 
 different account of the manner in which the jury came 
 to their conclusion. ^(a) 
 
 § 9a. If a juror, on being asked, " Is this your verdict ?" 
 says, " It is, as far as it goes ;" this is an assent.^ 
 
 § 10. After returning a sealed verdict, as allowed by 
 law, for the plaintiff, but unsigned, the jury by consent 
 were sent out to sign it, and reported that they could not 
 agree. A verdict being valid though not signed, held, 
 the plaintiff had not waived his right to judgment.^ So 
 the jury were instructed to bring in a sealed verdict the 
 next morning. Having found their verdict, they sealed 
 it up, and gave it to the officer in attendance, who handed 
 it to the clerk the same evening. The clerk opened it in 
 court the next morning in the presence of the jury, who, 
 however, were not then asked whether they agreed to the 
 verdict ; but no objection was taken at the time. Held, 
 the verdict should stand.'' 
 
 ' The State D.Wise, 7 Rich. 412. '» Newton v. Booth, 13 Verm. 
 
 See Beale v. Hall, 23 Geo. 4-51. 320. 
 
 2 Nevvtou V. Booth, 13 Verm. ^ Rankin v. Harper, 23 Mis. 579. 
 320. 6 Miller v. .ALihou, G Clarke, 456. 
 
 3 McCarty v. McCarty, 4 Rich. ? Paige v. O'Neal, 12 Cal. 483. 
 594, 
 
 (a) It is error to strike from the affidavits of jurors, that their verdict 
 was obtained by each juror's marking down the sum desired by him, and 
 adding all together, and dividing the amount by twelve. IJendrioksou 
 V. Kingsbury, 21 Iowa, 379.
 
 IGO THE LAW OP NEW TRIALS. [CII. IX. 
 
 § 11. The agreement, necessary to a valid verdict, must 
 be that of the number of jurymen fixed by law. "A legal 
 jury, according to the common law, consists of twelve per- 
 sons."^ And the refusal to give a trial of fact by a jury 
 of twelve men, instead of six, is the denial of a constitu- 
 tional right, and ground for a new trial.^ So the trial of 
 a case before eleven jurors; unless the party, knowing the 
 defect, waived it. It is a duty of the court to see that 
 the jury is properly constituted, and the question to a 
 party, whether he has any objection to the jury, means, 
 whether he has any challenge to make ; his answer in the 
 negative, without notice, is not an express waiver of the 
 above-named defect.-\rt) 
 
 § 12. As necessary to fulfil the requisition of agreement^ 
 a verdict should be the result of the deliberate judgment 
 of the jury, and not of chance or hazard;'* as where, in 
 the old cases, the jury threw up cross or pile to determine 
 the amount of damages,® or hustled halfpence in a hat,® 
 or drew lots, although the verdict was right.^ So, in order 
 to settle a term of imprisonment, the jury agreed that each 
 should set down what he thought right, that these amounts 
 should be added together, divided by twelve, and the quo- 
 tient, whatever it might ])c, adopted. Held ground for a 
 new trial, though it would have been otherwise, if the 
 
 ' Cancemi v. The People, 18 N. * Doniier v. Palmer, 23 Cal. 40. 
 
 Y. (4 Smith) 135 ; per Strong, J. ^ Mellish v. Arnold, Bunb. 51. 
 
 2 May V. Mil. & Miss., tic., 3 ^ Parr «. Seames, Barnes, 438. 
 Wis. 219. See Turns v. Com., 6 ^ Hale v. Cove, 1 Str. 642; Ru- 
 Met. 224; Foote v. Lawrence, 1 ble «. McDonald, 7 Clarke, !)0; El- 
 Stew. 483. ledge v. Todd, 1 IIumi)li. 43; Par- 
 
 3 Cowles V. Buckman, G Clarke, han v. Ilarnev, G Sm. & M. 55 ; 
 161. Bennett v. Baker, 1 Humph. 399. 
 
 (a) An agreement placed on record, "that the verdict of the majority 
 of the jury shall l)c made the judgment of this court," is not a submission 
 to arbitrators, whose award should be final, but an agreement, to facilitate 
 a verdict, that the verdict by the majority should be entitled to the same 
 judgment as if the twelve jurors had concurred in it. Northern Bank v. 
 Buford, 1 Duv. 335.
 
 en. IX.] JURY. IRREGULARITIES, ETC. 161 
 
 agreement had been to accept such amount, " if satisfac- 
 tory," or if such figuring were by way of experiment.^ 
 So, where each juror put down a certain sum for dam- 
 ages and the aggregate was divided by twelve.^(a) So, 
 in an action for breach of promise, an instruction, that, if 
 the jury believed the plaintifl' ought to recover, but dis- 
 agreed as to the amount, " they have the right, each one, 
 to set down the sum he believes ought to be recovered by 
 the plaintiff, and add thoni all together, then divide the 
 sum total by the number twelve, and find that amount, 
 twelfth part, in damages, if they think proper to do so," 
 is erroneous.^ And, contrary to the prevailing rule, this 
 irregularity has been sometimes proved by afiidavits of 
 the jurors.^ So also by the testimony of the constable that 
 he overheard the agreement; and also that the jurors ad- 
 mitted it to him (though this was held doubtful).^ 
 
 § 13. But on the other hand it is held that a new trial 
 will not be granted, where the method of lot or chance 
 "is adopted merely for the sake of arriving at a reason- 
 able measure of damages, without binding the jurors by 
 the result."^ A compromise verdict is not necessarily 
 illegal.^ And a middle sum, especially in torts, may 
 sometimes be the best rule.^ As where there was first a 
 
 ' Crabtree v. State, 3 Sneed, 302; * Warner v. Robinson, 1 Eoot, 
 
 Birchard v. Booth, 4 Wis. 67; Den- 194. 
 
 ton V. Lewis, lil Iowa, 301. ^ Smith v. Cheetham, 3 Caines, 
 
 2 Smith V. Cheetham, 3 Caines, 57. 
 57 ; Roberts v. Failis, 1 Cow. 238 ; '^ Dana v. Tucker, 4 John. 487 ; 
 Harvey «. Rickett, 15 John. 87; Guard «. Risk, 11 Ind. 150; Chan- 
 Warner V. Robinson, 1 Root, 194 ; dler v. Barker, 2 HarriuJ,^ 587 ; 
 Manix v. Malony, 7 Clarke, 81 ; Johnson v. Perry, 2 Humph. 569. 
 Schaulcr v. Porter, ib. 482. See " I larrisou & McGehee ». Powell, 
 Dunn V. Hall, 8 Blackf. 32. 24 Geo. 530. 
 
 * Allard v. Smith, 2 Met. Ky. ** Cowperthwaite v- Jones, 2 
 
 297. Dall. 55. 
 
 [a) Such S, verdict is not a chance verdict within the second subdivi- 
 sion of § 193 of the (Cal.) practice act, and cannot therefore be im- 
 peached by the affidavits of jurors. Turner v. Tuolumne, 25 Cal. 397 ; 
 Boyce v. California, ib. 460. 
 11
 
 162 THE LAW OF NEW TRIALS. [CIL IX. 
 
 sum named by each juror, and a subsequent agreement to 
 adoi)t the result as the verdict.^ (In this case ten jurors 
 named a sum ; as proved by one of the two others.) So 
 where some thought the amount too high, but for the 
 sake of being released yielded to the majority .^ (Affida- 
 vits were received in this case.) So where each juror 
 marked a sum, and the aggregate was divided by twelve, 
 but this sum was not agreed to. Another marking and 
 division were had, which were unsatisfactory, and it was 
 at length determined to adopt the previous result, with a 
 certain deduction.^ So where jurors, concurring in the 
 guilt of the prisoner, severally set down the time for 
 which they thought he should be confined in the peniten- 
 tiary, and the aggregate was divided by twelve; after 
 which they all concurred in it as their verdict.^a) 
 
 § 14. It has been sometimes held that a new trial will 
 not be granted for the incompetency of a juror.\(^) Nor 
 
 1 Barton v. Holmes, 16 lo-wa, » Bircliard v. Booth, 4 Wis. 67. 
 253 ; Grinnell v. Phillips, 1 Mass. ^ Thompson's Case, 8 Gratt. G37. 
 541. 5 Booby ■«. The State, 4 Yerg. 
 
 2 Shobe V. Bell, 1 Band. 39. 111. 
 
 (a) A verdict first obtained by lot will be set aside, unless there is very 
 clear evidence of its repudiation, and of a subsequent proper finding. 
 Thom^json v. Perkins, 26 Iowa, 486. As where a jury agree to decide 
 by lot, and, in advance of the drawing, agree to be bound by the result; 
 though after the drawing all vote conformably, as a declaration of wil- 
 lingness to abide the result of the lot. Ibid. 
 
 (h) On the general subject of the qualifications of jurors, see Kirby's 
 
 case, 7 Leigh, 747; Com. v. Carter, 2 Va. Cas. 319; v. Moore, 9 
 
 Leigh, 639 ; v. Burcher, 2 Rob. 826 ; Briggs v. Georgia, 15 Verm. 
 
 61 ; Bratton v. Bryan, 1 A. H. Mar. 212 ; Finley v. Hayden, 3 ib. 330 ; 
 Ladd V. Prentice, 14 Conn. 109; Stephen's case, 4 Leigh, 679; Hen- 
 drick's case, 5 Leigh, 707; Byrd v. State, 1 How. 163; Anderson v. 
 State, 5 Pike, 444; State v. Bryant, 10 Ycrg. 527 ; Shoemaker v. State, 
 
 12 Ohio, 43 ; State v. Mussey, 2 Hill (S. C.) 379 ; v. Williams, ib. 
 
 381 ; People v. Fuller, 2 Park. 16 ; Carpenter v. Dame, 10 Ind. 125. 
 In Mississippi a defendant cannot, after conviction, insist upon a new 
 trial, on account of the incompetency of a juror, and of his own igno-
 
 CII. IX.] JURY. IRREGULARITIES, ETC. 163 
 
 for the rejection, from the panel, of a juror, supposed to 
 be competent; a new trial in such case not furnisliing any 
 remedy.^ So, if the jury be irregularly sworn by the 
 inadvertence of both parties, and a verdict taken against 
 two, one of whom had not appeared, the court will correct 
 the irregularity without ordering a new trial, where it 
 can do so consistently with the merits.^ 
 
 § 15. The distinction is made, that, " if the objection 
 goes to the moral capacity or impartiality of the juror, or 
 to any matter which goes to impeach the fairness or im- 
 partiality of the verdict, if not discovered until after the 
 verdict, it would, no doubt, be as good a ground for a new 
 trial, as a cause of challenge before. But when the objec- 
 tion rests upon technical ground, as the want of property, 
 alienage, or the like, we cannot admit that the rule ap- 
 plies."^ So a distinction is taken between the cases, 
 where objection is made to the personal q^ualifications of 
 a juror, as that he was not liher et legalis homo, or drawn 
 from a wrong vicinage ; and where there is a mere irregu- 
 larity in his return, as that he was drawn more than the 
 legal time before the sitting of the court. In the latter 
 case, although the officer may be punishable, or the jury- 
 man dismissed, a new trial will not be granted.*(a) In 
 this case, also, which was an alleged irregularity in the 
 
 ' West V. Forrest, 22 Mis. 344. ^ Per Marshall, C. J., Queen, &c. 
 
 2 Haas V. Evans, 5 Watts & Serg. v. Hepburn, 7 Crancli, 297. 
 352. See p. 165. ♦ Amherst v. Hadley, 1 Pick. 38. 
 
 ranee of such incompetency at the time of the trial. George v. State, 
 39 Miss. 570. An order, granting a new trial for incompetency of a juror, 
 will not be reversed, although the juror was competent, if the motion 
 was heard, in part, upon " minutes of the judge," and the " minutes" are 
 not made part of the record. Bowea v. Malbon, 20 Wis. 491. 
 
 (a) In New Jersey, in cases where a venire should be " as well " to 
 assess damages, as to try an issue, if the award of the venire is right, it 
 is no ground for a new trial, that the venire is in the common form, with- 
 out the introduction of the tarn quam clause. Caldwell v. West, 1 New 
 Jersey, 411.
 
 164 THE LAW OF NEW TRIALS. [CH. IX. 
 
 election of jui-ors from a certain town in the county, tlie 
 distinction is taken, between an informality of this nature, 
 not apparently affecting the merits, and the objection of 
 interest or prejudice in a juror. It is remarked that a 
 contrary rule would furnish a dangerous temptation to 
 send through the towns of the county, in order to get rid 
 of an honest verdict ui)on technical grounds. 
 
 § 16. And a verdict will not be set aside, merely on the 
 ground that some of the jurors were irregularly selected, 
 although the party did not know of such iiTegularity 
 before the verdict.^ ISTor because a juror was a person by 
 law exempted from that service; as where a statute pro- 
 vided that "ordained ministers arc exempted from serv- 
 ing on juries, and their name shall not be placed on said 
 list of jurors." The court took a distinction between 
 exemption and disqualification. A person disqualified, and 
 therefore incompetent and incapable, cannot be exempted 
 from a duty or a service, when the law imposes no such 
 duty or service upon him. Such an exemption is a per- 
 sonal privilege, with which the parties to the cause have 
 no concern.^ So, where, after issuing of venires for the 
 county of II., the town of G. was set off from H., and 
 annexed to P., but a juror belonged to G. ; and no chal- 
 lenge was made for this cause : held, the objection was 
 waived.^ So the relationship of the sheriff, who sum- 
 moned the jury, to a party, is ground of challenge to the 
 array; but the objection cannot be raised as ground for a 
 new trial, unless good excuse is shown for not taking it 
 before.^(a) 
 
 ' Paije V. Danvers, 7 Met. 326. ^ ]vjt. Desert ■». Cranberry, &c., 
 See p. 108. 46 Maine, 411. 
 
 2 State V. Forslmer, 43 N. H. 89, « Rector v. Hudson, 30 Tex. 234. 
 90, 91 ; Breeding v. State, 11 Tex. 
 257. 
 
 (a) In California, under the act concerning jurors (| 1 Sts. of 1852, 
 p. 7), a juror, who is not an elector of the county for which he is sum 
 moued, is incompetent. Sampson v. Schaffer, 3 Cal. 107. He cannot be
 
 CH. IX.] JURY. IRREGULARITIES, ETC. 165 
 
 § 17. It is held ground of new trial, tliat the jury were 
 not sworn, or not in proper form.^ Thus it is held that a 
 jury may not be sworn to try the issue, till issue be made 
 by replying to good pleas in bar.^ But a new trial will 
 not be granted, because the oath of the jury was slightly 
 informal.^ Thus it is not necessary, in an action of trover, 
 to swear the jury "to try the issue and the damages to 
 assess ;" it is sufficient if they are sworn " to try the issue 
 joined."^ And a record may be substantially good, stating 
 that the jury were sworn, but not for what ; the presump- 
 tion being, that they took the proper oath.^(a) 
 
 ' Irwin ». Jones, 1 How. (Miss.) ' Earl v. Van Buren, 2 Halst. 
 
 497 ; Beall v. Campbell, ib. 24 ; 344 ; State v. Jones, 5 Ala. 66G ; 
 
 Harriman v. State, 3 Greene, 270 ; State v. Pile, 5 Ala. 72 ; Dyson v. 
 
 Patterson v. State, 2 Eng. 59 ; Bell State, 4 Cusbm. 362 ; U. S. v. Reed, 
 
 V. State, 5 ib. 536 ; Sandford v. 2 Blatch. 435 ; Dillingham v. Skein, 
 
 State, 6 ib. 328 ; State v. Rollins, 2 1 Hemp. 181. 
 
 Fost. 528. See McGuire v. State, » Vaden v. Ellis, 18 Ark. 355. 
 
 1 Ala. S. C. 69; p. 163. ^ Dillingham v. Skein, 1 Hemp. 
 
 2 Miles V. Rose, 1 Hemp. 37. 181. 
 
 an elector unless he is a resident; residence depends upon an intentio*' 
 
 as well as fact, and mere inhabitancy for a short period, wit>' 
 
 , _v^ as TO con- 
 intention of acquiring a domicile, does not make a resuY" . . , 
 
 stitute an elector. People v. Peralta, 4 Cal. 1"'', , , ~ ^ „„^„ 
 
 '■ , , ..uen been absent tor some 
 
 has resided in the county fourteen days. "' „ , . , -j •„ +i,^ 
 
 •^ , , . ,.iaon of returnmg to reside m the 
 
 months from the State, with the ';, . /• ^ j ■ 
 
 ^oide therein some fourteen days, is a com- 
 county, and^didreturn^ai-^^^^.^^^ ^^^^ ^.^ ^^^^ residence, and not from 
 pe en jurorj^is^ijP"^^ Stonecifer, 6 Cal. 405. In Indiana, that a juror 
 • ^. ^ Householder is a good cause for challenge. Lafayette, &c. v. 
 ilew Albany, &c., 13 Ind. 90. In Florida, the incompetency of a juror 
 because not a householder, or because he had not resided in the county 
 more than three months, is no ground for new trial. Such objections 
 should be taken before the juror is sworn. State v. Madoil, 12 Fla. 151. 
 Mere tenants and occupants, by yearly letting, of rooms used as sleeping 
 apartments, are not freeholders or householders within the meaning of 
 the statutes of Alabama, so as to be qualified to act as jurors. Aaron 
 V. State, 1 Ala. (S. C.) 12. See p. 167. 
 
 (a) An affidavit that one juror was not sworn must aver that the 
 counsel was ignorant thereof at the trial. Powell v. Haley, 28 Tex. 52. 
 And such averment as to one of the counsel is insufficient, there beiug
 
 166 THE LAW OF NEW TRIALS. [CII. IX. 
 
 § 18. iSTotwitlistanding the instances above referred to, 
 in which slight informalities have been disregarded ; as 
 the general rule, it is laid down, that, to support a judg- 
 ment, it must be founded upon a verdict delivered by 
 twelve competent jurors^ otherwise there is a mistrial.^ So, 
 wherever the objection to a juror would be good cause of 
 challenge for favor, on an indictment for murder, if dis- 
 covered in time, it will be ground for a new trial, if not 
 discovered till after verdict.^ And upon a motion for a 
 new trial, on the ground that a prejudiced juror was 
 called to fill up the panel, after the right of challenge had 
 been exhausted by the defendants ; it was held that the 
 risfht of challensce for cause could not be exhausted.^ 
 
 § 19. Ignorance, on the part of the freeholders of a 
 magistrate's court, of the fact that a certain statute ap- 
 plicable to the case was still in force, is sufiicient ground 
 for a new trial in a capital case.* Or the incompetency 
 of a juror, from mental or bodily disease, to perform his 
 duties intelligently, if not known to the parties or the 
 co^.<. dQpi^o; the trial.^ Or the fact that a iuror did not 
 
 '_PorITolroyd,.j., ^;^ rj,j.g. , ^^^^^ ^_ Nicholas, 2 Strobli. 
 
 maino, i Ijow. ()o4. ^ ^,^0 
 
 2 Moaroe «. Georgia, 5 Geo. c. ""5 Hogsliead v. State, 6 Humph. 
 
 3 Alexanders. Dunn, 5 Ind. 133. uv ° > t- 
 
 nothing to show that the applicant and his other couu. , ^^^^ ignorant 
 of the fact. Scott v. Moore, 41 Vt. 205. In reference to lu. oncient 
 practice, still retained in some States, and rarely in terms abolisheu, v,c 
 determining the competency of jurors hy triers ; see Epps v. State, 19 
 Geo. 102; People v. Dewick, 2 Park. 230. Triers, appointed for a juror 
 challenged for favor, are to decide whether the juror is indifferent. The 
 court should not instruct them how they are to find. People v. McMahon, 
 2 Park. 633. 
 
 Causes of disqualification are often expressly enumerated in the statute 
 law. But such enumeration is held not to supersede other causes not 
 mentioned. State v. Marshal, 1 Ala. 302. 
 
 As to objections arising from the drawing of the jury, see U. S. v. 
 Stowell, 2 Cui't. 153 ; People v. Thurston, 2 Park. 49.
 
 en. IX.] JURY. IRREGULARITIES, ETC. 167 
 
 understand tlie English language ;i unless waived by 
 neglect.^ 
 
 § 20. Where a statute of the State provided that no 
 juror should be over sixty -five years of age; it was held 
 that even consent of the parties would be no waiver of an 
 objection on this ground.^ So it is held that this objec- 
 tion may be made after the statutory questions have been 
 put; at least, where no injury results to the State there- 
 from.^ But on the other hand a statute, requiring the 
 jury list to be composed of persons under sixty, was con- 
 strued merely to create a personal exemption, and not to 
 furnish ground of objection by the partie3.X«) 
 
 § 21. In Vermont, a want of freehold qualification in 
 one of the jurors is ground for a new trial, if the fact 
 was not known at the trial.^(6) 
 
 § 22. It is sometimes held ground of new trial, that a 
 juror was an alien.'' In general, the point must be held 
 to depend upon the statute laws of each State,(c) And 
 there are numerous cases in which such incompetency is 
 not recognized.*((i) 
 
 ' Lafayette, &c. v. New Albany, ^ Sduimaker ». Tlie State, 5 Wis. 
 
 &c., 13 ind. 90. 334; Borst v. Beecher, 6 John. 
 
 2 Boeti,^e V. Landa, 22 Tex. 105. 332 ; Guykowski v. The People, 1 
 
 3 Sutton V. Petty, 2 South. 504. Scam. 476. 
 
 ■« Thomas v. The State, 27 Geo. * Hollingswortli v. Duane, 4 
 
 287. Dall. 353. See Com. v. Cherry, 2 
 
 5 Breeding «. The State, 11 Tex. Virg. Cas. 20 ; Boyiugton v. The 
 257. State, 2 Port. 100 ; Com. v. Smith, 
 
 6 Briggs V. Georgia, 15 Verm. Gl. 9 Mass. 107. 
 See p. 1G5. 
 
 (a) The court, being satisfied by inspection that a juror is drun'k,&viA. 
 the prisoner's counsel not disputing it, may set him aside for cause. 
 Thomas v. State, 27 Geo. 287. 
 
 {h) As to the constitutional privilege of having a jury from the county, 
 see Shaffer v. State, 1 How. Miss. 238. 
 
 (c) In Illinois, the disqualification applies only in capital cases. 
 Greenup v. Stoker, 3 Gilm. 202. 
 
 (d) A defendant, having been convicted of conspiracy, moved for a 
 new trial, upon an affidavit that a special juror who served on the trial
 
 1G8 THE LAW OF NEW TRIALS. [CIL IX. 
 
 § 23. A frequent ground of application for a new trial 
 relates to the mode of summoning or impanelling jurors.^ 
 It is held that the statutes for selecting, drawing, and 
 summoning jurors form no part of a system to procure 
 an impartial jury to parties.^ And the formation of the 
 jury that is to try a cause is under the direction and 
 within the discretion of the presiding judge.' Thus it 
 lies in the sound discretion of the court, to permit a por- 
 tion of a jury to disperse before completing the panel.^a) 
 
 § 24. It has heen held ground of new trial, that the 
 juiy was summoned by an interested person or by a 
 Avrong officer.'' But, on the other hand, applications for 
 a new trial, founded on this class of objections, have been 
 often refused. The question usually turns upon minute 
 points of form, or the construction of local statutes.^(6) 
 Tims, that the jury was drawn by an officer without 
 
 ' Seep. 104; Jennings ». Aster, States. IMonk, 3 Ala. 415; Baylis 
 
 5 Duer, 695; Strauglian v. The «. Lucas, Cowp. 112 ; Boon «. the 
 State, 16 Ark. 37; State v. Cole, State, 1 Kelly, 361; AVoods v. 
 9 Humph. 626. Rowan, 5 John. 133 ; IMunshower 
 
 2 Rafe V. State, 20 Geo. 60. v. Patton, 10 S. & R. 334; Vanan- 
 
 2 Walker v. Kennison, 34 N. II. ken v. Beemer, 1 South. 364. 
 257. ^ See State v. Gillick, 7 Clarke, 
 
 1 Frances v. State, 6 Flori. 300. 287 ; State v. Pierce, ib. 231. 
 5 Hugg v. Rille, 2 Halst. 435 ; 
 
 was an alien, and that the fact was not known to him till after the trial ; 
 but liic court refused to set aside the verdict. Lord Tenterden, C. J., 
 remarked that he was not aware that a new trial had ever been granted, 
 on the ground that the juror was liable to be challenged, if the party 
 had an opportunity of making his challenge. The King v. Sutton, 8 B. 
 
 6 C. 417. 
 
 (o) A culpable irregularity in impauolling a jury, which has resulted 
 in no injury or prejudice to the prisoner, is not ground for a new trial, after 
 conviction of murder in the first degree. Ferris v. People, 35 N. Y. 
 125. 
 
 (6) The selection of jurors was held no ground of new trial, in a late 
 capital case in England. Mansell v. Queen, 8 Ell. <fe B. 54. In some of 
 the States, informalities of this kind arc expressly cured by statute. 
 Statutes of this natnre exist in Massachusetts, Wisconsin, and Arkansas. 
 Sec Wis. Rev. Sts. c. 27, § 29 ; Ark. L., c. 126, ? 118. In Mississippi, if 
 the name of any person already returned be omitted in the annual list,
 
 CH. IX.] JURY. IRREGULARITIES, ETC. 169 
 
 authority, or by an interested person, has been held no 
 ground of new triah^ Nor improper interference in the 
 selection of jurors.^ Or that the names of jurors were 
 draicn from a hat.^ 
 
 § 25. Any irregularity on the part of officers is held 
 insufficient ground of new trial, unless productive of some 
 injury; and more especially unless the objection be taken 
 seasonably.^ 
 
 1 "Wakeman v. Spraj^ue, 7 Cow. U. S. v. Gilbert, 2 Snmn. 19 ; 
 720; Hart v. Tallmad2;e, 2 Day, People v. Ransom, 7 "Wend. 417; 
 381 ; Prince v. State, 3 St. & P. State v. Hascell. 4 N. H. 352 ; Com. 
 253. V. jSTorfolk, 5 Mass. 435 ; Enos v. 
 
 2 Qninehang:, &c. v. Tarbox, 20 Dayharsh, 1 Seld. 531 ; State v. 
 Conn. 510. Lvtle, 5 Ired. 58 ; v. Benton, 
 
 3 Birchard v. Booth, 4 Wis. 67. 2 Dev. & B. 196. But see State v. 
 * Com. V. Roby, 12 Pick. 496 ; Powell, 2 Halst. 244. 
 
 or the name of an improper person be returned in the annual list, or the 
 assessor should wholly fail to return an annual list, as required by law, 
 it will not vitiate the list of jurors, provided they are regularly drawn 
 from the box number one. Sumrall v. State, 29 Miss. 202. The time 
 provided by the statute, in California, in which a jury shall be returned 
 by the sheriff, is directory, and not mandatory. Mowry v. Starbuck, 4 
 Cal. 274. In California, no regular panel having been drawn and sum- 
 moned, the court ordered thirty-six jurors to be summoned, which was 
 done, and, twenty-seven of them appearing, the court caused their names 
 to be placed in a box, of which twelve were drawn to constitute a trial 
 jury. The defendant challenged the whole panel, but the court over- 
 ruled the challenge, and the defendant excepted. Held, that the excep- 
 tion was not well taken, for by I 16, p. 355, Compiled Laws, full power 
 is conferred upon the court to enter such an order as was entered in this 
 case. People v. Stuart, 4 Cal. 218. In Georgia, a person belonging to 
 the grand jury list of a county, who has not been sworn on the grand 
 jury of the term of the court at which a trial takes place, is not disquali- 
 fied from serving on the jury to try offenders. Rafe v. State, 20 Geo. 60. 
 Sec. 34 of the 14th division of the penal code has no reference to the 
 mode of selecting, drawing, and summoning jurors, but refers to the act 
 charged as an offence. lb. In New York, where a venire was issued by 
 a justice of the peace on the demand of the defendant, out of court and 
 in the absence of the plaintiff, and was delivered to the constable with- 
 out the knowledge of the plaintiff, and before he had any notice of the 
 application; the justice was held to be right in setting aside the panel, 
 and issuing a new venire. Rice v. Buchanan, -11 Barb. 147.
 
 170 THE LAW OF NEW TRIALS. [CH. IX. 
 
 § 20. It lias been sometimes held, that a new trial might 
 be ordered on the ground of some mistake as to the name 
 of a member of the jury by whom the cause was tried. 
 As, in the English practice, in case of variance between 
 the name of a juror in i\\Q venire facias and distringas ^qmH 
 in the return of the latter. Thus where Tumor was sub- 
 stituted for Taverner} So where the name returned was 
 Gregory^ and that in the distringas George W. And also 
 where the surname in the venire was 3Iizael, and that in 
 the distringas Michael.^ (These decisions seem to have 
 been predicated in part upon the ground that the remedy 
 by attaint is not applicable where such defect exists in the 
 jury.)3(ff) So one Richard Geater, summoned and returned 
 as a juror, did not attend, but one Richard Sheppard^ 
 verbally summoned on the crown side, did attend. Wlien 
 Geater was called, Sheppard, thinking himself called, 
 answered and was sworn, neither party being aware of 
 the mistake till after the trial. A verdict for the plain- 
 tiff was set aside, for the reason that by St. 3 Geo. 2 all 
 the jurors should be drawn from the box, but the name of 
 Sheppard was never put in.* So a new trial was ordered, 
 where one summoned on the jury failed to appear, but his 
 son, of the same name, not qualified, attended, and 
 answered for the father, and was sworn on the jury.° So 
 where the tales panel annexed to the record contained the 
 name of John Williams, which being called, a person 
 answered to it, and, being sworn, joined in the verdict. 
 
 • Fermor v. Dorrington, Cro. " Norman «. Beaumont, 1 Willes, 
 Eliz. 233. 434 ; Barnes, 453. 
 
 2 Cases cited in Cro. Eliz. 223. * Russell v. Ball, Barnes, 455. 
 
 3 Ilassett t). Payne, Cro. Eliz. 
 25G. 
 
 (a) In reference to the attendance of one person as a juror instead of 
 another who was summoned, see Russell v. Ball, Barnes, 455; King v. 
 Tremearne, 5 B. & C. 452. See, as to the construction of an act requir- 
 ing an addition to bo given to jurors, that it is merely directory ; Clark 
 V. Commonwealth, 29 Teuu. 121),
 
 CH. IX.] JURY. IRREGULARITIES, ETC. 171 
 
 After the trial it was discovered that the name of this 
 person was Richard Henry Williams, the son of John, 
 that he was but twenty years and six months old, that he 
 had not been summoned, and was not qualified in regard 
 to property, having no freehold or copyhold estate. It 
 appeared from his affidavit that his father had been sum- 
 moned, but, being ill, had requested his son to appear for 
 him, which he did, and, upon hearing his father's name 
 called, answered, went into the box and took the oath, 
 not knowing that there was any harm in so doing. There 
 was no collusion between the son and the prevailing party. 
 Held, there should be a new trial. ^ So where, in the 
 panel of the venire^ a juryman was wrongly named Palus 
 Cheal and in the distringas and|905^ea Paulus CAm^e, judg- 
 ment was arrested, an error in the venire being fatal.^ So, 
 just before the verdict was delivered in a special jury 
 cause, it was discovered that one of the special jurors im- 
 panelled had been summoned in another cause, and had 
 by mistake answered to a wrong name. The defendant 
 then objected to the verdict's being received, and there- 
 upon the judge oft'ered to discharge the jury and try the 
 cause over again. This, however, was not assented to, 
 and, the plaintifi' claiming to have the verdict taken, the 
 jury ultimately returned their verdict in favor of the 
 plaintiff. Held, a mistrial; and, as the defect had been 
 discovered and objected to before the verdict was given, 
 the court was bound to award a venire de novo.^ 
 
 § 27. A distinction has been sometimes made between 
 an error in the surname and one in the Christian name ; 
 it being held that a man can have but one name of bap- 
 tism, but may have two surnames.^ 
 
 § 28. In the return of the venire and the distringas a 
 
 r> ' p^!°^ '"• Tremaine, 7 Dow. & ^ Ashbiirnham i). Michael, 4 
 
 ,^1 ,„ r. En£j. Law & Eq. 244. 
 
 ^ Lodwell 8 Cas,c., 5 Co. 43. See ^"Displyn v. Sprat, Cro. Eliz. 57. 
 
 Cotton's Case, Cro. Ellz,. f>o8.
 
 172 THE LAW OF NEW TRIALS. [CII. IX. 
 
 juryman was named Samuel^ but in the panel annexed 
 and the administration of the oath Daniel. But it ap- 
 peared that lie was the person returned, that his name w^as 
 Samuel, that he was the only one in the parish of that 
 name, that the error was committed by the sheriiF's clerk 
 in copying the name from the distringas to the panel, and 
 that there was much noise in the court-room when the 
 juror was sworn, and he supposed himself to be called 
 Samuel. Held, the record should be amended.' So wdiere, 
 at the summer assizes for Newcastle, one Robert Curry, 
 who served upon the jury, answered to the name of Joseph 
 Curry in the sheriff's panel, and had been sworn by that 
 name; and it appeared that there was a person of the 
 latter name belonging to j^ewcastle but not then resi- 
 dent in the town or county ; but that Robert was qualified 
 to serve on juries, and had been summoned by the sheriff: 
 lield, this was a mere misnomer and cause of challenge, 
 which might have been immediately cured by changing 
 the panel, but after judgment it could not be assigned as 
 error, nor a fortiori be made ground for summary applica- 
 tion for new trial.^ So wdien the person actually serving 
 is the party whose name was taken from the freeholder's 
 book, and he stood as a juryman, and w^as returned in the 
 panel annexed to the venire., and was summoned and 
 attended both on a view and at the trial ; the verdict will 
 not be set aside for a mistake in the Christian name, more 
 especially if it be slight, as Henry for Harry. ^ So, in 
 INIississippi, a mistake, in the copy of the special venire 
 furnished the prisoner, in the Christian name of a juror, 
 made through inadvertence, and occasioning no injury, is 
 no ground for a new trial.^ And where the mistake was 
 in the surname, as where the person really intended for a 
 juror actually served, but was returned and named in the 
 
 ' Roe V. Devys, Cro. Car. 503. See also Roe v. Devys, r'^^. Car. 
 
 2 Case of a .Turyman, 13 E. 231. 5G3. 
 
 3 Wrey v. Thorn, Barucs, 454. ■• Browning ;- otate, 3d 3liss.4*.
 
 CH. IX.] JURY. IRREGULARITIES, ETC. 173 
 
 distress as Robert Moore, but in the panel and postea 
 Eobert 3Iawre; held, no ground for arrest of judgment. '(a) 
 
 § 29. If one successfully challenged upon the principal 
 panel is afterwards sworn as a talesman under another 
 name; this is ground of new trial, even though the ver- 
 dict be satisfactory to the judge.^ So where a special jury 
 was ordered, all of whom failed to attend, and the case 
 was tried by talesmen ; held there should be a new trial.^(6) 
 
 ' Countess of Rutland's Case, 5 McGuffie v. The State, 17 Geo. 497 
 
 Co. 42. State v. Lamon, 3 Hawks, IT-") 
 
 2 Parker v. Thornton, 2 Ld. Ray. Crawford v. Creagh, 1 Ahx. 593 
 1410. State v. Bennett, 14 La. An. G51 
 
 3 Drumgoold v. Home, 1 Hud. & Suttle v. Batie, 1 Clarke, 141. 
 Brooke, 412. See, as to talesmen, 
 
 (a) By St. 21 Jac. 1, " No judgment shall be stayed or arrested after 
 verdict, because any of the jury is misnamed, either in the surname or 
 addition in any of the jury process, or in any return thereupon, so as upon 
 examination it appears to be the same person who was meant to be re- 
 turned." As to amendment in cases of this nature, see Cotton's case, 
 Cro. Eliz. 258; Hugo v. Payne, Danv. Abr. 330; Floyd v. Bethell, ib. 
 331. Where, in the trial of a capital case, the scrolls had not the 
 Christian name written in full, but only the initials, no objection being 
 made when the scrolls were put in the hat ; held, no ground of challenge. 
 State V. Simmons, 6 Jones, 309. See State v. Stedman, 7 Port. 495. 
 
 (&) In Missouri, when the regular panel of jurors is exhausted, there 
 is no law requiring any particular number of talesmen to be summoned, 
 or requiring a list of them to be given to the defendant. State v. Buckner, 
 25 Mis. 167. In Indiana, where a cause was tried by a jury summoned 
 from among the bystanders, the regular panel having been discharged ; 
 held, such proceeding was authorized by the statute of 1852, and not- 
 withstanding the supplementary statute of 1853. Shaw v. Wood, 8 Ind. 
 518. In Georgia, the law does not require that the names of tales jurors 
 should be in the jury-box, or that they should have been qualified for 
 jurors at any time previous to the trial. McGufiie v. The State, 17 Geo. 
 497. Where an irregularity occurred in selecting a grand jury, and, on 
 motion of the prosecuting officer, they were discharged, and the sheriff 
 was directed to summon a grand jury of sixteen qualified persons from 
 the bystanders, which was done, and the sheriff summoned the same 
 jui'ors who had been previously summoned from the several counties, to 
 whose personal qualifications no exceptions were taken, and no objec-
 
 174 THE LAW OF NEW TRIALS. [CH. IX. 
 
 § 30. Eut, where two jurjnieu de talihus circumstantihiis 
 were returned to complete the panel for a case on trial, 
 and sworn to give a true verdict in all causes which should 
 be committed to them, and afterwards sat in another 
 cause without being returned and sworn anew ; but 
 no objection was made on this ground before verdict : 
 held, no cause for a new trial.^ So, where a talesman was 
 sworn on the jury after being struck ofi" the list of special 
 jurors; held, if the defendant, against whom a verdict 
 was rendered, had been guilty of inattention in failing 
 to object before the juror was sworn, he had "slipped his 
 time," the objection came too late, and a new trial should 
 not be granted.^ So it is no ground for new trial, that 
 two of the jurymen named in the panel of a special jury 
 were not summoned and failed to appear, and talesmen 
 w^ere sworn in their place; no fraud or collusion being 
 suggested.^ So in a capital case, although the original 
 venire ought to be first drawn and tendered : yet, if the 
 judge should, where there are only eleven of the original 
 panel, direct tales jurors to be drawn with them; the pri- 
 soner has no right to a venire de novo on this account, it 
 he has had an opportunity of accepting or rejecting all of 
 the original venire.^ 
 
 % 31. Before a jury is made up, incompetent jurors 
 
 ' Ilowland v. Gi|ford, 1 Pick. 43. ^ The King v. Hunt, 4 B. & Aid. 
 2 Jordan v. Meredith, 3 Yea. 318. 430. 
 
 » The State c. Lytle, 5 Ired. 58. 
 
 tions raised to the array during the proceedings ; held, no ground of error. 
 Jim V. Territory, 1 Wash. Ter. 76. In Kentucky, the summoning of by- 
 standers to serve as grand jurors, by a person specially commissioned by 
 the court, instead of by the sheriff or coroner, is "substantial error," and 
 an indictment found by a grand jury so summoned must be quashed. 
 The Code only permits petit jurors to be so summoned. Com. v. Graddy, 
 4 Met. (Ky.) 223.
 
 CII. IX.] JURY. IRREGULARITIES, ETC. 175 
 
 may be discharged on motion, and others sworn in their 
 places. '(a) 
 
 § 32. It is ground for a new trial, if one of the jurors, 
 before the trial, makes declarations which clearly indicate 
 that he is not above all exception, and that his oi)inion is 
 not a hypothetical one, dependent upon the whole proof, 
 but formed exclusively in reference to the evidence which 
 shall be adduced on the part of the prosecution.^ So, in 
 a criminal case, it is good cause of challenge to a petit 
 juror, by the State or the prisoner, that he had formed an 
 unqualified opinion, whether for or against the prisoner; 
 and there is no error in refusing to allow the juror to 
 state, in reply to a question, whether such opinion was for 
 or against the prisoner.^ So it is immaterial whence the 
 opinion is derived.* An opinion formed even from rumor, 
 so fixed as to require evidence to remove it, disqualifies a 
 juror.' So, in California, it is held to be the intention of 
 the legislature, to exclude from the jury box every one 
 who has formed an unqualified opinion, or, having formed 
 an opinion, has expressed it without qualification.^ As 
 
 ' United States v. Dickinson, 1 Com. v. Flanagan, 7 W. & S. 415; 
 
 Hemp. 1. See Stewart v. State, 1 Fouts «. The State, 7 Ohio, N.S. 471; 
 
 McCook, 06 ; Hines v. State, 8 Goodwin v. Blachley, 4 Ind. 438. 
 Humph. 597 ; Isaac v. State, ib. » State v. Shelledy, 8 Clarke, 477; 
 
 458 • Com. V. Hayden, 4 Gray, 18; People v. Williams, 6 Cal. 200. 
 Nolen V. State, 2 Head, 520 ; Wat- « State v. Gillick, 7 Clarke, 287. 
 son V. Walker, 33 N. H. 131. « Alfred v. State, 37 Miss. 296. 
 
 i Bishop V. The State, 9 Geo. 121; « people v. Cottle, 6 Cal. 227. 
 
 (a) Where one of the grand jury, which found the indictment, is a 
 member of the jury which is to try the prisoner, the prisoner, if he is 
 guilty of no laches in making the discovery, may object to the juror at 
 any time before the evidence is introduced, and it seems, also, the court 
 may discharge him at any time before the verdict is rendered. And the 
 propriety of examining the juror, or taking his statements, on his voir 
 dire, is, to say the least, doubtful. Dilworth v. Commonwealth, 12 Gratt. 
 689. In Virginia, after the panel of twenty-four had been selected, the 
 prisoner struck out eight, and the court held it immaterial whether four 
 more were struck off by lot, or twelve were selected by lot to serve. 
 Bristow's case, 15 Gratt. 634.
 
 176 THE LAW OF NEW TRIALS. [CU. IX. 
 
 where a juror, in a trial for murder, stated on his voir dire, 
 that he had expressed an opinion as to the guilt or inno- 
 cence of the prisoner, and that such opinion, when ex- 
 pressed, was without qualification.^ So where the testi- 
 mony of a juror was, that he had formed and expressed 
 an opinion, but that he had no fixed opinion, none which 
 could not bo removed by the evidence.^ So a new trial 
 must be granted, where the foreman had said that the 
 plaintiff" should never have a verdict, whatever witnesses 
 he produced.3 Or where a juror declared, after he was 
 summoned and before the trial, that, if he should be of 
 the jury, he did not think he could clear the accused, but 
 would bo bound to find him guilty.' Or where a juror is 
 shown to have held, before the last trial, a long conversa- 
 tion about the case, and to have repeatedly expressed 
 decided opinions adverse to the losing party, unknown 
 to him.= Or where a juror had formed and expressed a 
 decided opinion adverse to the defendant, and the fact 
 was not known to the party or his counsel, after the exer- 
 cise of proper diligence, by questioning the juror before 
 he was sworn.<'(a) So, where a juror, at different times 
 before the trial of a prisoner for murder, said he be- 
 lieved the prisoner " would be hung," that he ought to 
 be hung, that nothing could save him, that salt could not 
 save him, and that there was no law to clear him ; and 
 subsequently went to the jail and told him that he ought 
 not to be hung, and, if he were on the jury, he should not 
 
 1 People V. Williams, 6 Cal. 20G; * Cody v. The State, 3 How. 
 People 0. Cottle, ib. 227. Miss. 27. 
 
 2 Cancemi v. People, IG N. Y. (2 ^ Wiggin v. Plumcr, 11 Post. 251. 
 Smith) 501. ^ Veimum v. Ilarwood, 1 Gilm. 
 
 3 Dent V. Hertford, 2 Salk. 645. 659. 
 
 («) Oil the trial of an indictment, one of the venire stated on the voir 
 dire, that " he had formed an opinion from having conversed with the 
 defendant, but that he felt himself then in a state of mind to do justice 
 between the parties." Held, no ground fur a new trial, that the court 
 ordered him to staud aside. Stover v. The State, 4 Mis. 308.
 
 CU. IX.] JURY. IRREGULARITIES, ETC. 177 
 
 be hung; but afterwards, when sworn on the trial, touch- 
 ing his competency, stated that he had formed no opinion, 
 and, no objection being made, he was sworn on the jury 
 and the prisoner convicted : a new trial was granted.^ So, 
 where a juror had entertained personal liostility towards 
 the losing party, and had previously, on hearing but a 
 l^art of the evidence on a former trial, expressed an opinion 
 in favor of the other party, and, on being interrogated at 
 the commencement of the present trial, had declared him- 
 self to be impartial, and during the trial had been drink- 
 ing with the party in whose favor the verdict was returned, 
 on his invitation, and at his expense; the verdict was set 
 aside, and a new trial granted.^ So where, on a trial for 
 murder. A., one of the jurors, on his examination, stated 
 that he had not formed or expressed an opinion, and, after 
 a verdict of guilty, a motion was made for a new trial, 
 and the affidavits of two persons were presented, one 
 stating that, some months before the trial, A. said, that 
 from the best information he could get the defendants 
 ought to be hung, and the other, that, some three or four 
 months before the trial, A. said that, according to his 
 information, the defendants ought to be punished, or would 
 be punished.^ So where a juror swore, that he believed 
 himself to be unbiassed, but admitted that he told the 
 jury that the defendant (in a murder case) was a bad man, 
 and had beat a man nearly to death, and then narrated 
 the beating, of which the defendant had been acquitted, 
 and admitted that the jury were influenced by his state- 
 ments." So the defendant was indicted and committed at 
 the May term ; at the August term that indictment was 
 quashed, and a new one found by a new jury; that was 
 also quashed, because the defendant had not been given 
 
 4 Sellers v. The People, 3 Scam. Humph. 411. Ace. People v. 
 
 412. Plummer, 9 Cal. 398. 
 
 2 Stndley v. Hall, 9 Shep. 198. * Martiu v. State, 35 Geo. 494. 
 
 3 Troxdale v. The State, 9 
 
 12
 
 178 TIIK LAW OF KEW TRIALS. [CH. IX. 
 
 the Opportunity secured to him hy law to challenge the 
 o-rand jury ; thereupon they were brought in to be 
 challenged, preparatory to finding a new indictment. 
 Held, that any juror who had previously formed an 
 opinion, though it was in the grand jury room, on the 
 finding of the previous indictment, was thereby disquali- 
 fied.' So a juror, on his examination, stated, that " shortly 
 after the killing, and while he was looking at the body 
 of the deceased, he inquired of the bystanders how the 
 killimr occurred; being told that it was done without 
 provocation, he said that the prisoner ought to be hung; 
 but that he had no opinion now. Held, without some 
 explanation of his change of mind, the juror was incom- 
 petent, and a new trial was ordered.^ So where a juror 
 said on the morning of the trial, "I have formed my 
 opinion as to that case: I believe he ought to be hung." 
 Again: " Damn him, he ought to be hung." And this, 
 notwithstanding affidavits of other jurors that he favored 
 the prisoner at the trial.^ 
 
 § 33. In a civil case, a juror, who has formed an opinion 
 adverse to the general land grant under which the plain- 
 tift' claims, is competent.'' 
 
 § 34. A person who holds an opinion, that milldams 
 generally in tliat im-t of the country are nuisances, and 
 that all he is acquainted with are such, is not a compe- 
 tent juror for the trial of an indictment for nuisance in 
 keeping up a milldam, though he states tliat he is not 
 much acquainted with the dam in question, and has not 
 formed or expressed any opinion regarding it.* 
 
 § 35. But it is sometimes held, that the expression of 
 
 1 Ftate V. Gillick, 7 Clarke ' Brakefield v. State, 1 Sneed, 
 
 (Iowa), 287. 215. 
 
 * Norflcet v. The State, 4 Snccd, ^ White v. Moses, 11 Cal. 68. 
 
 340. 5 Crippen v. People, 8 Mich. 117.
 
 CH. IX. 1 JURY. IRREGULARITIES, ETC. 179 
 
 -^ m 
 
 an opinion by a jnror, before the trial, with regard to the 
 guilt or innocence of the accused, although good ground 
 of challenge, is not cause for granting a new trial after 
 conviction.'(«) Unless, even in a capital case, it be such 
 as to imply malice or ill-will against the prisoner;'^ and 
 be settled and abiding.^ Especially so with the formation 
 and expression of an o[)inion, but not an unqualified one.^ 
 So loose impressions and conversations of a juror, or the 
 formation and expression of an opinion, as to the prison- 
 er's guilt or innocence, founded upon rumor, and where 
 there is really no bias or prejudice.^ As where a juror 
 said, " If that is so, the prisoner deserves to be hung," in 
 reply to a statement of a third person f or " if the evi- 
 dence was as he had heard it, the prisoner was guilty and 
 would be hung."^ Or the affidavit of an ofiicer that a 
 juryman, after the trial of an action against another 
 officer, said to him — "One of your brother oflicers lately 
 was served out in an action of Ilindle's (referring to this 
 case) ; he played me a dirty trick once, and I was deter- 
 mined to give him a lift whenever I could."^ So a verdict 
 in an action for libel being given for one farthing damages, 
 another verdict was rendered for £400. The defendant 
 moved for a new trial, upon an affidavit that a juryman 
 in the latter trial remarked, after the former one, upon 
 
 » Com. V. Flanagan, 7 W. & S. Meigs, 263 ; Jim v. The State, 15 
 
 415 ; Simpson v. Pitman, 10 Ohio, Geo. 535 ; State v. Buuger, 14 La. 
 
 365 ; Romaine v. State, 7 Ind. 63 ; An. 535 ; Thompson »."The State, 
 
 Collier v. State, 20 Ark. 36. 24 Geo. 297 ; State v. Davis, 29 
 
 2 State D. Fox, 1 Dutch. 566. Mis. 391 ; State v. Ward, 14 La. 
 
 3 People V. King, 27 Cal. 507 ; An. 673. See Alfred v. The State, 
 Wright V. State, 18 Geo. 383. 2 Swan, 581. 
 
 * State V. Hinkle, 6 Clarke, 380. ^ Mercer v. State, 17 Geo. 146. 
 
 5 Maj'or, &c. v. Goetchins, 7 Geo. ' Mitchum v. The State, 11 Geo. 
 
 139 ; Mayor v. The State, 4 Sneed, 615. 
 597 ; Howertou v. The State, 1 ^ Hiudle v. Birch, 8 Taun. 26. 
 
 (a) It is no ground for a new trial, that a juror had formed an opinion, 
 if known to the defendant's counsel before the verdict was rendered, 
 although not known to the defendant himself. State v. Tuller, 34 Conn. 
 280.
 
 180 THE LAW OF NEW TRIALS. [ciI. IX. 
 
 the smallncss oi" the damages, and further, "I sliall l)e 
 on the jury to-morrow, and I will take care that the ver- 
 dict does not go that way." An affidavit of the juror 
 denied the latter part of this statement ; and a new trial 
 was refused.^ So where a juror said, three years before, 
 that he thought the party was to blame.^ So where a 
 juror, on a trial for murder, on his voir dire stated, that 
 he had heard part of the evidence before the examining 
 committee, and liad formed a partial opinion whicli might 
 influence his verdict to some extent, but that he had no 
 flxcd opinion to influence his verdict. Or jocularly re- 
 marked, before the trial, to the ettect that " the defendant 
 ought to have been hung twenty years ago," without 
 reference to the particular case.^ Or answers to the ques- 
 tion, "Is your mind perfectly impartial between the State 
 and the accused?" "I think that I am, as I understand 
 it ;" and the court then asks if he understands the ques- 
 tion, to which he replies, " Yes."^ Or answered, " That 
 he had not formed nor expressed an opinion in the case, 
 nor had be formed or expressed any opinion as to which 
 of the parties should succeed; that his mind was free to 
 decide the case according to the evidence, though he had 
 formed an opinion as to some of the matters in contro- 
 versy,"* Or where jurors, on a trial for murder, stated 
 that they had heard considerable talk about the case, and 
 had read the newspaper accounts of it; that they were 
 rather inclined to think, if what they had read was cor- 
 rect, the prisoner was guilty ; that they had never talked 
 with any of the witnesses, nor formed, nor expressed an 
 o[»inion ; had no ill-will against the prisoner and could 
 give liim u fair trial, according to the law and evidence.^ 
 So a juror, in a capital case, on his examination on voir 
 dire by the defendant, stated that he had formed and ex- 
 
 ' Ramadge «. Tiyan, 9 Bin<i;. -5;>o. ^ Morgan v. Stevenson, 6 Ind. 
 
 2 Dole V. Erskinc, 87 N. 11. -JIG. 169. 
 
 3 Monroe v. State, 2;3 Te.x. 310. s Rice v. State, 7 Ind. 332. 
 ^ Thomas v. State, 27 Geo. 387.
 
 CH. IX.] JURY. IRKEGULARTTIES, ETC. 181 
 
 pressed an unqualified opinion, &c. The defendant passed 
 him to tlic prosecution for examination, on which the 
 juror stated that his opinion was formed by reading the 
 newspapers. The prosecution accepted the juror, but the 
 defendant requested leave to question him further for 
 cause, which was denied, but a peremptory challenge 
 allowed. Held, not to be error.^ So a juror, on a challenge 
 for favor, swore that he had read part of the newspaper 
 accounts at the time, and had formed an idea with regard 
 to the prisoner's guilt or innocence ; that he had no bias 
 either way ; that his verdict would not be influenced by 
 his preconceived idea, but would be governed entirely by 
 the evidence produced. He was adj udged competent.^ So 
 where a juror stated, that he had not formed an unqualifi.ed 
 opinion; that, if what he had heard should be proved 
 upon the trial, he had an opinion made up; but that he 
 thought he had no prejudice or bias to prevent him from 
 hearing the evidence, and giving a verdict in accordance 
 with the law and the testimony.^(a) 
 
 § 36. The distinction is made, that, to sustain a chal- 
 lenge/or pr«Hc?);a^ cause ^ on the ground that the juror has 
 expressed an opinion, it must appear that the opinion was 
 absolute and settled ; it is not enough that it was hypo- 
 thetical and uncertain.* If the opinion belong to the 
 latter class, it is a proper subject for a challenge to the 
 favor. Thus, on a trial for murder, a juror was challenged 
 
 • People V. Stonecifer, 6 Cal. ^ See People v. Symonds, 22 Cal. 
 
 405. 348; Cora. «. Thrasher, 11 Gray, 
 
 2 Sanchez v. People, 4 Parker, 57 ; State v. Howard, 17 N. H. 171; 
 
 535 ; Wright v. State, 18 Geo. 383. Loweuberg v. People, 27 N. Y. (13 
 
 » State V. Sater, 8 Clarke, 420. Smith) 336. 
 
 (a) Persons who have formed an opinion in a criminal case, founded 
 upon mere rumor, which it would require evidence to remove, but who 
 could readily and without hesitation find a verdict according to the evi- 
 dence, although contrary to that opinion, are competent- State v. Cock- 
 man, 1 Wins. (N. C.) No. 2, (L.) 95; O'Connor v. State, 9 Flori. 215; 
 Fahenstock v. State, 23 Ind. 231.
 
 182 THE LAW OF NEW TRIALS. [CH. IX. 
 
 by the prisoner for principal cause, on the ground that he 
 had expressed an opinion; such challenge was traversed; 
 and it appeared by the testimony of the juror that he 
 thought he liad an impression as to the prisoner's guilt or 
 innocence; that he rather thought he had formed an 
 opinion ; that he presumed ho had expressed it, and 
 thought he retained it; that he had formed an opinion, if 
 the newspaper accounts of the transaction, of which he 
 had read only a part, were true, and that so far as he 
 read he gave them credence ; that it might or might not 
 require evidence to remove his impression of the prisoner's 
 guilt, and that he had not arrived at any definite opinion. 
 The court overruled the challenge. Held, on review, the 
 decision was correct.^ So a juror, on his examination, 
 stated, that he had an opinion on the question of the de- 
 fendant's guilt or innocence, if what he had heard was 
 true; that he had heard the story talked about, but had 
 not read the rei)ort of the examination before the coroner, 
 or heard the story from witnesses or those who had heard 
 the testimony ; and that his opinion would not prevent 
 his hearing testimony impartially. Held, that this was 
 cause for a challenge to the favor, but not for principal 
 cause.^ 
 
 § 37. In a capital case, a juror, after taking his seat in 
 the box, stated to the court, that he remembered having 
 formed and expressed an opinion as to the prisoner's guilt. 
 The court asked the counsel for the prisoner what they 
 proposed to do with reference to the juror. They replied, 
 that "they had nothing to say." The court discharged 
 the juror, allowing the prisoner the same number of chal- 
 lenges as if the juror had been challenged for cause. 
 Held, that the court erred in discharging the juror, on 
 the ground that his incompetency did not sufficiently 
 
 ' People V. Stout, 4 Parker, 71 ; ^ Schseffler v. State, 3 Wis. 823. 
 Stout i'. People, ib. 132.
 
 CH. IX.] JURY. IRREGULARITIES, ETC. 183 
 
 appear. But that the error would not, after verdict, 
 avail the prisoner.' 
 
 § 38. A juror is not disqualified by having expressed 
 an opinion on a question involved in the litigation? 
 
 § 39. A juror having answered, " Yes," to the question, 
 " Have you formed and expressed an opinion ?" it is not 
 error for the court to refuse to ask further what is the 
 ground of that opinion ; as the iirst answer clearly dis- 
 qualifies him, whatever the second might be.^ , 
 
 § 40. Where it was charged that a juror in a capital 
 trial had been improperly sworn, his answers indicating 
 that he had formed an opinion; but it appeared that the 
 juror had not sat at the trial, having been peremptorily 
 challenged by the prisoner, and that the peremptory chal. 
 lenges of the prisoner had not been exhausted: held, there 
 was no cause for reversal of judgment.* 
 
 § 41. So where a juror, in answer to the question, whe- 
 ther he had formed or expressed an opinion as to the 
 guilt or innocence of the accused, stated that he had not, 
 but that he had an impression as to the killing, from 
 rumor, which it might require evidence to remove, and 
 was pronounced competent ; upon motion for a new trial, 
 it was held, the juror having been set aside under the 
 peremptory challenge' of the prisoner, that a new trial 
 would not be granted, unless it were shown, not only that 
 the decision of the court was wrong, but that the prisoner 
 exhausted his peremptory challenges, and was liable to 
 have other jurors equally or more objectionable forced 
 upon him.^ 
 
 ' Norfleet n. State, 4 Sneed, 340. 3 Martin v. Mitchell, 28 Geo. 383. 
 2 Roystou V. Royston, 21 Geo. * Burrell v. State, 18 Tex. 713. 
 161. 5 Ogle y. State, 33 Miss. 383,
 
 184 THE LAW OF NEW TRIALS. [CIL IX. 
 
 § 42. A person indicted is not entitled to liavc tlie jury 
 asked, before they are inii)anelled, wliether they have 
 formed or expressed an opinion as to the credibility of a 
 witness, whose testimony is to be relied on in support of 
 this indictment, and who testified, and whose credibility 
 was in question, in another case before them. Nor can 
 the defendant be allowed to prove, on the trial of this 
 indictment, that the jury have declared that they would 
 believe this witness.^ 
 
 . § 43. The question was asked a juror, "Have you or 
 not formed or expressed the opinion, from what you have 
 heard of the case, that the defendant is guilty?" Held, 
 that the question was not in legal form, and that the 
 judge below, in refusing to allow it to be answered, did 
 not abuse the discretionary power to overrule interroga- 
 tories not in legal form.^ 
 
 § 44. A juror, being asked if he had formed an opinion 
 as to the guilt or innocence of the prisoner, answered that 
 he had, and, after being challenged for cause by the pri- 
 soner, said, in answer to questions by the court, that his 
 opinion was formed from rumor ; and that his mind was 
 as free to act upon the testimony as if he had heard 
 nothing about the case. Held, it was error for the court 
 to require the prisoner either to accept the juror or to 
 challenge peremptorily.^ 
 
 § 45. The question was held to be properly overruled, 
 whether, if the juror went into the jury-box in his present 
 state of mind, he went there with the belief that the defend- 
 ant was guilty of murder as charged in the indictment.* 
 
 § 46. In most of the cases referred to on this subject, 
 
 ' Commonwealth v. Porter, 4 ^ Cotton v. State, 31 Miss. 504. 
 Gray, 423. * State v. Ward, 14 La. An. 073. 
 
 2 "State v. Bennett, 13 La. An. 
 (>.j1.
 
 CH. IX,] JURY. IRREGULARITIES, ETC, 185 
 
 the proof as to a juror's preconceived opinion has been 
 derived from an examination of the juror himself, upon 
 challenge. 
 
 § 47, It has been more especially held not sufficient 
 ground for a new trial, that a juror had used certain im- 
 proper expressions relative to the cause, where the juror 
 had made an affidavit to the contrary, which affidavit was 
 before the court.^ And where a defendant, in a criminal 
 case, seeks to set aside a verdict against him on this 
 ground, he must show by the record, not merely by his 
 own affidavit, that the juror was examined upon oath as 
 to whether he had formed such an opinion.^ 
 
 § 48. It is held, that the question of the impartiality 
 of a juror will not be passed upon by the court above, but 
 is one of discretion with the court below,^ Thus a juror, 
 in a murder trial, subpoenaed by the government as a wit- 
 ness, was alleged to have said, that he saw the crime com- 
 mitted, and, if he were on the jury, did not know how he 
 could get round finding the prisoner guilty of murder; 
 but afterwards on affidavit denied that he saw the crime 
 committed, or heard any part of the evidence till the trial. 
 Held, his being one of the jury was no ground of motion 
 for a new trial, especially as the judge at the trial, who 
 by statute took the place of triors^ passed upon the objec- 
 tion and overruled it.^ So, after a conviction for murder, 
 the prisoner offered testimony that two of the jurors, who 
 on their voir dire declared that they had not formed or ex- 
 pressed an opinion, had in fact expressed decided opinions 
 that the prisoner was guilty and ought to be hung ; of 
 which the prisoner alleged that he had no knowledge 
 until since the verdict ; and on this ground he moved for 
 a new trial. Held, in the general court of Virginia, that 
 
 • Conwell V. Anderson, 2 Cart. 2 state v. Shelledy, 8 Clarke, 4T7. 
 122. Ace. State v. Ayer, 3 Fost. 3 Costly y.The State, 19 Geo. G14. 
 301 ; State v. Pike, 20 N. H. 344. « Buchanan v. State, 24 Geo. 282.
 
 186 THE LAAV OF NEW TRIALS. [CH. IX. 
 
 the inquiry was open, and the evidence admissible, for the 
 purpose of showing perjury and corruption in the jurors, 
 but that it belonged exclusively to the judge who presided 
 at the trial, to weigh the conflicting credibility of the 
 witnesses adduced by the prisoner and of the jurors, and 
 to decide whether, in justice to the prisoner, and upon all 
 the circumstances of the case, a new trial ought or ought 
 not to be granted.^ 
 
 § 48a. On a motion for a new trial, an act Avhich pro- 
 vides, that "no exception to a juror on account of his 
 citizenship, non-residence, state, or age, or other disability, 
 shall be allowed after the jury are sworn," does not apply 
 to the objection that the juror had formed or delivered an 
 opinion on the issue or any material fact to be tried.^ 
 
 § 49. A verdict will not be set aside, because one of the 
 jurors "knew and was aware of the circumstances con- 
 nected with the subject-matter of the suit."^ 
 
 § 50. On a conviction for murder, it was held not good 
 ground for a new trial, that there was a great excitement 
 in the public mind at the time of the trial against the 
 accused.* But in a late case, the court above, reversing 
 the decision below, ordered a new trial, because the verdict 
 was given under a state of great excitement.\rt) 
 
 § 50a. A new trial will not be granted upon an affidavit 
 
 • Heath's Case, 1 Robinson, 735. ♦ Com. v. Flanagan, 7 "W. & S. 
 
 2 Stale V. Ross, 29 Mis. 32. 41."). 
 
 3 Lawrence v. Collier, 1 Cal. 37. ^ People v. Acosta, 10 Cal. 195. 
 
 (a) Where a defendant moves that each juror be sworn as to whether 
 he has formed or expressed an opinion, and offers to prove that the case 
 is one of great notoriety, and that there is great prejudice against him ; 
 a refusal to grant sucli motion is no ground of error. Powers v. Pres- 
 groves, 38 Miss. 227.
 
 CH. IX.] JURY. IRREGULARITIES, ETC. 187 
 
 that the foreman used undue influence.^ Or, as has been 
 sometimes held, that the jury were prejudiced and tam- 
 pered with. (Although, as will he seen hereafter (chap. 
 10), tampering with the jury, that is, communications 
 made to them during the trial, is constantly recognized 
 as a ground of new trial ; and in this case the verdict Avas 
 set aside as against law.-) 
 
 § 51. That a juror in a trial on appeal was surety on 
 the appeal bond, although good ground of challenge, is 
 not alone suificient ground of new trial. But if the 
 ground of challenge was unknown before the trial, a new 
 trial may be granted, unless the ignorance was through 
 neglect.^(a) 
 
 § 52. At common law, consanguinity or affinity within the 
 ninth degree is said to be ground of challenge to a juror. •*(/;) 
 
 ' Hartwriglit v. Badliam, 11 ^ Glover «. "Woolsey, Dudley, 
 Price, 383. Geo. 8o. 
 
 2 Cooke V. Green, 11 Price, 736. ' 2 Bl. Comm. 363 ; 21 Vin. Abr. 
 
 216. 
 
 (a) It is no ground of new trial, that a juror sat on a former trial of 
 the same cause, unless the objection is forthwith made. Eakman v. 
 Sheaffcr, 48 Penn. 176. See State v. Sheadey, 15 Iowa, 404. The 
 fact, that a person presided as coroner at an inquest, does not disqualify 
 him as a juror in the trial of an indictment for the murder, when he 
 testifies that he has neither expressed nor formed any opinion. O'Connor 
 V. State, 9 Flori. 215. It is ground for a new trial of an indictment for 
 assault and battery, that a juror, previous to the trial, had said to the 
 party assaulted, that he was well acquainted with his case, and would be 
 on the jury, and would do all he could for him ; though the defendant 
 did not examine the juror upon voir dire, if the defendant was not 
 grossly negligent, and was not aware of the conversation until after the 
 trial. Hawks v. State, 21 Tex. 526. Where the issues and evidence in 
 a case are the same as in a previous case against the same defendant, be- 
 fore the same jury, the law presumes the jury to be under a disqualify- 
 ing bias, from their previous verdict. Garthwaite v. Tatum, 21 Ark. 
 336. It is not ground of challenge for cause, that the juror is a brother- 
 in-law of one of the counsel. Funk v. Ely, 45 Penn. 444. 
 
 (6) A person summoned as a juror, who states in voir dire that he is 
 related by blood to the prisoner, and that he thinks he is not so nearly
 
 188 THE LAW OF NEW TRIALS. [CH. IX. 
 
 § 53. "Where the relationship of a juror is found, his 
 admission or exclusion is purely a question of law.^ 
 
 § 64. A juror has been set aside on the ground of being 
 the husband of a party's niece.' So where a juror had 
 been the husband of the deceased sister of a party in an- 
 other case, depending upon tlie same principles.^ Or where 
 a juror was cousin to the prosecutor.* So where a juror 
 was cousin of the wife of the defendant, under a statute 
 disqualifying for relationship under the sixth degree, in- 
 clusive, a new trial was granted, on the ground of his 
 being allowed to serve. The court remark, " The juror 
 testified that he had long known the defendant's wife, his 
 cousin, but that he never knew the defendant ; that the 
 relationship did not bias his mind in deciding the case; 
 that he had no conversation with the defendant; and the 
 relationship did not occur to him during the trial and 
 subsequent deliberation."^ 
 
 § 55. It is good cause of challenge to a juror in a civil 
 case, that he is the son-in-law of the surety for the prose- 
 cution of the suit.^ Or a near relative to the owner of 
 the slave indicted.^ 
 
 ' Selioni V. "Williams, G Jones, 2 nincliman w. Clark, Coxe, 446. 
 575. See Pierce v. Sheldon, 13 3 Banks i'. Hart, ;} Day, 491. 
 John. 191 ; Hardy v. Sprowle, 33 * Brown v. State, 38 Geo. 439. 
 Maine, 310 ; Carwan v. Newall, 1 ^ Hardy v. Sprowle, 33 Maine, 
 
 Denio, 2.') ; Higbe v. Leonard, 1 ib. 310. 
 
 181 ; TruUinger v. Webb, 3 Ind. ^ Sehorn ■». Williams, 6 Jones, 
 
 198 ; Dearmond v. Dearmond, 10 575. 
 Ind. 191. 7 State v. Anthony, 7 Ired. 234. 
 
 related as second cousin, but that he may be a third cousin, is incompe- 
 tent. 9 Flori. 215. The court refused to set aside a verdict for the 
 plaintiff because he was a first cousin of the mother of a juror's wife, 
 where tlic defendant did not show that he was ignorant of the relation- 
 ship when the jury were drawn, when no objection was made, although 
 his counsel made affidavit of his own ignorance at that time; and where 
 it did not appear that the parties through whom the relationship existed 
 were living. Morrison v. McKinnon, 12 Flori. 552.
 
 OIL IX.] JURY. IRREGULARITIES, ETC. 189 
 
 § 56. It lias boon licl<l no good ground of exclusion, 
 that the wife of a juror was cousin to a party's father. 
 The decision proceeded ujjou the ground of a statute 
 which disqualified judges and justices of the peace within 
 the fourth degree.^ Or that the sister of a juror was wife 
 of a party's nephew.^ Or that the juror was half-uncle 
 of the plaintiff's wife.^ Or that the juror's wife was 
 cousin to the prisoner's deceased wife, who had left no 
 children.'* Or that a juror's father was the defendant's 
 first cousin ; though it might be a proper matter to be 
 addressed to the discretion of the court, if brought to its 
 notice in season.' Or that the juror's father had married 
 the widow of the defendant's brother; the father having 
 died before the trial.^ 
 
 § 57. There will be no exclusion where the juror is 
 equally related to both parties.^ And it is sometimes said, 
 that " the relationship must be so near, as to amount, of 
 itself, to evidence of impartiality and fraud. "^ 
 
 § 58. If counsel know, but forget until after verdict, 
 that a juror was a relative of one of the parties, a new 
 trial will not be granted.^ 
 
 o* 
 
 § 59. The time-honored maxim in regard to jurors is: 
 "Omni exceptione majores." The law contemplates, that 
 each juror should have a mind entirely free from all bias 
 or prejudice; and, if the juror is prejudiced in any man- 
 ner, he is not a fit or proper person to sit in the box.^° 
 
 ' Churchill y. Churchill, 12 Verm. Chase v. Jennings, 38 Maine, 44; 
 
 GGl. Seavy v. Dearborn, 19 N. H. ojI. 
 
 - Rank v. Shewey, 4 Watts, 218. ^ Armstrong v. Timmons, 3 Ilar- 
 
 3 Eggleston v. Smiley, 17 John. ring. 342. 
 
 133. " ^ Eggleston v. Smiley, 17 John. 
 
 ' State V. Shaw, 3 Ircd. 532. 133. 
 
 5 State V. Andrews, 29 Conn. ^ Cannon v. Bullock, 26 Geo. 
 100, 106. 431. 
 
 6 Cain v. Ingham, 7 Cow. 478. '° March v. Portsmouth, &c., 19 
 See Moses v. State, 11 Humph. N. H. 373. 
 
 232 ; Onions v. Naish, 7 Price, 20o ;
 
 190 THE LAW OF NEW TRIALS. [Cll. IX. 
 
 Prejudice is a state of miiid wliicli, in the e3''e of the law, 
 has no doLcrees.^ lleiico where a juror dechircd in court, 
 that he had such a prejudice resting on his mind against 
 one of the parties as wouhl, he feared, prevent his doing 
 him justice; hekl, it was error, without furtlier examina- 
 tion, to pronounce him competent.^ So the strong feeling, 
 naturally to be expected of a juror as assignee of the 
 plaintifi; a bankrupt, though the sum recovered by a ver- 
 dict would belong to the plaintiff only, has been held a 
 sufficient objection.^ And a valid ground of objection 
 may consist in "kindred, prejudice, interest in the ques- 
 tion, though not in the event of the suit."^ 
 
 § 60. As we have seen, interest is sufficient to exclude a 
 juror.^ Except where it is very remote.^(a) 
 
 § 61. The point of interest has often arisen in reference 
 to the inhabitants of quasi coiyorations, summoned as 
 jurors in cases in which those corporations were interested. 
 
 § 62. It is held that the citizens of a county are com- 
 petent to try an indictment for burning the county jail.^ 
 
 § 63. Inhabitants of a town, entitled to a moiety of the 
 sum to be recovered, are not competent jurors.^ So, in a 
 
 ' People V. Reyes, 5 Cal. 347. ville, &c., il). 3fi8 ; Ferriaiiy v. Sel- 
 
 2 McLaren v. Birdsong, 24 Geo. ser, 4 llow, Miss. 50G ; Keck v. 
 265. Essex, 1 Zabr. CJG. 
 
 3 2 Waterm. Cxraliam, 240. ^ Com. v. Carter, 2 Virg. Cas. 
 •» Per Sbaw, C. J., Davis v. Al- 310 ; Gratz v. Benner, 13 S. & R. 
 
 len, 11 Pick. 466. HO. 
 
 5 See Lvnch v. Horry, 1 Bay, ' Phillips v. State, 29 Geo. 105. 
 
 229 • Russell v. Hamilton, 2 Scam. Sec Reck v. Essex, 1 Zabr. GjG. 
 
 56 ; Josey v. Wilmington, &c., 12 « Wood*. Stoddard, 2 John. 194. 
 Rich. Law, 134 ; Bolaud v. Green- 
 
 (a) If neither party, in a capital case, asks for triors of the interest of 
 jurors, the court may act as such. O'Connor v. State, 9 Flori. 215. In 
 Tennessee, an aflidavit, that a juror was interested in the result of a suit, 
 will not support a motion for a new trial, although such interest might 
 have been good cause for challenge. Magness v. Stewart, 2 Cold. 309.
 
 en. IX.] JURY. IRREGULARITIES, ETC. 191 
 
 bastardy process, in Massachusetts, it is ground of new 
 trial, after a verdict for the complainant, that one of the 
 jurors was an inhabitant of the town in which she re- 
 sides and has her settlement; the statutory provisions as 
 to the support of illegitimate children creating a direct 
 interest in such inhabitant.'(«) But the objection was 
 not sustained, where the foreman of the grand jury, which 
 returned an indictment, was an inhabitant of the town 
 which would be entitled to the fine. Parsons, C. J., re- 
 marked, "Every fine to the use of the commonwealth 
 may aftect the interest of every citizen, as it may lessen 
 the public taxes. But if citizens cannot be jurors, no 
 offences can be punished by fine. Where penalties are 
 given to counties, the inhabitants may have an interest 
 somewhat greater; and where penalties accrue to towns, 
 the interest of the inhabitants may be a little more affected. 
 The law must be considered as repelling the objection of 
 interest; otherwise the offence must remain without 
 prosecution."^ 
 
 § 64. It is no ground for setting aside a verdict, that 
 one of the jurors had been summoned as a witness for 
 
 • 
 
 I Hawes v. Gustin, 2 Allen, 403. ^ Com v. Ryan, 5 Mass. 90. See 
 
 Middletown v. Ames, 7 Verm. 169. 
 
 (a) In Massachusetts, it is not necessary, in summoning a sheriff's jury, 
 to take any jurors from the town nearest the land in controversy ; if they 
 are all taken from towns within the county, and adjoining the town in 
 which the land lies. Shattuck v. Stoneham, 6 Allen, 115. In a siiit 
 against a town for an injury from a defective highway, a juror who was 
 a considerable land-owner and tax-payer of the town sat in the case, and 
 joined in a verdict against the town. The town moved in arrest of judg- 
 ment for this cause. It appeared that the juror had been such land- 
 owner and tax-payer for several years. Held, the interest of the juror 
 was a disqualification, but must be regarded as known to the public 
 officers of the town, and especially to the selectmen, its general agents, 
 whose duty it was to make out and certify the rate-bills of the town, and 
 that the town had waived the objection, by going to trial without making 
 it. Bailey v. Trumbull, 31 Conn. 581.
 
 192 THE LAW OF NEW TRIALS. [CH. IX. 
 
 tlio prevailing party, and was })aiil witness fees wliile 
 sitting as juror; if neither the prevailing party nor the 
 jury knew it to be irregular, nor had any corrupt in- 
 tention.^ 
 
 § G5. A juror indicted for the same offence (selling 
 liquor) is partial and incompetent.^ So it seems, that the 
 members of any association of men, combining for the 
 pur})0se of enforcing or withstanding the execution of a 
 particular law, and binding themselves to contribute 
 money for that purpose, are incompetent to sit as jurors 
 on the trial of an indictment for violating that law.^ 
 
 § G6. But the fact that a person called as a petit juror, 
 on the"trial of an indictment in which the defendant is 
 charged wnth stealing a horse, was a member of " an asso- 
 ciation or organized company, for the prosecution of per- 
 sons generally, arrested for horse-stealing, will not dis- 
 qualify the juror."'* So members of an association to 
 prosecute offences against certain laws, who have each, 
 by subscribing a certain sum to the funds of the associa- 
 tion, rendered themselves liable to pay, to the extent of 
 their subscriptions, their proportion of expenses incurred 
 in such prosecutions, are not incompetent to sit as jurors 
 on the trial of such a prosecution, commenced by the agent 
 of the association, and carried on at its expense, if it does 
 not appear but that they have paid the subscriptions 
 before this prosecution was commenced.^ So the refusal 
 of a judge to ask persons summoned as jurors, w^hether 
 they belong to any association formed for the purpose of 
 enforcing the law under which the defendant is indicted, 
 is no ground of exception, if the counsel disclaims any 
 
 • Ilaiulloy V. Call, 30 Maine, 9. * State v. Wilson, 8 Clarke, 407. 
 
 2 McGuire v. State, ;J7 Miss. 869. '^ Commonwealth v. O'Neil, 6 
 
 '•* Commonwealth v. Eagan, 4 Gray, 343. 
 Gray, 18.
 
 en. IX.] JURY. IRREGULARITIES, ETC. 193 
 
 knowledge or suspicion of any such connection, and 
 assigns no ground for making the request.^ 
 
 I 67. It is held no ground of new trial, that a juror and 
 a party w^ere both free-masons.^ 
 
 § 68. "Where a public company is party to an action, 
 whether the fact that a juryman was a shareholder is 
 ground for granting a new trial seems a doubtful point. 
 It has been held not to be in England and in ISTorth Caro- 
 lina, while the contrary has been held as to a stockholder 
 in a railroad in Xew Hampshire.^ 
 
 § 69. The relation of landlord and tenant, between a 
 juror and the bondsman for prosecution of the suit, was 
 held no disqualification.* Otherwise, where a juror is 
 tenant to a party.^ 
 
 § 70. One, who as a grand juror has found an indict- 
 ment, is incompetent to try the case ; but it is held that, 
 if the objection is not taken until after verdict (though 
 as soon as discovered), a new" trial will not be ordered, if 
 it appear as matter of fact that he was not really biassed 
 against the prisoner.^ 
 
 § 71. In a case of necessity, as when the coroner of the 
 district is a member of the jury, and is unexpectedly 
 required to hold an inquest, the presiding judge may au- 
 thorize him to withdraw during the trial of a cause, and 
 direct another juror, who had heard the testimony, to be 
 substituted in his place; and such act of the presiding 
 
 1 Com. V. Thrasher, 11 Gray, 55. * Brown v. Wheeler, 18 Conn. 
 
 2 Purple V. Harton, 13 Weiid. 9. 199. 
 
 See Burdine v. Grand, 1 Ala. (N. ^ pipher v. Lodi,'e, 16 S. & R. 
 S.) :^85. 314; Harrisburg, &c. v. Forster, 8 
 
 3 Williams v. Great Western, Watts, 304. 
 
 &c., 3 H. & N. 809 ; Page v. Con- (■ Bristow's Case, 15 Gratt. 634. 
 tocook, &c., 1 Fost. 438; Brittain 
 V. Allen, 2 Dev. 120. 
 
 13
 
 194 THE LAW OF NEW TRIALS. [CII. IX. 
 
 judn'C is no ground for a new trial, especially where no 
 oljjection was interposed at the time.^ 
 
 » 
 § 72. In criminal cases, disqualification of jurors often 
 consists in their entertaining conscientious scruples against 
 convict ing.- 
 
 § 73. Thus a person, who states upon his voi?' dire that 
 he has conscientious scruples upon the subject of capital 
 punishment, and that they would bias his judgment, is 
 incompetent to act as a juror, in a case where the verdict 
 might subject the accused to capital punishment.^ So, 
 by the laws of California, the crime of grand larceny is 
 punishable by imprisonment in the State prison or death, 
 in the discretion of the jury ; and by the same laws a man 
 is declared incompetent to sit as a juror on the trial of an 
 indictment for a crime, "punishable with death," who 
 entertains such conscientious opinions as would preclude 
 his finding tlie defendant guilty. On the trial of an in- 
 dictment for grand larceny, one summoned as a juror was 
 asked by the counsel for the State, whether he had any 
 conscientious scruples against the infliction of capital 
 punishment? He replied that he would hang a man for 
 murder but not for stealing. The court below decided 
 that he was incompetent. And the court above confirmed 
 the decision.^ So a juror, in a trial for murder, being 
 examined, said he was opposed to punishing a man with 
 death, and could not find a verdict that a man should 
 sufier death, but that, when the law and evidence war- 
 
 1 Boland v. Greenville, &c., 13 Humph. 249; U. S. v. Cornell, 2 
 Rich. ;]G8. Mils. !)1 ; Lewis v. State, Sm. & 
 
 2 See Pierce v. State, 18 N. II. M. ll."i; Com. v. Webster, 5 Cush. 
 530; Martin c. State, 16 Ohio, ;5Gt ; 2!)5; Com. v. BuzzcU, 10 Pick. 153; 
 Williams v. State, .'! Kellv, 453; Mercer 7'. State, 17 Geo. 146. 
 People V. Damon, 1:5 Wend. 351 ; » Williams v. State, 32 Miss. 389; 
 Clore's Case, 8<Jratt.600; Gross ». State v. Howard, 17 N. H. 171; 
 State, 2 Cart. 32!t; Com. 1'. Lesher, Burrell v. State, 18 Tex. 713; 
 17 S. & R. 155; Ciioutcau v. Pierre, Fahnestock v. State, 23 Ind. 281. 
 9 Mis. 3 ; Fletcher v. State, G * People v. Tauuer, 2 Cal. 257.
 
 CII. IX.] JURY. IRREGULARITIES, ETC. 195 
 
 ranted a verdict of guilty, lie could find that the accused 
 be imprisoned for life. Held, incompetent.' So the judge 
 may exclude jurors, who state, in answer to his questions, 
 that they have formed and hold such an opinion of the 
 unconstitutionality of the statute on which the prosecu- 
 tion is founded, that, if persisted in, they cannot convict 
 the defendant, whatever the evidence may be.^ 
 
 § 74. It is a good cause for challenging a juror who has 
 been already chosen, but not sworn, that he grossly mis- 
 behaved himself as a juror on a former occasion, declaring 
 that he had tried to acquit every one whom the judge 
 desired to convict, and would as lief swear on a spelling- 
 book as on a Bible, because he was a Tom Paine man.^ 
 
 § 75. In a capital case, it is competent for the State to 
 show the disqualification of a juror, by interrogating the 
 juror himself as to any conscientious scrjaples he may have 
 against inflicting the punishment of death.* 
 
 § 76. But conscientious scruples in regard to capital 
 punishment, which would not prevent a juror from find- 
 ing a true verdict according to the evidence, are no dis- 
 qualification: and since no better means exist for learning 
 what influence such scruples will have, than the declara- 
 tions of the juror; if he declare upon his examination 
 that he has conscientious scruples upon the subject of 
 capital punishment, and that it would be against his con- 
 science to render a verdict by which a party would be 
 subjected to the punishment of death, but that he thinks 
 he could do justice as between the State and the accused; 
 he will be competent.^ So, that a juror is "opposed to 
 capital punishment on principle," does not imply that he 
 
 ' Driskill v. State, 7 Ind. 338. ^ McFadden?'.Com.,33Penn. 12. 
 
 2 Commonwealth v. Austin, 7 * State y. Mullen, U La. An. 570. 
 
 Gray, 51. ^ Williams v. Slate, 33 Miss. 389.
 
 196 THE LAW OF NEW TRIALS. [CII. IX. 
 
 has a conscientious opinion, which would preclude him 
 from finding a prisoner guilty in a capital case.'(rt) 
 
 § Hja. On the examination of a juror on his voir dire, 
 the question was asked him, "In case the defendajit is 
 found guilty of murder, have you made up your mind as 
 to what degree of punishment ought to be inflicted upon 
 him?" Held, the question was not properly put, and the 
 district judge did not err in refusing to allow it to be 
 answered.^ 
 
 § 766. So, in a capital case, two jurors, being Quakers, 
 expressed conscientious scruples against sitting on the 
 jury, and were excused without being sworn or aflfirmed 
 as to their competency.-'^ 
 
 § 77. On the trial of an indictment for murder, a juror 
 w^as challenged by the government, on the ground that 
 he was opposed tcf capital punishment. The juror, being 
 sworn, said he was opposed to capital punishment, but if, 
 acting as a juror, the evidence of guilt was clear, he should 
 find the accused guilty. The court ordered him to take 
 his scat as a competent juror. After other jurors had been 
 called, but before any evidence had been submitted, the 
 same juror stated that he had misunderstood the question, 
 and given a wrong answer, and that he could not under 
 any circumstances find a person guilty of murder. The 
 challenge was repeated, and the juror set aside.* 
 
 § 78. That a juror has a fixed opinion against cajjital 
 or penitentiary punishments is good challenge for cause 
 
 ' People V. Stewart, 7 Cnl. 140. » U. S. v. Cornell, 2 Mas. 91. 
 
 * State V. Ward, 14 La. An. 673. * People®. Wilson, 3 Parker, 199. 
 
 (a) In Arkansas, jurors may not be rejected because they are opposed 
 to capital punishment, unless they go further and ))ring themselves under 
 the disqualifications prescribed by the statute, Dig. ? 158, c. 52. Atkins 
 V. State, 16 Ark. 568.
 
 en. IX.] JURY. IRREGULARITIES, ETC. 197 
 
 by the State. If he is accepted by the State and after- 
 wards by the prisoner, the State's right of challenge for 
 this cause is lost, and cannot be revived; and if after- 
 wards the juror declares that he has a fixed opinion 
 against penitentiary punishment, and the court orders him 
 to stand aside, the judgment must be reversed.'(a) 
 
 • Stalls V. State, 38 Ala. 25. 
 
 (a.) It seems, iu Georgia, that the act, authorizing jurors to be ques- 
 tioned on the subject of entertaining scruples as to capital punishment, 
 was intended to apply to all trials taking place after its passage, without 
 regard to the time of the commission of the offence. Mercer v. State, 
 17 Geo. 146.
 
 198 
 
 THE LAW OF NEW TRIALS. 
 
 [CH. X. 
 
 CIIArTER X. 
 
 JURY. MISCONDUCT. 
 
 1. General. 
 
 2. Eating and drinking ; use of 
 intoxicating liquor. 
 
 5. Sleep.' 
 
 6. Conversation concerning the 
 case ; statements of one juror to 
 the rest. 
 
 18. Custody of the jury. 
 
 19. Introduction of papers to the 
 jury-room ; minutes, books, depo- 
 sitions, records, etc. 
 
 37. Further instructions to the 
 
 40. Arguments to the jury. 
 51. Separation of the jury. 
 63. Allidavits of jurors. 
 
 § 1. Misconduct, as well as disqualification, of a jury 
 or jurors, is ground of motion for a new trial.' Though 
 the action of the court, in refusing a new trial on that 
 ground, is sometimes held not reversable in error. \n) 
 
 § 2. It was the ancient rule, that a verdict was rendered 
 void by the jury's eating and drinking between the charge 
 and the verdict.^ They were required to be kept " with- 
 out meat or drink, fire or candle."-" And even now, the 
 general rule is laid down, though in a capital case, that, 
 " after the jury are charged and have left the court to eon- 
 sider of their verdict, they are to be kept by themselves, 
 
 1 Brister v. State, 2G Ala. 107. ^ Bro. Abr. Verdict, pi. 17; Doct. 
 
 2 Ibid. See Mathis v. State, 18 & Stud. 158. 
 Geo. 343. » Co. Litt. 227. 
 
 [a] IVIisbeliavior must be gross, and snch as probably injured the 
 complaining party. AVhclchell v. State, 23 Ind. 89. Or such as to affect 
 the fairness and impartiality of the trial. Jack v. State. 26 Tex. 1. Aa 
 application for a new trial on the ground of misconduct must be sus- 
 tained by affidavit. Urban v. Kraigg, 21 Ind. 174. The presumption 
 is that jurors perform their duty ; positive evidence of misconduct must 
 be introduced. 24 Cal. 31.
 
 en. X.] JURY. MISCONDUCT. 199 
 
 without refreshment and without communication with 
 others, until they have agreed. Any departure from this 
 rule is irregularity. But it is not every irregularity 
 which will render the verdict void."* But it is now the 
 prevailing rule, that a verdict cannot be impeached on 
 account of the jury's eating or drinking after they are 
 sent out and before verdict, unless it appear that the re- 
 freshments were furnished at the expense of the prevail- 
 ing party.^ (The subject will be further considered in 
 connection with the points of conversation with, or sepa- 
 ration of, the jury.) 
 
 § 2a. The use of intoxicating liquor by jurors has often 
 been alleged as ground of new trial.' Thus a verdict was 
 set aside for the introduction of intoxicating liquor into 
 the room.^ And if any of the jury, more especially in a 
 capital case, drink ardent spirits during their delibera- 
 tions, it is held cause for a new trial. ^ So if a portion of 
 the jurors were intoxicated during a part of the trial 
 with spirits furnished by the successful party, the verdict 
 should be set aside without considering the evidence.^ So 
 the circulation of spirituous liquors among a jury, while 
 
 ' Per Shaw, C. J., Com. ?:. Roby, Gre2:g v. 'McDaniel, 4 Harring. 
 12 Pick. 496. 3G7."See Madden v. State, 1 Kans. 
 
 2 ]\[unsou's Case, 1 And. 183 ; 340. 
 
 Duke, etc. V. Wise, 1 Vent. 134 ; ^ Jones i\ State, 13 Tex. 138 ; 
 
 Harrison v. Rowan, 4 Wash. C. C. People v. Douglass, 4 Cow. 26 ;(«) 
 
 32 ; Purinton v. Humphreys, 6 Brant v. Fowler, 7 Cow. 562. 
 
 Greenl. 379 ; Everett i\ Yonells, 4 (These cases in New York are crit- 
 
 B. & Ad. 681. icized and virtually overruled in 
 
 3 See State v. Baldy, 17 Iowa, 39. Wilson v. Abrahams, 1 Hill, 207.) 
 * State V. Bullard, 16 N. H. 139; « Pelham ». Page, 1 Eng. 535. 
 
 (a) The court in this case remarked : " Drinking spirituous liquor dar- 
 ing the trial should not be tolerated in any shape ; and we have uniformly 
 held that it vitiated the verdict in a civil cause, even where the liquor 
 was given to the jury by consent. It will not do to weigh and examine 
 the quantity nor the effect. It is uot at all probable that either of these 
 jurors was in the least under the influence of strong drink; but. being 
 doubtful whether they may not have drank something, we ought not, 
 especially in a case of life and death, to sustain the verdict."
 
 200 THE LAW OF NEW TRIALS. [CH. X. 
 
 sitting as such, even with the consent of the parties, is 
 cause for reversing the judgment.^ So the use of brandy 
 as a beverage, by jurors while in tlie jury-room, after re- 
 tiring, is cause for a new trial, although the quantity 
 drunk be small, and no indications are shown, and no sus- 
 picions are entertained by the other jurors, that the jurors 
 who partake of it are under any influence from spirituous 
 liquors, and the liquor is furnished by the attending 
 officer, at the request of a juror complaining of illness.- 
 
 § 3. The following somewhat remarkable case, narrated- 
 at length in the opinion of the court, occurred in Tennes- 
 see : " During the investigation of the cause in court, the 
 manner of the juror indicated him to be in a state of dull 
 and stupid abstraction. At night, the jury were taken 
 in care of an officer to a room in the town to consider of 
 their verdict and to be kept together. About eleven 
 o'clock at night the juror became much indisposed, and 
 was threatened with spasm, and on the verge of an attack 
 of delirium tremens. The physician who usually attended 
 him on such occasions was sent for, and he testifies, that 
 from the condition in wdiich he found his patient, and 
 from the knowledge he had of his case in general, and 
 from attendance on him during former attacks, he could 
 not have been during the investigation of the cause in 
 court in a condition to have possessed himself intelligently 
 of the facts and circumstances of the case. In the morn- 
 ing the juror continued dull and stuj)id, but, on taking a 
 draught of ardent spirits and breakfasting, he seemed 
 pretty well." ISTew trial granted.^ 
 
 § 4. But on the other hand it has been held no ground 
 of new trial, that spirituous liquors were furnished by the 
 officer to the jury during the trial, of which they drank, 
 
 ' relhani v. Pane, 1 En.e^. 5.3"). » Hon-shcafl v. The State, 6 
 
 2 Leighton v. Sari^eut, 11 Fost. Iliuiiph. .j'J. 
 119.
 
 CH. X.] JURY. MISCONDUCT. 201 
 
 but not to excess, or so as to disqualify them for an in- 
 telligent |)erformancc of their duty.* Nor that the jury 
 drank ardent sj.irits at their meals, daring the progress of 
 the trial, without proof that they were thereby disquali- 
 fied from duly considering the case.^ Nor that jurors 
 drink spirituous liquors in moderation, between the ad- 
 journment of the court in the evening, and its meeting 
 next morning, though upon the invitation of a witness of 
 the commonwealth, if it is done in the presence of the 
 sheriif, and where the invitation is merely intended as an 
 act o^ courtesy.^ ]^or that the officer having charge of 
 the jury has permitted any one of them to drink spiritu- 
 ous liquor." Xor that the jury took refreshments after 
 they retired, unless furnished by the party prevailing.^ 
 Nor, in a criminal case, that a juror complained of illness, 
 and the officer brought him a bottle of liquor, at the sug- 
 gestion of another juror, a physician; it rather appearing 
 that no one else drank, and he a proper quantity only.^ 
 Nor that a juror has privately taken, in an ante-room, 
 apart from and without the knowledge of his fellows, as 
 a medicine, for the relief of a disease under wdiich he w^as 
 manifestly laboring, a small quantity of spirituous liquor, 
 during the deliberations of the jury.^ Nor that a jury- 
 man drinks spirituous liquors during the trial, at his own 
 expense, and in moderate quantity.^ So the introduction 
 
 ' Rowe V. The State, 11 Ilunipli. ^ Pope v. State, B6 Miss. 121. 
 491. 7 Gilmanton v. Ham, 38 K. H. 
 
 2 Stone V. The State, 4 Humph. 108. 
 
 27. •* Wilson r. Abrahams. («) 1 Hill, 
 
 3 Thompson's Case, 8 Gratt. G37. 207 (ovcrnUing Braut jj. Fowler, 
 * Davis V. People, 19 111. 74. 7 Cow. 562). 
 
 5 The State v. Sparrow. 3 Murph. 
 487. 
 
 (a) In this case Bronson, J., remarked : " If one of the jurors drink a 
 glass of spirituous liquor while absent from court, I cannot think it a 
 sufficient ground for setting aside the verdict, unless there is some reason 
 to suppose that the juror drank to excess, or at the expense, or on the 
 invitation, of one of the parties. I agree that it would be well that all 
 men should abstain from the use of intoxicating drinks; but until
 
 202 THE LAW OF fEW TRIALS. [CIL X. 
 
 of cider into the jury room, even in a capital case, was 
 hold no ground of new trial.* 
 
 § 5. It has been held that a new trial should not be 
 granted u])on an affidavit, "that during the trial, or at 
 least a portion of it, one of the jurors was to all appear- 
 ance asleep."^ Or because a juror had a chill and drowse.^ 
 
 § 6. " The utmost precaution should at all times be ob- 
 served to prevent any attempt to forestall the judgment 
 or to bias the mind of a juror in i^eference to the i^erits 
 of any issue or question which, in the discharge of his 
 duties, he may be called upon to decide. All trials by 
 jury ought to be effectually guarded against the exertion 
 of every species of improper influence ; and the law will 
 never allow a party to derive any possible advantage from 
 it. It is therefore an established and salutary rule of law, 
 that the least intermeddling with the jurors is a sufficient 
 cause for setting aside the verdict. "•'(^0 More especially 
 
 ' Com. ?), Roby, 12 Pick. 496. * Per Movrick. J., Shea v. Law- 
 
 2 PcUiam V. Page, 1 Eng. 535. rence, 1 Allen, 1G8-9. 
 * Baxter v. The People, 3 Gilm. 
 368. 
 
 that sentiment becomes nearly or quite universal, I think it should not 
 be imposed as a law upon a juror, in those cases where he is permitted, 
 for a night, or an hour, to go wheresoever he pleases, without being at- 
 tended by an oflicer. There is no authority, ancient or modern, which 
 goes far enough to uphold such a doctrine. When there is reason to 
 suspect that he has drank so much, at his own expense, as to unfit him 
 for the proper discharge of his duty, the verdict ought not to stand. 
 But every irregularity which would subject the juror to censure, whether 
 in drinking, &c., should not overturn the verdict, unless there be some 
 reason to suspect that the irregularity uuiy have had an influence on the 
 final result." 
 
 (a) It is ground of new trial in Massachusetts, if cither party during 
 the term give to a jury any treat or gratuity. Rev. Sts., ch. 95, s. 31. 
 See Gen. Sts. A jury were directed, upon the agreement of parties, to 
 seal up their verdict, and deliver it to the odiccr, and separate. They 
 did so ; and, before the verdict was opened, a portion of the jury had
 
 en. X.] JURY. MISCONDUCT. 203 
 
 the least attempt on the part of a prevailing party to 
 influence a juror is held ground for a new trial.' And it 
 is not necessary that the attempt shouhl he made hy a 
 party, nor by his agent, if done in his hehalf ; nor is it 
 necessary that the jurors should, in fact, have been thereby 
 controlled or determined in the verdict.^ Thus any com- 
 munication made to the jury by the prevailing party, 
 while deliberating, avoids the verdict; though it is other- 
 wise where the communication is made by a person not 
 interested.' So where a party, while his case is on trial, 
 declares in the presence and hearing of some of the jurors, 
 that the testimony of a material witness for his opponent 
 is utterly false, such statements will be presumed to have 
 some effect upon the jury, and, although the party swear 
 that he did not know that any of the jury were present, 
 a verdict in his favor will be set aside.^ So the entertain- 
 ment of a juror by the counsel for the successful party, 
 while the cause is pending, is held sutRcient ground for a 
 new trial.^ Or by the prevailing party at his expense.'' 
 
 § 7. A new trial was granted, where jurors, during the 
 
 1 Hilton V. Sonthwick, 5 Sbep. ^ The People v. Carnal, 1 Parker, 
 303; Tucker v. South, &c., 5 R. I. 256. 
 
 558. * Cilley v. Bartlett, 19 N. H. 313. 
 
 2 Cohen v. Robert, 2 Strobh. 410. s Walker v. Hunter, 17 Geo. 364. 
 See Hare v. The State, 4 How. 187; « Walker v. Walker, 11 Geo. 203; 
 Boles V. The State, 13 Sm. & M. Deacon v. Shreve, 2 Zabr. 176. 
 398 ; McCann v. The State, 9 ib. Ace. Tvrrell v. Bristow, 1 Ale. & 
 465; Thiilin v. Den, 4 Har. 76; Nap. 398. See Chadbourn «. Frank- 
 Ritchie V. Holbrook, 7 S. & R. 458; lin, 5 Gray, 312. 
 
 State V. Hascall, 6 N. H. 352. 
 
 conversations with the attorney of the plaintiff, in whose favor the ver- 
 dict was found, in relation to it. Upon the verdict being read in court, 
 the jury expressed their dissatisfaction with it, saying they had made a 
 mistake in the computation of interest. They were directed to retire, 
 and consider further of their verdict, which they did, and returned a 
 second verdict for a larger sum. Held, the conversation, whatever it 
 might be, amounted to such misbehavior, on the part both of the jurors 
 and the attorney, as to vitiate the second verdict. Martin v. Morelock, 
 32 111. 485.
 
 204 THE LAW OF NEW TRIALS. [CIL X, 
 
 trial, went with tlie plaintiff's witnesses to the locus, with- 
 out the knowledge of tlie defendant, for a view, and expla- 
 nation of tlie testimony.(a) 
 
 § 8. But on the other hand it is hold that a communi- 
 cation made to a juror, without apparently heing intend- 
 ed, and in its nature not calculated, to hias him, is not 
 ground for a new trial. As where a party, during a tem- 
 porary adjournment of the court, told one of the jury, 
 that he had been home to get two deeds, which were after- 
 wards used on the trial. ^ So evidence, that the party's 
 agent conversed relating to the case in the hearing of some 
 of the jurors, is not sufficient to set aside the verdict, if 
 from the uncontradicted affidavits of all the jurors it ap- 
 pears that they heard no remarks, or none which could 
 have a bearing upon the case.^ So where a person in the 
 employ of the successful party met two of the jurors, 
 during the trial, at an oyster saloon, ate his oysters in the 
 same box with them and a fourth person, and, on coming 
 out first, })aid for the party without their knowledge; but 
 no conversation was had concernino; the case: there beino- 
 no cause to believe that the two jurors were influenced by 
 the occurrence, held no ground for a new trial. ^ Nor that, 
 pending the trial, and after the court had adjouiMiod for 
 the night, the prevailing party, Avitli his brother-in-law, 
 met some of the jurors at a drinking shop, and treated 
 them to some liquor, and was there seen in conversation 
 apart with one of the jurors.^ ISTor that the defendant, 
 during the recess of the court, invited one of the jurors 
 
 ' White T: Wood. 8 Cusli. 413. * McCartv v. McCarty, 4 Rich. 
 
 2 Smith «. Powers, IT) N. II. r)4fi. 594. Aec. 'Johnson v. Porter, 3 
 
 ^ Eiikin V. iMorris, t-tc, 4 Zabr. IlarriuL;. o2.'). 
 538. 
 
 (a) A verdict will not be set aside on the ground that the jury viewed 
 the place in question, in tiie absence of the plaintiff, if the plaintiff had 
 received notice of all that was done at such view, before the trial, and 
 had waived all objections to it. Sanderson v. Nashua, 44 N. 11. 492,
 
 en. X.] JURY. MISCONDUCT. 205 
 
 at his expense to take a glass of soda with him, and also 
 to dine with hini at a liotel. It appeared that nothing 
 was said to the juror about the suit, and that he and the 
 defendant were neighl>ors, and in the habit of doing- 
 mutual favors, and moreover that he was in favor of ren- 
 dering a verdict for the plaintiff, but by consent of the 
 parties the opinion of a majority of the jurors was taken 
 as the verdict, they being unable otherwise to agree, and 
 thus a verdict was rendered for the defendant.' Jsor that, 
 pending the trial, the prevailing party conveyed a juror 
 living on the same road home in his wagon several miles, 
 but no conversation relative to the cause took place ; 
 although the conduct was indiscreet and incorrect, and, 
 if persisted in after a knowledge of its impropriety, would 
 afford sufficient cause for a new trial. ^ ISTor because, after 
 the jury in a criminal case had retired in the care of an 
 officer, a person, in the absence of the officer, entered the 
 room, and was seated by invitation of the jury, but no 
 other communication was held or attempted with or by 
 him, and the officer upon his return removed him; it not 
 appearing that there was any improper motive for the 
 act.^ Nor because, in a capital trial, one of the jurors, in 
 presence of the court and jury, asked a person to give 
 him a vest.'' ISTor that the jury passed through crowds of 
 people in going to tlie hotel where they dined, or dined at 
 the public table under the charge of their officer; no one 
 speaking to or tampering with them.^ In this case Green, 
 J., remarked:^ " AVhere crowds of persons attend the 
 court and fill the hotels (in many places not very spacious 
 or well arranged) it is hot easy to keep the jury always 
 entirely apart from others. The best that can be done is 
 to have the jury kept together; to see that none speak to 
 them, and to secure them against any attempt of others 
 
 ' Vaughn w.Dotson, 2 Swan, 348. * Rowe o. The State, 11 Humph. 
 
 2 Hilton V. Soulhwick, S Shep. 491. 
 303. 5 Ibid. 
 
 3 Luster c. The State, 11 Humph. 6 x^id. 
 1G9.
 
 206 THE LAW OF NEW TRIALS. [CH. X. 
 
 to tamper with them. If this is done, the purity of the 
 trial is preserved, and the verdict is not vitiated by any 
 slio-ht irregularities. But for these irregularities, the 
 officer permitting them, and the jurors guilty of them, 
 should be held to account." 
 
 § 9. It is often held, particularly in the earlier cases, 
 to be ground of new trial, that a juror himself talked, or 
 heard others talk, about the case.X«) As where the jury, 
 wdiile in their room, conversed with persons on the street, 
 in regard to the case.'^ Or where the son-in-law of the 
 prevailing party spoke to a juror about the case. In this 
 case the court remarked : " It is not necessary to show 
 that the mind of the juror was influenced. Perhaps it is 
 not in his power to say. If he was, there is sufficient 
 cause to set aside the verdict, and if he was not, and tjie 
 party who has gained the verdict has a good cause, he will 
 still be entitled to a verdict upon another trial."^ So a 
 conversation, held by one or more of the jurors, in a trial 
 for felony, with a person not a member of the jury, nor 
 having charge of them, when unexplained, is good ground 
 for a new trial ; unless it appears that no influence unfa- 
 vorable to the prisoner was exerted.'' So where a jury- 
 man, after being charged with the case, spoke to persons 
 not members of the jury about the evidence, and expressed 
 his opinion to them as to the rights of one of the parties ; 
 it was held that this was a serious indiscretion, worthy 
 of judicial censure, and that, if others had addressed such 
 juror in relation to the case, it would have been sufficient 
 ground for a new trial.^ 
 
 ' Dana v. Koberts, 1 Root, 184 ; ' Knight v. Frceport, 13 Mass. 
 
 Lord Delanicr's Case, 4 llarg. St. 218. « tt . 
 
 rpj. 2^2 ^ UWey v. The State, 9 Humph. 
 
 ^ Farrar v. Ohio, 2 Ohio (N. S.), 64G. 
 
 54 5 Foster v. Brooks, G Geo. 287. 
 
 (a) Where a juror tallvcd about the case, and gave his opinion, /wc 
 ment was arrested. Bennett v. Howard, 3 Day, 223.
 
 en. X.] JURY. MISCONDUCT. 207 
 
 § 10. Indictment for an assault with intent to murder. 
 Defence, insanity. During the trial, a juror for the term, 
 but not trying the case, who occupied the same room with 
 a sitting juror, said to him, without any corrupt purpose, 
 after they had retired for the night, "that he guessed the 
 prisoner was a hard case, and that he had lieard that when 
 he was in the book business at the South, on a person 
 refusing to take a book that he had subscribed for, the 
 prisoner drew two pistols, and threatened to blow his 
 brains out if he did not take it." The juror testified that 
 he gave but little attention to the remark, and was not 
 aifected by it. Held, the verdict should be set aside. '(a) 
 
 » State V. Andrews, 29 Conn. 100. 
 
 (tt) But it was held that the same statement, made, during the trial, 
 in a stage-coach, in which two of the jury were, with others, passengers, 
 was not sufiBcient ground of new trial. The court made the following 
 distinction. " These remarks may be regarded as accidental, the hearing 
 of which the jurors could not have avoided, situated as they were, and 
 which in fact, as they say, they did not notice or regard. But it is other- 
 wise with the conversation in the bedroom. That was neither accidental, 
 unavoidable, nor unheeded. It was a part of a conversation private, free, 
 and confidential, and which took place after the two jurors had retired to 
 rest, occupying the same room, if not the same bed." Per Ellsworth, J., 
 State V. Andrews, 29 Conn. 104. After the evidence was closed, but 
 before argument and during an adjournment of the court, a juror called 
 upon the defendant, and obtained a printed copy of evidence in a 
 former trial, read it, and noticed that the evidence of certain witnesses 
 differed from that given by them on the stand. The verdict was for the 
 plaintiff for nominal damages. Upon motion by him to set aside the 
 verdict, held, the evidence of the juror as to those proceedings was ad- 
 missible, and a new trial must be granted. Heffron v. Gallupe, 55 Maine, 
 563. So where, in an action for the unlawful taking of a heifer and other 
 cattle, during an inspection by the jury under | 328 of the (Ind.) Code, a 
 statement was made by a witness for the plaintiff, in the hearing of one or 
 more of the jurors, to the effect that one or both of the horns of said roau 
 heifer had l)cen filed or scraped to disguise or conceal the point where it 
 had been broken, and the verdict, without evidence thereof, seemed 
 founded on such a theory. Erwin v. Bulla, 29 Ind. 95. So where two 
 of the jurors conversed with other persons about the case, and discussed
 
 208 THE LAW OF NEW TRIALS. [Cll. X. 
 
 § 11. It will be seen, however, that in some of the cases 
 cited upon this ])oiiit there have been other elements of 
 objection to the venru't, than the simple fact of a juror's 
 talking about the case. It is remarked (in substance), 
 " Scattered throughout the reports, there are far more 
 cases than there should be, of applications for new trials, 
 founded u[i()n evidence tending to show, sometimes, at- 
 tem[)ts by a party to prejudice a jury in liis favor, and, 
 sometimes, conduct in jurymen indicative of a forgetful- 
 ness of the important responsibilities resting upon them."' 
 And the w^eight of authority would seem now to be, that 
 conversation with jurymen, more especially unless held 
 when they were together, is not ground for a new trial.2(rt) 
 That, though the jury be guilty of misconduct by conver- 
 
 ' Per Gilchrist, J., Mcllvaine v. Case, G Leigh, G15 ; Luster v. The 
 
 Wilkins, 12 N. 11. 474. State, 11 Humph. IG'J; Rome v. The 
 
 ^ Davis r. Taylor, 2 Chit. R. 2G8; Stale, ib. 491. 
 Parker's Case, 2 RoUe, R. 85; Hall's 
 
 its merits, and commented upon the evidence, in presence of a number 
 of persons at table, and erroneously said tliat the defendant, sworn as a 
 witness, had contradicted himself. Blalock v. Phillips, 38 Ga. 216. So 
 where a party pays unusual civilities and attentions to the jurors, and 
 " treats" them, and behaves, in general, so as to excite a reasonable sus- 
 picion that this is done for the purpose of influencing the verdict. Phil- 
 lipsburg V. Fulmer, 2 Vroom, 52. So where, during the progress of a 
 criminal trial, one of the prosecuting counsel kept the horse of a juror 
 over night in his stable, free of charge; although this was believed not to 
 have influenced the juryman's mind. Springer v. State, 34 Ga. 379. Uut 
 where jurors, upon a trial to which a town was a party, were treated to 
 eatables and drink by one of the inhabitants ; held, on motion for a new 
 trial, that this must be at the expense of the town, or the act of some 
 authorized agent, in order to constitute a giving by a party to the suit 
 within the meaning of the (Vermont) statute. Carlisle v. Sheldon, 38 
 Vt. 440. The mere fact that a juror, pending a trial, and whilst the jury 
 were separated for dinner, expressed the opinion that the jury would find 
 for the plaiatifT, would not be sufficient ground for a new trial. Harrison 
 V. Price, 22 Ind. 1G5. 
 
 (a.) In one case a new trial was refused, even where a number of per- 
 sons went into the jury-room and conversed with the jurors about the 
 case. Barbour v. Archer, 3 JJibb, 8.
 
 ClI. X.] JURY. MISCONDUCT. 209 
 
 sation and intcrconrse with others diiriiii;- tlio progress of 
 the trial, sufficient to merit reprimand or punishment, a 
 new trial will not he granted, if" it appears that no ahuse 
 or injury resulted to the defendant.' Thus the mere fact 
 that a juror, cvoi in a capital case, has made a remark to 
 a hystander, or a hystander to liim, will not entitle the 
 prisoner to a new trial.- So a juror, while the cause was 
 on trial, said to one of the plaintiff's witnesses, that the 
 trial had hcen a i)rotracted one; that a witness seldom had 
 so rigid a cross-examination as A. (another witness for 
 the plaintifi:'), and that he hore it well. Held no ground 
 for setting aside the verdict for the defendants. In this 
 case the court remarked, in reference to the distinction, 
 which we have often had occasion to notice, between the 
 effect of irregularity on the part of a juror upon the j/'uror 
 himself^ as ground of rejjrimand or punishment, and upon 
 the case^ as a reason for setting aside the verdict: "It is 
 undoubtedly the duty of courts, as far as practicable, to 
 preserve the purity of trials by jury; and it is said that 
 this can best be effected by setting aside every verdict, 
 where a juror has spoken of the cause contrary to his oath. 
 But it is difficult to see how such a result would be pro- 
 duced. The juror does not suffer by setting aside the 
 verdict ; it is the successful party alone that is injured. — 
 The person to whom the conversation Av^as addressed does 
 not appear in any manner to have acted in behalf of the 
 defendants, or to have attempted to influence the mind of 
 the juror in their favor. "^ So, during the trial, a juryman 
 said to a witness for the plaintiff", that " they would throw 
 the cost of the action upon the defendant, of course ;" 
 to which the witness replied, that "they could, of course." 
 Held, although such conduct was a violation of duty, yet, 
 as it did not show any bias or prejudice, it was no cause 
 for granting a new trial to the defendant. Otherwise, if 
 
 ' Collier V. State, 20 Ark. 36. 3 Pettibonc v. PheJiw, 13 Coun. 
 
 2 Epps V. State, 19 Geo. 103. 445. 
 
 14
 
 210 THE LA^y of new trials. [cii. x. 
 
 the plaintiff had been in-ivy to such conversation.' So 
 that a juror, after the verdict was agreed on, but before 
 it was returned into court, tohl a person not a jui'or, that 
 it was for the plaintiff, is not a sufficient cause for setting 
 the verdict aside.^ Nor that some of the jurors, after being 
 sworn, entered a grocery, and had conversation with vari- 
 ous persons, not in rehition to the case, and in presence 
 of the bailiff and of the accused.^ Nor that a witness 
 for the prosecution made statements in the presence of a 
 juror, not knowing him to be present, prejudicial to the 
 character of the prisoner.^ Nor that idle words were 
 spoken to a juror by a bystander, about one of the parties, 
 it not ap})earing that there was any fault on the part of 
 the juror, or the prevailing party .'^ 
 
 § 12. After the jury in a capital case had been charged 
 and committed to the care of an officer, they were out, 
 locked up in the usual jury-room, from Thursday at 5 
 P. M. till Saturday at 10 A. M. During that time they 
 frequently separated to obey the calls of nature, one going 
 out at a time under the charge of the officer; and one 
 juror did this six times: during the absence of the officer, 
 the other jurors remained locked up in their room. One 
 juror went to a drug store, one hundred and fifty yards 
 off, for some medicine — being sick — under the charge of 
 an officer, and, in reply to a question if they had agreed, 
 he answered that they had not. The jurors ate and drank 
 with the permission of the court, and sometimes in vio- 
 lation of the orders of the court. They dropped notes 
 from the windows of the room in which they were con- 
 fined, and one juror stood on the outside of the closed 
 door and conversed privately with a stranger for more 
 than ten minutes. Several jurors received letters, and 
 also conversed with persons from the windows of their 
 
 ' Mcllvaine v. Wilkins, 12 N. H. » Biirtine v. State, 18 Gpo. 534. 
 
 474. * The State v. Ayer, 'S Fost. 301. 
 
 * Fowler v. Tuttle, 4 Fost. 9. ^ Stewart v. Small, 5 Miss. 5io.
 
 CII. X.] JURY. MISCONDUCT. 211 
 
 room. Tlie neijro servants and cliildren of some of them 
 visited them, hut what was the suhject of the notes and 
 the various conversations did not appear. Held, that 
 there was a dilicrence hetwcen a cause for a new trial and 
 a case of mis-trial: that when tliere were any circum- 
 stances, which cast a suspicion upon the verdict by show- 
 ing that there might have been undue and improper influ- 
 ences exerted on the jury, it was in the discretion of the 
 presiding judge to grant a new trial ; but, if it appear that 
 undue influences were exerted on the jury, there has been 
 no trial, and the court on appeal will grant a trial as a 
 matter of law. In this case, as it did not appear that 
 undue influences had been exerted on the jury, the court 
 could not declare the verdict to be the event of no trial, 
 but were of the opinion that the presiding judge would 
 have had good ground for granting a new trial. ^ 
 
 § 12a. Where one of the jury, during a trial, called to 
 a person in the street, from a window of the court-house, 
 and asked him to tell his (the juror's) wife to send him 
 his supper; to which the person addressed replied "well," 
 and afterwards delivered the message, and the supper was 
 sent, and the oflicer in charge of the jury received it from 
 the hands of the persons who brought it, and sent them 
 to the opposite side of the room from the }ury, at a dis- 
 tance of about sixty feet ; and it was proved that there 
 was no communication with the jury, except as above 
 stated : held, there was no improper tampering with, or 
 sinister influence brought to bear upon the jury .^ 
 
 § 13. It is held that little weight is to be attached to 
 the aflidavit of a juror, that he was not influenced by de- 
 clarations made in his presence. " He may think it is so, 
 and after all his mind be insensibly affected." In New 
 Hampshire, the aflidavit will not be received.' 
 
 > The State t). Tilghman, 11 Ired. « Ned r. State, 33 Miss. 364. 
 513. » State v. Andrews, 2!) Coun. 105.
 
 212 THE LAW OF NEW TRIALS. [ci£. X. 
 
 § 14. It is ground for a new trial, that the jury were 
 left by the sheritl:? So where the officer having them in 
 charge spoke to the jury.^ So Avhere two officers in charge 
 of tlie jury said, in their hearing, that it was a worse case 
 than A.'s, and that ])ul)lic 0})inion was against the pri- 
 soner. And the affidavits of jurors were held admissible 
 to [jrove this conversation. •'' But a verdict will not be set 
 aside, on the ground that the constable, who had charge 
 of tlie jury, after they had retired, urged them to give a 
 verdict for the plaintiff, who prevailed.^ So where, after 
 the jury had been out eighteen hours, the bailiff told them 
 that they should have nothing more to eat and no water 
 to drink, unless they decided one way or the other; but 
 he intended it as a jest, and some of the jurors so under- 
 stood it, though others were under the impression that it 
 was by order of the court: held, it was not tlie natural 
 effect of such a communication to produce an impression 
 improperly iniiuencing the verdict, and therefore the con- 
 viction should stand, though the officer had acted impro- 
 perly.^(a) 
 
 § 15. Where a jury, after having retired, had privately 
 examined a witness, a new trial was granted.^ So where 
 the jury after a charge conversed with a witness.' So 
 Avhere the justice deliberated with tliejury.^ 
 
 • Com. V. Wormley, 8 Gratt. 712. State v. Brazil, Geo. Decis. pt. 2, 
 
 2 Helms V. The State, 13 S. & M. 107 ; Smith v. Graves, 1 Brev. 16. 
 500. See Heiriek r. Blair, 1 John. Ch. 
 
 3 Ibid. 101 ; Bediugton v. Southall, 4 Price, 
 « Baker v. Simmons, 29 Barb. 232. 
 
 198. ? The State v. Brazil, Geo. Decis. 
 
 5 Pope V. Slate, 30 Miss. 121. pt. 2, 107. 
 
 ^ Smith V. Graves. 1 Brev. 1(5 ; ^ Taylor v. Betslbrd, 13 John. 
 
 Metcalf 's Case, Cro. Eliz. 189; Per- 487. 
 riue 0. Van Note, 1 South. 140; The 
 
 (a.) When a sheriff makes improper remarks to a juryman, he may be 
 fined for his conduct, but it does not vitiate the verdict. Reins v. People, 
 30 III. 256.
 
 CII. X.] JURY. MISCONDUCT. 213 
 
 § 16. Upon the ground tliat such testimony is not given 
 on oath, and is given without the knowledge of those to 
 be affected by it, and who have therefore no opportunity 
 of meeting and repelling it;^ it has been held sufficient 
 reason for a new trial, tluit a juror obtained information 
 about the subject of trial and informed the others,^ or tes- 
 tified to his follows,^ or stated tacts, and also spoke against 
 the losing part}'.^ JNIore especially in a criminal prosecu- 
 tion, and where the evidence as to a material point is con- 
 flicting, and the statements influence the jury to decide 
 against the prisoner. And the burden is not on the pri- 
 soner to show affirmatively that he was thereby preju- 
 diced.^ As where a juror stated to his fellows, that he 
 had heard a witness, whose credibility was attacked on 
 the trial, sworn before the grand jury, and that his state- 
 ments were the same as he had made on the trial ; and it 
 appeared that this statement had much influence in pro- 
 ducing; the verdict.^ 
 
 § 17. But on the other hand it is held no ground of new 
 trial, that two jurors said in the jurj'-room, that the party 
 who was alleged to have paid a certain bond was so accu- 
 rate a man, that he would not have paid it without taking 
 a receipt; and that the two jurors admitted that they 
 joined in the verdict for this reason alone.^ IlTor that one 
 juror made declarations which discredited a witness, and 
 by which the others were influenced.* IN'or that the jurj^ 
 heard the statement of one of their fellows, in relation to 
 the case, in their box; unless a brief of the evidence be 
 filed in pursuance of the rule of court; or if it is manifest 
 
 • PerTurley, J.,Douston ■». The 523 (a motion in arrest of judg- 
 State, 6 Humph. 275. ment). 
 
 2 Brunson v. Gorham, 2 Yea. 1G6. s Sam v. The State, 1 Swan, Gl. 
 
 3 Bradley ». Bradley. 4 Dall. 112; ^ Donston v. Slate, 6 Humph. 
 Booby V. The State, 4 Yerg. Ill; 275. 
 
 Douston V. The State, 6 Humph. ' Price v. Warren, 1 Hen. & M. 
 
 275; Sam v. The State, 1 Swan, 61; 385. 
 
 Price V. "Warren, 1 Hen. & M. 885. s Purinton ». Humphreys, G 
 
 * Talmadge o. Northrop, 1 Root, Grecnl. 379.
 
 214 THE LAW OF NEW TRIALS. [CIL X. 
 
 that tlioro wa^ evidence sufficient to sustain the findini^s, 
 wholly indejiendent of sucli statement.' Nor, in a crimi- 
 nal case, u})on the unsupitorted affidavit of the prisoner, 
 that after the jur}^ retired one of thein made a statement 
 as of liis own knowledge, that the prisoner was a violent, 
 dangerous man.^ Nor that, in a criminal case, the judge 
 instructed the jury, that they might refer to their own 
 personal knowledge of certain puhlic outrages; the indict- 
 ment being brought for a publication alleged to encourage 
 such outrages. Lord Ellenborough took tlie distinction, 
 that the judge "made the observation with reference to 
 what they knew as a matter of illustration, that it formed 
 a part of the history of the county, that such outrages 
 had been committed; but he did not advise them to rely 
 on that as a source of information on wdiich they were to 
 found their verdict, or as forming a branch of evidence 
 of itself. "3 
 
 § 18. Where a person, who was not a sworn officer, was 
 permitted to go to the jury-room after the jury had retired, 
 in a capital case, and to have charge of them in the ab- 
 sence of the bailiff; it was held sufficient ground for a 
 new trial.^ Otherwise, where, after a jury had retired 
 under the attendance of an officer, and before the court 
 adjourned, another officer was sworn to attend upon them, 
 and after the adjournment a third was sworn by the clerk, 
 to supply the place of the second for a few minutes ; this 
 being according to usage.''(«) 
 
 • Davis V. Lowman, 9 Geo. 504. * TTaro v. The State, 4 How. 
 
 2 Nolcn V. State, 2 Head, .WO. Miss. 187. 
 
 3 King V. LuUon, 4 M. & S. 532. ^ The Commonwealth v. Jen- 
 
 kins, Thacher's Grim. Cas. 118. 
 
 (a) The fact that a juror was absent for a1)out half an hour from the 
 jury-room, after the jury had retired, is not alone ground for a new trial, 
 in a civil action. Perkins v. Ermel, 2 Kans. 325. The jury in a capi- 
 tal case were taken, under the charge of two sworn bailiffs, to a room in 
 a hotel three hundred yards from the court-room, to consider of their ver-
 
 en. X.J JURY. MISCONDUCT. 215 
 
 § 19. A frequent o^roniid of application for a new trial 
 is the alleged introduction of im[)roper papers to the jury- 
 room. Upon this subject it is said, " The decisions— are 
 contradictory. Some of the ancient cases are very strict, 
 but of late years courts have been less inclined to be 
 rigid. "1 
 
 § 20. A rule seems to have formerly prevailed, that 
 even papers put in evidence would not go to the jury, 
 unless they were papers under seal. The rule seems to 
 have grown out of the peculiar and somewhat whimsical 
 
 » Hackley v. Hastie, 3 John. 252. 
 
 diet ; but it was sliown by the testimony of the bailiffs that no person had 
 any communication with them during their retirement. Held, that such 
 conduct, though illegal and improper on the part of the bailiff, was not, 
 under the evidence as to the absence of all improper influences, good cause 
 for setting aside the verdict. Caleb v. State, 39 Miss. 721. Upon motion 
 to set aside a verdict of guilty in a capital case, it appeared that during the 
 trial, upon an order of the court directing the jury to be secluded in the 
 usual manner, they had been taken to a public inn, and there allowed to 
 take some of their meals in the same room with the other guests, but in 
 the presence of the officers; that, on another occasion, a juror was allowed 
 to go alone into his own house and remain there some minutes, but, from 
 the testimony of such juror himself, that he had no communication with 
 other persons while in the house as to the merits of the cause ; that an- 
 other juror repeatedly visited his home, in company with an officer; and 
 that members of the jury drank ardent spirits at various times during 
 the trial, but not to excess. Held, there was no ground for granting the 
 motion. Nor will such a motion be granted, where one of the jury went 
 with an officer into an oyster saloon, and there overheard an expression 
 of opinion by another person upon the merits of the cause; and a similar 
 opinion was expressed by a drunken man in the hearing of the jury; and 
 some of the jury read part of a newspaper report of the evidence given 
 at the trial ; where there is no reason to suppose that they were influ- 
 enced thereby. State v. Cucuel, 2 Vroom, 249. So where the officer 
 permits a juror to go into his own house to change his linen, if the juror 
 is in sight of the officer all the time, except when in his room, and 
 he remains there no longer than is reasonably required ; the separation 
 not being attended with any suspicion of abuse, or of improper influence. 
 State V. O'Brien, 7 R. I. 336.
 
 216 THE LAW OF NEW TRIALS. [CII. X. 
 
 sacredness once attached to seals, as appertaining exclu- 
 sively to men of rank and property. It is now no longer 
 in force, although Mr. Graham states the practice in I^Tew 
 York in his day to have been, not to allow papers to go 
 to the jury without consent.^ 
 
 § 21. The distinction is made, that, " if a paper not in 
 evidence is delivered to the jury by design, b}' the party 
 in whose favor the verdict is returned, the verdict shall 
 be set aside, even if the paper is immaterial. So where 
 a paper, which is ca})able of influencing the jnry on the 
 side of the prevailing party, goes to the jury by accident, 
 and is read by them — although the jury may think that 
 they were not influenced by such paper, for it is impossible 
 for them to say what eflect 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.- 
 
 § 22. It has been often held that the delivery to the 
 jury of an unauthorized book or paper is ground of new 
 trial.^ Thus although the paper is said to he a mere esti- 
 mate^ shown to the jury by way of ccdculation.\a) The 
 court remark, " "We know not what eftect this paper may 
 have produced."'' And where a material paper was given 
 
 ' Graham on N. T. 80 ; Bull. K pi. 18 ; Killen v. Listriink, 7 Geo. 
 
 P. 308 ; Ale.xamlcT v. Jamiosou, 5 283 ; Sliantle's Case, 2 Morg. 20 ; 
 
 Binn. 2:38. Bensen v. Fish, 6 Greenl. Ul. 
 
 ^ llix V. Drurv, 5 Pick. 296; Kil- " Shcaff v. Gray, 3 Yea. 273. 
 
 len V. Sistrunk. "7 Geo. 283. ^ n^jj. 
 
 3 Co. Lit. 227 ; Vin. Abr. Trial, 
 
 (a) The court refused to instruct the jury, after their discharge, to de- 
 liver to counsel the calculations on which their verdict was based, stating 
 that it was discretionary for them to do so or not. Held no error. Snel- 
 ling V. Darrell, 17 Geo. 141. An affidavit, that the affiant is informed 
 and believes that the jury, while deliberating upon the verdict, read slips 
 of paper and books containing evidence produced at a former trial, is not 
 sufficient ground for a now trial. People v. Williams, 21 Cal. 31.
 
 CU. X.] JURY. MISCONDUCT. 217 
 
 to the jury by mistake, the court would not hear a juror 
 to show either that it did influence them or did not.' So 
 where a paper, calculated to mislead the jury and influence 
 their finding, was found in their room on retiring, and 
 read by them ; held sufficient ground for a new trial.^ 
 
 § 23. But the prevailing doctrine seems to be, that it 
 is discretionary whether the jury shall take books and 
 papers.^ And it is remarked in a late case, " It is not 
 enough to say that a paper was improperly sent to the 
 jury by the adverse party, without his (the counsel's) 
 knowledge. It is his duty to ascertain what papers are 
 sent to the jury, before they leave the court; and no 
 motion for a new trial should be allowed, merely because 
 this duty has been neglected. It should appear — that the 
 paper in question was sent to the jury by some mistake, 
 or through some trick or artifice of the opposite counsel."* 
 So that the jury, without permission of the court, took 
 to their room papers which were given in evidence, if, so 
 far as appears, the papers were taken inadvertently, with- 
 out improper intervention by any person, and it is not 
 shown that the jury made any use of them; is not cause 
 for a new trial in a criminal case.^ Xor, although irre- 
 gular, the sending out with the jury of a paper, which 
 contained, amongst other matters, the testimony of a de- 
 ceased witness on a former trial, proved to be correctly 
 stated therein; under instructions that no other part of 
 the paper was in evidence, and two of the jury testifying 
 that the paper was not regarded as evidence by the jury, 
 and was not read at all in the box.^ Nor that a paper 
 containing a computation of interest on certain sums 
 claimed by the plaintiff" went to the jury with the papers 
 
 ' Whitney «. Whitman, 5 Mass. 498; Burgliardt w. Van Deuseu. 4 
 
 405. ib. 378. 
 
 2 Walker ». Hunter, 17 Geo. 364. ' Per Bell, C. J., Maynard v. 
 
 3 Little V. Richards's, 57 Penn. Fellows, 43 N. H. 250. 
 
 142 ; Hovev r. Thompson, 37 111. ^ Bcrsch v. State, 13 Ind. 434. 
 538 ; Whitiiead v. Keyes, 3 Allen, ^ Riggins v. Brown, 12 Geo. 271.
 
 218 THE LAW OF NEW TRIALS. [CIL X. 
 
 in the case, when it does not appear by wliom it was given 
 to them, and no fraudulent intent or eftbrt to practise on 
 tliem is shown; although no leave was given to put the 
 paper into the hands of the jury, and the court refused to 
 admit testimony to ^Ti'ove the correctness of the calcula- 
 tion.' Xor, that the jury read a former verdict in the 
 case, but without fraud.- jS^or that a paper, not read upon 
 the trial, but the contents of which had been testified to, 
 went to the jury, among other papers in the case; unless 
 the paper conveyed some information to the jury, which 
 might, by some reasonable intendment, have had an intiu- 
 ence upon the verdict.' Nor that a paper put in evidence 
 was delivered to the jury after retiring.'' iSTor where the 
 facts proved by the paper were put in evidence, though 
 the paper was not.' Nor where the paper is wholly irre- 
 levant and immaterial.^ So, on the trial of an indictment 
 for passing a counterfeit bank note, the jury on retiring 
 found a placard stuck against the wall of their room, 
 charaino; one of the iurors with being himself a counter- 
 feiter, and insinuating that he had attended the court for 
 the purpose of getting on the jury. The paper was read 
 by the whole jury, and their verdict was, guilty. Held, 
 that this fact was no ground for setting aside the verdict, 
 unless it appeared that the juror was prevented from a de- 
 li1)erate exercise of judgment, or that the placard had the 
 cflect of a menace upon him, or influenced the delibera- 
 tions and verdict of the jury.^ So where the jury, with- 
 out the knowledge of the court or defendant's counsel, 
 sent for certain books and papers which had been referred 
 
 ' Tracy v. Card, 2 Ohio (N. S.), Vorm. 51.'); Alexander v. Jameson, 
 
 431. 5 Binn. 2:58 ; Graves v. Short, Cro. 
 
 2 Harriman v. Wilkins, 2 Appl. Eliz. OIG ; Oakley v. Steddiford, 3 
 93. John. 252. 
 
 3 Peacham v. Carter, 21 Vt. 515; ^ j^j.^ r, Eurdctt, 1 Ld. Ray. 148; 
 1 Ld. Ray. 148. 21 Verm. 515. 
 
 < Vicary v. Farthing, Cro. Eliz. ^ Ijonsdale y. Brown, 4 Wash. C. 
 
 411. And see Lott v. Macon, 2 C. 148. 
 
 Strobh. 178; Hall v. Rnpley, 10 ? ilall's Case, 6 Leigh, 015. 
 Barr, 231 ; Peacham i-. Carter, 21
 
 CH. X.] JURY. MISCONDUCT. 219 
 
 to by a Avitncr5s, but nothing aiipcured indicating any 
 design of unlUirness; held, not sufficient ground for set- 
 ting aside the verdict, although an improper proceeding.^ 
 
 § 24. As in other cases, a party may icaive his right of 
 excepting on this ground. Thus it is no ground of new 
 trial, that a book of records, containing matters not offered 
 in evidence, was, at the suggestion of the losing party, a 
 copy being proposed by the other party, and not by acci- 
 dent or mistake, given to the jury and examined by them.* 
 
 § 25. The fact that two jurors, whilst impanelled, read 
 a newspaper report of the evidence, which had no influ- 
 ence on their verdict, is not sufficient ground for a new 
 trial.3 But where a jury, without the knowledge or aid 
 of any one, procure a part of a newspaper, purporting to 
 contain the whole or a part of the charge, and use it to 
 guide their deliberations, although the charge be accurate, 
 the verdict will be set aside.* 
 
 § 26. Delivery to the jury of a map was held ground 
 for a new trial. ^ 
 
 § 27. The plaintiff's specification and the defendant's 
 offset, when properly filed in an action, become part of 
 the record, and may be used and referred to on the trial, 
 and may go to the jury in the same manner as the writ 
 and pleadings.^ 
 
 § 28. Rejection of a record, which has been exhibited 
 to the court, but not handed to the jury, is ground of 
 new trial.^ 
 
 ' Lott V. Macon, 2 Strobh. 178. < Farrar v. Ohio, 3 Ohio (N. S.)» 
 
 2 Alcott V. Boston, ttc, 11 Cush. 54. 
 
 91. 5 Jennings v. Warne, Lee's R. 
 
 3 United States i\ Rcid, 13 How. 116. 
 
 U. S. 3G1. *= Rich i\ Flanders. 39 N. II. 304. 
 
 7 Binder v. State, 5 Clarke, 457.
 
 220 THE LAW OF NEAV TRIALS. [CII. X. 
 
 § 20. It is sometimes held — tliou!j;li tlic prevailing rule 
 and practice are und()ul)te(lly the otlier way — that depo.n- 
 tions sliall not go to the jury. ^ More cs})ecially if partly 
 excluded by the court.^ So, if the jury took out a depo- 
 sition not read on the trial, it is ground of new trial. ^ Or 
 if a bundle of depositions was delivered by counsel to the 
 jury, some of which had not been used; though the jury 
 swore that they did not open the bundle.* 
 
 § 30. But it is not ground of new trial, that a deposi- 
 tion went to the jury, a paper attached to which had been 
 put in evidence.'^ Nor that depositions went to them by 
 accident, if the jury state that they were not read.^ So 
 where the judge gave permission to the jury to take out 
 with them a deposition that had been read, objection 
 being made ; held, the proceeding, if irregular, was not a 
 proper subject of exception, but the remedy should have 
 been sought by motion.^ 
 
 § 30a. Where a jury, without the fraud or agency of 
 the prevailing party, send for interrogatories read to them 
 at the trial, merely to refresh their memories, it is no 
 ground for a new trial.^ 
 
 § 31. Where a justice of the peace, while the jury are 
 deliberating upon their verdict, enters the jury -room at 
 their request, with tlie knowledge and consent of one of 
 the parties; a consent l)y such party, that the justice may 
 read to the jury the testimony of a witness, will be 
 implied.^ 
 
 § 32. It is the duty of the counsel on each side to see 
 that none of their own papers, respectively, are given to 
 
 ' Rawson 1). Curtis, 19 Til. 410. 7 ilowland v. SliorilT, &c., 5 
 
 2 Kent V. Tyson, 20 N. II. 131. Sand. 219. 
 
 3 Taylor v. Sorsby, Walker, 97. ^ Andrews v. Tinsley, 19 Geo. 
 
 4 2 liale's P. C. ;508. 30.3. 
 
 5 Haeklcv ?'. nustic, :] .Tohn. 252. ^ Hancock v. Salmon, 8 Barb. 
 
 6 Hix V. brury, 5 Pick. 290. 504.
 
 CH. X.] JURY. MISCONDUCT. 221 
 
 the jury when they retire, containing incompetent evi- 
 dence. It is ground for setting aside the verdict, if papers 
 are improperly given to the jury, unless it should be done 
 by assent, or unless there should be something which 
 should estop the opposing counsel from objecting.^ Thus 
 where the jury had the minutes of the testimony taken 
 by the counsel for the successful party. Certainly, unless 
 it affirmatively appear that the losing party could not 
 have been prejudiced by such proceeding.^ So if papers 
 written on and underscored, for the purpose of attracting 
 any special attention, are passed to the jury without the 
 knowledge of the opposing counsel or the court.^ 
 
 § 33. But where a paper containing an estimate of 
 counsel as to what was due to the plaintiff", by permission 
 of the court, was taken by the jury, the court informing 
 them that the paper was not evidence; held, this was not 
 error, though a practice not to be commended.* So, after 
 a jury had agreed, they requested the officer to hand them 
 some paper on which to reduce it to writing; and, on 
 receiving it, this was done. The officer, however, acci- 
 dentally gave them some sheets, with others, on which a 
 portion of the plaintiff^'s testimony had been taken. Held, 
 the verdict could not be set aside on that account.* 
 
 § 34. If one of the jury, before retiring, publicly 
 inquires as to a particular fact on the records of the 
 court, and, no objection being then interposed by counsel 
 on either side, it is publicly answered by the clerk; this 
 is not ground for a new trial.^ So a declaration which 
 has been withdrawn, and a bill of particulars delivered 
 under it, ought not to be taken out by the jury; but the 
 judgment will not be reversed, if the declaration is in 
 substance the same as the one on which the cause was 
 
 > Flanders v. Davis, 19 N.H. 139. < Alexander v. Dunn, 5 Ind. 122. 
 ^ Durfee v. Eveland, 8 Barb. 4G. ^ Qliddcn i\ Towle, 11 Fost. 147. 
 3 Watson V. Walker, 3 Fost. 471. ^ Alien v. Blunt, 3 W. & M. 121.
 
 222 THE LAW OF NEW TRIALS. [CII. X, 
 
 tried: and the bill is ])ut the substance of a claim, of 
 wbic'b evidence was o-iven on tbe trial. ^ So it is not 
 o-round of new trial in an indictment for murder, that 
 testimony taken at the inquest, beinj^ in the record, was 
 accidentally in the jury-room; it not appcarino; that the 
 jury read it, and the court thinking that, if read, it added 
 nothins: to the streno;th of the evidence.^ But where the 
 jury, in a trial for murder, were permitted to take with 
 them a transcript of the record containing the evidence 
 before the magistrate, though instructed that they must 
 not read such record ; it was held to be error.^ 
 
 § 35. The jury, after retiring, sent a message to the 
 judge, desiring to have Sclwyn's Nisi Prius sent to them. 
 But, though the counsel consented, Lord Tenterden 
 refused to do it.^ 
 
 § 36. In the trial of a case in wdiich the jury were to 
 decide upon both law and fact, the officer delivered to 
 them, at their request, without application to the court, 
 after they had retired, a volume of the law^s of the State, 
 containing the act upon which the indictment was 
 founded, wliich act had been commented on by the coun- 
 sel and by the court, and which volume the court would 
 have given them liberty to take with them, if requested. 
 Held, not ground for a new trial.^ But in a late case in 
 Rhode Island a verdict was set aside, because the jury 
 consulted the Revised Statutes in their room.''(«) 
 
 > Hall «. Ruplov, 10 Rarr, 2B1. ^ Com. v. Jenkins, Thacber's 
 
 2 State V. Tiiulidl, 10 Rich. 213. Crim. Cas. 118. 
 
 3 Atkins v. Stale K) Ark. ^GH. » ytale v. Smith, R. I. 33. 
 < Burrows v. Unwiu, 3 C. & P. 
 
 310. 
 
 (a) The judge, in a criminal trial, properly declined to allow the jury, 
 at the request of a respondent, to take with them to their room the Re- 
 vised Statutes, and his requested instructions, which had been given no 
 further ihun they were embraced in the general charge. State v. Kim-
 
 CII. X.] JURY. MISCONDUCT. 223 
 
 § 37. If after the jury liave retired they desire more 
 instructions, they must be called Imck; and it is a fatal 
 error for the judge to go alone into the jury-room and 
 there give them.^(a) So it is ground of new trial, that, 
 after the jury had been out six hours, the foreman wrote 
 to the judge at the chambers, that they could not agree, 
 and waited for his directions. The judge wrote an answer, 
 expressing his unwillingness that they should separate, 
 and giving further directions ; and ordering that the 
 letter should be brought into court, for the purpose of 
 filing it.^ So it is ground of new trial, that the judge 
 gave the jury his minutes;^ or, while the jury were deli- 
 berating, re})lied to their inquiry that certain evidence 
 had been given. ^(6) 
 
 1 Fish V. Smith, 13 Tnd. 563 ; 2 Sargent v. Roberts, 1 Pick, 337. 
 Taylor v. Betstbrd, 13 John. 487 ; ^ Neil v. Abel, 24 Wend. 185. 
 Yeldell v. Sbiuholster, 15 Geo. 189. * Bunn v. Croul, 10 John. 238. 
 
 ball, 50 Maine, 409. A jury, after retiring to consider of their verdict in a 
 civil cause, were allowed by the judge, at their own request, without the 
 knowledge of the parties, to have a copy of the General Statutes. Held, 
 the verdict must be set aside. Merrill v. Nary, 10 Allen, 416. 
 
 (a) A jury, having settled the rights of the parties, but being in doubt 
 as to the proper mode of making a computation of what was due, called 
 the clerk into their room, and inquired of him, and were correctly in- 
 formed, how the computation should be made. Held, no error or injury 
 having resulted, the irregularity would not set aside the verdict. Den- 
 nison v. Pow-ers, 35 Verm. 39. 
 
 {b) The refusal of a judge to make an inquiry of the jury as to their 
 finding of a particular fact, on the morning after they have rendered their 
 verdict and separated, is no ground for exception. Green v. Clay, 10 
 Allen, 90. A verdict for the face of a note only which by its terms 
 bears interest is erroneous, and the judge may before accepting the ver- 
 dict recommit the case with proper instructions. Smith v. Keels, 15 
 Eich (S. C.) L. 318. Upon the request of a jury, after deliberation, for 
 further instructions, it is within the discretion of the judge, to refuse to 
 give or entertain a request for further instructions upon a point on which 
 they are not asked by the jury. Kellogg v. French, 15 Gray, 354; Harvey 
 V. Graham, 46 N. H. 165. Where the court instructed the jury, that, " if 
 they believed the evidence, they must find for the defendant," and they 
 were afterwards recalled, and reinstructed in the same way, accompanied
 
 224 THE LAW OP NEW TRIALS. [CH. X. 
 
 § 38. But oil the other hand it has boon liold, tliat the 
 judiie may go into the juiy-rooni ;' or answer a question 
 of tlie foreman, who came in after tlie jury had retired, 
 and in([uired privately as to tlie form of their verdict;^ 
 or answer a question of the jury.^ ISo, after a jury have 
 retired, they may be called in, and a ])a|)er read in evi- 
 dence but accidentally witliheld may then be delivered to 
 them.'* It is said : " The intercourse between the jury and 
 the bench is, in many respects, very confidential. Often, 
 the communications from the jury are of that kind which 
 ought not to be communicated to the bar. There can be 
 but one proper rule on the subject; tliat is, to trust all 
 these matters to the discretion of the judge."* 
 
 § 39. In a case of murder, it was held that a new^ trial 
 should not be granted, on account of an article in a news- 
 paper, written by the presiding judge, respecting another 
 crime imputed to the prisoner, and calling him an "un- 
 
 1 Thayer v. Van Vlect, 5 .John. ^ Dent v. King, 1 Kelly, 200. 
 lie ; Hancock v. Loomia, 8 Barb. ■• Flanders v. Colby, 8 Fost. 34. 
 564. * Per O'Neall, J., Goldsmith v. 
 
 2 Goldsmith v. Solomons, 2 Solomons, 2 Strobh. 2yG. 
 Strobh. 290. 
 
 with an intimation that they would incur the penalties of contempt unless 
 they gave in a verdict for the defendant ; held, the charge was erroneous, 
 in referring a question to the jury and then assuming to control its deci- 
 sion. Crutcher v. Memphis, 38 Ala. 579. The court may correct the error 
 of giving an oral charge by withdrawing the oral instructions, and after- 
 wards reducing them to writing, and then reading them, with the direction 
 to disregard those flrst given. People v. Garcia, 25 Cal. 531. A defend- 
 ant in a criminal case cannot object that the charge was given orally, 
 and afterwards reduced to writing, if he consented. State v. Sipult, 17 
 Iowa, 575. If a party desired to call the attention of the judge to the 
 fact that he was mistaken, as to certain evidence having been given, as 
 stated in the charge, he should have done so directly and in a way to 
 inform the judge thereof, and have requested him to admonish tlie jury 
 that no such evidence had been given ; and, if the judge had, from mis- 
 apprehension, refused to correct the error, it would be ground for a new 
 trial on a case. Varuum i'. Taylor, 10 13osw. 148.
 
 CII. X.] JURY. MISCONDUCT. 225 
 
 feeling savage;" there being no evidence that any of the 
 jurors had read the newspaper.^ 
 
 § 40. Questions often arise, in reference to the proper 
 mode in which a cause is to he argued by counsel Upon 
 this subject it is held, that, whilst the right of argument 
 on the trial of a cause is not to be denied to counsel, the 
 regulation of the length of time to be occupied in discus- 
 sion, and the determination of the legitimate questions 
 for argument, must necessarily be left to the sound legal 
 discretion of the presiding judge ;2 certainly, unless the 
 interference of the court is shown to be without cause, 
 and prejudicial to the party complaining.^ Thus it is a 
 matter of discretion in the court, to permit the counsel for 
 the defendant, in his closing argument, to refer to and 
 comment upon other matters than were referred to by the 
 plaintifl''s counsel, and to which no opportunity was given 
 for a reply.'* But counsel on either side should not be 
 allowed to lose sight of the evidence and of the issues, and 
 indulge in denunciations of a party, based on the assump- 
 tion of facts not attempted to be proved, and which should 
 not be permitted to disturb that calm deliberation which it 
 is the duty of jurors to bestow.^ The court should arrest 
 an argument not based on the evidence.^ And if counsel, 
 mistake evidence in his argument, the court may, in their' 
 discretion, set aside the verdict, and grant a new triaL 
 Though their refusal to do so is not error ;^ nor is it error 
 in the court to refuse to prevent counsel from stating that 
 to the jury as proved, about which there is a conflict of 
 testimony.^ (See § 45.) So it is good ground for a new 
 trial, if, in the absence of the defendant and his counsel, 
 
 ' Vance v. Com., 3 Va. Cas. 1G2. ^ Fry v. Bennett, 3 Bosw. 200. 
 
 2 Dobbins'y.Oswalt, 20Ark. 619. f Dickerson v. Burke, 25 Geo. 
 See Wightraan v. Providence, 1 225. 
 
 Olifl'. 524. '■ Thompson v. Barkley, 27 Peun. 
 
 3 Brooks V. Perry, 23 Ark. 32. 263. 
 
 4 Hull V. Alexander, 20 Iowa, » Hotelier v. State, 18 Geo. 460 ; 
 569. McNabb v. Lockhart, ib. 495. 
 
 15
 
 226 THE LAW OF NEW TRIALS. [ciI. X. 
 
 the court permit the plaintiff's counsel to misstate the 
 law to the jury.'(a) 
 
 § 41. In 'New York, each party must merely open his 
 own case. The defendant cannot, as in England, com- 
 ment upon the plaintiff's evidence, except so far as is 
 necessary for a proper understanding of his own.^ 
 
 § 42. In an action for damages resulting from a defect- 
 ive higlnvay, in the course of his argument, the defend- 
 ant's counsel, without objection or interruption, referred 
 to the large sums often claimed and recovered of railroads 
 and towns in similar cases, and the often fictitious and 
 exaggerated character of the alleged injuries. In reply, 
 the counsel for the plaintiff referred to a case by name, 
 which had been tried before referees, and stated the 
 amount awarded. The counsel for the defendant ob- 
 jected, and the court suggested that the remarks should 
 be confined to the law and evidence of the case, but after- 
 wards permitted the counsel to proceed. Held, the ver- 
 dict should be set aside.^ 
 
 § 43. In an action for injury alleged to be caused by a 
 defective highway, the only testimony for the plaintiff 
 was that given by himself. The defendants then offered 
 evidence, that the accident occurred at a place and under 
 circumstances materially different from those definitively 
 testified to by the plaintiff. The counsel for the plaintiff 
 was proceeding to argue to the jury, that the defendants 
 .were liable, even if the case was rightly presented by 
 
 ' Onnsby r\ Johnson, 1 B. Mon. 2 ^yranlt v. Chamberlain, 33 
 
 -80. See Cook v. liitter, 4 E. D. Barb. 229. 
 
 Smith, 253 ; Rex v. Courvoisier, 9 » Tucker v. Heniker, 41 N. H. 
 
 C. & P. 362. 317. 
 
 (a) Counsel who have requested the court, in a criminal case, to state 
 the law, have no right to argue to the jury that the instructions were 
 erroneous. Edwards v. State, 22 Ark. 253.
 
 CH. X.] JURY. MISCONDUCT. 227 
 
 their own tcstimon}^ but was interrupted by the judge 
 with the remark that he could not take that position, 
 because he thus discredited his only witness. Held, no 
 ground for new trial. ^ 
 
 § 44. Where both parties have waived their right to 
 argue by declining so to do, allowing one party to re-read 
 a record to the jury, on their coming in for instructions, 
 does not revive the right of the other to argue the case.^ 
 
 § 45. But the court above will not control the presiding 
 judge in the court below, who heard the evidence and 
 tried the cause, in deciding how far the remarks of counsel 
 are warranted by the evidence before the jury, when it is 
 not clear that they were unwarranted.^ (See § 40.) 
 
 § 46. "Where the court direct counsel to go on and state 
 his points to the jury, and he thereupon states his points 
 but does not argue them ; if the direction forbade him to 
 argue the points, it is error; otherwise, if he did not argue 
 them because he chose not to do so.'' 
 
 § 47. Counsel may illustrate their arguments to the 
 jury by referring to calculations.^ 
 
 § 48. So counsel may discuss to the court what the 
 form of the verdict shall be, in the presence of the jury, 
 they having come in for instructions thereupon.^ So, 
 on a trial of title to personal property, the counsel for 
 the plaintiff may argue to the jury, that it is a signi- 
 ficant fact ao-ainst the defendant, that he had failed 
 to put his vendor on the stand.^ So declarations by 
 counsel, on a trial for slander, that the suit was brought 
 merely to vindicate character, and that the damages 
 would be released, constitute no ground for a new trial.* 
 
 1 Clark V. Lowell, 1 Allen, 180. s Royston v. Royston, 29 Geo. 82. 
 
 « Gotten V. Rutledge, 33 Ala. 110. « Ruffing v. Tilton, 12 lud. 259. 
 
 3 Cobb V. State, 27 Geo. 648. ' Gray v. Burk, 19 Tex. 228. 
 
 * Cartright v.Clopton, 25 Geo. 85. « Larki ns v. Tarter, 3 Sneed, 681
 
 228 THE LAW OF NEW TRIALS. [CH. X. 
 
 Kor that counsel were permitted to comment on the 
 cross-interroo-atorics of the adverse party to a deponent, 
 for the purpose of discrediting the testimony. Such 
 interrogatories are in the nature of declarations or ad- 
 missions. A question may be so framed as to involve 
 a strong implication of the existence of certain facts, or a 
 neo-ative pregnant indicating a denial of them. A party 
 often says or does something in the presence of the jury 
 which may properly influence them. If a witness should 
 be examined on the stand, the mode in which questions 
 were framed and put would certainly be open to observa- 
 tion.^ So it is improper to allow the plaintift''s counsel, 
 while summing up to the jury, to indulge in denunciation 
 of the defendant on an assumption of facts not proved. 
 But although the defendant objects, on that ground, to 
 the making of such remarks, and the court responds, " I 
 will say to the jury whatever is proper to be said at the 
 end of the matter," and thereupon the defendant excepts ; 
 a new trial will not be granted, especially when it is not 
 shown by the bill of exceptions that the plaintiff's 
 counsel, subsequent to such exception, made any unjusti- 
 fiable statements to the jury.^ 
 
 § 40. In a suit for flowage, the plaintiff's counsel was 
 permitted by the court to read to the jury, in his closing 
 aro-umcnt, extracts from Evcms's Millwright Guide; the 
 court instructing the jury that such extracts, from scien- 
 tific works, were not authority, even 2)rimd facie, but, like 
 the argument of counsel, or any other thing adduced to 
 illustrate, may or may not be satisfactory to the jury. 
 Held, there was no error.^ 
 
 § 50. Upon this subject it is remarked, "While the 
 right of a party to be heard by his counsel is not to be 
 questioned, inasmuch as this privilege may be liable to 
 
 1 Smiley v. Burpee, 5 Allen, 5G8 ^ Fry v. Bennett, 3 Bosw. 200. 
 —per Bigelow, C. J. ^ Cory v. Silcox, G lad. 39.
 
 CH. X.] JURY. MISCONDUCT. 229 
 
 abuse, the extent and manner of its exercise must, in some 
 measure, rest in the sound discretion of the court. Al- 
 though unlimited license is not allowed, yet no pertinent 
 and legitimate process of argumentation, within the ap- 
 propriate time allowed, should be restricted or prohibited. 
 — A pertinent quotation, or extract from a work on sci- 
 ence or art, as well as from a classical, historical, or other 
 publication, may, by way of argument or illustration, be 
 not only admissible, but sometimes highly proper. And 
 it would seem to make no difference whether it was re- 
 peated by counsel from recollection, or read from a book. 
 It would be an abuse of this privilege, however, to make 
 it the pretence of getting improper matter before the 
 jury."'(a) 
 
 § 51. It seems to have formerly been the rule, more 
 especially in criminal cases, that a jury are not to separate 
 before rendering their verdict; that their separation is 
 ground of new trial, unless clearly explained and justified ; 
 and that such explanation is not allowed from the juror 
 
 ' Per Bartley, J. C. (iu sub- stance), Legg v. Drake, 1 Mc- 
 
 Cooke, 286. 
 
 {a) A protest had been filed with a consul of the United States by the 
 master of a vessel injured at sea. In a suit upon a policy on the vessel, 
 the plaintiff offered the protest in evidence, but it was excluded, on ob- 
 jection. In his closing argument, the plaintiff's counsel attempted to 
 comment on the protest, and, against objection, was allowed to proceed, 
 on the ground that such protests usually set forth the particulars of such 
 a casualty, and that under the circumstances the plaintiff was entitled 
 to any fair inference from the general character of the paper, and the 
 refusal of the defendants to have it read. Held, error. Hoxie v. Home, 
 33 Conn. 471. Where the execution of a will is in issue, a refusal to 
 permit counsel, in the course of the argument, to show the will to the 
 jury, is not ground for reversal, especially where there is no indication 
 that the will was excluded from the jury in their retirement. Browufield 
 V. Brownfield, 43 111. 147. It is error to permit counsel to read and com- 
 ment on minutes of the evidence taken at a former trial, although the 
 jury are instructed not to consider anything thus read. Martin v. 
 Orndorff, 22 Iowa, 504.
 
 230 THE LAW OF NEW TRIALS. [CH. X. 
 
 himself.'(6) As where a part of a jury, in a capital case, 
 the trial of Avhich lasted several days, frequently sepa- 
 rated themselves at night from their fellow-jurors for 
 iifteen or twenty minutes at a time, without heing under 
 the charge of an officer.- And in such case it is unneces- 
 sary for the prisoner to show tliat they were tampered 
 with. It is sufficient, if they might have been.^ So, in 
 a criminal case, where the court ordered that the jury 
 should be kept in a room by themselves, and one juror, 
 on their way to the room, separated from the rest for 
 about twenty minutes, to attend to some necessary busi- 
 ness, and another, in company with an officer, for five 
 minutes, to see a sick child.-* Or where the sheriff walks 
 with them to a neighboring house, and whilst there with- 
 draws from the room where they are, leaving them in the 
 company of three other persons, although these persons 
 swear that there was no allusion by them to the trial 
 during such absence of the sheriff.^ So where the jury 
 found the prisoner guilty, but fixed no terms of imprison- 
 ment ; and, being discharged, were instantly called back, 
 before any of them had left the court-house, but one, who 
 had gone a short distance accompanied by the deputy- 
 sherift'.^ So, in a capital case, notwithstanding the con- 
 sent of the defendant and State's attorney and the court. 
 " If the law requires the jury, in a capital case, to be kept 
 together, the court cannot dispense with the requisition, 
 
 • 3 Day, 287, 310-1 and notes; ^ The State v. Fox, Geo. Decis. 
 
 Overbee's Case, 1 Robinson, 750 ; Part I. 35 ; The State v. Porter, 
 
 State v. Garrigues, 1 Hayw. 241 ; ib. 46. 
 
 Organ v. The State, 20 Miss. 78. " Com. v. McCaul, Virg. Cas. 271. 
 
 2 McLain v. The State, 10 Yerg. ^ Wormley's Case, 8 Gratt. 712. 
 
 241. ^ Mills's Case, 7 Leigh, 751. 
 
 [h) "In some of the States a distinction lias been taken between a 
 separation before the jury are sworn and charged with the case, and one 
 which may occur after evidence has been submitted to them. But in 
 this State (Tennessee) no such distinction has been made, and we think 
 none exists in reason. The mischief which may result from a separation, 
 is the same in one case as in the otlier." Wesley v. 'J'he State, 11 Humph. 
 502.
 
 CH. X.] JURY. MISCONDUCT. 231 
 
 nor ought the consent of the prisoner to be taken. "^ So 
 where, in a criminal case, one of the jurors separated from 
 his fellows for a short time, after the jurors were selected, 
 but before they were sworn ; unless it were proved that 
 he had no communication with other persons, of which 
 his own affidavit is not sufficient evidence.^ So where the 
 defendant shows, that, after the cause was submitted to 
 the jury, part of the jury separated without consent of the 
 parties or order of the court, and were exposed to undue 
 influences; unless the State shows affirmatively that no 
 improper influences were exerted upon them;^ or, in a 
 capital case, that the prisoner could not by any possibility 
 have been prejudiced by the separation.* The presump- 
 tion is against the verdict, and the government must 
 show, beyond a reasonable doubt, that the prisoner has 
 suflTered no injury.^ 
 
 § 51a. And the rule is more especially applicable, 
 where it is affirmatively shown, that the breach of secrecy 
 involved in separation itself was attended by other vio- 
 lations of a juror's duty; as where one of the jury sepa- 
 rated from his fellows, without permission of the court, 
 under the charge of a constable, after they had retired, 
 and received a paper or document from the prevailing 
 party, which the jury wanted, and which went into their 
 possession.^ Or where the jury separated before verdict, 
 and had free intercourse with other people.^ 
 
 § bib. There are, however, many decisions upon this 
 subject, of a very different character. It is quite impos- 
 sible to reconcile the numerous cases, and very difficult to 
 
 • Wesley «. The State, 11 Humph. ^ Jumpertz v. People, 21 111. 375; 
 
 503. Ace. The King «. Wolf, 1 Chit. Wiley v. The State, 1 Swan, 256. 
 
 401. 5 Coker v. State, 20 Ark. 53 ; 
 
 2 nines v. State, 8 Humph. 597. State v. Prescott, 7 N. H. 287. 
 
 3 Cornelius v. The State, 7 Eng. e offt v. Vick, Walker, 99. 
 
 783. 7 The State v. Sherbourne, Dud- 
 ley, Geo. 28.
 
 232 THE LAW OF NEW TRIALS. [CH. X. 
 
 derive from them what may be regarded as a fixed and 
 definite rule of law. In this countr}', the matter is regu- 
 lated to some extent, in the several States, by express 
 statute or local usage. In criminal and more particularly 
 capital cases, separation of the jury is for the most part 
 more carefully guarded against, than in civil actions. In 
 capital cases, the jury are placed in charge of an officer 
 during the progress as well as at the close of the trial, 
 and according to the terms of his oath kept by him apart 
 from all other persons. But in most, if not all other 
 cases, it is only when the jury retire to deliberate that 
 they are placed in charge of an officer, who is sworn to 
 keep them together till they are agreed or discharged by 
 the court. Some of the earlier and stricter cases apply 
 the same term and principle, of separation^ to the common 
 occurrence of a single juror's temporarily leaving the 
 panel while the trial is going on. The universal practice 
 is, to ask permission of the court, but, without such per- 
 mission, there seems little reason to contend, in tlie present 
 state of the law, that the act, although it might be a 
 ground for serious reprimand, would of itself furnish 
 sufficient reason for a new trial. 
 
 § 52. In an early American case it is said, " 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."'(a) And it is held that such sepa- 
 ration, without permission of the court, before rendering 
 their verdict, in trials of minor offi3nces,(^) and in civil 
 
 ■ Com. V. McCaul, Virg. Cas. 271; Brown v. McConnel, 1 Bibb, 265 ; 
 Douglass V. Tousej', 2 Wend. 352 ; Winslow v. Draper, 8 Pick. 170. 
 
 (a) A leading case upon this subject is the King v. Woolf, I Chit. R. 
 401. In an elaborate opinion, Abbott, C. J., said, that, if illegal, con- 
 sent of counsel or permission of the court would not make it lawful, 
 though the latter might protect the jury from censure. 
 
 (6) As to the effect of separation, even in a capital case, see McCar- 
 ter's case, 11 Leigh, 633; Tooel's case, ib. 714.
 
 CH. X.] JURY. MISCONDUCT. 233 
 
 causes, thongli a misdemeanor, for wliicli the juries may 
 be punished, will not of itself vitiate the verdict; and 
 that application for a new trial, on such grounds, is in- 
 variably denied, where no injury is done.^ Or where 
 there is no ground to suspect, more especially after strict 
 inquiry by the court, that they have been tampered 
 with.^(rt) Thus it is no ground of new trial, that the jury 
 separated over night, after agreement.^ Or, in a civil case, 
 dispersed over night, without permission.* Or, even in a 
 criminal case, for stabbing, seal up and deliver their ver- 
 dict to the marshal to be kept, and then disperse, and 
 afterwards meet in court and render their verdict,* Or 
 dispersed, after agreement, while the court were at dinner.^ 
 Or separate, before agreement, even in a capital case, by 
 consent.'^ And where a jury have returned a sealed ver- 
 dict and separated, they may, on the opening of the ver- 
 dict, be sent out again, to make a computation which the 
 verdict finds should be made.^ So it was held no ground 
 of new trial, that the jury separated immediately upon 
 receiving the case, and assembled in a jury-room the next 
 morning; notwithstanding the provisions of a statute, 
 that "when the court have committed any cause to the 
 consideration of the jury, the jury shall be confined under 
 the custody of an officer — until they are agreed."^ Such 
 statute is held to be purely directory}^ Or, in a civil case, 
 
 ' Cannon v. The State, 3 Tex. 31; Edelin v. Thompson, 2 Har. & G. 
 
 Welch V. Welch, 9 Rich. 33. 31 ; 8 Pick. 170. 
 
 2 State V. Madoil, 13 Flori. 151 ; » Burns v. Paine, 8 Tex. 159. 
 
 Parsons v. Huff, 38 Maine, 137 ; s state v. Weber, 33 ]Mis. 331. 
 
 State V. Hester, 2 Jones, 83; Ed- e Horton v. Horton, 3 Cow. 589. 
 
 rinffton v. Riger, 4 Tex. 89 ; State ' Stephens v. People, 19 N. Y. 
 
 V. Barton, 19 Mis. 337 ; 30 Verm. (5 Smith) 549 ; The State v. Engle, 
 
 567 ; 19 N. Y. 549 ; State v. Har- 13 Ohio, 490. 
 
 low, 31 Mis. 446 ; State v. Igo, ib. » Sutlifl' «. Gilbert, 8 Ham. 405. 
 
 459. ^ Brandin v. Grannis, 1 Conn. 
 
 ^ Douglass V. Tousey, 2 Wend. 401. 
 
 353 ; Bunn v. Hoyt, 3 Johns. 353 ; 'o Downer v. Baxter, 30 Verm. 
 
 474. 
 
 (a) Upon which point, the decision of the cou> t below is held conclu- 
 sive. Bonner v. Baxter, 30 Verm. 467.
 
 234 THE LAW OF NEW TRIALS. [ClI. X. 
 
 that the jury were, in the presence of counsel, allowed to 
 separate, alter having been charged, there being no evi- 
 dence of improper conduct, or of any attempt to influence 
 their verdict.^ So a case was committed to the jury at ' 
 about 1 P. M., on Saturday, with authority to se})arate 
 when they should agree. At 4, they agreed and separated, 
 and on Monday morning returned a verdict defective in 
 form, were sent out again, and brought in a verdict con- 
 formable to the issue. Held, a new trial should not be 
 granted.^ So a new trial was refused, for the separation 
 of the jury for supper immediately after the charge, at 
 their request, by leave of the court, under a direction to 
 neither talk nor listen to any discussion about the suit, 
 counsel being present and not ol)jecting; unless it appear 
 that during the separation something happened to throw 
 suspicion on the verdict.' So after the jury had retired 
 and deliberated several hours, they were allowed to sepa- 
 rate and dine, without the knowledge or consent of the 
 plaintiflts or their attorneys. The attorneys, before the 
 reassembling of the jury, knew of the dispersion, but 
 made no objection to their reassembling, and making up 
 and returning their verdict. Held, the plaintiffs could 
 not object to it, no misconduct of the jurors being shown 
 or alleged.* So, where the jury, after tliey had agreed, 
 dispersed without permission of the judge, it was held 
 that the judge might in his discretion receive and record 
 the verdict.^ So where, while the court was in session, a 
 juror left the box, passed through the group of spectators, 
 standing about, and after a moment's stay returned to the 
 box again; held no ground for a new triaL^ So where 
 the jury retired to the street, and there came such a tem- 
 pest, that some of them departed without leave, and one 
 juror talked with a third person about the case, and 
 
 • Riffgins V. Brown, 13 Geo. 271. * Stix v. Pump, 37 Geo. 333. 
 
 2 Winslow V. Draper, 8 Pick. ^ Sartor v. McJunkin, 8 Rich. 
 
 170. 4r)l. 
 
 Adkins v. Williams, 23 Geo. e Porter v. The State, 2 Carter, 
 
 222. 435.
 
 CH. X.] JURY. MISCONDUCT. 235 
 
 accepted an invitation to drink; a majority of tlic judges 
 sustained the verdict.' Or where, in a criminal case, the 
 jurors retire from court without permission, and witliout 
 an officer, but immediately return, not speaking to any 
 one.- So it is not ground of new trial, that, after the jury 
 had retired, some of them made their appearance in the 
 court-room, and, being asked by the judge what they did 
 there, answered that they could not agree, and were sent 
 back.^ Nor that jurors eluded the constable, left the 
 jury-room, and one remained through the night at a 
 tavern, the other at his own house ; but they both returned.* 
 I^or that a juror left the box without permission, and 
 went out of doors ; but spoke to no one except the con- 
 stable, who brought him back, and no testimony was 
 given in his absence.^ So under the provision of a statute, 
 that the jury shall not be sent out after they have come 
 in for a second time, and are unable to agree, without 
 their consent; it is not erroneous for the judge to ask 
 them whether their difficulty is upon the question of law 
 or fact, and to send them out again, the jury not object- 
 ing.^ IS'or that the jury, after they were impanelled, went 
 in a body, under the care of the sheriff, a mile and a half 
 into the country, for recreation; were kept together, no 
 one being permitted to speak to them, nor they permitted 
 to speak to any one; and on returning immediately retired 
 to their room.^ !N"or that, in walking out for exercise, the 
 jury with the sheriff pass beyond the limits of the county.^ 
 Nor that a jury retired to a room of the building wherein 
 the court was held, to consider of the verdict, without 
 being accompanied by an officer, but it did not appear 
 that they improperly separated, or that there had been 
 any communication with them.^ JSTor that a jury agreed 
 
 • Bro. Abr. Verdict, pi. 19. s nill, 3 Cow. 355. 
 
 2 State V. Carstaphen, 3 Hay. 238. « Douglass v. State, 4 Wis. 387. 
 
 3 Lord St. John v. Abbott, '' The State v. Perry, Busb. 330. 
 Barnes, 441. s Thompson's case, 8 Gratt. 637. 
 
 * Smith V. Thompson, 1 Cow. ^ Jaruagiu ». The State, 10 Yerg. 
 221. 529.
 
 236 THE LAAV OF NEW TRIALS. [CII. X. 
 
 Upon a verdict and it was signed by tlie foreman, but, 
 the justices not being on the bench at the time, two of 
 the jurors separated from their fellows, and conversed 
 with others, though not on the subject of the cause. The 
 justices then resumed their seat, and the verdict was ren- 
 dered.^ So, in trespass for taking goods, the defendant 
 having attached them as the property of a third person, 
 the jury found for the plaintift" "the full value of the 
 goods attached, and interest from the time they were so 
 attached to the present time," and then separated, and 
 afterwards in open court ascertained the amount, and in- 
 serted it in their verdict. A new trial was not granted.^ 
 So it is held no ground of new trial, in a capital case, that 
 the jury separated and mingled with the rest of the com- 
 munity, and the sheritF, who was not a sworn officer of 
 the jury, had charge of them for a time; it being satis- 
 factorily shown that the jury were not tampered with.^ 
 Nor that one of the jurors absented himself for a short 
 time from the others without consent of the court, where 
 the record itself precludes the supposition that such juror 
 has been or could be tampered with.^ So it is not a 
 ground for a new trial, that the jury even in a capital 
 case took their meals at a public table, at a hotel where 
 other guests were seated, but were kept together without 
 any separation, and were always under the charge of a 
 sworn officer, and generally, if not always, under strict 
 vigilance ; although this is an irregularity, contrary to 
 the proper forms of proceeding.' 
 
 § 53. With more special reference to individuals ; sepa- 
 ration of one juror by mistake is not ground of new trial.^ 
 Or, even in a criminal case, for a short time, where the 
 
 ' I?a;i;lan(l v. Wills, G Leigh, 1. Miss. 47. See Jumpertz v. People, 
 
 2 Blake v. Blossom, 8 Shep. 394. 21 111. 375. 
 
 3 Stone V. The State, 4 Humph. « Burrill v. Phillips, 1 Galli. 360. 
 27. (In this case, Jud!>;e Story lays 
 
 * Whitney v. The State, 8 Mis. stress upon the justice of the ver- 
 165. diet.) 
 
 s Browning v. Mississippi, 33
 
 CII. X.] JURY. MISCONDUCT. 237 
 
 State shows, by the affidavit of the juror, that he with- 
 drew in consequence of indisposition, and that, while 
 absent, he conversed with no one about the case, and was 
 subject to no improper intluencos.^ Or for necessary pur- 
 poses, without any imputation of improper motives.^ ISTor 
 that one of the jurors went about fifteen steps apart from 
 his fellows, but was under the eye of an officer.^ Nor 
 that, after the jury in a civil case had retired, one of the 
 jurors left the room unattended by the bailiii', and was 
 absent iSfteen minutes." ]N'or that one juror went home, 
 and while he was absent the rest separated by consent of 
 the parties, and afterwards the whole of them delivered 
 their verdict.^ 
 
 § 54. A final adjournment of the court for the term 
 operates as a legal discharge of a jury, and terminates 
 their functions as such. But an illegal discharge, by the 
 court, of a jury in a civil case does not work a discon- 
 tinuance of such case, nor prevent the impanelling of an- 
 other jury to try it.^ 
 
 § 55. If a juror sworn in a capital case is permitted to 
 be separated from his fellows, a special order authorizing 
 the separation should be entered of record, and the juror 
 placed in the charge of an officer, who should be specially 
 sworn not to permit the juror to go out of his sight and 
 hearing ; he should also be sworn not to converse with 
 him about the trial himself, or permit others to do so, and 
 to cause the juror to return as soon as practicable.^ 
 
 § 56. IsTotwith standing a practice, of authorizing the 
 clerk, by consent, to receive a verdict and discharge the 
 
 ' Stauton V. The State, 8 Eng. * Alexander ??. Dunn, 5 Ind. 122. 
 
 317. ^ Parsons v. Huflf, 38 Maine, 137. 
 
 2 State V. Lytic, 5 Ired. 58. « Ashbaugli v. Edgecomb, 13 
 
 3 Rowe V. The State, 11 Humph. Ind. 466. 
 
 491. ^ Jumpertzv. People, 21 111. 375.
 
 238 THE LAW OF NEW TRIALS. [CH. X. 
 
 jury during the recess of the court ; a verdict thus taken 
 will be set aside.' 
 
 § 57. In a criniinal case, it is held tliat the party is en- 
 titled to have the jury present and ])olled when the verdict 
 is read, although he agreed that they might separate and 
 seal up the verdict.'^ But, in a civil action, an agreement 
 that the jury may seal up their verdict and separate, 
 waives all right to poll the jury, except for the purpose of 
 finding out whether they agreed to the verdict when it 
 was sealed up.'' 
 
 § 58. It was agreed that tlie jury might seal up their 
 verdict and separate, and it appeared of record that they 
 returned a sealed verdict. In order to set aside the ver- 
 dict, an afiidavit was put in, that two of them separated 
 from their fellows after retiring, were in the office of the 
 affiant, and conversed in his presence about the case. The 
 court refused a new trial, as it might well be that after 
 the verdict the jurors separated, and under those circum- 
 stances the conversation had would not be improper.* 
 
 § 59. The court above ordered a new trial, where the 
 judge said to the jury that he must keep them together 
 till they could agree, and that it would be better for them 
 to find a wrong verdict than not to agree, as any error 
 could be corrected by the Supreme Court.'' 
 
 § GO. In a criminal case, the judge instructed the officer 
 to discharge the jury at a certain hour of the night if 
 they had not then agreed. Held, this order was binding, 
 and a verdict agreed upon after that hour should be set 
 aside.^ 
 
 ' Baltimore, &c. v. Polly, 14 ^ Sanders v. State, 2 Clarke, 230. 
 Gratt. 447. s Taylor v. Jones, 2 Head, 565. 
 
 2 Wright 13. State, 11 Ind. 569. ^ Com. v. Townsend (Mass.), 
 
 3 Hancock v. Winans, 20 Tex. Law Reg., Oct. 1863, p. 768; 5 
 320. Allen.
 
 Cir. X.] JURY. MISCONDUCT. 239 
 
 § 61. If a, jury comes in without permission, not liaving 
 agreed, a direction by the court for them to retire is not a 
 sending out within the meaning of a statute, which pro- 
 liibits a jury's being sent out a third time.^ , 
 
 § 62. After a jury had retired, they came again into 
 court, to hear explanations from a witness, who stated an 
 additional and important fact not before stated by him, 
 but which fact the court immediately told the jury they 
 were to disregard. Held, the affidavit of the juror, stating 
 that he founded his verdict entirely upon this additional 
 fact, would not authorize a new trial.^(a) 
 
 ' Emery v. Estes, 31 Maine, 155. 2 Hudson v. The State, 9 Yerg. 
 
 408. 
 
 [a) See a learned and elaborate opinion, relating to the separation of 
 jurors, and the change of the ancient law upon that subject, in accom- 
 modation to the increased length of modern trials, and the altered cus- 
 toms of modern society, in Stephens v. The People, &c., 19 N. Y. (5 
 Smith) 550, per S. B. Strong, J. The judge may receive a verdict after 
 the court has adjourned. Mclntyre v. People, 38 111. 514. Where the 
 crier has proclaimed adjournment, and the judges have risen, but both 
 judges and counsel remain in the court-room ; the order for adjournment 
 may be recalled, and a verdict received. Person v. Neigh, 52 Penn. 199. 
 A jury, having sealed up their verdict, brought it into court the next 
 morning, when it was discovered that eleven jurors only were present, 
 the other juryman being sick and unable to leave his home. One of the 
 counsel declining to assent to the rendering of the verdict by the eleven, 
 the court adjourned to the house of the sick juror, and there the jury 
 rendered their verdict, which was afterwards publicly announced by the 
 clerk in the court-room. Held, no error. King v. Faber, 51 Penn. 387. 
 A jury returned a verdict for the plaintiff to the clerk after adjournment 
 of the court, but in presence of the judge, and by his direction, under- 
 standing that there was an agreement of counsel that this should be 
 done. The next morning, in open court, in consequence of objections 
 of the defendant, the jury were sent to their room with the papers, when 
 the defendant (knowing the result of the trial) moved for a continuance 
 on the ground of newly discovered evidence. This was sustained, and 
 the jury were called in and ordered to erase their verdict. Ueld, the ver- 
 dict should have been recorded and the motion denied. Hugley v. Hol- 
 stein, 34 Geo. 572. A jury having returned a verdict, a poll was de-
 
 240 THE LAW OF NEW TRIALS. [CIL X. 
 
 § Go. It is now the general rule, that the affidavit of 
 
 inanded, and in response to the question, " Is this your verdict ?" one 
 juror answered, " No, but I consented to it;" and, on the question being 
 repeated, answered, " Yes." The court refused to allow the juror to be 
 further interrogated. Held, the response of the juror did not show that 
 he dissented from the verdict. Mitchell v. Parks, 26 Ind. 354. Before 
 the jury retire, in a criminal case, it is necessary that the usual oath be 
 administered to the ofiiccr taking them in charge. Brucker v. State, 16 
 "Wis. 333. If a jury render their verdict without leaving the court, there 
 is no necessity of their being put under the charge of an officer, or of his 
 being sworn. Meyer v. Foster, 16 Wis. 294. The court may inquire of 
 the jury their intention and will in reference to their finding, when there 
 is doubt or uncertainty in its language, and order the verdict thus ascer- 
 tained to be recorded. Gipson v. State, 38 Miss. 295. The court may 
 permit a jury to retire, after having brought in a formal verdict, for the 
 purpose of correcting an error in computation, or reconsidering their 
 verdict. Martin v. Morelock, 32 111. 485. A direction to the jury to 
 seal up their verdict and separate does not dispense with their personal 
 attendance in court, when the verdict is opened ; and, if any of them 
 dissent, the verdict cannot be recorded. Ibid. A jury may inform the 
 court, before their verdict is recorded, that a mistake has been commit- 
 ted, or ask, generally, that they may be permitted to retire, and recon- 
 sider their verdict, the one agreed upon not being satisfactory to them. 
 Ibid. Unless there be evidence of abuse, a verdict will not be set aside 
 merely from the fact, that, after rendering it, the jury separated at the 
 adjournment of the court, and, at the coming in of the court, had the 
 papers again committed to them, and modified their verdict. Nims v. 
 Bigelow, 44 X. II. 376. Nor where a jury, after having agreed upon a 
 verdict, separated, and, upon coming in on the following day, returned 
 the verdict under seal, stating that they had agreed, but had made a mis- 
 take in their figuring, and the court, without opening the seal, directed 
 the jury to retire again and reconsider their verdict. Nininger v. Knox, 
 8 Min. 140. Nor where a jury, in a capital case, separated without per- 
 mission, and some of them conversed with third persons, before rendering 
 a verdict; if it is shown that no injury to the defendant resulted there- 
 from. People V. Symonds, 22 Cal. 348. In Florida, it is a sufiicieut 
 recording of a verdict of guilty, in order that the jury may be discharged, 
 if they have recorded the verdict on the book of the indictment, and 
 brought it into court, and each juror stated that he found the prisoner 
 guilty. O'Connor v. State, 9 Flori. 215. Where both parties consented 
 that the jury should "seal their verdict when agreed upon, and deliver 
 the same to the clerk, and disperse to their homes and not return :" 
 neither could object that the verdict was received and recorded without
 
 en. X.] JURY. MISCONDUCT. 241 
 
 a juror will not be received to impeach his ver- 
 
 being delivered in open court. Burliugame v. Burlingame, 16 Wis. 285. 
 The following recent case — Willard v. Shaffer, Leg. Intell. — illustrates 
 the general requisitions of the law in reference to verdicts. Per Shars- 
 wood, J. The second and third reasons complained of are irregularity 
 in the rendition of the verdict. " Because no verdict was rendered by 
 the jury, but the jury simply approved a suggestion of the prothonotary." 
 The fact is that the jury having been charged, on the adjournment of the 
 court, were told that if they agreed before the court met they might seal 
 their verdict and separate. The sealed verdict was accordingly brought 
 in next morning, opened by the judge, and handed to the prothonotary^ 
 that the verdict might be taken in the usual way. The prothonotary 
 then asked the jury to listen to the verdict as the court had ordered it to 
 be recorded, and added as usual " and so you all say." To this no one 
 of the jurors made any objection, nor the defendants or their counsel. 
 Whether they or either of them were present I do not remember. I 
 have no doubt that this is entirely sufficient. This mode of taking ver- 
 dicts when they are handed in sealed is, I believe common in many parts 
 of the State, and has heretofore been pursued in this court. I prefer 
 much the more formal mode of taking the verdict ore tenus from the 
 jury by the mouth of their foreman. There is no reason why there 
 should be any difference whether there is or is not a sealed verdict. A 
 verdict, according to the common law, was either privy or public. A 
 privy verdict is when the judge hath left or adjourned the court, and 
 the jury, being agreed, in order to be delivered from their confinement, 
 obtain leave to give their verdict privily to the judge out of court, which 
 privy verdict is of no force, unless afterwards affirmed by a public ver- 
 dict given openly in court; wherein the jury may, if they please, vary 
 from the prior verdict. 3 Blackst. Com. 377. For the jury was charged 
 openly in court, and in court their verdict ought to be received, and that 
 which they pronounce openly in court shall be taken to be their verdict. 
 And although it is usual to take the verdict privily when the jurors are 
 agreed, yet the law does not necessarily require this, but it is only out of 
 courtesy for the ease of the jurors, and in such case what they then say 
 shall not be looked upon as their verdict until it be openly pronounced 
 in court. Saunders v. Freeman, Plowd. 209. With us a practice equally 
 safe and convenient has obtained of permitting the jury to reduce their 
 finding to writing, and, after sealing it up, to separate till the meeting 
 of the court, when, the paper being handed to the judge, their verdict is 
 received from the lips of the foreman and recorded in the usual way. 
 Per C. J. Gibson, 10 S. & R. 90. The same practice has generally ob- 
 tained in our sister States, but both with us and in all of them it is held,^ 
 as far as I have found without a single exception, that the sealed verdict 
 
 16
 
 242 THE LAW OF NEW TRIALS. [CH. X. 
 
 dict.X'?) More especially, to sliow what may have trans- 
 pired among the jury in the jury-room, while considering 
 the case and agreeing upon their verdict.^ Such affidavit 
 has been called an "afterthought of the jurors."^ And the 
 rule is justified u}>on the ground that "it might some- 
 time happen that a juryman, being a friend to one of the 
 
 ' O'Barr t. Alexander, 37 Geo. Vaise v. Dclaval, 1 T. R. 11 (a 
 
 195; Jacobs v. Dooly, 1 Idaho Terr, leading case) ; Abel v. Kennedy, 3 
 
 36 ; Allison v. People, 45 111. :57 ; Iowa, 47. 
 
 Knowlton v. ]\rc:\Ialion, 13 ]\Iin. = Leighton v. Sargent, 11 Fost. 
 
 38G; Hall v. Robison, 25 Iowa, 91; 119; State v. Tindall, 10 Ricli. 212. 
 
 Bishop V. The State, 9 Geo. 121 ; ^ Per Lee, C. J., Rex v. Simons, 
 
 Bladen v. Cockey, 1 Har. 6c McH. Sayre, 35. 
 230 ; Prior v. Powers, 1 Keb. 811 ; 
 
 partakes of all the characteristics of the privy verdict. It is no verdict 
 of itself. The verdict recorded iu court is the only verdict : the paper 
 returned by the jury is not evidence, nor is it to be filed or preserved. 
 The jury, when they come to pronounce their verdict iu open court, may 
 depart from it and deliver another one. Domick et al. v. Reichenbach, 
 10 S. & R. 84; Rees v. Stille, 2 Wright, 138. If on being polled one 
 of the jurors dissent, they may be sent out again to agree on their ver- 
 dict. Bunn V. Hoyt, 3 Johns. 255; Root v. Sherwood, 6 Johns. 68; 
 Blackley v. Sheldon, 7 Johns. 32 ; Douglass v. Toucy, 2 AVend. 355 ; Fox 
 V. Smith, 3 Com. 23; Jackson v. Hawks, 2 Wend. 619; Johnson v. 
 Howe, 2 Gilon, 342 ; Rigg v. Cook, 4 Gilraan, 351 ; Perry v. Mays, 2 
 Bailey, 356 ; Lawrence v. Strauss, 11 Pick. 501. In this last cited case, 
 C. J. Shaw says : " If indeed the jury by collusion should declare them- 
 selves agreed, when they are not, in order to induce the ofTicer to permit 
 them to separate, or if one juror should declare his assent with an intent 
 afterward to dissent in court, it would undoubtedly be a great misde- 
 meanor and render the party liable to summary punishment." These 
 authorities abundantly support the position, that in the case of a sealed 
 verdict the proper formal manner of taking the vcVdict is that it should 
 be pronounced openly by the foreman; but, for the reasons already given, 
 I do not think this verdict ought to be set aside for this mere defect of 
 form, when it has been openly read and assented to by the jury and 
 recorded by the court. Motion refused. 
 
 (a) More especially, that jurors are not hound to inculpate them- 
 selves. Nolen V. State, 2 Head, 520. The rule applies to grand jurors. 
 Cora. V. Skeggs, 3 Bush, 19. But a grand juror may testify that a wit- 
 ness swore differently on the trial and before the grand jury. Com. v. 
 Mead, 12 Gray, 1G7.
 
 en. X.] JURY. MISCONDUCT. 243 
 
 parties, and not being able to bring over liis companions 
 to his opinion, might propose a decision by lot, with a 
 view, afterwards, to set aside the verdict by his own affi- 
 davit, if the decision should be against him."^ So also, it 
 is said, one might testify one way, another differently. 
 " This would open a novel and alarming source of litiga- 
 tion, and it would be difficult to say when a suit was ter- 
 minated."^ And, in answer to the obvious suggestion, 
 that the confession of a misbehaving juror should be ad- 
 missible like that of any other criminal; it is said, "It 
 tends to defeat his own solemn act under oath, where 
 third persons are interested. — Its admission would ojien a 
 door to tamper with jurymen. — It might be the means, in 
 the hands of a dissatisfied juror, to destroy a verdict at 
 any time, after he had assented to it. — It would unsettle 
 all the verdicts in the country."^ Such evidence is also 
 sometimes excluded upon the ground of hearsay.'^ So in 
 a late case it is remarked, " It is a rule founded upon ob- 
 vious considerations of public policy, and it is important 
 that it should be adhered to, and not broken in upon to 
 aftbrd relief in supposed hard cases." And the rule also 
 excludes the affidavit of a party or of a stranger as to the 
 jurors' statements.^ Thus the affidavits of jurors cannot 
 be received to show, that the deponents, in agreeing to 
 the amount of the verdict, took into consideration a cause 
 of action in addition to that for which the suit was 
 brought.^ So an affidavit of a juror, especially if made 
 at the next term after the trial, that he was influenced in 
 
 ' Per Mansfield, C. J., Owen v. 721; Downer v. Baxter, 30 Vt. 467; 
 
 Warburton, 1 N. R. 326. Tucker v. Town Council, &c.. 5 
 
 2 Robbins v. "Wendover, 2 Tyl. R. I. 558; Watson v. Same, ib. 562; 
 11. Bull's Case, 14 Graft. 613 ; Cole- 
 
 3 Willing V. Swasey, 1 Browne, man v. State, 28 Geo. 78; Brown v. 
 123. State, ib. 199 ; Burns v. Paine, 8 
 
 * Tuckers. Town Council, &c., 5 Tex. 159; Boston, &c. v. Dana, 1 
 
 R. I. 558; Watson v. Same, ib. 562. Gray, 83 ; The People v. Carnal, 1 
 
 5 Per Shaw, C. J., Cook v. Cast- Parker C. R. 256 ; Smith v. Cul- 
 
 ner, 9 Cush. 278; Allison v. People, bertsou. 9 Rich. 106. 
 
 45 111. 37; Dunn i\ Hall, 3 Blackf. ^ Brownell v. McEwen, 5 Deuio, 
 
 82. See Mason v. Russell, 1 Tex. 367.
 
 244 THE LAW OF NEW TRIALS. [CH. X. 
 
 his verdict by what he sets forth as the charge of the 
 judge, is no ground for a new trial. ^ Nor an affidavit by- 
 four of the jury, made three weeks after the trial, that 
 '•the verdict was not their verdict, and that they had not 
 ao-reed to it."^ So after a verdict has been returned by the 
 foreman, read to the jury without dissent expressed, and 
 recorded, and the jury have separated ; an affidavit of one 
 of them that he did not agree to the verdict cannot be 
 received.^ Or that he did not voluntarily assent to the 
 verdict.^ More especially three days after the verdict.^ 
 So where a juror, upon being polled, assents to the verdict, 
 he cannot be allowed to say that he was intimidated into 
 compliance by the foreman.^ So affidavits are not admis- 
 sible that one or more of the jurors misunderstood the 
 charge.^ More especially where the affidavits arc made 
 several days after the verdict f or at the next term of the 
 court :^ and if the verdict is in all respects fair, and, in 
 the judgment of the court, in accordance with the evi- 
 dence.i" (See § 69.) Nor will the affidavit of a juror be 
 received, that he misunderstood the evidence,^^ or disre- 
 garded the evidence and the charge ','^%a) even in a capital 
 case.^3 It is said, that to admit affidavits as to the grounds 
 of the verdict, "would be more objectionable than to 
 
 ' Campbell v. Skidmore, 1 Tex. lor, 4 Humph. 516 ; Morris v. The 
 475. State, 3 ib. 333 ; Mirick v. Hemp- 
 
 2 Reaves b. Moody, 15 Rich. L. hill, 1 Hemp. 179, 
 
 312. ^ Handy v. Providence, &c., 1 
 
 3 Breck v. Blanchard, 7 Fost. R. I. 400. 
 
 100. 9 Campbell v. Skidmore, 1 Tex. 
 
 4 Cook V. Sypher, 3 Clarke, 484; 475. 
 
 7, 413; McCombs v. Chandler, 5 '" Ilarnsbarger?). Kinney, GGratt. 
 
 Ilarring. 423. 287. 
 
 5 State V. Douglass, 7 Clarke,413. " Clark v. Carter, 12 Geo. 500. 
 
 6 Boetge V. Lander, 20 Tex. 105. '^ Thomae v. Zushlag, 25 Tex. 
 
 7 Davenport v. Cummings, 15 (Supp.)225. 
 
 Iowa, 210 ; llolman v. Riddle, 8 '^ ^Vard v. The State, 8 Blackf. 
 Ohio, N. S. 384 ; Saunders v. Ful- 101 ; 2 Mur. 37. 
 
 (a) A new trial will not be granted, on the affidavits of jurors that 
 the jury misapprehended the testimony, where it does not appear that 
 they had any rcasonal)lc ground for such misapprehension. Jack v. 
 Naber, 15 Iowa, 450 ; Moflit v. Rogers, ib. 453.
 
 en. X.] JURY. MISCONDUCT. 245 
 
 receive those disclosing misconduct." It would render 
 "jury trial but a vexatious ceremony."' 
 
 § 64. So partiality of a juror cannot be shown by the 
 testimony of the juror himself or of the other jurors.^ 
 And affidavits are not admissible to prove a tossing up. 
 It is said, the evidence must come "from some other 
 source ; such as from some person having seen the trans- 
 action through a window. "^ Nor to prove that the amount 
 of damages was arrived at by an average of the sums 
 severally assumed or marked by the jurors.^ (See § 69.) 
 So, although a statute expressly authorizes the affidavits 
 of jurors for the purpose of a new trial, they are not admis- 
 sible to prove that the verdict was reached by marking and 
 striking an average.^ !N"or, in a criminal case, that the juror 
 had formed and expressed an opinion before the trial,^ (See 
 § 69.) So the affidavit of a juror, that he had made a 
 bet upon the result of a State trial, and that he did not 
 believe the prisoner knew of it at the time he (the juror) 
 was sworn, is not sufficient evidence of the prisoner's 
 ignorance of the bet ; he must deny his knowledge upon 
 oath.7 
 
 § 65. So it is no ground for a new trial, that several of 
 the jur}^, after trial, stated that they had misconceived a 
 material fact, sworn to by a witness, who also testified 
 that the fact was otherwise than as understood by the 
 jur3^^ So, in a slander suit, counsel declared, that, as the 
 suit was brought to vindicate character, damages would 
 be released. Held, that jurymen could not be heard to 
 say that such improper declaration influenced their ver- 
 
 • Ibid., 8 Blackf. 101. s Forshee d. Abrams, 2 Clarke, 
 2 Cook V. Castuer, 9 Cusli. 266. 571. 
 
 ' Per Ld. Mansfield, Vaise v. « The People v. Baker, 1 Cal. 
 
 Delaval, 1 T. R. 11. 403. 
 
 * Pleasants v. Head, 15 Ark. ' Booby v. The State, 4 Yerg. 
 403 ; Boston, &c. v. Dana, 1 Gray, 111. 
 
 83. * Lester v. Goode, 2 Murph. 37.
 
 246 THE LAW OF NEW TRIALS. [CII. X. 
 
 diet.' Xor arc the affidavits of jurors admissible, to show 
 wliat were their iniprcssions as to the effect of tlie fiiiding,(a) 
 and that they intended something difierent from what 
 they found by tlieir verdiet ; nor to show tlie ]»rinciples 
 u})on wliich the verdict was founded/ nor the reason 
 and ground of tlie determination, and the motives which 
 governed their conduct.^ 
 
 § QQ. As we have seen, the rule in question excludes the 
 affidavit of one juror to the misconduct of other jurors in 
 the room. As, for example, a statement of another one 
 to the jury about the case.^ Or that the jury considered 
 and acted upon evidence which they were instructed to 
 disregard, and that it materially influenced them.' Or 
 concerning impressions as to the effect of the verdict." Or 
 that one juror did not concur, where the judge ordered a 
 verdict.^ Or what one of their number stated to his fel- 
 lows, after they had retired, concerning the character of 
 the parties.^ So, in an action relating to the condition of 
 a vessel at the time she was sold, a new trial was moved 
 for, upon the ground of a juror's having stated in the 
 jury-room that he had examined the vessel before the 
 trial, and was of opinion that she was very rotten. But 
 it was held that this could not be proved, either by the 
 juror himself, or the other jurors.^ So, in trover, a single 
 
 ' Larkinsw. Tarter, 3 Sneed, 681. s Haiglit «. Turner, 21 Conn. 
 
 2 Folsom V. Brawn, 5 Fost. 114 ; 593. 
 
 12 Geo. ijOO. 6 People v. Columbia, itc, 1 
 
 3 llaunum i\ Belchertown, 19 ^Yc'nd. 297. 
 
 Pick. 311; The State tJ.Doon, Il.M. ' Savillo v. Fiirnham, 2 M. & 
 
 Charlt. 1 ; Stone «. The Stale, 4 lly. 21 G. 
 
 Ilumpli. 27; Cain v. Cain, 1 B. ** Folsom ». Manchester, 11 Cush. 
 
 Munroe, 213 ; Meade v. Smith, 13 334. 
 
 Conn. 346. ^ Cook v. Castner, 9 Cush. 206. 
 
 1 Cook V. Castner, 9 Cush. 278. 
 
 {(() It is remarked in a hxte case : " The legal consequences of it they 
 are not presumed to know, and, in general, do not know. The moral 
 consequences of it neither tliey nor any man can foresee." Per Ames, 
 C J., Tucker v. The Town, <fec., 5 R. I. 561.
 
 CH. X.] JURY. MISCONDUCT. 247 
 
 witness testified as to the cost of the goods. On motion 
 for a new trial, held, affidavits of the jurors were inad- 
 missible that, in the assessment of damages, they had con- 
 sidered themselves bound to follow the opinion of the 
 witness, whereas, if they had felt at liberty to exercise 
 their own judgment, they would have estimated the 
 goods at a low rate.^ So the affidavit of a juror is inad- 
 missible, that during the trial he visited the spot where 
 the collision in question occurred, for the purpose of in- 
 forming himself as to the subject-matter of the trial.- 
 
 § 67. In general, as has been stated, the testimony of a 
 juror may be received to exculpate himself, and to sustain, 
 though not to impeach, a verdict.^(rt) And there are nu- 
 merous cases favoring the admissibility of affidavits upon 
 any point connected with the verdict ; although the weight 
 of authority is the other way. In a case of high authority 
 it is said: " It would perhaps hardly be safe to lay down 
 any general rule on this subject. Unquestionably, such 
 evidence ought alwavs to be received with great caution. 
 
 1 Murdock v. Sumner, 22 Pick. ^ gtate v. Ayer, 3 Fost. 301. See 
 156. Hall V. Robiusou, 25 Iowa, 191. 
 
 ^ Chadbouru v. Fraukliu, 5 Gray, 
 333. 
 
 (a) The contrary has been held in case of an unauthorized separation. 
 Hines v. The State, 8 Humph. 597. If a juror has formed and expressed 
 before trial a decided opinion as to the guilt of the prisoner, he cannot, 
 after verdict, show himself competent, by swearing that his finding was 
 influenced solely by the evidence. McGufBe v. State, 17 Geo. 497. On 
 motion for a new trial, on the ground that opinions unfavorable to the 
 accused had been expressed, before the impanelling, by some jurors, the 
 testimony of these jurors is admissible, both to contradict this state- 
 ment, and to show that they were free from prejudice. State v. Howard, 
 17 N. H. 171. An amendment, passed in 1862, to the (Gal.) practice act 
 of 1851, § 193, allowing misconduct of the jury to be proved by any of 
 their number, by affidavit, applies to all motions for a new trial for such 
 misconduct, after the passage of the amendment, although the verdict 
 was rendered before such passage. Douner v. Palmer, 23 Cal. 40.
 
 248 THE LAW OF NEW TRIALS. [CU. X. 
 
 But cases might arise in which it would be impossible to 
 refuse them without violating the plainest principles of 
 justice."^ And, in a case where such evidence w^as ex- 
 cluded, the court remark: "The court are not prepared to 
 say that this is a rule without exception. There may be 
 cases of manifest mistake in computation, or other obvious 
 error, where there ai'e full means of detecting and cor- 
 recting it, where it would be proper to interfere."^ 
 
 § 68. The remark is made, in reference to the more 
 modern doctrine, by which such affidavits are excluded : 
 "It is singular, indeed, that almost the only evidence of 
 which the case admits should be shut out."^ 
 
 § 69. It has been intimated, that the affidavit of a juror, 
 though inadmissible to show anything that passed in the 
 jury-room, as ground of new trial, might be evidence of a 
 previous bias, manifested by what passed in the room, 
 which would disqualify the juror, and thus set aside the 
 verdict.* (See § 64.) So affidavits of j urors have been 
 received, in a criminal case, to show that they entirely 
 misunderstood the instructions of the court.^ (See § 63.) 
 Or an agreement that each one should " mark," and the 
 average of the sums thus designated be returned as their 
 verdict.*' (See § 64.) So the oath of a juror has been 
 admitted, that he was incompetent, from ignorance of the 
 
 ' Per Taney, C. J., U. S. v. Reid, Ball. 515 ; The People v. Vcrmil- 
 
 12 IIow. 3G1. See Little v. Bird- yea, 7 Cow. 108 ; Rex v. Cook, 6 
 
 well, 21 Tex. 597. St. Tri. 337 ; Manix v. Malouy, 7 
 
 2 Per Shaw, C. J., Murdock v. Clarke, 81 ; Ru1)le v. jNIcDonald, 
 
 Sumner, 22 Pick. 157. See Dana ib. 90; Schanler v. Porter, ib. 482 
 
 V. Tucker, 4 John. 487 ; Philips v. (Code, § 1810). 
 Fowler, Barnes, 441; Avlett v. ^ Pc-'sir James Mansfield, C.J. , 
 
 Jewell, 2 W. Bl. 1299; S'mith v. Owen w. Warburton, 1 N. R. 32G. 
 Cheetham, 3 Caines, 57; Bellish v. ^ Cook v. Castner, 9 Cush. 278. 
 Arnold, Bunb. 51 ; Pai-r v. Seames, = Packard v. The United States, 
 
 Barnes, 438 ; Brant v. Fowler, 7 1 Iowa, 225. 
 
 Cow. 5G2 ; Alcott v. Boston, &c., e Manix t). Malony, 7 Clarke, 81; 
 
 11 Cush. 91 (where the point was Schanler v. Porter, ib. 482. 
 left doubtful) ; U. S. v. Fries, 3
 
 en. X.] JURY. MISCONDUCT. 249 
 
 English language.^ Or that the verdict was rendered 
 under a mistake as to its legal effect.^ So, by way of 
 exculpation^ affidavits are admissible, that papers which 
 went to the jury were not read.' So upon the question; 
 whether depositions, not in the case, but accidentally de- 
 livered to the jury, were read by them; the jury were 
 first inquired of, and retired to inquire of each other ; and 
 the foreman then answered for them. The next day, some 
 of the jury having suggested that his answer was not suf- 
 ficiently explicit, he made a further answer, denying that 
 the depositions were read.^ So affidavits of jurors were 
 admitted, that they thought the majority would decide 
 the case.^ Or that a juror in a capital case assented to the 
 verdict of guilty, on the representation of others that the 
 governor would pardon on the jury's recommendation.^ 
 Or to show misdirection as to damages.^ So the testi- 
 mony of a juror is admissible, that, pending the trial, he 
 called upon the defendant and obtained from him a 
 printed copy of the evidence in a former trial of the 
 cause.^ So the affidavit of a juror was admitted, to prove 
 that, during an adjournment of the court, a person inti- 
 mately connected with the plaintifi" wrote a letter to 
 such juror, requesting him to go and view the premises ; 
 that this juror did not go, but three others went, and, 
 according to their own admissions, that they were paid 
 for so doing. The testimony of the jurors who were guilty 
 of misconduct, or evidence of their admissions, was held 
 to be incompetent to prove such misconduct ; but another 
 juror, not guilty, may prove it.^ And, where the affidavit 
 of an attorney was offered, to the admission of some of 
 the jurymen, that they agreed to write all the names on 
 
 ' Lafayette &c. v. New, &c., 13 ^ Crawford v. The State, 2 Yerg. 
 
 Ind. 90. GO. See Com. v. Drew, 4 Mass. 
 
 2 MofFett v. Bowman, 6 Gratt. 399 ; Suttrell v. Duy, 1 Mur. 94. 
 219. 7 Cavkendall, 6 Cow. 53. 
 
 3 Hackley v. Hastie, 3 Jolin. 253. ^ Hetfron v. Gallupe, 55 Maine, 
 1 Hix V. Drurv, o Pick. 29G. 5G3. 
 
 5 Cocliran v. Street, 1 Wash. 79. a Deacon v. Shreve, 2 K J. 176.
 
 250 THE LAW OF NEW TRIALS. [CII. X. 
 
 papers, and that the first six drawn should decide the 
 verdict ; tlie evidence was rejected as hearsay^ the court 
 remarking that the affidavits of the jurors themselves 
 should be offered.' So where the intent of tlie party was 
 essential to make his act criminal; the affidavit of the 
 jurors was received, that in consequence of a noise and 
 crowd in the court-room they did not hear the judge's 
 instruction to that effect, and that one of them called out 
 aloud at the time of giving the verdict — 710 intent^ no 
 intent.'^ So, where there were two issues, and a verdict for 
 the defendant; the affidavit of eight jurymen was re- 
 ceived, that they meant to find one issue for the plaintift*, 
 and one for the defendant.^ 
 
 § 70. AVhere a motion was made in the court below, in 
 a capital case, to set aside a verdict upon the ground of 
 improper conduct in the jurors, and the motion was 
 founded upon affidavits ; the Supreme Court of North 
 Carolina held that they would not look at the affidavits, 
 but could decide only upon the record presented to them ; 
 and that in such case the fticts were to be ascertained by 
 the court below, and spread upon the record.^ 
 
 § 71. Affidavits charging the jury with irregularities 
 and misconduct in the progress of a trial, founded on 
 information and belief, are not sufficient to set aside a 
 verdict. The irregularities and misconduct charged must 
 be stated positively and specifically, and be sustained by 
 oath.'* 
 
 § 71a. A few miscellaneous points farther illustrate the 
 same general subject. 
 
 § 72. The court may inquire of the jury upon Avhat 
 
 ' Ayk'tt®. Jewell, 3 W.Bl. 1399. » The State v. Godwin, 5 Irod. 
 
 2 Kcx V. Simons, Say re, 35. 401. 
 
 3 Cogan V. Ebden, l" Burr. 383. ''' Stone v. The State, 4 Ilumpli. 
 
 27.
 
 en. X.] JURY. MISCONDUCT. 251 
 
 grounds tlicy found their verdict, even in the absence and 
 without consent of counsel; and the answer may be con- 
 sidered upon a motion for a new trial. ^ So, although the 
 jury are not bound to state the principles on which their 
 verdict is founded ; yet, if they return, with the verdict, 
 a statement which shows errors of law, or of admitted fact, 
 the court will set aside the verdict.^ So, where testimony 
 is given, tending to show that the jurors, after they had 
 retired, had in their possession a newspaper containing a 
 part of the charge of the court ; their affidavits may be 
 received to show what the paper was, if their posses- 
 sion and use of it do not involve a charge of improper 
 motives on their part.^ Or to what passed at the render- 
 ing of the verdict.^ Or " that the clerk made a mistake 
 in entering, or the court in directing, a different verdict."^ 
 
 § 73. But, upon the subject of assigning the reasons for 
 a verdict, it is said : " Men of strong minds and sound 
 judgments, who are very sure to come to wise and just 
 conclusions, would, if called upon to state the grounds of 
 their opinions, often give very insufficient and unsatisfac- 
 tory reasons for their decisions. The secrecy of the deli- 
 berations and discussions of the jury, and the exemption 
 of jurors from the liability of being questioned as to their 
 motives and grounds of action, are highly important to 
 the freedom and independence of their decisions."'' Hence 
 an affidavit of the jury was not received, that, if they had 
 known their verdict would be doubled by the court, in a 
 case where the law provides double damages, they would 
 not have agreed to the verdict. Judge Morton remarks : 
 "They were saved from a wrong decision by their forget- 
 fulness of the judge's charge, and really rendered a just 
 
 » Smith V. Powers, 15 N. H. 546; * King v. WoodfeU, 5 Burr. 2667. 
 Lawler v. Earle, 5 Allen, 22. ^ Jackson v. Dickenson, 15 John. 
 
 2 The State v. Layton, 3 Harring. 309. 
 
 469. s Per Morton, J., Hannuni v. 
 
 3 Farrar v. Ohio, 2 Ohio (N. S.), Belchertown, 19 Pick. 313. 
 54.
 
 252 THE LAW OF NEW TRIALS. [CH. X. 
 
 verdict on leo;al grounds, when, if tlicy had known the 
 lawful consequences, they w^ould have acted otherwise."^ 
 
 § 74. It is not error for the court to refuse to hear affi- 
 davits or witnesses, ottered for the purpose of proving that 
 a juror was not sworn.^ Or two jurors, even on an indict- 
 ment.^ 
 
 § 75. The affidavit of third persons as to what they 
 have heard jurors say respecting their verdict is inadmis- 
 sible to impeach the verdict."* 
 
 1 Hannmn v. Bdchertown, 19 a Brewer i?. Stato, 12 Tex. 248. 
 Pick. oto. ' Drumuioiid v. Leslie, 5 Blackf. 
 
 2 Bradley v. Bradlev, 13 Tex. 453. 
 3C3.
 
 CII. XI.] ERKONEOUS RULINGS OR INSTRUCTIONS. 
 
 253 
 
 CHArTER XI. 
 
 ERRONEOUS RULINGS OR INSTRUCTIONS. 
 
 1. General rule. 
 5. Omissions. 
 
 9, 52, 58. Immaterial or irrele- 
 vant instructions. 
 15. Ambiguity. 
 
 18. Contlicting instructions. 
 
 19. Misunderstood instructions. 
 23. Instructions construed to- 
 gether. 
 
 26. Adoption of language of the 
 court above. 
 
 28. Uncertainty. 
 
 30. Law and fact. 
 
 32, 77. Refusal or granting of a 
 nonsuit. 
 
 35. Ruling by which evidence 
 was rendered unnecessary. 
 
 37. As to sufficiency or insuffi- 
 ciency of evidence. 
 
 39. Conflict of evidence, or the 
 reverse. 
 
 41, 72, 139. Tendency and effect 
 of the evidence. 
 
 43. Instructions as to the law — 
 limitations. 
 
 44. Preliminary remarks, &c., to 
 the jury ; comments upon the evi- 
 dence ; illustrations. 
 
 52. j\Iateriality of the remarks. 
 
 53. Refusal to comment upon the 
 evidence. 
 
 54. Exceptions to the prevailing 
 rule ; erroneous interference with 
 the facts and evidence. 
 
 55. Instructions as to only part 
 of the case. 
 
 56. Instructions based on the evi- 
 dence. 
 
 58. Abstract instructions. 
 
 59. Miscellaneous points. 
 
 62. Presumptions from facts 
 proved. 
 
 63. Instructions as affected by 
 the pleadings. 
 
 64. In reference to the arguments. 
 
 65. Miscellaneous. 
 
 67. Questions of law and fact. 
 69. Undisputed facts ; questions 
 of law. 
 
 72. "Weight of evidence, etc., for 
 the jury. 
 
 73. Law and fact in criminal 
 cases. 
 
 77. Absence of evidence ; ques- 
 tion of law ; nonsuit. 
 
 79. Construction of written and 
 oral contracts ; wills ; policies ; 
 leases. 
 
 84. Legality of contracts. 
 
 85. Records. 
 
 86. Contracts and writings, when 
 questions of fact, or mixed questions 
 of law and fact ; technical terms ; 
 lost instruments ; patents. 
 
 93. Usage. 
 
 94. Reasonableness. 
 98. Payment. 
 
 101. Limitation. 
 
 102. Usury. 
 
 103. Notes, &c. 
 
 104. Miscellaneous contracts. 
 107. Notice. 
 
 107rt. Questions relating to land. 
 
 116. Delivery. 
 
 117. State of mind ; intention ; 
 identity. 
 
 120. Miscellaneous. 
 
 121. Partnership; agency; sale. 
 
 122. Mixed questions ; miscella- 
 neous. 
 
 126. Fraud. 
 
 131. Malice. 
 
 132. Libel, &c. 
 
 133. Malicious prosecution. 
 
 134. Negligence, i&c. 
 136&. Nuisance. 
 136c. Cruelty. 
 
 137. Waiver. 
 
 139. Credit of witness, &c., and 
 other points relating to testimony ; 
 weight of evidence ; comparative 
 weight of ditfereut kinds of evi- 
 dence. 
 
 156. Communications of the 
 judge to the jury out of the regu- 
 lar course; time of objecting to 
 instructions.
 
 254 THE LAW OF NEW TRIALS. [CII. XI. 
 
 164. Instructions as to costs and I 1G7. Prayer or request for in- 
 (lamasres. slructions. 
 
 § 1. A NEW trial will be granted for misdirection of the 
 judge in matters of law material to the issue ;' if the ver- 
 dict conform to the charge ;^(a) though no instructions 
 "were asked.^ 
 
 ' Baker v. Ezzard, Geo. Dccis. Thomas, 14 Tex. 583 ; Sadler n. 
 
 Part II. 112; IG 111. 495; Craft Sadler, 16 Ark. 628; Planter's, 
 
 V. Jackson, 4 Geo. 360; 6 Mod. &c. «. Richardson, 15 Geo. 277; 
 
 242 ; 3 Salk. 64!). See Oliver v. Feanjan v. Cureton, 19 Geo. 404. 
 
 Chapman, 15 Tex. 400; Keasoner 2 Keller v. Dillon, 26 Geo. 701. 
 
 V. Brown, 19 Ark. 234 ; McDaniel » Garrett v. Gonter, 42 Penn. 
 
 V. Crosby, 19 Ark. 533 ; Earle v. 143. 
 
 (a) " We have looked with some attention into the books. — We have 
 not been able to find a single case" (where a new trial was refused for 
 misdirection). Per Parsons, C. J., Boyden v. Moore, 5 Mass. 365. 
 " There is not a single instance where a new trial has been refused in a 
 case where the verdict has proceeded on the mistake of the judge." Per 
 Ld. Kenyon, Wilson v. Eastall, 4 T. R. 7.53. " The importance of the 
 rule" — that an omission or refusal to answer a relevant and material 
 point is error — " cannot be overestimated, when we regard our short and 
 simple pleading, which rarely brings the law of the case on the record. 
 The only method in most cases a party has left to bring before the court, 
 and from thence to this court for review, a proposition of law, is by pre- 
 senting it as a point to be charged upon, and when clearly responded to 
 it greatly aids the jury ; or, if distinctly negatived, the party has no 
 trouble in having it reviewed. — The qualification of the rule excludes, of 
 course, abstract propositions, or such as, if answered as prayed for, 
 would not have benefited the party." Per Thompson, J., Tlie Pennsyl- 
 vania, (fee. V. Zebe, 33 Penu. 323. And the rule is held to apply even 
 to a penal action. Wilson v. Rastall, 4 T. R. 753. In reference to this 
 class of cases the court remarked, " The application for a new trial is a 
 direct appeal to the justice and laws of the country, and cannot be tried 
 and disposed of by any other rule." Per Ld. Kenyon, Calcraft v. Gibbs, 
 5 T. R. 19. It is sometimes held, that the correctness of the action of 
 the court below, in giving or refusing instructions, will be examined by 
 the Supreme Court, though not made a ground of error in the motion 
 for a new trial. Fine v. Rogers, 15 Mis. 315; and that when it is evi- 
 dent, from all the facts attending a case, that by the ruling of the court, 
 a party was deprived of any right, though in strictness the ruling may 
 have been correct, yet, if the default of the party was not inexcusable,
 
 en. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 255 
 
 § 2. And any decision or declaration by the court, upon 
 the law of the case, made in the progress of the cause, 
 and by which the jury are influenced and the counsel con- 
 trolled, is considered within the scope and meaning of the 
 term " instructions."' "Where there is so much evidence 
 as to allow the case to go to the jury, the party is entitled 
 to have correct instructions given.- 
 
 § 3. But a motion to set aside a default does not come 
 within the provisions of a statute, authorizing exceptions 
 to decisions of courts overruling motions in arrest of 
 judgment, for new trials, and continuances.^ So a statute 
 allowed bills of exceptions and appeals, founded on matter 
 of law apparent on the face of the record, excepting judg- 
 ments founded on pleas in abatement. In this case the 
 plea objected to the service of the writ by a coroner, and 
 the issue was upon the interest of the sheriff in the case. 
 Exceptions to the ruling of the judge were held not to 
 lie, although an issue in fact was joined and tried, and 
 although they should be held to embrace both fact and 
 law.* 
 
 § 3a. Although the court above will not interfere with 
 verdicts on the ground that they are against the weight 
 of evidence, yet, in severe cases, it must be satisfied that 
 the instructions given for the party obtaining a verdict 
 are entirely unexceptionable, or a new trial will be 
 granted.' 
 
 ' Sowerwein v. Jones, 7 Gill & ' Wallace v. Jcrone, 1 Scam. 524. 
 Johns. 335. * Sawyer v. Pratt, 9 Met. 170. 
 
 2 Gilkey v. Peeler, 23 Tex. 663 ; s Carroll v. Paul, IG Mis. 220. 
 Ridens i'. Ridens, 29 Mis. 470 ; 
 Smith V. Johnson, 13 Ind. 224. 
 
 and he presents a prima facte case of merits, he ought to be allowed a 
 rehearing. Chambers v. Fisk, 15 Tex. 335. In New York, on motion 
 for a new trial upon a case stated, for the misdirection of the judge in 
 his charge, it is not necessary that it should have been excepted to. 
 Otherwise on a bill of exceptions to the rule. Geer v. Archer, 2 Barb. 
 420.
 
 256 THE LAW OF NEW TRIALS. [CH. XI. 
 
 § 4. More especially where the preponderance of evi- 
 dence is doubtful, if the law is not properly given by the 
 court, a new trial will be granted.^ 
 
 § 5. It is sometimes held that a new trial will not be 
 granted for the omission of a particular charge, unless 
 requested.^ Or of one view of the evidence, unless injury 
 results.^ Or an omission to charge upon any points of law 
 arising in the case, unless desired.^ Thus, a judge is 
 under no obligation to make known liis views of the rela- 
 tive condition of the parties, as to the burden of proof, at 
 every stage of the proceedings; if he gives the right 
 direction to the cause when a party has announced that 
 his case is complete.' JSTor to give an instruction which 
 has already been given by an instruction in chief." More 
 especially where no instructions are asked, the court above 
 will not interfere with verdicts found according to the 
 evidence.^ The distinction is made, that by an improper 
 instruction the jury is deceived ; while by a mere omission 
 to give a proper one they are merely left unembarrassed, 
 to decide the case upon its merits.^ " Instructions given 
 by the court at the trial are entitled to a reasonable in- 
 terpretation ; and if the proposition as stated is correct, 
 they are not as a general rule to be regarded as the sub- 
 ject of error, on account of omissions not pointed out by 
 the excepting party. "^ 
 
 § 6. So it is no ground for a new trial, that the charge 
 
 ' Manier v. Myers, 4 B. Mon. Byrd, 12 ib. 377; Jones v. The 
 514. Stiite, 20 Ohio, 34 ; Arey v. Ste- 
 
 2 Ilooksett t'.Amoskcag, &c. Co., iihenson, 12 Ircd. 34. 
 
 44 N. II. 105 ; Hessing v. McClos- ^ Hovey v. Ilobson, 44 Maine, 
 
 key, 37 111. 341 ; Maynard v. Fel- 25G. 
 
 lows, 43 N. II. 255 ; Colct). Taylor, ^ Russ v. War Eagle, 14 Iowa, 
 
 2 N J 59 SG3 
 
 3 Page v. Kinsman, 43 N. II. 328. ? "Penn v. Lewis, 12 Mis. IGl. 
 
 4 Carter v. Bennett, 4 Flori. 283; « Breckenridge v. Anderson, 3 
 Averett v. Brady, 20 Geo. 523 ; J. J. Mar. 710 ; Hice v. Woodard, 
 AYood V. Figard, 28 Penn. 403 ; 12 Ired. 293. 
 
 Ward V. Herrin, 4 Jones, 23 ; State ^ Per Clilford, J., Castle v. Bul- 
 V. Rash, 12 Ired. 382 ; Briggs v. lard, 23 How. 189.
 
 en. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 257 
 
 of the judge, which was right so far as it went, did not 
 go far enough.* So the mere omission to charge on a 
 particular point is not, in general, a ground of new trial; 
 and more especially, where the omission is on points of 
 law neither doubtful nor abstruse, the jury will be pre- 
 sumed to have followed the law.^ Nor, where the gene- 
 ral principle applicable to the case laid down in the charge 
 is correct, will a new trial be granted for the want of a 
 more particular direction, unless it was asked.^ So where 
 testimony was given as to the character of the accused, 
 ■which was proved to be good ; and the judge inadvertently 
 omitted to say anything on this topic* So where the 
 jury were told, upon an appeal from the award of land 
 damages by railroad commissioners, that the law in rela- 
 tion to highways applied generally to railroads ; and the 
 court were not at the time asked to make the instructions 
 more definite.' So, in a case of murder, the trial closed 
 at about midnight of Saturday. No points of law were 
 disputed. The defendant's counsel requested a charge, 
 but the judge submitted the case without remark. The 
 verdict of conviction was fully supported by the evidence, 
 and the court refused to set it aside.^ So, where a request 
 to charge is an entire proposition, made in reference to 
 "the right to recover, and not to damages, and is properly 
 denied ; it is not error to omit to single out a particular 
 part of it and apply it upon the question of damages.'' 
 
 § 7. But the general rule is, that the judge not only 
 may of his own motion instruct the jury, but is often 
 bound to do so f that it is the duty of the court to charge 
 
 ' Durand v. Grimes, 18 Geo. 693. e The People v. Gray, 5 Wend. 
 
 2 Bowie V. State, 19 Geo. 1. 309. 
 
 3 Selleck v. Turnpike Co., 13 ^ wiiittaker i). Perry, 38 Vt. 107. 
 Conn. 453. « Stumps v. Kelley, 22 111. 140 ; 
 
 * State V. Smith, 10 Rich. Law, Inloes v. American, etc., 11 Md. 
 
 341. 173 ; Welch v. Watts, 9 Ind. 115. 
 
 s March v. Portsmouth, &c., 19 
 N. H. 372. 
 
 17
 
 258 THE LAW OF NEW TRIALS. [CIL XI. 
 
 the jury as to tlic law,' and, where only part of the law of 
 the case is given in the charge, it is ground for a new 
 trial.2 Thus, where the court instructs the jury upon 
 what state of facts they must find a verdict for a party, 
 the instruction should include all the facts in controversy, 
 material to the right of the plaintiif or the defence.^ So 
 it is the duty of a judge to give such instructions as en- 
 able the jury to have clear and intelligent notions of what 
 they are to decide. If the omission does injustice, the 
 judgment will be reversed, although counsel did not ask 
 for any instructions.'' So the court should specifically in- 
 struct the jury, what facts are denied and what admitted 
 on the pleadings, and what facts are material. Therefore 
 it is error to charge the jury, that all material facts alleged 
 and not denied must be received as true by the jury.'' 
 Thus where a private individual, having removed certain 
 fish-traps as a public nuisance, was sued in trespass, and 
 found guilty ; a new trial was granted, because a certain 
 clause in a local act, pertinent to the question involved, 
 was overlooked by the court.^ So when jurors are in- 
 structed to find a verdict for the plaintifi', if the evidence 
 in the case proves either of two facts, one of which is not 
 legally provable by the evidence ; a verdict for the plain- 
 tiff will be set aside. As where parol evidence was ad- 
 mitted to prove fraud in a written agreement, and the 
 judge charged that "if it was agreed, when tlic deed of 
 quitclaim and writing were made, that the notes should 
 be thereby paid, then the mortgages ceased to have any 
 leo-al effect."'' So where the attention of the jury is con- 
 fined to one view of a case, when there are others which 
 they ought to consider.' As where one ground of defence 
 
 "Todd v. Campbell, 82 Ponn. s Tipton ?). Triplctt, 1 Met. (Ky.) 
 
 250 • Pcnnsvlvania, <kc. v. Zebc, 3o 570. 
 
 Penn 318. ' ^ Tarrar v. Nunamaker, 5 liich. 
 
 2 Keener v. State, 18 Geo. 194. 484. 
 
 3 Galla-dier v. Williamson, 23 ' Leonard i). Smith, 11 Met. 330. 
 Cal. 331. ° ^ Garrett «. Gonter, 43 Penn. 143. 
 
 * Owen V. Owen, 22 Iowa, 270.
 
 CH. XL] ERROI^EOUS RULINGS OR INSTRUCTIONS. 259 
 
 was that a letter of attorne}' had been forged, hut the 
 point was also raised, that the mortgage in question had 
 been ratified and adopted by the defendant, and that she 
 was estopped to dispute it, and there was some evidence 
 of her assenting to it; but the jury were told, that the 
 sole question was, whether the letter was forged.' So, 
 where the commissioner of special bail had allowed the 
 applicant for the prison-bounds act to amend his schedule, 
 but at the trial he failed to explain the matter and the 
 effect of the amendment to the jury; a new trial was 
 granted, the verdict being against the applicant.^ So, in 
 an action to recover for land taken for a plank-road, in 
 answer to the plaintiff's questions, his witnesses stated as 
 damages a general sum, which appeared, upon cross-ex- 
 amination or otherwise, to have included consequences of 
 the appropriation too remote to be considered. Held, the 
 duty of the court, especially upon objection made, to in- 
 struct the jury that this estimate should not be regarded.^ 
 
 § 8. And in a late case it is said: "The parties were 
 entitled to the judge's opinion, to his best judgment, on 
 every question of law arising in the course of the trial."* 
 Thus, in an action of trespass qu. daus.j where the de- 
 fendant justified under a claim of right, asserted without 
 unnecessary force, after an examination in part of one 
 witness for the plaintiff, the court suggested that the 
 counsel for the plaintiff should confine himself to such 
 facts as were necessary to maintain the case, independent 
 of damages. The bill of exceptions recited all the evi- 
 dence, and concluded as follows : "Upon this evidence, the 
 presiding judge ruled, pro /onna, that, not considering the 
 question of damages, the plaintiff could not maintain his 
 action, and thereupon a pro forma verdict was taken for 
 
 1 Garrett ?). Gonter, 42 Penn. 143. * Per Shaw, C. J., Goddard v. 
 
 2 Wiley V. Smith, 8 Kich. 389. Perkins, 9 Gray, 412. 
 ' Satcr V. Burlington, »&c., 1 
 
 Clarke, 28G.
 
 2G0 THE LAW OF NEW TRIALS. [CII. XI. 
 
 the defendants." ITcld, tlie final ruling of the judge was 
 entirely irregular, and, as the plaintiff was unwilling to 
 let his whole case depend upon the main question of right, 
 the exceptions were vacated and the case remanded for a 
 full trial.'(«) 
 
 § 9. It is the prevailing rule, that a mere abstract or 
 theoretical error in the rulings or instructions of the pre- 
 siding judge, or the refusal of them, furnishes no ground 
 of new trial ; and this whether the error consisted in a 
 mere omission, or in positive misdirection. With the 
 qualification, however, that such error clearly had no 
 tendency to mislead the jury or affect the issue. And the 
 rule is adopted in applications for a new trial made to a 
 higher court.^ Thougli the charge contain an ahstract 
 legal proposition, having no direct reference to the evi- 
 dence, yet, although the language he general, it will be 
 presumed the jury made a })roper a})plicati()n of it.^ 
 "Error in stating an ahstract principle not arising out of 
 the evidence, and nowise relating to the cause, shall not 
 be taken advantage of by either party ; for it would be 
 
 > Goddard v. Perkins, 9 Gray, shear, SFlori. Ifil ; TTolden ». Blox- 
 
 411. iim, B5 Miss. 381 ; Wood v. Gibhs, 
 
 2 Patterson v. People, 4G r>arb. 85 Miss. 500 ; Smith v. ('arr, 16 
 
 625 ; IMitchcll v. Ciiurchman, 4 Conn. 450 ; Moflitt v. Crcsslcr, 8 
 
 Hiunpli. 21S; Williams v. VVilliiims, Clarke, 122 ; ISoyd v. State, 17 (Jeo. 
 
 34 Pcnn. 312; McGreu;or y. Armill, 1!)4; Taylor v. Morrison, 20 Ala. 
 
 2 Clarke, 30 ; Cresinger v. Welcli, 728. 
 
 15 Ohio, 156; Eyser «. Weissgcr- ^ Tlio People v. Reynolds, 3 
 
 ber, 2 Clarke, 403 ; Western, A'C. Mich. 423. 
 V. AValker, ib. 504; Milton v. Black- 
 
 (a) It is the duty of a judge to group the evidence and to indicate 
 the bearing of its several parts upon the issue. Commissioners v. Clark, 
 33 N. Y. 251. A new trial will bo granted, when a case is subn»itted to 
 the jury without any instruction upon the main point in it, by an unin- 
 tentional omission of the judge and an unintentional omission of the counsel 
 to correct. Adair v. Adair, 30 Geo. 102. It is not proper for a judge 
 to lay down the general principles applicable to a case and leave the jury 
 to apply them, but to inform the jury what the law is as applicable to 
 the facts. Morris v. Piatt, 32 Conn. 75.
 
 Cir. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 261 
 
 impossible for sucli an error to have an efTcct on the event 
 of the cause."^ An instruction is right, if correct in its 
 application to the evidence, and not likely to mislead the 
 jury, though wrong as an abstract ])roposition.^ Or, even 
 in a capital trial, if it had clearly no bearing on the cage.^ 
 
 § 10. It is not error to refuse an instruction which is 
 unobjectionable as an abstract proposition, when it does 
 not fully state the rule by which the jury are to be 
 governed with reference to the facts,^ or has no relevancy 
 to the issue.' A judge is not bound to instruct the jury 
 upon an abstract proposition. lie is to lay down the law 
 as applicable to the evidence.^ As where a confession is 
 corroborated by other evidence, and the court refuse to 
 charge that such confession alone would not authorize 
 conviction.^(a) 
 
 § 11. It is no ground of new trial, that the judge gave 
 a wrong reason for a correct instruction.^ 
 
 § 12. The general rule on this subject is a fortiori appli- 
 cable, where the verdict is in accordance with the proof, 
 and a new trial upon the same proof would produce a like 
 result.' (See chap. 3.) Or if the verdict is according to 
 
 ' Per Gibson, J., Deal v. McOor- Iowa, 509; IToM v. Grimes, 13 B. 
 
 mick, a S. & 11. 34."). Mon. IBS; Browning v. State, 30 
 
 2 Roots V. Tyner, 10 Ind. 87. Miss. G-IG. 
 
 » People V. Robinson, 2 Parker, ^ ]\litchell v. Western, &c. R. R. 
 
 285. Co., 30 Geo. 22. 
 
 * Dwycr v. Dunbar, 5 Wall. 318; « The State v. Rash, 12 Ired. 382; 
 
 Allen V. Wanamaker, 2 Vroom, Ford v. Ford, 11 Humph. 89 ; State 
 
 370; Knox v. Easton, 38 Ala. 345 ; v. Presnell, 12 Ired. 103. 
 
 Hcssing V. McCloskey, 37 111. 341 ; ' Com. v. Tarr, 4 Allen, 315. 
 
 JIurphy V. People, ib. 447; Secor ^ Munro v. Potter, 34 Barb. 358. 
 
 T. Pestana, ib. 525 ; Hunt®. Crane, ^ Simpson v. Bowdon, 23 Miss. 
 
 33 Miss. GCy ; Hypfncr v. Walsh, 3 524. 
 
 (a) Erroneous instructions, upon questions not passed upon in the 
 verdict, are no cause for setting it aside. Hovey v. Chase, 52 Maine, 304,
 
 262 THE LAW OP NEW TRIALS. [ciI. XI. 
 
 law, though contrary to the instructions.' Thus where 
 payment was pleaded among other pleas, and all the issues 
 were found for the defendant; the court, on appeal, would 
 not review the decisions of the court below as to the 
 other pleas.^ So a company, consisting of a large number 
 of persons subscribing small sums, was formed for the 
 purpose of buying land, erecting dwellings thereon, and 
 allotting them to the sul)scribers. The allotment depended 
 upon the result of a ballot. In connection with this com- 
 pany there was established a bank, for receiving the 
 deposits of small capitalists and workingmen, upon the 
 security of the property of the company ; and, as part of 
 the same concern, a bank in which the subscribers of the 
 company might place their savings for purchasing their 
 land from the company. The judge, in an action of libel, 
 having directed the jury that the whole of this scheme 
 was illegal, on the grounds of its being contrary to the 
 lottery acts, and also to the bank act : held, the scheme 
 being illegal as contrary to the bank act, there was no 
 misdirection, even though not contrary to the lottery act; 
 and therefore a new trial was refused.* 
 
 § 13. Where a judge, in summing up to the jury, mis- 
 takes the law upon a collateral point, upon which a bill 
 of exceptions would not lie, a new trial will not be granted 
 as of right, but the court will exercise its discretion, ac- 
 cording to its opinion of the result being in accordance 
 with the justice of the case.* 
 
 § 13a. There are cases, however, in which a more strin- 
 gent rule has been adopted in regard to the effect of erro- 
 neous rulings, even though abstract and theoretical.^ It 
 
 ' Pratte, 12 Mis. 194. ^ Dunlap v. Eobinson, 28 Ala. 
 
 2 Hall y. Woodsiae, 8 Ired. 110. 100; Coii-liliu «. The People, 18 
 
 3 O'Connor z). Bradshaw, 1 Eng. 111. 200; Mayes v. Farish, 11 B. 
 L. and Eq. 4fifi. Mon. P>S ; Monto:omery v. Evans, 8 
 
 * Blacks. Joucs,3 Eng. L. and Geo. 178; Stearal)oat, &c. «. Buck- 
 Eq. 559. ner, 13 B. Mou. 240.
 
 en. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 263 
 
 is held tliat, if tlic judge give instructions to the jury, 
 whicli, though true as uhstract propositions, are erroneous 
 when ajiplied to the evidence, and may have a tendency 
 to mislead them, the verdict will be set asidc.^ That an 
 irrelevant instruction is error, for which a new trial will 
 be granted, unless it is manifest that the jury could 
 not have been misled by it.^ And, more especially, that 
 a new trial will be granted where the facts may have 
 warranted the jury in finding as they did, but where the 
 court erred in its instructions upon the point in issue.^ So 
 when the court charges the jury on an assumed state of 
 facts, not proved.* 
 
 § 14. And the qualified rule is laid down, that a new 
 trial will not be granted for matters suggested in a charge 
 not pertinent to the case, unless the attention of the judge 
 is called to them and he refuses to explain.^ 
 
 § 15. A verdict will not be set aside on account of 
 amhiguitu in the instructions of the court, if it is apparent 
 that the jury were not misled by it.^ And it will be pre- 
 sumed that the jury were not misled by a proposition 
 contained in the instructions, which, when considered by 
 itself, is susceptible of a construction that would render 
 it erroneous, if, when considered in connection with the 
 other parts of the charge, and in reference to the subject- 
 matter to which it was understood by the jury to relate, 
 there could be no doubt that another meaning w^as in- 
 tended, wdiich would render it correct.'' 
 
 § 16. In a late case it is said: "The jury are presumed 
 to understand the definition of words in common and 
 
 ' Hopkins v. Fowler, 39 Maine, 100 ; Armistead v. Brooke, 18 ib. 
 
 568. 521 ; Hanc}^ v. Marshall, 9 Md. 194. 
 
 2 Wriiilit P. Clark, 84 Miss. 116. s Gardner v. Pickett, 19 Wend. 
 
 3 Field ». Dealety, 10 B. Mon. 4. 186. 
 
 * Harrison ». Thompson, 9 Geo. ^ Wendell v. Moulton, 6 Fost. 41. 
 
 310 ; Dunlap v. llobinsou, 28 Ala. ^ Iloitt v. Holcomb, 32 N. H. 
 
 185.
 
 264 THE LAAV OF NEW TRIALS. [cil. XI. 
 
 ordinary use, and are not in attendance for the purpose of 
 being instructed in that particular. — If the judge had 
 defined the word ' unfaithfuhiess,' he might have been 
 called upon to define the words of his own definition, 
 and so have proceeded ad infinitum^ or until his vocabu- 
 lary had become exhausted."^ And if instructions of 
 doubtful interpretation are thought too indefinite, the 
 party should, when they are given, ask to have them 
 made more definite.^ 
 
 § 17. If, from the answers given by the judge to an in- 
 quiry of the jury, a party is apprehensive that the jury 
 may be led to an erroneous supposition, he should suggest 
 it to the judge, and not except merely in general terms to 
 an instruction which is correct in fact.^ 
 
 § 18. A new trial will not necessarily be granted, for 
 conflict between general instructions and those asked for.'* 
 
 § 19. It is to be presumed that jurors understand the 
 instructions of the court in matters of law; and, where 
 proper instructions are given, a new trial will not be 
 granted, on the suggestion that they did not rightly un- 
 derstand them. 
 
 § 20. Thus, where the plaintiff called for the books of 
 the defendants, which were produced, and contained both 
 charges and credits; the jury were instructed, that the 
 plaintiff, by calling for the books, and claiming the bene- 
 fit of the credits, had made the books prima facie evidence 
 only, and that it was open to him to contend, upon the 
 whole evidence, that the items on the debit side were not 
 
 ' Per Cutting, J., Borry v. Bill- Ala. 641; Miller?). Bryan, 3 Clarke, 
 
 ings, 47 Maine, 321) ; Raymond v. 58. 
 
 Nye, 5 Met. 151. ^ Stroud v. Frith, 11 Barl). 300. 
 
 2 Castle V. Bullard, 23 How. * Eyser ». Weissgerber, 2 Clarke, 
 
 (U.S.) 173; Tuey v. Owens, 28 463.
 
 en. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 265 
 
 proved, or were not proper subjects of charge.^ It was 
 held no ground for a new trial, that the jury might have 
 understood that this ruling required the defendants to 
 prove the correctness of their charges against the plain- 
 tiff, and not that the burden was shifted upon the plain- 
 tiff to disprove them, after he had made a prima facie case 
 against himself, as to those charges, by introducing the 
 books.2 j^,^(j it is held that misunderstanding, or want 
 of recollection, of the judge's instructions, if it could be 
 proved, would not be sufficient cause for setting aside a 
 verdict.^ 
 
 § 21. For a judge to charge "I apprehend the law to 
 be," amounts to " I conceive, or I think," and is not ob- 
 jectionable." And the charge must be understood as 
 having had an especial and direct reference to the issue 
 and the evidence respecting it. The words employed 
 must be taken in their ordinary and popular acceptation.' 
 
 § 22. But it is sufficient objection to a charge, that it 
 might convey to the mind of any man of ordinary capa- 
 city an incorrect view of the law applicable to the cause.^ 
 And where a charge was for the defendant, " if there were 
 testimony rebutting the plaintiff's proof;" held, the jury 
 might understand " rebutting " to mean only contradic- 
 tory, and not overcoming testimony, in which case the 
 charge was wrong, and therefore a new trial was ordered.^ 
 So an instruction expressing different, confusing, and 
 inconsistent views of the same matter is erroneous.' Or 
 a charge generally involved, confused, and obscure.^ Or 
 
 « Raymond v. Nye, 5 j\ret. 151. s Sumner v. The State, 5 Blackf. 
 
 See People v. Bagnell, 31 Cal. 409. 579. 
 
 2 5 j\I('t. lol. '' Fain v. Cornett, 35 Geo. 184. 
 
 3 Ilannum v. Belchertown, 19 « Wood v. Steamboat, &c., 19 
 Pick. ;n. Mis. 529. 
 
 < Golden V. State, 25 Geo. 527. ^ Armistoad v. Brooke, 18 Ark. 
 
 5 Mitchell V. Zimmerman, 4 Tex. 521 ; BouUemet v. State, 28 Ala. 
 
 75 83; Ferguson v. Fox, 1 Met. (Ky.) 
 
 83.
 
 266 THE LAW OF NEW TRIALS. [CII. XL 
 
 instructions given as requested, but connected with others 
 contradictory, or whicli, in connection with the former, 
 would give a wrong view of the law.^ So a new trial 
 was granted on account of the instruction, that the bur- 
 den of proof was upon the plaintiff, and was sustained 
 "if upon the whole proof there was a preponderance of 
 evidence, that is to say, a balance of the probabilities of 
 the case, in his favor." "The phrase 'balance of proba- 
 bilities' has no well-settled or clearly-defined meaning. It 
 would rather lead the jury to infer that they might form 
 their verdict on a guess at the truth, gathered from the 
 evidence, than on a real solid conviction of it, founded on 
 a careful scrutiny and examination of the proof. "^ 
 
 § 23. If a judge charges suhstaiitlally according to law, 
 though not in the terms requested, it is sufficient.^(a) All 
 
 • Clark V. McElvy, 11 Cal. 154. 440 ; State v. Wissmark, 30 Mis. 
 
 2 Haskins v. Haskius, 9 Gniy, 593; State ®. Rorabacher, 19 Iowa, 
 
 300, 393, per Bigelow, J. (in sub- 154; State v. Schla.ccel, ib. 1G9 ; 
 
 stance). Dodge v. Rogers, 9 Miii. 223. 
 
 " State 1}. Shaw, 4 Jones, Law, 
 
 (a) Garsed v. Turner, Error to the District Court of Philadelphia. 
 Opinion by Williams, J, March 4th, 1872. The principal question in 
 this case relates to the proper measure of damages for the breach of the 
 alleged contract. The District Court instructed the jury, that, " if the 
 contract was broken by the defendants, the plaintiff is entitled to be put 
 in the same position, pecuniarily, as he would have been if the contract had 
 been kept, regard being had to the fact that the plaintiff soon afterwards 
 obtained other employment." This instruction is complained of as erro- 
 neous, because, as contended, it furnished no proper rule by which to 
 measure the damages, being but a general statement of the result to be 
 arrived at, without any teaching as to how that result was to be attained. 
 Where there is no prayer for instructions, the court cannot be convicted of 
 error except for positive misdirection, though the instructions are not as 
 full and specific as they might have been. Mere omission to charge, as we 
 have often said, does not amount to misdirection, and where the proper rule 
 has been laid down for the guidance of the jury, the omission of specific 
 instructions to aid them in its application cannot be regarded or assigned 
 as error. As no instructions were requested in this case, the only question 
 is, whether the court was guilty of misdirection in instructing the jury
 
 en. XL] ERRONEOUS RULINGS OR INSTRUCTIONS. 267 
 
 the instructioiw and cx:[)liination3 are to be considered to- 
 gether, to see whether tliey must on the whole have conveyed 
 a correct idea to the jury, though some of them may have 
 
 that the phiintiff was entitled to be put in the same position, pecuniarily, 
 as he would have been if the contract had been kept. This was but an- 
 other mode of saying that the plaintiff was entitled to recover what he 
 would have made directly out of the contract if it had been fulfilled; 
 and if so, there was no error in the instruction. Hoy v. Gronoble, 10 
 (3asey, 9. This of course excludes remote or speculative damai^cs. It 
 was conceded on the argument that the proper measure of damages for 
 the breach of the contract was the value of the bargain. But what was 
 the value of the bargain, if it was not the profit which the plaintiff would 
 have made immediately out of the contract if he had been allowed to 
 perform it ? If the damages found by the jury would have put the plain- 
 tiff in the same position, pecuniarily, as he would have been in if the con- 
 tract had been kept, then it is clear that he recovered the value of his 
 bargain, viz., the direct profit which he would have made out of the con- 
 tract if it had not been broken. We think that the rule laid down by 
 the court as the proper measure of damages was substantially correct, and 
 we cannot say, therefore, that the jury were misled by the terms in which 
 it was expressed. Nor was there any error in saying to the jury that 
 "there is a difficulty in this case from the fact that the plaintiff had 
 incurred considerable expense in fitting up the dye-house ; but still the 
 evidence shows that the defendants were willing that the plaintiff should 
 remove the articles that he put there, so that the only loss in regard to 
 tliese articles would seem to be the loss of a favorable opportunity of 
 making profit by them." This was evidently said for the purpose of pre- 
 venting the jury from finding as damages the expense incurred by the 
 plaintiff in fitting up the dye-house, and limiting their finding, as it 
 respects the articles which the plaintifi" put in the dye-house, to the dam- 
 ages occasioned by the loss of a favorable opportunity of nuikiiig profit 
 by their use in performing the contract. If the improvements which the 
 plaintiff made to the dye-house were necessary in order to enable him to 
 perform the contract, then the loss of a favorable opportunity of making 
 profit by their use was a circumstance proper for the consideration of the 
 jury in determining the amount of damages to which the plaintiff was 
 entitled, and the defendants have no reason to complain of the instruc- 
 tion. Besides, the evidence shows that the expense of fitting up the 
 dye-house far exceeded the value of the articles when removed, and we 
 see no reason why the plaintiff was not entitled to recover the difference. 
 If so, the instruction was more favorable than the defendants had any 
 right to ask.
 
 268 THE LAAV OF NEW TRIALS. [ciI. XI. 
 
 been too broad. '(a) It is said in a late case: "The errors 
 assigned are not founded upon answers to specific instruc- 
 tions prayed for, but upon dismembered sentences of the 
 charge. It is im})0ssible to conceive of a more unsatisfac- 
 tory mode of reviewing a legal opinion. It is neither 
 analysis nor criticism, but rude surgery, mere amputa- 
 tion. "^ Thus the judge instructed the jury, that, in order 
 to defeat a mortgage, as made in fraud of the insolvent 
 laws, there must be, on the evidence, judicial certainty that 
 it was so made, but immediately explained this expression, 
 as meaning, that the jury were to be reasonably satisfied 
 
 ' Castle «. Bnllard, 23 How. 172; pliy v. People, ib. 447 ; Hamilton 
 Childress v. Ford, 10 S. &. M. 2.5; v. State Bank, 23 Iowa, 30G. 
 Walker v. Collier, 37 111. 362; Mur- 2 p^r Woodward, J.. Reeves v. 
 
 The Delaware, «fcc., 30 Peun. 460. 
 
 (a) In Illinois, the judge of the Circuit Court must reduce his instruc- 
 tions to writing, and has no right to explain or qualify them orally. (Sts. 
 18.56, 829.) Ray v. Wooters, 19 111. 82. Where the jury sent two ques- 
 tions in writing to the judge, who orally instructed them that the ques- 
 tions had nothing to do with tlie case, and that it was their duty to deter- 
 mine the case under the evidence and instructions already given ; held, 
 this refusal was no violation of the statutory requirement that instruc- 
 tions must be in writing. Sullivan v. Collins, 18 Iowa, 228. Under the 
 provision of the Code of Alabama, that charges requested by either party 
 in writing, whether refused or given, "become a part of the record, and 
 may be taken by the jury with them, on their retirement," the refusal of 
 the court, to permit the jury to take such written charges with tliem, is 
 erroneous. Miller v. Hampton, 1 Ala. (S. C.) 3.57. Where tlie court 
 gave charges in writing to the jury, as requested, and told them that they 
 were to consider the written in connection with the oral charges already 
 given as the law of the case ; held, not erroneous. Scott v. State, 1 Ala. 
 (S. C.) 23. Erroneous instructions given for one party are not in general 
 sufficiently corrected by inconsistent exjdanatory instructions given for 
 the other, but should be withdrawn. Inihoff v. Chicago, 20 Wis. 344. 
 In the absence of proof that the defendant, or those under whom he 
 claimed, had paid the purchase-money, it was error to give two instruc- 
 tions, however unexccptional)Ie singly, the combined effect of which was 
 to place him in the attitude of an innocent purchaser, the issue being, 
 whether he was entitled to equitable protection as such. Lacoste v. 
 Odam, 26 Tex. 458.
 
 CII. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 269 
 
 that the party had reasoimhle cause to believe tlie insol- 
 vency and fraudulent purpose of the debtor. Held, a 
 correct instruction.' So a new trial was refused, where, 
 before the instructions excepted to, the court explained to 
 the jury the nature and character of the charge, describing 
 substantially the two forms in which it was presented in 
 the several counts. Such explanations are to be treated 
 as part of the instructions.^ So in case of a charge, that 
 the court " was not a little surprised that there should be 
 an attempt made to acquit the defendant," but that it was 
 the duty of the jury to find according to the evidence, 
 and to acquit or convict thereon.^ 
 
 § 24. So a new trial will not be granted, if the court, 
 after giving an erroneous instruction, and before the case 
 is given to the jury, correct it.^ Or on account of a 
 charge, that in the opinion of the judge there is not suf- 
 ficient evidence to establish a certain fact, when at the 
 same time he instructs the jury to consider the evidence, 
 and to decide as they shall find the truth to be,^ So, 
 where the law has been fully and fairly submitted to the 
 jury by the judge, in his summing up in conclusion, and 
 the court is satisfied that the verdict is in accordance both 
 with the law and justice of the case; a new trial will not 
 be awarded, on account of some inaccuracy of language 
 as to the right of the parties, which may have been used 
 by the judge during the progress of the trial.^(a) 
 
 ' Whitcher v. Sliattuck, 3 Allen, * Sloo v. Roberts, 7 Ind. 128. 
 
 319. 5 Gardner v. Pickett, 19 Wend. 
 
 2 Castle V. Bullard, 23 How. 190. 18(J. 
 
 3 Keaton v. State, 7 Geo. 189. ^ Carter ». Buchanan, 9 Geo. 539. 
 
 (a) An instruction, although correct, may be properly refused, when it 
 has been substantially given in a different form. Mason v. Jones, 36 111. 
 212 ; Ilcssing v. McCloskey, 37 111. 341 ; Murphy v. People, ib. 447. When 
 a fact, constituted of several distinct elements or parts, is clearly sub- 
 mitted, and the finding of it by the jury implies a consideration of them, 
 they need not be enumerated. Maryland v. Porter, 19 Md. 458. There
 
 270 THE LAW OF NEW TRIALS. [CH. XT. 
 
 § 25. ITor if tliG wliole charge, taken together, does not 
 mislead the jury; though some of the instructions be 
 slightly repugnant to each other.^ Otherwise if the words 
 are true, but such as to mislead the jury.'^ 
 
 § 26. It is no ground of new trial, that the charge given 
 by the court below adopted the very language of the 
 
 ' Carringtou v. The Pacific, etc., ^ gniitli v. Ovcrby, 30 Geo. 241. 
 1 Cal. 475.' 
 
 is no ground of exception to instructions, stating in general propositions 
 the kxw of domicile as applicable to the facts, though embraced in a dif- 
 ferent form from the instructions asked for, it not appearing that the 
 judge made any improper reference to the evidence, or that the jury failed 
 to appreciate and apply them. Wilson v. Terry, 11 Allen, 206. If there 
 is a controversy as to the value of an easement in a canal in a city, into 
 which drains and sewers lead; a request for an instruction to the jury, 
 that, in estimating such value, they should consider all the lawful uses 
 to which the canal has been subjected, and the effect of such uses, cither 
 in impairing the value of the canal for navigation, or as leading to its 
 probable suppression, as a nuisance, is sufficiently complied with by an 
 instruction to them, that they are to determine the value of the easement 
 at that time, having reference to the state of things as they then existed, 
 the sort of canal, its depth, width, character, degree of ofTensiveness, and 
 all the facts and conditions affecting the quality and character of the 
 easement, and the land with which it was connected. Whitman v. Boston, 
 7 Allen, 313. An instruction, in an action for a malicious suit, that, if 
 the jury found for the plaintiff, they should give him such a sum as would 
 indemnify him for the injuries he had sustained by the wrongful acts of 
 the defendant, is sufficient, in the absence of any request for more spe- 
 cific instructions. Leach v. Wilbur, 9 Allen, 212. The consideration of 
 a guaranty was alleged to be the taking by the plaintiff of the note gua- 
 ranteed, in settlement of a certain matter between A. and the defend- 
 ant, when in fact it was a matter between A. and the plaintiff. The 
 declaration, as originally drawn, contained the word "plaintiff," and the 
 change was afterwards made by mistake. Attention was not called to it 
 on the trial, and the judge, without noticing the error, charged the jury 
 that they were to find for the plaintiff, if they found, among other things, 
 the consideration of the guaranty to be the taking of the note in settle- 
 ment of a matter between A. and the plaintiff. Held, a new trial ought 
 not to be granted. Rice v. Almy, 32 Conn. 297.
 
 en. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 271 
 
 Supreme Court.^ The court remarks as follows: "The 
 numerous quotations from judicial opinions, predicated of 
 a state of facts peculiar to each case, were not the most 
 satisfactory and skilful mode of answering the points. A 
 brief and comprehensive statement of the results of the 
 authorities is always better for a jury than the authorities 
 themselves. Judicial opinions are written to guide judges, 
 not juries. The law is often like particles of shining ore 
 mixed in a mass of crude rul)])ish, from which tlie intel- 
 lect of the judge, operating like a magnet, should extract 
 it for the service of the jury. But when, instead of doing 
 this, he hands over the mass itself to the jury, how are 
 we to say they did not find the ore? — We are bound to 
 presume that they performed the possible duty which was 
 hxid upon them."* 
 
 § 27. But it is error to instruct the jury by reading an 
 extract from a published opinion of the Supreme Court, 
 which, apart from the context, appears likely to mislead 
 them, and fails to give the necessary instruction.^(rt) And 
 if a court of appeal send a cause back for a new trial, the 
 court below should not give to the jury, in the authorita- 
 tive form of an instruction, the comments of the court of 
 appeal on the evidence, without suitable explanations of 
 the province of the jury. ^ 
 
 § 28. "When the instruction to the jury is such that the 
 ground upon which the verdict was rendered cannot be 
 
 • Hood V. ITood, 2."5 Pcnn. 417. ' Loehncr v. Ilomc, &c., lO^Iis. 
 
 2 Per Woochvard, J., Hood v. G28. 
 Hood, 25 Peuii. 432. * Talmagefl.Davenport,2Vroom, 
 
 561. 
 
 (a) In scire facias, to charge the real estate of a decedent, upon a 
 judgment obtained against the executor, it is error to allow counsel to 
 read to the jury in the concluding argument the charge delivered by the 
 judge upon the original trial of the cause. JJutler v. Slam, 50 Penn. 
 456.
 
 272 THE LAW OF NEW TRIALS. [CH. XI. 
 
 ascertained, it must be set aside.^ So where two grounds 
 were taken by a party, and it does not appear upon which 
 the verdict was rendered, and there is a misdirection as to 
 one.- So where the court misapprehended the object for 
 which certain testimony was introduced, and shaped the 
 charge accordingly.^ So, in an indictment for a larceny 
 of several articles, if the court instruct the jury, that, if 
 they find the accused guilty as to one of the articles, they 
 should find a general verdict of guilty; although the 
 punishment would be the same in both cases.^ So where, 
 in an action upon a joint note " payable and negotiable" 
 at a certain bank, the judge wrongly instructed the jury, 
 that the negotiability was thereby restricted, and also, 
 correctly, that, if the note was used by one partner for 
 his private debt without consent of the other, the plain- 
 tifts could not recover ; and there was a general verdict 
 for the defendants.' So, in an action on a note, the plain- 
 tiff first proved one consideration for the note; then, upon 
 impeachment of this consideration, another; and finally 
 relied upon evidence, introduced by the defendant, of his 
 (the plaintiff's) own declarations, which showed that both 
 the former considerations w^ere unfounded. A new trial 
 was granted for an instruction, as requested, that the 
 plaintiff might recover on either of the grounds above 
 stated.^ 
 
 § 29. But where there is but one exception to a refusal 
 to give a certain charge, if any part of the charge should 
 not have been given, the refusal must be affirmed.^ 
 
 § 30. A new trial will be granted for taking a question 
 
 " Holmps V. Doano, 9 Cnsh. 135. ^ WinshcU v. Latham, 6 Cow. 
 
 2 Gill V. Ktiul. o K. I. ;m. 183. 
 
 3 Formby v. Prior, 15 Geo. 258. ' Mft^ec v. Badger, 30 Barb. 246; 
 * The State v. SonuTville, 8 Preston ?i. Loighton, 6 Md. 88; Van 
 
 Shep. 20. Kirk v. Wilds, 11 Barb. 520. 
 
 6 Warden v. Hughes, 3 Wend. 
 418.
 
 en. XL] ERRONEOUS RULINGS OR INSTRUCTIONS. 273 
 
 of fact from the jury.'(rt) And not, on the otlier hand, 
 for leaving such question to the jury;' however weak 
 may be the evidence.' More especially if there is a con- 
 flict of evidence.'' Or for keeping distinct the questions 
 of law and fact.** Or, in general, for stating, in the form 
 of instructions, the law applicable to the case.^(6) 
 
 § 31. It is " the province of the court to see that all 
 proper evidence offered be submitted to the consideration 
 
 > McDoiii^ald «. Dawson. :]0 Ala. * Trauii v. KoitTer, 31 Ala. 186; 
 
 5r^n- Guuter 0. Lockey, 80 Ala. r,iU; Robiusoa v. Brooks, 82 Ala. 222. 
 White V Hass. 33 Ala. 430 ; Kin- * Hihler v. McCartney, 81 Ala. 
 
 man v. Cannefax, 34 Mis. 147. 501 ; Price v. Mazange, ib. 701. 
 
 2 Taylor v. Kelley, 31 Ala. 59. ^ Robinson v. State, 15 Tex. 311; 
 
 3 Traun v. Keiffer, 31 Ala. 136 ; Wilson v. Lorame, 15 ib. 4!)2. 
 Rogers v. Brooks, 3 Morg. 240. 
 
 (a) Where a cause is tried on an agreed statement of fads, which 
 contains no admission of a fact essential to the defence ; a general charge 
 in favor of the defendant is an invasion of the province of the jury. Case 
 V. Williams, 2 Cold. 239 ; Gunter v. Lackey, 30 Ala. 591. The facts are 
 to be found by the jury, unless admitted, and the judge can only regard 
 them as claimed, for the purpose of applying the law to them contin- 
 gently, if found ; and he cannot properly refuse to charge upon the facts 
 claimed on the ground that in his opinion they are not proved. Morris 
 V. Piatt, 32 Conn. 75 ; 31 111. 238. It is erroneous to instruct a jury to 
 disregard certain items in an account, in regard to which evidence has 
 been given. Myers v. Walker, 31 111. 353. It would be improper to 
 strike out a plea, because it was not supported by the proofs in the case. 
 Orne v. Cook, 31 111. 238. It is error to instruct the jury that the plain- 
 tiffs are entitled to recover, where the right depends entirely on the tes- 
 timony. Hill V. Caufield, 56 Penn. 454. 
 
 (fc) In some States, the statutory law has forbidden comments on the 
 evidence. Morris v. Morris, 28 Mis. 114; Chouquette v. Barada, ib. 491. 
 In California, it is held unconstitutional to charge that certain circum- 
 stances arc to be received with great caution, and that the court is in 
 doubt whether they be admissible at all. Seligman v. Kalkman, 8 Cal. 
 207. In Illinois instructions must be written. Ray v. Wooters, 19 111. 
 82— St. 1856, 829. In Indiana, a request (under 2 Rev. Sts. p. 110, s. 
 324) to have all instructions reduced to writing, must be made seasonably. 
 It is too late, when the court is proceeding to charge orally. Newton v. 
 Newton, 12 lud. 527 ; Cortner v. Amick, 13 ib. 463. 
 18
 
 274 THE LAW OF NEW TRIALS. [CU. XI. 
 
 of the jury, without Baying what effect such evidence 
 ou^lit to have."^ " Whenever the judge delivers his 
 opinion to the jury on a matter of fact, it shall be deli- 
 vered as mere opinion, and not as direction, and 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."^ And although an expression of opinion, as 
 to an inference of a fact from evidence, affords in general 
 no ground for exception, yet it is otherwise, if the judge 
 instruct the jury as to such inference, in such manner that 
 they might well understand that the inference is matter 
 of law, which they are not at liberty to disregard.' Or 
 if the charge of the judge is such as is likely to be under- 
 stood as a direction in a point of law, instead of a mere 
 expression of opinion on the facts.* So a new trial will 
 be granted, for any instruction as to matters of fact, or 
 the weight of evidence.^ Or, where there is any evidence, 
 for an instruction that there is none.®(a) 
 
 § 32. It is a common practice, for the defendant to move 
 for a nonsuit^ upon the ground that the plaintiff's evidence 
 is insufficient to sustain the action. Upon this subject, it 
 is held that refusing a nonsuit is no ground for new trial, 
 if the proof, a want of which would be the ground of 
 nonsuit, is afterwards supplied ; as, for example, proof of 
 
 • PerFloinins, J., Fishers. Dim- •• Still v. Glass, 1 Kelly, 475. 
 
 can, ] Hen. & M. 563. * Battcrsby v. Abbott, 9 Cal. 505. 
 
 2 N. Y., &c. V. Walden, 12 John. ^ Yates y. Brackeuridge, 27 Mis. 
 
 513. 531. 
 
 » State V. Lynott, 5 R. 1. 295. 
 
 (a) If the charge is equivalent to a determination of the facts, a new 
 trial will be granted. Case v. Williams, 2 Cold. 239. Whether the 
 evidence on one side tends to establish a particular fact, is a question of 
 law, whilst its weight and convincing force are for the jury, Tuttle v. 
 Buck, 41 Barb. 417.
 
 Cir. Xr.] ERRONEOUS RULINGS OR INSTRUCTIONS. ' 275 
 
 demand, in an action against the drawer of a check. And 
 this, although a nonsuit was cLaimed, and exception taken 
 to the rcfusah' ]^or where the defendant moved for a 
 nonsuit, for want of proof of a fact which the plaintiff 
 claimed was aduiitted by the pleadings; and the nonsuit 
 was refused, and the fact afterwards proved by the defend- 
 ant himself.^ Nor where the defendant claimed a non- 
 suit, because a fact was proved by a copy of an instrument 
 instead of the original; but, the motion being overruled, 
 proceeded with the case, and himself proved the same fact 
 by parol evidence, not objected to. The court say, "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 exists. It 
 is an assertion by the defendant that the fact was as stated 
 by his witness. "3 iN'or for a refusal to rule, that, upon 
 the plaintiffs evidence, the defendant is entitled to a 
 verdict, ^(a) 
 
 § 33. More especially, the judge is not bound, upon 
 motion of the defendant, to decide upon the sufficiency of 
 the plaintiff's evidence to maintain the action, unless the 
 whole testimony is closed, and the defendant intends to 
 offer no evidence.' Nor shall a new trial be granted, 
 where there is a motion for nonsuit, but the judge over- 
 rules it, rightly declares the evidence sufficient to main- 
 tain the action, and instructs the jury to find for the 
 
 Murray v. Judali, 6 Cow. 484. * Bassett v. Porter, 4 Cnsli. 487 
 
 2 Lansiiig v. Van Alstyne, 2 ^ Barrett c. Maiden, &c., 3 Allen, 
 
 Wend. 561. 101. 
 
 * Jackson v. Leggett, 7 "Wend. 
 
 377. 
 
 (a) Whenever the evidence is not legally sufficient to warrant a reco- 
 very, it is the duty of the court to instruct the jury accordingly. But 
 if there be evidence from which the jury may draw an inference, the case 
 ought not to be taken from them, though the evidence lead unavoidably 
 to the conclusion that the plaintifif has no case. Schuchardt v. Aliens, 
 1 Wall. 359.
 
 276 THE LAAV OF NEW TRIALS. [CII. XL 
 
 plaintiff.' And the general rule is sometimes laid down, 
 that it is not a ground of new trial that a nonsuit was 
 refused, when not consented to by the plaintiff; as the 
 better practice is to send the evidence to the jury with 
 the proper instructions.^ 
 
 § 34. But on the other hand it is held ground of new 
 trial, that a fact was submitted to the jury without evi- 
 dence.2 Thus a new trial was granted for a refusal to 
 nonsuit, upon a doubt as to the power of the court, where 
 there was no dispute about the facts, or any weighing of 
 testimony; but a pure question of law, whether under a 
 given state of facts the plaintiff was in law entitled to 
 recover.* So where, in answer to the defence of insol- 
 vency, the plaintiff' relied upon a subsequent promise to 
 pay; but the evidence did not show a clear, explicit, and 
 absolute promise; and the case was still left to the jury, 
 who found for the plaintiff. The court should have 
 ordered a nonsuit.^ So a nonsuit is proper, where a ver- 
 dict for the plaintiff would be against evidence or the 
 weight of evidence. As where, in an action upon a policy 
 of insurance, a nonsuit was ordered, upon the ground of 
 fraudulent concealment.^ So a new trial was granted, 
 where letters were left to the jury as evidence of a posi- 
 tive agreement between the parties, when the plaintiff' 
 should have been nonsuited.^ So where, upon an indict- 
 ment for the sale of intoxicating liquor, after proof that 
 the defendant declined to take any pay for the liquor de- 
 livered, the case was left by the court to the jury.^(a) 
 
 I Dean v. Ilowitt, 5 TTcnrl. 257. ^ Brook v. Wood, 13 Price, mi. 
 
 « Carr v. Gale, 3 W. & M. 38; ^ Hoyt v. Oilman, 8 Mass. 336; 
 
 Aiken v. Bemis, 3 W. & M. 348. Dryden v. Britton, 19 Wis. 22. 
 
 3 Jones V. Wood, 16 Penn. 25. ^ Chcveley v. Fuller, 13 Com. B. 
 
 ♦ Pratt V. Hull, 13 John. 334; (4 J. Scott) 122. 
 
 Stuart V. Simpson, 1 Wend. 37G ; « Com. v. Packard, 5 Gray, 101. 
 Foot V. Sabin, 19 John. 154; Bur- 
 nett V. Fulton, 1 Jones, 543. 
 
 (a) Where there is no evidence to sustain an issue, it is the duty of 
 the court so to inform the jury. Ilyuds v. Ilays, 25 Ind. 31. Wheu a
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 277 
 
 § 35. If an erroneous ruling of the court against the 
 plaintiff, for whom a verdict is given, may have prevented 
 the defendant from making a full defence, a new trial will 
 be granted.^ So where, after the close of the plaintiff's 
 evidence, the defendant asked, and the court gave, an in- 
 struction to the jury, which dispensed with evidence on 
 his part; and, after the plaintiff closed his argument, the 
 court gave a different instruction: it was held, that the 
 defendant should have been permitted to introduce his 
 
 ' Clarke v. Biggs, 6 Ired. 159. 
 
 plaintiff has concluded his case, •without offering sufficient evidence to 
 support it, it is the duty of the court, upon the request of the defendant, 
 to instruct the jury to find for the latter. Clark's v. Hannibal, 36 Mis, 
 202 ; Smith v. Hannibal, 37 Mis. 287 ; Hannibal v. Moore, ib. 338. To 
 leave a question to the jury, without some evidence upon which they 
 might base their verdict, is error. Bond v. Hall, 8 Jones, L. 14. It is 
 not error to take a question of fact from the jury, where the testimony 
 is undisputed, and the court takes a view of it the most favorable to the 
 party excepting that the jury could take. Weaver v. Darby, 42 Barb. 
 411. Or to instruct the jury to find for the plaintiff if they believe the 
 testimony, there being no evidence contradicting his claim. Spalding v. 
 Bull, 1 Duv. 311. The court cannot take from the jury a case in which 
 the evidence is conflicting, and the testimony of one or more witnesses, if 
 believed, would, taken by itself, support a verdict. Reed v. Peerfield, 8 
 Allen, 522. When evidence is direct, leaving nothing to inference, and, 
 if believed, is the same thing as the fact sought to be proved, the judge 
 may instruct the jury, that, if they believe the witness, they may find 
 for the plaintiff or defendant. Gaither v. Ferebee, 1 Wins. No. 1, 310. 
 Otherwise, when the evidence is circumstantial, or when the evidence on 
 the other side tends to explain it or to rebut the inferences sought to be 
 drawn from it, or to contradict the witness. Although, where the de- 
 fendant fails to tender any defence to a particular count, the plaintiff is 
 entitled to judgment thereon; such judgment must be given by the court, 
 and it is not error to refuse to instruct the jury that the plaintiff is en- 
 titled to recover thereon. Sinclair v. Gray, 9 Flori. 71. In Illinois, the 
 practice of the court precludes it from instructing the jury as in case of 
 a nonsuit, where a material fact is omitted to be proved by the plaintiff; 
 but the defendant may ask the court to instruct the jury, that, if the 
 given fact was not proved, they should find a verdict in his favor. Deshler 
 V. Beers, 32 111. 368.
 
 278 THE LAW OF NEW TRIALS. [CU. XI. 
 
 evidence; and, wliere he did not, that it was error not to 
 grant a new trial. ^ 
 
 § 36. It has already been stated, generally, that the 
 court, on the one hand, may properly instruct the jury 
 upon points of law, and on the other, may properly refuse 
 to interfere wnth questions of fact. It remains to ex- 
 plain more particularly these general rules, with their 
 respective applications and modifications. The distinc- 
 tions are often very nice, and it is difficult to reconcile all 
 the cases. 
 
 § 37. The question, how far evidence, that is legitimate 
 and properly admitted, is material, and to how much 
 weight it is entitled, is for the jury. It is erroneous to 
 instruct them as to the materiality of evidence.^ And a 
 new trial will be granted for a wrong ruling as to the in- 
 sufficiency of the testimony to maintain the action.^ 
 Hence where, in an action against a railroad for negli- 
 gence, the plaintiff called but one witness, and he effect- 
 ually disproved the charge; the judge having refused to 
 instruct the jury that the plaintifi' had failed to maintain 
 the charge, a new trial was granted.* And on the other 
 hand, where there is any evidence, however weak, tend- 
 ing to establish a material question in the case, or any 
 issue joined, the court may properly refuse to charge the 
 jury that it is insufficient ;5 and it is error to instruct the 
 jury that there is no evidence f though a remark of the 
 court, that the testimony is insufficient, where it is left to 
 the jury, is held not to be ground for a new trial.^ So 
 when there is any conflict in the evidence on a material 
 
 1 Moreland v. McDermott, 10 « Trann v. Koiffor, 31 Ala. 1R6. 
 Mis. 605. ^ Yatrs v. Brackeiiridge, 27 Mis. 
 
 2 Stacy V. Cobbs, 30 111. 349. .')31 ; Flomraing v. Marine, &c., 4 
 ' Avhvin v. UlnuT, 12 Mass. 22; Wliart. 59. 
 
 BondV. Mallow, 17 Tex. 636. ' Schouemant?. Fegley, UPenn. 
 
 « Undorliill v. New York, «S:c., 376. 
 21 Barb. 489.
 
 en. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 279 
 
 point, tlie court may properly refuse a general charge in 
 favor of either party.' And a charge that the plaintiff 
 should recover, when an inference of fact must be drawn, 
 is erroneous.* So where a plaintiff offers evidence to 
 prove his allegations, it is error for the court to instruct 
 the jury that no evidence was offered which would war- 
 rant the jury in finding a verdict for the plaintifi'.^ The 
 court is authorized to instruct the jury, th^ft if they be- 
 lieve all the evidence they must find for the defendant, 
 only in cases where a demurrer to the evidence might 
 have been sustained; such a charge, therefore, should never 
 be given, where there is any evidence which reasonably 
 tends to establish the plaintifi''s case.* 
 
 § 38. But, on the other hand, a new trial was granted, 
 where slight evidence of handwriting was offered, and the 
 jury instructed that the plaintiff* was entitled to a ver- 
 dict.* So, where there is no conflict in the testimony, and 
 no room to doubt or hesitate as to a matter of fact in 
 issue, the judge in his charge ought not to assume that it 
 is or may be doubtful. The rule, which forbids a judge 
 to charge on the weight of evidence, does not require or 
 authorize him to assume as doubtful that which is clear 
 and indisputable. It is only where there may be doubt, 
 that the rule applies, that the court shall not charge on 
 the weight of evidence.® 
 
 § 39. A new trial will be granted, in a case of conflict- 
 ing evidence, for the instruction, that, if the jury believe 
 the evidence, they must find in a particular way."(a) Thus 
 
 ' Robinson v. Brooks, 83 Ala. ^ Utica, &c. v. Badger, 3 Wend. 
 
 223 ; Scroggius v. Wilson, 13 Mis. 102. 
 
 80. 6 Wintz V. Morrison, 17 Tex. 373. 
 
 2 White V. Hass, 33 Ala. 430. ? Williams o. Harlshoru, 30 Ala. 
 
 3 Houghtalingi'. Ball, 19 Mis. 84. 211. 
 * Freeman v. Scurlock, 37 Ala. 
 
 407. 
 
 (a) It is error to take from the jury a question in reference to which 
 the evidence couflicts. Brooke v. Grand, 15 Mich. 332.
 
 2(S0 THE LAW OF NEW TRIALS. [ciI. XT. 
 
 whore there is the least conflict of evidence, a general 
 charo:c for tlie plaintiflr", if the jury believe the evidence, 
 is erroneous.' So where the judge instructed the jury, 
 that the evidence oifered by the plaintiif was conclusive 
 evidence of the barratry which was alleged in the case; 
 that the evidence of the defendants was not sufficient to 
 maintain the issue on their part, or to bar the action; and 
 that, if the j*iry agreed with him, they ought to find for 
 the plaintiffs.^ So where, in an action for dilapidations, 
 the judge told the jury, that it was not like an action for 
 goods sold and delivered, and that the plaintifi' might rest 
 upon general evidence in support of his particulars of de- 
 mand, without proving every item, especially as the jury 
 had viewed the premises, with the particulars in their 
 hands, and would therefore be able to judge whether, and 
 to what extent, the plaintiff had made out his case.' So 
 where a judge declared the evidence sufficient to entitle 
 the plaintiff to recover, and so left the cause to the jury, 
 it will be deemed a positive direction to find for the plain- 
 tiff; and, where there are circumstances that ought to 
 have been submitted to the jur}^, a new trial will be 
 granted.* So though one witness, an expert, testify, that at 
 the time of the sale the property sold was valueless, which 
 is the only direct evidence; yet the jury are not to be in- 
 structed to find the full value for the vendee on that evi- 
 dence, unless they are also satisfied on all the proof.* So 
 a trader, in consideration of advances in cash and goods, 
 assigned all his stock to the defendants, to secure such 
 advances, and also a debt previously due to them. The 
 goods so assigned comprised all his property, except some 
 household furniture and book-debts. In an action by the 
 assignees of the trader to recover the value of the goods 
 
 ' Peebles v. Tomlinson, 33 Ala. * Fitza:oraltl v. Alexander, 19 
 
 336. Wend. 402. 
 
 2 Now York, &c. v. Waldon, 12 s HoUoway v. Gotten, 33 Ala. 
 John. 513. 529. 
 
 3 Smilh V. Douglas, 32 Eng. Law 
 and Eq. 319.
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 281 
 
 eeized under this bill of sale, the judge left it to the jury, 
 with very strong observations, to say whether they would 
 infer an intent to defeat and delay creditors. The jury 
 having found for the plaintiffs, the court, thinking they 
 might have been misled by the observations of the judge, 
 granted a new trial, the costs to abide the event.^ So the 
 defendants, in an action on a note, claimed to have paid 
 the whole of it before suit, except a trifling sum, but 
 this claim was disputed by the plaintiff, who, after the 
 testimony was closed, offered, if the jury should be against 
 him on this point, to allow a verdict to be rendered against 
 him, and requested the court so to instruct the jury. Held, 
 the court were not bound to accept this offer, or so to 
 charge the jury.^ So on the trial of an action in which a 
 division line was in dispute, the plaintiii" proved acts and 
 admissions of the defendant and those under whom he 
 held, which recognized the plaintiff's line, and the defend- 
 ant gave in evidence sundry deeds and surveys to prove 
 his line. The defendant requested a charge, that, if the 
 jury were satisfied from the deeds and surveys taken by 
 the parties, that the line was located as the defendant 
 claimed, then they were to disregard the acts and admis- 
 sions proved by the plaintiff. Held, he was not entitled 
 to such charge, it being the duty of the court to submit 
 the question to the jury upon the whole evidence taken 
 together.^(a) 
 
 ' Pennell v. Dawson, 36 Eng. ' Scovill v. Baldwin, 37 Conn. 
 Law and Eq. 481. 316. 
 
 « Austin V. Bingham, 31 Vt. 577. 
 
 (a) Where the evidence, in an action to recover for horses killed by 
 the cars of the defendant, tended to show that the engineer neglected to 
 comply with the requirements of the statutes, as to blowing the whistle, 
 ringing the bell, or reversing the engine, a charge to the jury that, if 
 they believe the evidence, they must find for the plaintiff, is erroneous. 
 The jury alone could infer from the evidence, that the damage was caused 
 by the engineer's neglect. Memphis, &c. v. Bibb, 1 Ala. (S. C.) 630. So 
 the sufficiency of evidence to establish the fact of agency is a qucstioa
 
 282 THE LAW OF NEW TRIALS. [CII. XI. 
 
 § 40. But where the evidence on a point is all one way, 
 the court is right in not submitting the question to the 
 
 for the jury; and an instruction that the evidence is insufficient is erro- 
 neous. Bank v. Plannett, 1 Ala. (S. C.) 178. So, if there is any evi- 
 dence of fraudulent intent in making a sale, an instruction that the cir- 
 cumstances would not justify the jury in finding fraud. Miller v. Stewart, 
 24 Cal. 502. So in a suit against a bank on bank-notes destroyed, the 
 quantity and character of the evidence relating to the destruction is for 
 the jury; and, where it was such as to justify the submission of the 
 question to them, their finding was held conclusive. Hagerstown v. 
 Adams, 45 Penn. R. 419. In an action upon a negotiable note payable 
 at a certain bank, the defendant contended that the note was originally 
 signed by him to take up a note of his son, the amount of which, with 
 interest, equalled this; that, at the request of the payee, since dead, an- 
 other note was made, with interest included in the principal, in order 
 that it might be discounted, and the payee by mistake carried away both 
 notes ; that the other note was paid by the defendant, and there was no 
 consideration for the note in suit; and offered evidence, that a note of 
 the same amount with the other note had been paid by him at the t):ink, 
 and that the note in suit had never been there nor inquired for by him 
 there, and that the payee had never demanded payment thereof during 
 his life. Held, that there was sufficient evidence to be submitted to the 
 jury, and a ruling to the contrary entitled the defendant to a new trial. 
 Cushing V. Willard, 11 Gray, 247. The court is not bound to give special 
 instructions, at the request of counsel, on a hypothetical case. State v. 
 Murph. 1 Wins. No. 1, 129. Nor upon an assumption of facts, not sup- 
 ported by evidence. Where there are several possibilities of fact, diffi^rent 
 from the inference intended to be drawn from the evidence offered, a 
 judge is not recjuired to note one such possibility, and specifically bring 
 it to the attention of the jury. State v. Clara, 8 Jones, L. 25 ; Gregory 
 V. Richards, ib. 410; New England v. Wetmore, 32 111. 221 ; Lawrence 
 V. Jarvis, ib. 304. Where a party desires instruction on a given hy- 
 pothesis, he must state the facts hypothetically, if controverted. Penn- 
 sylvania V. McTighe, 46 Penn. 316. See Cullum v. Wagstaff, 48 Penn. 
 300. If the assumption, in a point presented by the plaintiffs and 
 affirmed by the court, is untrue in fact, the court should be requested by 
 the defendants to charge upon the true state of facts, or at least upon 
 the defendants' hypothesis. Where this is not done, and there is evi- 
 dence as to the correctness of the assumption, the judgment will not be 
 reversed because of a direction without evidence to sustain it. I'hila- 
 delphia v. Hagan, 47 Penn. 244.
 
 en. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 283 
 
 juiy.^ And it is lield tliere can be nothing clearer or 
 better settled, than that it is proper for the court to 
 charge the jury directly upon the legal effect of the ad- 
 mitted or uncontroverted facts of the case.^ So where, 
 after conceding all points on which there is a conflict of 
 evidence and all adverse influences, the undisputed facts 
 establish a clear legal conclusion, the party has a right to 
 a charge to that effect in his favor.^ And where the only 
 witness in the case swore, that the defendant had admit- 
 ted the correctness of the account stated sued on, and had 
 promised to pay it ; it was held no fatal error, that the 
 court instructed the jury to find for the plaintiff, if they 
 believed the witness.* While, on the other hand, an 
 instruction to find for the plaintiff, if the jury believe 
 the evidence, is bad, where there is anything in the evi- 
 dence, or lawfull}^ to be inferred from it, to hinder the 
 plaintiff's recovery,^ Thus an instruction, in an action 
 to recover for work and labor, which excludes from con- 
 sideration all proof of a special contract set up in de- 
 fence.^ 
 
 § 41. Although the court has not the power to instruct 
 the jury upon the weight of evidence, yet it has the power 
 to judge of the tendency of evidence. (See § 56.) "When 
 the evidence does not tend in any just legal view to make 
 out the plaintiff's case, it is the duty and province of the 
 court so to instruct the jury.^ Thus it is not error to 
 instruct the jury, that "all the circumstances for and 
 against the prisoner, which were proved beyond a reason- 
 able doubt, must be taken all together, and not sepa- 
 rately."^ iSTor to pronounce on the effect of evidence, 
 
 ' United States v. One Still, 5 ^ Wiggins v. Holley, 11 Ind. 2. 
 Blatchf. C. C. 403. s Lee v. Quirk, 20 111. 393. 
 
 2 Hedsepcth v. Robertson, 18 ^ Garnett v. Kirkman, 33 Miss. 
 Tex. 8.-.8. 380. See McFarlaud v. Wofford, 
 
 3 Rhodes V. Otis, 33 Ala. 578. 16 Tex. 002. 
 
 « Terry v. Sickles, 13 Cal. 427. « tUo State v. Rasli, 12 Ired. 383.
 
 284 THE LAW OF NEW TRIALS. [CH. XI. 
 
 whore it is siicli that it would be the duty of the judge 
 to set aside the verdict, if rendered against it.'(rt) 
 
 § 42. It is the province of the court to instruct the jury 
 what inferences of fact they would be warranted in draw- 
 ing from the evidence and facts proved, and, if the court 
 should not err as to the kind and extent of such infe- 
 rences, exception could not be sustained, even though the 
 matter should be so plain as to render it needless to say 
 anything about it to the jury.^ But the court should not 
 instruct the jury to draw inferences which are not legal 
 inferences.^ (See § 57.) And where a presumption is one 
 of fact merely, the court is not warranted in declaring it 
 to the jury as a presumption of law.^ 
 
 § 43. A judge is bound to instruct the jury on the law 
 itself, and not on its history, object, or purpose. Thus he 
 may refuse to charge, that the only object of the register 
 of a vessel is to entitle it to the benefits of an American 
 bottom.' Nor is it the duty of the court to give in charge 
 to the jury, at the request of counsel, any law, or sections 
 of a law.^ 
 
 § 44. The preliminary remarks of a judge, not necessary 
 to the merits of the case, in his charge to the jury, when 
 the law is correctly stated, aiford no ground for a new 
 
 ' Gr.iff v. Pittsburg, &c. 81 < Ham v. Barret, 28 Mis. 888; 
 
 Penn. 4S9. Kin^ v. Pope, 28 Ala. 601 ; Crum 
 
 2 Brcwin v. Estate of Farrell, 39 v. Williams, 29 Ala. 440. 
 
 Vt. 20(5. 5 Lincoln v. Wright, 23 Penn. 76. 
 
 « Moies V. Eddy, 28 Mis. 382. s Kyan v. Jackson, 11 Tex. 391. 
 
 (a) A judge has an undoubted right and discretion to make such com- 
 ments upon the testimony as he thinks necessary or proper for the direc- 
 tion of the jury. He may intimate an opinion as to the weight of evi- 
 dence, or direct the attention of the jury to any matter in the cause 
 affeeting the credibility of a witness. These are all matters of judicial 
 discretion, and a mistake in the exercise of this discretion is not assign- 
 able as error. Bruch v. Carter, 3 Vroom, 554.
 
 en. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 285 
 
 trial.' Nor is it ground of new trial, that, conformably 
 to practice, certain questions are submitted to the jury 
 without objection.^ Or that the judge instructs the jury 
 to decide particular questions of fact stated to them in 
 writing.^ 
 
 § 45. Comment by the judge upon the facts is not neces- 
 saril}' erroneous, where the issue is left to the jury.* " The 
 judge who presides shall always direct the jury in matters 
 of law, before they retire or withdraw, and also assist them 
 as to matters of fact."^ Comments "are understood to be 
 addressed to the jury merely for their consideration, as 
 the ultimate judges of matter of fact ; and are entitled to 
 no more weight or importance than the jury, on the exer- 
 cise of their own judgment, choose to give them."^ " The 
 jury listen to the remarks of the court upon the testimony, 
 with the deference due to learning and experience, but 
 with a perfect understanding that they must decide upon 
 matters of fact according to their own convictions."^ On 
 questions of fact, the judge has the right to advise the 
 jury, and aid them with his views in coming to a conclu- 
 sion, but the ultimate decision must be left to their judg- 
 ment.^(a) 
 
 ' Mayor, «S;c. V. Goetchius, 7 Geo. ® Per Story, J., Carver ti. Jack- 
 
 139. son, 4 Pet. 1. 
 
 2 Allen V. Aldricli, 9 Post. 63. ' Per Willard, P. J., Lansing v. 
 
 » Partridge v. Gilbert, 3 Duer, Russell, 13 Barb. r)21. See also the 
 
 184. remarks of Mr. Justice Maule in 
 
 < Althof v. Wolf, 2 Hilt. 844 ; Doe v. Strickland, 8 Man. G. & Sc. 
 
 Flanders v. Colbv. 8 Post. 34. 742 ; and of Fowler, J., in Nutting 
 
 « Hale's Hist. C. L. 256. v. Herbert, 37 N. H. Soo. 
 
 8 State V. Smith, 12 Rich, 430. 
 
 (a) An instruction, which is a hypothetical recapitulation of the ma- 
 terial facts, is objectionable. Roe v. Taylor, 45 111. 485. "Where both 
 parties were stock-brokers, and the judge charged the jury, "that the 
 fact that both parties were brokers, and might be presumed to know the 
 usages of their business, was entitled to great weight ;" held, not a charge 
 upon a matter of fact forbidden by Gen. Sts., c. 115, I 5. Durant v. 
 Burt, 98 Mass. 161. It is not error, for a judge in charging the jury,
 
 286 THE LAW OF NEW TRIALS. [CH. XI. 
 
 § 46. It is to some extent matter of discretion with the 
 judge how far he will state the facts, in summing up a case.' 
 It is said by an English judge: "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."'' So Chief Justice Parker 
 remarked, in vindicating the right of the judge to express 
 an opinion upon the facts: "The next step will be, to move 
 for a new trial on account of the expression of the counte- 
 nance of the judge."'' 
 
 § 47. Hence, in general, comments on the evidence fur- 
 nish no ground of new trial, unless injury is shown to 
 have been thereby caused." Or pertinent remarks, not 
 calculated to injure.^ Or suggestions as to facts.^ The 
 judge may call the jury's attention to the evidence, stating 
 his recollection of what has or has not been testified to, 
 and submitting the whole matter to their consideration 
 and judgment.^ The comment of a judge upon evidence, 
 
 > Frost v. ISIartin, 9 Fost. n06 ; ^ Bulkeley v. Keteltas, 4 Sandf. 
 
 Attv.-Geu. V. Good, McCl. & You. 450. 
 
 2b6 ^ Nutting v. Herbert, 37 N. H. 
 
 *'Per Hallock, B., Attv.-Gen. v. 346. 
 
 Good. 1 McCl. & You. 28r.. 6 Patterson v. Colebrook, 9 Fost. 
 
 3 Com. V. Child, 10 Pick. 252. 94. 
 
 See 2 Jones, 418. ' Eddy v. Gray, 4 Allen, 435 ; 
 
 Marshall v. Morris, 16 Geo. 368. 
 
 after instructing them correctly upon a point presented by counsel, to 
 add that, as a general rule, it was the fairest and best way for a jury to 
 decide cases mainly upon the grounds taken and discussed by counsel in 
 the argument. Melvin v. BuUard, 35 Vt. 268. A judge may express 
 an opinion upon the facts, if they are properly referred to the jury; but 
 care should be taken not to infringe the province of the jury, so as to 
 relieve them from the necessity of pronouncing an intelligent judgment. 
 Hence, in an action on a justice's bond, where the sole question was, 
 whether he had collected the money sued for in his official capacity, the 
 court, after recapitulating the testimony, might express an opinion that 
 the justice had acted and received the money ofiicially, at the same time 
 referring the evidence to the jury, with instructions, that, if they were 
 satisfied of this fact, the bail was liable, though no suit was brought on 
 the note. Ditmars v. Com., 47 Penn. 335.
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 287 
 
 not involving any opinion or direction in matter of law, 
 is not a proper ground of exception.^ So it is competent 
 for the judge to state that certain evidence was admissible 
 which was objected to, and in the absence of any evidence, 
 that the jury misunderstood him to say that it controlled 
 the case, it will not be error,^ And a charge, reciting the 
 facts as claimed to have been proved, and giving the law 
 upon them if found by the jury to be true, is not an in- 
 struction upon the facts. Thus a charge upon the legal 
 effect of facts, strongly urging the support of the law 
 against mob violence.^ 
 
 § 48. So where the jury are left free to come to their 
 own conclusion upon a question of fact, the mere leaning 
 of the judge in his charge upon that question, however 
 strong, is not a ground for a new trial; at any rate, in a 
 civil case.* More especially if the question is on the whole 
 fairly left to the jury.^ As, for example, a suggestion as 
 to the injustice of the plaintiff's claim, not objected to at 
 the time.^ So where a simple enumeration of circum- 
 stances leads to an irresistible conclusion of fact, the court 
 cannot be considered as expressing an opinion on such 
 fact, contrary to law, in merely making such enumeration, 
 there being no peculiar significance of voice or manner in 
 making it.' 
 
 § 49. So the remark of a judge, in his instructions, that 
 he had perceived no evidence in support of a position 
 taken by one of the parties, but still referring it to the 
 jury to settle the case upon the evidence, is no ground for 
 
 ' Davis V. .Tenney, 1 Met. 331 ; * Stoddard v. Mcllwain, 7 Rich, 
 
 Whitou V. Old Colony Ins. Co., 3 535. 
 
 Met. 1; Curl v. Lowell, 19 Pick. ^ Foster v. Steele, 5 Scott. 28; 
 
 S") ; Phillips V. Kingfield, 1 App. Belcher v. Brithe, 4 M. & Sc. SOo. 
 
 375. 5 Gardner v. Picket, 10 Wend. 
 
 2 Carroll v. Roherts. 23 Geo. 493. 186 ; Grove v. Donaldson, 15 Penn. 
 
 8 Pritchett v. Overman, 3 Iowa, 128. 
 
 531. 7 State v. Noblett, 3 Jones, 418.
 
 288 THE LAW OF NEW TRIALS. [ciL XI. 
 
 exceptions.' So it is no ground for exception that a jury, 
 impanelled to try a prisoner indicted for murder, heard 
 the judge charge the grand jury, that "almost all the 
 liomicides committed in the county could be traced to 
 carrying concealed weapons, and that it was high time 
 that a stop should be i)ut to such ofiences," and compli- 
 mented them on their vigilance.^ Nor a positive expres- 
 sion of opinion that the ev' idence is sufficient to establish 
 the issue for the plaintiff; if such ojiinion was well 
 founded.^ More especially if accompanied with a correct 
 statement of the law applicable to the case.^ As in case 
 of the expression of an opinion that no usury had been 
 committed, but leaving it to the jury to draw their own 
 conclusions from the evidence.' jS'or, in an action for 
 libel, the incorrect statement of the judge that there wa8 
 no evidence of express malice; if such evidence was in- 
 sufficient to justify a verdict for the plaintiff.^ Xor the 
 stating a fact not stated by counsel.' Nor the statement, 
 that, in the opinion of the judge, there is not sufficient 
 evidence to establish a certain fact, but the jury are to 
 consider the evidence, and decide as they shall find the 
 truth to be.^ 
 
 § 50. So it has been held, that even a mistake of a fact, 
 by the judge, in his charge, is not ground of new trial." 
 So, in an issue of devisavU vel 7ion, the court will not re- 
 mand a cause for a rehearing, notwithstanding the irre- 
 gularities committed at the trial by the judge, in an- 
 nouncing, at the close of the testimony, that his mind 
 was fixed and unalterably made up upon the merits of 
 
 * Cunningham v. Batcheldcr, 33 ^ Solatre v. Melville, 1 ^Man. & 
 Maine, 31G. li. l'J8. 
 
 * Thomas v. State, 27 Geo. 287. « Remington v. Congdon, 2 Pick. 
 » Dean v. Ilewit, 5 Wend. 2r)7; 310. 
 
 Oyster v. Longuecker, IG Peuu. ' Sawyer v. Merrill, 6 Pick. 478. 
 269. * Gardner v. Picket, 19 Wend. 
 
 * Hunt V. Bennett, 4 E. U. 186. 
 
 Smith, 647. " Union Bank v. Sollee, 2 Strobh 
 
 3'JO.
 
 CII. Xr.] ERRONEOUS RULINGS OR INSTRUCTIONS. 289 
 
 the case, and in arresting the argument of the prevailing 
 party, before its conclusion, with the remark that it was 
 unnecessary ; where the appellate court are satisfied, from 
 the testimony, that justice has been done; especially if 
 the provisions of the will in question furnish intrinsic 
 evidence of its reasonableness, and the court and jury, on 
 the trial below, concurred in opinion, both as to the 
 capacity of the testator and the fairness of the will.^ So 
 where a judge, in opening his charge, said, "that he 
 wished counsel to take notice of his charge, for he sup- 
 posed the case would be taken up, and, if he erred, he 
 could be corrected, and, if the jury found contrary to 
 evidence, they could be corrected;" it was held, that the 
 latter part of the remark was no ground for error, although 
 inexpedient and improper.^ So, under a statute which for- 
 bids the judge to give an opinion whether a fact is fully 
 proved, but also requires him to state the facts given in 
 evidence; the judge may tell the jury that a particular 
 fact is proved, if they believe the witness who testifies 
 to it.3 
 
 . § 51. The judge may properly, in his charge, make use 
 of an illustration.^ As, by a hypothetical case.^ Or by 
 facts not connected with the case." Or express a mere 
 speculative opinion, by way of illustrating any position, 
 or in answer to the arguments of counsel.'^ Or refer the 
 jury to their own knowledge of facts proved, by way of 
 illustration.^ Or instruct them to weigh evidence by the 
 light of their general knowledge and experience as ap- 
 plied to the events and transactions of life. Though it is 
 erroneous to instruct the jury to apply special knowledge 
 
 ' Beall V. Mann, 5 Geo. 456. ^ Masters v. Warren, 37 Conn. 
 
 2 Colquitt V. Thomas, 8 Geo. 258. 293. 
 
 3 Sneed ». Creath, 1 Hawks, 309. 'Per Nott, J., Barksdale v. 
 < Fitz V. Boston, 4 Cusb. 365. Brown, 1 N. & McC. 517. 
 
 5 Melledgc «. Boston, &c., 5 « The King v. Sutton, 4 M. & S. 
 
 Cush. 158; Willis v. Willis, 18 533. 
 Geo. 13. 
 
 19
 
 290 THE LAW OF NEW TRIALS. [CH. XI, 
 
 or circumstances connected witli the case, in forming their 
 verdict, unless they have been sworn as witnesses.^ Or 
 mention a principle of law not applicable to the evidence, 
 but connected with the subjects involved therein.^ Or 
 state the rule of damages in cases somewhat similar, as 
 not applicable.^ 
 
 § 52. "We have already (§ 9) considered the question, 
 whether an instruction to the jury must have been material^ 
 in order to be ground for a new trial. (See chap. 3, §§ 2, 9.) 
 In the present connection it may be further remarked, 
 that the materiality of the incidental or collateral remarks 
 objected to is always an important point of inquiry. 
 " The court are always bound, in the exercise of a sound 
 discretion, to determine how far the observation of the 
 judge was material, and affected the merits. Otherwise, 
 there would be no end to new trials, and the remedy 
 would be worse than the disease."* Thus it was held no 
 ground of new trial, that, in action for libel, the judge 
 wrongly charged, that from a note of the author prefixed, 
 stating the refusal of another publisher to print the 
 libel, the jury might presume that the defendant, the 
 publisher, had been backed by the author or some one 
 else.^(a) 
 
 ' Ottawa, &c. V. Grcabam, 28 111. * Per Kent, C. J., Dole v. Lyon, 
 73. 10 John. 447 ; Fleming v. Gilbert, 
 
 2 Axtell V. Caldwell, 24 Peuu. 3 .Tohn. 528. 
 
 88. ^ Dole V. Lyon, 10 John. 447. 
 
 3 ITackett v. B. &c. Railroad, 35 
 N. H. 390. 
 
 (a) If on the trial of a case it appears that it has been tried before, 
 the judge may properly inquire of one of the counsel how it happens to 
 come back for another trial ; and if, in reply, the counsel states facts not 
 inquired for, this will furnish no ground for a new trial, if the judge con- 
 ducted the trial with fairness and impartiality. Crosby v. Blanchard, 7 
 Allen, 385. The court is not bound to remark upon the evidence in in- 
 structing the jury, and, when it is done, it should be with great care, and 
 the jury should be told that such observations are submitted to aid, and 
 not to control them. Shank v. State, 25 Ind. 207.
 
 Cri. XT.] ERRONEOUS RULINGS OR INSTRUCTIONS. 291 
 
 § 53. While, in general, mere remarks upon the facts of 
 the case furnish no reason for a new trial ; on the other 
 hand, a refusal to comment upon the evidence is no ground 
 of exception. As, for example, where an instruction was 
 asked for, which might have been understood by the jury 
 to intimate the opinion of the judge upon the facts.^ Or, 
 upon a trial for murder, that the court refused to instruct 
 the jury, that on the evidence the husband of the person 
 killed had an equally strong motive with the defendant 
 to commit the crime.^ So the court may refuse to charge 
 that certain facts are strong evidence.^ So it is no ground 
 for a new trial, that the court omitted to recapitulate the 
 evidence in their charge.^ 
 
 § 54. Such seems to be the prevailing course of the 
 decisions. There are, however, many cases in the books, 
 where it has been held that an intimation, by a judge to 
 the jury, of his opinion on matters of fact, is ground for 
 a new trial.^ Or (in the discretion of the court, though 
 not strictly ground of exception) the expression of an 
 opinion upon a point of fact, to which counsel yields with- 
 out argument.^ More especially if such opinion is con- 
 trary to the evidence.'' Or if a judge decides facts and 
 inferences which ought to be left to the jury.^ Thus, in 
 a late case, being an action brought by assignees in bank- 
 ruptcy, to recover the value of goods alleged to have been 
 fraudulently sold by the bankrupt; a verdict for the 
 plaintiff" was set aside for misdireetion. Cresswell, J., 
 says: "I am of opinion that the summing up of the Lord 
 
 1 Riviere «. McCormick, 14 La. 8 Md. 44 ; Early v. Garland, 13 
 An. 139. Gratt. 1 ; State v. Allen, 3 Jones, 
 
 2 Com. V. Domer, 4 Allen, 297. 257 ; Wells v. Clements, ib. 168 ; 
 
 3 Bickley v. Biddlc, 33 Penn. Nash v. Morton, 3 Jones, 3 ; Stan- 
 276. ley v. Nelson, 28 Ala. 514. 
 
 1 Rollins V. Varney, 2 Fost. 99. ^ Per Wilde, J., Curl «. Lowell, 
 
 5 Reel V. Reel, 2 Hawks, 63 ; 19 Pick. 28 ; Davis v. Jenney, 1 
 
 Foust V. Yielding, 28 Ala. 658 ; Met. 221. 
 
 Lawlcr «. Norris, ib. 675 ; Upson ^ Davidson i). Stanley, 3 Scott, 
 
 t\ Raiford, 29 ib. 188 ; Allman v. 49. 
 
 Garm, 29 Ala. 240 ; State v. Baker, » White v. White, 4 Dev. 257.
 
 292 THE LAW OF NEW TRIALS. [CH. XI. 
 
 Chief Justice, taken literally, was quite correct. But, at 
 the same time, we are all of opinion that there are one or 
 two passages in it which may very well have been mis- 
 understood, and that the jury may have supposed it was 
 intended as a direction in point of law, and not a mere 
 expression of his Lordship's opinion in })()int of fact."^ 
 So, in debt on bond for $2000, money loaned, the plea was 
 non est factum^ and issue was joined. The plaintiff pro- 
 duced ten witnesses, well acquainted with the defendant's 
 handwriting, who testified that they believed that his 
 siirnature was o-enuine. The defendant introduced testi- 
 mony, to show that the plaintiff had not the ability to 
 lend the money. To rebut this testimony, the plaintiff 
 introduced a witness, who testified that the plaintiff' had 
 a large amount of cash notes, &c., and had the control of 
 a large estate as executor. The defendant offered in evi- 
 dence the settled accounts of the plaintiff' as executor, to 
 show that he could not have from that and the other 
 source enough to enable him to make the loan ; but the 
 court rejected the evidence, observing that all the evidence 
 introduced by the defendant was too vague, remote, and 
 indefinite to sustain his plea against the evidence intro- 
 duced by the plaintiff'. Held, that the settled accounts of 
 the plaintiff' were competent testimony; that the remarks 
 of the judge were the expression of an opinion on the 
 weight of evidence calculated to mislead the jury; and 
 that the verdict should be set aside, and a new trial 
 granted.'^ So, it is said, " In summing up a cause to the 
 jury, even in a capital case, the judge has no right to point 
 out to the jurors the strong points in the prisoner's de- 
 fence only, and the weak points in the case made b}' the 
 people."^ And it has been sometimes held, that the ex- 
 pression of an abstract opinion would })e ground of excep- 
 
 ' Pennoll v. Dawsou, 18 Com. B. 3 The People v. White, 24 Wend. 
 355, 3G8. 520, per Walworth, Chr. 
 
 2 McDowell V. Crawford, 11 
 Gratt. 377.
 
 CIL XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 293 
 
 tion, if it might possibly have an effect upon the ver- 
 dict.i 
 
 § 55. The court may properly refuse to call the atten- 
 tion of the jury to a particular piece of evidence, by giv- 
 ing instruction as to its weight or proper purposes.^ It is 
 held that the court, in summing up, should present the 
 whole testimony, and, unless that is done, the duty had 
 better be omitted altogether.^ And that a charge calcu- 
 lated to mislead the jury, in their investigation of the 
 various matters in issue, is erroneous, although by an ap- 
 plication to a particular branch of the case it would be 
 correct.^ More especially where the court has sufficiently 
 instructed the jury on the law of the case, it is proper to 
 refuse instructions as to isolated facts, or parts of the evi- 
 dence, which, though correct, in point of law, would give 
 them an undue prominence.^ Or where the effect of such 
 instruction is to abridge a party's rights under the plead- 
 ings in the case. Thus, in a suit for slaves, claimed by 
 the plaintiff under a deed from the defendant, who was 
 an aged person of infirm mind and body ; a witness pre- 
 sent at the execution of the deed testified, that it was 
 obtained upon the plaintiff's assurance that the slaves 
 should not be taken during the life of the defendant. 
 The defendant had pleaded fraud and imposition, and 
 mental incapacity. The judge charged the jury, that, as 
 the defendant had not pleaded a life estate in the slaves, 
 they should wholly exclude such testimony from their 
 consideration. Held, that this was error, as it tended to 
 divert the minds of the jury from consideration of the 
 defence of fraud. Also, that to charge the jury, that the 
 only question for their consideration was, whether the 
 defendant, " at the time of making the deed of gift, was 
 of sound mind, and capable of making a binding contract ; 
 
 ' Clarke v. Diitclier, 9 Cow. 674. * Spence v. Onstott, 3 Tex. 147. 
 
 2 Castro V. lilies, 23 Tex. 479. 5 Gray v. Burk, 19 Tex. 328. 
 
 3 Johnson v. Kinsey, 7 Geo. 428.
 
 294 THE LAAV OF NEW TRIALS. [CH. XI. 
 
 and if not, did she, by her subsequent acts and conduct, 
 ratify and confirm" the deed to the phiintiff; was erro- 
 neous, for the same reason, '((«) 
 
 ' Ellis V. Mathews, 19 Tex. 390. See Cook v. Carr, 20 Md. 103. 
 
 (a) Instructions which amount to a commentary on the evidence, giv- 
 ing; particular facts undue importance, arc erroneous. Fine v. St. Louis, 
 39 Mis. 59. So an instruction which calls particular attention to one or 
 two of several facts, entirely insufficient to sustain a verdict. McCartney 
 V. McMullen, 38 111. 237. Or an instruction which singles out certain 
 facts, and tells the jury, if they believe those facts to be true, p?-ma/ac?'e, 
 the jilaintiff is entitled to a verdict, when there is a large array of testi- 
 mony conducing to the contrary. Chappell v. Allen, 38 Mis. 213 ; Larue 
 V. Russell, 2G Ind. 386. Or to select an isolated fact either as proving or 
 failing to prove the point in question. Grube v. Nichols, 36 111. 92. Thus, 
 when the court instructs a jury that the mortgagee in a chattel mortgage 
 must take possession in a reasonable time, it should also inform them what 
 facts, in reference to the case on trial, would constitute reasonable dili- 
 gence. Barbour v. White, 37 111. 164. So, in an action for the price of 
 goods sold to A. on the alleged credit of the defendant, an instruction 
 to find for the plaintiff, if the jury should believe from the evidence that 
 the goods were sold on the credit of the defendant by his arrangement, 
 is erroneous, for omitting to add that they must find that such goods had 
 not been paid for. Hovey v. Thompson, 37 111. 538. So in an action to 
 recover money claimed to have been loaned to the defendant, if there is 
 any legal evidence tending to show that a payment to one A. was a loan 
 to the defendant, although made without the latter's assent, it is error 
 to charge the jury that if the money was paid to A. without the defend- 
 ant's assent there was no loan. Clark v. McGraw, 14 Mich. 139. A 
 direction to the jury, that, in case they found that the draft sued on had 
 been altered, the plaintiff could not recover unless he explained the alter- 
 ation, is erroneous, when the draft shows no alteration. Patten v. Newell, 
 30 Geo. 271. A new trial was granted, where the court instructed the 
 jury, in an action against a railroad for running over the plaintiff, that, 
 if they believed the injury was wilfully or recklessly done they might 
 give exemplary damages ; there being no evidence of recklessness, wan- 
 tonness, or gross negligence. Kennedy v. North, 36 Mis. 351. In a suit 
 against a railroad for running over a horse, when there is proof that the 
 engineer did not blow the whistle or ring the bell as required by the sta- 
 tute, which provides that the company shall be liable for any damage 
 occasioned by a failure to comply with the statute, but there is no evi-
 
 en. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 295 
 
 § 56. It is the general and necessary inference from the 
 foregoing several propositions, but still requires to be more 
 fully and specifically explained, that the instructions given 
 or withheld are of course to be predicated upon the evi- 
 dence.\a) A new trial will not be granted, for a refusal 
 
 ' Herndon v. Bryant, 39 Miss. 335; 283 ; Karrigcr v. Grebb, 42 Mo. 44 ; 
 
 Oliver v. State, ib. 52(5 ; Cothran v. Brownfield v. Brownficld, 4:1 111. 
 
 State, ib. 541 ; Dickerson y. Jobn- 147 ; American v. Parsons, 44 ib. 
 
 son, 24 Ark. 251; Jeffersonville R. 312 ; Hite v. Blandlbrd, 45 ib. 9; 
 
 R. Co. V. Swift, 26 Ind. 459 ; King Bartholomew v. Merchants', 25 
 
 v. King, 37 Geo. 205 ; Pleasants v. Iowa, 507 ; IMcLaren v. Hall, 26 
 
 Scott, 21 Ark. 370 ; Latshaw v. ib. 297 ; Miildrow v. Caldwell, 14 
 
 Territory, 1 Oreg. 140 ; Miles «. Mis. 523 ; McCov v. State, 15 
 
 Douglas, 34 Conn. 393; Hill v. Geo. 205; Gardner v. Clark, 17 
 
 Canfield, 56 Penn. 454 ; Pbiladel- Barb. 538 ; Garnett v. Holloway, 
 
 phia V. Harper, 29 Md. 330 ; Har- 24 Ala. 376 ; Edelin v. Sanders,' 8 
 
 vey V. Skipwith, 16 Gratt. 393 ; Md. 118; Gaither v. Myrick, 9 ib. 
 
 State v. McCurry, 63 N. C. 33; 118; Von Pliul v. Moffit, 13 Mis. 
 
 Jemisoni). Bearing's Ex'rs, 41 Ala. 286; Greely v. McNabb, ib. 596; 
 
 dence that the engineer's failure in this respect caused the damage in 
 question ; it is error to instruct the jury, that, if they believe the evi- 
 dence, they must find for the plaintiff. Memphis v. Bibb, 37 Ala. 699. 
 A prayer for an instruction to the jury, iu a suit in which a release was 
 set up in defence, " that, if they find from the evidence, the said release 
 not being under seal, that before or at the time of the date of the release 
 the releasor received no valuable consideration from the releasee or ser- 
 vices of value from him, they may find the said release to be fraudulent," 
 is calculated to mislead the jury, the words "not being under seal" being 
 used to negative the presumption of consideration, of which the receipt 
 is prima facie evidence. There being no evidence to rebut the prima 
 facie proof of consideration, the prayer had no evidence to support it, 
 and was therefore properly rejected. Blackburn v. Beall, 21 Md. 208. 
 When the presumption of ownership, arising from possession of personal 
 property, is rebutted by other evidence, it is error merely to instruct the 
 jury that possession is prima facie evidence of ownership. Bergen v. 
 Riggs, 34 111. 170. A prayer offered by defendants, who were sued as 
 partners, segregating two instances or transactions testified to and men- 
 tioned in the prayer, tending to negative a partnership, and asking the 
 instruction of the court thereon, and excluding from the jury other evi- 
 dence which might have induced the plaintiff" to believe the defendants 
 were partners, is calculated to mislead the jury. Folk v. Wilson, 21 Md. 
 538. 
 
 (a) It is immaterial whether a fact is proved or admitted. Walker v. 
 Wootten, 18 Geo. 119. It is not error to assume that as true which the
 
 296 TUE LAW OP NEW TRIALS. [CII. XL 
 
 of instructions based upon no evidence in the case.^ Or 
 of instructions assuming a fact not proved.^ ITor because 
 
 Kirkland v. Oatcs, 25 Ala. 465; Kirker, 4 Tex. 252; Wheeler v. 
 
 Dunlap V. I?ol)inson, 28 il). 100; IMcxnly, 9 il). ;{72 ; McGreal ®. Wil- 
 
 Troat V. Lord, 42 ISIaine, 552; Ilnn- son, ib. 420 ; Kelso v. Townsend, 
 
 newell v. llobart, \h. 565 ; IVIartin 1:5 ib. 140 ; IJrown i\ State, 28 Geo. 
 
 ),'. The People, i;3 111. 841 ; ^lelii- 199; Willis v. Bullitt, 22 Tex. 330 ; 
 
 tyre v. Kline, oO Miss. 361 ; Adams State v. Iloss, 29 Mis. 32 ; Daniel v. 
 
 V. The Governor, 22 Geo. 417; Peo- Johnson, 29 Geo. 207 ; Johnson v. 
 
 pie r. Roberts, 6 Cal. 214 ; Hale v. State, 26 il). 611 ; Brown v. Cocke- 
 
 Darter, 10 Humph. 92 ; AVendell v. rell, 33 Ala. 38 ; State v. Cain, 2 
 
 Moulton, 6 Fost. 41 ; McDougal v. Jones, 201 ; Jones v. State, 13 Tex. 
 
 Bellamy, 18 Geo. 411; Central, &c. 168 ; Linscott v. Trask, 35 Maine, 
 
 V. Hines, 19 ib. 203; Owenw. Chand- 150 ; Galena, &c. v. Jacobs, 20 111. 
 
 ler, 16 Ark. 651 ; Yarborough v. 478 ; Harrison v. Cachelin, 27 Mis. 
 
 Tate, 14 Tex. 483; Petersons. Elli- 26; Bethune v. McCrary, 8 Geo. 
 
 cott, 9 Md. 52 ; Franklin, &c. v. 114. 
 
 Cooper, 39 Maine, 542; Cilley v. » Pierce «. Negro, &c., 6 Md. 28. 
 
 Bartlett, 19 N. II. 312 ; Mollitt v. 2 Chaffin v. Lawrence, 5 Jones, 
 
 Cressler, 8 Clarke, 122 ; Andrews v. 179 ; 30 Ala. 253. 
 Smithwick, 20 Tex. Ill; Crozier v. 
 
 defence has treated as true ; as where a prisoner, indicted for murder, 
 relies solely on the ground that he is not guilty of the homicide, and does 
 not pretend that, if guilty of the homicide, he is guilty of anything Init 
 murder. The State v. Rash, 12 Ired. 382. The court may tell the jury, 
 that if, from the evidence, they believe certain facts are proved, certain 
 legal consequences must follow ; and that the law, as applied to the facts 
 so established, is for the plaintiff or defendant (as the case may be), and 
 that they must find accordingly. Baltimore v. Skeels, 3 W. Va, 556. 
 If a charge, when applied to the evidence, is erroneous, a new trial 
 should be granted, though the party does not ask the court to give a 
 contradictory charge. Lochrane v. Solomon, 38 Geo. 286. An instruc- 
 tion to the jury that they shoidd be governed by a preponderance of evi- 
 dence, and that they had no right to allow anything to influence their 
 minds except the evidence and the law as given by the court, is proper. 
 Preston v. Walker, 26 Iowa, 205. Where an instruction is asked upon 
 a question concerning which there is no direct evidence, yet, if there is 
 any proof tending to establish it, it should be given, as the party is en- 
 titled to the benefit of any inferences from the testimony. Peoria v. 
 Anapow, 45 111. 86. In an action against executors, where the plaintiffs 
 claimed under an order, which they alleged the testator had promised to 
 pay, but his declarations, as given in evidence, showed no acceptance of 
 the order or promise to pay the sum named in it ; it was error to instruct the 
 jury, in a way which implied that the declarations could not be accounted
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 297 
 
 the court instructed the jury, that, if they believed from 
 the evidence that the plaintiff had proved the facts set 
 out in her declaration, they ought to find for hcr.^ Or 
 refuse to charge the jury to find for the plaintiff, if from 
 the testimony they believe a certain fact, where there is no 
 sufficient evidence to prove that fact.^ Or disregard in- 
 competent evidence, though not expunged.^ Or for an 
 instruction based upon any evidence." On the other hand, 
 a new trial will be awarded, when the court refuses to give 
 a legal charge, for the reason that there is no evidence to 
 support it, when, in fact, there is such evidence.^ So 
 where the evidence is all on one side, and is sufficient 
 to authorize a verdict, it is no invasion of the province 
 of the jury for the judge so to instruct them.'' While, 
 
 > Clemens v. Collins, 14 Mis. 604. s Cook i\ Wood, 30 Geo. 891. 
 
 2 Hatch V. Garza, 22 Tex. 170. « Reid v. Rcid, 11 Tex. 585 ; Ni- 
 
 * Durgin v. Ireland, 4 Kern. 322. chols v. Goldsmith, 7 Wend. IGO; 
 
 < Everett v. Whitfield, 27 Geo. Wintz «. Morrison, 17 Tex. 372 ; 
 
 183. Bond v. Mallow, ib. 636. 
 
 for, under any other hypothesis than his liability for the amount of the 
 order. Bogle's v. Kreitzer, 46 Penn. 465. A judge may refuse to charge 
 upon the effect of a given state of facts, which are in dispute. Thus, in 
 an action for injuries received from collision with a railroad train, he may 
 refuse to instruct the jury that there was no evidence that the accident 
 was caused by the sole negligence or want of care of the defendants, and 
 therefore the verdict must be in their favor. Philadelphia v. Hagan, 47 
 Penn. 244. Where a receipt in full of one of two partner plaintiffs is 
 offered in evidence by the defendants, relating to the subject-matter of 
 the suit, it is error in the charge, to lead the jury to inquire, whether the 
 receipt was not applicable to some other claim, where no evidence of any 
 such claim has been given. Bogle's v. Kreitzer, 46 Penn. 465. Where a 
 sentence in the general charge contained several statements which had 
 not been proved by any direct evidence, but the facts had not been con- 
 troverted, but had apparently been assumed to be true by both parties, 
 and there was no specific objection to either of those statements or to the 
 sentence containing them, but only a general objection to a large part 
 of the charge in which that sentence occurred with others that were free 
 from error; held, the judgment would not be reversed. Morse v. Oilman, 
 18 Wis. 373.
 
 298 TUE LAAV OF NEW TRIALS. [CH. XI. 
 
 on tlie other hand, a request to instruct the jury, in a case 
 where the evidence was conflicting, tliat, if they believed 
 the testimony of A. and B., they must find for the defend- 
 ants, was properly refused.^ So a new trial will not be 
 granted, for an instruction to find a verdict for the de- 
 fendant, if there is no evidence or insufficient evidence 
 for the plaintift'.- Or, as to the tendency of evidence, that 
 it has no tendency for the plaintiff, this being matter of 
 law.3 (See § 41.) ISTor that the instruction draws a legal 
 conclusion from facts proved.^ The judge is bound to 
 state the legal result of the evidence of a party, if be- 
 lieved.^ And to apply the law to the facts as ascertained 
 by the evidence. It is error to submit a case to the jury, 
 with directions to find as they may think right and proper 
 between the parties.^ Thus when one of the questions at 
 issue is, whether a certain person was an authorized agent 
 in a certain transaction, any instruction, which withdraws 
 or excludes from the consideration of the jury facts from 
 which such authority might be inferred, is erroneous.'' So 
 an instruction should be held right, if it would produce 
 the proper results upon the facts of the case, whether 
 technically accurate or not. Thus, where the jury were 
 instructed, that " a deed, which contains certain conditions 
 subsequently to be performed by the purchaser, is void if 
 he should fail or refuse to perform those conditions ;" such 
 instruction, though not strictly correct, was held not erro- 
 neous, when ai)i>lied to the evidence.^ While, on the other 
 hand, although an instruction pursues almost literally the 
 words of a statute, yet, if it fail to furnish such an expo- 
 sition of its meaning and intent as the circumstances and 
 
 > Lawrencebnrg, &c. v. Montgo- ^ ciark v. Tabor, 2 Wms. 223. 
 mcrv, 7 Ind. 474. « Kuckersville, &c. v. Hemphill, 
 
 '' Morris v. Brickley, 1 liar. & G. 7 Geo. 396 ; Griffin v. The State, 15 
 
 107. ib. 476. 
 
 3 Garnctt v. Kirkliam, 33 Miss. ^ Doan ». Duncan, 17 111. 272. 
 389 * Thompson ». Thompson, 9 Ind. 
 
 « Qiiin V. Wright, 10 Tex. 317. 323 ; Ivey v. Owens, 28 Ala. 141.
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 299 
 
 facts before the jury demand, it is erroneous. X«) And, 
 where the evidence will not warrant a peremptory ruling on 
 a point, a judge is not required to express an opinion, much 
 less to charge, on such point.^ And it is error to mislead 
 the jury, by directing their attention to a point on which 
 there is no evidence.^ So it is ground of new trial, where 
 there was no evidence, that the case was left to the jury 
 at all.* So, if there is no opposing evidence whatever on 
 the question at issue, it is the duty of the court to direct 
 the jury for whom a verdict shall be found.^ Thus, though 
 partial failure of consideration may be shown under a plea 
 of total failure, yet, where there is no evidence at all of a 
 partial failure, it is not a matter of comiilaint, that the 
 jury were instructed to find for the plaintiff, unless they 
 are satisfied that there was a total failure.^ So where the 
 judge instructed the jury, that, if they believed, &c., they 
 must find a verdict for the defendant, wherever the mat- 
 ter occurred ; and there was no averment in the petition, 
 under which evidence would have been admissible to have 
 shown that such matter occurred out of the State; and 
 the instruction was correct when confined to the State : 
 held, there was no error.^ So, in an action for services 
 ■rendered in a vessel, the defence was set up, of incompe- 
 tency in the plaintiff to perform such services, and evi- 
 dence relating to this point was offered on both sides. 
 The judge charged, that upon the evidence the question 
 of competency was immaterial, but the exceptions did not 
 
 ' Ritte V. Com., 18 B. Mon. 35. "» Dula v. Cowles, 4 Jones, 519 ; 
 
 2 Moore v. Meacham, 10 N. Y. Wakefield v. Smithwick, ib. 327. 
 (6 Seld ) 207. ^ Haynes v. Thomas, 7 Ind. 38. 
 
 3 Snyder v. Wilt, 15 Penn. 59. ^ Willis v. Bullitt, 23 Tex. 330. 
 
 7 Norvell v. Oury, 13 Tex. 31. 
 
 (a) An instruction is not erroneous, because the statement of what 
 constitutes a suEBcient testamentary capacity in the terms of the (^Id.) 
 act of 1798, c. 101, sub-c. 1, § 3, is followed by an explanation of their 
 legal meaning and effect, consistent with the clause itself, and so clear 
 and explicit that it could not have confused or misled the jury. Colviu 
 V. Warford, 20 Md. 357.
 
 300 THE LAW OF NEW TRIALS. [CH. XI. 
 
 show any evidence wliicli should have this effect. Held, 
 a new trial should he granted.^ So wliere there was a 
 conflict of testimony as to the cause of a nuisance, and the 
 court directed the attention of the jury to a cause which 
 did not appear in evidence, and was impossihlc from the 
 nature of the case.^ So, in a suit against underwriters, to 
 recover a loss of bank bills, on a policy covering a cer- 
 tain amount of "property" on board a vessel, the judge 
 instructed the jury that, in the absence of fraud, the 
 amount insured had some slight tendency to prove the 
 amount of bills on board. Held, that this, being only a 
 remark upon the state of the evidence, was not a ground 
 of exception.^ So in a suit against the drawer of a bill 
 drawn for his accommodation, the defence was, that the 
 bill had been altered, so as to be payable in sixty days, 
 instead of six days, and the only evidence of alteration 
 was on the face of the bill. The judge, after instructing 
 the jury that the question was to be decided upon inspec- 
 tion, also instructed them to consider the probability or 
 improbability that an accommodation bill would be made 
 payable in six days. Held, that no exception could be 
 taken to the last instruction, it being founded upon the 
 evidence, as the jury were to consider it."* So a new trial 
 will not be granted, for refusal to instruct as to the effect 
 of an admission in answer to the statute of limitations ; 
 no such admission being made.^ So a new trial was 
 granted, where, in an action for expenses incurred in the 
 care of the plaintiff's son, injured by the defendant's 
 negligence, and for loss of his services, no evidence was 
 offered upon the latter point, but the judge charged that 
 the plaintift' might recover therefor." 
 
 • Crouclier v. Oakman, 1 Allen, * Davis v. Jenney, 1 Met. 221. 
 404. ^ Penley^j.Watcrhouse, 3 Clarke, 
 
 2 Bovard i>. Christy, 14 Penn. 418. 
 
 2G7. ^ Castanos v. Ritter, 3 Duer, 370. 
 
 * Whiton V. Old Colony Ins. Co., 
 2 Met. 1.
 
 CII. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 301 
 
 § 57. It is but anotlicr form of stating the same general 
 proposition to add, that an instruction assuming a fact is 
 erroneous. '(«) Though the evidence tends to prove it.^ 
 
 ' Donmcad^). (^oburn,15Mcl. 29; j^omery v. Erwin, 24 Ark. 540; 
 
 Tificld ('. Adams, ',i Clarke, 487 ; Miles v. Douglas, 34 Conn. 393 ; 
 
 Homes V. Carver, ib. 257 ; Wall v. Peoria v. Anapow, 4.5 111. 80. 
 
 Goodenoiiiili, IG 111. 415; Duffleld 2 McDougald v. Rutherford, 30 
 
 V. Delaucey, 30 ib. 258 ; Mont- Ala. 253. 
 
 (a) A refusal to instruct the jury, that the facts assumed in several 
 points of the plaintiffs prove the positions contended for, is not error, if 
 there are other facts in evidence not noticed in the points, which are 
 necessary to be considered ; especially where the whole is referred to the 
 jury, with instructions that the assumed facts would prove what is con- 
 tended for, were it not for the other facts. Gratz v. Beates, 45 Penn. 
 495. The court should refuse instructions, which assume a fact concern- 
 ing which evidence has been produced. Preston v. Keys, 23 Cal. 193. 
 The existence of matters in dispute should not be assumed in the in- 
 structions. Merritt v. Given, 34 Mis. 98. An instruction may assume 
 that a fact is proved which is fully established by the proof, and about 
 which there is no contradiction in the evidence. Lamar v. Williams, 39 
 Miss. 342 ; Hughes v. Monty, 24 Iowa, 499. Where a party by his own 
 admissions or proof shows facts, and the court is then asked to make a 
 ruling on them against him, it may assume the facts to be true. Waters 
 V. Riggin, 19 Md. 536. A request to charge, made upon a false assump- 
 tion of what the evidence tends to prove, is properly refused. Barron 
 V. Fay, 38 Vt. 705. Upon the trial of an indictment for assault, the 
 jury inquired whether they should consider the assault made upon the 
 defendant by the person he was on trial for assaulting. Held, the reply 
 of the court, that it could not assume that any such assault had been 
 made, and that the question of fact was with them, was correct. People 
 V. English, 30 Cal. 214. Where a judge, in his instructions, erroneously 
 assumes that there is no dispute concerning a certain question of fact, 
 the error should be corrected by calling his attention thereto, and not by 
 exception. Ilofimau v. iEtna, 1 Rob. (N. Y.) 501. An instruction, that 
 the plaintiff is " entitled to recover in this action all damages proved to 
 have been sustained by him on account of the trespasses committed by 
 the defendant on the plaintiff's premises, as alleged in the declaration," 
 is erroneous, because it assumes that the defendant committed the tres- 
 passes, and that the only question for the jury is the amount of damages. 
 Small V. Brainard, 44 111. 355. Where, in an action of trespass, v/ et 
 armis, the court instructed the jury, that, in making up their verdict, 
 they might take into consideration the pecuniary condition of the de-
 
 302 THE LAW OF NEW TRIALS. [Cll. XI. 
 
 Or thoiidi <lonc hypothetic ally} Thus an instruction, that, 
 if the phiintiif's evidence of a particuLir fact is not suc- 
 cessfully contradicted, the jury must find for him; because 
 it assumes that such evidence proves the fact.^ So, assum- 
 ing, in the charge, a boundary not proved, is ground of 
 new trial.3 Or that certain words under the signature to 
 a note were written when it was executed, and were a 
 part of the signature.^ So, where one sued as lessee of a 
 patent defended as purchaser, and the title to the patent 
 was the point in issue; held, the instructions were wrong 
 in assuming that the title was in the plaintiff, that he had 
 proved the erection of a machine in the defendant's shop 
 and used it, and that the burden of proof was on the de- 
 fendant.* So a new trial was granted, where, in a ques- 
 tion upon the validity of a will, the judge put the case 
 to the jury to find whether the testatrix was unduly in- 
 
 > Craighead v. Wells, 21 Mis. ^ Burr v. Williams, 20 Ark. 171. 
 
 404. 5 Whipple v. Wing, 39 Maine, 
 
 2 Dunlap v. Hearn, 37 Miss. 471. 424. 
 
 3 Kipp V. Den, 4 Zabr. 854. 
 
 fendants, and their ability to pay the verdict that might be rendered 
 against them; the instruction was held erroneous, because it assumed 
 that the jury would find a verdict for the plaintiff, and it was calculated 
 to mislead the jury. Hawk v. Kidgway, 33 111. 473. The court, in an 
 action against a railway company for running over the plaintiff's horses 
 and wagon, at the request of the plaintiff, submitted to the jury the fol- 
 lowing interrogatories: 1st. "Was not the defendant guilty of negli- 
 gence in placing the freight car on the side track on the street, thereby 
 obstructing the same ? 2d. Was not the defendant guilty of negligence 
 in not placing some visible signal to indicate the approach of the back- 
 ing train ?" To each of which questions the jury answered " Yes." Held, 
 that the interrogatories were not within the (Ind.) statute, and should 
 not have l)ecn submitted to the jury, because they do not ask a finding 
 on any particular matters of fact, but, assuming certain facts, ask the 
 jury to pronounce upon the question of negligence, as a conclusion of law 
 from the facts assumed. Toledo v. Goddard, 25 Ind. 185. An instruc- 
 tion to the jury, that, if the defendant did certain acts specified, they 
 should infer a fraudulent intent, is not open to the objection that it as- 
 sumes that these acts are established. State v. Thompson, 19 Iowa, 299.
 
 Cir. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 303 
 
 jiuenced by the plaintiff; no evidence having been oft'ered 
 of what the law regards as undue influence. Strong, J., 
 remarks: "Unless, therefore, there was some evidence 
 tending legitimately to prove that some fraud had been 
 practised upon the testatrix at that time" (the making of 
 the will), " or that some misrepresentation had then been 
 made, or that some physical or moral coercion had been 
 employed, such as to destroy her free agency, the court 
 erred in submitting to the jury the question Avhether un- 
 due influence had been exerted. It was inviting them to 
 find as a fact that of which there was no evidence, and 
 which the law as well as reason presumed had no exist- 
 entse. — The fact, if it was a fact, that, months after the will 
 was made which appointed him executor, he exercised 
 control over her affairs, and even over herself, daring her 
 advanced age, unconnected as it was with the testamentary 
 act, was no evidence from which the jury could infer that 
 the will was not her own."'(o) So a new trial will be 
 granted, for an instruction which leaves the jury to draw 
 an incorrect inference from facts material to the issue.^ 
 Or which itself draws an inference of fact.^ So if the 
 court draw inferences from the evidence, or determine 
 what it does or does not prove, in a manner calculated to 
 mislead the jury.* (See § 42.) So if the judge, in his 
 charge, makes a qualification, which is not authorized by 
 the evidence.^ So if the judge submit to the jury a 
 hypothesis wholly unwarranted by the evidence, a new 
 trial will be granted. As where the plaintiff", the losing 
 
 > Eckert v. Flowry, 43 Penn. 46, ^ Earnest. Blackbart, 13 111. 195. 
 
 51, 52. 5 Gale v. Wells, 13 Barb. 84. 
 
 2 Hastings v. Bangor, &c., 6 See Flemming v. Marine, &c., 4 
 Shep. 436. Wliart. 59. 
 
 3 Easterling v. State, 30 Ala. 46. 
 
 (a) But, on the other hand, a new trial will be granted if, under a state 
 of facts from which the law would infer undue influence, the judge, in 
 his charge, leaves it to the jury to infer or disbelieve the existence of 
 such influence. Gale v. Wells, 12 Barb. 84.
 
 304 THE LAW OF NEW TRIALS. [CII. XI. 
 
 partv in a wager, immediately after the result was as- 
 certained, ordered the defendant, the stakeholder, to pay 
 over the money to the winner, under which circumstances 
 the iilaintifl" had a clear right to recover it I'rom the de- 
 fendant, though actually paid over. But the judge charged 
 the jury, in part, that if by the above order the plaintift' 
 intended to have the money paid over as a gratuity^ the 
 verdict should be for the defendant.^ So where the plain- 
 tifi' proved the execution of the notes, upon which the 
 suit was brought, and the defence of usury was set ufj', 
 but no evidence in support of it was given; and the judge, 
 after a correct exposition of the law of usury, as appli- 
 cable to the case, told the jury, that " it was for them to 
 determine from the evidence whether such unlawful in- 
 terest had been contracted for, and if they found that it 
 was, their verdict should be for the defendant, if not, for 
 the plaintiff."^ So where, in an action of trespass for a 
 wrongful levy, the execution had been erroneously ex- 
 cluded from the jury, instructions relating to the validity 
 of the execution were out of place, having nothing to rest 
 on.' So an instruction, " that, if A. E. promised to pay 
 the debt of C. D.," &c., is wrong, in assuming C. D.'s in- 
 debtedness.'' So, in a suit for a breach of warranty of 
 beef, an instruction to the jury, that, if they believe the 
 beef to have been deposited with the plaintiff to be sold 
 for the defendant, they must find for the defendant, is 
 erroneous, because it makes no reference to the terms on 
 wliich the deposit may have been made.-^ 
 
 § 58. Substantially the same principle is expressed in 
 the rule, that no exception lies to a refusal to give an 
 
 ' Storey V. Brcnuan, 15 N. Y. (1 ^ Atkinson v. Gatchcr, 23 Ark. 
 
 Smith) 534; State v. Harrison, 5 101. 
 
 Jones, 115. * Cropper ?'. Pittman, 13 IMd. 190. 
 
 2 Fay V. Grimsteed, 10 Barb. ^ Beall v. Pcarrc, 12 Mel. 550. 
 331.
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 305 
 
 abstract instruction.Xa) Especially if the part applicable 
 Las already been given.^ Or refusal of inap]plicable instruc- 
 tions, though abstractly correct.^ Or a refusal to instruct 
 the jury, that, if they believe there is no evidence of a 
 fact, of which there is some evidence, they will acquit. '' 
 (See § 9.) 
 
 § 59. After a mass of evidence relating to an account, a 
 settlement between the parties, and a subsequent arbitra- 
 tion, the court was requested to charge that there was no 
 evidence of fraud or mistake. Held, the refusal so to 
 charge was not error.^ 
 
 § 60. A judge may speak of things as facts, where they 
 are treated as facts in the progress of the trial, and are not 
 
 1 Bnrrell v. State, 18 Tex. 713 ; ^ Gover v. Dill, 3 Clarke, 837 ; 
 Fowler v. Smith, 2 Cal. 39 ; Ben- Harrison v. Morton, 2 Swan, 461. 
 liam V. Rowe, ib. 387. " Bnrrell v. State, 18 Tex. 713. 
 
 2 Faircbild v. California, «fcc., 13 ^ Dingee v. Jackson, 23 Penn, 
 Cal. 599. 176. 
 
 (a) An abstract instruction founded upon any evidence is not erro- 
 neous. McNeill V. Arnold, 22 Ark. 477. On the other hand, instruc- 
 tions should be framed with reference to the circumstances of the case, and 
 not be expressed in abstract and general terms. Chicago v. Utley, 38 111. 
 410. The instructions are to be considered and construed in connection 
 with and in reference to the evidence. Hooksett v. Amoskeag, 44 N. H. 1 05. 
 An instruction true in the abstract, but not so in its application to the case, 
 is properly refused. Atherton v. Tilton, 44 N. H. 452 ; McGuire v. State, 
 1 Ala. (S. C.) 69; Huffman v. Ackley, 34 Mis. 277; Turner v. Loler, ib 
 461 ; Oliver v. Depew, 14 Iowa, 490. It is error to give an instruction, 
 which, though accurately stated as a legal proposition, is so abstract or 
 remotely applicable to the testimony as to confuse or mislead the jury. 
 Whitfield V. Westbrook, 40 Miss. 311 ; Lombard v. Martin, 39 Miss. 147. 
 AVhere a request for instructions is in part abstract, the court is not 
 bound to charge as to the other part. Eathbone v. City, &c., 31 Conn. 193. 
 AVhere propositions embodied in points, propounded to the court, are true 
 as general principles, they should not be negatived without qualification, 
 but, if deemed inapplicable to the case, the court should refuse on that 
 ground to charge as requested. McKnight v. Eatclifi", 44 Penn. 156. 
 20
 
 306 THE LAW OF NEW TRIALS. [CH. XI. 
 
 questioned by either side.^ But circumstances, that raise 
 only a possibility or conjecture, ought not to be left alone 
 to a jury, as evidence of a fact which a party is required 
 to prove.^ 
 
 § 61. AVhere the proof of the defendant, if believed by 
 the jury, would establish any proposition inconsistent 
 with the theory of the plaintiff's prayer for instruction, 
 based upon his own evidence; such prayer cannot be 
 granted, because it must assume or admit the truth of all 
 the defendant's proof on the subject.^ 
 
 • § 62. A charge may be erroneous in reference to jwe- 
 sumjHions to be drawn from a fact proved. (a) In general, 
 an instruction that one fact may be presumed from an- 
 other, unless it is a presumption of law, is ground of new 
 trial.* Thus a new trial w^as granted, where in an action 
 upon a note one of the defences was, that it was included 
 in an arbitration. The judge charged, that, although it 
 was not thus included, the defendant might go to the 
 jury upon a presumption of payment previous to the 
 award ; no facts being proved to sustain such presumption, 
 nor any such defence relied upon.^ So where, in an action 
 against a sheriff for false imprisonment, upon the ground 
 that the plaintiff had property liable to seizure, the judge 
 
 • State t>. Williams, 2 Jones, 194. « Glover, «&c. ■». Dulile, 19 Mis. 
 
 2 Sutton V. Madrc, 2 Jones, 320. 360 ; Rogers «. IMcCune, ib. 557. 
 
 3 McTavish v. Carroll, 7 Md. 352. ° Harris v. Wilson, 1 Wend. 511. 
 
 (a) Where the evidence of the defendant's participation in a trespass 
 was altogether circumstantial, and the verdict was for the plaintiff: held, 
 the judge did not err in charging the jury that, although one or more of 
 the circumstances detached would not authorize the inference that the 
 defendant was the trespasser; yet his direction or consent to the trespass 
 might be deduced from all the circumstances as enumerated in the charge, 
 one of which was, that the defendant, having the opportunity to take the 
 stand and exculpate himself, had declined to do so. Greenville r. Part- 
 low, 14 Eich. 237.
 
 en. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 307 
 
 instructed tlie jury that his having property was not con- 
 clusive, because the premises were leased, and it might 
 reasonably be presumed that there was a claim for rent, 
 which might defeat the execution ; but there was no evi- 
 "dence of any rent being due.^ So for an instruction that 
 the words /or value received in a note imported a considera- 
 tion, and that gratitude to the father of the plaintiff (an 
 infant), or affection to the child, would suffice.- 
 
 § 63, The instructions of the court are required to con- 
 form to the pleadings as well as facts of the case.^(a) Thus 
 
 ' Hollister v. Johnson, 4 Wend. Cal. 404 ; Camp v. Heelan, 43 Mis. 
 
 639. 591 ; Diversv v. Kellogi,^ 44 111. 
 
 ^Holliday v. Atkinson, 5 B. & 114; Bower'y. Earl, IS^Mich. 367; 
 
 C. 501. Henry «. Jones, 1 Idaho Terr. 38; 
 
 3 Hooker v. Johnson, G Flori. Hooker v. Johnson, 10 Flori. 198 ; 
 
 730 ; Whitner i). Hamlin,. 12 ib. Ray v. Sellers, 1 Duv. 254; MofFatt 
 
 18 ; Conlin v. San Francisco, 36 v. Conklin, 35 Mis. 453. 
 
 [a] The court may state to the jury the issues made by the pleadings. 
 Eeid V. Mason, 14 Iowa, 541. When the facts as proved do not tend to 
 support the allegations of the pleadings, it is the province of the court 
 to so instruct the jury. Jaccard v. Anderson, 37 Mis. 91. An instruc- 
 tion which takes from the jury the consideration of the principal issue is 
 erroneous. Turner v. Loler, 34 Mis. 461. Where the verdict involves 
 more than one issue, if the charge is erroneous as applied to either, a 
 new trial must be granted. Whitacre v. Culver, 8 Minn. 133. A corpo- 
 ration sued one of its members in assumpsit for an instalment on his 
 stock, alleging that he was an original subscriber. The defendant denied 
 that he subscribed, and claimed to have purchased of A. upon the repre- 
 sentations of A. that it was fully paid up, and to have paid for it by 
 cancelling a note which he held against A. The plaintiffs requested the 
 court to charge the jury, that, if the defendant purchased the stock upon 
 such false representations, the cancellation of the note was of no effect, 
 and he could recover the amount of it from A. Held, that the court 
 was not bound to give this instruction, as the matter was wholly outside 
 of the issue. Redding v. Bartram, 31 Conn. 144. In an action on a 
 note given for town lots, the issues being, whether the plaintiff abandoned 
 his land claim, and whether the note was without consideration ; the fol- 
 lowing instruction was held to be properly refused, viz., that, under the 
 pleadings, it must appear satisfactorily that the defendant demanded a 
 conveyance, or the plea of want of consideration does not apply. McClane
 
 308 THE LAW OF NEW TRIALS. [CH. XI. 
 
 a clefcndant in an action for property, who did not set up 
 in liis answer a superior title in a third party, cannot do 
 so through an instrnction to the jury.^ And a general 
 instruction, on a declaration with special and common 
 counts, is had, if it is incorrect under any one count. The 
 jury must he instructed in the law applicahle to each 
 count, that they may know on which to find, and how 
 much damages to find.^ So a refusal to instruct the jury 
 that the proof must conform to tlie pleadings is erro- 
 neous.' Or instructions calculated to divert from the 
 point in the pleadings.^ Or where the parties agreed by 
 the pleadings, that, while the lands in question were un- 
 inclosed, all parties had a right of common for cattle ; but 
 the charge was, that the custom was not proved entirely, 
 and, if not, the verdict was to be for the plaintiff, which 
 was rendered accordingly.' So, where no question of juris- 
 diction is raised by the pleadings, it is error to instruct 
 the jury, that, "if they believe a certain fact, they must 
 
 ' Watts V. Jolmson, 4 Tex. 311. *■ Fisher v. Forrester, 33 Penn. 
 
 2 Given v. Charron, 15 JMd. 502. 501 ; Porter v. Ferguson, 4 Flori. 
 See Daltou v. Bethlehem, 30 N. II. 102. 
 
 505. ^5 How V. Strode, 2 Wils. 2G9. 
 
 3 Scott ». Lunt, 7 Pet. 596. 
 
 V. Thomas, 1 Oreg. 288. Where the assigned breach of an agreement 
 was, that the defendant failed to inform the plaintiff of the sickness of a 
 hired negro, and to send him to the plaintiff when sick, and then ne- 
 glected and ill-treated him, by reason whereof he died; and the defend- 
 ant pleaded a general denial : it was error, under these issues, to submit 
 to the jury whether the defendant failed to inform the plaintiff within a 
 reasonable time, or failed to send him to the plaintiff within a reasonable 
 time, after he was taken sick — the true question was, whether the evi- 
 dence established the facts alleged in either of the breaches assigned. 
 Southern v. Dial, 25 Tex. G81. It is proper to refuse a request to charge 
 that the plaintiffs are not entitled to recover damages, on a ground on 
 which they have not claimed to recover damages. Weber v. Kingsland, 
 8 Bosw. 415. An instruction to the jury, that " all the allegations in 
 the petition, which are not denied specifically in the answer, are to be 
 taken as true," is erroneous, as being a general declaration of the law, 
 without reference to the particular issue made in the case. Missouri v, 
 Hannibal, 35 Mis. 84.
 
 CH. XI.J ERRONEOUS RULINGS OR INSTRUCTIONS. 309 
 
 find for the defendant, as the existence of tliat fact will 
 establish a want of jurisdiction over the case;" because, 
 as the pleadings stand, such a verdict is a complete bar to 
 another action, to which the plaintiff is entitled in an- 
 other court, if a verdict against him is rendered in pur- 
 suance of such an instruction.^ So, where the parties go 
 to trial on the pleadings, it is proper for the court to order 
 the jury to find a decree, in accordance with the rights of 
 the parties as set out in the pleadings.^ So a charge, ex- 
 pressing the same idea conveyed by a plea, and stating it 
 most strongly against the pleader, cannot be alleged by 
 him as error.^ So a ruling is to be taken in connection 
 with the pleadings on which it was made. A ruling on 
 a demurrer, that the plaintiff can recover only the pur- 
 chase-money and interest, the petition charging fraud, 
 generally, does not prevent him from amending, by alleg- 
 ing a special fraud with special damage, and therefore 
 does not excuse him for the consequences of his failure so 
 to amend.^ So, where the complaint, in an action for money 
 lent, avers specific representations on the part of the de- 
 fendant, and that they were false, and made to defraud 
 for the purpose of obtaining the loan; the court may pro- 
 perly call the attention of the jury to acts of the defend- 
 ant not specified in the complaint, which bear directly 
 upon the intent.^ So it is competent for the court to in- 
 struct the jury upon the sufficiency of the pleadings.^ 
 
 § 64. An instruction, that the minutes of the testimony 
 taken by the plaintiff's counsel, and read by him to the 
 jury in the course of his argument, " if correctly taken," 
 were evidence, though not correct in terms, could not 
 mislead the jury, and is therefore not a cause for a new 
 trial. ^ Nor is it ground for setting aside a verdict, that 
 
 • Fairbanks v. "Woodhouse, 6 ^ French v. "White, 5 Duer, 254. 
 Cal. 433. 6 Burgess v. Lloyd, 7 Md. 178. 
 
 2 Dwelle V. Roath, 29 Geo. 783, ? Brown v. Connelly, 5 Blackf. 
 
 3 Fort V. Barnett, 23 Tex. 460. 390. 
 
 ♦ Hall V. York, 23 Tex. 041.
 
 310 THE LAW OF NEW TRIALS. [CII. XI. 
 
 the judo'O, in sunnnino' up, lias commented, liowever 
 strono-ly, on the arguments made use of by the counsel 
 for the unsuccessful party.^ 
 
 § 65. A new trijil will be ordered, where the judge ex- 
 presses an opinion in favor of a valid ground taken in 
 defence, but recommends a verdict for the plaintiff, which 
 the defendant might move to set aside, and tlius raise the 
 question; and the jury find for the defendant.- 
 
 § 66. Where the defendants, in an action against them, 
 as makers of a note, brought by the indorsee, pleaded, 
 that they assigned and delivered to the payee and others 
 a large amount of personal property, as security for such 
 note and other claims; after whicli it was agreed between 
 the defendants and the assignees, that any of the assignees 
 might receive any part of the property assigned, to the 
 amount of their respective claims, toward the payment 
 thereof; and that the payee accordingly received a portion 
 of the property, to the amount of the note, in payment 
 thereof; all of which was done while he was holder of the 
 note: this plea being traversed, the plaintiff on the trial 
 claimed that he received the property from the defendants 
 for a diiferent purpose; and the court, without adverting 
 to such claim, instructed the jury, that, if the facts stated 
 in the plea were proved, their verdict must be for the de- 
 fendants. After a verdict in their favor it was held, that 
 it ought not to be set aside, on the ground of a misdirec- 
 tion, or that the finding, under the charge, showed that 
 the note had been paid twicc.^ 
 
 § 67. The inquiry, whether particular points which arise 
 in a cause present questions of law for the court, or of fact 
 for the jury, or mixed questions of law and fact ; is prolific 
 
 • Darby v. Ouseley, 3G Eng. Law ' Babcock v. Callendcr, 17 Coun. 
 and Eq. 518. 34. 
 
 ^ Hunt V. Bell, 1 Bing. 1.
 
 CII. XL] ERRONEOUS RULINGS OR INSTRUCTIONS. 311 
 
 of cases and nice distinctions, of which only a summary 
 view can here be i3resented.(ft) 
 
 § 68. In a late case it is remarked, " The line between 
 the duties of a court and jury is perfectly well defined ; 
 and the rigid observance of it is of the last importance to 
 the administration of systematic justice. In this way 
 court and jury are made responsible, each in its apjDro- 
 priate department, for the part taken by each, and in this 
 way alone can errors of fact and errors of law be traced 
 to their proper sources."' And, in another recent case, 
 " The true glory and excellence of the trial by jury is this, 
 
 I Per Ames, C. J., State v. Smitli, 6 R. I. 34. 
 
 (a) See, as to questions of law, Watson v. Tarpley, 18 How. 517; 
 Hudson t). Weir, 29 Ala. 294; McKinney v. Hartman, 4 Iowa, 154; 
 Castro V. Gill, 5 Cal. 40 ; Fairbanks v. Woodliouse, 6 ib. 433 ; Char- 
 lotte V. Chouteau, 25 Mis. 465 ; Birch v. Benton, 26 ib. 153. 
 
 As to questions of fact. Com. v. Barney, 10 Cush. 480 ; Putnam v. 
 Bowker, 11 ib. 542 ; Tuttle v. Brown, 4 Gray, 457 ; Rosenbaum v. The 
 State, 33 Ala. 354 ; Conner v. Allen, ib. 515 ; Lucas v. Daniels, 34 
 ib. 188 ; Gilkey v. Keeler, 22 Tex. 663 ; Burr v. Williams, 20 Ark. 171. 
 Massey v. Tingle, 29 Mis. 437 ; Rogers v. Ackerman, 22 Barb. 134; Ameri- 
 can, &c. V. Dobbin, Hill & Den. 252 ; Ernull v. Whitford, 3 Jones, 474 ; 
 Winship v. Buzzard, 9 Rich. 103 ; Thompson v. Wright, 22 Geo. 607 ," 
 Hicks V. Davis, 4 Cal. 67 ; Fagin v. Conoly, 25 Mis. 94 ; Birch v. Benton, 
 26 ib. 153; Ish v. Chilton, ib. 256; Snow v. Parsons, 2 Wms. 459; 
 Goodman v. Simonds, 20 How. 343 ; Hilliard v. Goold, 34 N. H. 230 ; 
 Drake w. Palmer, 4 Cal. 11; Hastiugs v. Yaughan, 5 ib. 315; O'Cal- 
 laghan v. Booth, 6 ib. 63 ; People v. Roberts, ib. 214. 
 
 On the general subject of law and fact ; Nave v. Horton, 9 Ind. 563 ; 
 Rabe v. Wells, 3 Cal. 148 ; Com. v. Anthes, 5 Gray, 185 ; Berwick v. 
 Horsfall, 4 Com. B. N. S. 450 ; Catling v. Newell, 9 Ind. 572 ; Bourke 
 V. James, 4 Mich. 336 ; Wright v. Mattison, 18 How. 50 ; Conklin v. 
 Thompson, 29 Barb. 218 ; Chapin v. Potter, 1 Hilt. 366 ; Kuns v. Young, 
 34 Penn. 60 ; Tobin v. Gregg, ib 446 ; Ferguson v. Clifford, 37 N. H. 
 86; Dascomb v. Buffalo, &c., 27 Barb. 221; Updike v. Skillman, 3 
 Dutch. 131; Finley v. Hanbest, 30 Penn. 190; Burroughs v. Langley, 
 10 Md. 248 ; Journey v. Sharp, 4 Jones, 165 ; Belden v. Gray, 5 Flori. 
 504 ; Sullivan v. Honacker, 6 ib. 372.
 
 312 THE LAW OF NEW TRIALS. [CII. XI. 
 
 that the power of dccidino; fact and law is wisely divided; 
 that the authority to decide questions of law is placed in 
 a Ix^dy well qualified, hy a suitable course of training, to 
 decide all questions of hnv ; and another body, well quali- 
 fied for the duty, is charged with deciding all questions 
 of fact definitively ; and while each, within its own 
 sphere, performs the duty intrusted to it, such a trial 
 affords the best possible security for a safe administration 
 of justice and the security of public and private rights."^ 
 So it is held, that the court responds to the law, and the 
 jury to the facts of the case. And a mistake by either in 
 their several provinces is good ground to set aside a ver- 
 dict. But the views and notions which jurors individually 
 or collectively may entertain of the law cannot affect their 
 finding.^ So that in civil cases the law is for the court, 
 and if, after instructions, counsel undertake to argue the 
 law to the jury against the rulings of the court, the court 
 may stop them.^ 
 
 § 69. The purpose of a trial by jury is to ascertain the 
 material facts in the case, where they are controverted ; 
 hence nothing is properly referred to the jury but a ma- 
 terial controverted matter of fact. Neither immaterial 
 matters nor uncontroverted facts should be submitted ; 
 but the court should declare its judgment according to 
 the truth of the material facts ascertained by the plead- 
 ing8.^(a) 
 
 § 70. The question of variance is for the court alone.*^ 
 
 ' Per Shaw, C. J., Com. v. An- ■• Thiirpou i). Mississippi, itc, 33 
 
 thes, 5 Gray, 198. Miss. 347. 
 
 2 Kilgore «. Jordan, 17 Tc'X. 341. ^ picndrick v. Kellog, 3 Iowa, 
 
 3 Delaplane «. Crenshaw, 15 215. 
 Gratt. 457. 
 
 (a) See §§ 30, 39, 77. In New York, where facts are to be settled, 
 and the evidence is conflicting, it is error to take a verdict, subject to the 
 opinion of the court at general term. To deduce facts from the evidence 
 is the province of a jury. Brower v. Orser, 2 Bosw. 365.
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 313 
 
 So all preliminary questions of fact, on which the admis- 
 sibility of evidence depends.X«) So the interest of a wit- 
 ness.2 So, in general, it is a question of law for the court, 
 whether an offer of a certain sum, as, for example, for 
 land, was by way of compromise, and therefore not com- 
 petent testimony.^ 
 
 § 71. But it is sometimes held, that a preliminary 
 question of this nature may he decided by the judge or 
 submitted to the jury, at the discretion of the former. 
 Thus, when a statement of the adverse party is offered in 
 evidence, and objected to on the ground that it is an offer 
 or proposition for the settlement of a controversy ; the 
 preliminary question, whether the statement was intended 
 by the party making it as an admission of a fact, and 
 not merely an offer to compromise, may be determined by 
 the court, or, in their discretion, it may be submitted to 
 the jury, with proper instructions to disregard it, if they 
 find it to have been merely such offer or proposition, and 
 to weiffh it as evidence, if intended as such admission.-* 
 
 § 72. Eut, on the other hand, the weight and effect of 
 evidence are to be determined by the jury alone.^ (See 
 § 41.) And the court may properly refuse to say whether 
 it was weak or otherwise.^ In a late case the court re- 
 
 ' Boyle ^). Wiseman, 33 Eng. Law ° Kiester v. Miller, 25 Penn. 481; 
 
 and Eq. 393. State v. Upton, 20 Mis. 397 ; In- 
 
 2 Tahor v. Staniels, 2 Cal. 240. gram v. Marshall, 23 Ark. 115. 
 
 3 Davis V. Charles, &c., 11 Cush. ^ Kiester v. Miller, 25 Penn. 481; 
 506. Pettingill v. Porter, 8 Allen, 1. 
 
 ^ Bartlett «. Hoyt, 33 K H. 151. 
 
 (a) In general it is for the court to determine the admissibility of evi- 
 dence ; but when this depends on facts, and the evidence is conflicting, 
 the question may be submitted to the jury, under proper instructions. 
 Verzen v. McGregor, 23 Cal. 339. It is not proper to instruct a jury 
 for what special and exclusive purpose certain evidence was introduced, 
 when it can be legitimately applied to another and different purpose. 
 White V. Walker, 31 111. 422.
 
 314 THE LAW OF NEW TRIALS. ' [CH. XI. 
 
 mark, " It is not a question of tlie legal sufficiency of the 
 whole evidence, but of the weight of conflicting evidence. 
 The line of distinction is well established, although it is 
 sometimes difficult to determine upon wdiich side of it 
 a case falls."^ So objections which go to the credibility 
 of a witness, and not to the legality of the evidence, are , 
 for the jury and not for the court.^ Thus it is for the 
 jury to judge, what weight they will give to declarations 
 of a party. ^ More especially where evidence is conflict- 
 ing, it is a proper case for the jury to judge of the credi- 
 bility of witnesses and of the weight of evidonce.''(rt) 
 
 § 73. All issues of fact in criminal proceedings should 
 be tried by the jury.-'' And the prevailing rule is, in terms, 
 though, as will be seen, somewhat variously construed, 
 that in criminal cases the jury are judges of the law as 
 well as of the facts, and it is error in the court to restrict 
 them to " the law as given in the charge by the court."^ 
 Nor are they bound by a charge, unless it truly states the 
 law.^ So an expression of opinion as to the sufficiency of 
 
 > PcrGray, J.,Rccd«.Deerfield, ^ Casoii v. State, 22 Ark. 214 
 
 8 Allen, 524. Bennett v. State, ib. 215. 
 
 2 Townshend v. Townsliend, G ^ McGuffie d. State, 17 Geo. 497 
 Hd. 2!)5. 2 Swan, 482; 22 Geo. 478 ; lOInd 
 
 3 Smith V. Northera Bank, 1 273, 503 ; State «. Saliba, 18 La 
 Met. (Ky.) 575. An. 35. 
 
 * Alley V. Booth, IG Tex. 94. ^ McPherson v. State, 22 Geo. 
 
 478. 
 
 (a) The court must determine the issues made by the pleadings. 
 Pharo V. Johnsoa, 15 Iowa, .500. So also the competency of a witness; 
 and, though the jury may and ought to examine into and scrutinize the 
 credibility of a witness, they have no right to exclude his evidence on 
 the grouud of interest, if he has been admitted as competent. Wickliffe 
 V. Lynch, 36 111. 209. The jury are to pass on the credibility and 
 weight of circumstances in evidence. People v. Barry, 31 Cal. 357. 
 The question as to how far evidence, that is legitimate and properly ad- 
 mitted, is material, and to how much weight it is entitled, is one entirely 
 for the jury; and it is erroneous for the court to instruct them as to the 
 materiality of evidence. Stacy v. Cobbs, 3G 111. 349,
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 315 
 
 evidence is error for which a new trial must he granted, 
 notwithstanding the judge instructed the jury that they 
 were to determine the facts without regard to any opinion 
 of his.^ So a charge, that they are to receive the facts 
 from the evidence and the law from the court, hut that 
 the court cannot set aside or overrule their verdict of not 
 guilty, is error.2 While, on the other hand, an instruc- 
 tion, that " the jury have the right to determine the law 
 and the facts, hut it is the duty of the court to instruct 
 the jurj^ what the law is," is correct.^ So also an instruc- 
 tion, "that the jury are not only judges in the facts of 
 the case, hut they are judges of the law. The court is a 
 witness to them as to what the law is. After the court 
 has stated the law to them, then, if they helieve it to be 
 different, they can disregard the opinion of the court. If 
 the jury err in favor of the defendant, their judgment is 
 final, and cannot be reversed by the Supreme Court."^ 
 
 § 74. But it is held, on the other hand, that a jury, as 
 opposed to the court, is judge of the law in a criminal 
 case, only so far as it has the power to disregard state- 
 ments of the court.^ So that the language of the consti- 
 tution (in Maryland), that in the trial of all criminal 
 cases the jury shall be judge of law as well as of fact, is 
 merely declaratory, not affecting the pre-existing law as 
 to the relative powers of courts and juries in criminal 
 cases ; and the court may rightly prevent the counsel for 
 the defence from arguing the constitutionality of a law 
 to the jury.^ So, in Massachusetts, by a majority of the 
 court, that under a statute which declares that, " in all 
 trials for criminal offences, it shall be the duty of the 
 jury to try, according to established forms and princijiles 
 of law, all cases which shall be committed to them, and, 
 
 ' State 1). Dick, 1 Wins. No. 2, » Stocking v. State, 7 Ind. 326. 
 45. 4 Nelson v. State, 3 Swan, 482. 
 
 2 McCnllough V. State, 10 Ind. ^ Com. v. Van Tuyl, 1 Met. 
 276 ; Williams v. State, ib. 503. (Ky.) 1. 
 
 " Franklin v. State, 12 Md. 236.
 
 31G THE LAW OF NEW TRIALS. [ciI. XI. 
 
 after having received the instructions of the court, to 
 decide at their discretion, by a general verdict, botli the 
 fact and the law involved in the issue, or to return a 
 special verdict at their election," the jury have no rightful 
 power to determine questions of law involved in the issue, 
 against the instructions of the court; such statute, thus 
 construed, being unconstitutional. And, in Mississippi, 
 that the jury are not the judges of the law in a criminal 
 action. Although their verdict, when the general issue 
 is pleaded, is compounded of both law and fact ; yet the 
 court must respond as to the law, and the jury as to the 
 facts. '(a) 
 
 ' Williams v. State, 82 Miss. 389 ; Com. v. Antlies, 5 Gray, 185. 
 
 (a) In Iowa, under the Code (§ 2772), the jury are made the judges of 
 the law and the fact only in criminal cases. And even in criminal cases 
 it is proper for the court to give instructions to the jury. Forshee v. 
 Abranis, 2 Clarke, 571. In Georgia, the jury are judges of the law as 
 well as of the fact, in all cases; subject only to a new trial, when the 
 verdict is contrary to law. Robinson v. Adkins, 19 Geo. 398. In South 
 Carolina, in capital cases, the jury are not judges of the law. It is 
 their duty to receive the law as laid down to them by the court. State 
 V. Drawdy, 14 Rich. L. 87. So in criminal trials in the United States 
 courts. And the court may require counsel to argue a question of con- 
 stitutionality to the court. United States v. Riley, 5 Blatchf. C. C. 204. 
 In New York and New Hampshire, in criminal cases, the jury are bound 
 to render a verdict in accordance with the law, as laid down by the court. 
 Lord V. State, 16 N. II. 325 ; Duffy v. People, 26 N. Y. (12 Smith) 588. 
 In Massachusetts, since the St. of 1855, c. 152, as well as before, the 
 jury, in a criminal case, are to be governed by the instructions of the 
 court in matter of law. Commonwealth v. Rock, 10 Gray, 4. It is no 
 ground of exception, that the judge refused to instruct the jury that the 
 St. of 1855, c. 152, changed the law as it stood before, by enlarging the 
 power of the jury to judge of the law, and was constitutional; and in- 
 structed them that it was their duty to take the law from the court, and 
 to conform their judgment and decision to its instructions, so far as they 
 understood them, in apjjlying the law to the facts to be found by them. 
 Com. V. Huber, 12 Gray, 29. In Vermont, in a trial for selling intoxi- 
 cating liquors, it is a question for the jury, under a statute making them 
 judges of the law as well as the facts, in criminal cases, whether ale is 
 intoxicating. State v. Barron, 37 Vt. 57.
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 317 
 
 § 75. Eminent judges have thus expressed themselves 
 upon this subject :(«) "Should you assume and exercise 
 this power, your opinion does not become a supreme law, 
 no one is bound by it, other juries will decide for them- 
 selves, and you could not expect that courts would look 
 to your verdict for the construction of the constitution, 
 as to the acts of the legislative or judicial departments of 
 the government. — If one jury exercises this power, we 
 are without a constitution or laws. One jury has the 
 same power as another; you cannot bind those who may 
 take your places ; what you declare constitutional to-day, 
 another jury may declare unconstitutional to-morrow."^ 
 
 § 76. "My opinion is, that the jury are no more judges 
 of the law upon the plea of not guilty, than they are in 
 every civil case tried upon the general issue. In each of 
 these cases their verdict, when general, is necessarily 
 compounded of law and of fact; and includes both. — In 
 each they have the physical power to disregard the law 
 as laid down to them by the court. But I deny that 
 in any case, civil or criminal, they have the moral right 
 to decide the law according to their own notions or 
 pleasure."^ 
 
 § 77. As we have already seen (§ 32), where there is no 
 evidence, the case becomes matter of law, and a nonsuit 
 may properly be ordered.^ 
 
 § 78. And leaving a question of law to the jury is ground 
 of new trial; as where a new promise was made, iciih- 
 
 ' Per Baldwin, J., U. S. v. Shine, ^ Lower ?». Clement, 25 Penu. 63; 
 
 1 Baldw. 513. Paxsou v. Bailey, 17 Geo. GOO. 
 2 Per Story, J., U. S. v. Battiste, 
 
 2 Sumn. 243. 
 
 (a) When the late Judge Thompson was requested to charge the jury 
 that they were judges both of the law and the fact, he replied, " I shan't; 
 they ain't." 2 Whart. Crim. L. I 3100.
 
 318 THE LAW OF NEW TllIALS. [CH. XI. 
 
 out disjnifc, and relied upon as an answer to the statute of 
 limitations.^ So a motion to the court to instruct that, 
 taking the facts testified to by all the witnesses on the 
 other side as true, a certain paper was not proved to be 
 the w^ill of the testator, is not to be denied, on the ground 
 that it asks the court to pass upon the tacts. The court, 
 in such case, would have a right to state the law which 
 would apply to those facts.^ Xor will a new trial be 
 o-ranted, where only points of law are raised, which are 
 overruled, and the judge charges that the plaintiff is en- 
 titled to a verdict; because a question of fact was not 
 submitted.3 ;^or, on the other hand, will a new trial be 
 granted, for leaving questions of fact to the jury.'* 
 
 § 79. The construction of writings, involving the mean- 
 ing of words, the proper form of action, &c., is a question 
 of la\^^X«) It is the province of the judge to charge the 
 
 ' Clarke v. Dutchcr, 9 Cow. C74. Cook's, &c. v. Carroll, G Md. 104; 
 
 2 Green v. Crain, 12 Gratt. 252. Gorton v. Iladscll, 9 Cush. 508 ; 
 
 3 Hunter v. Osterliondt, 11 Barb. Drew v. Towle, 10 Fost. 5;jl; Wood- 
 33 man v. C'hesley, 39 Maine, 45 ; 
 
 i Johnson v. Parks, 10 Cal. 446. Shepherd «. White, 11 Tex. 346. 
 
 5 Cochcco I'. Berry, 52 Maine, See Thomas n. Thomas, 15 B. Mon. 
 
 293- Silverthornew. Fowle,4Jones, 178 ; American, &c. v. Inloes, 7 
 
 362 • Caldwell «. Dickson, 26 Mis. Md. 380 ; Pickerell v. Carson, 8 
 
 OO-'Banney v. lligby, 5 Wis. 62; Clarke, 544; Estes v. Bootlie, 20 
 
 Myers t\ York, &c., 43 Maine, 232; Ark. 583; Lovistou «. Junction, 
 
 Burnham v. Ayer, 35 N. H. 351 ; &c., 7 Ind. 597. 
 San, &c. V. Lewis, 9 Tex. 69; 
 
 (a) Written instruments are to be construed by the court, upon in- 
 spection, unless there are terms of art or other unusual language, used 
 out of its ordinary signification, requiring explanation by extrinsic evi- 
 dence. Van Email v. Staiiclifield, 8 Minn. 518. The question, whether 
 a release taken by a defendant of " all causes of action," &c., on settle. 
 ment of his appeal from a justice's judgment, included the costs, is for 
 the court. Packer v. Packer, 24 Iowa, 20. Whether a will contains 
 any special trusts which require the joint action of all the executors, is 
 a question of law. AVillson v. WMiitfleld, 38 Geo. 269. A petition, seek- 
 ing to annul an instrument probated as a will, and to set aside the pro- 
 bate, upon the ground that it appears on its face to be a deed, raises a 
 purely legal question. Sartor v. Sartor, 39 ISliss. 760. A writing was
 
 en. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 319 
 
 jury as to the legal effect of written evidence^ wliether 
 asked to do so or not.' The meaning and construction of 
 
 1 Bennett -y. Ilollis, 9 Tex. 437 ; Carpenlier v. Thirston, 24 Cal. 208. 
 
 made, " Know ye, that I freely and equally give unto my son and daugh- 
 ter, all the following-named property, &c., to have and to hold the same 
 forever as their own right and property after my death." " This deed, 
 however, is not to deprive myself of the use of any or all of said pro- 
 perty so long as I live, and after my death they will take full possession 
 of the whole, and it is my wish that they equally divide said property 
 themselves, but should they disagree, that each of them choose disin- 
 terested persons to make the division between them according to this 
 deed, so that no part of said property may be exposed to public sale." 
 It was signed and sealed, acknowledged and recorded, as a deed. Held, 
 the writing, with the fact of its delivery and the intention and purpose 
 of its execution, should be submitted to the jury. Ferguson v. Ferguson, 
 27 Tex. 339. Upon a bill in equity seeking the construction of a will, 
 when parol evidence is introduced, it is error to instruct the jury in such 
 a way as to lead them to believe that it is their duty to construe the will 
 by its words. Doyal v. Smith, 31 Geo. 198. The construction of an 
 ambiguous term in a will, although generally a question of law, may be 
 submitted to the jury, when the doubt is produced by collateral and ex- 
 trinsic facts, not appearing upon the instrument, which existed when it 
 was made. Warner v. Milteuberger's, 21 Md. 264. AVhere the evidence 
 of the ratification of a will, by the acceptance of legacies under it, con- 
 sists of the acts of the party and of the language used in the party's own 
 will, it is not error to submit the whole question to the jury. Dufifey v. 
 Congregation, 48 Penn. 46. It is the province of the court to deter- 
 mine what facts are necessary to establish the signing and attestation of 
 a will within the meaning of the (Ala.) code. Riley v. Riley, 36 Ala. 
 490. The sufficiency of evidence, to establish the presentation of a claim 
 against a testator's estate to his executor, should be left to the jury. 
 Frazier's v. Pray tor, 36 Ala. 691. 
 
 Whether the statements in an application for insurance are represen- 
 tations or limited warranties, the question as to their materiality, and as 
 to the knowledge of the applicant, is properly left to the jury. Garcelou 
 V. Hampden, 50 Maine, .580. In case of alteration in an insurance risk, 
 still keeping within the same character of risk, it is for the jury to find 
 whether the risk has been increased. Smith v. Mechanic's, 32 N. Y. 399. 
 The question, whether a vessel insured was seaworthy at the inception of 
 the voyage, is ordinarily for the jury. Walsh v. Washington, 32 N. Y. 
 427. So the question, when a presumption of loss arises; and, in case of
 
 320 THE LAW OF NEW TRIALS. [CIL XI. 
 
 a paper are only left to a jury, when they depend upon 
 extrinsic facts which are doubtful or disputed.^ It is not 
 error to instruct the jury to fincl a verdict for the defend- 
 ant, where the whole testimony is in writing, and there 
 is nothing in the case to submit to them as a question of 
 fact.^ And leaving the construction of papers to the jury 
 is ground of new trial.^ Or a misapprehension by the 
 court of the construction of an agreement, by reason of 
 which the jury are misled by the charge.* Thus it is the 
 duty of the court to determine whether a writing offered 
 is a contract, fixing the liability of the parties.^ So, if a 
 written contract sued on is void on its face by the statute 
 of frauds, the jury may be instructed, in' terms, to find 
 for the defendant.^ So the legal im})ort and significance 
 of the words of a deed is a f|ucstion for the court. Though 
 the court must look at the circumstances.' So, whether 
 letters between the parties constitute an agreement or a 
 discharge of one, or whether an agreement enlarges the 
 time for performance of a contract, and, if so, to what 
 extent.^ More especially where there is no ambiguity in 
 a deed admitted in evidence, the court must declare its 
 legal effect.^ So, whether a deed is a disaflirmance of a 
 
 ' EcU'lman v. Yeakel, 27 Penn. ^ Eyser v. "Weissgerber, 2 Clarke, 
 
 20. See Stokes t). Biirrcll, 3 Grant, 4G3. 
 
 241. 6 Rigby v. Norwood, 34 Ala. 
 
 2 Webb V. Mears, 45 Penn. 222. 129. 
 
 3 Brown v. Huger, 21 How. 305; ? Cox v. Freedley, 33 Penn. 124. 
 Baltimore, &c. v. Resley, 14 Md. ^ Luckliart v. Oyden, 30 Cal. 
 424. r,47 ; United States v. Shaw, 1 Cliff. 
 
 * Stroll 7J. Hess, 1 "Watts &Serg. 317; Van Valkenburg v. Rogers, 
 147; Chrislman v. Gregor}', 4 B. 18 j\Iich. 180; Smith v. Faulkner, 
 Mon. 474. 12 Gray, 251, 
 
 9 Symmes v. Brown, 13 Ind. 318. 
 
 loss, the time it occurred. Clifford v. Thomastou, 50 Maine, 197. Where, 
 by parol evidence, it appears uncertain to which of two buildings an in- 
 surance policy applies, the question is for the jury. Beatty v. Lycoming, 
 .^2 Penn. 456. 
 
 Where a lease described the property merely as the lessor's " coal 
 bank and the appurtenances thereunto belonging," without boundaries ; 
 held, a question for the jury, what was the extent of the demise. Tiley 
 V. Moyers, 43 Penn. 404.
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 321 
 
 former deed made by the grantor when an infant.^ So, if 
 a case be covered by a clear rule of positive law, it is only 
 the court, and not the jury, that can administer an equi- 
 table exception in its behalf, or judge whether the evi- 
 dence oifered is admissible to sustain such exception. As 
 whether particular parol evidence be sufficient to convert 
 an absolute conveyance into an equitable mortgage.^ 
 
 § 80. It is for the court, and not the jury, to say, 
 whether certain acts were according to the constitution 
 and by-laws of a society.^ So, where the material facts 
 are not controverted, the question, whether upon those 
 facts the act incorporating a town and the assessment of a 
 tax under it are constitutional and valid, is a conclusion 
 of law, which may be pronounced at once by the court in 
 its instructions to the jury. Though the facts, if contro- 
 verted, are for the jury.^a) 
 
 ' Peterson v. Laik, 24 Mis. 541. ^ Osceola, &c. v. Rost, 15 Md. 
 
 2 De France v. De France, 34 395. 
 Penn. 385. » Maltus^. Shields, 2 Met. (Ky.) 
 
 553. 
 
 {a) Under the act of Congress of June 13, 1812, relative to the settle- 
 ment of land claims in Missouri, the question, what constitutes an out- 
 lot or common field lot, is one of law, for the court to decide. Fine v. St. 
 Louis Schools, 39 Mis. 59. Though the factum of a foreign law is for 
 the jury, it is the duty of the court to construe it, especially if it be in 
 writing, and to direct the jury as to its force and effect. Cecil Bank v. 
 Barry, 20 Md. 287. In an action for injuries to a mill and mill-site by 
 causing water to flow back on them, an instruction, that, in order to 
 maintain his defence on the ground of a prior right as a lower mill-owner 
 on the same stream, the defendant " must have shown himself to be a 
 mill-owner within the meaning of the law relating to mills and mill-dams," 
 was properly refused, because it left a question of law to the jury. Large 
 V. Orvis, 20 Wis. 696. Where parol evidence was given of mining laws 
 and customs, and written laws were afterwards introduced, but doubt was 
 raised whether the latter were in force at the time ; held, it was proper 
 to leave both parol and written evidence to the jury. Colman v. Clements^ 
 23 Cal. 245. Where one contracts by parol to deliver a number of bar- 
 rels of oil, but of no specified capacity ; it is for the jury to determine^ 
 
 21
 
 322 THE LAW OP NEW TRIALS. [CH, XI, 
 
 § 81. It is for the court to decide, what are the letters 
 and figures in a written instrument, and the meaning to 
 be attached to them.^ Though, if the court is in doubt, 
 it may submit the question to the jury.^ Where there is 
 any conflicting evidence as to the genuineness of the de- 
 fendant's sig-nature to a bond on which the action is 
 founded, the case should go to the jury, and their finding 
 in that respect is conclusive.^ 
 
 § 82. It is held that the terms of an oral contract, when 
 clearly proved, and intelligible and explicit, are to be con- 
 strued by the court, and not by the jury.* But the dis- 
 tinction is made, that the meaning of the parties to a 
 written contract is a question of law, to be decided by the 
 court : but, where there is no written instrument, circum- 
 stances in proof may essentially vary the literal import of 
 the language employed ; and it is not the province of the 
 judge to give a construction to it, as an imperative rule 
 of law, but for the jury alone to determine, from the evi- 
 
 « Riley v. Dickens, 19 111. 29. 3 ^lageew. Osborn, 33 N. Y. 669. 
 
 * Partridge v. Patterson, 6 ' Short v. Woodward, 13 Gray, 
 
 Clarke, 514. See Nichols v. Froth- 86. 
 ingham, 45 Maine, 230. 
 
 whether the contract was fulfilled by delivery of a less number of greater 
 capacity than the statute barrel ; and it is not error, where no specific 
 instruction was requested, that the statute standard would govern, to 
 submit this question to the jury. Cullum v. \Yagstaff, 48. Peun. 300. 
 Whether a will is executed with the proper formalities is a question of 
 law. Roe v. Taylor, 45 111. 485. The existence of the facts necessary 
 to constitute an "out-lot" of St. Louis is for the jury, but what facts will 
 constitute an " out-lot" is a question for the court. Vasquez v. Ewing, 
 42 Mis. 247. So what is lawful money of the United States other than 
 gold and silver coin. Chesapeake Bank v. Swain, 29 Md. 483. When 
 the standard of duty of a father to his young child is a shifting one, a 
 jury must determine what it is, as well as find whether it has been com- 
 plied with. Otherwise when the law determines precisely what the ex- 
 tent of duty is, and there has been no perfurmauce at all. Glassey v. 
 Hestonville, 57 Peun. 172.
 
 en. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 323 
 
 dence, what was said and done by the parties, and there- 
 from to find their intention.^ 
 
 § 83. It is held, that, where a written instrument has 
 been lost, and parol evidence of its contents received, its 
 construction is still for the court, and not for the jury.^ 
 
 § 84. Whether a contract is against public policy, is a 
 question of law.^ 
 
 § 85. The construction of a record is a question of law.* 
 So it is error to refer to the jury the question, how far 
 parol evidence is inconsistent with a record.^ Thus, in a 
 suit by an administrator, the construction of the order 
 appointing him administrator is a matter for the determi- 
 nation of the court, and it is the duty of the court to in- 
 struct the jury whether the order is valid.^ So it is the 
 duty of the court, and not of the jury, to determine the 
 nature of the action, or for what the plaintift' seeks to 
 recover. Thus where, in an action of trespass, for destroy- 
 ing a bridge, and killing and destroying the hogs and 
 cattle of the plaintiff, the court instructed the jury as 
 follows : " That if they believe, from the pleadings and 
 evidence, that this is an action merely for an alleged in- 
 jury to the realty, and that there is no evidence that the 
 realty is located in Pottawatamie County, or that the in- 
 jury, if any, was done in that county, to said realty, they 
 may find for the defendants, the venue in such cases being 
 local and material ;" held, the instruction was erroneous.'^ 
 So the issue upon a plea of mil tiel record is triable alone 
 by the court, on an inspection of the record.^ But dis- 
 
 ' Guptill t. Damon, 43 Maine, ^ Thomason v. Odum, 31 Ala. 
 
 271. 108. 
 
 « Berwick v. Horsfall, 4 C. B. e gims ». Boynton, 33 Ala. 353. 
 
 (N. S.) 450. But see 39 Maine, ^ Beebe v. Stutsman, 5 Clarke 
 
 307. (Iowa), 371. 
 
 3 Pierce v. Randolph, 12 Tex. » Ridley v. Buchanan, 3 Swan, 
 
 390. 555. 
 
 * Weathered v. Mays, 4 Tex. 
 387.
 
 324 THE LAW OF NEW TRIALS. [CII. XL 
 
 puted questions of fact, proper to be submitted to a jury, 
 will not l)e decided by a judge, upon the return of a rule 
 on the sheriff to show cause.'(a) 
 
 § 86. Where the terms of a contract are disputed, the 
 whole matter must be left to the jury with proper instruc- 
 tions.2 So the execution of a contract which is in evi- 
 dence is a question for the jury, and a prayer assuming 
 such execution is defective.^ So the nature of a contract 
 is held to be a question for the jury. As whether a par- 
 ticular contract was one of affreightment as with a com- 
 mon carrier, or a hiring by the job.^ So whether a deed, 
 absolute upon its face, was actually a mortgage, is, with 
 proper instructions, a question for the jury.^ So, where 
 the records of the probate court have been burned, the 
 question whether there has been a valid order of sale by 
 that court; and, if there was such an order, its validity 
 will be presumed.® Whether an instrument is sealed, is a 
 question for the court; but whether the seal is that of the 
 party, is for the jury.^ So, contrary to the cases already 
 cited, it has been sometimes held, that, if it becomes 
 necessary to prove by parol the contents of a written in- 
 strument, the construction of the instrument is for the 
 
 ' Dawson v. Dcwau, 12 Ricli, ^ Bemis v. Phelps, 41 Vt. 1. 
 
 4i)9. « Sapp V. Newsom, 27 Tex. 537. 
 
 2 Chapin v. Potter, 1 Hilt. 300. ^ Grossman v. llilltown, 3 Grant, 
 
 * BaUimore, ike. v. Kesley, l^lCi. 225. See Allen o. Allen, 45 Peuu. 
 
 397. 408. 
 
 ^ Fuller V. Bradley, 25 Penn. 120. 
 
 (a) The question, whether certain words have been erased from an in- 
 dictment, is for the court. Commonwealth v. Davis, 11 Gray, 4. When 
 the record of the proceeding, in which perjury is alleged, is produced, 
 the materiality of the false statement is a question of law. Cothrau v. 
 State, 39 Miss. 541. So whether certain words in an information for 
 felony were inserted after it had been sworn to, without a re-swearing. 
 Hunter v. State, 29 Ind. 80. So the sufSciency of the records of a county 
 court to establish the existence of a public road. State v. Prine, 25 
 Iowa, 231.
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 325 
 
 jury.^ So, where the effect of a written a2:reement, collate- 
 rally introduced as evidence, depends, not merely on the 
 construction and meaning of the instrument, but upon 
 extrinsic facts and circumstances ; the inferences of fact 
 to be drawn from it must be left to the jury.* So, 
 although the legal effect of papers is to be determined by 
 the court; it is held that, when documents are offered in 
 evidence as the foundation of an inference of fact, whether 
 such inference can be drawn from them is a question for 
 the jury. "When documents are offered for such a purpose, 
 they, like a written correspondence, may be explained by 
 extrinsic evidence.^ And where, in a suit upon a note, 
 the testimony leaves it doubtful whether the defendant 
 was principal or surety, the court should leave it to the 
 jury, after calling their attention to the point.* So, where 
 two persons jointly purchased land by articles of agree- 
 ment, and one of them paid part of the purchase-money, 
 which was furnished him by the other, and the former 
 then assigned to the latter his interest in the articles, who 
 paid the balance of the purchase-money; held, a question 
 for the jury, which was the real purchaser.' So, whether 
 interlineations in a deed were made before or after its 
 execution, and whether they altered it materially, are 
 questions for the jury.^ Or, in general, whether an instru- 
 ment has been altered.^ Or whether pencil-marks on a 
 note amount to a cancellation.^ So upon an issue devisavit 
 vel non, the document presented was claimed to be a holo- 
 gra^hic will. It was found among the papers of the tes- 
 tator, but among a package marked by the testator " not 
 valuable." The court charged that this was almost an 
 irresistible circumstance against the will. Held, the court 
 encroached on the province of the jury, and the charge 
 
 ' Moore v. Holland, 39 Maine, ^ cVow v. Crow, 29 Penn. 216. 
 807. ^ Reinhart v. Miller, 22 Geo. 402. 
 
 2 Barreda v. Silsbee, 21 How. U. ' Jones v. Ireland, 4 Iowa. 63 ; 
 S. 146. Ault V. Fleraino;, 7 Clarke, 143. 
 
 3 Primm v. Haren, 27 Mis. 205. s Stockton v. Graves, 10 lud. 294. 
 « Wyleyi!. Stanford, 22 Geo. 385.
 
 326 THE LAW OF NEW TRIALS. [CH. XI. 
 
 was eiToncous.' So, where, in an action of ejectment to 
 enforce the specific performance of a contract for the sale 
 of land, there are controverted facts, it is error for the 
 court to withdraw the case from the jury.^ 
 
 § 87. The construQtion of a deed is not to be submitted 
 to a jury, without specific directions that they shall only 
 determine certain matters of fact.^(a) (See § 90.) So it 
 is the duty of the court, in a case calling for it, to instruct 
 the jury what inferences may be legally drawn from the 
 writings in question, coupled with the conduct of the 
 parties in exposition of them ; the legal sufficiency of proof 
 being for the court, the moral weight of legally sufiicient 
 evidence being for the jury.'* So, although, in general, the 
 question whether a contract has been executed only as an 
 escrow is for the jury, because it generally depends on facts 
 proved by oral evidence; yet, where the evidence is in 
 writing, as where the contract, signed by one party (even 
 after signature by the agent of the other), is sent inclosed 
 in, or is accompanied by, a letter, explaining that it is 
 only signed on condition of something being done — as, 
 for example, a counterpart being executed by the other 
 party ; the construction of such evidence is for the j udge.' 
 
 § 88. Where some of the terms in which a contract is 
 expressed are words of science or art, which require the 
 evidence of experts to explain them; the jury, of neces- 
 
 > Mnrr v. Marr, 5 Sneed, 885. • Wheeler v. Schroeder, 4 R. I. 
 
 2 Williams v. Bcntley, 29 Penn. 388. 
 
 272. ^ Furness v. Meek, 3 Hurl. & 
 
 3 Morse v. Weymouth, 2 Wms. Nor. 907. 
 824. 
 
 (a) When a jury have fixed the meaning of words, the legal effects 
 and consequences are to be determined by the court. Warnick v. Gro- 
 sholz, 3 Grant, (Ponn.) 234; Stokes v. Burrell, ib. 241.
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 327 
 
 sity, must pass on the meaning of those words ;(a) but, 
 being ascertained by them, the duty of the court is still 
 to give a construction to the contract. "Where there are 
 not such terms, the contract is entirely with the court.^(6) 
 
 ' Silverthorne v. Fowle, 4 Jones, 362. 
 
 (a) Thus upon the meaning in a written contract of the word "team," 
 as explained by oral evidence. Ganson v. Madigan, 1.5 Wis. 144. The 
 plaintiffs, in an action on a contract of sale, agreed, through a broker, to 
 sell and deliver to the defendants "one hundred and fifty tons of soft 
 English lead of W., P., and W. brand," to arrive by a specified vessel. 
 The defendants, on arrival, refused to receive it, on the ground that it 
 was not the brand called for by the bought and sold note. There being 
 some evidence tending to prove that lead of this brand, "W., P., and 
 W.," had been seen in the New York market ; held, this rendered it 
 proper to submit to the jury the question whether such a brand was in 
 existence, so as to enable the plaintiffs to comply literally with the con- 
 tract. Also, that there was no error in leaving to the jury the question, 
 whether "soft English lead" was understood, in commerce, to mean soft 
 lead made in England, without regard to the place the ore came from. 
 Pollen V. Le Roy, 30 N. Y. 549. 
 
 (&) A contract for the purchase of foreign wheat provided for pay- 
 ment " in exchange for shipping documents." Held, the question, whe- 
 ther the delivery of such documents as were here delivered was a compli- 
 ance with the contract, was for the jury. Tamvaco v. Lucas, 3 B. & S. 
 89 ; ib. 185. Goods were put on board a ship consigned for Calcutta, at 
 39s. per ton, " payable in London." Held, it was for the jury to say, 
 from the surrounding circumstances, whether the contract was a contract 
 for " freight" contingent on the ship's arrival at her destination, or for a 
 sum payable on the receipt of the goods on board of her. Lidgett v. Perrin, 
 11 C. B. (N. S.) 362. Where the proof shows that a parol contract had 
 been first agreed upon, and that afterwards a written memorandum was 
 signed ; a party has the right to have the question, whether the written 
 contract embraces all the terms of such parol contract, submitted to the 
 jury. Cobb v. Wallace, 5 Cold. 539. Where there is upon the whole 
 evidence a dispute whether the contract was reduced to writing, it may be 
 necessary to receive evidence, both upon this precise question, and as to 
 those declarations and acts of the parties which are claimed to have con- 
 stituted the verbal contract, and also as to the contents of the supposed 
 written instrument; and to submit to the jury whether the contract was 
 in writing, with instructions, if they so find, to consider only that part of 
 the evidence which tends to show the contents of the writing, in deter-
 
 328 THE LAAV OF NEW TRIALS. [CH. XI. 
 
 § 89. The construction of a patent is ordinarily a ques- 
 tion of law for the court, and not for the jury.'(«) The 
 meaning of a patent, as of other docanients, depends upon 
 its terras, and not on matters of fact. But, where an am- 
 biguity is raised by evidence dehors the document, which 
 
 ' Bovill V. Pimm, 36 Eng. L. and Eq. 441. 
 
 mining the terms of the contract. Jenness v. Berry, 17 N. H. 549. It ■ 
 being in evidence that A., deceased, had promised to pay the plaintiff the 
 debt claimed from the defendant, and that the plaintiff, having met the 
 defendant at a town meeting, to his inquiry, " Has A. paid you that 
 i^lOO?" replied, "It is settled;" and there being conflicting testimony 
 whether the commissioners on his estate had reckoned it as unpaid : it 
 was proper to charge the jury, that, although A.'s promise was upon a 
 valid consideration and capable of being enforced by law, it would not 
 alone relieve the defendant ; that it was for the jury to say what was the 
 fair meaning of the language, and how the defendant under the cir- 
 cumstances understood it, and, if these were, that A. had adjusted the 
 debt, and that the defendant need not look to it further, their verdict 
 should be for the defendant, even though after A.'s death the defendant 
 recognized and offered to pay the debt ; but, if they found that the plain- 
 tiff meant simply that A. had promised to pay him, and the fair meaning 
 of the language, under the circumstances, would carry only that sense 
 to the defendant's mind, then their verdict should be for the plaintiff, 
 unless the defendant prevailed on some of his otiier grounds. Williams 
 V. Heywood, 41 Vt. 279. Whether -the business of putting together 
 frames of chairs is " manufacturing," within the meaning of an insurance 
 policy, is a question for the jury. Appleby v. Firemen's, 45 Barb. 454. 
 The defendant sold the plaintiff all his "apparatus for making soap — all 
 ashes and soap on hand," &c., "also all his trade and customers." Held, 
 the last clause contains no such latent ambiguity, as would require that 
 the construction of the contract should be submitted to a jury, with parol 
 testimony tending to show the intention of the parties. Warren v. 
 Jones, 51 Maine, 146. Whether town lots owned by a railroad are indis- 
 pensable to the enjoyment of its franchise, .so as to be bound by a mort- 
 gage of the road " with its corporate privileges and appurtenances," is a 
 question for the jury. Shamokin v. Livermore, 47 Penn. 465. 
 
 (a) It is the duty of the court to construe a patent, and to instruct 
 the jury in what the invention consists. Cahoon v. Ring, 1 Cliff. 592. 
 In an action upon a note, given in consideration of the assignment of a 
 patent, the question whether the inveution was useful must be left to the 
 jury, under proper instructions. Ilowe v. Blanchard, 18 Wis. 441.
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 329 
 
 is plain upon the face of it, the ambiguity being as to a 
 term which imports one thing in a scientific sense, and 
 another in a commercial sense; it is left doubtful, whether 
 the question is for the judge or the jury.^ 
 
 § 90. As has been seen (§ 87), construction of deeds is 
 for the court ; and, though the jury must ascertain as a fact 
 where the boundaries of a grant are, it is the duty of the 
 court to declare what the boundaries are that control the 
 location.^ 
 
 § 91. "Where several orders for manufactured articles 
 were given by the vendees, to some of which the vendors 
 replied, that they should be filled at the earliest day ; to 
 others, that the orders had been entered on their books, 
 to be filled at the times named, the vendees knowing that 
 all orders were so entered and filled in succession, or pro 
 rata, the vendees' letters also showing that they recognized 
 the above custom: an instruction, that from the corre- 
 spondence the vendees were chargeable with notice of the 
 custom, was held correct, as it left to the jury to decide 
 whether the letters produced were those of the parties, 
 and it determined the construction and eifect of the 
 writings, if proved, which is always a question for the 
 court.^ 
 
 § 92. It is the exclusive province of the jury to find 
 whether or not a [written] contract was made, but the 
 true intent and obligation they must find, if at all, under 
 the instruction of the court, and a mistake in such instruc- 
 tion is error.* So the jury are bound to accept the legal 
 construction put upon the words of a will by the court.^ 
 
 ' Hills ». London, &c., 3 Hurl. & ^ Bliven v. New England, &c., 
 Nor. 920. 23 How. U. S. 420. 
 
 2 Wliittelsey v. Kellogg, 28 Mis. * Illinois, &c. v. Cassell, 17 111. 
 404. 389. 
 
 2 Downing v. Bain, 24 Geo. 372.
 
 330 THE LAW OF NEW TRIALS. [CH. XI. 
 
 § 93. A question of usage is for the jury.^a) Thus, 
 whether articles carried in a passenger's trunk are pro- 
 perly denominated baggage^ that is, such as travellers on 
 their journey usually carry in their trunks.^ But the 
 court may properly instruct the jury, what will amount 
 to a sale of a raft of lumber, and refer to a custom of the 
 river, making a measurement, certificate, and payment 
 necessary to complete the contract.^ And the reasonable- 
 ness of a regulation or custom, on rail-trains, which 
 requires passengers for way-stations to surrender their 
 tickets, immediately after leaving the principal or regu- 
 lar stopping-place, nearest their destination, is a question 
 of law.* 
 
 § 94. A late writer remarks, " In general, it may be 
 said that questions of reasonableness, other than that of 
 time, are questions of fact for the jury." "(6) 
 
 » Sultana v. Chapman, 5 Wis. ^ Erisraan v. Walters, 36 Penn. 
 454. 467. 
 
 2 Grant B.Newton, 1 E. D. Smith, * Vedder v. Fellows, 20 N. Y. (6 
 95. Smith) 126. 
 
 5 3 Pars, on Con. 47. 
 
 (a) A note was indorsed "pay to A., or order, for collection," and, in a 
 suit thereon, the question arose whether the title was thereby passed to 
 the indorsees. On the one side, one of the indorsers was offered, to show 
 that according to their course of business they did not intend by such 
 indorsements to pass the title. Upon the other side, evidence was intro- 
 duced, that, by the general custom of bankers, such an indorsement 
 would pass the title. Held, the jury should be instructed to interpret 
 the indorsement upon the face of the paper in connection with the ordi- 
 nary course of business between the indorsers and indorsee. Sweeny v. 
 Easter, 1 Wall. 166. The question, whether a person who removes hia 
 family to the house of a relative, and absents himself from the country, 
 has his usual place of abode at such house, within the meaning of the 
 law governing service of process, is for the jury. The presumption in 
 such case is, that such house is not his usual place of abode. Adams v. 
 Abernathy, 37 Mis. 196. 
 
 (6) Thus, whether the use of a stream to carry off a manufacturer's 
 waste is reasonable or not, is a question for the jury; and, in determining
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 331 
 
 § 95. The question of reasonable time also is sometimes 
 held to be for the juiy.^ Thus, where hogs delivered to 
 be slaughtered were not slaughtered till several days after 
 delivery, and, the weather then being unsuitable, a loss 
 ensued; it was held to be for the jury to decide what was 
 the cause of the spoiling of the meat, and whether it was 
 the defendant's fault.^ So a contract under seal was made, 
 in January, 1853, to purchase land at a fixed price, no 
 time of payment being specified. The purchaser entered, 
 and, no part of the purchase-money being paid, the vendor, 
 in 1854 or 1855, gave him notice to quit. In trespass to 
 try title, held, what was reasonable time for the payment 
 of the purchase-money was a question for the jury.^ So 
 whether an award was made within a reasonable time, 
 within the intendment of the parties.* If the facts are 
 not clearly established, or if the question of time depends 
 upon other controverted facts, or where the motives of the 
 
 1 Meek v. Spencer, 8 Tnd. 118 ; W. 445 ; Howe v. Huntington, 15 
 
 Hill V. Hobart, 16 Maine, 164 ; Maine, 350. 
 
 Cocker v. Franklin, &c., 3 Samn. ^ Ferguson v. Fox, 1 Met. (Ky). 
 
 53C ; Steagall v. McKellar, 20 Tex. 83. 
 
 265 ; Greene v. Dingley, 24 Maine, ^ Hays v. Hays, 10 Rich. 419. 
 
 131 ; Ellis V. Thompson, 3 M. & * Haywood v. Harmon, 17 HI. 
 
 477. 
 
 it, evidence of usage in the deposit of similar waste is not admissible. 
 Hayes v. Waldron, 44 N. H. 580. The reasonableness of a railroad 
 regulation is purely a question of law, although testimony thereon is ad- 
 missible. Illinois V. Whittemore, 43 111. 420. Whether the whole of 
 the corn, which the defendant had on hand at the time of a levy, was 
 necessary for family use, and was therefore exempt from levy, was a 
 proper question for the jury. Atkinson v. Catcher. 23 Ark. 101. In an 
 action for injury to the plaintiff by being thrown from his carriage, in 
 consequence of his horse becoming frightened at the loud and sudden 
 blowing of a whistle at a railroad crossing near the station ; held, while 
 the railroad had a right to establish reasonable signals for the starting 
 of trains, it was for the jury to determine, upon the circumstances of a 
 particular case, whether such sounding was a reasonable signal, and 
 within the rule of ordinary care. Hill v. Portland, 55 Maine, 438.
 
 332 THE LAW OF NEW TRIALS. [CH. XI. 
 
 party enter into the question, it has been said that the 
 whole must necessarily be submitted to a jury.\a) 
 
 § 95a. But on the other hand it is laid down, that 
 " what is a reasonable time is a question of law for the 
 court. They will consider all the facts and circumstances 
 of the case in determining this, and if any facts bearing 
 upon this point are in question, it will be the province of 
 the jury to settle those facts, although the influence of 
 the facts when determined, upon the question of reason- 
 ableness, remains to be determined by the court."^ 
 
 § 96. The point referred to arose in a late case in Mas- 
 sachusetts, where it was held that the question, whether 
 repairs made by insurers, under a right reserved in the 
 policy, are made within a reasonable time, depending on 
 the dates of various notices given by the parties to each 
 other, the delay occasioned by the sickness and death of 
 workmen employed, and the peculiar nature of the pro- 
 perty, must be submitted to the jury, although the par- 
 ticular circumstances are not disputed.^ In that case, the 
 
 ' Hill V. TTohart, 16 Maine, 1C4 ; ' Haskins v. Ilamilton, &c., 5 
 2 Pars, on Con. 174, n. Gray, 4o2. 
 
 2 2 Pars, on Con. 47. 
 
 (rt) It is error to leave to the jury to find the meaning of the word 
 " immediately" as used in a contract. Streeter v. Streeter, 43 111. 155. 
 Where the question of reasonable time for performance of a contract 
 depends upon a variety of facts and circumstances peculiar to the case, 
 it is for the jury to determine, after instructions, as to the principles of 
 law applicable to the case. Luckhart v. Ogden, 30 Cal. 547. Where 
 thirteen or fourteen days elapsed after the time it was claimed a bank 
 paid out a counterfeit bill, and four or five days after it was discovered 
 to be counterfeit, before any ofrer was made to return it ; held, it was a 
 question for the jury, whether the offer was under all the circumstances 
 made in a reasonable time. Union v. Baldenwick, 45 111. 375. An action 
 was brought upon an order which had been accepted by the defendant to 
 be paid " when he had sold certain logs." Held, that the question of 
 unreasonable delay in making the sale was properly left to the jury. 
 Wilder v. Sprague, 50 Maine, 354.
 
 CH. XL] ERRONEOUS RULINGS OR INSTRUCTIONS. 333 
 
 following abstract of other leading cases on the subject is 
 given by Judge Metcalf. " In Tindal v. Brown, 1 T. R. 
 168, Lord Mansfield said: 'What is reasonable notice is 
 partly a question of fact and partly a question of law. 
 But whenever a rule can be laid down with respect to 
 this reasonableness, that should be decided by the court, 
 and adhered to by every one for the sake of certainty.' 
 In Chesapeake Ins. Co. v. Stark, 6 Cranch, 273, which was 
 an action on a policy of marine insurance, where one 
 question was, whether the assured had made an abandon- 
 ment in a reasonable time. Chief- Justice Marshall said : 
 'The law is settled, that an abandonment, to be effectual, 
 must be made in a reasonable time; but what time is 
 reasonable is a question compounded of fact and law, 
 which has not yet been reduced to such certainty as to 
 enable the court to pronounce upon it without the aid of 
 a jury. Certainly the delay may be so great as to enable 
 every man to declare, without hesitation, that it is un- 
 reasonable ; or the abandonment may be so immediate, 
 that all will admit it to have been made in reasonable 
 time ; but there may be such a medium between these ex- 
 tremes, as to render it doubtful whether the delay has 
 been reasonable or otherwise. If it was a mere question 
 of law, which the court might decide, then the law would 
 determine, to a day or an hour, on the time left for de- 
 liberation, after receiving notice of the loss. But the 
 law has not so determined ; it therefore remains a question 
 compounded of fact and law, which must be found by a 
 jury, under the direction of the court.' The application 
 of these principles to the present case is too obvious to 
 require illustration. Besides, there are numerous decisions 
 from which this case cannot be distinguished, showing 
 that the question of reasonable time was peculiarly proper 
 for the consideration of the jury. In Facey v. Hurdom, 
 3 B. & C. 213, and 5 D. & R. 68, the question was, whether 
 after the setting out of tithe the crop had been left on 
 the crround a reasonable time for the tithe-owner to com-
 
 334 THE LAW OF NEW TRIALS. [CH. XI. 
 
 pare his tenth with the residue. Bayley, J., said: 'There 
 certainly are cases where it is for the judge to say what 
 is a reasonable time. But in this instance the question 
 depended upon a variety of circumstances, such as the 
 residence of the respective parties, the time when notice 
 was given that the corn would be tithed, the state of the 
 weather, and other things most proper for the considera- 
 tion of the jury; and I think that the question was pro- 
 perly left to them.' In Cocker v. Franklin Ilemp and 
 Flax Manuf 'g Co., 3 Sumner, 530, the question whether 
 goods that had been ordered from England, had been fur- 
 nished in a reasonable time, was submitted to the jury. 
 Story, J., remarked: 'The whole question now before the 
 jury is, whether these articles were manufactured and 
 offered to be delivered within a reasonable time. That 
 reasonable time must be judged of by all the circum- 
 stances, and, of course, with all the natural calculations, 
 which might fairly arise from the distance of the countries, 
 the season of the year, the state of the markets and orders, 
 the pressure of business, and the common disappointments 
 and retardations incident to the manufacture of any new 
 article.' "^ 
 
 § 96a. A party cannot object to an instruction of the 
 court, submitting to the jury the question of what consti- 
 tutes reasonable use, when by his own prayer such question 
 is so submitted, and when he has also taken issue on a 
 plea alleging such use.^ 
 
 § 97. Where the law allows a certain percentage to a 
 trustee, it is no error for the court to charge the jury, 
 that such percentage would be a reasonable compensation 
 for the services of such trustee.^ 
 
 § 98. The question, whether a certain transaction con- 
 
 ' 5 Gray, 438. ^ Burney v. Spear, 17 Geo. 323. 
 
 ' lless V. Newcomer, 7 Md. 325.
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 335 
 
 stitutes payment of a debt, is generally one of fact for the 
 jury, and not of law on the facts proved. '(a) So whether 
 a note, given for the settlement of a suit against a third 
 person, is an extinguishment of the original claim, or 
 collateral to it.^ So, where a third person pays the sum 
 due on a note and takes it into his possession, whether he 
 intended to pay it for the accommodation of the maker, 
 or to purchase it.' So, in a suit on instalments for stock, 
 whether payments were made on a new issue, or on the 
 subscription sued on.* So, in an action for contribution 
 between two co-sureties, if the evidence shows that the 
 entire debt, for which the plaintiff, defendant, and a third 
 co-surety were bound, was paid oif by the plaintiff and 
 such third co-surety, but does not show the respective pro- 
 portions paid by each ; the court should not exclude the 
 evidence on the ground of its insufficiency, nor charge 
 the jury that it is insufficient to authorize a recovery by 
 the plaintiff, but should leave its weight to the jury.' So, 
 where there are two debts, one of which is barred by the 
 statute of limitations, and there is a part payment not 
 specifically appropriated by the debtor ; whether the pay- 
 ment was made generally, on account of whatever might 
 be due at the time, or on a particular account.® So the 
 question, to what particular debt or debts a general 
 acknowledgment applies, in order to avoid the statute.^ 
 (See § 101.) 
 
 ' Comstock V. Savage, 27 Conn. * McDougald v. Dawson, 30 Ala. 
 
 184 ; Williams v. Bentley, 29 Penn. 553. 
 
 272 ; Biniou v. Miller, 27 Geo. 78. ^ Walker v. Butler, 37 Eng. Law 
 
 2 Wilson V. Hanson, 20 N. H. and Eq. 13. 
 
 875. '' Kimball v. Baxter's Estate, 1 
 
 * Runyon v. Clark, 4 Jones, 52. Williams, 628. See 3 Jones, 504. 
 
 * Indiana, «&c. v. Cavett, 12 Ind. 
 316. 
 
 (a) In an action to recover money claimed to have been loaned to the 
 defendant, if there is any evidence tending to show that a payment to 
 A. was a loan to the defendant, although made without the latter's 
 assent ; it is error to charge the jury, that, if the money was paid to A. 
 without the defendant's assent, there was no loan. Clark v. McGraw, 14 
 Mich. 139.
 
 336 THE LAW OF NEAV TRIALS. [ClI. XI. 
 
 § 09. Under some circumstances, however, payment is 
 held a question of law.^ Thus a motion, that nji.fa. shall 
 be entered satisfied, because paid, need not be determined 
 with a jury, but may be by the court alone.^(rt) 
 
 § 100. It is held to be a question of law, what evidence 
 will repel the presumption of payment arising from the 
 lapse of time. Though, if the question is left to the 
 jury, but correctly decided by them, a new trial will not 
 be granted.3(&) So, although strictly the presumption of 
 payment and conveyance of land under a contract, arising 
 from lapse of time, is a matter for the jury, yet, where 
 the weight of proof is so decisive that, if the jury had 
 found against it the court would have granted a new trial, 
 the court may draw the inference and grant a nonsuit.'* 
 
 § 101. A new trial was granted for an instruction, that, 
 from the whole testimony, the action was not barred by 
 the statute of limitations.* But a new trial was refused, 
 where, in answer to the statute of limitations, a letter of 
 the defendant was offered in evidence, and the judge in- 
 
 • Frost V. Martin, 9 Fost. 30G. * Brotherson v. Jones, Hill & 
 
 « Tucker ». Kespass, 28 Geo. G13. Denio, 171. 
 
 3 Woodbury v. Tavlor, 3 Jones, ^ Fisher v. Duncan, 1 Hen. & M. 
 
 504. See 1 Wms. G28. 563. 
 
 (a) AVhether the satisfaction and discharge of a mortgage, by taking 
 other security; was a payment of the debt, or a mere change of securities, 
 is a question for the court, when deducible from a written agreement ; 
 and the refusal to submit the question of intention to the jury was not 
 error. Heath v. Page, 48 Penn. i;50. Where there is afTirniative proof, 
 on the part of the creditor, that a bond more than twenty-one years old 
 has not been paid; its sufficiency to rebut the presumption of payment 
 is a question for the court. Reed v. Reed, 46 Penn. 239. 
 
 (&) A new promise to pay is a contract, and whether a contract has 
 been made is, at last, a question of law. It is for the jury to ascertain 
 what passed between the parties, and, if this does not amount to a con- 
 tract, it is the province of the court so to declare. Erskine v. Wilson, 
 27 Tex. 117.
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 337 
 
 structed the jury that after the production of this letter 
 the statute was entirely out of the question, the court 
 being of opinion that the letter was a clear acknowledg- 
 ment of an actually existing debt.'(a) (See § 98.) 
 
 § 102. Whether a transaction concerning a note is a 
 sale of the note or an usurious loan, is held a question for 
 the jury .2 So where a note was negotiated in ]^ew York, 
 at a rate of interest which in Isew Jersey would be 
 usurious, between parties resident in New Jersey ; held, 
 not conclusive evidence that the transaction was in eva- 
 sion of the usury laws, but a question for the jury, on all 
 the evidence.^ 
 
 § 108. Where the consideration of a note is disputed, 
 and there is conflicting testimony, the jury must decide 
 the point.* So whether the contingency has happened 
 upon which a draft is payable.' 
 
 § 104. Where a party, having abandoned his contract to 
 work for a year, on the ground of ill usage, seeks to re- 
 
 > Colledge v. Hone, 10 Moo. 481. ' Durant v. Banta, 3 Dutch. 624. 
 2 Mix «."Madisou, &c., 11 lud. * Swain v. Etling, 32 Peun. 486. 
 117. ^ Nagle v. Homer, 8 Cal. 353. 
 
 (a) Whether such letter refers to the debt is a question for the jury. 
 Dickinson v. Lott, 29 Tex. 172. In an action on an outlawed note, the 
 defendant asked the court to submit to the jury the question whether 
 there was a new promise arising from a part-payment, in connection with 
 the attending circumstances. Held, there was no error in refusing, as 
 the circumstances warranted the court in holding, that the defendant, by 
 such payment, intended to recognize his liability. Miller v. Talcott, 46 
 Barb. 167. It should be left to the jury to say, in respect to an agree- 
 ment relied on to take a debt out of the statute, not only whether it refers 
 to the debt, but also whether it recognizes the debt as still due. Robin- 
 son V. Burton, 1 Houst. 540. In ejectment, it is error to charge that, if 
 the defendant held the laud for twenty years, the plaintiff cannot re- 
 cover. The question should have been left to the jury, whether the 
 possession was held adversely and with claim of title. Davis c. Furlow'^, 
 27 Md. 536. 
 22
 
 338 THE LAW OF NEW TRIALS. [CIL XI. 
 
 cover under a quantum meruit ; tlic question, wlietlier the 
 ill usage was sufficient to justify the abandonment, should 
 be left to the jury. It is erroneous in such case to charge 
 the jury, that, " if they believe the fact of ill usage made 
 out, the plaintiff is entitled to recover."^ 
 
 § 105. The evidence of a promise to pay the debt of 
 another must be clear, explicit, and certain ; but whether 
 it be so or not, is a question for the jury.^ So in an action 
 of assumpsit, in which the defendant's promise rests on 
 parol evidence, it is error, even if the consideration for it 
 be adequate, to take from the jury the question of fact 
 as to the promise, and to charge that, if the evidence be 
 believed, the plaintiff is entitled to recover.^ So, if a 
 party is presented with a bill, and admits it to be correct, 
 but states that he has a bill on his part against the claim- 
 ant, which he wishes to have settled; the whole conver- 
 sation may be left to the jury.* 
 
 § 106. It is a question for the jury, upon all the evi- 
 dence, to whom the credit was given, where goods were 
 furnished under the following order: "Please let A. B. 
 have the fulling mill, crank, and other work for C. D. — 
 E. F."* So, upon a proceeding to enforce a lien for build- 
 ing materials, whether the materials w^ere furnished solely 
 upon the credit of the contractor, or w4iolly or partly on 
 that of the building; and this though the contractor's 
 note was given for the price.^ So where parents have 
 lived wdth a step-son, the jury is to decide, on the facts 
 proved, whether they should pay for their board or not.^ 
 So a person rendered services to a corporation as treasurer, 
 having been regularly elected to that office, but with no 
 arrangement for compensation. Evidence was introduced, 
 
 ' Erving v. Ingram, 4 Zabr. 520. ^ Tnrton v. Bnrke, 4 Wis. 119. 
 
 2 Kuns'p. Y()unl,^ ?A Pcnn. GO. e Odd Fellows', &c. v. Masser, 24 
 
 3 Tobin V. Groui:, ;U I'enn. 440. Pcnn. 507. 
 
 * Pearson v. Chapman, 21 111. i Myers v. Malcom, 20 111. G21. 
 650.
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 339 
 
 tending to prove that lie had a connection as partner with 
 another officer of the corporation, from which he expected 
 incidental compensation for his services to the corpora- 
 tion, and that he did not make any claim on the corpora- 
 tion until some time after his term of office expired. 
 Held, it was a proper question for the jury, whether such 
 services were gratuitous.^ 
 
 § 107. When the facts are found, what is or is not 
 sufficient notice, is a question for the court.^ But the 
 questions, whether a dam was a nuisance, and whether 
 three weeks' notice to remove it, before suit, was sufficient, 
 were held properly submitted to the jury.^ So where a 
 policy of insurance requires that notice shall be given to 
 the company of any alterations which shall tend to in- 
 crease the risk; whether particular alterations, of which 
 notice has not been given, have such tendency.* So, where 
 there is evidence that the son of a co-surety gave notice 
 to the creditor to proceed against the principal debtor; 
 whether he had authority to give such notice.^(a) 
 
 ' Pendleton v. Empire, etc., 19 * Schenck «. Mercer, &c., 4 Zabr. 
 
 K Y. (5 Smith) 13. 447. 
 
 2 Slierer v. Easton Bank, 33 s Klin^ensmith ». Klingensmith, 
 Penn. 134 31 Peun. 460. 
 
 3 Kemmerer ■». Edelman, 23 
 Penn. 143. 
 
 (a) Constructive notice — as in case of a purchaser — is a legal infer- 
 ence from established facts; and, when the facts are not controverted, or 
 the alleged defect or infirmity appears on the face of an instrument, and 
 is a matter of ocular inspection, the question is for the court. Birdsall 
 V. Russell, 29 N. Y. (2 Tiffa.) 220. There is no error in leaving to the 
 jury, in an action to recover the value of goods lost by theft, while in the 
 custody of a railroad, the question, whether, under the circumstances, it 
 was a bailee for hire or performing a gratuitous service, it appearing that 
 the goods had reached their place of destination, that the consignee had 
 been notified, but that he had failed to take them away for more than 
 two days after their arrival, and that a regulation of the company, pub- 
 licly posted, and under which its agents acted, directed a charge to be 
 levied for storage under such circumstances. Nor was it error to refuse
 
 340 THE LAW OF NEW TRIALS. [CH. XI. 
 
 § 107«. Where all the facts upon which a tenancy is 
 claimed are admitted in writing, the court may determine 
 the legal relation which they constitute.^ 
 
 § 108. Color of title is a question of law, but the good 
 faith of the party claiming under it is a question of fact.^(a) 
 An instruction in an action of forcible entry and detainer, 
 having relation to a possession under color of title, must 
 define what is color of title.^ 
 
 § 108«. An instruction on the question of legal pos- 
 session should not leave it to the jury to say what is a 
 legal possession.* But, upon the question whether a party 
 was in possession, it is the province of the jury to find, 
 under proper instructions, whether possession is proved.^ 
 
 § 109. It is held a question of law, what constitutes 
 adverse possession, and what evidence is necessary to sus- 
 tain it.^ But, in an action of trespass quare clausum, where 
 the character of the plaintiflfs possession and the right of 
 the defendants to enter were assumed by the judge ad- 
 versely to the defendants, instead of being left to the jury ; 
 a verdict for the plaintifi:' was set aside.^(/>) 
 
 1 noward v. Carpenter, 22 Md. ^ Truesdale v. Ford, 37 111. 210. 
 10. ^ Cornelius 7;. Gil)erson. 1 Dutch. 
 
 2 Woodwardw.Blauchard, 16111. 1; Bowie v. Biahe, 3 Duer, 35; 
 424. Paxson v. Bailey, 17 Geo. GOO; 
 
 3 Blanchard v. Pratt, 37 111. 243. Lockhart v. Luker, 36 Miss. 68. 
 * Ibid. ' Reid v. Kirk, 12 Rich. 54. 
 
 to instruct the jury, that such notice could not be considered as a con- 
 tract for storage, until it should appear that the plaintiffs knew of the 
 notice and acquiesced in it. Dimmick v. Milwaukee, 18 Wis. 471. 
 
 (a) It is held in a late case, that it is not the province of the jury to 
 decide what is color of title made in good faith. Shacklcford v. Bailey, 
 35 111. 387. 
 
 (fc) Whether the open and exclusive possession of a tenant, continued 
 for thirty years, was adverse, is a question for the jury. Eaton v. Jacobs, 
 52 Maine, 44;"). In a real action for flats, the judge instructed the jury, 
 at the request of the tenant, that it might be shown, by occupation and
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 341 
 
 § 110. "Where a sheriff advertised a sale of "that land' 
 on which W. T. now lives," and there was evidence to 
 show that part of the land described in the sheriff's deed 
 was not included in the advertisement, W. T. not living 
 on it at the time ; held, this was a question of fact for the 
 jury, and a charge, which took this question from them 
 by directing a verdict, was erroneous.^ 
 
 § 111. Whether a marked corner, made at the time the 
 deed was made, but not called for by name, was intended 
 to be adopted in the deed, or whether it was intended by 
 the bargainer that course and distance should prevail, is 
 a question of fact, in the ascertainment of boundaries, 
 that should be left to the jury, with proper instructions.2(a) 
 
 § 112. Upon ejectment to try the title to unseated land 
 sold for taxes, it is a question for the jury what land was 
 assessed for the taxes; and the land which was intended 
 
 » Todd V. Pliilliower, 4 Zabr. 79G. « Safret v. Hartman, 5 Jones, 
 
 185. 
 
 conveyances, that the proprietors of the flats had agreed that the dividing 
 lines between their estates should run in a certain direction ; and that 
 upon such evidence the jury might presume releases and conveyances 
 between the proprietors, establishing such line, since lost. Held, no 
 ground of exception, that the judge, at the same time, called the jury's 
 attention to the peculiarity of the law in relation to the ownership of 
 flats, by which there can be no disseizin of them but by actual occupa- 
 tion, as affording a ground of improbability that any such agreement, 
 releases, or conveyances have been made. Curtis v. Francis, 9 Gush. 427. 
 In trespass to try title by tenants in common against a co-tenant, the 
 question of ouster having been submitted, upon the evidence, to the jury, 
 who found for the plaintiffs, the court refused to set aside their verdict. 
 Myers v. McBride, 13 Rich. 178. 
 
 (a) A new trial will not be granted, because the court refused to 
 charge, that an agreement about a boundary must be construed, in case 
 of doubt as to its terms, or any ambiguity arising from the description, 
 most favorably to the grantee; when the record does not show that the 
 controversy could not be otherwise determined. Ball v. Bradley, 34 
 Conn. 496.
 
 342 THE LAW OP NEW TRIALS. [cil. XL 
 
 to be assessed and sold passes to the purchaser, however 
 it may be designated.^ 
 
 § 113. The location and survey of land, where there is 
 no contlict of evidence, are questions of law.^ So wdiere 
 land appears by the pleadings to be within a given section, 
 township, and range, as established by government survey, 
 its locality is matter of public record addressed to the 
 judicial knowledge of the court, and is not a question for 
 the jury.^ 
 
 § 114. l]ut it is the province of the jury, to say whether 
 a descriptive warrant has been located on the land it 
 called for or not.* So, in an action of ejectment, an assign- 
 ment from David B., of a patent for donation lands drawn 
 under the act of 24th March, 1785, being relied on as 
 part of the title, it appeared by the general draught of the 
 district, that the lot in question was drawn by David B. 
 The patent set forth, that, in consequence of the services 
 of John B., the lot is granted to the said John, to hold 
 to the said David B. and his heirs and assigns. Held, it 
 was a question for the jury, whether the lot was intended 
 to be granted to David B.* So, where Congress had di- 
 rected certain lands to be laid out in a certain manner 
 and sold, except certain lots which the Secretary of the 
 Treasury might reserve for the support of schools ; whether 
 those lots were so reserved is a question for the jury. There 
 is no legal presumption that he made the selection.®(rt) 
 
 ' Rnssel v. Werntz, 24 Ponn. '' Cassidy v. Conway, 25 Pcnn. 
 
 337. 240. 
 
 2 RamagcB. Petcrmau, 2o Ponu. ^ Black v. Wurtz, 24 Pcnn. 125. 
 349. 6 Dickins v. Maliaua, 21 How. 
 
 3 Hypfnerc. Walsh, 3 Iowa, 509. U. S. 270. 
 
 (a) It is a question of fact, whether a locator on public lands made 
 the first location, and with reasonable diligence followed up such location 
 with the necessary improvements or with preparations for such improve- 
 ments, so as to entitle him to the land against a person subsc(|ueiit]y 
 entering. Staininger v. Andrews, 4 Nev. 59 ; Sharon v. Davidson, ib.
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 343 
 
 § 115. The court cannot determine what are the limits 
 or whether there are any limits of a place, not being a 
 
 416. "Where a single man, with two adult unmarried sisters, entered 
 upon an abandoned improvement, cleared and lived upon it for many- 
 years, the sisters claiming ownership with the brother, assisting in all the 
 labor of cultivation, and paying, by weaving and otherwise, for labor 
 done upon the farm by others ; the question, whether the settlement was 
 that of all, or that of the brother only, was for the jury. The relation- 
 ship was not such as to raise the presumption that the settlement was 
 that of the brother only ; and refusal of the instruction, that " he stood 
 in the attitude of one who was the head of a family, and that the pre- 
 sumption was one of law," was not error. But where the brother had 
 sold the land to one under whom the plaintiff claimed, the facts of rela- 
 tionship and family association were proper for submission to the jury, 
 with proper instructions, for them to infer from all the evidence whether 
 the sisters had knowledge of the sale. Cambria v. Tomb, 48 Penu. 387. 
 Whether the owner of a homestead has abandoned it is a question of 
 fact. Locke v. Rowell, 47 N. H. 46. Whether a sale was by the acre 
 or in gross, is, in general, matter of judicial construction of the deed or 
 contract. Weir v. McGee, 25 Tex. 20. Whether a grant from the State 
 is to be presumed, is a question for the jury. Taylor v. Watkins, 26 Tex. 
 688. When there are two monuments which may answer the call in a 
 deed, and the true intendment can be ascertained by applying the legal 
 rules of construction to the conveyance itself, the question is one of law. 
 Bonney v. Morrill, 52 Maine, 252, What the boundaries of land are, is 
 a question of law ; tvhere the boundaries are, of fact. An existing line 
 of an adjoining tract may be a monument. And the identity, of a monu- 
 ment found upon the ground, with one referred to in the deed, is always 
 for the jury. Where the eastern boundary of the land conveyed was a 
 line " as surveyed by I. J. & I. B.," if they had never made any survey, 
 there was a latent ambiguity. If a dividing line had been made by 
 another person, whether the parties referred to his survey, was a question 
 for the jury. Abbott y. Abbott, 51 Maine, 575. It is a question of fact 
 for the jury, whether, in any case, good husbandry requires that the hay 
 produced on a farm should be fed out on it. Wing v. Gray, 36 Yt. 261. 
 Where the issue before the jury is, whether the grantee of a farm has 
 actual possession of personal property which is on it, and of which he 
 has a bill of sale, the question whether he is in actual occupation of the 
 farm is material, and should be left to the jury. Gaboon v. Marshall, 25 
 Gal. 197. In an action of ejectment, it is for the jury, under proper in- 
 struction, to determine, from the number, character, and time of entries 
 by the owner, for the purpose of cutting timber, whether they exhibit a 
 common or mixed possession, and whether the possession of the opposite
 
 344 THE LAW OF NEW TRIALS. [CH. XI. 
 
 public corporation, described by its name only.* So, where 
 the plaintiff's were to run for the defendant his staves "at 
 and near T." at a specified price ; held, whether a point a 
 mile and a half from there was " near T.," within the 
 meaning of the contract, was a question of fact for the 
 jury.- So whether a lot is an " out lot," under the act of 
 June .13, 1812, relating to out lots, &c., belonging to 
 certain towns in Missouri, and has been inhabited as such 
 within the meaning of that act.^ 
 
 § 116. Delivery is in general a question for the jury. 
 Thus the delivery of a contract.^ Or of goods (under the 
 direction of the judge),^ Or delivery under an assign- 
 ment.^ So cither in a sale or exchange of personal pro- 
 perty.^ Or whether there was such a change of possession 
 as the nature of the property requires for delivery.^ So 
 whether there has been a fraudulent retention of posses- 
 sion by the vendor of personal property.^ 
 
 § 117. The sufficiency of provocation to excuse or ex- 
 tenuate murder is a question of law."^ 
 
 § 118. The question, how much less weight a threat 
 made by an excited man is entitled to than one made by 
 a cool man, is for the jury.'* Or whether a person was 
 drunk}'^ So the point of identity }\a) 
 
 » Blanding v. Sargent, 33 N. II. ^ Howe v. Keeler. 27 Conn. 538. 
 
 239. '° State v. Jones, 30 Mis. 58. 
 
 2 Sliaw ». Davi-s, 7 Mich. 318. " McPlierson v. The State, 22 
 
 3 Savii^nac «. Garrison, 18 How. Geo. 478. 
 
 U. S. 136. '^ Ciuumings v. Henry, 10 Ind. 
 
 < .Taquith v. Hudson. 5 Mieh. 123. 109. 
 
 5 lIonghtalinirD. Ball, 19 .Mis. 84. '» Freeman v. Loftis, 6 .Tones, 
 
 5 Ilall'y. Wheeler. 13 Ind. 371. 524; Hines v. The Slate. 26 Geo. 
 
 ' Khea v. Riner, 21 111. r)26. 614; Mortons. Waring, 18 B. Mon. 
 
 8 Chase v. Ralston, 30 Penn. 539. 72. 
 
 party, claiming by marked lines, was or was not exclusive ; or whether 
 they were casual and accidental, and not done in prosecution of his rights 
 as owner. O'llara v. Richardson, 46 Penn. 385. 
 
 (a) Upon a trial of H., for perjury, in swearing falsely that she had 
 never been married to P., a record of a marriage was put in evidence.
 
 CH-. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 345 
 
 § 119. Intention is a question for the jury. As whether 
 a warranty is intended by the language used between the 
 parties.! So what were the intentions of a donor by pa- 
 rol gift, whether to make a conditional or an absolute 
 gift, is a question of fact for the jury, and not of law for 
 the court.^ So, where the question was, whether a certain 
 assignment was abandoned, it was held to depend on 
 intention, and the jury must decide what that intention 
 wa8.2(a) 
 
 ' Lammet). Gregg, 1 Met. (Ky.) * Halbert v. Halbert, 21 Mis. 277. 
 444. 3 Wilsou V. Pearson, 20 111. 81. 
 
 Held, it was error to charge, that, unless there was some extraneous evi- 
 dence to raise a doubt of the identity of the parties, the presumption 
 ■was that they were the same. The question of identity was for the jury. 
 Hendricks v. State, 26 Ind. 493. Where a book designated as the "bound 
 book," and alleged to be a record of the county commissioners of the 
 assessment of taxes on unseated lands for a certain year, was found in an 
 office occupied by the commissioners and treasurer, and required extrinsic 
 evidence to identify it; held, a question for the jury whether it belonged 
 to the commissioners. McReynolds v. Longenberger, 57 Penn. 13. 
 Whether certain bills rendered were for the same wood upon which the 
 defendant had drawn an order in favor of the plaintiff, was held to be a 
 question which might properly be left to the jury. Piper v. White, 56 
 Penn. 90. A reference, in a contract, to a paper of the same name or 
 general description as one produced in evidence, does not authorize the 
 judge in his instructions to assume that the paper produced and that re- 
 ferred to are identical ; the question of identity is for the jury. AVitherell 
 V. Maine, 49 Maine, 200. The question, whether a grantor is the same 
 person as the grantee of a former deed, is for the jury, and not one of 
 law, or a preliminary one of fact, to be passed on by the court before the 
 admission of the deed in evidence. Carleton v. Townsend, 28 Cal. 219. 
 
 (a) The question concerning the intention with which a party executed 
 a note, whether to bind himself, or as trustee for another, is a question of 
 law, in view of the language of the note, the circumstances under which 
 it was executed, and the situation of the parties. Lewis v. Harris, 4 
 Met. (Ky.) 353. When a person's intention is to be judged of by his 
 writing, it is a question for the court ; but when it is to be judged of by 
 extrinsic facts, or when the writing forms part of a transaction, the rest 
 consisting of words or acts, or when it is but a circumstance tending to 
 establish some other fact, it is a question for the jury. Winter v. Norton, 
 1 Oreg. 42.
 
 346 THE LAW OF NEW TRIALS. [CH. XI. 
 
 § 120. In an action to recover for a horse, the plaintiiF 
 claimed, tliat he died of sudden fright, caused by the fire 
 and exi>losion of a cracker fired ort by the defendant, and 
 the defendant, that it was from over-driving in warm 
 weatlier, and there was evidence upon both sides. Ilehl, 
 it was the province of the jury to decide this issue, and 
 the court would not interfere with a verdict for the 
 plaintiftV 
 
 § 121. Partnership is a question of law, dependent on 
 the facts.^(a) 
 
 • Conklin v. Thompson, 29 Barb. * Robinson v. Green, 5 Ilarring. 
 218. 115. 
 
 (a) The question, whether money was borrowed by one partner on his 
 own credit and for his private use, or on the credit and for the use of the 
 firm, is for the jury. "Webster v. Stearns, 44 N. H. 498. In an action 
 against a firm, the defendants read the deposition of a clerk, who was 
 alleged by the plaintiff's to be a secret partner. Held, there was no error 
 in leaving to the jury to find whether the clerk was a partner, they being 
 instructed to disregard his testimony if they so found. Hunter v. Hub- 
 bard, 26 Tex. 537. Where the members of a firm agreed that one should 
 take the assets and pay the debts, and the issue is whether he is bound 
 to pay the others the indebtedness of the firm to them ; the question, 
 ■whether any agreement to that effect was made, should be submitted to 
 the jury. Carl v. Knott, 16 Iowa, 379. 
 
 Whether there is sufficient proof of agency to warrant the admission 
 of the acts and declarations of the agent in evidence, is a preliminary 
 question for the court. Cliquot's, 3 Wall. 114. Where a charterer of a 
 vessel requests a salt merchant, who is also an agent of his, to load it 
 with salt, which is done, the agent taking the mate's receipts in his own 
 name; it is a question for the jury, whether the agent, by delivery of the 
 salt on board, parted with the possession, and vested the property in the 
 charterer, the question depending upon the intention of the agent. Falk 
 V. Fletcher, 18 C. B. (N. S.) 403. Judgment for the plaintiffs was re- 
 versed, where the agency of the defendant was a material fact, and the 
 charge was such, as to lead the jury to conclude that the question of 
 agency was not for them. Hart v. Girard, .56 Penn. St. 23. Where, in 
 replevin for lumber sold by an agent, the nature and extent of the agency 
 are contested, a letter from the principal to the agent, bearing upon the
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 347 
 
 § 122. As may be gathered from some of the illustra- 
 tions already adduced, mixed questions of law and fact 
 
 scope of his authority, is admissible, but its effect is a question of fact 
 for the jury. Slonecker v. Garrett, 48 Penn. 415. 
 
 In an action by a town against recruiting agents to recover back money 
 paid them, it being a material question whether the defendants had au- 
 thority to engage men to enter the military service and be credited on 
 the quota of the town ; held, the question should have been submitted to 
 the jury. Hart v. Girard, 56 Penn. St. 23. So where a person enlisted 
 as a nine months' volunteer, and on the same day was mustered into ser- 
 vice as assistant surgeon of a three years' regiment, it is a question for 
 the jury whether, under all the evidence, he ever so engaged to serve for 
 nine months, as to entitle the town from which he came to claim him as 
 one of its quota. Stone v. Danbury, 46 N. H. 139. A corporation en- 
 gaged in the transportation of freight undertook to unload coal from a 
 vessel upon its cars, and hired A. to superintend the unloading and load- 
 ing, who employed B., who was injured by a car being backed down upon 
 him by the servants of the corporation. Held, an instruction to the jury, 
 in an action by B. against the corporation, that, if A. had the full con- 
 trol of employing or discharging B., B. was not a servant of the corpo- 
 ration, and it was a question of fact for the jury whether B. was or was 
 not a servant of the corporation, was correct. Burke v. Norwich, 34 
 Conn. 474. 
 
 The question whether there has been a sale is for the jury. McClung 
 V. Kelley, 21 Iowa, 508. So, in an action for non-delivery of goods under 
 a cash trade, the question of readiness and ability to pay. Cumraings v. 
 Tilton, 44 111. 172. Where one bid off a parcel of wheat at auction, and 
 another gave his note for it, in compliance with his terms at the time; it 
 was properly left to the jury to determine, whether the latter intended 
 to become the purchaser, or a surety for the bidder. Thompson v. An- 
 drews, 8 Jones, L. 453. In an action to recover back money paid for a 
 table, there was evidence that the plaintiffs made a contract in writing with 
 the defendant, that he should manufacture the table, to be delivered on 
 a wharf, ready for shipment. Afterwards they notified him that, having 
 a vessel ready to sail, they would receive the table. He offered testi- 
 mony, that he notified them that it was finished and ready for shipment, 
 and afterwards proposed to dispose of it otherwise, to which they objected, 
 claiming it for shipment. A bill for the table was presented and paid by 
 them, and they were informed that the table was ready, and replied that 
 they would give notice when they had a vessel ready, to which no objec-
 
 348 , THE LAW OF NEW TRIALS. [CIl. XI. 
 
 necessarily go to the jury, under the instructions of the 
 court. If these be deemed by the party insufficient, he 
 sliould move at the time for specific instructions, in order 
 to Lay the foundation for exception.^ The charge should 
 be confined to the case made out in proof; but, when there 
 is testimony tending to raise a question, it is not for the 
 court to pass on its sufliciency, but to leave it to the jury, 
 merely declaring its eflect in law.' 
 
 § 123. It is ground of new trial, that the judge fails to 
 instruct the jury as to the legal meaning of a technical 
 term. As where, in an action for use and occupation, the 
 jury were instructed that the plaintiff need not show 
 actual, but only constructive, occupation. The judge should 
 have explained the meaning of the term constructive.^ 
 
 § 124. "What constitutes a common carrier is a question 
 of law; whether a person comes under the definition is 
 one of fact." So the meaning of the phrase in a building 
 contract, "when the walls shall be completed," is a ques- 
 tion of law for the court, and whether the necessary acts 
 were done is a question for the jury.' 
 
 § 125. It is a question of law for the court, whether 
 certain articles for which an infant is sued are within the 
 class of necessaries. While it is for the jury to determine 
 whether the articles were under the circumstances neces- 
 sary /or him.^ 
 
 I Kent V. Tyson, 30 X. IT. 121. . « -Worcester, &c. v. ILarding, 11 
 
 « Goodall V. Thurmau, 1 Head, Cash. 28"). 
 
 209. •* Swift V. Bonnott, 10 Cnsh. 436 ; 
 
 3 Towne t). D'TIeinrich, 13 Com. Merriam v. Cuuningham, 11 ib. 
 
 B. (4 J. Scott) 8'.)1. 40. 
 
 « Pennewill n. CuUen, 5 Harring. 
 238. 
 
 tion was made by him, and while thus in his custody it was burnt. Held, 
 the question whether the property had passed to thcni should have been 
 left to the jury. Weld v. Came, 98 Mass. 152.
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 349 
 
 § 126. Among the most frequent questions, involving 
 to some extent both law and fact, are those of /mM<i.(rt) 
 The prevailing rule is, that fraud is always a question for 
 the jury. Thus a new trial was granted, where the jury 
 were instructed, that a deed executed by parent to child, 
 in consideration of natural love and affection, was to be 
 deemed in law fraudulent and void against a creditor. 
 The court say: "There is no such thing as fraud in law, 
 as distinguished from fraud in fact."^ 
 
 § 127. The issue being on a party's fraud, the court 
 should instruct the jury as to what constitutes legal 
 fraud.2 But where the evidence is conflicting, it is error 
 to instruct the jury, that if they believe the evidence they 
 must find for the plaintiff.^ Thus the question of fraud- 
 ulent intent in the execution of a voluntary deed is for 
 the jury; and the court has no right to assume that such 
 intent is proved, even if there is a strong tendency of the 
 evidence in that direction.* 
 
 § 127a. In a case where the court would have been 
 authorized to instruct the jury, that a deed for a valuable 
 
 I Per Sutherland, J., Jackson v. » Flack v. Neill, 23 Tex. 253. 
 
 Timmerman, 7 Wend. 43G ; Man- ' Williams v. Hartshorn, 30 Ala. 
 
 ning V. Dove, 10 Rich. 395 ; Fow- 211. 
 
 ler V. Swift, 3 Ind. 1S8 ; Williams * Gardner v. Boothe, 31 Ala. 186. 
 V. Bentley, 29 Peun. 272. 
 
 (a) See Gage v. Parker, 25 Barb. 141; Erwin v. Voorhies, 26 ib. 127; 
 Chenery v. Palmer, 6 Cal. 119; Upson v. Raiford, 29 Ala. 188 ; Howe v. 
 Keeler, 27 Conn. .538. Upon the point whether continued possession of 
 the vendor is frmidulent in laiv or only evidence of fraud, see Bissell 
 V. Hopkins, 3 Cow. 166 ; Sturtevant v. Ballard, 9 John. 338 ; Barrow v. 
 Paxton, 5 John. 261 ; Hall v. Tuttle, 8 Wend. 375 ; Collins v. Brush, 9 
 Wend. 198. Mr. Graham speaks of the " very elaborate and perspicuous 
 decision of the court in Seward v. Jackson, 8 Cow. 406." 1 Graham, 289 
 (abolishing the distinction between fraud in fact and fraud in law, and 
 requiring the question in all cases to be left to the jury. Ace. Jackson 
 V. Peck, 4 Wend. 300).
 
 350 THE LAW OF NEW TRIALS. [CII. XI. 
 
 consideration, made subsequent to a prior voluntary con- 
 veyance of which the grantee had notice, was void, if such 
 an instruction had been asked for; a proviso, added to a 
 prayer, submitting a question of fraud under the contract 
 to the jury, that, if they also find the consideration inade- 
 quate, then the deed is void, though unnecessary, will not 
 vitiate the prayer.^ 
 
 § 1276. AVhere the jury are instructed, that certain cir- 
 cumstances would justify the conclusion, that a convey- 
 ance was fraudulent in fact, in a case where there is no 
 presumption of law to guide them ; this is a summing up 
 of the evidence, not an instruction on a question of law.^ 
 
 § 128. A general charge, that "fraud is not to be pre- 
 sumed, but must be proved by the party alleging it," is 
 insufficient, and calculated to mislead, where there are 
 facts and circumstances tending to prove fraud.^ 
 
 § 129. The question whether a person, buying goods 
 when insolvent, purchased with an honest intention of 
 paying for them and continuing his business, is to be de- 
 cided by the jury from all the circumstances in the case.* 
 Or whether, on facts in evidence, there has been fraud in 
 an assignment of goods.^ Or wdiether a representation as 
 to credit, though not very strong, was false and fraudu- 
 lent, the maker being proved to have known of large in- 
 debtedness of which he made no mention.^ Or whether 
 a conveyance is fraudulent or not.^ Or, if there is any 
 evidence tending to show it, whether a deed was a volun- 
 tary one, and intended to hinder, delay, and defraud cre- 
 ditors.^ So, iu an action for failing to convey real estate, 
 
 ' Baltimore v. Williams, 6 'Md. ^ Church v. D'rmnmond, 7 Ind. 
 
 23.-). 17. 
 
 2 McDermott v. Barnum, 19 Mis. « Zaliriskic v. Smith, H Kern. 322. 
 204. ■' Holniiin v. IMnrtiii. 12 Ind. 5.^3. 
 
 3 Causey v. "VVilcy, 27 Geo. 444. » Graham «. iSniith, 23 Teuu. 323. 
 * Buckley v. Arte r, 21 Barb. 
 
 585.
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 851 
 
 the question, whether the vendor acted bondjide, or wil- 
 fully neglected or refused.^ So the jury, not the court, 
 must decide on the fulness of a dehtor's schedule.^ So in 
 equity, the question, whether the consideration of a con- 
 tract is so grossly inadequate, that a decree of specific 
 performance should he refused, is properly and peculiarly 
 a question for a special jury.^ So where a defendant had 
 represented the water-wheel and shaft of a mill, sold by 
 him, to be sound and new; it was held error to instruct 
 the jury, that, if they had been put in less than two years 
 they were new, and the representation was correct, and 
 subsequent rotting would not render the defendant liable ; 
 since it was for the jury to judge both of their soundness 
 and newness.* So in an exchange of horses, whether the 
 contract was in all respects carried out as to the condition 
 of the animals, is a question for the jury, and their ver- 
 dict will not be disturbed, unless under unusual circum- 
 stances.^ So whether a misrepresentation by an assured 
 be material to the risk or not, is a question for the jury.* 
 So in an action for fraud in the performance of a contract 
 for manufacturing shingles, a trunk of so-called shingles 
 was brought into court, and upon inspection the judge 
 charged that they were not shingles. Held, a new trial 
 should be granted.^ 
 
 § 130. Fraud, however, may sometimes be a question 
 of law. As, under some circumstances, in case of an 
 alleo;ed fraudulent deed.^ So when the facts on wdiich 
 the fraud depends are well pleaded and admitted by de- 
 murrer.^ Though an instruction, relating to a question 
 
 1 Sweem v. Steele, 5 Clarke, 3.i2. ^ Boardraan v. Insurance Co., 20 
 See Powell v. Davis, 19 Tex. 380. N. H. 5ol. 
 
 2 Minis V. Lockett, 20 Geo. 474. ' Morton v. Fairbanks, 11 Pick. 
 
 3 Willcoxon V. Eason, 19 Geo. 368. 
 
 565. ^ Addington v. Elhoriilge, 12 
 
 4 Reynolds v. Cox, 11 Ind. 262. Gratt. 436. 
 
 5 Rhta V. Riner, 21 III. 526. « Garrisli v. Mace, 9 Gray, 236.
 
 352 THE LAAV OF NEW TRIALS. [ciI. XT. 
 
 of fraudulent intent, must be based upon all tlie facts which 
 may be assumed to be proved.'(a) 
 
 ' Ewing V. Gray, 12 Iiul. G4. 
 
 (a) In New York, where the validity of a sale or assignment of goods 
 dopoiids upon whether it was made with intent to hinder, delay, or de- 
 fraud creditors, the judge is bound to submit the case to the jury. (2 R. 
 S. 137, § 4.) Peck v. Grouse, 46 Barb. 151. Where an issue is the 
 fraudulent intent of a sale, the intent is a question for the jury. Miller 
 V. Stewart, 24 Cal. 502. So, whether the presumption of law, that a sale 
 of property, the consideration of which was paid by A., is fraudulent as 
 against his creditors, has been rebutted by the evidence. Foster v. 
 Berkey, 8 Minn. 351. Where a party, in consequence of false and fraud- 
 ulent representations, the false and fraudulent representations being that 
 a corporation " was all right, and would immediately prosecute the deve- 
 lopment of its property," bought certain pretended shares in the corpora- 
 tion, which was fraudulently organized ; held, it was properly left to the 
 jury to interpret these statements under the evidence. Bradley v. Poole, 
 98 Mass. 169. If fraudulent intent is only to be deduced from facts and 
 circumstances, which the law considers as mere badges of fraud, and not 
 fraud per se; these should be submitted to the jury. Thus, in an action 
 against a sheriff for illegally levying on goods claimed by a deed of assign- 
 ment, alleged by the answer to be fraudulent and void. Van Hook v. 
 Walton, 28 Tex. 59. Whether a mortgage was made in good faith to 
 cover future advances, or is a pretended security, is a question for the 
 jury. Tully v. Ilarloe, 35 Cal. 302. So whether a mortgage is given 
 with a fradulent intent, under the (Ind.) statute, ? 21, 1 G. & H. 353. 
 Maple V. Burnside, 22 Ind. 139. Where one laid out a plan of lots and 
 sold them at auction, and a lithographed map was exhibited to the bid- 
 ders, upon which the lots and streets were delineated, but the streets 
 were not thus laid out ; held, the question, whether there was a misrepre- 
 sentation of the existence of the streets, and their materiality to the 
 purchaser such as would justify a detention of any part of the purchase- 
 money, should have been submitted to the jury. McCall v. Davis, 56 
 Penn. 431. In an action for fraudulently obtaining a farm from the 
 plaintiff in exchange for worthless railroad stock ; assuming that the 
 pleadings were sufficient, or that they should have been amended, held, 
 the court erred in granting a nonsuit, and in refusing to submit to the 
 jury the question of fraudulent representations, as to the soundness and 
 solvency of the company. So, although the plaintiff was somewhat ac- 
 quainted with the affairs of the company, it was a question for the jury, 
 whether in taking the stock he was governed in whole or in part by his
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 353 
 
 § 131. Malice is in general a question of fact for the 
 jury. Thus, in an action for the service of a process upon 
 the plaintiff, the instruction was, that "the manner in 
 
 own knowledge, or by the representations of the defendant, who was 
 fiscal agent of the company, and in a position to know its character and 
 financial condition. Also, whether the representations made by the de- 
 fendant some time prior to the making of the agreement, the principal 
 one, on the same day, were designed to influence, and did influence, the 
 plaintifi", and whether they were made in reference to the contract. Yates 
 V. Alden, 41 Barb. 172. A charge, that there is a presumption of fraud 
 when the vendor remains in possession after the sale, is not a violation 
 of a statute which provides that the judge shall not charge on the weight 
 of evidence or testimony, the presumption in this case being a legal infe- 
 rence. Gibson v. Hill, 21 Tex. 225. Where at a judicial sale of personal 
 property the only bid ofiiered was by the auctioneer, who sold by direc- 
 tion and in presence of the officer, and the property was struck down at 
 much below its value, in consequence, as alleged, of the purchaser's false 
 representations, which deterred others from bidding ; the question of fraud- 
 ulent intent was for the jury. Brotherline v. Swires, 48 Penn. 68. In 
 trover to recover property from one who purchased it of A., the plaintiff 
 standing by and making statements in regard to it ; held, whether the 
 purchaser was induced to buy by the declarations or acts of the plaintiff, 
 the true owner, was a question for the jury. Mason v. "Williams, 8 Jones, 
 L. 478. Where the defence to an action on an insurance policy is, that 
 the insured represented that the value was much more than it was ; wheth- 
 er there was any such misrepresentation, and, if so, whether it was 
 material to the contract, is a question for the jury. Keeler v. Niagara, 
 16 Wis. .523. So whether the recording of a deed by the vendee is evi- 
 dence of fraud. Fairly v. Fairly, 38 Miss. 280. Fraud, and fraudulent 
 intent, are always questions for the jury ; and, although there are cases 
 where it is said the law presumes fraud from certain acts, yet that pre- 
 sumption is only the conclusion of the law upon the facts as they are 
 proved. Wakeman v. Dalley, 44 Barb. 498. The " possession or appa- 
 rent possession" of a vendor or mortgagor, under the bills of sale act (17 
 & 18 Vict. c. 26), is, in general, a question of fact. Gough v. Everard, 
 2 Hurl. & Colt. 1. Where parties to a contract of sale have appointed 
 an arbiter to measure the merchandise agreed to be sold, and have con- 
 tracted that payment shall be made according to such measurement, they 
 are bound by it. In the absence of fraud, every presumption is in favor 
 of its accuracy; and it is error to submit to the jury the question of mis- 
 take or fraud, without evidence from which it could fairly be inferred. 
 Herdic v. Bilger, 47 Penn. 60. 
 
 23
 
 354 THE LAW OF NEW TRIALS. [CH. XI. 
 
 which the warrant was executed, and the property used, 
 is evidence to show malice, and may be taken into con- 
 Bideration in enliancing damages." Held, ground of new 
 trial, because it assumes the facts, and treats the question 
 of malice as a question of law.^ So whether a tree in a 
 highway, cut down by the overseer, obstructed the road, 
 or whether it was cut down wantonly or maliciously, are 
 questions for the jury.^ So the question of malice, in the 
 trial of an indictment against a magistrate for official 
 misdemeanor, ^(a) 
 
 § 132. Whether a publication, charged as libellous, was 
 uttered of and concerning the plaintiff, is a question for 
 the jury.^ But, in an action of slander, it is the province 
 of the court and not the jury to determine what expres- 
 sions were slanderous, and it is error to charge "that, if 
 the i)laintiff hud proved the speaking of any of the slan- 
 derous words charged in the petition, they should find for 
 him."^ 
 
 § 133. " The question of ])rohahle cause, in an action for 
 malicious prosecution, more especially where the testi- 
 mony is conflicting, is a mixed question of law and fact. 
 "Where the facts are uncontested, it is the duty of the 
 judge to apply the law and determine the issue. If there 
 are contested facts, he should charge the jury hypotheti- 
 cally, upon the state of facts claimed by each party."^ 
 More especially if counsel demand specific instructions on 
 
 1 Sherman v. Duth, Ifi 111. 283. s Estham «. Curd, 15 B. Mon. 
 
 Ace. KofTcrs V. West, 9 Ind. 400. 103. 
 
 8 Winter v. Peterson, 4 Zabr. *• 1 Ililliard on Torts, 3d ed., 
 
 524. chap. ir>, ^5 23. (See ib. and scqu. 
 
 s State V. Allen, 22 Mia. 318. lor the somewhat nice distinctions 
 
 * Green v. Tell'air, 20 Barb. 11. upon this subject.) 
 
 (a) In an action for maliciously ejecting the plaintiff from a car, where 
 the evidence is conflicting, the question, whether the plaintiff was on the 
 car as a passenger, and was pushed off, or was there without right, and 
 dropped off, is for the jury. Meyer v. Second Av. Co., 8 Bosw. 305.
 
 en. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 355 
 
 the faets.^ So where a plea alleges reasonable and proba- 
 ble cause, the court is bound to instruct the jury what 
 allegations are sufficient ; and if the sufficient allegations 
 are proved, but others are not, the case should be sub- 
 mitted upon the former.^ Whether the circumstances 
 alleged to show the cause probable are true, is a question 
 for the jury ; but whether, supposing them to be true, they 
 amount to probable cause, is a question of law.^ Malice 
 is a question for the jury; probable cause, upon facts estab- 
 lished, a question of law. The judge may either order a 
 nonsuit, or direct a verdict for the defendant, if, in his 
 opinion, the facts admitted or clearly established are not 
 sufficient to prove a want of probable cause, notwithstand- 
 ino- evidence in defence has been introduced.^ 
 
 § 134. A new trial will not be granted for leaving to 
 the j ury a question of negligence.^ And it is error for the 
 court to say what particular act is negligence.^ So, in an 
 action on the case for negligence, the peculiar circum- 
 stances of the case cannot be ascertained by the court, 
 but must be referred to the jury.^ Thus the reasonable 
 diligence of an agent is a question for the jury.^ So 
 whether a town has used ordinary care in the construction 
 of its roads, and whether they are reasonably safe.^ So a 
 gate, constructed by a railroad company at a crossing, 
 having got out of repair, the adjoining proprietor, with, 
 out giving notice to the company, took measures to secure 
 it, which proved ineiiectual ; and his cattle escaped throucrh 
 it and were killed. Held, that whether the mode adopted 
 
 ' Laugliliu V. Clawson, 27 Penn. ^ Walker v. Herron, 23 Tex. 55. 
 
 328. See Hall v. Lowell, 10 Cusli. 260 ; 
 
 2 Jones V. Williamson, 6 C. B. Pennsylvania, &c., v. Osiier, 35 
 
 (N. S.)924. Penn. 60; Zemp v. Wilmington, 
 
 * Humphries ■«. Parker, 52 Maine, &c., 9 Rich. 84. 
 
 502. 7 Holmes v. Watson, 29 Penn. 
 
 * Cooper V. Waldron, 50 Maine, 457. 
 
 80. 8 Watson v. Walker, 33 N. H. 
 
 5 Fremantle v. London, &c., 10 131. 
 
 Com. B. N. S. 88. s Hall v. LoweU, 10 Cush. 260.
 
 Pj56 the law of new trials. [cii. xi. 
 
 ^vas reasonably judicious, and whether the plaintitl' was 
 culpahly negligent, in not taking away and securing his 
 <'attle, wlien he had reason to suppose there was danger 
 of their getting on the track, or in having failed to give 
 notice to the company of the defect; w^ere questions of 
 fact properly submitted to the jury.' So, in an action for 
 injury caused by the overturning of a coach, it appeared 
 that the driver ran u[)on a bank ; that he had passed the 
 spot twelve hours before, but a landmark had since been 
 taken away. The judge charged that, as there was no 
 obstruction to the road, the driver ought to have kept 
 within the limits of it, and, as the injury was caused by 
 liis deviation, the plaintiff should have a verdict. Held^ 
 there should be a new^ trial. It was a question for the 
 iury.2 ^o in an action by a landlord against his tenant 
 for opening a new^ door, thus prejudicing the reversionary 
 interest, the judge ordered a verdict for only nominal 
 damages. Held, a question for the jury.^ So, where there 
 is a collision between vessels lying at anchor and a pass- 
 ing steamer, it is for the jury to find, wdiether the injury 
 arose from negligence of the defendants, in not having suffi- 
 cient and proper means to prevent it." So whether the 
 adoption, by a railroad company, of an improvement en- 
 hancing the safety of passengers, is under the evidence a 
 necessary and proper precaution.'^ Or whether a manda- 
 tory or bailee has been guilty of gross negligence.^ So 
 of the question of negligence, in an action against a com- 
 mon carrier of passengers.^ 
 
 § 135. So unfaithfulness is a question for the jury.^ 
 
 § 136. But it is held to be a question of law, what 
 
 « Pnlor r. Now York, tl'C, 16 N. ^ iTogeman v. Western, &c., 3 
 
 y. (2 Smith) 470. Kern. t». 
 
 « Crofts V. Waterhouse, 3 Bing. " Skelley v. Kahn, 17 111. 170. 
 319. T Galena, &c. v. Yarwood, 17 111. 
 
 3 Young V. Spencer, 10 B. & C. 509. 
 145. 6 Berry C.Billings, 47 Maine, 328. 
 
 « Holmes n. Watson, 29 Penn. 
 457.
 
 CH. XL] ERRONEOUS RULINGS OR INSTRUCTIONS. 357 
 
 amounts to negligence.^ Thus, wlieii an overseer is dis- 
 charged by his employer for misconduct ; whether the 
 misconduct complained of was a sufficient ground for 
 discharging, is a question for the court.^ So whether cer- 
 tain facts and evidence set out on record show due dili- 
 gence in notifying parties to a bill or note.^ So whether 
 property levied on has been sold in a proper manner; and 
 it is error to leave this to the jury."* So what is a proper 
 precautionary measure in itself, uninfluenced by rule, 
 usage, or custom, to avoid steamboat collisions.' Hence, 
 in some cases of actions for negligence, the court may pass 
 upon the question, and order a verdict for the plaintifl'.^ 
 Or, on the other hand, more especially where the plaintifl[' 
 has by his own showing himself been guilty of negli- 
 gence, may order a nonsuit.^ 
 
 § 136a. Accordingly, as in reference to other grounds 
 of action already considered, it may properly be said, that 
 negligence is a mixed question., of law, and facts for the 
 jury to find, under the direction of the court as to what 
 facts must be found to constitute negligence in law; and, 
 if they find negligence, it will be presumed that they be- 
 lieved such facts found.^ In other words, what facts and 
 circumstances constitute evidence of carelessness, is a 
 question of law. But what particular weight the jury 
 will give to these facts and circumstances, is a matter for 
 the jury.^ Negligence is, in general, a conclusion from 
 the facts, to be drawn by the jury, under proper instruc- 
 
 > BrocktJ.King, 3 Jones,45. See ' ib.; Holden ?;. Liverpool, &c., 
 
 Briijo-s V. Taylor, 2 Wms. 180. 3 Com. B. 1. 
 
 2'Hendrickson v. Anderson, 5 * Purvis v. Coleman, 1 Bosw. 
 
 Jones, 246. 321 ; Per Bell, J., Morris v. Litch- 
 
 3 Early «. Preston, 1 P. &. II. field, 35 N. H. 277; Iluyett v. Phi- 
 
 (Va.) 228. ladelphia, &c., 23 Penn. 373 ; Old- 
 
 » Bevan v. Byrd, 3 Jones, 397. field v. N. Y., &c., 3 E. D. Smith, 
 
 5 Iloiiers V. McCune, 19 Mis. 557. 103. 
 
 6 1 liilliard on Torts, 3d ed. 117 ; s Gerke v. California, &c., 9 Cal. 
 Templeman v. Ilaydou, 12 Com. B. 251. 
 
 507.
 
 358 THE LAW OF NEW TRIALS. [ciI. XI. 
 
 tions.' Though the facts of a case may so clearly prove 
 nei^ligence, as to render it the duty of the court to pro- 
 nounce upon them as matter of law ; yet, in cases of con- 
 troverted facts, the existence or non-existence of which 
 may fairly be presumed to affect the mind in a given exi- 
 gency, the question of the character of the acts, whether 
 negligent or otherwise, is necessarily for the jury.^ Ques- 
 tions of mixed law and fact, such as diligence, due care, 
 skill, &c., are for the jury, under proper instructions from 
 the court as to the law. The court may state, hypothe- 
 tically, whether or not the facts if established support 
 the allegation ; or the jury may find the facts, specifically, 
 and the court will apply the law. The jury cannot deter- 
 mine by what law their decision shall be governed.^ Thus, 
 in an action against an engineer for an erroneous survey, 
 it is a question for the court what degree of care and 
 skill would absolve him, but the jury must determine the 
 amount of care and skill used.'' So the question, what 
 constitutes due diligence in the prosecution of a claim, on 
 the facts, is for the court. If the diligence depends on a 
 fact, the jury may be instructed that it exists or not, as 
 they may find that fact.*(rt) 
 
 ' Langhofft). Milwaukee, 19 Wis. » Whirlcy v. Whitcman, 1 Head, 
 
 489. ' CIO. 
 
 2 Pennsj'lvania, &c. v. Ogier, 35 ♦ McCarty v. Bauer, 3 Kans. 237. 
 
 Penn. 60. ^ Brown v. Brooks, 25 Penu. 210. 
 
 (a) In an action to recover damages from a railroad for the death of a 
 person run over by its cars, the question of negligence was for the jury. 
 Baltimore v. State, 29 Md. 252, 460 ; Northern v. State, ib. 420. So in 
 an action for injury to a passenger, owing to its trains running off the 
 track. Wright v. Georgia, 34 Ga. 330. So, in an action for killing an 
 animal by neglect to comply with the statute in sounding a bell or 
 whistle ; the rate of speed and the place where, whether after or before 
 the crossing. Toledo v. Foster, 43 111. 415. So whether the defendant, 
 in an action against a carrier for injuries resulting from the overturning 
 of a coach in which the plaintiff was a passenger, was guilty of gross 
 negligence, and liable to exemplary damages. AVilliamson v. AVcstern. 
 24 Iowa, 171. At the trial of an indictment against a railroad, uuder a
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUOTIONS. - 359 
 
 § 1366. The court should not instruct the jury that cer- 
 tain acts constitute an obstruction, and are an illegal use of 
 a street.' So whether a bridge is an obstruction to navi- 
 
 ' Lackland v. North, 34 Mis. 359. 
 
 statute imposing a penalty for negligence in certain cases, the court 
 should not take the case from the jury, on the defendant's motion, where 
 there is more than a mere scintilla of evidence of negligence. Com. v. 
 Fitchburg, 10 Allen, 189. Whether a sidewalk is sufficiently safe and 
 suitable, so as to relieve a municipal corporation from liability for negli- 
 gence, is a question of fact for the jury, or at most a mixed question, to 
 be submitted to the jury, unless there is a demurrer to the evidence. St. 
 Paul V. Kuby, 8 Min. 154. Also the question of negligence on the part 
 of the plaintiff. lb. It is held that a judge may properly define the 
 facts constituting negligence, and leave it to the jury whether such facts 
 took place. Catawissa v. Armstrong, 52 Penn. 282. But negligence and 
 unskilfulness are held matters of fact, and their existence a question for 
 the jury. A court cannot direct a jury, that such or such supposed facts 
 show or do not show negligence. Huelsenkamp v. Citizens, 34 Mis. 45. 
 In trover, a charge, leaving it to the jury to say whether "they were 
 satisfied that the defendant had sufficiently accounted for his neglect or 
 refusal to deliver the property," &c., without informing them what facts 
 would in law constitute an excuse, is too indefinite. Gragg v. Hull, 41 
 Yt. 217. To warrant the court in instructing the jury that the plaintiff 
 was guilty of negligence, the case must be very clear, and warrant no 
 other inference. Detroit v. Yan Steinburg, 17 Mich. 99. In a suit 
 against a railroad for injuries, the question, whether the plaintiff was 
 guilty of culpable negligence, is ordinarily for the jury. Occasionally 
 his misconduct is so clear, that the judges are bound to pass on the ques- 
 tion of negligence as matter of law, and order a nonsuit. But where 
 there is any conflict in the evidence, or any inferences to be deduced from 
 the proof, in regard to which there is room for honest difference of opinion 
 between intelligent and upright men, the issue should be submitted to 
 the jury. Ernst v. Hudson, 35 N. Y. 9. It is a question for the jury, 
 whether a party exercises proper care in attempting to cross a bridge in 
 a totally dark night, without a light. Swift v. Newburg, 36 Yt. 355. 
 So whether the omission of a guest to fasten the fan-light over his door 
 at night, which is too narrow to allow a person to pass through, together 
 with his use of the fastenings of the door, constituted negligence, in an 
 action against an innkeeper for the value of articles stolen from the room 
 at night. Ramaley v. Leland, 6 Rob. (N. Y.) 358. In an action to re- 
 recover for false representations made by a vendor of a lease, as to the 
 amount of rent reserved by it, the question whether the plaintiff, in omit
 
 360 THE LAW OF NEW TRIALS. [CH. XI. 
 
 gation is a question of fact.^ So whether a fence, which 
 encroaches on a highway, is a nuisance.^ 
 
 > Selman v. Wolfe, 27 Tex. G8. 561 ; Blanc v. Klumpke, 29 Cal. 
 2 Griffith V. McCullum, 46 Barb, 156. 
 
 ting to examine the lease when it was laid before him at the time the 
 bargain was closed, was wanting in care and prudence, so as to defeat 
 his right to recover, is a question for the court. Clark v. llankin, 46 
 Barb. 570. The question, whether a boy of ten years of age has suffi- 
 cient capacity to take care of himself to justify his parents in allowing 
 him to be in the streets of a city after dark, is for the jury. Lovett v. 
 Salem, 9 Allen, 557. In an action for injuries caused by a defective 
 highway, it is a question for the jury whether the plaintiff's own conduct 
 contributed to his injury. Hill v. New Haven, 37 Vt. 501. If it is the 
 duty of a servant of a railroad to uncouple the cars, and this cannot 
 easily be done while the train is still, and he, in endeavoring to uncouple 
 them while the train is in motion, steps between the cars, and meets with 
 an injury which is caused by a want of repair of the road-bed ; the court 
 cannot rule, as matter of law, that he was careless, but should submit 
 the question to the jury, although he continued in the employment of 
 the company after he knew of the defect. Snow v. Housatonic, 8 Allen, 
 441. In an action against a railroad for negligence in transporting nur- 
 sery stock, it was for the jury to determine, upon the evidence, whether 
 the company was guilty of negligence, and whether the damaged condi- 
 tion in which the stock was afterwards found resulted from that negli- 
 gence. Congar v. Galena, 17 Wis. 477. In actions for injuries received 
 by being run over, negligence, whether on the part of the plaintiff" or 
 defendant, is a question for the jury. Unless the proof of negligence on 
 the part of the plaintiff" is so strong, that the court would set aside a 
 verdict in his favor as being clearly against the weight of evidence ; it is 
 not proper to grant a nonsuit. Williams v. O'Kcefe, 9 Bosw. 536; Smith 
 V. O'Connor, 48 Penn. 218. When the testimony in regard to negligence 
 causing death is all one way, or when all the plaintiff"'s evidence has been 
 put in, and has no tendency to prove negligence, and there is no question 
 as to the credibility of the witnesses; the court may determine the whole 
 case as a question of law. Bolaiid v. Missouri, 36 Mis. 484. In an action 
 against a sheriff" for negligence in executing afi./a., it is a question for 
 the jury, whether the neglect to levy upon articles of a perishable nature 
 caused any damage to the plaintiff. State v. Gemmill, 1 Houst. 9. A. 
 executed a note to B., giving a lien upon a boat to secure payment. B. 
 transferred the note and lion to C, guaranteeing to pay it if C. failed to 
 get pay on it from the maker, after the use of all proper and reasonable
 
 en. XI.] ERRONEOUS RULINOS OR INSTRUCTIONS. 361 
 
 § 136(7. What constitutes cruel treatment, is a question 
 of law, when a divorce is sought on that ground.^ 
 
 § 137. Waiver is sometimes held to be a mixed question 
 of law and fact.^ What constitutes an implied waiver of 
 a vendor's lien, is a question of law.^ So whether there 
 is evidence sufficient to establish a waiver, by the presi- 
 dent of an insurance company, of preliminary proof of 
 loss under a policy.* 
 
 § 138. But, where, on an equivocal state of facts, the 
 court instructed the jury, as a conclusion of law, that 
 there was a waiver, the judgment was reversed on error.^ 
 So whether a demand was objected to when rendered, is 
 a question for the jury.^ Or whether presentment of a 
 bill was waived.^ So A. presented his claim, for allow- 
 ance out of an intestate's estate, to the probate court. 
 B., the administrator, pleaded, that A. had never delivered 
 to him a copy thereof. A. demurred, because B. did not 
 assert that he (B.) had not waived his right to such copy. 
 Held, whether the facts and circumstances shown in evi- 
 dence amounted to a waiver of the copy, was matter for 
 the jury. -(a) 
 
 ' Gliolston V. Gholston, 31 Ga. ^ Traynor v. Johnson, 1 Head, 
 
 625. 51. 
 
 2 Traynor v. Johnson, 1 Head, ^ Field v. Reid, 21 Geo. 314. 
 
 51. ' Curtiss V. Martin, 20 111. 557. 
 
 » Mims V. Lockett, 23 Geo. 287. « Grimes v. Bush, 16 Ark. 647. 
 
 * Spring Garden, &c. v. Evans, 
 9 Md. 1. 
 
 means. Held, C. should make all reasonable endeavors to get the money 
 by enforcing the lien, before resorting to the guarantor, and it was a 
 question for the jury whether he had made such endeavors. Brainard v. 
 Martin, 36 Vt. 614. 
 
 (a) Whether a landlord acquiesced in au arbitration in which his land 
 was in dispute between his tenant and a stranger, so as to be bound by 
 it, is a question of fact. Proof that he attended the arbitration as a 
 witness, and did not on that occasion object to the proceeding, is not in 
 law proof of such acquiescence. Russell v. AUard, 18 N. H. 222. The
 
 8G2 THE LAW OF NEW TRIALS. [CH. XI. 
 
 § 139. "Wc now proceed to a more particular considera- 
 tion of instructions relating to the testimony: including the 
 credit of witnesses; the weight of evidence, positively 
 and comparatively; and many miscellaneous points which 
 lull under the same general head. The cases are of great 
 variety, and not easily classified, or always reconcilable. 
 
 § 139a. The credit of a witness is a question for the jury.^ 
 (See §§ 144, 154.) More especially, it is not a question 
 for the appellate court.^(a) 
 
 § 140. A new trial will be granted for a charge, that, 
 if the jury believed the testimony of a certain witness, 
 they ought to find for the defendant; other evidence 
 having been ottered.^ 
 
 § 141. It is error for the court to instruct, that the 
 direct and positive knowledge of one is better than the 
 
 ' Stacy V. Cobbs, 3G 111. 340 ; v. The State, 37 ib. 383 ; Coats e. 
 
 People V. Barry, 31 Gal. 357 ; Dick- Elliott, 23 Tex. 606 ; Andersou «. 
 
 insoii V. Loveil, 3.') N. H. J) ; Mc- Anderson, ib. 031>. 
 
 Pherson v. State, 22 Geo. 478 ; Peo- 2 Wilcox 0. Bootlie, 19 Ark. 684. 
 
 pie V. .Tenness, T-> Mich. 305 ; Ri,£^>>:s » Tufla v. Seabury, 11 Pick. 140. 
 V. State, 30 Miss. 635; Newcomb 
 
 question, whether an actual tender is dispensed with, is for the jury, where 
 one party, for the fraud of the other, has rescinded a contract, and is 
 willing and ready to return what he has received, but is prevented by 
 the declarations of the other party, that he will not receive it. Wheelden 
 V. Lowell, .'iO Maine, 499. 
 
 (a) In New York, where there is a question as to the credibility of 
 witnesses, and considerable evidence in conflict with their testimony, and 
 there are various exceptions in regard to the admissibility of testimony; 
 it is not proper for the judge at the circuit to take the case from the 
 jury, and direct a verdict subject to the opinion of the court at general 
 term. Sackett v. Spencer, 29 Barb. 180. Where evidence has been 
 treated in the arguments of counsel on both sides as bearing only on the 
 credit of a witness, and the court has charged accordingly; no exception 
 lies to a refusal of a retiuest, made for the first time after the charge has 
 been given, to instruct the jury to consider the evidence as evidence in 
 chief. Wilmot v. Howard, 39 Vt. 447.
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 363 
 
 doubtful recollection of ten; the question is peculiarly one 
 for the jury alone.^ 
 
 § 142. But, in an action for fraudulent representations 
 on the sale of land, instructions to the jury, that, " if the 
 only testimony in relation to the quality of the land was 
 such representations as might be detailed to them by 
 witnesses, uncorroborated by anything in writing, or any 
 facts surrounding the transaction, such evidence should 
 be looked to carefully by the jury ;" and that "the decla- 
 rations and representations of the defendant, in regard to 
 the quality or condition of the land, during the trade, are 
 important evidence, and should be considered by the 
 jury ;" — were held to be proper.^ So, where two witnesses 
 for the defendant, who set up a justification in an action 
 for slander, were contradicted by four for the plaintiiF, 
 and the judge charged, that, being thus contradicted, 
 the former were not to be believed ; although the question 
 was for the jury, yet, as they ought to have come to the 
 same conclusions, a new trial was refused.' 
 
 § 143. Unless there be some reason why the judge 
 should remark particularly on the testimony of a witness, 
 be may decline to comply with a request to do so.* A 
 charge to disbelieve a witness is ground of new trial.' 
 And, on the other hand, the court in its charge may make 
 an explanation, protecting a witness from unjust animad- 
 version of counsel ; especially where the erroneous ruling 
 of the court had aflbrded the occasion of such animad- 
 version.^ So a eulogy on a witness in the charge is not 
 a ground for new trial, if the bill of exceptions shows 
 that such witness was unimpeachable.^ 
 
 ' Dnnlap v. Hcarn, 37 Miss. 471. ^ Morris v. Brickley, 1 Har. «& 
 
 2 Likes V. Baer, 8 Clarke (Iowa), G. 107. 
 
 368. ^ t^tate «. Wbit, 5 Jones, 224. 
 
 3 Woodbeck v. Keller, 6 Cow. ' The Slate v. Harris, 1 Jones, 
 118. 190. 
 
 * Findly v. Ray, 5 Jones, 125.
 
 >■ 
 
 364 THE l'aw of new trials. [CII. XL 
 
 § 144. Whenever a person is held competent, and 
 allowed to testify, as we have seen (§ 139«), the jury are 
 the exclusive judges of his credibility. And it is error 
 to instruct the jury, "that, if they believe any witness 
 has sworn falsely and knowingly as to any material fact, 
 they are bound to disregard his testimony altogether."X«) 
 
 » Lett on V. Young, 2 Met. (Ky.) 558; McCraryB.Crandall, 1 Clarke, 
 
 117. 
 
 (a) A witness was strongly impeached in part by his own admission, 
 but the judge merely stated to the jury that his testimony was compe- 
 tent, and they might give it such weight as 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 
 exercising it. The court ought to have charged the jury, that the testi- 
 mony of Fuller was so strongly impeached as to justify them in disre- 
 garding it altogether ; the unsupported testimony of a single witness, 
 who swore, at one time, in direct contradiction to the testimony given by 
 him at another, in relation to the same transaction, was not entitled to 
 credit, and ought not to be regarded." Per Woodworth, J., Dunlop v. 
 Patterson, 5 Cow. 243. An instruction that, in order to authorize the 
 jury to disbelieve the testimony of a witness, there must be something in 
 his manner or conduct, in giving his testimony, or in the testimony of 
 other witnesses, sufficient to satisfy the minds of the jury, that what he 
 has stated is false; is erroneous, in that it does not leave the jury at 
 liberty to disbelieve a witness on account of interest. New Orleans v. 
 Allbritton, 38 Miss. 242. An instruction, in an action for slander, that 
 there is " an oddity and want of symmetry in the language sworn to by 
 the defendant which the jury might take into consideration in determin- 
 ing whether the defendant did add said words or not," is not subject to 
 exception. Maybee v. Fisk, 42 Barb. 326. A remark of a judge in re- 
 gard to the respectability of a witness is ground for a new trial, unless 
 the testimony of the witness is immaterial. McMiun v. Whelan, 27 Cal. 
 300. In an action against an indorser of a note, after proof of demand 
 and notice, and the allegation of due notice being controverted, it is no 
 ground of exception, that the judge called the attention of the jury to 
 the fact that the defendant did not testify, as a matter that they might 
 consider, and give it such weight as they thought it might deserve. Union 
 Bank v. Stone, 50 Maine, 595. Where the testimony of a witness for 
 the plaintiff and that of the defendant were in direct conflict, and the 
 former was supported by another witness, it was error for the court to 
 instruct the jury, that, if they believed that the first two witnesses were
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 365 
 
 But it is proper to instruct, in such a case, tliat they are 
 to distrust the witness, though they are not to disbelieve 
 him as to other points, if satisfied that he there speaks 
 the truth, ^ So it is not error for the judge to refuse to 
 charge, that the evidence of a witness, who had made a 
 misstatement, must be rejected altogether.^ 
 
 § 144(Z. "Where a judge, in his charge to the jury, after 
 stating that the testimony of a witness is destroyed when 
 his character for truth is impeached, added: " But, if an 
 equal number of witnesses, of equal respectability and 
 means of knowledge, be produced to sustain his reputa- 
 tion, his character will stand as if no impeachment had 
 been made or attempted ;" and that it was " the province 
 of the jury to say, under all the circumstances, whether 
 the witness was impeached or not:" held, no ground for 
 a new trial.^ 
 
 § 145. Where witnesses exhibit feeling and partiality, 
 the judge may comment upon such deportment, as calcu- 
 lated to affect their credit.* So the court may instruct 
 the jury to consider the credibility of a witness who has 
 testified to a forgery by himself, connected with the cause 
 of action.^ 
 
 § 146. Where oral testimony, as to the contents of 
 letters, is put into a case, without objection, or notice 
 
 • McCrary 7). Crandall, 1 Clarke, * State v. Nat, 6 Jones, 114. 
 117. 5 McDauiel v. Walker, 29 Geo. 
 
 2 State v. Noblett, 2 Jones, 418. 266. 
 
 2 Bakeman v. Rose, 18 Wend. 
 146. 
 
 entitled to equal credit, the testimony of the third " created a prepon- 
 derance of testimony in favor of the plaintiff unless there was some fact 
 or evidence tending to corroborate the defendant." A judgment for the 
 plaintiff should be reversed for such error, although the court also charged 
 the jury, generally, that they were the exclusive judges of the credi- 
 bility of witnesses. Ely v. Tesch, 17 Wis. 202.
 
 3G6 THE LAW OF NEW TRIALS. [ClI. XT. 
 
 to produce the letters; the court may properly refuse to 
 instruct the jury, that they are authorized, from non- 
 production of the letters, to regard the oral testimony with 
 suspicion.^ 
 
 § 147. If a statute allows parties to testify, and pro- 
 vides, that the court or jury shall give such weight to 
 their testimony as in view of the situation of the witness 
 and other circumstances it may be fairly entitled to; it is 
 for the jury alone to judge of all the circumstances they 
 choose to notice, and it is error for the court to instruct 
 the jury what circumstances they are to consider, or under 
 what circumstances they must believe the party.^ 
 
 § 148. A new trial cannot be had, for refusal to instruct 
 that " hearsay evidence, or what may be said by parties, 
 which may be given in evidence by witnesses, is, or may 
 be, according to the circumstances, the weakest kind of 
 testimony ;" where such instruction would be necessarily 
 applied to the admissions of the parties.^ 
 
 § 148a. "Where the indignation of the judge led him to 
 characterize, as monstrously infamous, the character of a 
 convicted felon who was chief witness for the prisoner; 
 the court would not grant a new trial therefor.* 
 
 § 1486. "Where a witness could not say, w^hether a con- 
 versation, as to the unsoundness of an animal sold, took 
 place before or after the sale ; an instruction that, on the 
 question of scienter^ the evidence amounted to nothing, 
 was held correct.' 
 
 § 148e. It is not error for a judge to express an opinion 
 as to the comparative weight of the testimony given by two 
 
 ' Claiborne v. Tanner, 18 Tex. ^ Likes v. Baer, 8 Clarlie, 308. 
 68. ^ Sarah «. State, 28 Geo. 570. 
 
 « Allen V. Lyles, 35 Miss. 513. ^ Hiusou v. King, 5 Joues, 393.
 
 CH, XI.] ERKONEOUS RULINGS OR INSTRUCTIONS. 367 
 
 witnesses, and leave the jury to be sole judges, both of the 
 weight of the testimony, and credibility of the witnesses.^ 
 iN'or to charge, that, " if witnesses differ, and all have equal 
 opportunities of knowing the facts about which they tes- 
 tify, then, even if one has sworn affirmatively, the jury 
 are not bound to believe him, but in determining what is 
 correct testimony will look to all the facts and circum- 
 stances of the case."^ So, where discrepancies between 
 the testimony of witnesses for the State, before the coro- 
 ner's inquest, and before the trial jury, were relied on to 
 discredit the witnesses ; a charge that " evidence was often 
 loosely taken, and perhaps no very great weight should 
 be given to these discrepancies," was held no ground for 
 a new trial.^ So instructions were sustained, that a dis- 
 position on the part of a witness, who was the girl seduced, 
 testifying in an action jper quod, by her father, to prevari- 
 cate on immaterial points, should not affect her credit on 
 material points, corroborated by circumstances, or other 
 witnesses; and (upon the defendant's request) that the 
 jury, in estimating her credibility, should compare her 
 testimony given on the bastardy trial, and her former 
 statements, with her present testimony, and should observe 
 her bearing, her own contradictions, and her position with 
 reference to the parties.^ So a remark of the judge, that 
 a discrepancy between the testimony and the former state- 
 ments of a witness seemed naturally enough accounted 
 for, is no ground of new trial.* 
 
 § 149. A new trial will not be granted, in either a civil 
 or criminal case, because the court refused to charge the 
 jury that "they must receive the evidence of verbal con- 
 fessions with great caution."^ 
 
 ' Porter i). Seiler, 23 Penn. 424. ^ Jackson v. Packard, 6 Wend, 
 
 2 Taylor v. Kelly, 31 Ala. 59. 415. 
 
 3 State V. Smith, 10 Rich. 341. e gtate v. Clump, IG Mis. 385. 
 * Richardson v. Fonts, 11 Ind. 
 
 466.
 
 368 THE LAW OF NEW TRIALS. [CH. XI. 
 
 § 150. "Where part of the declarations of a party con- 
 fessed a prima facie cause of action, and another part 
 matter in avoidance; it was held not to be error in the 
 judge, to instruct the jury that they might reject the 
 latter declarations, if they believed them untrue, and find 
 a verdict for the plaintiff on the former part.^ I^or, where 
 evidence was given to the court, in presence of the jury, 
 of confessions illegally obtained, and afterwards the judge 
 rehearsed the evidence thus given, for the purpose of 
 cautioning them against permitting it to have any effect 
 on their minds, except to weaken the force of voluntary 
 confessions subsequently made.^ 
 
 § 151. Evidence given to contradict a witness, and 
 which is competent for that purpose only, ought not to be 
 left to the jury by the court as tending to establish the 
 main allegation of the issue.^ 
 
 § 152. It is no ground of exception, where counsel dis- 
 agree as to the words of a witness, and the recollection of 
 the judge is indistinct; if he states to the jury the re- 
 spective claims of the counsel, and the substance of his 
 own notes, with instructions as to the effect of the words, 
 as claimed on each side.^ 
 
 § 153. It is no ground for a new trial, that the judge 
 charged the jury, upon the question of testamentary capa- 
 city, "that he relied with more confidence upon the 
 opinion of the intelligent physician who attended upon 
 the testator during his last illness, than upon the specu- 
 lative opinions of four physicians who had not seen the 
 testator during his illness, and whose opinions were based 
 upon the nature of his disease."® But a charge that, be- 
 
 > Rankin v. Thomas, 5 Jones, « Fry v. Bennett, 3 Bosw. 200. 
 
 435, 5 Kirkwood ». Gordon, 7 Rich. 
 
 2 State v. Gregory, 5 Jones, 315. 474. 
 » Henson v. King, 2 Jones, 385.
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 869 
 
 cause a witness was a clergyman, therefore his testimony 
 was entitled to more weight, is ground for a new trial.^ 
 So, upon a question of handwriting, experts testified, both 
 from a general knowledge of the party's hand, and from 
 a comparison made in court. The judge instructed the 
 jury, that " the evidence of experts, not acquainted with 
 the party's handwriting, was the lowest kind of evidence." 
 Held, although the instruction was inapplicable, it was 
 likely to mislead the jury.^ 
 
 § 154. It is for the jury to determine what weight is 
 to be given to the statement of a witness. (See §§ 139a, 
 144.)(a) They can judge from his manner of giving tes- 
 timony, from the attendant circumstances, and from the 
 probability of the fact to which he testifies, whether it is 
 true or not.^ So, in the absence of legal presumptions, it 
 is for the jury alone to determine what amount of evi- 
 dence is required to produce conviction in their minds ; 
 and a charge which instructs them, "that in civil cases 
 all that is required is that the proof shall preponderate in 
 favor of one party or the other, and they must find accord- 
 ing to the preponderance of the proof," invades their pro- 
 vince, and is therefore erroneous.'* 
 
 § 155. A charge to the jury in a civil case, that they 
 may find according to the weight of probability, is erro- 
 neous ; the defendant's property is not to be taken upon 
 a balancing of mere probabilities; the evidence must be 
 satisfadojy.^ But an instruction, that the plaintifif must 
 
 1 Sneed v. Creath, 1 Hawks, 309. 241 ; Strozier v. Carroll, 31 Geo. 
 
 2 McGregor v. Armill, 2 Clarke, 557. 
 
 30. ^ Mays v. Williams, 27 Ala. 267. 
 
 3 Cheatham v. Riddle, 12 Tex. ^ Parker v. Johnson, 25 Geo. 
 112 ; State v. Anderson, 19 Mis. 576. 
 
 (a) Under (Mass.) Gen. Sts., c. 115, § 5, the court cannot express an 
 opinion to juries as to the credibility of witnesses. Com. v. Barry, 9 
 Allen, 276. 
 24
 
 370 THE LAW OF NEW TRIALS. [CII. XI. 
 
 prove beyond a "rational donht" the identity of a slave 
 sued for, is not erroneous, as in eivil cases it is the duty 
 of the jury to decide in favor of the party on whose side 
 the weight of evidence prei»onderates, and according to 
 the reasonable probability of the truth. '(«) 
 
 ' Yarbrough v. Arnold, 30 Ark. 592. 
 
 (a) An instnu'tion is erroneous, which states what the testimonj' of a 
 witness is. Southern v. Kendrick, 40 Miss. 874. A court may instruct 
 the jury, that tlie testimony of a witness, if true, will establish a speci- 
 fied fact, leaving the jury to decide upon his credibility. The propriety 
 of such instruction depends on the fulness, certainty, and clearness of his 
 testimony upon the point in issue. Russell v. Ely, 2 Black, 575. It is 
 for the jury to say, whether the evidence is sufficient to establish that 
 the discharge of a trust had been procured by fraud ; and therefore it is 
 error to instruct them that it cannot be established by the testimony of 
 a single witness. Layton v. Hall, 25 Tex. 204. It is error to charge, 
 that the jury must find for the defendant, unless such a thing is positively 
 proved, because this would exclude circumstantial evidence. Glass v. 
 Blalock, 80 Geo. 133. Affirmative testimony is not always preferred 
 before negative, and so to instruct a jury is erroneous. Eockwood v. 
 Poundstone, 38 111. 199. Instruction on trial of an indictment, that, if 
 the jury find that the witness, who had stated a conversation by defen- 
 dants among themselves containing admissions, did not hear all the con- 
 versation between the prisoners, and did not pretend to have understoo<l 
 all they said, her testimony is entitled to much less weight than if she 
 had heard and understood the whole of the conversation upon the same 
 subject; but it is for the jury to say whether she related the words or 
 substance of the language used, and whether such language was in rela- 
 tion to distinct facts, and how far it tends to prove defendants guilty. 
 Held, correct. AVhite v. Walker, 31 111.422. In an action for seduction, 
 .where both the daughter and tlie defendant testify and directly con- 
 tradict each other, and there is testimony tending to sustain her; 
 it is error to instruct the jury that " as to the main fact of sexual inter- 
 course, the daughter affirms it and the defendant denies it, and, if the 
 two seem equally to claim your credence, you cannot, in such case, find 
 for the plaintiff, because, as to that fact, which is radical in the case, 
 there is no preponderance for the plaintiff." Pruitt v. Cox, 21 Ind. 15, 
 Instruction in the trial of an issue as to the genuineness of a deed, " If 
 there is a reasonable theory, consistent with the evidence, by which the 
 iurv can find in favor of the genuineness of the deed, and consistent with 
 the honestv and truthfulness of all the witnesses in the case, it is the
 
 CII. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 371 
 
 § 156. Questions often arise, from communications to 
 the jury, made by the judge out of the regular course of 
 
 duty of the jury to adopt that theory, in preference to one by which per- 
 jury or forgery may be involved on the part of a portion of the witnesses." 
 Held, correct. AVright v. Carillo, 22 Cal. 595. The judge called the 
 attention of the jury to the sworn contradiction of herself by the prin- 
 cipal witness, and said that it was a strong circumstauce tending to dis- 
 credit her testimony on the last trial, but that the amount of credit due 
 to that testimony \vas a question for them to determine, adding, that, if 
 a reasonable doubt arose in their minds, it was their duty to acquit the 
 defendant. Held, correct. Dunn v. People, 29 N. Y. (2 Tiffa.) 523. 
 "When a witness, testifying to material matters, is contradicted by other 
 witnesses, it is not erroneous, where the credibility of the witness is sub- 
 mitted to the jury, to charge them, that, if they believe he has know- 
 ingly sworn falsely in reference to any fact, he is not entitled to be be- 
 lieved in reference to any other fact testified to by him. Roth v. Wells, 
 
 29 N. Y. (2 TifFa.) 471. It was claimed by the defendant's counsel, that 
 certain depositions were guarded and avoided all details, and that the 
 deponents swore to only enough to make out their case. Held, the court 
 properly instructed the jury, that, if they found the depositions subject 
 to this objection, it was a matter that they might take into consideration 
 in weighing the testimony of these witnesses, and that the whole ques- 
 tion of the truth of the depositions was for the jury. Clough v. Patrick, 
 37 Vt. 421. A new trial was ordered, where the court refused to charge 
 that, " if the jury believe from all the evidence that the witness (a prin- 
 cipal one) has testified falsely in respect to any material fact, it is their 
 duty to disregard the whole of her testimony ;" the record showing that 
 the defendant might have been prejudiced by the charge. Campbell v. 
 State, 3 Kans. 488. The withholding the benefits of a legal rule of evi- 
 dence is an error materially prejudicial, in the sense of ? 276 of the 
 Criminal Code. Ibid. It is error to tell the jury that the evidence of 
 two witnesses conflicts, when the conflict is denied. Black v. Thornton, 
 
 30 Geo. 361. A charge to the jury, "You are to consider the conflict- 
 ing evidence and all the circumstances and appearance of the two A.'s 
 testimony and of W.'s testimony, and say. are you satisfied to a reason- 
 able certainty that the A.'s spoke the truth, and that they are not mis- 
 taken ;" is erroneous, as it discriminates against the A.'s. Ibid. "Where 
 there is a conflict of testimony, the court ought to charge the jury, that 
 it is their duty to reconcile the testimony if they can. so that the whole 
 may stand ; but, if irreconcilable, then they must find according to the 
 weight of evidence. Ibid. It is error for the court to give an importance 
 and bearing to evidence to which it is not entitled, and which is calculated 
 to mislead the jury. Ibid,
 
 372 THE LAW OF NEW TRIALS. [CH. XI. 
 
 the trial. Tlic regular time for instructions is in giving 
 the charge to the jury at the close" of the trial.^ A 
 new trial was not granted, where a jury came in, not 
 havino' agreed, and counsel then for the first time 
 asked, certain instructions, which were refused. The 
 court (Poland, C. J.) say : " The rule of practice requires 
 that any sjiecial requests to charge should be presented to 
 the court by the opening of the argument for such party, 
 and though this is not always very rigidly enforced, yet 
 to allow a party under the circumstances of this case, after 
 the jury liad been in consultation on the case, and returned 
 into court disagreed, when the court could have no reason- 
 able time or opportunity for reflection or consideration, to 
 present new requests for instructions, would be wholly in- 
 tolerable. "^ Where the jury had retired, and in a short 
 time returned into court, stating that they could not 
 agree, and asking to be discharged, it being then tw^elve 
 o'clock Saturday night, and the last day of the term; and 
 the court refused to instruct the jury, as requested by the 
 plaintiff, whether the finding on Sabbath morning, after 
 the expiration of the term, would be valid, and whether 
 they were bound longer to deliberate in their room ; but 
 told the jury they had been sworn, and had better do 
 their duty, and requested them to return: held, such re- 
 fusal to instruct was no error.^ It is held that a remark 
 of the judge, in reply to the question of a juror, as to 
 the effect of the verdict upon matters not directly in- 
 volved in the suit, is no ground of exception, if substan- 
 tial justice is done, even though the jury may have been 
 influenced by such remark.* So where a jury could not 
 agree, and, the parties objecting to their discharge, the 
 court, in the presence of the parties, gave them further 
 and legal instructions, after which they retired, and re- 
 
 > Raymond n. Ilowland, 17 ^ Rosscr v. McColly, Iiul. 587. 
 Wend. :WJ. » Train v. Collins, 2 Pick. 145. 
 
 2 Cady V. Owen, 34 Verm. 598, 
 603.
 
 CII. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 873 
 
 turned with a verdict ; held no error.^ So, on the request 
 of the jury for further instructions, the judge said, "I 
 perceive from your questions that your minds have heen 
 misled by a case read by defendant's counsel," and then 
 stated to them, " that they should receive the law only 
 from the court; that counsel often read books to the jury 
 to explain themselves more clearly and forcibly, but that 
 they must not receive them as law, except so far as sanc- 
 tioned by the court." Held, there was no error in these 
 instructions.^ So an explanatory charge is no ground of 
 new trial.^ So a judge may arrange the evidence and 
 comment upon it, even though the arrangement and com- 
 ment may have the appearance of an argument. And 
 when a jury came in by leave of court without having 
 agreed, and stated that they found it difficult to reconcile 
 the testimony of two of the witnesses, and the judge told 
 them that it was a case in which they ought to agree; 
 that, as the facts to which the witnesses testified occurred 
 at different times, they might exist consistently with each 
 other; that there was not necessarily any conflict in the 
 testimony, and that it was their duty to reconcile the 
 testimony ; and, on their coming in again without per- 
 mission, he urged the importance of their agreeing, which 
 they finally did, being directed to retire again : it was 
 held no ground of new trial.^ JSTor is it ground of new 
 trial, that, after the charge, the defendant's counsel moved 
 for a particular instruction, which was given.^ ISTor that 
 the judge, in open court, in the presence of the counsel, 
 answers a written inquiry sent from the jury by the officer 
 in attendance.^ Or answers an inquiry of the foreman, 
 which he came in to make, after the jury had retired, 
 without communicating its purport to the parties or their 
 counsel.'^ Nor that he unintentionally omitted to read 
 
 » Hogg V. State, 7 Ind. 551. s SaAvyer v. Merrill, 6 Pick. 478. 
 
 2 Cliamberlaiu v. Masterson, 26 ^ Goodman v. Norton, 5 Sliep. 
 Ala. 371. 381. 
 
 3 Morris v. The State, 25 Ala. 57. ^ Goldsmith v. Solomons, 2 
 * Emery v. Estes, 31 Maine, 155. Strobh. 29G.
 
 374 THE LAW OF NEW TRIALS. [CH. XI. 
 
 certain parts of the testimony of a witness, which the 
 jury had returned to hear, neither party culling the jus- 
 tice's attention to the omission.' 
 
 § 157. For the court to give instructions to the jury 
 during the hours of recess, without notice to the parties 
 or their counsel, and in their absence, is error.^ So, after 
 the jury have retired, it is error to allow them to come 
 into court and instruct them, in the absence of the parties 
 or their counsel; and such instructions will be considered 
 important, if the contrary is not shown, from the fact that 
 the jury have asked for them.'' But a new trial was re- 
 fused for the repetition of the charge to the jury, though 
 the parties were absent, during the recess of the court.* 
 And although the right to communicate with the jury 
 during their deliberations, to withdraw from their con- , 
 sideration erroneous instructions, and to give additional 
 ones, strictly applies only to proceedings done in open 
 court; slight deviations from this rule do not necessarily 
 vitiate a verdict.' 
 
 § 158. It is held, in New Hampshire, that the giving 
 of written instructions upon questions of law, at the 
 request of the jury, after they have retired, is a matter of 
 familiar practice, and a verdict will not be disturbed on 
 that account." 
 
 § 159. Omission to comply with a statute, which pro- 
 vided that the names of jurors should be called, when 
 they are recalled for instructions, was held no ground of 
 exception, unless some injury results from the omission — 
 the statute being merely directory.^ 
 
 1 Whitney v. Crim, 1 Hill, 01. ^ Bassett v. Salisbury, &c., 8 
 
 2 Campbell v. Beckett, 8 Ohio Fost. 438. 
 
 (N S ) 210. 5 Hall V. State, 8 Ind. 439. 
 
 3 Redman v. Gulnac, 5 Cal. 148. ^ Allen v. Aldrich, 1) Fost. 63. 
 
 7 State V. Burge, 7 Clarke, 255.
 
 CH. XL] ERRONEOUS RULINGS OR INSTRUCTIONS. 375 
 
 § 160. The refusal of the court to listen to written 
 requests for a special charge, regardless of their character, 
 because ofterecl at the conclusion of the charge as given, 
 is error. ^ 
 
 § 161. Upon the trial of an issue of the validity of a 
 will, at which a former will has been offered in evidence, 
 the refusal of the presiding judge to answer an inquiry 
 of a juror, as to what would become of the property of the 
 testator if the will on trial should be set aside, was held 
 no ground for a new trial.^ So refusing to instruct the 
 jury as to the effect of certain written evidence, at the time 
 it was offered ; no exception being taken to the charge.' 
 
 § 162. A new trial was granted, where there was a 
 request to charge on a certain point which was forgotten 
 by the judge, who, however, inquired at the end of the 
 charge if any point was omitted, and was answered in the 
 negative.^ 
 
 § 163. In general, objections to the charge must be 
 made before the jury retire.^ But where a bill stated the 
 charge of the court below on points of law, and that the 
 jury found a verdict and that the 'party excepted ; it was 
 held, that it should be intended that the exception was 
 seasonably taken, else the judges would not have signed it.^ 
 
 § 164. That the judge, at a trial, informed the jury what 
 amount of damages would carry costs, is no ground for a 
 new trial.^ Kor, in an action for assault and battery, a 
 charge as to the effect of a verdict for the plaintiff upon 
 the costs, and a refusal to charge, that, in fixing the 
 
 ' Wood V. McGuire, 17 Geo. 303. ^ Montgomery v. Gilmer, 33 Ala. 
 
 2 Woodbury v. Obear, 7 Gray, 116. 
 
 467. 6 Harlow v. Humiston, 6 Cow. 
 
 3 Raymond B.Howland, 17 Wend. 189. 
 
 389. ^ Atkinson v. Newton, 29 Eng. 
 
 < Gillespie I). Shuliberrier, 5 Jones, Law and Eq. 479. 
 157.
 
 376 THE LAW OF NEW TRIALS. [CIL XI. 
 
 aiiiouni of a verdict for tlie iilaiiitilf, the jury had nothing 
 to do -with the question of costs, or whether their verdict 
 woukl carry full costs. ^ 
 
 § 165. It is ground of new trial that the judge does not 
 inform the jury what is the proper measure of damages, 
 on an issue in which it is admitted that the plaintiff is 
 entitled to a verdict and to damages; although the point 
 was not taken hy the X)hu"tiff' at the trial." Or that the 
 instruction is such as probahly to diminish or increase the 
 quantaiii of damages.^ So wdiere, in an action for libel, 
 the charge of the court was erroneous and adverse to the 
 plaintiff, and the jury gave a verdict for merely nominal 
 damages; held, the plaintiff was entitled to a new trial, 
 although the character of the offence charged in the libel 
 was not such as to justify a heavy verdict, but entitled the 
 plaintiff" to a verdict which would carry full costs.^(a) 
 
 § 166. A new trial is sometimes refused, even if it might 
 otherwise be granted, where only nominal damages can be 
 recovered.^ As wdiere the judge wrongly instructed the 
 
 ' Waffle V. Dillpiibcck, Law Reg. ' Hotchkiss v. Porter, 30 Conn. 
 
 Oct. 18G3, p. 7G.J (N. Y.), 39 Barb. 414. 
 
 2 Knight «. Egerton, 13 Eng. ^ Hopkins v. Grinnell, 28 Barb. 
 Law and Eq. rm. 533. 
 
 3 Neel V. Hughes, 10 Gill &> 
 Johns. 7. 
 
 (a) What the life of one person is worth, in a pecuniary sense, to an- 
 other, is a question incapable in its nature of exact determination. Al- 
 though the statute confides it to a jury, the court must so far supervise 
 the verdict as to see that it is not the result of unreasoning prejudice or 
 passion. Chicago v. Shannon, 43 111. 338. Li an action against a rail- 
 road, for injuries resulting from a collision, an instruction, which tends to 
 leave the measure of damages entirely to the discretion of the jury, is I 
 erroneous. Peini. R. R. Co. v. Books, 57 Pcnn. 339. It is the province 
 of a jury, in an action of assumpsit for work and labor, to affix a value 
 to services, according to their nature and extent, as proved; and it is not 
 necessary for witnesses to estimate their value in money. jNIadden v 
 Porterfield, 8 Jones L. IG6.
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 377 
 
 jury, in an action for assault and battery, that the assault 
 was justifiable for the purpose of preventing a trespass 
 upon land, which both parties claimed, each ordering the 
 other to leave; and the verdict was for the defendant. 
 The plaintift' could have recovered only nominal damages, 
 and no end of justice was defeated.^ 
 
 § 167. It remains to speak more particularly of motions 
 for new trial, made in connection with requests for specified 
 instructions. Even independently of such requests, as we 
 have already seen (§ 5), it is in general the right of parties 
 to have the instructions of the court upon material points 
 of the case.- Thus a new trial was granted, because " a 
 material point was not left to the jury nor observed upon 
 by the judge."^ Though it is sometimes held, that an 
 omission to charge upon important points of law is not 
 per se sufiicient ground of new trial, unless a failure of 
 justice is thereby caused.^ So a new trial was granted, 
 where the case was not argued, but left by counsel to 
 the judge to sum up and give the necessary instructions; 
 but he omitted to do it, regarding the case as clear for 
 the plaintiff; and the jury found a verdict for the de- 
 fendant.^ 
 
 § 168. But if there be any doubt as to the effect of 
 mere pmissions to instruct, it seems to be well settled, that 
 the verdict will be set aside, where counsel call upon the 
 judge to give instructions which the case requires, and 
 which conform to the facts, and he refuses to do so.* So 
 a new trial will be granted, unless instructions are ffiven 
 
 ' Hj^att V. "Wood, 3 John. 239. (the form of exception was, that the 
 
 2 PiyoriJ. Coggin, 17 Geo. 444. verdict was against evidence). 
 
 3 Per Burrongh, J., Morrison v. ^ State v. Cliristmas, 6 Jones, 
 Muspratt, 13 Moo. 231 (or rather a 471; Coolv«. Brown, 30 Maine, 443; 
 fact bearing upon a general point, 42 Maine, 340 ; 4 Jones, 199 ; Bal- 
 which was left to tiicm). timore, &c. v. PoUj-, 14 Gratt. 447. 
 
 •• Calbreath v. Gracy, 1 Wash. See Angusta, &c. v. Abbott. 13 
 
 198. ]\Id. 348 ; Jamson «. Quivey, 5 Cal. 
 
 5 Page V. Pattee, G Mass. 459 490.
 
 378 THE LAW OF NEAV TRIALS. [CII. XL 
 
 Oil eufli point upon which they arc requested.^ Although 
 they need not be in the same language, or as a requested 
 instruction.^ So where the instructions given have been 
 lost and cannot be proved, and where pro})er instructions 
 were refused, and it does not clearly appear that the ver- 
 dict is right; a new trial should genenilly be ordered.^ 
 
 § 100. And it is held the duty of the judge to charge 
 the jury as to all the material points which are supported 
 b}' proof, whether such points were made verbally or in 
 writing.'' So an instruction prayed for must be given or 
 refused as' asked, and cannot be modified.^ Where in- 
 structions are asked for, the court may change the phrase- 
 ology, but cannot alter the sense." Thus, although an ap- 
 pellate court, when not sitting as a court of equity, might 
 believe that certain evidence is not strong enough to re- 
 quire the jury to find fraud; yet, if there is any evidence 
 tending to prove it, a prayer that the jury may be in- 
 structed to declare an instrument void, if they find the 
 grantor was imposed upon and deceived in executing it 
 by the grantee, cannot properly be rejected.^ Nor is it 
 sufiicient, wdiere a judge is requested, in the hearing of the 
 jury, to give in a charge a legal proposition; that he 
 replies, " Well, I charge it, "without anything more.^ So, 
 when the provisions of a statute are clear and explicit, 
 and the court below is requested to charge the jury in 
 conformity thereto, and refuses, such refusal is error.'' 
 
 § 170. More especially will a new trial be granted, 
 where the court refuses to charge upon legal propositions 
 material to the case, and at the same time expresses an 
 opinion upon the question of fact as to the sufficiency of 
 
 ' Zabriskie v. Smitli, 3 Kern. 322. s Russell v. Amador, 3 Cal. 400. 
 
 2 Anderson v. ]?atli, 42 Maine, 6 Conrad v. Lindley, 2 Cal. 173. 
 
 340 ; i\Iarshall v. Fliun, 4 Joues, ? Baltimore v. Williams, 6 Md. 
 
 199. 23.'5. 
 
 ' Wcisigcr v. Chisholm, 22 Tex. « Cokiuitt v. Tliomas, 8 Geo. 2r)8. 
 
 C70. s Benedict v. Hoggin, 2 Cal. 385. 
 
 * Pryor v. Coggin, 17 Geo. 444.
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 379 
 
 proof.' Or if a proper instruction be refused, notwith- 
 standing the assent of the other party to its being given. ^ 
 Thus a new trial was granted, for refusal to instruct tlie 
 jury that they had a right to infer payment from the 
 evidence offered to prove it. Such refusal was held 
 equivalent to a declaration that all the testimony upon 
 which the instruction was predicated should be disre- 
 garded.^ So, if the court refuse to charge the jury in a 
 trial for larceny of bank-notes, that they must be satisfied 
 that the notes were genuine; it is ground for a new trial.* 
 And a statute, which enacts that " no new trial shall be 
 granted by reason of the ruling of any judge that the 
 stamp upon any document is sufficient, or that the docu- 
 ment does not require a stamp," does not apply, where, on 
 objection to the sufficiency of a stamp, the judge, with 
 consent of the parties, abstains from expressing an opinion 
 on the point, and reserves it for the decision of the court 
 above.* So, in Georgia, by the trial act of 1853-54, the 
 refusal of the court to give a legal charge when requested, 
 and the granting a new trial, are made convertible terms. 
 The court above has no discretion in the matter. If the 
 charge requested was authorized by the pleadings and the 
 proof, a new trial must be granted, whether injury has 
 been done or not.^ Though it is otherwise where the 
 charge requested, although authorized by the pleadings, 
 is unsupported by proof.^ 
 
 § 171. But positions of law, for which counsel con- 
 tended at the trial, not presented as requests for instruc- 
 tions, can only be noticed as explanatory of the instruc- 
 tions given. They do not present matter of exception, if 
 
 ' Lewis V. The State, 4 Ohio, * Low v. People, 2 Parker, 37. 
 389. ^ Eames v. Smith, 33 Eng. Law 
 
 2 Layson v. Galloway, 4 Bibb, and Eq. 489. 
 
 100. « Terrv v. State, 17 Geo. 204. 
 
 3 Miles V. Major, 3 J. J. Mar. ? Boyd v. State, 17 Geo. 194. 
 153.
 
 380 THE LAW OF NEW TRIALS. [CII. XI. 
 
 tlicy are not directly noticed by tlic court.' And the 
 contending for a certain ])riiiciple of law, hy counsel, is 
 not equivalent to a request for instructions ui)on that 
 point.^ Nor arc instructions to he regarded as erroneous, 
 merely because they do not embrace every aspect in which 
 the law applicable to the case might have been presented. 
 jSTor, as we have seen (§ 5), is the mere omission of the 
 court to give instructions which would have been proper, 
 error, if such instructions were not asked for by either 
 party.3 So it is held that the right to demand instruc- 
 tions must have some limit, and the court above will not 
 sanction its abuse.^ 
 
 § 111(1. In a very recent case in Connecticut, being an 
 action brought for wounding with a pistol, the court re- 
 marked as follows: "The defendant did in substance re- 
 quest the court to charge, that if they found the fact 
 proved as claimed, he would be justified in self-defence in 
 using the pistol as he did — that the rule of law is ' that 
 a man may lawfully take the life of another who is un- 
 lawfully assailing him, if in imminent peril of losing his 
 life or suffering extreme bodily harm, &c.' What a man 
 may lawfully do he may lawfully attempt to do, and that 
 request embodied in substance, and with sufficient dis- 
 tinctness, a well-settled specific rule of law, applicable 
 alike in criminal prosecutions and civil suits, and to the 
 facts of the case as claimed. The court did not conform 
 to the request. The charge as given informed the jury 
 what the ' great principle' of the law of self-defence is, 
 and correctly ; but that was not all to which the defen- 
 dant was entitled. It is not for juries to apply ' great 
 principles' to the particular state of facts claimed and 
 found, and thus make the law of the case. When the 
 
 ' Stowellv. Goodenow, 31 Maine, » Linn v. Wriirlit, 18 Tex. 317; 
 538. Faninhivr v. Dallas, 30 ib. 200 ; 
 
 2 Tenney v. Butler, 32 Maine, Fisher v. Stevens, IG 111. 3!)7. 
 2G9 '' Goodrich v. Eastern Kailroad, 
 
 38 N. II. 3'JO.
 
 CH. XI.J ERRONEOUS RULINGS OR INSTRUCTIONS. 381 
 
 facts are admitted, or proved and found, it is for tlio conrt 
 to say what the law as applicable to them is, and whether 
 or not tliey furnish a defence to the action, or a justifica- 
 tion of the injury if that be the issue. And so, where 
 evidence is offered by either party to prove a certain state 
 of facts, and the claim is made that they are proved, and 
 the conrt is requested to charge the jury what the law is 
 as applicable to them, and what verdict to render if they 
 find them proved, the court must comply." And this 
 view is fortified, by reference to an express statute as to 
 the duty of the court in deciding questions of law.' 
 
 § 172. It forms no ground of exception to instructions, 
 that they are not given in any precise form, provided the 
 instructions proper are given in any form.- As, in a case 
 of usury, refusing to charge that the usury must be proved 
 beyond a reasonable doubt, if the jury were told that they 
 must be satisfied that the usury was made out.^ 
 
 § 173. A party cannot complain of an instruction given 
 at his own instance.'' Or that the court gave the charge 
 exactly as it was asked for, and did not give further in- 
 structions.^ Or for a refusal to instruct contrary to a 
 previous instruction given at the party's request.^ Nor 
 because a charge was withdrawn at the request of the 
 party for whom it was made.^ Nor for a refusal to give 
 certain instructions, unless the prayer be for instruction 
 upon a point in issue, supported by j^ertinent and relevant 
 evidence, direct or indirect, and which may properly be 
 given in the words of the prayer.^ 
 
 • Morris «. Piatt, Am. Law. Reg., ? Harrison v. McGehee, 24 Geo. 
 
 July, 1865, p. 524. 530. 
 
 2 Walcott V. Keith, 2 Fost. 196. « Bagley v. Smith, 10 K Y. 489; 
 
 3 Acby V. Rapalye, 1 Hill, 9. Goodrich v. Eastern, &c., 38 N. H. 
 1 Flowers v. Helm, 29 Mis. 324. 390 ; Pasley v. Kemp, 22 Mis. 409 ; 
 5 Alston V. Grantham, 26 Geo. Chicago, etc. ». George, 19 III. 510; 
 
 874. State v. Hall, 39 ]\Iaine, 107 ; State 
 
 *> Cumberland, &c. v. Tilghman, v. Robinson, ib. 150. 
 13 Md. 74.
 
 382 THE LAW OF NEW TRIALS. [cil. XI. 
 
 § 174. So the court is not bound to cliargo upon any 
 hypothetical point which is not jiertinent to the issue, 
 however correctly it may he stated, especially if thereby 
 the attention of the jury mi<;-ht be diverted from the facts 
 proved.^ Nor to give a charge bad as matter ol" law, 
 though the error may be such, as, under the circumstances 
 of the case, would not be fatal if it were given.'^ 
 
 § 175. So the court may refuse to state the law on a 
 different case from that which the evidence tends to 
 prove.3 (See § 186.) Or to give instructions, which refer 
 to a question for the court and not for the jury." 
 
 § 176. "Where instructions in part erroneous are asked, 
 the court may either entirely withhold them, or adopt 
 them so far as they are correct.^ When parties incorpo- 
 rate into a request for instructions matter impertinent 
 and improper, together with that which is pertinent and 
 proper, the court may rightfully reject the whole.*"' If a 
 prayer for instructions is incorrect in any material ])art, 
 it is error to grant it, and ground for a reversal on ajt- 
 peal.^ But, where the plaintiff prays for an instruction, 
 wdiich requires the jury to find all that is essential to his 
 right to recover, surplusage will not vitiate it.^ 
 
 § 177. When a charge asked needs to be qualified or 
 explained, to prevent it from misleading the jury, it may 
 be refused; as, for example, a charge that the plaintiff, in 
 order to avoid the statute of limitations when pleaded to 
 an open account, must prove not only a subsequent pro- 
 mise, but also that it was made "with a full knowledge 
 of all the facts.'"^ 
 
 1 New Brunswick Co. v. Tiers, 4 ^ Bryant v. Crosby, 40 Maine. 9. 
 2abr G'.»7. ^ Plank Road Co. v. lIoH'man, 9 
 
 2 Vislier V. Webster, 1,'J Cal. 58. Md. 55!). 
 
 3 Hicks V. Bailey. 16 Tex. 229. » Edelin v. Sanders, 8 Md. 118. 
 
 * Bran"-er v. Chevalier, 9 Cal. ^ Ilolston v. Lan-^djn, 26 Ala. 
 
 353. 660; Tifield v. Adancs, 3 Clarke, 
 
 5 Marlborough i\SisRon, 23 Conn. 487. 
 44.
 
 en. XL] ERRONEOUS RULINGS OR INSTRUCTIONS. 383 
 
 § 178. On the other hand, the judge lias a right to mo- 
 dify the instructions asked; and if, as given, they state 
 the law correctly, it is not an error of which the party 
 can complain, that they were not given exactly as asked, 
 or that one of the instructions taken alone stated the law 
 too broadly, though it would not have been error so to 
 have given them.^ 
 
 § 179. Exception does not lie to the charge and each 
 and every part thereof, if any part is correct.^ Nor, on 
 the other hand, to a refusal of a judge to charge several 
 matters in one continuous proposition, if any part of the 
 entire series proposed is wrong.^ 
 
 § 180. Under the act of Maryland, of 1825, c. 117, a 
 prayer that the jury be instructed, "that upon the whole 
 evidence it is competent for them to find for the defend- 
 ant," is too general.'* So where there are facts adduced in 
 evidence, but which are not deemed legally sufficient or 
 proper to support the issues, under the act of 1825, the 
 prayer should direct the mind of the court specifically 
 to the supposed errors or omissions in the proof; and a 
 general prayer to instruct the jury, that there is no evi- 
 dence on which, under the pleadings, they could find for 
 the plaintift', would be rightly rejected. Otherwise if 
 there is no evidence, or an entire failure of evidence to 
 support the issues.* 
 
 § 181. Exceptions do not lie, for the rejection of prayers 
 for instructions tending to embarrass the jury. The court 
 is not bound to construe them.^ Nor for refusal of a charge 
 which admits of two constructions, one of which is calcu- 
 lated to confuse and mislead the jury.^ 
 
 ' Mask V. State, 36 Miss. 77 ; ^ Hatton v. McClish, 6 Md. 407. 
 State V. Wilson, 8 Clarke, 407. ^ Baltimore, &g. v. Resley, 14 
 
 2 Dows V. Rush, 28 Barb. 157. Md. 424. 
 
 3 Vallance v. Kin";, 3 Barb. 548. ' Rolston v. Langdon, 26 Ala. 
 * Warner v. Hardy, 6 Md. 525. 660 ; Roots v. Tyner, 10 Ind. 87.
 
 384 THE LAW OF NEW TRIALS. [CH. XI. 
 
 § 182. On tlio other hand, wliere the instructions wore 
 correct, and ?iot calculated to mislead the jury, a party, 
 who has not prayed to have them made more specific, 
 cannot complain of them for want of clearness.^ So, 
 wliere numerous instructions were asked, and a general 
 one given, a new trial will not be granted, unless the 
 specific instructions desired were then pointed out.^ l^or 
 if the instructions cover the points presented, although 
 specific answers were not given to each point in detail ; 
 if the party was not thereby prejudiced.^ 
 
 § 183. A new trial wnll not bo granted, on account of a 
 general charge in answer to separate points.'* ISTor because 
 the instruction requested and given was not sufiiciontly 
 explicit.^ Nor wliere a requested instruction is refused ; 
 upon the ground that an instruction substantially similar 
 assumes facts of which there is no evidence.^ 
 
 § 184. But a charge is erroneous wdiich instructs the 
 jury, "that, if they found there was a conflict between 
 the special charges given by the court, at the defendant's 
 request, and the main charge, then the latter must prevail."'' 
 
 § 185. A new trial will not be granted, for refusal of an 
 instruction already given in substance,^ although in more 
 general terms.^ More especially when the repetition would 
 give the principle undue prominence.^'' l^or if the quali- 
 fications of a general rule have been once stated, though 
 the rule is afterwards stated without them." Thus, in an 
 
 ' "Wright V. Boynton, 37 N. II. ^ Philadelphia, &c. v. Howard, 
 
 9; Waters v. Bristol, 20 Conn. 13 How. U. S. 807. 
 
 398; Bast ^. Alibrd, 20 Tex. 22G. ^ Spivey v. State, 20 Ala. 00; 
 
 2 Zabrisliie v. Smith, 3 Kern. Chamberlain y. IMasterson, ib. 371. 
 322. ^ Mary, Arc. V.Mcintosh, 37 Miss. 
 
 3 Deakers v. Temple, &c., 41 G71 ; Tucker v. Peaslee, 30 N. H. 
 Penn. 234. 107. 
 
 4 Groft V. Weakland, &c., 34 » Moye ». Herndon, SOMiss. 110. 
 Penn. 304. '" l*owell v. Messer. 18 Tex. 401. 
 
 5 Chiles V. Drake, 3 Met. (Ky.) " Belknap v. Wendell, 30 N. H. 
 146. 250.
 
 CH. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 385 
 
 action by a physician to recover for professional services, 
 the judge, being asked to charge that the plaintiff was 
 not entitled to recover, unless he proved to the satisfac- 
 tion of the jury that he was a regular physician, substi- 
 tuted for the word regular the words skilful and efficient. 
 Held, there was no error.'(rt) 
 
 § 186. A court may refuse to instruct a jury on a point 
 on which no testimony Avas ofiered.^ Instructions are to 
 be predicated on the facts proved.^ (See § 175.) Nor will 
 exceptions lie, where the judge directs the jury to the 
 real matters of controversy, but declines to charge on a 
 point which is superfluous or irrelevant.'* Where the 
 plaintiff claimed title under a mortgage from C, to secure 
 C.'s notes, payable in three months ; and the plaintiff^ im- 
 mediately exposed the goods for sale, and was in the act 
 of selling them, from time to time, as he could find pur- 
 chasers, the mortgagor being insolvent; when the defen- 
 dant, a deputy sheriff", attached them, in suits against the 
 original owners, claiming that the conveyances to the 
 plaintiff were fraudulent, as against creditors; and the 
 defendant, in an action of trespass, prayed the court to 
 
 ' Mays V. Ilogan, 4 Tex. 26. State v. Harrison, 5 Jones, 115 ; 
 
 2 Freeman v. Edmunds, 3 Smith v. Sasser, ib. 388. 
 Hawks, 5. * Den v. Wintermute, 1 Green, 
 
 3 Whitney v. Goin, 20 N. X. 354; 117; Wayne, &c. v. Berry, 5 Ind. 
 
 286. 
 
 (a) See Treat v. Lord, 42 Maine, 5.52 ; Dunu v. ISIoody, 41 Maine, 
 239 ; State v. Knight, 43 ib. 11 ; State v. Neville, 6 Jones, 423 ; Moffitt 
 V. Cressler, 8 Clarke (Iowa). 122 ; McTavish v. Carroll, 13 Md. 429 
 Oliver v. Chapman, 15 Tex. 400 ; Holbrook v. Utica, etc., 2 Kern. 236 
 Corry v. Tompkins, 17 Geo. 351; Sherman v. Wakeman, 11 Barb. 254 
 Main v. AfcCarty, 15 111. 441 ; Price v. Alexander, 2 Greene, 427 
 Thompson v. Grimes, 5 Ind. 385 ; Duffell v. Noble, 14 Tex. 640 ; State 
 V. Knight, 43 Maine, 11 ; Pettigrew v. Barnum, 11 Md. 434 ; Clark v. 
 "Wood, 34 N. H. 447 ; Steamboat, &c. v. Buckner, 12 B. Mon. 246 ; Taber 
 V. Hutson, 5 Ind. 322 ; Prior v. AVhite, 12 111. 261 ; Dennis v. McLauriu 
 ' 31 Miss. 606. 
 25
 
 386 THE LAAV OF NEW TRIALS. [CII. XI. 
 
 charge the jury, that the plaiiitiif had no right to sell 
 the goods until after his notes fell due ; which the court 
 omitted to do : held, the defendant, being a stranger to 
 the mortgage, had no right to interfere between the 
 plaintiff and his mortgagor; and, as evidence of fraud, 
 the defendant had the benefit of the fact before the jury ; 
 consequently, the omission of the court was no ground 
 for a new trial.' 
 
 § 187. The judge may and should refuse to express an 
 opinion upon the facts. Where there was some cir- 
 cumstantial evidence of payment, and the court charged 
 that there was no evidence of payment, the defendant's 
 counsel requested the court to charge the jury as follows: 
 " The court cannot undertake to say, whether there was 
 proof of payment ; that is entirely within the province of 
 the jury." This was refused ; but in lieu thereof the 
 court charged, that, " if there was any evidence of pay- 
 ment introduced to them, they must find accordingly." 
 Held, that all this taken together was not leaving the 
 jury to determine upon the facts, without being influenced 
 by the opinion of the judge on those facts.^ 
 
 § 188. "When the court is asked to charge that a certain 
 principle is law, provided the evidence sustains it ; it is 
 no error in the court to give the converse of the prin- 
 ciple, provided the proof preponderates that way.^ But 
 the refusal of an instruction is not equivalent to the 
 ' assertion of the converse of the proposition contained in 
 
 1 Potter V. Payne, 31 Conn. 3G1. See Clark v. Hammerle, 27 Mis. 
 
 2 Gay V. McGulHn, 9 Tex. 501. 55. 
 
 3 Thomas v. State, 27 Geo. 287. ^ Miles v. Davis, 19 Mis. 408. 
 
 (a) As to instructions m writing, see Rising, Sec. v. Conway, 7 Ind. 
 187 ; Kenworthy v. Williams, 5 ib. 375 ; Taber v. Hutson, ib. 322 ; 
 Green v. Lewis, 13 111. 642 ; Parris v. The State, 2 Greene, 449 ; Leighton 
 V. Sargent, 11 Fost. 119. A party who, after the evidence is all in, and
 
 CII. XI.] ERRONEOUS RULINGS OR INSTRUCTIONS. 387 
 
 before either parly has arjiuecl the cause to the court and jury, requests 
 the judge to reduce his charge to writing before giving it to the jury, 
 is entitled to have the charge so reduced to writing, under (AVis.) Rev. 
 Sts., c. 132, ? 12; and a rule of court, that unless such request shall be 
 made at or before the commencement of the trial it shall be deemed to 
 have been waived, cannot be sustained. Patterson v. Ball, 19 Wis. 243. 
 The better practice is, for the court to put aside the instructions asked, 
 and to cover the whole ground of the controversy in a methodical and 
 corrected charge of its own, stating the questions of fact to be decided, 
 and the law applicable thereto under the issues and the evidence. State 
 V. Collins, 20 Iowa, 85. Instructions which are asked should not be read 
 in hearing of the jury before they are passed upon by the court, nor 
 should the jury be allowed to know what they are if they are refused. 
 Waldie v. Doll, 29 Cal. 555. It is not error for the court to refuse in- 
 structions Avhich have not been submitted within the time required by a 
 rule of court. Ibid. Where the answers of one defendant to interroga- 
 tories have been admitted, after objection, as evidence against him alone, 
 it is proper to refuse a motion of the others to instruct the jury that 
 they should not regard them as evidence against any of the defendants. 
 Lazzell v. Mapel, 1 West Va. 43. A prayer ofifered by defendants who 
 were sued as partners, segregating two instances or transactions testified 
 to and mentioned in the prayer, tending to negative a partnership, and 
 asking the instruction of the court thereon, and e.xcluding from the jury 
 other evidence which might have induced the plaintiff to believe the de- 
 fendants were partners, is calculated to mislead the jury. Folk v. Wil- 
 son, 21 Md. 538. An instruction may be modified by the court, although 
 the modification is suggested by the counsel opposed to the error. The 
 fact that the instruction is subject to a wrong construction is sufficient 
 to justify the court in rejecting it and adopting a modification which 
 corrects the error. Blackburn v. Beall, 21 Md. 208. Refusal of instruc- 
 tions, though correct, is not error, if those given covered the entire case 
 and submitted it properly to the jury. Laber v. Cooper, 7 Wall. 565; 
 Philadelphia, &g. v. Harper, 29 Md. 330; Davis v. Perley, 30 Cal. 630. 
 Or, where the instructions are correct, an omission to give others specifi- 
 cally asked and refused, unless it distinctly appears that they were ap- 
 propriate in the position of the cause and necessary to its just decision. 
 Wells V. Prince, 15 Gray, 562. Or, in case of exclusion from a prayer 
 of a fact necessary and material to support the instruction sought. Mary- 
 land IK Porter, 19 Md. 458. Or the accidental omission to charge as re- 
 quested, counsel not having called the attention of the judge to the 
 omission. Shewmake v. Jones, 37 Geo. 102. A party is entitled to full, 
 fair, and explicit answers to his prayer for instruction, if pertinent ; but,, 
 when the evidence so requires, it is not only the right but the duty of 
 the court to make such qualification as will adapt the instruction to the
 
 388 THE LAW OF NEW TRIALS. [CII. XI. 
 
 facts, and onuLle the jury to make the proper discrinuriation. Hays v. 
 Paul, f)! IVnn. 134. A re<piest for an instruction, tliat, under the 
 pleadings and evidence, the opposite party is not entitled to recover, 
 should be refused as too general. Dorsey v. Harris, 22 Md. 8.5 ; Weber 
 V. Zimmerman, ib. 156. But it is not a good reason for refusal to give 
 instructions, that they were unnecessarily lengthy and numerous. Nor 
 that a request is too late, when made during the opening and only argu- 
 ment. McCaleb v. Smith, 22 Iowa, 242. Nor is it proper, after re- 
 fusing an instruction for defect of form, to refuse to give another good 
 in form and involving the same legal principle, merely because tendered 
 after the time first fixed for presentation of instructions; if the instruc- 
 tion could not injure the opposite party, and the refusal deprived the 
 party of the application of a legal principle to which he was entitled by 
 the facts. Hill v. Wright, 23 Ark. 530. A prayer, correctly enunciating 
 that certain facts, which the jury might otherwise have disregarded, con- 
 stituted evidence on a question at issue, may properly be granted. Colvin 
 V. Warford. 20 Md. 357. An instruction, which ignores material facts 
 of which there is some evidence, is properly refused. Thomas v. Stern- 
 heimer, 29 Md. 268. Where a part of entire instructions asked are good 
 and part bad, the court may simply refuse them. Mayberry v. Kelly, 1 
 Kans. 116. The refusal of a request " to charge more particularly" 
 upon some point — as " what constitutes a private road" — presents no 
 question for review and no ground for reversal. Karber v. Nellis, 22 
 Wis. 215. So a refusal to give a proper instruction, but not as favor- 
 able to the appellant as an instruction actually given. State v. Moore, 
 25 Iowa, 128.
 
 CH. XII.] RULINGS. DISCRETION. BS9 
 
 CHAPTER XII. 
 
 DISCRETION. 
 
 1. General rule— examples. I tion of witnesses ; depositions ; re- 
 
 0. Order of testimony ; examina- 1 calling -witness ; leading questions. 
 
 § 1. While, as we have seen in the last chapter, there 
 is no error iu the trial of causes, which the law is more 
 careful to correct, than that which consists of wrong 
 rulings or instructions to the jury in matters of law; it 
 remains to be fully explained, that there are certain classes 
 of such rulings, which are held to be discretionary with 
 the judge by whom they are made, and therefore final, 
 and not subject to revision by motion for a new trial, bill 
 of exceptions, or otherwise. 
 
 § 2. It is well settled, that exceptions do not lie to the 
 decisions of a judge in matters discretionary with him.^rt) 
 In a late case the court remark : " It is necessary that the 
 making, modifying, and revoking of orders relating to 
 the course of the trial shall be left to the discretion of the 
 presiding judge. "^ And in another case : " As to matters 
 
 ' Moody V. Hinkley, 34 Maine, Wend. 454; Planters', &c.«. Willis, 
 
 200 ; Sisco v. Harmon, 9 Verm. 5 Ala. 770 ; Woodruff v. Hurson, 
 
 129; State i;. Fox, 1 Dutch. 566; 32 Barb. 561. See State ?). Sargent, 
 
 Rochester v. Roberts, 9 Fost. 360 ; 32 Maine, 429. 
 
 Osborne v. Scott, 13 Tex. 59 ; Gro- 2 Per Chapman, J., Com. v. Hall, 
 
 ton, 43 N. H. 91; Emerson y. Paine, 4 Allen, 306. 
 9 Verm. 271 ; .Ienkins«. Brown, 21 
 
 (a) Nor, in Massachusetts, to the decision of a court below in matters 
 of fact submitted to it. Whiton v. Nichols, 3 Allen, 583. Unless wrong 
 in point of law. Kettell v. Foote, ib. 212. The court above will not 
 generally interfere with the discretion of the courts below in mere matters 
 of practice, unless legal rights of parties are prejudiced thereby. Barnett 
 V. Thompson, 37 Geo. 335.
 
 390 THE LAW OF NEW TRIALS. [CH. XII. 
 
 resting merely in the discretion of the court, whether 
 with reference to the course of proceeding at the trial, or 
 as to granting a new trial, nothing is open upon the bill 
 of exceptions."' So, in a late case in the Supreme Court 
 of the United States: "The mode of conducting trials, 
 the order of introducing evidence, and the times when it 
 is to be introduced, are, proi)erly, matters belonging to the 
 practice of the Circuit Court, with which this court ought 
 not to interfere.— Probably the practice in no two States 
 of the Union is exactly the same ; and, therefore, in each 
 State, the Circuit Courts must necessarily be vested with 
 a large discretion. — We do not feel at liberty, therefore, 
 to interfere with the exercise of this discretion."^ So it 
 is gaid — a somewhat fanciful justification of discretionary 
 authority — " Because a motion chances to be made while 
 the trial is proceeding, and before the same judge, it does 
 not for that reason make a part of the trial. "^ 
 
 § 3. The examples which illustrate this general rule 
 are very numerous, and of course quite miscellaneous. 
 Among the most frequent are applications for contiimance^ 
 and amendment,{a) the granting or refusing of which is 
 not in general a ground for new trial or bill of exceptions; 
 although either may be contrary to positive law, and 
 would then constitute an exception to the rule.\6) So 
 
 • Per Dewoy, J., Com. v. Dow- < McFadden v. Com., 23 Penn. 
 
 er, 4 Allen, 299. 13 ; Clapp v. Balcli, 3 Greenl. 219 ; 
 
 2 Philadelphia, &c. v. Stimpson, Collier v. State, 20 Ark. 30 ; Wy- 
 14 Pet. 448. iiian v. Dorr, 3 Greenl. 183 ; Key- 
 
 3 Per Allen, J., Woodrutf v. nard v. Brecknell, 4 Pick. 302; 
 Hurson, 32 Barb. 561. Moor v. Shaw, 47 Maine, 88; Pay- 
 
 (a) It is no ground for a new trial, that the court refuses to allow an 
 amendment after the testimony and arguments were closed, if such re- 
 fusal was nuide on the theory that tlie amendment was immaterial, and 
 if the case was presented to the jury in accordance with such theory. 
 Allison V. Barrett, 16 Iowa, 278. 
 
 (6) The law vests in the judges of tlie courts below great discretion 
 in granting or refusing continuances, and the Supreme Court will pre-
 
 CII. XII.] RULINGS. DISCRETION. 391 
 
 tlie overruling of a motion for postponement, for the pur- 
 pose of procuring a record of conviction to disqualify a 
 witness; or for the absence of a witness.^ Or refusal to 
 order a specification.^ Or a refusal to allow the counsel 
 for the defendant, on opening his case, to comment on the 
 plaintiff's evidence.^ Or, as is sometimes held, a refusal 
 to allow counsel to open and close., unless injustice has been 
 done.^ Or a refusal to bring forward, as a continued 
 action, one that was defaulted at the first term, the plain- 
 tift* not knowing that the defendant was out of the State.' 
 Or a ruling upon the question of recommitment, &c., of a 
 report of referees.^ So, in reference to the Jw/'y, directing 
 
 son V. Macomber, 3 Allen, 69 ; v. Atkinson, 4 Humph. 470 ; Smal- 
 
 Gwynn v. Globe, &c., 5 ib., 317; ley, «. Anderson, 2 Monr. 56. 
 Richmond, &c. v. Woodruff, 8 ' Campbell y. Thompson, 4 Shep. 
 
 Gray, 447; Warren v. McHatteu, 117; State v. Damery, 48 Maine, 
 
 2 Scam. 32 ; Lon<? «. Overton, 7 327. 
 
 Mis. 567 ; Probate Court v. Hall, 14 2 Ward v. Fuller, 7 Gray, 179. 
 Verm. 159 ; Miller y. Schackleford, » Rich «. Jones, 9 Cush. 329. 
 4 Dana, 264; Helm v. Rodgers, 5 < Marshall v. Wells, 7 Wis. 1. 
 Humph. 105 ; Davis v. Church, 1 ^ Whitney v. Thayer, 5 Pick. 
 
 Watts & Serg. 240. See Hammond 528. 
 
 v. Kemer, 3 Hayw. 145 ; Jarnagan ^ Walker v. Sanborn, 8 Greenl. 
 
 288. 
 
 sume that that discretion, when exercised, is exercised legally and not 
 arbitrarily. Ryan v. Sewell, 18 La. An. 221. In Texas, a judgment will 
 not be reversed on the ground of refusal to grant a continuance, unless 
 the point was reserved by bill of exceptions. Harrison v. Cotton, 25 
 Tex. 53. A motion to continue or postpone on account of the absence 
 of counsel is addressed to the discretion of the court, and its ruling will 
 not be interfered with unless injury or injustice have plainly resulted. 
 Ayres v. Duprey, 27 Tex. 593; People v. Sackett, 14 Mich. 320. In 
 Arkansas, the appellate court will not attempt to control such discretion, 
 unless it has been grossly abused. Wilde v. Hart, 24 Ark. 599. In Mis- 
 souri, when the court below has soundly exercised its discretion. State 
 V. Shreve, 39 Mis. 90. In Indiana, the Supreme Court reversed the judg- 
 ment of the court below for an abuse of its discretion in denying a con- 
 tinuance in a criminal case, for the absence of a witness. Wassels v. 
 State, 26 Ind. 30. So in a prosecution for felony, where the motion was 
 supported by a sufficient affidavit. Hurt v. State, 26 Ind. 106. In Illi- 
 nois, where a statute requires the party to " satisfy the court" by affi- 
 davits, in order to procure a continuance, the judgment cannot usually 
 be inquired into by an appellate court. Farrell v. McKee, 36 111. 225.
 
 392 THE LAW OF NEW TRIALS. [CIL XII. 
 
 which jury shall try a case; discharge of jurors when they 
 cannot agree, though they have heen out hut a short time ; 
 excusing a juror; or the calling of a juror from one 
 jury to serve on another.^ So dismissing a jury partly 
 impanelled, and postponing the trial, when the prisoner 
 refused to take any part in the selection of the twelfth 
 juror.-(^^.) 
 
 ' AVare v. Ware, 8 Greenl. 42; ^ McFaddcn v. Com., 23 Peun. 
 Hauiiltons v. Moody, 21 Mis. 79 ; 12. 
 People V. Green, 13 Wend. 55. 
 
 (a) Other examples of discretion, though not strictly connected with 
 the remedy of «ew trials, are the following : Allowance of a certiorari. 
 State V. French, 4 Zabr. 73G. Awarding immediate execution, notwith- 
 standing the allowance of a writ of error; unless in a case of manifest 
 injustice. Allen v. Hopper, 4 Zabr. 514. 'Ilie clerk's giving directions 
 to the sheriff, in a matter entirely within the discretion of the sheriff. 
 McEwin V. The State, 3 Sm. & M. 120. A refusal to discharge a de- 
 fendant, on the ground of his having been arrested while attending as a 
 party or witness. Roberts v. Austin, 5 Whart. 313. The admission or 
 rejection of additional pleas. Evans v. St. John, 9 Port. 186; Hender- 
 son V. Hamer, 5 How. Miss. 525. A motion to strike out a plea. Town- 
 son V. Moore, 9 Port. 136. Discretionary taxing of costs. Walton v. 
 AValton, 19 Mis. 667. See Apgar v. Hiler, 4 Zabr. 812. An application 
 for a separate trial by one defendant charged with a misdemeanor. Hibl)S 
 V. State, 24 Ind. 140. Refusal to receive additional affidavits on the 
 question of setting aside a verdict, after the decision is announced. Scott 
 V. Moore, 41 Vt. 205. A motion, after a plaintifi" has put in his evidence, 
 for a ruling, that, " assuming that all the facts offered to be proved by 
 the plaintiff were actually and fully proved, the plaintiff was not entitled 
 to recover, and that the case should be withdrawn from the jury and a 
 verdict rendered for the defendant." Bradley v. Poole, 98 Mass. 169. 
 A motion before judgment to set aside a verdict as against law and con- 
 trary to public policy, and asking the court to rule so on inspection of 
 the declaration. McAllister v. Burrill, 98 Mass. 334. Submitting to the 
 jury the question whether a statement in writing is a mere offer of com- 
 promise or an admission of facts. Field o. Tenuey, 47 N. H. 513. Where 
 the evidence has been closed, and the parties have agreed to take a ver- 
 dict subject to the opinion of the court, the (piestion whether the case 
 shall be opened to admit further evidence. Wells v. Burbauk, 17 N. II. 
 393.
 
 CH. XII.] RULINGS. DISCRETION. 393 
 
 § 4. Error does not lie, for the overruling of a motion 
 to nonsuit the plaintiff, when the verdict in his favor is 
 for a less sum than the court can take cognizance of, on 
 the ground that his affidavit does not comply with the 
 requisitions of the statute.^ So no exception lies, for 
 refusal to dismiss an action for a defect in the declaration.^ 
 So (in Massachusetts) where the declaration contained 
 counts in contract and tort for the same cause of action, 
 and, after the evidence had been all introduced, the de- 
 fendant moved, that the plaintiff" should be required to 
 elect his count, and the other be stricken out ; but the 
 motion was overruled: held no ground of exception.^ So 
 it is no ground of exception, that, where the identity of 
 a horse was in question, the witness and jury were allowed 
 to inspect the horse in the court-yard.'' So no exception 
 lies, for refusal to recommit an auditor's report.^ So, in 
 Massachusetts, under Rev. Sts., c. 116, § 32, the compensa- 
 tion to be awarded to the presiding officer and sheriff' at 
 a trial, before a sheriff"s jury, of a complaint for flowing 
 lands, is within the discretion of the court below, and 
 cannot be revised by the Supreme Court upon exceptions.^ 
 
 § 5. The order in which questions shall be put or evi- 
 dence introduced is in general discretionary with the 
 court. ^(«) Thus, in an action against a ferryman, it was 
 
 > McAllister v. McDow, 3G Ala. N. H. 121 ; Plank, &c. v. Bruce, 
 
 453. 6 Md. 457 ; Warner v. Hardy, 
 
 2 Salem, &c. v. Hayes, 5 Ciish. ib. 525 ; Williams v. Dewitt, 13 
 458. Ind. ?)09 ; Nordyke v. Shearon. ib. 
 
 3 Carlton v. Pierce, 1 Allen, 36. 349 ; Moore v. Lea, 33 Ala. 375 ; 
 * Nutters. Ricketts, 6 Clarke, 93. Doyle v. Estornet, 13 La. An. 318 ; 
 5 Kendall v. Weaver, 1 Allen, Gordon v. Searing, 8 Cal. 49. But 
 
 277. see Williams v. Averitt, 3 Hawks, 
 
 ^ Richardson v. Curtis, 2 Gray, 308 ; Rice v. Cunningham, 29 Cal. 
 
 497. 493 ; Gordon v. Millandon. 16 La. 
 
 7 Per Dewey, J., Smith v. Mer- An. 347; Powell v. Hannibal, 35 
 
 rill, 9 Gray, 147 ; White v. Wallen, Mis. 457. 
 
 17 Geo. 106; Kent v. Tyson, 20 
 
 (o) Though the plaintiff thereby anticipate and defeat the defendant's 
 case. Carey v. Bright, 58 Penn. 70. The right, given by (Iowa) Rev.
 
 394 THE LAW OF NEW TRIALS. [ciI. XII. 
 
 held no error, to allow the plaintiff to introduce the ferry 
 license after motion of nonsuit.' So where evidence is 
 offered of conversations between the defendant and a 
 third person, wholly irrelevant unless communicated to 
 the plaintiff; it is discretionary with the judge to require 
 the plaintiff to first prove such communication, or to per- 
 mit the evidence of such conversations to be given in the 
 first instance.2 So a new trial was refused, where the 
 defendant, proposing to read a letter to himself from the 
 plaintiff, and one to the plaintiff in reply, was required 
 first to read the latter.^ So where the court allows a 
 party, after having closed his principal evidence, to intro- 
 duce at a later stage of the trial, and in connection with 
 rebutting evidence, evidence which pertains to his prin- 
 cipal case."* So, where part of a defence was the pendency 
 of another action for the same cause, which was disputed ; 
 the judge, on the plaintiff's suggestion, though ol)jection 
 was made, ordered that this issue should be first tried, 
 thus compelling the defendant to enter upon his defence 
 before the plaintiff had gone through with his case. Held, 
 this was a matter of discretion, for which a new trial could 
 not be had.'* So, on the other hand, it is not error, to refuse 
 to allow a party to read a part of a deposition at one stage 
 
 1 May 7). Hanson, 5 Cal. 300. » Mudscw. Picrco, .32 Maine, 105. 
 
 2 Downina; v. De Klyu, 1 E. D. ^ State v. Allbrd, ;]1 Conn. 40. 
 Smith 5G3 ^ Bedell v. Powell, 13 Barb. 184. 
 
 § 3070, to receive evidence "to correct an evident oversight or mistalie," 
 does not deny the power of the court to receive evidence out of the usual 
 order, where there is no surprise and justice is thereby promoted. Huey 
 V. Huey, 20 Iowa, 525. If a question is irrelevant, and the counsel says 
 he expects to connect it with the case, it is a matter within the discretion 
 of the court to admit the question or not. State v. Cherry, 63 N. C. 493. 
 Generally, the court will not control the order of proofs. But where 
 there is a fact essential as a basis for other evidence, it is within the dis- 
 cretion of the court to refuse the introduction of such other evidence, 
 until evidence of that fact shall have been produced. Johnson v. Brown, 
 25 Tex. (Hupp.) 120.
 
 CH. XII.] RULINGS. DISCRETION. 395 
 
 of the cause, and a part at another.' But a new trial was 
 granted for the exclusion of evidence to prove part of the 
 case, because the plaintiff did not first show that he would 
 be able to prove the whole case.^(«) 
 
 § 6. 1^0 exception lies for the admission of evidence in 
 
 reply, which should be regularly ofi'ered in chief.^ As in 
 
 case of the admission of evidence in chief for the com- 
 
 > 
 
 monwealth after that for the defendant.* But, on the 
 other hand, generally, if the plaintiff offers evidence in 
 the first instance to meet the answer; he cannot otter fur- 
 ther evidence on the same point, after the defendant has 
 introduced his testimony,' except, as is sometimes held, 
 by way of discretion.^ Hence no exception lies, for the 
 rejection of evidence in reply to rebutting evidence for 
 the plaintiff, unless such evidence tends to control the 
 plaintiff's rebutting testimony.^ So, in an action of 
 assault and battery, the plaintifi' rested on the evidence 
 of witnesses, who testified to the blow. The defendant 
 then called witnesses to disprove the striking. The plain- 
 tiff" then offered a witness to prove an admission of the 
 defendant of the striking. The court refused to hear the 
 witness, and it was held no error.^ So where the plaintiff* 
 
 ' Young V. Smith, 25 Mis. 341. * Com. v. Concannon, 5 Allen, 
 
 2 Pegg V. Warford, 7 Md. 583. 502 ; Com. v. Arrance, ib. 517. 
 
 3 Finlay v. Stewart, 56 Penn. ^ York v. Pease, 2 Gray, 282 ; 
 183 ; Day v. Moore, 13 Gray, 522 ; Kohler v. Wells, 26 Cal. 606. 
 Towns V. Riddle, 2 Ala. 694 ; Had- ^ Union v. Crary, 25 Cal. 504. 
 den V. Johnson, 7 Ind. 394; Robin- ^ Briggs v. Humphrey, 5 Allen, 
 son V. Fitchburg, &c., 7 Gray, 92 ; ^ Silverman v. Foreman, 3 E. D. 
 Martin v. McGuire, ib. 177; Mat- Smith, 322. 
 
 tocks V. Stearns, 9 Verm. 326 ; 
 Bryan v. Walton, 20 Geo. 480. 
 
 (a) In an action for seizure and conversion of goods, after the plaintiff 
 had called all his witnesses in chief, who had proved and referred to cer- 
 tain bills of sale which had been put in evidence but not read, the plain- 
 tiff proceeded to read them to the jury, to which the defendants excepted, 
 on the ground that it was too late. Held, that it was not error to permit 
 the bills of sale to be read. Carlyon v. Lannan, 4 Nev. 156.
 
 396 THE LAW OF NEW TRIALS. [CIl, XII. 
 
 read the direct answers in a deposition at the proper time, 
 and, after the detendant had closed his case, asked, but was 
 not allowed, to read the cross-answers; held, there was no 
 error.'(a) 
 
 § 7. It is no ground of exception to the admission, after 
 the defendant's testimony, of evidence for the plaintiff, 
 which tends to contradict the defendant's witness in a 
 material point, that it also tends to corroborate the case 
 made hy the plaintiff's evidence in cliief.^ 
 
 § 8. Where the defendant offered evidence, wdiich was 
 excluded; the plaintiff then offered evidence upon the 
 same point, and the court gave leave to the defendant to 
 introduce his evidence, but he declined: held, no ground 
 of exception.^ 
 
 31S 
 
 ' Wood V. Gibbs, 35 Miss. 559. » Tisdale v. Mitchell, 12 Tex. 68. 
 
 2 Cliadbouni v. Fraiikliu, 5 Gray, 
 
 (a) Testinioriy is not rebutting unless it has reference to some new 
 question raised by the evidence of the opposite party. Boies v. Ilenney, 
 32 111. 130. Testimony in chief, tending merely to support the credit of 
 a witness, is not to be heard except in reply to evidence by the opposite 
 party to impeach it. United States v. Holmes, 1 Cliff. 98. A party, 
 being a witness, may testify to his intention in performing an act, to rebut 
 evidence that such intention was fraudulent. Graves v. Graves, 45 N. 
 II. 323. On the trial of an issue, ordered according to statute, in a suit 
 to contest a will, the defendants, who had the affirmative, offered the will, 
 with the probate. The contestants having concluded their testimony, 
 the defendants were properly allowed to introduce general evidence sus- 
 taining the will. Runyan v. Price, 15 Ohio St. 1. If, pending the argu- 
 ment, a dispute arises, whether a paper has been put in evidence, and the 
 court decides that it has, and thereby the counsel for either party is taken 
 by surprise; he should immediately request leave to introduce any new 
 or rebutting testimony. Schellhous v. Ball, 29 Cal. G05. In Vermont, 
 after the plaintifif has introduced rebutting evidence, no further testi- 
 mony can be introduced by the defendant, upon a point to which he has 
 already had full opportunity to reply. Thayer v. Davis, 38 Vt. 103.
 
 CH. XII.] RULINGS. DISCRETION. 397 
 
 § 9. The court may in its discretion, after a case is 
 closed, so far as relates to the evidence, order it to l)e 
 opened, and further evidence to be received.' jSTor is such 
 action any ground for reversal, unless it appears that 
 injustice has been done by an abuse of discretion. ^ "Ob- 
 jections to the introduction of testimony, depending upon 
 the time at which it was admitted, are not a subject of 
 exceptions."^ Thus where evidence is introduced after 
 the close of the argument, but causes no surprise to the 
 opposing counsel, and has no effect on the verdict, it is not 
 error.* Or to allow the prosecution, in a criminal case, to 
 recall witnesses and give additional testimony, after the 
 'evidence is closed on both sides, and the instructions are 
 agreed on by the court.* (See § 12.) More especially the 
 opening of a case for further testimony, after the parties 
 have rested, is in the discretion of the justice, while the 
 parties, with their witnesses, are all present.^ Thus a new 
 trial was refused, where, after commencement of the plain- 
 tiif's closing argument, the defendant was allowed to offer 
 evidence explanatory of entries in the defendant's books, 
 then pointed out for the first time.^ So, after the evidence 
 has been closed, it is within the discretion of the court, to 
 allow the introduction of any proper evidence, to show 
 that a deed relied on by the other side is a forgery.^ Or 
 to permit the plaintiif, after his case was closed and an 
 instruction moved on it, to show the character of the 
 notice he had given indorsers.^ Or to permit additional 
 evidence to go to the jury, to prove the venii^e as laid, after 
 the argument has been closed and the jury instructed.^" 
 
 ' Burner v. White, 2 Bosw. 92. ^ Mathis v. Colbert, 24 Geo. 384. 
 
 2 Prie'st V. Union, &c., 6 Cal. 170. s State v. Porter, 20 Mis. 201. 
 
 3 Per Dewey. J., Smith v. Mer- s Harpell v. Curtis, 1 E. D. 
 rill, 9 Gray, 147 ; Coates v. Grego- Smitli, 78. 
 
 ry, 10 Ind. 345 -, ]\Iowry v. Star- ' Smith v. Merrill, 9 Grav, 147. 
 
 buck. 4 Cal. 274 ; 1 E. D. Smith, s Wells v. Walker, 29 Geo. 450. 
 
 78; Barker I). State, 5 Flori. 199; » .Tolmston o. Mason. 27 Mis. all. 
 
 Hooker v. Johnson, 6 ib. 730. '" Dave v. The State, 22 Ala. 23.
 
 398 THE LAW OF NEW TRIALS. [CIL XII. 
 
 Nor is it material that no reason is assigned for changing 
 the reguhir order of evidence.'(a) 
 
 § 10. But, on the other hand, it is not error to refuse a 
 motion to recall a witness after the case was announced to 
 be closed; as, for instance, to inquire in regard to a state- 
 ment made by him in presence of the })laintitf's intestate, 
 which was not contradicted by the intestate, nor his atten- 
 tion particularly called to it.^ Nor a refusal to allow the 
 party holding the aflirmative to give new evidence, not in 
 answer to new matter introduced on the other side, after 
 his case is closed.^ Nor the refusal to call a witness to 
 restate his testimony, after a cause has been summed up 
 and the jury charged.^ Nor the refusal to allow counsel, 
 after the argument has been closed and the cause sub- 
 mitted to the jury, to explain a distinction applicable to 
 the case.^ So no exception lies for rejection of a plan, 
 ottered after the closing of the testimony." So, in a capi- 
 
 ' Kay V. Smith, 9 Gray, 141. See 5C0; Witherspoon v. Cain, Walker, 
 
 Detroit V. Van Steinburg, 17 Mich. 407. 
 
 99. 5 Chamberlain v. Masterson, 26 
 
 2 Beale v. Hall, 22 Geo. 431. Ala. 371 ; Ricketts v. Pendleton, 14 
 
 3 Graham v. Davis, 4 Ohio (N. Md. 330 ; Sauford, &c. v. Wiggin, 
 S.) 363. 14 N. H. 441. 
 
 * ThePeopleo. Rector, 19 Wend. ^ Bacon v. Williams, 13 Gray, 
 
 525. 
 
 (a) In England, it is in the discretion of the court to allow a plain- 
 tiff to offer evidence in answer to the case set up by the defendant. 
 Shrubsole v. Sussams, 16 C. B. (N. S.) 452. It lies in the discretion of 
 the court, to admit or overrule evidence offered in rebuttal, which might 
 have been given in chief. Gaines v. Com. 50 Penn. 319. Or to admit 
 rebutting testimony, after the prayers have been admitted on both sides 
 and the argument thereon nearly concluded, when the witnesses have 
 been retained for the purpose, and the other side notified of the fact and 
 nature of the proof, and when there is a rule of court investing it with 
 that discretion. Dailcy v. Grimes, 27 ISId. 440. Or to allow a party to 
 introduce further evidence, even after the argument has been concluded. 
 Watt V. Alvord, 25 Ind. 533. Or rule out evidence which has been ad- 
 mitted, even after the closing arguments and the charge. Judge v. Stone, 
 44 N. H. 593.
 
 CH. XII.] RULINGS. DISCRETION. o99 
 
 tal trial, after the closing argument for the commonwealth 
 was commenced, the defendant proposed to introduce ad- 
 ditional evidence which had then first come to lier know- 
 ledge, but the evidence was not admitted. Held, the 
 motion was addressed to the discretion of the court, and 
 exceptions did not lie.^ So, in an action against a com- 
 mon carrier, the plaintiif having closed his case, and the 
 defendant's counsel commenced his argument, the judge 
 stopped him, by stating his opinion in favor of tlie de- 
 fendant, and also what was the principal question to be 
 decided. The plaintiff then offered to prove, under the 
 common counts, a receipt of money by the defendant, but 
 the evidence was excluded. Held, no ground of new trial.^ 
 So a new trial was refused, where, after the evidence on 
 both sides was closed, and the counsel for the defendant 
 had said there was no further testimony, and proceeded in 
 the summing up; a witness appeared in court, and was 
 ofl:ered by him, but rejected; the plaintiff saying that his 
 witnesses had left.^ 
 
 § 10a. Permitting counsel to ask his own witness a 
 leading question is no ground of new trial."* More espe- 
 cially, unless objected to, so as to give opportunity for 
 changing the form.^ It is remarked in a late case: "We 
 are not aware of any case in which a new trial has ever 
 been granted for the reason that leading questions, though 
 objected to, have been allowed to be put to a witness."^ 
 So a new trial cannot be had, for the admitting of an 
 answer to a leading question in a deposition.^(a) 
 
 ' Com. V. Doneer, 4 Allen, 299. Maine, 137; Hopkinson v. Steel, 12 
 
 2 Edwards v. Sherratt, 1 E. G04. Verm. 583. 
 
 3 Alexander v. Byron, 2 John. ^ Kemmerer v. Edelman, 23 
 Cas. 318. Penn. 143. 
 
 * Mershon v. Haversack, &c., 2 6 PerMetcalf, J., Green «. Gould, 
 N. J. 372 ; Parsons v. Huff, 38 3 Allen, 406. 
 
 ^ Bliss V. Shuman, 47 Maine, 248. 
 
 (a) Nor, on the other hand, for expunging irrelevant interrogatories 
 to a party. Elliott v. Lyman, 3 Allen, 110. So when the aiswor of a
 
 400 THE LAW OF NEW TRIALS, [CII. XII. 
 
 § 10/j. A new trial was denied, where a continuance 
 had been refused for the absence of a witness, upon the 
 admission of what ho would testify; such admission not 
 boino; read to the jury.^ But where a continuance was 
 moved for on the ground that a witness was absent, and 
 refused because the party could jirove the same facts by a 
 witness who was present, and the court charged the jury 
 that the party needed two witnesses to prove his case; a 
 new trial was granted.^ 
 
 § 11. It is no ground of exception, that, at the time of 
 swearing his witnesses, and before they were examined, 
 the defendant moved the court to remove such of the plain- 
 titi"'s witnesses out of hearing as the latter held in reserve, 
 which motion was overruled.^(a) Or that witnesses were 
 ordered to leave the court while others testified, and, 
 although they did not, were still allowed to testify.^ Xor 
 that the court rebukes a witness for unbecoming levity.' 
 Nor docs an exception lie, to a ruling u})on the question, 
 whether a deposition read shall go to the jury.^ Or to the 
 admission in evidence of a second deposition of the same 
 witness, taken without a previous order.^ So, after the 
 plaintiff liad put in his case, the defendant read a deposi- 
 tion, and afterwards proposed to produce the deponent on 
 the stand, for the purpose of rel)utting some part of the 
 plaintiff's evidence. The plaintiff objected, unless the 
 
 ' Pannell v. State, 29 Geo. 681. < Com. v. Hall, 4 Allen, 306. 
 
 2 Young V. Gibson, 3 Tex. 417. « Thomas ». State, 27 Geo. 287. 
 
 ' Sanders v. Johnson, 6 Blackf. ^ Whiiliead c.Keves, 8 Allen,49o. 
 
 50. ^ Herljcrti'.Uaufick, 16Ala.581. 
 
 witness is not responsive to the question asked, or is a voluntary state- 
 ment made by him. the court may order it to be stricken out. Koquest 
 V. Boutin, 14 La. An. 44. In Xew ilampshire, if the court allow lead- 
 ing questions, it will be presumed, on a motion to set aside the verdict, 
 that the discretion was properly exercised, unless the case states enough 
 to show the contrary. Kendall v. Brownson, 47 N. H. 186. 
 
 (a) It is error, under an order for the separation of witnesses, to ex- 
 clude a party from the court-room. Larue v. Russell, 2G Ind. 38G.
 
 en. XII.] RULINGS. DISCRETION. 401 
 
 deposition should be first withdrawn. The ruling out of 
 the testimony was held to be a proper exercise of the 
 sound discretion of the court.^ So, a jury returning to 
 inquire as to the testimony of a witness, the witness was 
 produced, and asked what he had testified, to which he 
 replied as nearly as he could remember. Tlie counsel 
 were not permitted to examine the witness, and, it being 
 doubted what his testimony was, the judge read it from 
 his minutes, and again refused a re-examination. Held, 
 no ground of exception.^ 
 
 § 12. Although, in general, there is no right to recall a 
 witness,^ yet this is a matter in the discretion of the court. ^ 
 Thus the court may permit a witness for the plaintiff to 
 be recalled, after the defendant has closed his case.^ Or 
 permit a witness to be recalled after the arguments have 
 commenced, where a question has arisen as to his testi- 
 mony.^ (See § 9.) 
 
 § 13. But a new trial will not be granted, for refusal to 
 have a cross-examination resumed, after the examination 
 was closed.^ Nor for refusal to permit re-examination of 
 a witness.^ " In regard to the re-examination of witnesses 
 after they have left the stand, it was purely discretionary 
 with the referees ; and the exercise of that discretion can 
 only be reviewed here, if at all, when it plainly appears 
 that it was abused, to the defendant's prejudice."^ So a 
 refusal to order, that a party who has been fully exa- 
 mined and cross-examined as a witness, and has left the 
 court-room without notice to the adverse party, should 
 either return to be further examined, or have his testi- 
 
 ' Hopkins v. Clark, 30 Tex. 64. « INIanly v. Culver, 20 Tex. 143. 
 
 * Herring v. State, 1 Clarke, 205. ^ Van Cort v. Van Cort, 4 Edw. 
 3 State V. Ruhl, 8 Clarke, 447. Ch. 621. 
 
 * Dunckle v. Cocker, 11 Barb. * Barton v. Morpliis, 4 Dev. 240. 
 387. See Meakin v. Anderson, 11 ^ Per Woodruff, J., Sheldon v. 
 Barb. 215. Wood, 2 Bosw. 285. 
 
 ^ Fairchild v. California, &c., 13 
 Cal. 599. 
 
 26
 
 402 THE LAW OF NEW TRIALS. [CIL XII. 
 
 mony stricken out ; is no ground of exception.^ So the 
 application of a witness to explain his testimony is ad- 
 dressed to the discretion of the court.^ So no exception 
 lies to any ruling as to the re-examination of a witness 
 on matters not testified of in cross-examination.' And, 
 if a witness is recalled merely to reaffirm his former state- 
 ments, the court may refuse to allow his recall.* So no 
 exception lies, where the direct and cross-examination of 
 a witness has been several times taken up and dropped, 
 and further cross-examination is stopped by the court.X«) 
 
 § 14. On motion, the cross-examination of tlie party in 
 the cause may be deferred, until all the witnesses upon 
 the particular pleading have been dismissed." And no 
 exception lies, for stopping cross-examination upon imma- 
 terial matters.^ {b) 
 
 § 15. Though the order in which witnesses are to be 
 examined, and the number which may be called to the 
 same point, are in general matters of discretion and not 
 
 • Ward «. Fuller, 7 Gray, 179. ^ Com.«.Nickerson, 5 Allen, 518. 
 2 Lindsay v. Wayland, 17 Ark. ^ Tarlby «. Parlby, 9 Eng. L. and 
 
 385. Eq. 573. 
 
 ^ Kendall v. Weaver, 1 Allen, ' llutchinson v. Methuen, 1 Al- 
 277. len, 33. 
 
 * Atchison ■». Steamboat, &c., 14 
 Mis. 63. 
 
 (a) If, after the evidence is closed on both sides, leave is granted to 
 the defendant to recall a witness to make an explanation of some point in 
 his testimony ; it is a matter within the discretion of the court to pre- 
 scribe the terms and limit the examination. State v. Harris, G3 N. C. 1. 
 
 (&) AVhere a controversy arose in the course of a trial as to the terms 
 of a contract, wluch the plaintiff alleged and the defendant denied to 
 have been in writing; and one of the defendant's witnesses, in testifying 
 to its terms, stated tliat it was not in writing : held, the plaintiff could 
 not, as of right, thereupon interrupt, to cross-examine the witness, and 
 to adduce other evidence on this point, before this witness was allowed 
 to close his testimony. It was a question of discretion. Jenuess v. 
 Berry, 17 N. H. 549. '
 
 CII. XII.] RULINGS. DISCRETION. 403 
 
 a subject for exceptions ;'(«) yet the distinction has been 
 taken, in New York, that, while a circuit judge may in 
 his discretion limit the number of witnesses to be ex- 
 amined on a collateral issue as to the character of the 
 plaintiff", or that of either of the witnesses in the cause, 
 and at any stage of the examination ; and the exercise of 
 such jurisdiction cannot be reviewed by bill of exceptions: 
 the remedy, where it works injustice, is by a motion for 
 a new trial.^ And the general rule on the subject of dis- 
 cretion will not be enforced to the sacrifice of manifest 
 justice. It is said: "Though this court should not, upon 
 slight grounds, interfere to control the discretion, in mat- 
 ters of mere practice, to be exercised in the inferior courts 
 in the control of suitors, the preparation of causes for 
 trial, the order of trial, that discretion should not be exer- 
 cised in violation of law, or in such manner as to endanger 
 materially the rights of litigants, or to defeat the ends of 
 justice." Thus, in an action for breach of promise of 
 marriage, about three weeks before the trial, the defendant 
 was informed by his counsel, that, in consequence of the 
 crowded state of the docket, the case could not be reached. 
 The defendant accordingly left the State on business. 
 By an irregular call of the docket, prior causes being un- 
 expectedly disposed of, this case was reached, and a ver- 
 dict found against the defendant. Held, a new trial should 
 be granted. 3 So it is held that a new trial will not be 
 granted in a criminal case, for the reason that a continu- 
 ance was denied, unless there is cause to apj^rehend that 
 there was an abuse of the discretion of the court below, 
 which worked a wrong to the respondent.^ 
 
 ' Gushing v. Billings, 2 Ciish. 89. See Wadswortli v. Thompson, 
 
 158. 18 Geo. 709. 
 
 2 Nolton -y. Moses, 3 Barb. 31. ■> Eppes «. The State, 10 Tex. 
 
 * Donallen v. Lennox, 6 Dana, 474. 
 
 (a) The courts may limit the number of witnesses to be examined, and 
 the number of depositions to be read, to prove a particular fact. Gray 
 V. St. John, 35 111. 222.
 
 404 TUE LAW OF NEW TRIALS. [CH. XII. 
 
 § 16. For a refusal to continue certain criminal cases 
 till the existing excitement had subsided, a new trial was 
 ordered by the court above. ^ And, in another case, in 
 which a party charged with assault with intent to murder 
 moved for a continuance, on the grounds that he was pre- 
 vented by imprisonment from preparing for trial, and that 
 there was a great excitement against him; the court re- 
 mark: "This court has said, that it would not interfere 
 with the discretion of the court below, in regard to con- 
 tinuances, except in cases of manifest injustice, or where 
 there had been a flagrant abuse of such discretion. This 
 record, in our judgment, presents such a case."^ 
 
 § 17. So although it is held to be no ground of excep- 
 tion, that a judge has wrongly ruled at nisi jJrius as to 
 which party must begin, unless such ruling did clear and 
 manifest injustice ;3 or a failure of the court below, in a 
 case where special matter is pleaded, to allow the de- 
 fendant's counsel to open and close, the verdict against 
 him not appearing contrary to evidence ;^ and especially 
 where it does not appear that the ruling was not accord- 
 ing to the rules of practice of the court where the trial 
 was had:^ yet the better rule would seem to be, that a 
 new trial will be granted for refusal of the right to begin, 
 unless it be clearly shown that no injury resulted. As 
 where, in a suit upon a note, the defendant admitted the 
 execution, and set up usury." So it is error, not to permit 
 the defendant's counsel to open and conclude a cause before 
 a jury, on the trial of issues taken on the pleas of pay- 
 ment and set-ofl:7 So, although the allowance of an 
 amendment is discretionary with the court, it is error, to 
 
 1 Bishop??. The State, 9 Geo. 121. ^ Day v. Woodsworth, 13 How. 
 
 2 Per Warner, J., Howell v. The U. S. 3G3. 
 
 State, .") Geo. 48. ** Iluutiiiixtou ?).Conkey, 33 Barb. 
 
 » Branford v. Freeman, 1 Eng. 21 ; Ayrault v. Chamberlain, ib. 
 
 L. andEq. 444. 229. 
 
 * Steptoe V. Harvey, 7 Leigh, ^ Churchill v. Rogers, Hardiu, 
 
 501. 182.
 
 CII. XII.] RULINGS. DISCRETION. 405 
 
 refuse to exercise that discretion in a proper case, which 
 will furnish ground for a new trial. ^ So, after the de- 
 fendant's counsel had summed up, and while the plaintiff's 
 counsel were addressing the jury, the former stated, that, 
 from inspection of a paper, in possession of a witness for 
 the plaintifi' who had been examined, he had discovered 
 material evidence, showing that the defendant had not 
 received the money in question, at the time of suit brought, 
 and proposed to introduce it, but it was rejected, the 
 plaintiff objecting. The court say: "The evidence offered 
 was material. — The judge, under the circumstances, had 
 a discretion to admit the evidence ; and it ought in sound 
 discretion to have been received."2(«) 
 
 ' Russell V. Conn, 20 N. Y. (6 2 Mercer v. Sayre, 7 John. 306. 
 Smith) 81. See Fry v. Bennett, 28 
 N. Y. (1 Tiffa.) 324. 
 
 (a) We have already (chap. 2) considered how far the granting or re- 
 fusing of a new trial is itself a matter of discretion. That it is so, see 
 the following authorities : Harmison v. Clark, 1 Scam. 131 ; Garner r. 
 Crenshaw, ib. 143 ; Gillet v. Stone, ib. 539 ; Werkheiser v. Werkheiser, 
 6 Watts & Serg. 184 ; Martin v. Hays, 5 Mis. 62 ; Chambers v. Camp- 
 bell, 15 Conn. 427 ; Bisel v. Hobbs, 6 Blackf. 479; Hodges v. Springer, 
 5 ib. 103 ; Magill v. Lyman, 6 Conn. 59 ; Lewis v. Hawley, 1 ib. 49 ; 
 Kimball v. Cady, Kirby, 41 ; Anderson v. State, 5 Har. & J. 174 ; Marine 
 Ins. Co. V. Hodgson, G Cranch, 206 ; Marine Ins. Co. v. Young, 5 ib. 187 ; 
 Henderson v. Moore, ib. 11 ; Clemsen v. Kruper, Breese, 162; Collins v. 
 Claypole, ib. 164 ; Street v. Blue, ib. 201 ; Yernon v. Uaj, ib. 229. 
 Otherwise in Indiana and Missouri. Goldsby v. Robertson, 1 Blackf. 21 ; 
 State V. Bird, 1 Mis. 585. With reference to the right to operi and 
 dose; in England, the general rule in appeals is, that the respondent begins ; 
 but when, under St. 20 and 21 Yict., c. 43, the appellant insists that the 
 complaint has been wrongfully dismissed, the appellant shall begin. 
 Jones V. Taylor, 1 Ell. & B. 20. On cross-demurrers by plaintiff and 
 defendant, the former begins. Blackburn v. Parkinson, 1 Ell. & E. 71. 
 In the (Jourt of Exchequer, when cross-demurrers are to be argued, the 
 party demurring first is entitled to begin. Redway v. Sweeting, Law 
 Rep. 2 Ex. 400. In New Hampshire, the party on whom the burden of 
 proof in the first instance devolves has the right to open and close ; and 
 an error in the ruling of the court in this respect is good ground of ex-
 
 406 THE LAW OF NEW TRIALS. [CH. XII. 
 
 ception. Judge v. Stone, 44 N. IT. ^92. In Iiidiiuia, -wlicn tlie burden 
 of the issue is upon the defendant, he is entitled to open and close the 
 argument. List v. Kortepeter, 26 Ind. 27. Where a complaint is con- 
 fessed and avoided, and the answer is wholly denied and also confessed 
 and avoided, the defendant has the right, under the code, to open and 
 close. Judah v. Vincennes, 23 Ind. 273. Where the defendant, in open 
 court, before entering upon the trial, admits the plaintiff's cause of action, 
 he will be entitled to open and close. Aurora v. Cobb, 21 Ind. 402. In 
 Kansas, a suit was brought for the price of a carriage : the defendant 
 answered by a general denial of the debt, and by alleging that he had 
 delivered to the plaintiff an order for the sum due, which the plaintiff 
 had accepted in lieu of payment. Held, under g 277 Civil Code, the de- 
 fendant had not the right of opening the case and introducing evidence 
 on his part first. The right to open and close the argument is governed 
 by the same rule as the production of testimony. Perkins v. Ennel, 2 
 Kans. 325. In Texas, a defendant has not a right to open and close, in 
 a suit to recover for medical services, when the answer admits that the 
 services were performed, and that the charges were the usual charges for 
 such services, but alleges that, by reason of the unskilful and negligent 
 treatment of the plaintiff, he received great damage. Graham v. Gau- 
 tier, 21 Tex. 111. In Wisconsin, where one of the issues presented by 
 the pleadings was, whether notes sued on were usurious, it was not error 
 to deny the defendant's counsel the privilege of opening and closing the 
 argument, as to that issue. It is not usual thus to divide the issue ; and 
 at all events a mistake in that respect would be no ground for a new 
 trial, unless injustice was shown to have resulted from it. Central v. St. 
 John, 17 Wis. 157.
 
 CH. XIII.] ADMISSION OR REJECTION OF EVIDENCE. 407 
 
 CHAPTER XIII. 
 
 EVIDENCE.— ADMISSION OR REJECTION OF EVIDENCE. 
 
 1. General rule. 
 
 3. Effect of an instruction to 
 disregard incompetent evidence, 
 &c. 
 
 4. Irrelevant or immaterial evi- 
 dence. 
 
 11. Cumulative evidence. 
 
 15. Conflicting evidence. 
 
 16. Infamy of witness. 
 
 17. Incompetent question. 
 19. Secondary evidence. 
 
 21. Admission, as affecting the 
 course of trial. 
 
 22. Purpose of offering the evi- 
 dence, as affecting its competency. 
 
 27. Miscellaneous. 
 
 30. Writings, hearsay, secondary 
 evidence. 
 
 34, 42. Evidence connected with 
 other evidence. 
 
 39. Reasons for rejecting evi- 
 dence. 
 
 40. Trial by the courts or upon 
 torit of inquiry. 
 
 41. Interlocutory proceedings. 
 43. Evidence as connected with 
 
 the pleadings. 
 
 49. Whether evidence must be 
 confined io facts. 
 
 52. ]\Iay come from either party. 
 
 53. Must be regularly offered. 
 
 54. Must be objected to ; form of 
 objection. 
 
 60. Questions of time. 
 
 70. Depositions. 
 
 72. Set-off. 
 
 78. Practice in New York. 
 
 75. Waiver. 
 
 § 1. Though said not to be without exceptions,^ yet it 
 is the general rule, that the admission, against objection, 
 of material, inadmissible evidence, or the exclusion of 
 competent evidence, is ground of exception or motion for 
 a new trial.^ More especially if calculated to make an 
 impression upon the minds of the jury.^ Or where there 
 is reason to believe that it influenced the jury in their 
 verdict, or where the losing party may have been injured 
 
 • 27 Maine, 35. 
 
 2 Trigg u. Conway, 1 Hemp. 538; 
 Clemson v. Cruper, 1 Bree. 162 ; 
 Thomkins v. Hill, 7 Mod. 64 ; 
 Bignall v. Devnish, 6 ib. 242 ; 
 Gravenor «. AVoodhouse, 1 Bing. 
 38 ; Freeman v. Arkell, 2 B. & C. 
 
 494 ; Preston v. Harvey, 2 H. & 
 Munf. 55 ; Baxter v. Abbott, 7 
 Gray, 71 ; Cook v. Brown, 39 
 Maine, 443 ; The Queen v. Wilts, 
 6 Mod. 307. 
 3 Boyle V. Colman, 13 Barb. 42.
 
 408 THE LAW OF NEW TRIALS. [CII. XIII. 
 
 by it.' If illegal evidence be received, which may have 
 had weight with the jury on a material issue, and a bill 
 of exceptions be taken; the court has not power to exer- 
 cise any discretion, in granting or refusing a new trial.-(rt) 
 And it makes no difference, that the evidence has been 
 wrongly admitted conformably to a general practice.^ 
 
 § 2. The point has been much discussed, whether an 
 instruction from the court to disregard incompetent testi- 
 
 • Handlcy «. Call, 27 Maine, 35 ; Geo. 843; Culver ■«. D wight, 6 
 Undcrhill «. N. Y., &c., 21 Barb. Gray, 444. 
 
 489 ; Whiting v. Otis, 1 Bosw. 420. ^ "Weeks v. Lowerre, 8 Barb. 
 But see Fitzgerald v. Williams, 24 530. 
 
 » Doe V. Perkins, 3 T. R. 749. 
 
 (a) But where, at a trial in Bengal, the judge received certain docu- 
 mentary evidence; the Supreme Court, on an application for a new trial 
 on the ground of such evidence being improperly received, should con- 
 sider the importance of the evidence. East India Co. v. Paul, 1 Eng. 
 L. and Eq. 44. An exception lies to incompetent evidence, though 
 harmless, except in very clear cases. 8 Bosw. 415. It is not error to 
 admit relevant evidence, although the adverse party admits the fact 
 sought to be proved. Clayton v. Brown, 30 Geo. 490. On the other 
 hand, where a fact proposed to be proved is admitted, it is not error for 
 the court to refuse to let it be proved by witnesses. Pridgen v. Banner- 
 man, 8 Jones L. 53. An improper ruling out of evidence is an error of 
 law occurring at the trial, and is embraced in the eighth, not the sixth, 
 specification of causes for which, under (Ind.) 2 G. <fe H. ? 352, a new 
 trial may be granted. Shirk v. Cartright, 29 Ind. 406. There is no rule 
 of law requiring that inquiries as to the admissibility of evidence should 
 be conducted apart from the jury in criminal cases. Mose v. State, 36 
 Ala. 211. The admission of material, incompetent evidence, under ob- 
 jection, is ground for a new trial, although neither court nor counsel 
 alluded to it afterwards. Brown v. Cumnings, 7 Allen, 507. An appel- 
 late court will not grant a new trial for the erroneous admission or rejec- 
 tion of evidence as to a question of deceit, unless the error is not only 
 striking, but also calculated to mislead the minds of the jury. Walker 
 V. Hawxhurst, 5 Blatchf. C. C. 494. In North Carolina, when a witness 
 is allowed to testify, against objection, and the judge does not state the 
 facts on which his opinion in favor of the competency depends, the parties 
 disagreeing as to the facts, a new trial will be ordered, because the record 
 is defective. State v. Norton, 1 Wins. No. 1, 303.
 
 CH. XIII.] ADMISSION OR REJECTION OF EVIDENCE. 409 
 
 mony would obviate the objection to its admission. It 
 was said in an early case in New York, " The admission 
 of such testimony (of a party's own declarations) was 
 illegal and dangerous, and no subsequent caution or ad- 
 vice by the justice, that the jury ought to disregard what 
 the witnesses had sworn, can cure the irregularity."' So 
 in a late case in Pennsylvania, in an action for breach of 
 a boating contract, the judge charged, that the printed con- 
 tract was the contract of the parties, and that all adver- 
 tisements, representations, proposals, or negotiations (of 
 which evidence had been admitted), were merged in this 
 contract. But the evidence was not withdrawn from the 
 jury. In ordering a venire de novo, the court — Strong, J. 
 
 remarked : " We cannot think this an adequate remedy 
 
 for the mischief. Undoubtedly, when a mistake has been 
 made in the admission of evidence, it may subsequently 
 be rectified. It may be withdrawn by the party who has 
 given it, or the court may withdraw it, and positively 
 instruct the jury to disregard it, to discard it from their 
 view. In such a case, it is the duty of the court to see 
 to it that no mischief is done ; that the illegal evidence 
 be withdrawn, luholli/ ivithdrawn, and loithdraion for every 
 'purpose."^ So a new trial may be had for the admission 
 of illegal evidence, though counsel state to the jury that 
 they do not ask or desire a verdict founded thereupon ; 
 but the court does not expressly exclude it.^ 
 
 § 3. But on the other hand it has been held, in Eng- 
 land, that the admission of incompetent evidence is not 
 ground of new trial, where the jury were instructed not 
 to notice it, and the nature of the verdict showed that 
 they did not. As where, in an action for seduction of a 
 
 1 Penfield v. Carpenter, 13 John. Gilkeson, 5 S. & R. 353 ; Ingliam 
 350. Ace. Erben v. Lorillard, 19 v. Crary, 1 Pen. & W. 389 ; 
 N. Y. C5 Smith) 399. Unangst v. Kraemer, 8 W. &■ S. 
 
 2 The Delaware, &c., v. Barnes, 391. 
 
 31 Penn. 196. See Shaetfer v. ^ Decherd v. Morrison, 3 Swan, 
 Kreitzer, 6 Binn. 430 ; Nash v. 305.
 
 410 THE LAW OF NEW TRIALS. [CH. XIII. 
 
 daiiirliter, a promise of marriage was proved, and the ver- 
 dict^vas for only £50.' So in a late case in Massachu- 
 setts, it is held that no exception lies for the admission 
 of evidence which afterwards appears to be irrelevant, 
 unless the exceptions show that the court did not instruct 
 the j iny to disregard it.^ In dissenting from the doctrine, 
 upon this subject, of the court in New York, Parker, J., 
 remarks: "The reason that the testimony so given in 
 presence of the jury might have an influence, though they 
 are directed to disregard it, would apply with equal force 
 in all cases where anything irrelevant may have crept in 
 during the course of the trial, and would entitle parties 
 to a succession of new trials, until no sentences should 
 have been uttered which, by any possibility, might have 
 an undue influence, though the jurors were unconscious 
 of any influence. "^ In a subsequent case, the same learned 
 judge remarks, that, " where the irrelevant testimony evi- 
 dently may or must have influenced the jury, notwith- 
 stahding the instruction to disregard it, a new trial will 
 be granted."* 
 
 § 4. Whether the admission or rejection of irrelevant or 
 immaterial evidence is ground for a new trial, seems to be 
 a point not well settled.(«) 
 
 § 5. It is held, on the one hand, that the admission of 
 irrelevant evidence is a good ground for a new trial ; be- 
 cause it is impossible to say what influence the evidence 
 
 1 Tulli(l<'-e V. AVadc, 3 Wils. 18. ^ Deerfield «. Nortluvood, 10 N. 
 
 2 Kundall v. Dnane, 9 Gray, 408. H. 2GU. 
 
 3 llamblett v. llamblelt, G N. II. 
 333. 
 
 (rt) A new trial will not be granted because tlie judge admitted im- 
 material testimony de bene esse, against objections, when in the charge 
 the jury were instructed to disregard it. Philbrook v. Burgess, 52 Maine, 
 271.
 
 CH. XIII.] ADMISSION OR REJECTION OF EVIDENCE. 411 
 
 may have exerted on the minds of the jury.' So, although 
 the jury might have found the same verdict had the tes- 
 timony been kept out.^ More especially if the evidence 
 had a tendency to prejudice their minds, or raise false im- 
 pressions, the court may in their discretion grant a new 
 trial.3 Thus, on a trial for larceny, evidence was admitted 
 of a conversation, in which the prisoner asked a witness 
 to "notice where A. kept his money." Such evidence 
 was totally irrelevant to the charge on trial, and all the 
 evidence in the case was circumstantial. Held, sufficient 
 ground for a new trial.^ So where the plaintiif was the 
 mother of the defendant, and incompetent but immaterial 
 evidence was admitted, subject to exception, consisting of 
 vile, profane, and abusive language used by the defendant 
 in regard to the plaintiff; it was held that, such evidence 
 being highly calculated to prejudice the minds of the 
 jury, and being ruled admissible by the court, the verdict 
 should be set aside.^(a) 
 
 § 6. In justification of this class of decisions, it is said: 
 "Illegal or improper evidence (however unimportant it 
 
 ' Dresser «. Ainsworth, 9 Barb. Wiukley v. Foye, 33 N. H. 171. 
 
 619 ; 10 B. Mon. IG ; Dougherty v. Pee Buddington v. Shearer, 22 
 
 Vanderpool, 35 Miss. 165 ; Thur- Pick. 427 ; Com. v. Bosworth, ib. 
 
 mond V. Trammell, 2 Tex. 257; 397; Clark «. Vorse, 19 Weud. 232; 
 
 Walpole v. Renfroe, 16 La. An. 93. Swamscott, &c. v. Walker, 2 Fost. 
 
 2 Daniel v. Nelson, 10 B. Mon. 457 ; Keyes v. Throop, 2 Aik. 276. 
 316 * Shaw V. State, 8 Sneed. 86. 
 
 3 Ellis V. Short, 21 Pick. 142 ; s Center v. Center, 38 N. H. 318. 
 
 (a) A new trial will be granted for the admission of totally irrelevant 
 testimony, when the other testimony is not preserved in the record, and 
 the court therefore cannot tell what the verdict should have been without 
 the testimony improperly admitted. Smith v. Russ, 22 Wis. 439. One 
 party cannot, by consenting to the admission of irrelevant evidence 
 offered by the other, acquire a right to introduce evidence equally irrele- 
 vant. Shank v. State, 25 Ind. 207. When the court, after granting a 
 motion for the suppression of a deposition as containing irrelevant matter, 
 permits the matter to go to the jury without a reasonable notice to 
 the party making the motion, the latter is entitled to a new trial. The 
 Violet V. McKay, 23 Ark. 543.
 
 412 THE LAW OF NEW TRIALS. [CII. XIII. 
 
 may bo to the cause) ought never to be confided to the 
 jury; for if it should liave an influence upon their minds, 
 it will mislead them, and if it should have none, it is use- 
 less, and may at least jiroduce perplexity."^ And, with 
 regard to the rejection of competent evidence, "the court 
 cannot weigh the degree of relevancy, or say what etfect 
 any fact that is relevant would have had on the minds of 
 the jury."2 
 
 § 7. But on the other liand it is held, that, generally, a 
 new trial will not be granted, merely because irrelevant 
 or impertinent testimony has been admitted or rejected.^ 
 And the same rule applies to a question not shown to be 
 relevant;* or the rejection of a witness, unless it appears 
 that he could give some relevant testimony f or testimony 
 in relation to a particular fact, which fact is immaterial 
 to the issue.^ As wdiere a witness testified, inadvertently, 
 to other declarations of the plaintifl:' than those inquired 
 of by the defendant, and upon the other evidence the 
 verdict for the plaintifl:' was clearly right.'' So where, in 
 a case relating to damages for the construction of a rail- 
 road, the jury having viewed the premises, the plaintiflt' 
 was not permitted to inquire of a witness, w^hether the 
 roads crossing the railroad rendered it more or less dan- 
 gerous for horses, &c., in going from one part of the farm 
 to another; more esj)ecially as one witness had said there 
 was inconvenience and danger.^ So it was held erroneous 
 to reject a deposition, taken many years before, and twice 
 
 ' PerTuckcr, J., Brown ». May, » Faircliikl v. Case, 24 Wend. 
 
 1 Mvmf. 288. 381. 
 
 2 Per Lp Blanc, J., Edwards v. ^ Bates v. Barber, 4 Cusli. 107. 
 Evans, 3 E. 451. ^ Polleys v. Ocean Ins. Co., 2 
 
 3 Adams v. Blodj^'ott, 47 N. II. Shop. 141 ; Watson v. Lisbon 
 219; Hand v. Dodav, 17 ib. 343; Brida:e, 2 Shop. 201 ; Merriani v. 
 Packard v. New Beilford, Allen, Mitchell, 1 Shop. 439 ; Barry v. 
 200; Marshall v. Morris, 10 Goo. Bennett, 7 Met. 354 ; Kimberlin «. 
 3G8; Brown v. May, 1 jNIunf. 288 ; Faris, 5 Dana, 533. 
 
 Walker ®. Leighton, 11 Mass. 140; ^ pnuce v. Shepherd, 9 Pick. 
 Mitchell V. Rome Railroad Co., 17 170. 
 
 Geo. 574. ^ Pinneo v. The Lackawanna, 
 
 &c., 43 Penn. 3G1.
 
 CH. xiil] adxMISsion or rejection of evidence. 413 
 
 read in former trials without objection, tliou<^li no proof 
 be offered of notice of the time and place of taking it. 
 But, the subject-matter of the deposition being unim- 
 portant, such rejection is no ground for a new trial. '(a) 
 
 § 8. The distinction is made, in New York, that, if the 
 chances arc equal, that irrelevant testimony may have 
 had an injurious tendency on the jury, a new trial will be 
 granted of course on a bill of exceptions ; but on a casc\ the 
 court exercises its discretion, when no injury can have 
 
 ' Hill V. Meyers, 43 Penn. 170. 
 
 (a) A new trial will not be ordered for the rejection of testimony, 
 which could not change the verdict. Brown v. Hoburger, 52 Barb. 15 ; 
 Robinson v. Keith, 25 Iowa, 321. A verdict will not be set aside, merely 
 because light testimony, which would not be likely to affect the result, 
 has been improperly excluded, especially if witnesses have been exa- 
 mined upon the same point. Merriman v. Fulton, 29 Tex. 97. Nor 
 because the court excluded evidence, which, though properly admissible, 
 was vague and circumstantial, and where, had the jury acted upon such 
 evidence, and disregarded the positive evidence, it would have been the 
 duty of the court to set aside the verdict. McKikhan v. McBean, 45 
 111. 228. The improper admission of immaterial evidence is no ground 
 for disturbing a verdict, when no harm can result therefrom. Rollins v. 
 Chester, 46 N. H. 411; Illingworth v. Greenleaf, 11 Min. 235; Winona, 
 &c. R. R. Co. V. Waldron, ib. 515. Or when there was otherwise sufiBcient 
 evidence. Zeigler v. Wells, 28 Cal. 263. In a suit to recover commis- 
 sions not specified in a charter-party, a letter written by one of the de- 
 fendants to another, nearly two years before the charter was made, and 
 containing some statement as to what was the usual commission in such 
 cases, was held irrelevant, except that part of it, which related to the 
 usage; but the admission of the whole letter was held no ground for 
 disturbing the verdict. Weber v. Kingsland, 8 Bosw. 415. A verdict 
 for the plaintiff, in an action for deceit in the sale of a horse, by repre- 
 senting that he was kind, orderly, and quiet in harness, when he had the 
 vice of kicking in harness, will not be set aside, merely because the plain- 
 tifl", while testifying to an instance of the horse's kicking violently in 
 harness, after being driven by himself and a friend, a few days after the 
 purchase, was permitted to state, that, when he was about to drive out 
 that day " his wife and child were ready, having their things on, to go 
 with him." Richardson v. Warren, 6 Allen, 552.
 
 414 THE LAW OF NEW TRIALS. [Clf. XIII. 
 
 resulted to the })arty.' And in late cases it is laid down, 
 that a verdict will not he set aside for the admission of 
 immaterial evidence, unless it is quite apparent that it 
 influenced the jury in their decision f and that the rele- 
 vancy of ovidence prijnd facie irrelevant must he shown, 
 or it should he rejected.^ 
 
 § 9. It is not error to allow the withdrawal of imma- 
 terial evidence.'* 
 
 § 10. More especially is the admission of immaterial 
 evidence no ground of new trial, if accompanied by in- 
 structions to disregard it, and if there is no reason why 
 it should have any eliect.^ 
 
 § 11. It is sometimes held, that the wrongful admission 
 or exclusion of evidence, although cumulative, is ground 
 for new trial.'' It was remarked by the court in Massa- 
 chusetts, in granting a new trial for the admission of 
 irrelevant evidence : " The English courts, and those of 
 some of our sister States, exercise a much broader discre- 
 tion in relation to the granting of new trials, than we do. 
 Their practice is to refuse new trials for the improper ad- 
 mission or rejection of evidence, whenever, in their opinion, 
 such erroneous admission or rejection of evidence, whether 
 material or immaterial, ought not to have atiected the 
 verdict, or substantial justice has been done. This seems 
 to us to trench upon the province of the jury."^ And 
 the rule was applied in New York, though a fact was 
 proved by two other witnesses.^ 
 
 ' Farmers' Bank v. AVliinfiold, ^ Dossett v. Miller, 3 Snecd, 72 ; 
 
 24 Wend. 419. Osgood v. The Manhattan, &c., 3 
 
 2 Center v. Center, 38 N. II. 318. Cow. C13. 
 
 3 McGarrity v. Byington, 13 Cal. ? Per Morton, J., P^llis v. Short, 
 426. 21 Pick. 145. 
 
 ■* Davenport v. Harris, 27 Geo. ^ Marquand v. Webb, 10 John. 
 
 68. 89; Mayer (i. Wiltbcrgcr, Geo. Dec. 
 
 5 Whitney v. Bayley, 4 Allen, Part II., 20. 
 178.
 
 en. XIII.] ADMISSION OR REJECTION OF EVIDENCE. 415 
 
 § 12. But the prevailing rule is, that the exclusion of 
 evidence, to prove a fact which is otherwise proved, is no 
 ground of new trial ;'(«) or the exclusion of cumulative 
 evidence, upon a point already conclusively proved f or 
 the admission of evidence to a point otherwise suffi- 
 ciently proved.' Where, for example, the verdict is pre- 
 cisely such as the jury ought to have rendered upon the 
 plaintiff's evidence, a new trial will not be granted, be- 
 cause the judge admitted unlawful testimony on the part 
 of the defendant, if it was only corroborative of the facts 
 already proved by the plaintilf.'* It is said : " The court 
 will not set aside a verdict on account of the admission of 
 evidence which ought not to have been received, provided 
 there be sufficient without it to authorize the finding of 
 the jury."^ And, in another case: "Though particular 
 portions of evidence are objected to, if the rest be suffi- 
 cient to warrant the conclusion to which the jury have 
 come, the court will not interpose."^ 
 
 § 13. Thus, although it is irregular for the plaintiff to 
 read in evidence the letter of a witness that has been re- 
 ferred to in a deposition for the defendant, yet, if con- 
 firmatory of other competent testimony in the case, it is 
 no cause for a new trial.^ So where evidence, that A. re- 
 peated the instructions of the grantor, relative to the order 
 of recording certain deeds to B., had been received ; it 
 was held, that, although the fact proved had no positive 
 efficacy in the delegation of authority, and the evidence 
 
 • Bull v. Griswold, 19 111. G31. ^ Steelman -y. Steelman, 1 Harr. 
 
 2 Litchfield «. Londonderry, 39 G6. 
 
 N. H. 247; Drake v. Surget, 3G ^ Per Mansfield, C. J., norford 
 
 Miss. 458. «. Wilson, 1 Taun. 12. 
 
 3 Mathis «. Colbert, 24 Geo. 384; « Per Parker, J., Teyhnam "O. 
 Turner «. Mclllianey, 8 Cal. 575. Tyler, 6 Bing. 5G1. 
 
 ' Dickinson «. Burr, 15 Ark. 372. 
 
 (a) Evidence to rebut the plaintiff's rebuttal is admissible, though 
 merely cumulative. Walker v. Fields, 28 Geo, 237.
 
 416 TUE LAW OF NEW TRIALS. [ciI, XIII. 
 
 itself was incompetent, yet, as it did not detract from the 
 power i)rcviously given, the admission of such evidence 
 furnislicd no ground for a new trial.^ So where the plain- 
 tifl" proves a sale and delivery, and the defendant a credit, 
 and the plaintiff then offers an admission against such 
 credit, which is excluded.^ So where the same interroga- 
 tories were addressed to A. and 13., and A. answered fully, 
 and B. answered " I know the answers given by A., and 
 I adopt them as mine as to all material facts ;" but the 
 evidence of B. was rejected; — it being cumulative, in- 
 definite, and immaterial.^ 
 
 § 14. And this rule more especially applies, where the 
 evidence was not objected to ;* or where the other evidence, 
 of which the testimony in question is cumulative, greatly 
 preponderates over the evidence on the other side.* So it 
 was applied, where a witness was rejected on the ground 
 of interest, who was called to prove a fact which it was 
 admitted had been proved by another witness.^ So where 
 a female witness, on cross-examination, admitted her crimi- 
 nal connection with several persons, and evidence of the 
 same connection with others was excluded.'^ It is said : 
 " "Where the objection merely is, that what was proved 
 by one witness could have been proved by two; there 
 being no denial of the fact which he was called to prove, 
 on the part of the defendant, but the defendant going to 
 the jury on a defence altogether collateral to that fact, 
 there is no ground for the court to interfere by granting 
 a new trial" (to the plaintiff).^ And, in another case, "it 
 has been contended that we are to analyze the evidence 
 by a difhcult process, and to discriminate the precise effect 
 produced on the mind of the jury on each portion of tlie 
 proof ; but we have a much plainer course ; and that is, 
 
 ' Beers v. Broome, 4 Conn. 247. ^ Doe v. Tyler, 6 Bing. 561. 
 
 2 ]\rjicullar V. Wall, ('. Gray, 507. 6 Edwards v. Evans, 8 E. 451. 
 
 3 Hopkins V. Clark, 20 Tex. 01. ? The King v. Teal, 11 E. 1507. 
 * Horlbrd v. Wilson, 1 Tuuu. 12. ^ Edwards v. Evans, 6 E. 451.
 
 CII. XIII.] ADMISSION OR REJECTION OF EVIDENCE. 417 
 
 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."^ 
 
 § 15. More especially where the evidence is conflicting^ 
 and illegal evidence has been admitted, which might have 
 influenced the jury, a new trial will be granted.^ And 
 where much evidence has been received, some of which is 
 incompetent, the case should, in general, be sent back for 
 a new trial, as the court cannot say on what evidence the 
 jury decided.^ 
 
 § 16. A verdict founded on the testimony of an in- 
 famous witness will be set aside.*(a) 
 
 § 17. The point of admission or rejection of evidence 
 may arise in connection with a question as well as an 
 answer. Thus where the testimony of a defendant, in his 
 own behalf, was improperly admitted, but a material 
 question to him, which should have been allowed, was 
 overruled, he is entitled to a new trial.' So if an irrele- 
 vant question is objected to, though the answer is not." 
 But a new trial will not be granted, for refusal to admit 
 a question which was not shown to be relevant.^ 
 
 § 18. It is no ground for a new trial, that inadmissible 
 evidence was given by a witness, in answer to a question 
 which did not call for it, and was not objected to ; if the 
 
 • Per Tindal, C. J.,Doeii. Tyler, ^ Anderson v. Busteed, 5 Duer, 
 6 Bing. 561. 485. 
 
 2 Settle V. Alison, 8 Geo. 201. ^ Gilmer v. Montgomery, 26 Ala. 
 
 3 Gage V. Mcllwaine, 1 Strobli. 665. 
 
 135. ^ Faircliild v. Case, 24 Wend. 
 
 * Allen V. Young, 6 Monr. 136. 381. 
 
 (a) Kejecting the testimony of a free negro, to facts which occurred 
 while he was a slave, was held ground of new trial. Gurney v. Dessies, 
 1 John. 508. 
 27
 
 418 THE LAW OF NEW TRIALS. [CH. XIII. 
 
 judge at once declared tlie evidence inadmissible, and in- 
 structed, the jury, in his charge, to disregard it.'(a) 
 
 § 19. In general, the admission of secondary evidence is 
 illegal. (/>) (See § 32.) But a new trial will be granted 
 for the rejection of secondary evidence, after the intro- 
 duction of sufficient preliminary proof to justify its ad- 
 mission ; all the evidence being reported.^ 
 
 § 20. It is no ground of new trial, that a copy was ex- 
 cluded, if the original was afterwards admitted.^ 
 
 ' Travis v. Barker, 24 Barb. 614. ^ Kutzmcyer n. Ennis, 3 Dutch. 
 2 llatcli V. Carpenter, 9 Gray, 371. 
 371. 
 
 (a) It is not cause for new trial, that an improper inquiry of a v;\i- 
 ness was allowed, if no improper evidence be obtained by the answer. 
 Eandolph v. Woodstock, 35 Vt. 291. Or when it is manifest that the 
 answer could not have prejudiced the excepting party. Hovey v. Hob- 
 son, 55 Maine, 25G. Or where a question is improperly ruled out on the 
 cross-examination, and afterwards allowed upon the direct examination 
 of the party asking the question. Dennis v. Van Voy, 2 Vroom, 38. In 
 an action brought by one of two parties upon a cause of action which 
 accrued to the firm, and had been released by the co-partner to the plain- 
 tiff, a question put to a witness, " what was said by the plaintiif about 
 commencing suit in New York rather than in London ?" was excluded. 
 Held, if the word " plaintiff" was intended to refer to the partner who 
 had released, and who had been examined as a witness, the question was 
 not competent except for the purpose of contradicting him or affecting 
 his credibility. But if it was intended to refer to the actual plaintin", 
 the testimony was competent, and its relevancy could not be determined 
 on the face of the question. Weber v. Kingsland, 8 Bosw. 415. 
 
 (6) It is no ground for a new trial, that secondary evidence was ad- 
 mitted without a foundation for it being laid, if no objection was made. 
 Myer v. Avery, 23 Ind. 510. It is error to instruct the jury to disre- 
 gard secondary evidence which was admitted without objection. Davis 
 V. Strohm, 17 Iowa, 421. A new trial will be granted, where the proof 
 of the loss of a deed and subsequent search for it was not sufQcient to 
 warrant secondary evidence as to its contents, and such evidence was 
 irregularly introduced and left in terms of too general import to the jury. 
 Bartholomew v. Edwards, 1 Iloust. 247.
 
 CIL XIII.] ADMISSION OR REJECTION OF EVIDPINCE. 419 
 
 § 21. The mode of proceeding at a former trial fur- 
 nishes no ground of objecting to a verdict for the admis- 
 sion of evidence, although such admission necessarily 
 changes the course of proof for the other party. Thus, 
 after one party had put in evidence certain books of ac- 
 count, supported by the testimony of the bookkeeper who 
 kept them, the parties agreed to refer the books to an 
 auditor, for the purpose of his stating the result of his 
 examination, on the stand, to the jury, which he accord- 
 ingly did. It was held, that the admission in evidence 
 of the testimony of the auditor, and his report so made, 
 on a subsequent trial of the same cause, after the books 
 had been righly admitted in evidence, on other testimony 
 than that of the bookkeeper, was no ground for a new 
 trial, although the other party was thereby obliged to call 
 the bookkeeper as his witness.^ 
 
 § 22. Evidence, objectionable for one purpose or upon 
 one issue, is properly rejected, if thus ofiered, though ad- 
 missible for another purpose, or upon another issue.^ (See 
 § 57.) It is said: " If such a practice were allowed, testi- 
 mony would be thrust into a cause with one open, avowed 
 object, but with the secret purpose of applying it to an- 
 other ; and by reason of it not only the rules of law, but 
 the ends of justice would be perverted."^ And, in another 
 case, with more special reference to the objections against 
 such evidence: "The objector is bound always to define 
 and limit his objection to evidence which is inadmissible 
 for the purpose for which it is introduced."* Thus it is 
 not error, to reject testimony which was only proper to 
 establish an incidental matter, where it was not ofiered 
 or pressed for that purpose, but as afiecting the issue 
 directly.^ So, where, in an indictment against A. and B. 
 
 1 Holbrook v. Jackson, 7 Cusli. 3 Per Hubbard, J., Leonard v. 
 130. Smith, 11 Met. 383. 
 
 2 Parke v. Foster, 26 Geo. 465 ; * Per Sanford, J., State v. TTads- 
 O'Brien v. Hilburn, 22 Tex. 616. worth, 30 Coun. 56. 
 
 5 State V. Neville, 6 Jones, 423.
 
 420 THE LAW OF NEW TRIALS. [CH. XIII. 
 
 for the sale of intoxicating liquor, A. objected to the intro- 
 duction of evidence, either that he was guilty severally, 
 or jointly with B., and the objection was overruled, a new 
 trial was refused.^ So evidence admissible only with refe- 
 rence to particular questions not necessarily arising, and 
 not then appearing in the case, must be oflered with an 
 explanation of the questions upon which it may be mate- 
 rial.^ So the admission of evidence for one purpose, made 
 legal by statute for another, is ground of new trial.^ 
 
 § 23. But, on the other hand, it is ground of new trial, 
 that complex evidence objected to was all excluded, a part 
 being competent ; though the burden of proof is on the 
 party who alleges the competency.^ So where part of a 
 deposition is competent, but it is wholly rejected.' So 
 where the defendant, who was, under the statutes then in 
 force, entitled to testify only as to some special matters, 
 was ofiered " generally in his own behalf" and was re- 
 jected; this was held to be error and ground for a new 
 trial ; as it was not shown by the plaintiff, upon whom 
 was the burden of proof in this respect, that the defendant 
 would not have examined the witness at all, unless he 
 could be allowed to do so generally.^ 
 
 § 24. Evidence may properly be admitted for a specific 
 purpose, though not admissible generally.(«) (See § 44.) 
 
 • State V. Wadswortli, 30 Conu. " Carroll v. Granite, &c., 11 Md. 
 
 55. 399. 
 
 2 Floyd V. Hamilton, 33 Ala. 235. ^ Hatton v. McClisli, 6 Md. 407. 
 
 3 French v. Brandon, 1 Head, 47. ^ Brown v. Richardson, 20 N. Y. 
 
 (G Smith), 472. 
 
 (a) The operation of evidence, stated to be introduced for a certain 
 purpose, should be restricted to that purpose. Henry v. Everts, 29 Cal. 
 GlO. Instructions given to a witness, employed by the plaintiff to take 
 a note to defciulunts' l)ank for collection, arc admissible to ])rove a special 
 agency; and the fact that they were admitted on that ground, although 
 offered upon another and untenable ground, is not suiricient cause for a 
 new trial. Nininger v. Knox, 8 Min. 140. There is no error in over-
 
 CH. XIII.] ADMISSION OR REJECTION OF EVIDENCE. 421 
 
 Thus in an action, brought by a mortgagee against the 
 assignee in insolvency of his mortgagor, to recover the 
 property, in which the defendant undertakes to avoid the 
 mortgage as a preference; the admission of the schedules 
 of debts and other papers filed in the proceedings in insol- 
 vency, only as evidence that such proceedings were had, 
 and not as evidence of the facts stated in the papers, is no 
 ground for a new trial.^ 
 
 § 25. One ofter of evidence, to be used for several spe- 
 cified purposes, may be refused, if inadmissible for any. 
 The party should offer it for each, separately. ^ So if tes- 
 timony is offered as a whole, a part being incompetent, 
 and all is excluded.^ So where the offer is open to two 
 constructions ; unless it is made perfectly plain that the 
 one favorable to the party is the true one, as understood 
 
 ' Holbrook v. Jackson, 7 Cusli. 2 Johnson v. Marshall, 34 Ala. 
 136. 523. 
 
 3 Barlow v. Lambert, 28 Ala. 704. 
 
 ruling a general objection to testimony, which is admissible for any of 
 the purposes for which it is offered. Nutwell v. Tongue's, 22 Md. 419 ; 
 Fountain v. Brown, 38 Ala. 72. When one party is not required by the 
 other to state the purpose for which he oflFers evidence, it is admissible if 
 competent for any purpose. King v. Faber, 51 Penn. 387. When evi- 
 dence is offered, of which a portion is illegal, the court may reject all. 
 Gregory v. Walker, 38 Ala. 26 ; Crutcher v. Memphis, ib. 579. Although 
 a party tendering evidence in proof of fraud need not state in a single 
 offer everything he intends to prove, it should appear to the judge that 
 the evidence has some relevancy to the issue, and, if he is not informed 
 of the connection, the Supreme Court cannot say that he committed a 
 clear error in rejecting it. Davenport v. Wright, 51 Penn. 292. Where 
 the validity of a married woman's deed, certified as voluntarily acknow- 
 ledged, was in question ; held, an offer, to show that the deed was exe- 
 cuted under compulsion from the husband, need not be accompanied by 
 an offer to show that the purchaser knew of such compulsion, when the 
 testimony already introduced tended to show the purchaser's knowledge 
 of the woman's unwillingness to sell. Every offer of evidence need not 
 state all the additional facts necessary to constitute a full case. Hall v. 
 Patterson, 51 Penn. 289.
 
 422 THE LAW OP NEW TRIALS. [CH. XIII. 
 
 b}' the court. As whore evidence would be competent in 
 mitio:ation of damages, though not as a defence to the 
 action.^ And where testimony is admitted after a motion 
 to exclude it, the burden is on the complaining party to 
 show that he objected only to the incompetent portion.' 
 
 § 26. Where evidence of fraud was admitted in miti- 
 gation of damages, which, if believed, would have ren- 
 dered the damages merely nominal, and full damages are 
 given; it is no ground of error on the part of the de- 
 fendant, that the evidence was not received as a defence 
 to the action. The court remark, " Had the jury believed 
 (the witness), and given full effect to his evidence, they 
 would have given, under the instructions they received, 
 only (nominal damages), and then we should not have 
 seen the defendant here complaining. It is apparent, 
 therefore, that he is here not on account of the error of 
 the court in submitting the evidence in the manner they 
 did, I)ut because the jury did not give it all the effect 
 hoped for. If the jury erred, we have no correctional 
 power. It is enough for us that we see no error in what 
 the court did."^ 
 
 § 27. It is sometimes competent to prove a general fact, 
 bearing upon the issue, without the right of going into 
 the details and particulars of which it is made up. But 
 where a will was propounded for probate, discriminating 
 largely in favor of the present wife and against children 
 by the first wife, which was alleged to have been produced 
 by undue influence of the wife over the testator; and a 
 witness testified to "bad feeling" between the wife and 
 one of her step-children, but so much of his testimony as 
 explained its origin, nature, and extent, was excluded: 
 held, this testimony should have been admitted, and a 
 new trial must consequently be granted.^ 
 
 ' Button V. McCauley, 38 Barb. ^ Smith v. Emerson, 43 Pcnn. 
 
 413 456, 400; per AVoodward, J. 
 
 2 Carroll v. Granite, &c., 11 Md. •• Cox o. Rutledge, 18 Goo. 294. 
 899.
 
 en. XIII.] ADMISSION OR REJECTION OF EVIDENCE. 423 
 
 § 28. "Where words spoken, and accompanying acts 
 proved, justify the verdict, although words alone would 
 not ; the verdict will not bo set aside, because the witness, 
 in testifying of the words, stated what he understood from 
 them, which was in accordance with the verdict.* 
 
 § 29. It is ground of new trial, that competent evidence 
 was excluded in chief, though received to contradict other 
 testimony.' 
 
 § 30. In general, as we shall see, an objection must have 
 been made at the trials in order that it may be validly taken 
 as the ground of a new trial. But where a party objected 
 to the admission of so much of certain depositions as gave 
 evidence of hearsay, but the exception did not specify the 
 particular parts objected to, and the court admitted the 
 depositions, but instructed the jury that those parts which 
 gave evidence of hearsay were to be considered only for 
 the purpose of corroborating the testimony of other wit- 
 nesses ; it was held that the exception was valid, notwith- 
 standing its generality.^ 
 
 § 31. It is ground of new trial, where a witness has 
 died, that the court reads his whole testimony, a part 
 being incompetent.** 
 
 § 32. A verdict will be set aside for the rejection of 
 secondary evidence, where a paper is sufficiently proved 
 to be lost.* (See § 19.) Or of a lease, more than thirty 
 years old, where a corresponding possession was proved.*' 
 So, on the other hand, a new trial was refused, where 
 parol evidence, improperly received, was immediately fol- 
 lowed by the requisite documentary proof.'' (See § 34.) 
 
 • McKenney v. Waite, 7 Sliep. s Freeman v. Arkell, 3 B. & C. 
 
 349. 494. 
 
 2 Reed s.Vancleve, 3 Dutch. 352. e Hewlett v. Cock, 7 Wend. 371. 
 
 3 Charlton ». Unis, 4 Gratt. 58. ' Norris v. Badger, 6 Cow. 449 ; 
 ^ Willard ■». Goodenough, 30 Preston v. Ilarvey, 3 Hen. & M. 55. 
 
 Verm. 393.
 
 424 THE LAW OP NEW TRIALS. [CH. XIII. 
 
 So where a printed statute book was admitted in evidence 
 of a private act, but, on the argument of the motion for 
 a new trial, the book was shown to be correct by pro- 
 ducing an exemplification of the act.^ So a verdict will 
 not be set aside, on account of the admission of merely 
 introductory evidence.^ But a verdict will not be set 
 aside for rejection of parol evidence of the contents of a 
 letter, because no satisfactory proof was first furnished to 
 the court, which is usually done by the party's own afia- 
 davit of the loss of such letter, or its having come to the 
 possession of the opposite party. ^ 
 
 § 33. After testimony tending to prove the loss of a 
 registered deed, a party was allowed to read an attested 
 copy in evidence, with the condition that he should, in 
 the course of the trial, file an affidavit of the loss of the 
 original. Held, after verdict, that the filing of the affi- 
 davit must be presumed to have been waived by the other 
 party .^ So where there was a written admission of the 
 " execution" of a certain deed, purporting to be by the 
 attorneys of record of both parties, and the deed was ad- 
 mitted in evidence at an ex parte trial, without proving 
 the signatures of the attorneys ; it was held no cause for 
 new trial.* 
 
 § 34. Questions often arise, in reference to evidence in 
 itself incompetent, but claimed to be admissible in con- 
 nection with other testimony.^ It is sometimes held, that 
 a new trial shall not bo granted, for rejection of evidence 
 incompetent ichen offered.'' (a) 
 
 ' Duncan v. Duboys, 3 John. * H.andloy v. Call, 80 Maine, 9. 
 Cas. 125. s Strippelmann v. Clark, 11 Tex. 
 
 2 Swaniscot Machine Co. v. 29G. 
 
 Walker, 2 Fost. 457. ^ See Morgan d. Jones, 24 Geo. 
 
 3 Allen V. Blunt, 2 Woodb. & M. 155. 
 
 121. ' Jones v. Lake, 2 Wis. 310. 
 
 (a) If a defendant sets up his right as assignee of a bond, he may in- 
 troduce the bond in evidence before lie shows his title and interest in it.
 
 CH. XIII.] ADMISSION OR REJECTION OF EVIDENCE. 425 
 
 § 35. And where evidence is rejected as irrelevant, but 
 becomes competent by the subsequent course of the trial, 
 it is still to be excluded, unless re-ofFered, although not 
 objected to in the argument.^ And when a party offers 
 evidence, which is prima facie illegal as well as irrelevant, 
 it is not sufficient for him to state to the court " that he 
 could probably, by other evidence, so connect the de- 
 fendant with it as to make it competent evidence. "^(a) 
 
 § 36. But in general a new trial will not bo granted, 
 because evidence was admitted with reference to a future 
 state of the case.^ "Nov where incompetent evidence is 
 received, upon the ground that other evidence will be 
 oflered by which the former will be made competent, and 
 after the latter testimony the objection is not renewed.^ 
 So if evidence is admitted, which can only become com- 
 petent by the introduction of other evidence ; no exception 
 lies, unless it clearly appears that such further evidence 
 was not introduced.^ 
 
 ' Melcher v. Merryman, 41 * Scott v. Newsom, 27 Geo. 125. 
 Maine, COl. ^ Props., &c. v. Prescott, 4 Al- 
 
 2 Shields v. Henry, 31 Ala. 53. len, 22. 
 
 3 Harris v. Holmes, 30 Verm. 
 352. 
 
 Van Orman v. SpafiFord, 16 Iowa, 186. The assignment of a contract, 
 when set up as a defence, may be proved, before it is shown that the 
 plaintiff had notice of it. Doll v. Anderson, 27 Cal. 248. In ejectment 
 for unseated lands sold for taxes and bought by the county commission- 
 ers, the defendant may prove his redemption of the land by the consent 
 of the commissioners, although the conveyance from them to him had 
 not been previously introduced. Philadelphia v. Miller, 49 Penn. 440. 
 If the plaintiff omits to prove an essential fact, and the defendant sup- 
 plies the proof, the plaintiff may avail himself of it. Deshler v. Beers, 
 32 111. 368. 
 
 (a) After a prima facte case of execution of a contract, the court 
 should not allow counter proof before the instrument is read. Verzan v. 
 McGregor, 23 Cal. 339. If a decision excluding testimony is correct, it 
 cannot be made erroneous by any subsequent testimony. Depuy v. AYil- 
 liams, 26 Cal. 309.
 
 426 THE LAW OF NEW TRIALS. [CH. XIII. 
 
 § 37. A new trial will not be granted for the admission 
 of incompetent facts, afterwards proved by the party 
 objectino;.^ Error, in admitting irrelevant testimony, is 
 cured by the introduction of testimony on the other side, 
 making the former testimony proper. As whore the de- 
 fendant moves for a nonsuit, and liis motion is improperly 
 overruled, and he himself then introduces evidence con- 
 ducing to prove a cause of action.^ So although the decla- 
 rations of a witness can only be received to impeach him, 
 by contradicting testimony already given by him ; yet, if 
 they are admitted first, the error is cured, if the party 
 who objected to the declarations calls him and examines 
 him with relation thereto.^ 
 
 § 38. Evidence claimed to be competent upon further 
 proof, which proof is not oft'ered, should be struck out.* 
 Thus, although it is no ground of objection to the intro- 
 duction of a deed as evidence, that there is a latent am- 
 biguity in it susceptible of explanation ; yet, if it be not 
 explained and rendered certain by other evidence, the 
 deed should be excluded, on motion, for want of certainty, 
 and of identity of the land, referred to in it, with the 
 premises sued for.' 
 
 § 39. A new trial will not be granted for rejecting in- 
 competent evidence, although the reasons assigned for 
 such rejection are insufficient.^(rt) 
 
 ' Grimm v. TTamol, 2 Hilt. 434. « Dillin v. The People, 8 Mich. 
 
 2 liuckcr V. Hamilton, 3 Dana, 357. 
 
 36. 5 iianna v. Renfro, 32 Miss. 125. 
 
 3 Tooker v. Gormer, 2 Uilt. 71. " Ludlow's, &c.v. Parke, 4Ham. 
 
 39. 
 
 (a) The admission of evidence, which is inadmissible when olTered, may 
 be cured by the subsefjucnt introduction of testimony showing its com- 
 petency. Bell V. Chambers, 38 Ala. 660. Where a certified copy of a 
 deed of assignment has been admitted as secondary evidence, and the 
 original is afterward found, the court has discretion to allow the original 
 to be put iu evidence m place of the copy, after the opening of the case
 
 CE. XIII.] ADMISSION OR REJECTION OF EVIDENCE. 427 
 
 § 40. It is sometimes held, that in case of trial 6y the 
 court strict rules of evidence will not be enforced.^ This, 
 
 ' Smith B. Hughes, 23 Tex. 248. 
 
 of the adverse party. Blake v. Sawin, 10 Allen, .3 10. In a suit against 
 a partnership for debt, the defence was, that the firm name had been 
 signed by one partner without authority, after dissolution. Held, there 
 was no error in admitting the paper so signed, " subject to the proof to 
 be given hereafter," when it was subsequently proved that the agree- 
 ment was ratified by the other partner. Kelly v. Crawford, 5 Wall. 785. 
 Where improper testimony is admitted under objections, a new trial will 
 be granted, unless it clearly appears that the other evidence was such, 
 that, if the jury had found for the objecting party, the court would have 
 set aside the verdict as contrary to the facts, or that the testimony could 
 not have possibly influenced the jury. Jaeger v. Kelley, 7 Rob. 586. 
 A new trial will be granted for erroneous exclusion of evidence, by which 
 a party was deprived of the more simple and direct mode of establishing 
 his claim, and compelled to resort to one more indirect, complex, and 
 difiScult, although the excluded evidence was subsequently admitted. 
 Woodman v. Dana, 52 Maine, 9. Where the court improperly rejects 
 the testimony of a witness offered by the defendant, in a trial for murder, 
 to prove the testimony of a witness at a former trial since deceased, and 
 afterwards gives leave to introduce such evidence, and offers to give 
 time to send for the witness, or to allow the minutes taken of the evi- 
 dence at the former trial to be read to the jury, and such minutes are so 
 read; a new trial will not be granted. People v. Henderson, 28 Cal. 465. 
 An office-copy of a deed, produced by the plaintiff, and not in his claim 
 of title, though not perhaps competent at the time, yet, if admitted, will 
 be afterwards made competent by the defendant's offer of a subsequent 
 deed, bringing the first within the claim of his title ; and the verdict will 
 not be set aside on account of the admission of the copy. Lyford v. 
 Thurston, 16 N. H. 399. Where incompetent testimony is admitted, but 
 is afterwards made competent by the iutroductiou of other evidence ; the 
 verdict will not be set aside, though such testimony was admitted on 
 eiToueous grounds, and without any anticipation of its being afterwards 
 made competent by other evidence. Eastman v. Amoskeag, 44 N. H. 
 143. The admission of incompetent evidence, to prove facts, which were 
 proved by other evidence, furnishes no ground for a new trial. Doane v. 
 Baker. G Allen, 260 ; Hollinshead v. Nauman, 45 Penn. 140. As where 
 hearsay evidence was admitted to prove a fact otherwise abundantly 
 proved, and by the excepting party's own witnesses. Dcsverges v. Des- 
 verges. 31 Geo. 753. In an action for work and labor against two as
 
 428 THE LAW OF NEW TRIALS. [CH. XIII. 
 
 however, is not the prevailing rule. Thus where it is 
 ao-reed that the court may decide on the undisputed facts, 
 and evidence has been erroneously excluded and exception 
 taken, the court above will order a new trial. ^ So, in an 
 insurance case, judgment for the plaintiff was reversed, 
 because the evidence admitted to prove the preliminary 
 proof of loss was inadmissible.^ And it seems a new trial 
 may be had for admission of illegal testimony, upon a 
 hearing in damages, in open court, whether before a jury 
 or a judge.2 So a new trial was granted, where the ques- 
 tion whether a defendant, making confessions of guilt, 
 was too much intoxicated to understand them, was sub- 
 mitted to the court as preliminary to the admission of 
 a witness to the confessions, and decided upon his testi- 
 mony alone, rejecting evidence of intoxication shortly 
 before and after the confession.* So a new trial may be 
 granted, for the improper admission or rejection of evi- 
 dence, upon a writ of inquiry of damages by the sheriff.^ 
 As where, in an action of trespass, the defendants were 
 defaulted, but, upon the inquest before the sheriff and a 
 jury, were allowed to introduce evidence to show that no 
 trespass had been committed. The jury found nominal 
 damages. A new trial was ordered, upon the ground 
 that the admission of such evidence after default would 
 
 ' Hopkins v. Forsyth, 14 Penn. " Begg v. Whittier, 48 Maine, 
 34. 314 ; Storer v. White, 7 IMass. 448. 
 
 2 Spring, &c. v. Evans, 15 Md. ^ Com. v. Howe, 9 Gray, 110. 
 54 5 Tutton v. Andrews, Barnes, 
 
 448. 
 
 joint contractors, the book of original entries of the plaintiff, charging 
 them jointly, is admissible in evidence, though not preceded by evidence 
 of joint liability, if such evidence is subsequently introduced. Bowers 
 V. Still, 49 Penn. 65. An assurance by counsel, that evidence offered 
 would be followed up by proof of other circumstances and facts material 
 and competent, with which it would have an important connection, ren- 
 ders its admission proper. If, however, this assurance is not fulfilled, it 
 would be the duty of the court, upon application of counsel, to direct the 
 jury not to regard it. Blackburn v. Bcall, 21 Md. 208.
 
 CH. XIII.] ADMISSION OR REJECTION OF EVIDENCE. 429 
 
 deprive the plaintiff of the privilege of notice of the 
 defence.^ 
 
 § 41. But a new trial has been refused, upon the ground 
 of such an error occurring in the interlocutory proceedings 
 of a cause. Thus a witness for the plaintiff was objected 
 to as interested. A question, proposed to a witness who 
 was called to prove his interest, was objected to, but 
 allowed, and the witness objected to was permitted to tes- 
 tify, the judge stating that his credibility was for the 
 jury ; and the verdict was for the defendant. Held, the 
 permission of the question objected to was no ground of 
 new trial .^ So the admission of evidence, to contradict 
 testimony upon a matter collateral to the issue, and drawn 
 out on cross-examination, although illegal, is not cause for 
 srantino; a new trial.^ 
 
 § 42. The admission of evidence, to contradict other 
 incompetent and illegal evidence, is no ground of new 
 trial. Thus A., an inhabitant of the town of C, on the 
 27th of April, 1851, went with his horse and trunks to 
 the house of B. in the town of L., and B. agreed to board 
 him and keep his horse. In an action brought by A. to 
 recover back a tax assessed on him in C. on the 1st of 
 May ensuing, it was held that, for the purpose of showing 
 that he had changed his domicile before that day, evidence 
 was admissible of his declarations made to B. at L. in 
 February preceding, during a negotiation about coming 
 to board with B., that he intended to come and live with 
 B. in April, and not return to C. ; and also of the fact, 
 that A. was chosen and served as surveyor of highways 
 in L., in 1853, after the action was brought. The pre- 
 siding judge having refused to allow one of the assessors 
 of C, called as a witness by A., to testify that A., in 
 April, 1851, gave him notice that he was going to remove 
 
 1 Foster v. Smith, 10 Wend. 377. ^ Page v. Homaus, 3 Slicp. 478. 
 
 2 Ackley v. Kellogg, 8 Cow. 323.
 
 430 THE LAW OF NEW TRIALS. [CIL XI I L 
 
 from C. before the 1st of May, but having allowed him to 
 testify on cross-examination, that he did not at a particular 
 interview acknowledge to A. that he had given him such 
 notice ; it was held that this rejection and admission of 
 evidence were both erroneous, and that the subsequent 
 admission of evidence, to contradict the testimony of the 
 assessor as to his own acknowledgment to A., w^as no 
 ground for setting aside a verdict for the plaintiff. The 
 court remark: "Evidence was inadvertently admitted, 
 upon both sides, upon a matter unimportant and imma- 
 terial to the issue. We cannot disturb the verdict on this 
 ground. The one error neutralizes the other."^ 
 
 § 43. The admissil)ility of evidence is of course to 
 some extent dependent on the 2-)leadings.{a) 
 
 ' Cole v. Cheshire, 1 Gray, 441, 446. 
 
 (ft) If a complaint, in an action for upsetting the plaintiff's carriage, 
 does not allege, directly or impliedly, the defendant to have been the 
 cause of the accident ; a verdict against hira will be set aside. Lee v. 
 Emery, 10 Min. 187. So, where a complaint contained two causes of 
 action for distinct libel, and erroneous evidence in support of one was 
 admitted; a general verdict for damages, the record showing no means 
 of apportionment. Simmons v. Holster, 13 Min. 249. The insufficiency 
 of the declaration is uo ground of objection to the admissibility of evi- 
 dence offered in support of it. Morehouse v. Northrop, 33 Coun. 380. 
 In an action by a town against its treasurer for money had and received, 
 after the counsel for the town had offered to allow him to prove any sums 
 paid by liim and not credited on the books of the town; evidence of such 
 a payment by him before the bringing of the action cannot be rejected, 
 because not specified in his answer. Adams v. Farnsworth, 15 Gray, 
 423. When a case has been tried before a referee, without any (piestioa 
 whether the facts proved were within the pleadings; it is too late, after 
 tlie decision, to raise an objection that the evidence was not warranted 
 by the pleadings, provided it was otherwise competent. Commercial 
 Bank v. Shuart, 46 Harb. 371. The admission of incompetent testi- 
 mony to prove a fact not in issue furnishes no ground for a new trial. 
 Union Water Co. v. Crary, 2.") Cal. .'304. In Louisiana, where the alle- 
 o-ations of the petition are insufficient to admit proof of agency, with 
 the right of the agent to stand in judgment and receive citation for his
 
 CH. XIII.] ADMISSION OR REJECTION OF EVIDENCE. 431 
 
 § 44. A new trial will bo granted, for the rejection of 
 evidence applicable to any one count of the declaration ; 
 as where the defendant otfered evidence in defence against 
 one count only.^ But, in trespass, where not guilty and 
 a justification are pleaded, and the jury find the first issue 
 for the defendant ; the rejection of admissible testimony 
 pertinent to the latter only is not ground for a new trial.^ 
 So evidence ottered in terms for a special purpose may be 
 rejected, if that purpose be inadmissible under the plead- 
 ings, though it might be admissible for other purposes.^ 
 (See § 24.) 
 
 § 45. Where the ground of defence does not appear by 
 the pleadings, an unrecorded deed may be put in by the 
 plaintiif in his opening, its efltect to depend upon the 
 situation of the defendants as proved — whether purcha- 
 sers without notice, &c.^ 
 
 § 46. In an action of assumpsit on the common count 
 for labor, a defendant has no right to arrest the plaintiff 
 in the course of making out his case, by an offer to show 
 that the work was done under a special contract, it not 
 having appeared, from anything proved by the plaintift", 
 that there was any such contract.^ 
 
 ' Middlesex, &c., v. McGregore, * Wiggins v. Holley, 11 Ind. 2. 
 
 3 Mass. 124. s Baltimore, &c. v. Polly, 14 
 
 2 Pierce v. Myrick, 1 Dev. 345. Gratt. 447 ; Same v. LafFertys, ib. 
 
 3 McTavish v. Carroll, 13 Md. 478. 
 439. 
 
 principal, the case will be remanded for a new trial. Aldige v. Knox. 16 
 La. An. 180. Where the plaintiff's pleadings did not deny the validity 
 of the deeds relied on by the defendant, and yet the court below permit- 
 ted the plaintiff to introduce evidence impeaching them, and a verdict 
 was returned against him; the Supreme Court refused to disturb the 
 finding, although the conveyances were not without suspicious circum- 
 stances. Good V. Coombs, 28 Tex. 34.
 
 432 THE LAW OF NEW TRIALS. [CH. XIII. 
 
 § 47. It is no ground of new trial, in an action upon a 
 note, there being no general denial, nor denial either of 
 the execution of the note or its transfer to the plaintiff; 
 that the note was not read, or offered to the defendant's 
 inspection, before argument.^ 
 
 § 48. The rejection of testimony tending to prove a fact, 
 which fact is assumed by the court as being proved, is not 
 error.^ 
 
 § 49. The general rule is, that facts alone are to be 
 testified to. 
 
 § 50. The statement of a witness that in his opinion 
 certain foot-marks were those of the prisoner, assigning 
 as a reason for such opinion that he had often seen and 
 noticed the prisoner's tracks as being of a peculiar cha- 
 racter, is not evidence, the admission of which is sufficient 
 ground for a new trial.' 
 
 § 51. If a witness swears in a capital case to the i7iiention 
 with which a party acted, and the effect of such testimony 
 is adverse to the accused, a new trial will be awarded.^ 
 
 § 52. If the verdict can be sustained by the evidence in 
 the cause, it is a matter of indifference by which party it 
 is introduccd.^(a) 
 
 § 53. Evidence must be regularly offered, or put into 
 the case, to justify its rejection as ground of new trial. 
 
 ' Cocks V. Hart, 18 Tex. 554. ^ Hester v. State, 17 Geo. 130. 
 
 2 Thompson v. Morris, 5 Jones, » Burens v. State, G Eng. 455. 
 
 151. 5 Oakes v. Thornton, 8 Fost. 44. 
 
 (a) One party eliciting in cross-examination statements made by the 
 other upon an alleged compromise cannot exclude them from the jury. 
 Smith V. Oldham, 26 Tex. 533.
 
 CH. XIII.] ADMISSION OR REJECTION OF EVIDENCE. 433 
 
 Thus, where a party proved the execution of a note, and 
 the indorsements upon it, as collateral evidence, and laid 
 the note upon the table, without reading it to the jury or 
 giving notice to the court that it was put into the case ; 
 held no ground of new trial for surprise, that the court, 
 after the argument had commenced, refused to allow the 
 party to comment upon or to use the note as evidence.^ 
 But, where, on the other hand, a jury, after retiring, re- 
 turned into court, on some misunderstanding as to the 
 testimony of a witness ; and the court then recalled the 
 witness and interrogated him as to points not embraced 
 in his previous examination, no objection being made: 
 held, no ground for new trial.^(«) 
 
 § 54. A new trial will not be granted, for the admission 
 of evidence not objected to.\b) 
 
 • Haskins v. Smith, 17 Verm. Gelhaar v. Ross, 1 Hilt, 117; Haynes 
 
 263. V. Hay ward, 41 Maine, 488; Brown 
 
 2 Hawtliornew. Bowman, 3 Sneed, v. Moran, 42 ib. 44; McKay ®. Larr, 
 524. 5 Flori. 268; King v. State, 21 Geo. 
 
 3 Brown v. Robinson, 25 Geo. 220. 
 144 ; Parke v. Foster, 26 ib. 465 ; 
 
 (a) If an offer of evidence contains any matter not admissible, it is 
 held that the whole may be rejected. Hosley v. Black, 28 N. Y. (1 Tiff.) 
 438. Contra, Driscoll v. Damp, 16 Wis. 106. A general offer, by the 
 counsel for two defendants, " to call A., one of the two, as a witness," was 
 not an offer made in behalf of both, but an offer to examine him as to 
 matters in which B. was alone interested. "Wilson v. Elwood, 28 N. Y. 
 (1 Tiff) 117. 
 
 (&) The rule applies only to the question whether the evidence is ad- 
 missible, and not to its weight, or to matters tending to overthrow, con- 
 tradict, or invalidate it. Roberts v. Chan, 23 Cal. 259. It is held that, 
 where a party makes no objection to evidence at the time it is offered, he 
 may still object before the cause has been submitted to the jury. The 
 matter rests in the discretion of the court; and, where evidence was ob- 
 jected to upon incorrect grounds when offered, a request for a charge to 
 the jury, excluding the evidence upon correct grounds, was held to have 
 been properly granted, it appearing that the opposite party was not pre- 
 judiced by the delay. Russell v. Schurmier, 9 Miu. 28. An objection 
 to evidence, that it is inadmissible, without specifying the reason, should 
 28
 
 434 THE LAW OF NEW TRIALS. [CII. XIII. 
 
 § 55. A gen-eral objection, without a statement of the 
 ground, is to be understood as an objection to the compe- 
 te disregarded. Lect v. Wilson, 24 Cal. 398. Thus an objection to the 
 admission of a prisoner's confession. State v. Brooks, 1 Vrooni, 356. 
 So a general objection to evidence which is admissible in part. State v. 
 Alford, 31 Conn. 40 ; Colvin v. Warlord, 20 Md. 357 ; Murphy v. State, 
 1 Ala. (N. S.) 48 ; McGill v. Monette, ib. 285 ; Wood v. Barker, ib. 311 ; 
 Webb V. Kelly, ib. 349 ; Sterrett v. Raster, ib. 404 ; Bissel v. Beckwith, 
 32 Conn. 509 ; Oelrichs v. Ford, 21 Md. 489 ; Folk v. Wilson, ib. 538 ; 
 McGill V. Monette, 37 Ala. 49; Wood v. Barker, ib. 60; Murphy v. 
 State, ib. 142 ; Webb v. Kelly, ib. 333 ; Sterrett's Ex'r v. Kaster, ib. 
 366; Sneed v. Osborn, 25 Cal. 619; Newsom v. Huey, 36 Ala. 37. Or 
 to secondary evidence. Gelpecke v. Lovell, 18 Iowa, 17. Or an objec- 
 tion to a question which calls for the opinion of a witness, for the reason 
 that he has not been shown competent as an expert. Mallory v. Perkins, 
 9 Bosw. 572. A general objection to the admission of testimony may be 
 overruled when any part of it is admissible. Newsom v. Huey, 36 Ala. 
 37. An objection to a question to a witness does not lie, which assumes 
 a disputed fact. Adams v. Capron, 21 Md. 186. Where the plaintiff, 
 while testifying, produced his deceased father's rent-book, upon the 
 request of the defendant's counsel ; held, the mere inspection of the 
 book by the counsel did not make it evidence for the plaintiff. Austin v. 
 Thomson, 45 N. H. 113. Where a witness was asked several questions 
 pertaining to the same point in immediate succession, and an objection 
 to the first, which was merely preliminary, was improperly overruled, and 
 exception taken ; held, the objection applied to the whole. Barton v. 
 Kane, 17 Wis. 37. If an objection is made to a 2>roper preliminary ques- 
 tion, and overruled, and the witness, instead of making a direct answer, 
 gives in reply incompetent testimony ; the court need not strike out such 
 evidence, except upon motion or further objection. Fox v. Fox, 25 Cal. 
 587. The admission of various papers filed in a case in insolvency, which 
 are read as part of the record of the case, in order to contradict material 
 testimony of the debtor as a witness, is no ground for a new trial, if the 
 bill of exceptions docs not show the nature of the objection made thereto. 
 Cox V. Jackson, 6 Allen, 108. If a person whose settlement is in dis- 
 pute is proved to have removed from town A. to B., a new trial will not 
 be granted on account of the admission of evidence, for the purpose 
 of proving his domicile in B., that he came to B. and said that he had 
 sold out at A., and had come down and wanted to go to work; if no spe- 
 cial request was made for an instruction that his declaration was not of 
 itself competent evidence of his selling out. Monson v. Palmer, 8 Allen, 
 551. Objections to evidence must be made at the time it is ofi'ered, and
 
 CH. XIII.] ADMISSION OR REJECTION OF EVIDENCE. 435 
 
 tency of tlie evidence, and not as one taken upon some 
 ground which might have been obviated at the trial.^ 
 A general objection to evidence is insufficient, when it 
 tends to mislead, or when, if the special point had been 
 formally presented, it might have been met and obviated.^ 
 Thus a ground of objection to the form of a question must 
 be stated, so that the question may be correctly put.^ So 
 it is not error, to reject evidence of what was sworn to by 
 a party on a former occasion, unless the offer set forth the 
 evidence proposed to be given, and show that it is mate- 
 rial to the issue.* So a general objection to a paper is 
 unavailable, unless upon its face clearly inadmissible or 
 void.^ So the court above will not notice a special objec- 
 tion to evidence, which was objected to generally in the 
 court below.^ 
 
 § 56, A new trial will not be granted for the rejection 
 of impeaching evidence, not oifered as such.' Or the ad- 
 mission of an interested witness not objected to,^ Or the 
 admission by consent of secondary evidence.' And, gene- 
 
 ' State V. Flanders, 38 N. H. 324. * Williams «. Williams, 34 Penn. 
 
 See Pool V. Devcrs, 30 Ala. 672. 312. 
 
 2 Hayward v. Bath, 38 N. H. 179; ^ McDonald v. Bear, &c., 13 Cal. 
 Pool V. Devers, 30 Ala. 672 ; Swift 220. 
 
 V. Whitney, Same v. Marsh, 20 111, ^ People v. Glenn, 10 Cal. 32. 
 
 144; Jones v. Ransom, 3 Ind. 327 ; ^ Hayward«.Duncklee,30 Verm. 
 
 Mumford v. Thomas, 10 ib. 167 ; 29. 
 
 Rash V. Whitney, 4 Mich. 495; Ki- « Jackson v. Barron, 37 N. H. 
 
 ler V. Kimbal, 10 Cal. 267; State v. 494. 
 
 Wilson, 8 Clarke, 407. » Norris v. Milner, 20 Geo. 563 ; 
 
 3 Pearson v. Fiske, 2 Hilt. 146 ; Goodwyn v. Goodwyn, ib. 600. 
 Tattersall v. Hass, 1 ib. 56 ; Hunt 
 
 V. Hoboken, &c., ib. 161. 
 
 not by asking instructions to the jury that it cannot be used. State v. 
 Pratt, 20 Iowa, 267. Where a motion for a new trial merely shows that 
 a party claimed that certain evidence was not admissible, but not that 
 the claim was made when the evidence was offered, or that the evidence 
 was let in subject to objection, and the claim was subsequently made that 
 it should be excluded, or that the court was requested to charge as to its 
 effect or the consideration to be given to it ; no question is raised which 
 the court is bound to consider. Rathbone v. City, 31 Conn. 193.
 
 436 THE LAW OF NEW TRIALS. [CH. XIII. 
 
 rally, testimony not objected to is to have the same eftect 
 as if competent.^ So, when an instrument oft'ered in evi- 
 dence is not objected to, an indorsement on it is consid- 
 ered as proved.^ 
 
 § 57. Wliere a part of the evidence is competent, but a 
 general objection is made ; a new trial will not be granted.^ 
 On the other hand a general oiFer of evidence, a part of 
 which is illegal, may be rejected.'* (See § 22.) 
 
 § 58. It is no ground of new trial, that evidence was 
 admitted which was incompetent as to one defendant, 
 unless objected to as to him alone.^ In such case, the 
 other defendant should move for proper instructions from 
 the court." 
 
 § 59. Upon motion for new trial, on the ground of sur- 
 prise in the exclusion of depositions, the affidavit must 
 state the testimony contained in such depositions, or its 
 substance.^ 
 
 § 60. The question of time is sometimes material, in 
 reference to the admission or exclusion of evidence.(«) 
 Thus, under a statute limiting the time of prosecution 
 for an offence, if evidence of the commission of such 
 offence at a time beyond this limit is admitted, the de- 
 fendant is entitled to a new trial.^ But, although, in 
 general, evidence of facts occurring after the commence- 
 ment of the suit is inadmissible ; if such evidence was 
 
 ' Atwell V. Grant, 11 Md. 101. s Black v. Foster, 28 Barb. 387. 
 
 2 Bell V. Keefe, 12 La. An. 340. « Goodman v. Walker, 30 Ala. 
 
 3 Robinson v. Tipton, 31 Ala. 482. 
 
 595 ; Moore v. Lea, 32 ib. 375 ; ? Peers v. Davis, 29 Mis. 184. 
 Ferry v. Parks, 11 Lid. 165. « State v. Gray, 39 Maine, 353. 
 
 * Jeans v. Lawler, 33 Ala. 340. 
 
 (a) A new trial will be granted for the admission of evidence incom- 
 petent at the time, though by a subsequent law made competent. Cory 
 V. Silcox, 5 Ind. 370.
 
 CH. XIII.] ADMISSION OR REJECTION OF EVIDENCE. 437 
 
 admitted and the facts were immaterial, the verdict will 
 not be set aside for that reason.^ So, in a case of seduc- 
 tion, where evidence was admitted, of expenses incurred 
 subsequently to the commencement of suit ; a new trial 
 was refused, upon the grounds of the peculiar nature of 
 the action, that the evidence was merely in aggravation 
 of damages, the action itself being fully maintained other- 
 wise, that no second action could be brought for the dam- 
 ages in question, and that apparently the evidence had 
 little or no influence on the verdict.^ 
 
 § 61. The time of introducing testimony is also often an 
 important question. («) 
 
 § 62. It is held to be almost a matter of course to let 
 in new evidence for the plaintiff, on a motion for a non- 
 suit.^ So it is held, that, if a party discover material 
 evidence at any time before the close of the arguments, 
 the court should allow it to be introduced.* So, on a final 
 trial before a special jury, when the witness is in court, 
 and each side is to be heard on the testimony ; he should be 
 heard, though the arguments have commenced, the wit- 
 ness having been absent at the moment when called, 
 through an excusable mistake of his own.® More espe- 
 cially, a party has no right to complain that evidence is 
 
 ' School District v. Bragdon, 3 " McColgau ■». McKay, 25 Geo. 
 Fost. 29. 631. 
 
 2 Stiles v. Tilford, 10 Wend. 338. " Hook v. Stovall, 26 Geo. 704. 
 
 ^ Parker v. Johnson, 25 Geo, 576. 
 
 (a) It is of no consequence in what order evidence is introduced, so 
 far as its ultimate legitimacy is concerned, provided, in its relation to the 
 other evidence in the case, it is in the end pertinent to the issue. Jetine 
 V. Joslyn, 41 Vt. 478. Where a plaintiff offers a deed as a distinct and 
 sufficient ground of his title, the court may, upon objection, consider the 
 question then of its sufficiency to show title, and may properly exclude 
 it if it shows title in another rather than in the plaintiff; though the 
 regular mode would be to admit tlic deed in evidence, and for the court 
 afterwards to judge of its sufficiency. Davis v. Ilerndon, 39 Miss. 484.
 
 438 THE LAW OF NEW TRIALS. [CU. XIII. 
 
 admitted after counsel have begun to address the jury, 
 unless he is less prepared to meet it than he would have 
 been at an earlier stage of the case.^ So where a party 
 asks to recall a witness who has been once examined, or 
 to call a person referred to by such witness, on the ground 
 that he has since learned that he could thus prove a ma- 
 terial fiict, which he did not know of before; the court 
 ought not, on a mere general objection by the other side, 
 to refuse the application. Thus, with the examination of 
 a witness for the plaintiff, who swore to a certain conver- 
 sation with another person, the testimony closed, and the 
 court adjourned till the next morning. On the opening 
 of the court the next day, the defendant asked to be 
 allowed to introduce that other person (who was not 
 present the night before), as a witness, to prove that no 
 such conversation took place, offering to make affidavit 
 that he did not anticipate the testimony of the first- 
 named witness ; and it was held that leave should be 
 granted.^ 
 
 § 63. A new trial will not be granted, where the first 
 objection to testimony is made during the argument.^ 
 Nor, in general, if the interest of a witness is not ob- 
 jected to as soon as known.* 
 
 § 64. But it is also held that a new trial will be granted, 
 though testimony was not objected to, if its incompetency 
 bo shown by subsequent evidence.^ And that a motion 
 may be made at any stage of the trial to exclude illegal 
 evidence.^ That irrelevant testimony may be excluded at 
 any time before the jury retire, though not previously 
 objected to.^ 
 
 • Russell V. KeaniPV, 27 Geo. 96. ^ Andre v. Bodman, 13 Md. 241. 
 
 2 Bone V. Inun-um, 27 Geo. ;?82. e Pool y. Devers, 30 Ala. 672. 
 
 3 Laurent v. 'Vauij;lian, 30 Verm. ^ Poarsall v. McCartney, 28 Ala. 
 90. 110; Creed v. White, 11 Humph. 
 
 * Sheridan v. Medara, 2 Stockt. 549. 
 4G9 ; Drake v. Foster, 28 Ala. 049.
 
 CH. XIII.] ADMISSION OR REJECTION OF EVIDENCE. 439 
 
 § 65. Where parol evidence of certain regulations is 
 given, and it appears for the first time on cross-examina- 
 tion that they are in writing, the other party should then 
 move to strike out the evidence.^ And where, on cross- 
 examination, testimony appeared to be merely hearsay, it 
 should be struck out, though not objected to.^ 
 
 § QQ. "Where testimony has been given without objec- 
 tion, as shown by the bill of exceptions, and its exclusion 
 had therefore become impossible, the jury being already 
 in possession of it ; it was held that a motion to exclude 
 such testimony was unmeaning and was properly over- 
 ruled.3 
 
 § 67. A new trial was granted, where the plaintift"'s 
 attorney testified for his client, and it was afterwards dis- 
 covered that he had previously taken an assignment of 
 the claim. The court (Tindal, J.) remarking, " Such con- 
 duct in an attorney is happily without precedent ; and I 
 hope the like will not occur again. The case of Turner 
 V. Pearte only decides that the mere incompetency of a 
 witness is not of itself a sufficient ground. We decide 
 this upon the ground of mala praxis."\a) 
 
 ' Kiler v. Kimbal, 10 Cal. 267. * Wade v. Simeon, 2 Man. Gr. & 
 
 2 Parker v. Smith, 4 Cal. 105. Sc, 343. 
 
 3 State V. Rolifrisclit, 13 La. An. 
 
 382. 
 
 (a) If improper evidence is given, tending to inflame the damages, 
 and is not struck out at or before the close of the testimony, so that 
 counsel shall not be allowed to refer to or dwell upon it in their address 
 to the jury; it is too late to cure the mistake by directing the jury to 
 disregard it in the charge. Pennsylvania v. Butler, 57 Penn. 335. Where 
 a defendant is examined as a witness, without objection, respecting mat- 
 ters on which his testimony is not competent; a motion at the close of 
 his examination to strike out all his testimony is properly denied, since 
 the defendants are entitled to so much of his testimony as is competent. 
 Spaulding v. Hallenbeck, 35 N. Y. 204. The court need not interfere 
 mero motu to exclude testimony, otherwise competent, merely because
 
 440 THE LAW OF XEW TRIALS. [CII. XIII. 
 
 § 68. A new trial will not be granted, upon the ground 
 that testimony was excluded, if afterwards received.^ 
 More especially unless the rejection prevents some cor- 
 rection.2 
 
 § 69. It is ground of new trial, that testimony re- 
 
 ' Robinson v. Fitchburg, &c., 7 ^ Stephens v. People, 19 N. Y. 
 Gray, 93. (5 Smith) 549. 
 
 the preliminary inquiry has not been made ; and, if not objected to, and 
 the testimony has been received, it is not then competent for the court to 
 strike it out, if legal in form and pertinent to the issue. U. S. v. Holmes, 
 1 Cliff. 98. If the testimony of a witness upon re-examination appears 
 to be in some particulars contradictory to that given by him at his first 
 examination, no exception lies to a refusal to strike out his testimony as 
 first given, but it is a question of fact, upon the whole of the witness's 
 testimony, whether the first or second statement is correct. Stockwell v. 
 Holmes, 33 N. Y. 53. A motion to strike out irrelevant testimony may 
 be made before the case is given to the jury. Pennsylvania v. Brady, 
 14 Mich. 2G0. A new trial will not be granted, on motion of the defen- 
 dant, because one of the plaintiff's witnesses was examined without being 
 sworn, where it does not sufficiently appear that the defendant himself 
 and his attorney were ignorant of that fact before a verdict was returned. 
 Riley v. Monohan, 26 Iowa, 507. It is no error, to allow a witness to be 
 sworn after the evidence is closed on ])oth sides, and the arguments begun. 
 Bigelow V. Young, 30 Geo. 121. After the testimony has been closed 
 and the argument commenced, a party cannot claim as a right, that the 
 testimony of interested witnesses, who were examined without objection, 
 shall be excluded. Newsom v. Huey, 36 Ala. 37. After testimony has 
 been received without objection on the part of the defendant, and used 
 and commented on by him to the jury; he cannot afterwards ask its 
 withdrawal, as the case is about to be given to the jury. Mclnroy v. 
 Dyer, 47 Peun. 118. In an action which involved the application of the 
 law of Scotland to a charter-party executed there, a motion was made, 
 after the close of the arguments, to discharge the agreed statement of 
 facts, so far as to allow testimony to be taken to prove the law of Scot- 
 land as a fact in the case. Held, as there was no suggestion that there 
 is any statute or judicial decision applicable to the question, which is 
 not already accessible to the court, the motion must be denied. Chase 
 V. Alliance, 9 Allen, 311.
 
 CH. XIII.] ADMISSION OR REJECTION OF EVIDENCE. 441 
 
 jected by mistake was not received on discovery of the 
 mistake.' 
 
 § 70. A motion to suppress the reading of a deposition, 
 on the ground of insufSciency of notice, must be made 
 when it is offered at the trial, and cannot be made before 
 trial. ^ 
 
 § 71. The plaintiff objected to a deposition offered by 
 the defendant, which, the magistrate stated, was taken 
 because the deponent was going to sea. It was agreed 
 that the deponent did not go on the voyage contemplated, 
 at the time the deposition was taken; and the parties 
 were in controversy as to the fact whether he had since 
 gone to sea, or was within the State; but the court re- 
 fused to postpone the trial to enable the defendant to 
 obtain further evidence on that point, and rejected the 
 deposition. Held, no ground of new trial. ^ 
 
 § 71a. A new trial will not be granted, because a depo- 
 sition was sent to the jury by the court, at their request, 
 where the court instructed the jury, that parts of the 
 deposition which had been ruled out were no evidence ; 
 no exception having been taken to the action of the court 
 at the trial, and it not appearing that the evidence ruled 
 out was of a character to affect the minds of the jury, 
 even had they read it.\a) 
 
 • Goodwyn v. Goodwyn, 20 Geo. ^ Larkin v. Avery, 23 Conn. 304. 
 600 * Foster v. McO'Bleuis, 18 Mis. 
 
 2 Mills V. Dunlap, 3 Cal. 94. 88. 
 
 (a) "Wlien a default is opened, on condition that certain depositions, 
 irregularly taken, may be put in evidence on the new trial, they may be 
 introduced in evidence in all subsequent trials. Waterson v. Seat, 10 
 Flori. 326. Under St. 1 Wm. 4, c. 22, ? 10, which makes a deposition 
 taken under it inadmissible at msi prius, unless it appear to the satis- 
 faction of the judge that the deponent is unable, from permanent sick- 
 ness, or other permanent infirmity, to attend ; Hie court out of which the
 
 4-i2 THE LAW OP NEW TRIALS. [CII. XIII. 
 
 § 72. The improper exclusion of a sot-off is ground of 
 new trial, unless the plaintiff will allow it on the judg- 
 ment.^ 
 
 § 73. In !N'ew York a new trial was granted, where, 
 upon a question as to the competency of evidence, the 
 judge directed a verdict, subject to the opinion of the 
 court at a general term. The statute prescribing this 
 course, when the case presents questions of law, applies 
 only to cases where, the facts being found or conceded, it 
 only remains to pronounce the law.^ 
 
 § 74. In the same State, notwithstanding a statute con- 
 cerning " questions of law arising on reports of evidence ;" 
 a question upon the admission or exclusion of testimony 
 can be reserved only by bill of exceptions. Such statute 
 applies only to questions upon the evidence admitted.^ 
 
 § 75. An exception to the rejection of testimony, ob- 
 jected to by the opposite party, is not obviated by the 
 waiver of the objection at the close of the evidence, in 
 the absence of the witness, who does not return until the 
 arguments have commenced.^ 
 
 § 76. It is held, that, where the court erred in ruling 
 out testimony, and a proposition is made on the other 
 side to waive the objection and admit the evidence, which 
 is declined; the error is cured.'' But it is also held, that, 
 
 ' Harper v. Parker, 28 Geo. 257. * Foster v. Thompson, 5 Gray, 
 
 2 Bell V. Shihley, 33 Barb. 610. 453. 
 
 » Palmer v. Pinkham, 37 Maine, ^ Marshall v. Flinn, 4 Jones, 199; 
 
 252 McBride v. Cicotte, 4 INIicb. 478. 
 
 record comes may review the judge's decision, but will not do so, unless 
 there was fraud, or injustice has resulted. Duke of Beaufort v. Craw- 
 shay, Law Rep. 1 C. P. 699.
 
 CH. XIII.] ADxMISSION OR REJECTION OP EVIDENCE. 443 
 
 if the court refuse to permit competent testimony to go 
 to the jury, the error in such refusal is not cured, by the 
 consent of the adverse party afterwards to go into the 
 inquiry proposed by the rejected evidence.^ 
 
 • Keynolds v. Tucker, 6 Ohio (N. S.), 51G.
 
 444 
 
 THE LAW OF NEW TRIALS. 
 
 [CII. XIV. 
 
 CHAPTER XIV. 
 
 VERDICT AGAINST EVIDENCE. 
 
 4. 
 
 7. 
 
 8. 
 
 fact. 
 
 General rule. 
 
 Pleadiiif^s — variance. 
 
 By court al}Ove. 
 
 Additional grounds. 
 
 In reference to a particular 
 
 9. Limitations of the rule ; the 
 case must be strong. 
 
 12. Deficiency of evidence. 
 
 15. Court above. 
 
 17. Report of the evidence. 
 
 19. Preponderance of evidence; 
 weight of testimony; credibility of 
 witnesses; case passed upon by the 
 jury; improper bias, &c. 
 
 27. Absence of evidence. 
 
 28. Balance of testimony ; credit 
 of witnesses. 
 
 31. Number and relation of wit- 
 nesses. 
 
 36. Misunderstanding of the case. 
 
 37. Verdict founded upon some 
 evidence ; upon vague and suspi- 
 cious evidence. 
 
 40. Verdict for the defendant 
 without evidence. 
 
 42. For the plaintiff without evi- 
 dence. 
 
 44. Or against clear evidence for 
 the defendant. 
 
 45. Circumstantial evidence. 
 
 50. Evidence by inspection. 
 
 51. In reference to language. 
 
 52. Successive verdicts. 
 
 57. Demurrer to evidence. 
 
 58. Perverse verdict. 
 
 59. In what classes of cases. 
 GO. Criminal cases ; penal ac- 
 tions ; fraud. 
 
 64. Substantial justice. 
 
 65. Trifling cases. 
 
 66. No benefit to the party. 
 
 67. Trial by the court ; verdict 
 by consent ; award. 
 
 71. Questions of law. 
 75. Verdict satisfactory or other- 
 wise to the judge. 
 
 § 1. A VERDICT may be set aside, as being against evi- 
 dence^ or against the weight of evidence.\a) More especially 
 
 ' Mumford v. Smith, 1 Caines, 
 520; Gordon v. Crooks, 11 111. 142; 
 Lyle V. Rollins, 25 Cal. 437 ; Mc- 
 Carroll v. Stafford, 24 Ark. 224; 
 Cox V. Hamilton, 21 Tex. 777 ; 
 Branch v. Wilson, 12 Flori. 543 ; 
 Willis V. Lewis, 28 Tex. 185; Ohio 
 V. Schiebe, 44 111. 460 ; Koesler v. 
 
 Esslinger, ib. 476; Gibson v. Web- 
 ster, ib. 483 ; Boudreau v. Bou- 
 dreau, 45 ib. 480 ; Slocomb v. Lur- 
 ty, 1 Hemp. 431 ; Long v. Lewis, 
 16 Geo. 154 ; Wilkinson ■». Payne, 
 2 Salk. 646 ; 1 B. & P. 338 (called 
 the leading case, Graham, 398) ; 
 Wells V. Waterhouse, 9 Shep. 131 ; 
 
 (a) In Illinois, a new trial will be granted when a verdict is against 
 evidence, and not merely against the weight of evidence. Tillcy v. 
 Spalding, 44 111. 80. In New York, when there is sufficient evidence to 
 justify the decision, but the material fact is not expressly found, and the
 
 CH. XIV.] 
 
 VERDICT AGAINST EVIDENCE. 
 
 445 
 
 a verdict "entirely without evidence to support it."^ Or 
 having nothing to support it, and being therefore capri- 
 cious.- Or a verdict decidedly and strongly against the 
 weight of evidence.' Or a verdict which cannot be sus- 
 tained upon any hypothesis consistent with the testi- 
 mony.* Or where it appears that the jury either mistook 
 the evidence, or misunderstood the law applicable thereto.^ 
 Or (by the court above) where the record discloses no 
 evidence whatever to sustain the verdict.*' Or where the 
 
 Corlies v. Little, 2 Green, 373 ; 
 Munn V. Gairduer, 8 Brev. 31 ; 
 Hudson V. Williamson, 3 ib. 
 342 ; Byrnes v. Alexander, 1 ib, 
 213 ; McBride v. Whitehead, Geo. 
 Decis., Part I. 1G5 ; Childress v. 
 Stone, ib., Pt. II. 157 ; Jenkins v. 
 Whitehead, 1 Sm. & M. 157; Scott 
 Brookway, 7 Mis. 61 ; Wait v. 
 White, 5 Pike, 040; Gibson v. Gib- 
 son, 9 Yeri:^. 329 ; Cassels v. The 
 State, 4 ib. 149 ; McCoy v. Martin, 
 4 Dana, 580 ; Tiffin ». Forrester, 8 
 Mis. 642 ; Yale v. Yale, 13 Conn. 
 185 ; Brown v. Handley, 7 Leigh, 
 119 ; Mahon v. Johnston, ib. 317; 
 Brugh v. Shanks, 5 ib. 598 ; Moyer 
 V. Wiltberger, Geo. Decis., Part 
 II. 20 ; Young v. Wilson, 24 Miss. 
 694 ; Drermen v. Brown, 5 Eng. 
 138 ; Purvis v. Coleman, 1 Bosw. 
 321 ; State v. Hill, 48 Maine, 241 ; 
 Sanderson v. Hagau, 7 Flori, 318 ; 
 Aspley V. Thomas, 17 Tex. 220; 
 Wetzlar v. Northwest Ice Co., 9 
 Cal. 176 ; Cook v. Jones, 28 Geo. 
 
 589; Baker v. Bonesteel, 3 Hilt. 
 397 ; Mississippi, &c. v. Cross, 20 
 Ark. 443; Calhoun v. Stokes, 26 
 Geo. 325 ; Fain v. Jones, ib. 360 ; 
 Clements v. Little, 28 ib. 491; Cook 
 V. State, 29 ib. 75. But see Butts 
 V. King, 19 Ark. 117 ; McLure v. 
 Hart, ib. 119 ; Smock v. White, 27 
 Mis. 163 ; Steamboat, &c. v. Mat- 
 thews, 28 ib. 248; Backster v. Hall, 
 ib. 593. 
 
 ' Ub. sup.; Mattox ®. Bryan, 19 
 Geo. 157; Schwall v. Gingerick, 13 
 111. 697 ; Southworth v. Hoag, 42 
 ib. 446 ; Hughes v. Lane, 25 Tex. 
 356 ; McQueen v. Fulgham, 27 ib. 
 463. 
 
 2 McNair v. South Carolina, &c., 
 10 Rich. 284. 
 
 ' Butler V. Livingston, 15 Geo. 
 565. 
 
 1 Zeigler v. Scott, 10 Geo. 389. 
 
 5 Gordon v. Crooks, 11 111. 142. 
 
 6 Hall V. Page, 4 Geo. 428. See 
 Pogue V. Joyner, 2 Eng. 462. 
 
 party making the case has not prepared such finding ; the law presumes 
 that the fact was found conformably with the evidence. Sinclair v. Tall- 
 madge, 35 Barb. 602. In Massachusetts, a motion on the ground that 
 the verdict was against the weight of evidence comes too late, under the 
 26th rule of court, if made at the next term after the case is tried and 
 reserved on a question of law. Ilannum v. Belchertown, 19 Pick. 311. 
 In Connecticut, the Superior C(Jurt under the statute (Rev. St., tit. 1, 
 § 155) can allow a motion for a new trial for a verdict against evidence, 
 only where it is of opinion that the verdict is of that character; but it 
 is not necessary that this opinion should be certified by the court in 
 allowing the motion. Reboul v. Chalker, 27 Conn. 114.
 
 446 THE LAW OF NEW TRIALS. [CH. XIV. 
 
 evidence as it appears on the record is too slight to have 
 warranted the verdict.^ Or where the verdict is contrary 
 to both law and evidence.\a) These several grounds will 
 be illustrated in detail in the sequel of the present chap- 
 ter. Of necessity, they border very closely upon, or per- 
 haps seem to run into, each other ; but it may be useful 
 to discriminate them as far as possible, or even to analyze 
 and subdivide them into still more minute distinctions. 
 
 § 2. The general rule is, that the trial must have turned 
 upon evidence relating to a material issue, legitimately 
 made by the pleadings.^ Thus a new trial was granted 
 for want of proof of material allegations.'* So it is ground 
 of new trial that there is a variance between the allega- 
 tions and proofs.^ But, on the other hand, a new trial 
 was granted, where a verdict was given for the defendant, 
 on account of a slight misnomer.^ 
 
 § 3. If by the pleadings only one issue is involved, and 
 the evidence is conflicting, the verdict should seldom be 
 disturbed ; but when there are several issues, and the ver- 
 dict is general, it cannot be determined upon which of 
 them the verdict is based, and, if it might have been upon 
 an issue upon which there was no material conflict of tes- 
 timony, and it is erroneous with respect to that issue, this 
 will be good ground for setting it aside, especially if there 
 be erroneous instructions in relation to the law involved 
 in that issue.^ 
 
 § 4. It is sometimes laid down, that, where a verdict is 
 
 ' Keaton v. Governor, &c., 17 ^ Ryan -y. Copes, 11 Rich. 217. 
 Geo. 228. ^ Drake «. Surget, 36 Miss. 458. 
 
 2 Farriint v. Olmins, 3 B. & Aid. ^ Dickerson i). Brady, 23 Geo. 
 
 692; Jackson v. Parker, 9 Cow. 73. KU. 
 
 a Parker v. Ileudrie, 3 Clarke, t Gay v. Lemle, 32 Miss. 309. 
 263. 
 
 (a) Thus one in favor of a conveyance from father to son, which was 
 made for the support of the family alone. 9 Cow. 73.
 
 CH. XIV.] VERDICT AGAINST EVIDENCE. 447 
 
 against evidence, a new trial can be granted only by the 
 judge who tried the cause.^ Or, not by an appellate court.^ 
 (See §§ 15, 19.) But where the record discloses a case in 
 which the jury have manifestly found against evidence, 
 the court above will sometimes set aside the verdict.^ 
 And, although an application to set aside a verdict as 
 against evidence is addressed to the discretion of the 
 court below ; yet it must be a legal and sound discretion. 
 And if a new trial is refused, where the verdict is plainly 
 not the result of a free, sound, and unbiassed exercise of 
 judgment on the testimony; the judgment of the court 
 below, refusing a new trial, will be reversed.* 
 
 § 5. The distinction is made, that a verdict may be 
 against the weight of evidence, and yet not so strongly 
 as to authorize a new trial, when it has been refused by 
 the court below.^ Where the evidence is contradictory, 
 the court trying the cause may grant a new trial because 
 the verdict is against the weight of evidence; but its de- 
 cision on the motion is not subject to revision by an ap- 
 pellate court. And, in such case, the court trying the 
 cause cannot be required to state in a bill of exceptions 
 what the evidence in the cause was, or the facts proved.^ 
 
 § 6. And, in general, a verdict will not be set aside, 
 though contrary to the judgment of the appellate court, 
 unless there is a total want of evidence to sustain it.^ As 
 
 > Alley «. Hampton, 2 Dev. 11. * Jourdan v. Reed, 1 Clarke, 135. 
 
 2 Hotchkins v. Hodge, 38 Barb. See Gaster v. Hodgins, 21 Ark. 468; 
 117. See Gillespie v. Stone, 43 Morris v. Barnes's, 35 Mis. 412; 
 
 Mis. 350 ; Odam v. Nelms, 24 Geo 
 412 ; Wolf V. State, 11 Ind. 231 
 Maroney v. State, 8 Min. 218 
 Booth «. Small, 25 Iowa, 177 
 Heinlin «. Fish, 8 Min. 70 ; How 
 ard V. Ray, 25 Tex. 88 ; Ophir v 
 
 State V. Schneider, ib. 533. 
 
 5 Doe V. Roe, 28 Geo. 484. 
 
 6 Grayson ». Com., 6 Gratt. 712. 
 ^ McDaniel v. Parks, 19 Ark. 671 ; 
 
 Escolle V. Merle, 9 Cal. 94 ; French 
 n. Lowry, 19 111. 159 ; Archdale v. 
 
 Carpenter, 4 Nev. 534. Moore, ib. 505 ; Goodell v. Wood- 
 
 3 Keagg V. Hite, 12 111. 99. rufl", 20 ib. 191.
 
 448 THE LAW OF NEAV TRIALS. [CU. XIV. 
 
 where the question depends iii»ou the credibility of a Avit- 
 ness, and that has been fairly submitted to the jury.'(a) 
 
 § 7. It is an additional reason for ordering a new trial, 
 on the ground of a verdict against evidence, that justice 
 was not done^ (see chap. 3): and that the evidence was of 
 a loose character; the case important; and that the losing 
 party was surprised by the evidence.^ 
 
 § 8. A new trial may be granted on this ground, though 
 a particular fact was left to the jury, which they find.* 
 
 § 9. But no ground of new trial is more carefully scru- 
 tinized, or more rigidly limited. It is regarded as incon- 
 sistent with the established maxim of law — " ad questio- 
 nem legis, judices, ad qiiestionem fadi, juratores, respon- 
 dent."^ It is said : " Courts should rarely take it upon 
 themselves to decide on the effect of evidence. Were 
 they so to act, they might, with truth, be charged with 
 usurping the privileges of the jury."^ "If it is clearly 
 wrong, we must do so; if we only doubt its correctness, 
 
 1 Standley v. Miles, 36 Miss. 435. » Sce De Tastet v. Baring, 11 E. 
 
 2 Jackson v. Stembergli, 1 265 ; Woodcock v. Nuth, 8 Bing. 
 Caiues 163 I'^O ; Campbell v. Spencer, 2 Binn. 
 
 3 Khoneu. Ins. Co.,1 Wasli. 123; 129 ; Van Norman v. Wheeler, 13 
 Hutchinson v. Coleman, 5 Halst. Tex. 316. 
 
 74. 6 Giles v. The State, 6 Geo. 276. 
 
 i Khone v. Ins. Co., 1 Wash. 123. 
 
 (a) A verdict will not be set aside by the appellate court upon the 
 ground of the insufficiency of the evidence to sustain it, when the lower 
 court has refused to do so, unless there is such a decided preponderance 
 of evidence against it as to create a conviction that it was the result of 
 mistake or misconduct on the part of the jury. Quint v. Ophir, 4 Nov. 
 304. So when a case has been fairly submitted to the jury upon the 
 evidence, and no error in the charge of the court is alleged, and the 
 verdict is not manifestly and decidedly against the evidence. Field v. 
 Boynton, 37 Geo. 188. When the court grants a new trial on the ground 
 that the verdict is against evidence, the court above will reverse such 
 judgment where it manifestly api)oars from the record that it is not. 
 Cleckley v. Beall, 37 Geo. 607 ; Hicks v. Blake, 13 Min. 434.
 
 CII. XIY.] VERDICT AGAINST EVIDENCE. 449 
 
 we must let it alone."^ " We are not satisfied that the 
 verdict of tlie jury was right. But this is not enough. 
 A mere difference of opinion between the court and jury 
 does not warrant the former in setting aside the finding 
 of the latter. That would be, in eflect, to abolish the in- 
 stitution of juries, and substitute the court to try all 
 questions of fact."^ And the distinction is made, that it 
 is the duty of the court to determine upon the competency 
 of evidence, and not upon its sufficiency ; and a verdict 
 ought not to be set aside, although it should be the 
 opinion of the court that the evidence was not sufficient 
 to justify it; that a jury may find a fact from slight evi- 
 dence, if it is competent f and that the evidence must be 
 clearly insufficient to warrant the verdict, to authorize 
 the granting of a new trial ; especially by an appellate 
 court. ^ 
 
 § 10. Hence it is the prevailing rule, that a verdict will 
 not be set aside, unless clearly^ ixtlpahly^ decidedly, and 
 strongly against the evidence f or so much against the 
 weight of evidence, as, on the first blush of it, to shock 
 the sense of justice f or unless there has been a flagrant 
 abuse of discretion -J that courts will never, in the absence 
 
 ' Per Thumian, C. J., McGat- boken, &c., 1 Plilt. 161 ; Mclntyre 
 
 rick V. Mason, 4 Ohio (N. S.), 575. v. Crawford, 26 Geo. 438 ; Ferrell 
 
 2 French v. Willard, 2 Ohio St. r. McKinny, ib. 447 ; Durham v. 
 
 53. Broddus, ib. 524; Whitten v. Knox, 
 
 » Wendell v. Moulton, 6 Fost. 41. ib. 560 ; Carpenter v. State, &c., ib. 
 
 * Grayson «. Com., 6 Gratt. 712; 622; Boon v. Boon, 29 ib. 134; 
 
 Drennen v. Brown, 5 Eng. 188. Lang v. Brown, ib. 628 ; Bowman 
 
 5 Nunes v. Carter, Law Rep. 1 v. Torr, 3 Clarke, 571 ; Rudman v. 
 
 P. C. 342 ; Tobnan v. Race. 36 111. Rudman, 5 Ind. 63 ; Smith v. Tiff- 
 
 472 ; State v. Elliott, 15 Iowa, 72 ; any, 36 Barb. 23 ; Kimball v. Gear- 
 
 Erben ». Lorillard, 23 Barb. 82; heart, 12 Cal. 27. 
 
 Willis V. Willis, 18 Geo. 13 ; Burk- e Hazen v. Henry, 1 Eng. 86 ; 
 
 halter v. Wells, ib. 367 ; Page v. Lewis v. Read, ib. 428 ; Waters v. 
 
 Carter, 8 B. Mon. 192 ; Wright v. Bristol, 26 Conn. 398 ; Daley v. 
 
 Greenwood, 17 Geo. 418 ; Latham Norwich, &c., ib. 591 ; Drennen v. 
 
 V. Selkirk, 11 Tex. 314 ; Baker v. Brown, 5 Eng. 138 ; State, &c. v. 
 
 Pritchett, 16 111. 66 ; Moore v. Wooddy, ib. 638. 
 
 Foster, 10 B. Mon. 255 ; Sims v. ' Hopkins v. Tilman, 25 Geo. 
 
 Chance, 7 Tex. 561 ; McMillan v. 212. 
 McCoy, 13 Geo. 320 ; Hunt v. Ho- 
 
 29
 
 450 THE LAW OF NEW TRIALS. [CH. XIV. 
 
 of the most satisfactory evidence that the verdict is erro- 
 neous, substitute their impressions for the opinion of the 
 
 ' Lang V. Hopkins, 10 Geo. 37. 
 
 (a) When the evidence will sustain the verdict it should not be set 
 aside, although in the opinion of the court the jury might have found 
 otherwise. Knickerbocker v. Anderson, 2 Vroom, '533 ; New York v. 
 Graham, 2 Duv. 506. Nor (as is sometimes held) though the mere 
 weight of evidence is against it. State v. Crytes, 24 Ark. 183; Dicker- 
 son V. Johnson, ib. 251. Nor where the evidence is merely conflicting. 
 Lewis V. Blake, 10 Bosw. 198; Rowe v. Smith, ib. 268 ; Ammons v.State, 
 9 Flori. 530; Brockman v. Berryhill, 16 Iowa, 183 ; Brown v. Jefferson, 
 ib. 339; Edmiston v. Garrison, 18 AVis. 59-1; White v. Clayes, 32 111. 
 325; Powell V. ITealey, 28 Tex. 52; Garner v. Cutler, ib. 175; Floyd 
 V. Rice, ib. 341 ; Seal v. State, ib. 491 ; Stroud v. Springfield, ib. 649 ; 
 McDonald v. Maudlin, 29 Ind. 87; Kaufman v. Bott, ib. 521 ; Davis v. 
 Ilocppncr, 44 111. 306; Young v. Read, 25 Tex. (Supp.) 113; Adams v. 
 George, ib. 374; Fowler v. Lewis, ib. 380 ; Treat v. Reilly, 35 Cal. 129; 
 Hastings v. Stark, 36 ib. 122 ; Stark v. Noble, 24 Iowa, 71 ; Smith v. 
 McLean, ib. 322 ; Callanan v. Shaw, ib. 441 ; Schrimper v. Ileilman, ib. 
 505; Sherman tJ. Western, ib. 515; Mitchell v. Tolley, 4 Kans. 177. 
 Where the verdict is not shown not to have been the result of a sound 
 and honest exercise of judgment on the part of the jury. Stark v. Noble, 
 24 Iowa, 71 ; McNorton v. Akers, ib. 369. And these rules more espe 
 cially apply to motions for new trial in a higher court. Lubeck v. Bul- 
 lock, 24 Cal. 338 ; Peterie v. Bugbey, ib. 419 ; Aldrich v. Palmer, ib. 
 513 ; Lane v. Brown, 22 Ind. 239 ; Brooks v. Perry, 23 Ark. 32 ; Mayson 
 V. Edington, ib. 208; Burlington v. Greene, 22 Iowa, 508 ; Chicago v. 
 Yosburgh, 45 111. 311; Grubb v. Kalb, 37 Geo. 459; Perry v. Hoduett, 
 38 ib. 103; Jones v. Block, 30 Cal. 227. In Massachusetts, if a case is 
 submitted to the whole court, that a verdict may be set aside if upon 
 the evidence the jury were not warranted in finding the verdict, judg- 
 ment will be rendered on the verdict, if there is any evidence, however 
 sli"ht, even though contradicted and controlled by other evidence, which 
 could properly be sul)niitted to thorn, and on which they could legally 
 find their verdict. Forsyth v. Hooper, 11 Allen, 419. The court Avill 
 not disturb a finding of the court below, unless the evidence was such 
 that, if the question had been submitted to a jury and they had rendered 
 a verdict in accordance with the finding, the court would have set it aside 
 as contrary to evidence. Moore v. Murdock, 26 Cal. 514. The finding 
 of a jury, upon the genuineness of a signature, will be rarely interfered
 
 en. XIV.] VERDICT AGAINST EVIDENCE. 451 
 
 § 11. Accordingly, in general, if there is any evidence 
 to support a verdict, it will not be disturbed.^ Or, as is 
 sometimes held, where there is evidence on both sides, the 
 verdict will not be disturbed.^ It is not sufficient that 
 the evidence might incline the mind of the court to a 
 difierent result.^ The question is not, whether the court, 
 from a detail on paper of all the evidence, would have 
 found as the jury did ; but whether there was such evi- 
 dence as would justify the jury in giving the verdict. '' 
 Thus, in a late case in Massachusetts, it is said : " The 
 evidence was extremely loose, vague, and indeterminate. 
 But it was not objected to as incompetent, and we can- 
 not say that the jury came to a wrong conclusion upon 
 it."^(«) 
 
 § 12. In pursuance of these general rules, it is held, 
 
 ' Rogers v. King, 12 Geo. 229. * Bishop v. Perkins, 19 Conn. 
 
 2 Easterly v. Cole, 1 Barb. 235 
 Pleak V. Chambers, 7 B. Mou. 565 
 Pullkerson v. Bollinger, 9 Mis. 838 
 
 800 ; Wendell v. Safford, 12 N. H. 
 171 ; Ways v. Collins, 6 Leigh, 
 230 ; Brugh v. Shanks, 5 ib. 598. 
 
 Glasgon ®. Moore, ib. 843. * Per Shaw, C. J., Whiton v. Old 
 
 3 Sullivan v. Dollins, 13 111. 85. Colony, &c., 2 Met. 8. 
 
 with, as being against evidence. Wright v. Carillo, 22 Cal. 595. A new 
 trial will not be granted, where the burden of proof is upon the appli- 
 cant and there is a conflict in the evidence, more especially where his 
 own evidence is inconsistent with itself. Crook v. Forsyth, 30 Cal. 662. 
 When evidence is conflicting, it is for the jury to determine from all the 
 circumstances to whom they will give credit. Chicago v. Northern, 36 
 III. 60. As where many of the witnesses on either side are directly or 
 indirectly interested. And the case must be a very strong one to justify 
 a reversal of the judgment, on the ground that the verdict is against 
 the weight of evidence. Hull v. Alexander, 26 Iowa, 569. So where, 
 upon the question of value of certain goods, there is a conflict of testi- 
 mony. Newell V. Eusk, 23 Ind. 210. A verdict will not be set aside 
 because supported by only slight evidence, if uncontradicted. Chicago 
 V. Williams, 44 111. 176. 
 
 (a) Where the court see that they caunot support a verdict without 
 becoming judges of the fact, they will reverse it, though they think that 
 the evidence fully authorized the verdict. Pilcher v. Hart, 1 Humph. 
 524.
 
 452 THE LAW OF NEW TRIALS. [CH. XIV. 
 
 that, whenever there is any legal arid competent evidence 
 hefore the jury to maintain and support their verdict, the 
 court has no legal authority to grant a new trial, on the 
 ground that the verdict was without evidence.^ And 
 that a verdict will not he set aside hecause founded on 
 slight evidence."^ Nor merely on the ground oi insujjiciency 
 of proof.' 
 
 § 13. But where there is no evidence against the de- 
 fendant, a verdict against him will be set aside.* Or where 
 it is clear, that the evidence is not reasonably sufficient to 
 prove the case, even if uncontradicted.* So where a bill 
 of exceptions, to an opinion of a court overruling a motion 
 for a new trial, instead of stating the facts proved, set 
 forth the evidence adduced at the trial ; but this evidence 
 showed, that the evidence of the party for whom the 
 verdict was found, supposing it true, and disregarding the 
 evidence for the other party, was not sufficient to warrant 
 the verdict : the exceptions were held to be well taken.^ 
 
 § 14. But a new trial was refused, where no objection 
 was made at the trial to want of proof of a partnership 
 between the plaintiffs.^ And, on the other hand, a verdict 
 for the defendant was set aside, rendered on the ground 
 of want of authority in the plaintiff's attorney, though 
 this might furnish reason for dismissal or continuance. 
 So where this issue is submitted to the jury by the court, 
 without being pleaded, though without objection of 
 counsel.^ So in a case where the proof of a will was ob- 
 jected to, for non-}»roduction of the only living wit- 
 ness, it was said : " This being a verdict subject to the 
 opinion of the court, the court are authorized to draw the 
 
 1 "Warner v. Robertson, 13 Geo. ^ Chandler v. Heckling, 22 Tex. 
 370. 36. 
 
 2 Goodman v. Smith, 5 Dev. 450. « Rohr v. Davis, 9 Leigh, 30. 
 
 3 Angus V. Dickcrson, 1 Meigs, "> Whitlock v. Biieno, 1 Hilt. 72. 
 459 * Savary v. Savary, 3 Clarke, 
 
 « Swan V. Hyde, 9 Mis. 849. 271.
 
 CH. XIV.] VERDICT AGAINST EVIDENCE. 453 
 
 same conclusions wliicli the jury would have been justi- 
 fied 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 tes- 
 tator, the fact may be considered as found by the jury."^ 
 
 § 15. ]\Iore especially a court of errors or appellate 
 court will not set aside the verdict of a jury, where the 
 question is one wholly of fact, and no additional ground 
 is alleged, unless it is clearly, strongly, and unequivocally 
 against the weight of evidence, or manifest injustice has 
 been done.^ (See §§ 4, 19.) Or where there is suflicient 
 evidence to authorize it.^ Or for a mere difference of 
 opinion.^ Or slight dissatisfaction with the verdict.* Or 
 unless the finding of facts by a court or jury be impeached 
 for fraud, mistake, misconduct, or some improper influ- 
 ences.^ Or unless there is a great preponderance of evi- 
 dence against it.^ For the reason, that the revising court 
 can have but an imperfect view of the nature of the tes- 
 timony taken below.^a) The rule is adopted even in 
 criminal cases ; except in cases "strong and unequivocal."^ 
 
 ' Per Sutherland, J., Jackson v. Tex. 55G ; 4 Ohio N. S. 56(j ; State 
 
 Christman, 4 Wend. 278. v. Anderson, 19 Mis. 241 ; 13 111. 
 
 2 Welden v. Francis, 12 111. 460 ; 699 ; State v. Sartor, 3 Strobh. 60. 
 
 Mealing y. Pace, 14 Geo. 596 ; Ban- ^ Muudy v. Bryan, 14 Mis. 456. 
 
 field V. Bruton, 7 B. Mon. 108; » McGatrick v. Wason, 4 Ohio 
 
 Hunt V. Hunt, 3 ib. 575 ; Deverert (N. S.) 566. 
 
 V. Loomer, 21 Conn. 245 ; Bagby ^ Bivens ■o. The State, 6 Eng. 
 
 V. Lewis, 2 Mour. 76 ; Roach v. 455. 
 
 Waid, ib. 142 ; Dodge v. Brittain, e Payne v. Jacobs, 1 Cal. 39. 
 
 1 Meigs, 84. See Haight v. Tur- ^ England v. Burt, 4 Humph, 
 
 ner, 21 Conn. 593 ; State Bank v. 399. 
 
 Wilson, 14 Ark. 113 ; Spencer v. ^ Jones v. Jennings, 10 Humph. 
 
 Morgan, 5 Ind. 146 ; Eudman v. 428. 
 
 Iludman,ib. 63; Scohey«. Arming- ^ tji^ State ?). Cruise, 16 Mis. 
 
 ton, ib. 514; Clark v. Davis,"? 391. 
 
 (a) It is said this is a rule for the government of the Supreme Court, 
 and not the Circuit Court. On the contrary, this rule of the Supreme 
 Court imposes on the Circuit Court a heavy obligation to observe the 
 rule of the common law, applicable to the granting of new trials at msi
 
 454 THE LAW OF NEW TRIALS. [CII. XIV. 
 
 § IG. These rules seem to apply with additional force, 
 where a new trial has been refused in the court below, 
 when asked on the ground that the verdict was contrary 
 to evidence.^ And, on the other hand, when evidence has 
 been submitted to the jury on both sides, which is very 
 conflicting, and no rule of law has been violated in its 
 admission; it is held an error in the court to grant a new 
 trial, on the ground that the verdict is against evidence. 
 The jury are the exclusive judges in such cases, as to the 
 weight of the evidence, and the credibility of the wit- 
 nesses.^ 
 
 § 17. It is sometimes held that a motion to set aside a 
 verdict as against evidence can be entertained, only when 
 the ichole of the evidence in the case is reported ; and this 
 notwithstanding an express statutory provision for new 
 trials, not containing in terms this restriction.^ The court 
 say, the presiding judge certified, "that it is a correct 
 report of the evidence, so far as it had any bearing upon 
 the question. — AVhat one justice or one counsel might 
 consider to be the whole or the material evidence bearing 
 upon the point another might not. The court of law 
 
 ' Roberts V. Stato, 3 Kelly, 310 ; 2 Walker v. Walker, 11 Geo. 203. 
 
 Dufield V. Cross, 13 111. 69!); 7 Tex. » Rogers v. Kennebec, &C., 38 
 
 566 ; Chevallier v. Denson, 8 Tex. Maine, 237. 
 439. 
 
 prncs, lest injustice be done. England v. Bnrt, 4 Humph. 399. In gene- 
 ral, where there is evidence which tends to sustain the finding of the 
 court below, the court above will not reverse it for alleged error in re- 
 fusing a new trial on account of insufficiency of the evidence. Gordon 
 V. Norman, 21 Ind. 300. The presumption is that judge and jury har- 
 monize in support of the verdict. Antoine v. Ridge, 23 Cal. 219. More 
 especially, unless the conflict of evidence is slight, and the weight clearly 
 against the verdict; or there are other circumstances strongly indicating 
 that injustice has been done. Acklcy v. Berkey, 22 Iowa, 226. In New 
 York, a new trial cannot be granted on the ground that the verdict is 
 unsupported by evidence, when the case is before the court above on cx- 
 ccptioMS only. Green v. Roberts, 47 Barb. 521,
 
 CH. XIV.] VERDICT AGAINST EVIDENCE. 455 
 
 must regard the report as correctly made. This might 
 subject the rights of a party to the control of the pre- 
 siding justice without affording him any relief for errors 
 in the selection of what would present the whole, or be 
 material for a decision of the question."^ But in other 
 cases it is held, that, if a motion for a new trial on this 
 ground be overruled, a bill of exceptions ought not to 
 state all the evidence, but only the facts appearing to the 
 court to have been proved.^ The question depends very 
 much upon express statute or local usage. 
 
 § 18. If a bill of exceptions to the opinion of a court, 
 overruling a motion for a new trial, sets forth all the evi- 
 dence; but shows that there was no conflict, and that, 
 excluding all the evidence of the losing party, and admit- 
 ting the truth of all the evidence adduced for the prevail- 
 ing party, the verdict was contrary to the evidence, and 
 to justice: such exceptions are well taken, to enable an 
 appellate court to review and reverse the judgment over- 
 ruling the motion for a new trial.^(a) 
 
 ' Per Sliepley, C. J., Rogers v. 2 Bennett v. Hardaway, 6 Munf. 
 Kennebec, &c., 38 Maine, 230. 125 ; 2 Leigh, 840. 
 
 3 2 Leigh, 340. 
 
 (rt) On a motion to set aside a verdict as being against the weight of 
 evidence, the statement or bill of exceptions must set forth all the testi- 
 mony. Dawley v. Hovious, 23 Cal. 103 ; Peterson v. Manley, 23 Ark. 
 528 ; Burlington v. Green, 21 Iowa, 335 ; State v. Bonds, 2 Nev. 265 ; 
 Bank v. Bank, 3 W. Ya. 386 ; McCool v. Galena, 17 Iowa, 461 ; AVest 
 V. Duffey, 2 Kans. 347. Where there is a conflict of testimony, if the 
 bill of exceptions does not show that there were only two witnesses, or 
 that it contains " all the evidence in the cause," it will be presumed that 
 the evidence warranted the verdict. Whiteside v. Button, 2 Cold. 94. 
 So where, upon a motion to set aside a verdict as against the law and 
 evidence, the record does not purport to set forth all the evidence. Wads- 
 worth V. Harrison, 14 Iowa, 272. The refusal of the court below to 
 grant a new trial, on the grounds that the verdict was against the evi- 
 dence and instructions, will not be reviewed, when the record does not 
 contain the instructions and all the evidence. Beal v. Stone, 22 Iowa,
 
 456 THE LAW OF NEW TRIALS, [CH. XTV. 
 
 § 18a. We now proceed to consider the precise grounds 
 upon which apjtlications of this nature will be grunted or 
 denied; often involving very nice shades of distinction, 
 and often so far dependent upon the facts of individual 
 cases, as to render very difficult the deduction of any 
 unqualified rule. 
 
 § 19. It is often laid down, that, on a motion to set aside 
 a verdict as contrary to evidence, the court will not exa- 
 mine the evidence to see ivhich side has most weight, but to 
 see whether there is a total lack on one side. It is for 
 the jury to decide on the weight of evidence.' That, when 
 the verdict rests on the mere weight of evidence, the court 
 
 1 French v. Roll, 24 Geo. 171 ; State, 8 En^. 285 ; Ilendryx v. 
 
 Smith r. Tiflany, :!G Barb. 23; Bush Sharp, ib. 306 ; Hammond y.' Wad- 
 
 V. Kindred, 20 111. 93 ; Morgan v. hams, 5 Mass. 353 ; Smith v. Park- 
 
 Ilycrson, ib. 343 ; Mains v. The hurst, 2 Str. 1105. 
 
 447. A new trial will not be granted because the verdict is against the 
 weight of evidence, if the evidence is not reported with the allowance of the 
 court trying the case, as required by a rule of court. Olney v. Chadsey, 
 7 R. I. 224. Where the only question arising in the record is, did the 
 court below err in overruling the motion for a new trial, on the ground 
 that the verdict was again.st law and evidence, and the bill of exception 
 states the evidence of the witnesses, instead of the facts appearing to 
 the court to have been proved by each ; the court above will not reverse 
 the judgment, unless by rejecting all the parol evidence for the exceptor, 
 and giving full force and credit to the adverse party, the decision still 
 appears wrong. Sanaker v. Cushwa, 3 W. Va. 29. On remanding a 
 cause for a new trial, on other grounds than because the verdict was con- 
 trary to the evidence, the court will express no opinion on that question, 
 though it is also raised. Thompson v. Updegraff, 3 W. Va. 629 ; Hess 
 V. Johnson, ib. 645. In Michigan, the practice in reviewing trials upon 
 issues on a quo warranto is governed by that at the common law. 
 Where there is no report from the circuit judge, and no means of deter- 
 mining what have been his rulings, or what was the evidence, except 
 from the conflicting affidavits of the parties; the Supreme Court will not 
 review the proceedings. If the motion is to be on the ground that the 
 verdict is against evidence, the evidence should not only be incorporated 
 in the report, but the judge should also express his opinion thereon. 
 People V. Sackett, 14 Mich. 243.
 
 en. XIV.] VERDICT AGAINST EVIDENCE. 457 
 
 will not, except in extreme cases, grant a new trial. ^ That 
 there must be a total want or failure of evidence to sus- 
 tain the verdict.^ More especially where there is much 
 conflict of evidence, and the judge before whom the action 
 was tried has refused to set aside the verdict as contrary 
 to evidence and the weight of evidence, the court above 
 will not grant a new trial.' (See §§ 4, 15.) "Where the 
 evidence on the side of a verdict, taken by itself, is sufli- 
 cient to justify the verdict, and there is also conflicting 
 evidence, the court above will not disturb the verdict.* 
 And it is not error to refuse a new trial because the evi- 
 dence is conflicting.^ The court above will not award a 
 new trial, even in a criminal case, notwithstanding the 
 statements of witnesses be contradictory, if there is never- 
 theless enough to support the verdict, so that it cannot 
 be said to be without evidence in any essential ingredient 
 of the finding.^ 
 
 § 20. Substantially the same rule is expressed in the 
 proposition, that, where there is evidence on both sides, or 
 the evidence is various and contradictory, a verdict will 
 not be set aside, on the ground that it is against the weight 
 of evidence.^ Or where there is substantial evidence on 
 
 ' Fuukhouser v. Pogue, 8 Eng. Allen v. Nordheimer, 8 Eng. 339 ; 
 
 295. Fowler v. Waldrip, 10 Geo. 350 ; 
 
 2 Bennett v. The State, 8 Eng. Menley v. Menley, 9 Tex. 60. 
 694. 6 Stanton v. The State, 8 Eng. 
 
 » Pearce v. Vaughn, 25 Geo. 27 ; 317. 
 Macon, &c. v. Davis, 27 Geo. 113 ; ' Easterly v. Cole, 1 Barb. 235 
 Scott V. Newsom, ib. 125; Lockett Pleak v. Chambers, 7 B. Mon. 565 
 V. Mims, ib. 207; Morris v. Stokes, Fulkerson v. Bollinger, 9 Mis. 838 
 ib. 239 ; Waddel v. State, ib. 262 ; Glasgon v. Moore, ib. 843 ; Eo- 
 Phillips V. Stewart, ib. 402 ; Orr v. zar v. Burns, 13 Geo. 34 ; Chevail- 
 Huff, ib. 422 ; Rawson v. McJun- lier v. Brewer, 6 Tex. 398 ; Sparks 
 kins, ib. 432; Diomatari «. Choate, v. Beavers, 6 Eng. 630 ; Fleming 
 28 ib. 320; Hanby v. Tucker, ib. v. Hollenback, 7 Barb. 271 ; Legg 
 484 ; Coggin v. Jones, 29 ib. 257 ; v. McNeil, 2 Tex. 42 ; Smith v. 
 Weddle v. Stark, 10 Cal. 301; Williams, 22 111. 357; Dart «. Far- 
 Stumps V. Kcllev, 22 111. 140; Gor- mers', &c., 27 Barb. 337 ; Ardery 
 don V. Pitt, 3 Clarke, 385. v. Pollys, 5 Ind. 186 ; 4 Tex. 465 ; 
 
 * Shanks v. Hays, 6 Ind. 59. Scannell v. Strahle, 9 Cal. 177; The 
 
 5 State V. Lamout, 3 Wis. 437; State Bank ij. McGuire, 14 Ark. 530.
 
 458 
 
 THE LAW OF NEW TRIALS. 
 
 [CII. XIV. 
 
 botli sides.' Or when there is conflicting evidence, and the 
 verdict is not manifestly against the weight of evidence.- 
 Or when the weight of evidence agrees with the verdict.^ 
 Especially where the case is tried by the court.^(a) 
 
 § 21. The rule, however, is more frequently stated in 
 the qualified form, as we have already remarked in 
 general terras, that a verdict will not be set aside, as 
 against the mere ■preponderance of testimony.' Or unlesa 
 the preponderance of evidence is very clear." Or unless 
 clearly against evidence, or the palpable preponderance 
 of evidence.^ More especially in case of a large body of 
 evidence on both sides, contradictory in its character.^ 
 Or where the bill of exceptions docs not profess to give 
 all the evidence; especially if tlie evidence given shows 
 no more than a right to nominal damages.^ 
 
 ' Hendry v. Smith, 28 Geo. 308. 
 
 2 Tallahassee, &c. v. Macon, 8 
 Flori. 299. 
 
 3 Hancock v. Tucker, 8 Flori. 
 435. 
 
 < Tuten v. Stone, 12 Rich. 448. 
 
 5 Dickson «. Parker, 3 How.lMiss. 
 219 ; Smith «. Smith, 29 Geo. 3G5. 
 
 6 Brooks V. Bickuell, 4 McLean, 
 70. 
 
 ^ Fisher v. Leach, 10 S. & M. 
 313 ; Allen v. Garesche, 13 Mis. 
 308. See 5 J. J. Mar. 389; Kelloii:g 
 V. Endlong, 7 ITow. Miss. 340; Ell- 
 zey V. Stone, 5 S. & M. 21 ; Yarbo- 
 roiigh V. Abernathy, 1 Meigs, 413 ; 
 Perry v. Smith, 4 Yerg. 323 ; Sel- 
 lars V. Davis, ib. 503 ; Pcttitt v. 
 Pcttitt, 4 Humph. 191 ; Grubb v. 
 McClatchy, 3 Yerg. 442 ; Harbour 
 v. Kayburn, 7 ib. 432 ; Martin v. 
 Withington, 4 Mis. 518 ; Wilson v. 
 Burks, 8 ib. 440 ; llenuick v. Wal- 
 
 ton, 7 ib. 292; Lowry v. Orr, 1 Gil- 
 man, 70; Todd v. Boone County, 8 
 Mis. 431; Bagshaw v. Dorsctt, Geo. 
 Decis., PartlL 42 ; Davis v. Hale, 
 il). 82 ; Pendleton v. :Mills. ib. 166 ; 
 Bonds ?). Gray, ib. 136 ; Walker v. 
 Tatuum, ib. 161 ; Wilson v. Natio- 
 ns, 5 Yerg. 211; Knight v. ]\Iantz, 
 Geo. Decis., Part L 22; Irwin v. 
 Morell, Dudley (Geo.), 72 ; Flour- 
 ney v. Coxe, ib. 5 ; Faber v. Bald- 
 rick, 3 Brevard, 350 ; Swipes v. 
 Remourssin, 2 ib. 33 ; Lavall v. 
 Cromwell, 3 ib. 463 ; Brugh v. 
 Shanks, 5 Leigh, 598; Bank v. 
 King, 2 Green, 45 ; Jackson -a. 
 Packer, 13 Conn. 342 ; Stanley v. 
 Wliipple, 2 McLean, 35. 
 
 « Glidden v. Dunlap, 28 Maine, 
 379. 
 
 5 Vaughn v. Montgomery, 5 Mis. 
 529. 
 
 (a) nence a new trial was refused, where there was slight evidence 
 for the plaintiff, and the charge strong for the defendant; the verdict 
 being for the plaintiff. Smith v. Iluggins, 2 Str. 1142.
 
 CH. XIV.] VERDICT AGAINST EVIDENCE. 459 
 
 § 21a. But it is held in numerous cases, and perhaps 
 the weight of authority is now to that efi'ect, that strong 
 jpreponderance of evidence against the verdict will justify 
 a new trial.^ Especially where the evidence preponde- 
 rates so strongly upon the losing side, and upon the point 
 on which the case must have turned, as to force the con- 
 clusion, that the jury must have been controlled by some 
 improper bias.^ (See § 26.) 
 
 § 22. Even in a criminal case, a conviction will not be 
 disturbed, unless there be a decided preponderance of 
 evidence in favor of the prisoner.^ So held, upon the 
 evidence in a trial for murder, which in some respects 
 was conflicting." And where the court refused to grant 
 a new trial in a criminal case, on this ground, and the 
 testimony was conflicting ; such refusal was held no ground 
 for a reversal.' 
 
 § 23. The qualification is sometimes attached to this 
 general rule, that a new trial will not be granted where 
 the evidence is conflicting, unless in case of prejudice, &c., 
 on the part of the jury.^ Or in extreme or extraordinary 
 cases, where it is manifest that the jury have mistaken 
 or abused their trust.^ Or if justice is done, and if the 
 verdict is fair, though against the preponderance of testi- 
 mony.^ (See § 26.) 
 
 § 24. The same general rule, and the prominent reasons 
 for it, are expressed in the proposition, that, where a jury 
 have passed upon the weight of the testimony, and exer- 
 cised their judgment on the truth or falsity of ivitnesses, the 
 
 1 Smith V. Hicks, 5 "Wend. 48. « Tracy v. Hartman, 1 Ililt. 350. 
 
 2 Huunewell u.Hobart, 40 Maine, ? Weld «. Cliadbourne, 37 Elaine, 
 28 221. 
 
 3 People V. Ah-Loy, 10 Cal. 301. » Coddin<;ton v. Carnlcy, 2 Hilt. 
 * Monroe v. State, 23 Tex. 210. 528 ; Branch v. Dever, 18 Tex. Gil; 
 5 McLane v. State, 4 Geo. 335. Lofft, 521.
 
 460 THE LAW OF NEW TRIALS. [CH. XIV. 
 
 verdict will not be disturbed as contrary to cvideuce.'(rt) 
 That it is the peculiar and exclusive province of the jury 
 to judge of the credibility of witnesses, and to weigh the 
 evidence, and the court will not disturb the verdict, un- 
 less the jury appear to have found either without or 
 againhit evidence; and will never set aside the verdict 
 as against evidence, merely because they might, on an 
 examination of the evidence, have arrived at a different 
 result.^ 
 
 § 25. On the other hand, it is a strong reason for grant- 
 ing a new^ trial, that there was no conflict in the evidence.^ 
 And more especially that a verdict is contrary to all the 
 legal evidence.* 
 
 § 26. It is another form of the same rule, but more spe- 
 ciall}' appertaining to the jury^ that the court will not 
 disturb a verdict alleged to be against the weight of evi- 
 dence, where the evidence has been passed upon by the 
 jury, except in cases where gross injustice is apparent.^ Or 
 unless the court can clearly see, that the jury must have 
 unconsciously fallen into some gross mistake in regard to 
 the nature and force of the evidence, or have been actuated 
 
 > Pleasant v. State, 15 Ark. 624 ; ^ lirichart v. Downs, 19 Tex. 243. 
 
 Bell V. Rinker, 29 Ind. 267. ^ Bowen v. Cook, 5 Eng. 309 ; 
 
 2 Edrhmton v. Kigcr, 4 Tex. 89 ; McKay v. Thorincton, 15 loAva, 25. 
 
 People V. Ah-Ti, 9 Cal. 16. ^ Miller v. Batlitf, 14 Ark. 419. 
 
 (a) The finding will not be disturbed when there is a manifest conflict 
 of evidence, though some of the witnesses are interested. Their credit 
 must be determined in the court below. Putnam v. Lamphier, 36 Cal. 
 151. In a late case (Crawford v. Carpenter, Leg. Intell.) it is said, per 
 Hare, J., " the note in suit liad its origin in a corrupt and illegal trans- 
 action, but a witness was produced to prove that the plaintiff was a 
 bond fide holder for value. If the jury had found in opposition to his 
 testimony, the verdict would have been allowed to stand, that they 
 credited it is certainly not a reason for a new trial. They probably 
 thought that all the parties were in the same category, and that justice 
 would best be done by enforcing the letter of the contract."
 
 CH. XIV.] VERDICT AGAINST EVIDENCE. 4G1 
 
 by some improper motive or bias.^ Or wantonly abused 
 their powcr.^ More especially where there is a variety of 
 testimony on both sides, no error in tlie law given, and 
 where the fact was fairly before the jury, and in their 
 province.^ The preponderance of evidence against the 
 verdict must be so great as to shock the understanding 
 and moral sense.* To evince gross injustice, passion, 
 partiality, or prejudice.^ It is said in a late case: " It is 
 a power to be invoked only when manifest injustice has 
 been done by the verdict, and when the wrong is so plain 
 and palpable as to exclude all reasonable doubt of its ex- 
 istence; indeed, so obvious as clearly to denote that some 
 mistake must have been made in the application of legal 
 principles, or to justify the suspicion of corruption, pre- 
 judice, or partiality in the jury."® 
 
 § 27. With more particular reference to the positive 
 and relative credit and weight of witnesses ; a new trial 
 will be granted, when there is no testimony to warrant 
 the verdict, or when it is against the oath of the only 
 witness who deposed as to the point in question.' Or 
 where the evidence was all on one side and that against 
 the verdict.^ As where fraud was found without evidence.^ 
 
 § 28. "Where a question of fact, depending on the 
 opinion of witnesses, more especially if conflicting, has 
 been passed upon by a jury, their verdict will rarely if 
 
 ' "Williams v. Buker, 49 Maine, * Powell v. Bigley, 14 Geo. 41 ; 
 
 427 ; Johuson v. Winona, 11 Min. Williamson v. Nabers, ib. 285. 
 
 296 ; Chicago v. Shannon, 43 111. ^ Thornton v. Lane, 11 Geo. 459. 
 
 338 ; Wilkinson V. Greely, 1 Curtis, ^ Per Sandford, J., Waters ^7. 
 
 63 ; 3 W. & M. 383 ; ib. 348 ; 7 Bristol, 26 Conn. 404. . 
 
 Geo. 209; Smith v. Richards, 4 ? Tompkins ». Corry, 14 Geo. 118. 
 
 Shep. 200 ; Perkins v. Attaway, 14 ^ Williams v. Brasfield, 9 Yerg. 
 
 Geo. 27. 270. 
 
 2 Carr r. Gale, 3 W. «fe M. 38 ; ^ Levingsworth v. Fox, 2 Bay, 
 Aiken v. Bemis. ib. 348. 520. 
 
 3 Stroud V. Mays, 7 Geo. 209.
 
 462 THE LAW OF NEW TRIALS. [CII. XIV. 
 
 ever be diHturbcd.^ Even although coupled with infer- 
 ences of fact from the conduct of the parties.^ Nor where 
 the jury have acted within their province, of weighing 
 the evidence, and judging of the credibility of the wit- 
 nesses, upon a question of fact, though the weight of evi- 
 dence may seem to preponderate against the verdict.^ Nor 
 unless the verdict is clearly against the weight of evidence, 
 where there is much contradictory testimony, and where, 
 if one of the witnesses should be discredited, who was not 
 impeached, but known to many of the jury, the evidence 
 would be nearly balanced.^ 
 
 § 29. More especially where a case turns upon the 
 weight of the evidence and the credibility of the wit- 
 nesses, and the jury has been fairly charged, and there is 
 no such preponderance of evidence against the verdict as 
 to require it; the judgment will not be disturbed.'* Or 
 where there is a conflict of testimony, and the jury choose 
 to discredit a witness, under proper instructions." Or, 
 even in a criminal case, where much depends upon the 
 character of the witnesses and of the accused, and the 
 defence was fairly and favorably submitted to the jury.^ 
 Though a new trial is sometimes granted upon the ground 
 of credibility, if the verdict is also wrong upon the facts 
 of the case.^ Thus, in an action of book debt, the plain- 
 tiff testified, that the goods were sold for cash on delivery, 
 deducting sixty days' interest; the defendant testified, 
 that he bought them on a credit of sixty days, telling the 
 plaintiff that he might want to pay within that time, 
 and, if he did, he should claim the privilege of so doing, 
 deducting the interest. The goods sold were plank, and 
 
 ' Salmons v. Webb, 13 B. Mon. * Feariug v. De Wolf, 3 W. & 
 
 365 ; llolden v. Bloxum, 35 ]\Iiss. M. 185. 
 
 381. 5 Cummins v. Rico, 19 Tex. 235. 
 
 2 Wood V. Gibbs, 35 Miss. 55f>. ° Bradley v. Geiselman, 23 111. 
 
 3 IMitchell V. Matson, 7 Tex. 3; 494. 
 
 Keboul i'. Cluilker, 27 Conn. 114. ' llolcombe v. State, 28 Geo. 0(5. 
 
 8 ^Vilson V. Home, 37 Miss. 477.
 
 en. XIV.] VERDICT AGAINST EVIDENCE. 463 
 
 the defence was, that they were not as good as they were 
 represented. The defendant and several witnesses testified 
 that a part were not good, and the phaintifF and a like 
 number of witnesses that they were a fair lot. Another 
 defence was, that there was no acceptance. The plank 
 were to he delivered upon a. certain wharf, and were all 
 actually delivered. The defendant testified, that he never 
 received them, but admitted, that he saw a part of them 
 on the wharf, and said nothing to the plaintiff" about not 
 delivering the residue ; and to one person he said he had 
 bought the plank; and to another, who applied to him to 
 buy a part, that he could not spare any of them, as he 
 intended to send them away. Held, a verdict for the 
 plaintiff' ought not to be set aside as against evidence.^ 
 
 § 30. On the trial of a scire facias in foreign attach- 
 ment, wherein A. was plaintiff, B. the original debtor, and 
 C. the trustee of D. under an assignment for the benefit 
 of his creditors, the garnishee, the defence was, that the 
 effects in the hands of C, which A. sought to recover, 
 belonged to E., and not to B. The principal witness for 
 the plaintiff" was W., a partner of E. His credibility was 
 assailed on the ground of his interest ; the exceptionable 
 mode in which he had caused the claims against D.'s estate 
 to be presented to the commissioners ; by reason of his 
 management in procuring an order from B. for his divi- 
 dend; the entries in the books of the company of which 
 he was a member ; his want of recollection as to facts 
 w4iich it was presumable he would remember, and some 
 other circumstances ; while his testimony was supported 
 by his general good character for veracity, shown by the 
 absence of any attempt to impeach it ; the want of any 
 evidence directly contradicting him ; the character of the 
 facts relied upon against his credibility, as being suscep- 
 tible of explanation ; and the explanations given by him. 
 
 ' Bulkley v. Waterman, 13 Conn. 328.
 
 464 THE LAW OF NEW TRIALS. [CH. XIV. 
 
 These topics, with others bearing upon his credibility, 
 were fairly submitted to the jury and considered by them. 
 Held, a verdict for the plaintiff, although the court would 
 have been better satisfied with a different result, should 
 not be disturbed.' 
 
 § 31. The mere number of witnesses is held insufficient 
 ground for a new trial. ^ More especially, where the testi- 
 mony, given by the smaller number of witnesses, is of a 
 less negative character tlian that on the other side ; the 
 refusal of the court to grant a new trial is not error.^ 
 
 § 32. But where, in an action for breach of warranty 
 of soundness of a slave, the proof was, that, shortly after 
 the sale, the slave was attacked with dysentery, and died, 
 notwithstanding careful treatment, and the attending 
 physician testified, that, for various reasons given by 
 him, he believed the slave was of scrofulous habit, and 
 died of scrofula existing before the sale, and there was no 
 other medical evidence given; but, on the other side, the 
 testimony of several witnesses was, that they had known 
 the negro in Virginia for years, where he was sound and 
 healthy, with no development of scrofula, and the slave 
 had been brought from Virginia to Natchez but a few 
 months prior to his death; and the jury found for the 
 plaintiff: the verdict was set aside, as being against evi- 
 dence, and a new trial granted.^ 
 
 § 33. The question may sometimes turn rather upon 
 the relation of the witnesses to the parties, than upon 
 their mere number. But where the court instructs the 
 jury that, in weighing the evidence, they are to give the 
 most weisrht to those witnesses w4io are not under the influ- 
 
 ' Babcock v. Porter, 20 Conn. » Stewart v. Hamilton, 19 Tex. 
 
 570. 9G. 
 
 2 Francis v. Baker, 6 Bac. Abr. * James v. Herring, 12 S. & M. 
 
 664. 336.
 
 Cir. XIV.] YEllDICT AGAINST EVIDENCE. 465 
 
 eiice of those biases which ordinarily control our feelings 
 and wishes ; the Supreme Court cannot infer that the jury 
 disregarded the charge of the court, from the fact that 
 their verdict w^as in accordance with the evidence of a 
 witness, who was the daughter of the prevailing party.^ 
 
 § 34. Where the only witness for the defendant was his 
 son; and the burden of proof was upon the defendant; and 
 the jury found for the plaintiff: a new trial was refused.^ 
 
 § 35. The same question sometimes turns upon the con- 
 nection of a witness with, or his interest in, the parties or 
 the subject-matter of the suit. Thus it is held no ground 
 for a new trial, that an accessory is found guilty on the 
 testimony of the principal alone, although somewhat 
 contradictory and inconsistent.^ But where the question 
 before the jury was, whether, wdien a certain mortgage 
 was recorded, the name of the mortgagor was placed on 
 the record within the proper time, and the certificate of 
 the recording ofiicer, who was one of the mortgagees, that 
 such mortgage was recorded, was laid before the jury as 
 prima facie evidence thereof; and, on the other side, one 
 unimpeached and disinterested witness swore, that he ex- 
 amined the book, and the signature was not affixed, and 
 another swore, that the recording officer told him it was 
 not there, within the proper time: held, a verdict, in 
 effect, that the mortgage was duly recorded, was so 
 strongly against the weight of evidence, as to show that 
 there was some improper bias or gross misapprehension, 
 influencing the jury, and that to an extent which "shocks 
 both the understanding and moral sense," and that the 
 verdict ought to be set aside, and a new trial granted.^ 
 
 § 36. Where it is apparent that the jury must have mis- 
 
 » Fowler y.Waldrip, 10 Geo. 850. "Shepherd v. Burkhalter, 13 
 
 2 Wait V. McNeil. 7 Mass. 261. Geo. 443. 
 
 3 Keithler v. State, 10 S. tt M. 
 193. 
 
 30
 
 4GG THE LAW OF NEW TRIALS, [CU. XIV. 
 
 understood or totally disregarded the instructions of the 
 court upon the evidence, or must have omitted properly 
 to consider the facts, and overlooked prominent and essen- 
 tial points in the evidence, so that substantial justice has 
 not been done ; the verdict will be set aside.' Or where the 
 verdict is so against the evidence, as to show that the facts 
 were not understood.' So where it appeared probable, that 
 the jury rejected from their consideration certain evidence, 
 which, if allowed its proper weight, would have materially 
 changed the verdict.^ Or where the court are of opinion, 
 that the jury could not have weighed the evidence, in 
 reference to the only material question in the issue.^ 
 
 § 37. Where some testimony is given to the jury, tend- 
 ing to prove a fact, it is competent for them to find that 
 such fact existed ; and their verdict ought not to be dis- 
 turbed, unless very clearly against the weight of evidence.^ 
 Thus a new trial will not be granted, merely because the 
 evidence was suspicious.'^ So, the only question being the 
 identity of a slave sued for, and the plaintiiF having pro- 
 duced evidence conducing to prove this identity, and the 
 defendant having introduced no rebutting evidence ; the 
 jury were held to be warranted in finding a verdict against 
 him.^ So a witness, who packed goods, testified that they 
 were jjut up in such a manner that they could not be in- 
 jured, except from neglect, and also testified that they had 
 been damaged by the conduct of the carrier to the amount 
 of at least $200. There was no objection made to this 
 general mode of estimating the damages. The evidence on 
 another material point was conflicting, with perhaps a pre- 
 ponderance against the verdict. A new trial was refused.^ 
 
 • Wcndall v. Safford, 13 N. II. « Court, &c. v. Sprague, 3 R. I. 
 
 171 ; Thomas v. Hatch, 3 Sumn. 205, 
 
 170; Franklin Bank v. Small, 26 ^ Holman v. Dord, 12 Barb. 336. 
 
 Maine, 13G. ^ Bdk v. jMassey, 11 IJich. G14. 
 
 ^ Bangor ».Brunswick,27 Maine, ^ Yarbrough v. Arnold, 20 Ark. 
 
 351. 592. 
 
 3 Franklin Bank «. Small, 26 ^ Hall v. Morrison, 20 Tex. 179. 
 Maine, 136.
 
 en. XIV.] VERDICT AGAINST EVIDENCE. 467 
 
 § 38. But a new trial will be granted, where a verdict 
 has been rendered upon very vague and uncertain proof, 
 more especially if it is apparent that better evidence can 
 be obtained.^ Thus in an indictment, alleging a former 
 conviction, the absence of proof of the identity of the 
 party, though not expressly denied, is ground of new 
 trial.^ So, in an action upon a bond, the defendant relied 
 upon a release, and produced an instrument purporting to 
 be one, attested by A, and B. A. was called as a witness, 
 but B. was not. Two witnesses testified, that, on the day 
 when A. swore to the execution, the plaintiff and the 
 witnesses were at a place thirty miles from the place of 
 execution, all day, and that in their belief the signature 
 was not the plaintiff's, his handwriting being known to 
 them. A witness swore, that the defendant said he would 
 be defaulted, and did not pretend to have a release. In 
 reply, the defendant produced several witnesses to the 
 plaintiff's handwriting. Verdict for the defendant. The 
 court were clearly of opinion that there should be a new 
 trial, inasmuch as B. was not called.^ So an agent of a 
 bank presented to B., a member of a firm, an account for 
 money alleged to have been advanced to the firm, and 
 requested payment. B. looked at the account, and said 
 that the firm had some money then in the house, which 
 he could pay on the account, but he would rather the 
 agent would wait a few days, until his (B.'s) father, a 
 member of the firm, returned home ; and no objection 
 was made by B. to the account. Held, not a sufiicient 
 admission by B. of the correctness of the account, to 
 uphold a verdict in favor of the plaintiff.* 
 
 § 39. Disregard by the jury of evidence not very per- 
 tinent or forcible, though unrebutted, is not sufiicient 
 
 1 Flemming v. Hammond, 19 » Norris v. Freeman, 3 Wils. 38. 
 Geo. 145 ; Gibson v. Hill, 23 Tex. » Miller v. Northern, &c., 28 
 77. Miss. 81. 
 
 2 Com. v. Brigffs, 5 Pick. 429.
 
 468 THE LAW OF NEW TRIALS. [CIL XIV. 
 
 reason for setting aside the verdict.^ And where the 
 l)iirdeu of proof is upon u i>arty, but sustained by no evi- 
 dence, the court may order a verdict against him.^ And 
 wdiere the evidence as to the existence of a material fact 
 can only raise a hare conjecture^ the case should not be 
 submitted to the jury.^ 
 
 § 40. It is ground of new trial, that, where there was 
 no conflict in the evidence, but the testimony clearly 
 showed a cause of action on the part of the plaintiff; the 
 verdict of the jury was for the defendant.* As where the 
 defendant, in anger, said to the plaintiff", "You are a 
 damned old cow thief," a number being present ; and in 
 an action for slander, no evidence being given for the de- 
 fendant, a verdict was returned in his favor.'' So where, 
 in an action on a bond, the plaintiffs proved, by two wit- 
 nesses, that they were acquainted with the handwriting 
 of the defendant, and believed the body of the bond sued 
 on, and the signature, were in his handwa'iting ; and also 
 proved that the defendant had acknowdedged the debt in 
 two letters ; but the jury returned a verdict for the de- 
 fendant.** So where, in replevin, there is no evidence as 
 to the value of the property delivered to the plaintiff' 
 under the writ, and a verdict has been rendered for the 
 defendant, assessing the value.^ So when a person, who 
 actually occupies a portion of a tract of land, claims con- 
 structive possession of the whole, and brings a suit for 
 the whole, against one who has fenced the whole tract and 
 put a house on a part of it, and a verdict is found for the 
 defendant ; it will be set aside as being contrary to the 
 evidence, in including the premises actually occupied by 
 the plaintiff".^ So where, in an action for money loaned, 
 
 ' Fowler v. Burdett, 20 Tox. 34. ^ Yarborougli v. Tate, 14 Tex. 
 
 2 Dame v. Dame, 20 N. II. 28. 483. 
 
 ' Matthis V. IMattliis, 3 Jones, '• Auderson v. Wilburn, 3 Eng. 
 
 132. 155. 
 
 ' Fish V. Skut, 21 Barb. 333. See < Bailey v. Ellis, 21 Ark. 488. 
 
 Ilillebraut v. Ashworth, 18 Tex. s j^jie x, Tubbs, 23 Cal. 431. 
 307.
 
 CII. XIV.] VERDICT AGAINST EVIDENCE. 469 
 
 the loan is proved by a witness who is not impeached, and 
 whose testimony is unexplained and uncontradicted ; and 
 the jury find for the defendant.^ Or, in case of similar 
 result, where the testimony failed to establish, that the 
 deed to the lot in controversy was ever executed by the 
 plaintiff"; no witness testifying to his signature, or to that 
 of the subscribing witnesses, and the defendant offering 
 in evidence statements of the plaintiff', as a witness in 
 another suit, that he had never executed any deed, and 
 that the lot was his property.^ So where the plaintiff' 
 proves the contract as declared on, and a verdict is given 
 for the defendant, a new trial will be granted,^ Or where 
 the verdict is in favor of the defendant, and there was no 
 evidence applicable to the issue made by the pleadino-s in 
 his favor, but there was evidence in the plaintiff''s favor.* 
 So where a trespass for beating a slave had been clearly 
 proved, and without any legal justification the jury found 
 a verdict for the defendant.' And on the other hand, 
 where the charges in an indictment clearly make out the 
 crime, and there is evidence to every material one, a new 
 trial will not be granted, on the ground that the proof 
 was insufl&cient.^ So in a suit for board, where the testi- 
 mony showed that some part of it was due, but it was 
 uncertain as to the remainder; held, the jury should find 
 a verdict at least for the amount certain.^ So if there 
 was some evidence of a special contract, and the jury 
 found the fact, it being fairly submitted to them, it is 
 conclusive.^ 
 
 § 41. But in an action brought b}^ a railroad corpora- 
 tion against the owner of cows, for suffering them to be 
 
 ' Sweaney v. Bledsoe, 8 Humpli. ^ Grlmke v. Houseman, 1 Mc- 
 
 613. Mullau, 131. 
 
 2 Baker v. Cook, 13 Tex. 80. e Winfield v. State, 3 Iowa, 339. 
 
 3 Benedict v. Lawson, 5 Pike, ' Belcher v. Grey, 10 Geo. 208. 
 514. s Baitlett v. Kingan, 19 Peun. 
 
 1 Hampton v. Thomas, 11 Geo. 341. 
 317.
 
 470 THE LAW OF NEW TRIALS. [CH. XIV. 
 
 upon tlio track, and tliereby causing a serious accident, 
 the i luy loll 1 1(1 a verdict for the defendant. Held, although 
 the facts showed gross negligence in the defendant, suffi- 
 cient to lead to the conclusion that a verdict in his favor, 
 unless justified on other grounds, must arise from mis- 
 take, misapprehension, or improper motive; yet, as there 
 was some evidence of negligence in the plaintills, the 
 verdict should not be set aside.^ 
 
 § 42. And it is not proper for a jury to assess the value 
 of property or of services rendered, without some evidence 
 to justify a verdict.^ So a verdict for the plaintiff's, in 
 assumpsit for money collected by an attorney, the intes- 
 tate of the defendants, was set aside, the evidence only 
 showing that the disputed sum had been paid to an officer, 
 but none being given to show that it had reached the in- 
 testate.3 go where the plaintiff" claimed a balance of pur- 
 chase-money, and his deed contained the usual receipt for 
 the consideration, and he failed to rebut it by other evi- 
 dence.'' So in an action for injury caused by explosion of 
 a boiler, where there was very slight evidence of negli- 
 gence in the defendants, the manufacturers of the boiler, 
 and the verdict for the plaintiff' seemed to be founded 
 almost wholly upon the mere fact of the explosion itself; 
 a new trial was ordered.* 
 
 § 43. More especially will a verdict for the plaintiff", 
 founded upon doubtful or insufficient evidence, be set 
 aside, where it is met by evidence on the part of the de- 
 fendant. Thus, in an action by a clerk against his em- 
 ployer, the plaintiff" proved the time of his services, with- 
 out any evidence of their actual value ; that the defendant 
 had said he would as soon have the X)laintiff" as any clerk 
 
 • Housatonic, &c. v. Knowlcs, < Lloyd v. Newell, 3 Ilalst. 296. 
 
 30 Conn. 313. ^ Beers v. Woodruff, &c., 30 
 
 2 Parr v. Gibbons, 27 Miss. 375. Coun. 308. 
 
 3 Hall V. Wight, 9 liich. 392.
 
 CH. XIV.] VERDICT AGAINST EVIDENCE. 471 
 
 he ever had; and the usual price paid to clerks. The 
 defendant proved, that he had well clothed and fed the 
 plaintiff during the time, and that he was very feeble in 
 health, and had said he worked for his l)oard and clothes. 
 It appeared, also, that he sometimes took money for 
 spending without keeping an account of it. The jury 
 found for the plaintiff, and the verdict was set aside, as 
 against evidence.^ So where, in trover for a horse, bought 
 by A., claiming under a bill of sale against B., the ques- 
 tion was, whether A. accepted the bill of sale, and agreed 
 to the terms proposed, and it was proved by two witnesses 
 that, when the bill of sale was left at A.'s house, she said 
 nothing, but took the horse, and used him occasionally, 
 declaring, however, that she took him on trial, and not 
 as her property ; declaring afterwards, repeatedly, that she 
 had not indorsed the price upon her note, and never 
 would ; expressing also her determination not to take any 
 horse, unless she could have another which she preferred ; 
 and the testimony of these witnesses was uncontradicted, 
 and corroborated by other witnesses: it was held that 
 this testimony fully established the fact, that A. never 
 consented to receive the horse on the terms proposed; 
 and, the jury having found otherwise, the verdict was set 
 aside, as against evidence.^ 
 
 § 44. A new trial may be granted, where a verdict is 
 rendered for the plaintiff, notwithstanding clear and un- 
 contradicted evidence to sustain the defence. Thus the 
 plaintiff's horse, in passing over the defendants' toll-bridge, 
 was injured, in consequence of the displacement of a plank 
 in the floor. The defendants offered testimony, whiftti 
 was uncontradicted, that the bridge was substantially and 
 properly erected, but that it was the duty of their gate- 
 keeper, whenever planks were unsafe, to put others in 
 their places, and that he daily crossed the bridge four 
 
 ' McQueen v. Bostwick, 12 S. & ^ Yale v. Yale, 13 Conn. 185. 
 M. 604.
 
 472 THE LAW OF NEW TllIALS. [CII. XIV. 
 
 times, in sucli manner that lie could sec the entire floor, 
 and liad crossed it before the accident occurred, and on 
 the same day. Ilehl, a verdict for the plaintiff was against 
 the Aveight of evidence.^ So A., in an action against B. 
 for board, proved that B. lived with him during the time 
 alleged, and that her board w^as w^orth the amount charged. 
 B. introduced a like number of witnesses, and proved that 
 her services and those of two negro boys belonging to 
 her, and the use by A. of articles belonging to her, were 
 worth fully as much as her board; that, after bringing 
 the suit, A. wrote to B., asking her forgiveness, and 
 l)romising that he would stop the suit if she would 
 forgive and come back, and inviting her to come back 
 and live as she had done before. The jury having ren- 
 dered a verdict for A., the court refused to interfere 
 with the discretion of the circuit judge in granting a 
 new trial.^(rt) 
 
 • Beechor v. Derby, &c., 24 2 porker «. Walden, IG Geo. 27. 
 Conn. 132. 
 
 (a) Where there was an entire deficiency of evidence to sustain the 
 plaintifiF's allegations, and a judgment in his favor, a new trial should be 
 granted. Eowe v. Collier, 25 Tex. 252 ; Brooks v. Clifton, 22 Ark. 54. 
 A verdict for the plaintiff, in an action for unsoundness of a horse pur- 
 chased of the defendant, was set aside, where there was no proof of a 
 warranty, express or implied, and no proof of any disease known to the 
 seller which he did not communicate to the buyer. Nickle v. William- 
 son, 44 111. 48. In an action for labor, a judgment for the plaintiff will 
 be set aside, unless the record, purporting to give the whole evidence, 
 shows some evidence that he was in the employ of the defendant, and 
 that something was due therefor. Union v. Convers, 4 Kans. 20G. In 
 an action on a note, the defence of infancy was fully and completely 
 established by two witnesses, and there was no evidence to contradict or 
 avoid this defence. The jury found for the plaintiff. Held, under ? 264 
 of the (N. Y.) Code, the verdict could properly be set aside "for in- 
 suflRcient evidence ;" that this term should be construed with reference 
 to the actual issue on which the jury were to pass, and it was immate- 
 rial that, if the defendant had offered no evidence, the plaintifi" would 
 have been entitled to a verdict. Algeo v. Duncan, 39 N. Y. 313. In an
 
 CII. XIY,] VEKDICT AGAINST EVIDENCE. 473 
 
 § 45. Questions arise, where the evidence in the case is 
 circumstantial or presumptive. Thus a new trial will not 
 be granted, even in a criminal case, merely because the 
 court think they should have found a different verdict on 
 the evidence, where the evidence was of a circumstantial 
 character.^ Or, in general, merely because a conviction 
 was obtained upon circumstantial evidence only ; though 
 such evidence should be received with great caution. ^ So 
 where the defence, to an action on a bill single, was pre- 
 sumption of payment by lapse of time ; it was held to be 
 a defence so purely for the consideration of the jury, that 
 a very clear case of erroneous finding must be shown, to 
 warrant its being set aside.^ So, on appeal, where the 
 testimony is circumstantial, presenting questions pecu- 
 liarly proper for the consideration of a jury, and anything 
 on the record tends to support the verdict.^ And, in 
 general, in a civil cause, the verdict of the jury will not 
 Ibe set aside, if it be sustained by a legal presumption, not 
 countervailed by the proof.^ As where the plaintiff relied 
 upon circumstances, which the defendant rebutted b}^ cir- 
 cumstances, and by evidence of the plaintiff's admissions, 
 and prevailed.^(rt) 
 
 ' Grayson ». The Commonwealth, ■• Young v. Silkwood, 11 111. 36. 
 
 6 Gratt. 713 ; Browning v. State, ^ Swaggerty v. Stokley, 1 Swan, 
 
 &c., 33 Miss. 47 ; Morrison v. Mc- 38. See Price v. Evans,' 4 B. Mon. 
 
 Kinnon, 13 Flori. 553. 386. 
 
 2 United States v. Martin, 3 Mc- e De Fonclear v. Shottenkirk, 3 
 Lean, 356. John. 170. 
 
 3 Mann v. Manning, 13 S. & M. 
 615. 
 
 action against a railroad for the value of a cow killed by a train, on 
 proof that when found she was lying on her back in the ditch two feet 
 from the track, bloated, and the blood oozing from her nose, but with no 
 other external marks of injury; the jury found that her death was 
 caused by a passing train. Held, the verdict should stand. Chicago v. 
 Dement, 44 111. 74. 
 
 (a) A verdict for a tenant claiming title by twenty years' possession 
 cannot be sustained, without evidence that his possession was adverse. 
 Eaton V. Jacobs, 49 Maine, 559.
 
 474 THE LAW OF NEW TRIALS. [CII. XIV. 
 
 § 46. iSIore especially the verdict will not be set aside 
 " ill a. hard action^ where there is something; on which the 
 jury have raised a presumption agreeably to the justice 
 of the case." Thus in an action upon a note, given in 
 consideration of the plaintiff's marrying the defendant's 
 daughter, the defence was, that the marriage was illegal, 
 the plaintiff being a minor, and no consent of parents or 
 guardians. It also appeared, that, when the plaintiff 
 came of age, his wife was in extremis, and died in three 
 weeks. The judge left it to the jury to presume a subse- 
 quent legal marriage, and they found for the plaintiff.^ 
 
 § 47. But, on the other hand, where the testimony in- 
 troduced by the defendant, to prove the want or illegality 
 of consideration of a note, is circumstantial or presump- 
 tive, and the jury find against the testimony, their ver- 
 dict will not be disturbed.^ 
 
 § 48. Where evidence is both circumstantial and con- 
 flicting, the rule is more especially adopted, that a new 
 trial will not be granted.^ Or where the credibility of 
 witnesses is to be considered, presumptions are to be made, 
 and where the nature of the evidence is such that different 
 persons might reasonably have different impressions con- 
 cerning it.^ Thus, where a verdict is supported by the 
 well-proved declarations of the losing party, and the evi- 
 dence against it is inconsistent with itself, it must gene- 
 rally stand.' So, in an action for the price of brick-work, 
 where the defence was worthlessness of the work, it ap- 
 peared that the materials were the same agreed upon, and 
 that the work was allowed to stand for six months exposed 
 to the weather and other injurious circumstances. Held, 
 the jury were justified in inferring that the "worthless- 
 
 1 Wilkinson v. Payne, 4 T. R. < Wendell v. Safford, 13 N. H. 
 408. 171. 
 
 2 Holton V. Adcock, 37 Miss. 758. * Goodwyu v. Goodwyn, 39 Geo. 
 
 3 Lisbon v. Batli, 3 Fost. 1. 225.
 
 CH. XIV.J VERDICT AGAINST EVIDENCE. 475 
 
 ness" was caused by the subsequent exposure.^ So it was 
 in evidence, that houses, part of the estate of a person 
 deceased, were repaired by the plaintiff, a carpenter, under 
 the general superintendence of the defendant, the widow 
 of the deceased, during her occupancy tliereof, and were 
 subsequently assigned to her for dower. Upon present- 
 ment of the bill to her for payment, she neither disputed 
 her liability, nor objected to the amount, but said "it 
 would be paid when the administrator" arrived. Upon 
 verdict and judgment against her, it was held that the 
 jury might well have inferred an implied contract by her 
 with the plaintiff" for the work, and a promise to pay 
 therefor, and the judgment was affirmed.^ So, where pro- 
 missory notes and the transfer of stock between the same 
 parties correspond exactly in dates and amount, and there 
 is no other evidence of the consideration of the notes; 
 this will be sufficient to support a verdict, finding the 
 transfer of stock to be the consideration of the notes.^ 
 So, the question in controversy being, whether a certain 
 execution was paid by one of the execution debtors, it 
 was proved, among other evidence, that the money was 
 offered to the creditor, and no fact was proved inconsistent 
 with the supposition of its being accepted. The court 
 submitted the question upon the evidence to the jury, 
 who found that the execution had been so paid. Held, 
 the verdict should not be set aside as against evidence.* 
 So a verdict will not be set aside as against the weight 
 of evidence, where the witnesses on one side satisfactorily 
 prove that a dam has not been raised, and those on the 
 other prove that the water in the pond is higher ; when 
 the raising of the water can be accounted for by other 
 alterations in the dam besides its being raised.^ 
 
 ' Collins V. Money, 4 How. Mis3. ■» Johnson v. Hebard, 13 Conn. 
 
 11. 337. 
 
 2 White V. Barton, 10 Humph. s Morris Canal Co. v. Seward, 3 
 329. Zabr. 219. 
 
 3 Barringer v. Nesbit, 1 S. & M. 
 22.
 
 476 THE LAW OF KEW TRIALS. [CH. XIV. 
 
 § 40. But, on the other hand, a new trial was granted, 
 where the verdict sustained a conveyance made by a 
 fiither, in insolvent circumstances, to his son, who had 
 just arrived at the agio of twenty-one, had no previous 
 means, and was in ill health and of indolent liahits.^ So 
 where one testified that he was not a partner, hut stated 
 facts which with other evidence showed the contrary, but 
 the jury found that he was not.^ 
 
 § 50. The court has authority to grant a new trial on 
 the ground that a verdict is against evidence, though the 
 evidence, in whole or in part, was derived from inspection.^ 
 The court say: "The autliority of the court to set aside 
 a verdict does not depend upon the nature or quality of 
 the evidence upon which the jury liave found it; though 
 it often liappcns that the character of the evidence is such 
 as to ailbrd the jury much better means of judging of it 
 than the court can have of reviewing it ; as wdiere much 
 depends upon localities, and the jury have a view; or 
 •upon minute circumstances, and there is conflicting testi- 
 mony ; or upon the credit of a witness, who is strongly 
 impeached by one set of witnesses, and supported by 
 another."^ 
 
 § 51. A new trial was refused, where the case turned 
 upon certain language used by a party, and, if slightly 
 varying from the words testified to, it would justify the 
 verdict.'^ And, on the other hand, in an action for slander, 
 uttered in a ball-room, where there was dancing and music, 
 and a fracas^ with much confusion, three witnesses testi- 
 fied positively to the words, and eleven, who were in the 
 room, that they did not hear them, and in their opinion 
 
 > Eveleth t. Harmon, 33 Maine, ^ Davis v. Jenney, 1 Met. 321. 
 
 275. * Per Shaw, C. J., Davis v. Jen- 
 
 iReboul V. Chalker, 27 Conn, ney, 1 Met. 222. 
 
 114. See Kellogg v. Budloug, 7 ^ Harding t'. Brooks, 5 Pick. 244. 
 How. Miss. 340.
 
 CH. XIV.] VERDICT AGAINST EVIDENCE. 477 
 
 sboukl have heard them if spoken. A verdict for the 
 defendant was set aside.^ 
 
 § 52. Tlie question lias sometimes arisen, whether a 
 second verdict, in favor of the party who prevailed at a 
 former trial, may be set aside as against evidence. 
 
 § 53. In a late case in England, involving no question 
 of law, the plaintiff's claim was supported almost exclu- 
 sively by his own testimony, and was encountered by cir- 
 cumstantial evidence on the part of the defendant. A 
 common jury having found for the plaintiff, a new trial 
 was granted on the disclosure by affidavits of fresh evi- 
 dence. At the second trial this evidence was adduced, 
 but the jury (a special one) found for the plaintiff. The 
 judge certifying to the court in writing that the verdict 
 was "a very wrong verdict," the court granted a third 
 trial on the ground of its being against the weight of evi- 
 dence.^ So where, in a scire facias upon foreign attach- 
 ment, the plaintiff, who claimed an indebtedness of the 
 defendants under a contract signed by them, as a building 
 committee of a Congregational society, obtained a verdict, 
 which was set aside, on the ground that such contract 
 showed an indebtedness of the society, and not of the de- 
 fendants; and, on a new trial, the plaintiff claimed an 
 indebtedness of the defendants, independently of such 
 contract, and for w^hich they were personally liable, in 
 support of which claim she introduced in evidence certain 
 supposed admissions of the defendants of their liability 
 to the original debtor, but which admissions were not 
 inconsistent with the claim that they were such agents, 
 and which they contended were made in that capacity ; 
 and, further, it was not satisfactorily proved that such 
 society was indebted to the original defendant, and there- 
 upon a verdict was again rendered In favor of the plain- 
 
 ' Johnson v. Scribuer, 6 Conn. ^ Davies v. Roper, 33 Eng. Law 
 185. and Eq. 511.
 
 478 THE LAW OF NEW TRIALS. [cn. XIV. 
 
 tiff: held, ?siieli verdict ought to be set aside, as being 
 against the evidence.^ 
 
 § 54. A third verdict has been set aside and a new trial 
 ordered, because the verdict was wholly unsupported by 
 the evidence.^ 
 
 § 55. But, in a case where there were witnesses on both 
 sides, the jury gave their verdict, and the judge, consider- 
 ing it as against evidence, returned the jury to a second 
 and third consideration of the case, but they adhered to 
 the verdict. The judge, on motion, stated the evidence, 
 and fave his opinion against the verdict. But a new 
 trial was refused.^ So where the evidence was so contra- 
 dictory that on a former trial the jury could not agree.^ 
 So although (upon a point of usage), " the evidence to 
 establish such usage is entirely defective, while the charge 
 of the judge was perhaps calculated to make an impres- 
 sion upon the jury, that there was competent and suiRcient 
 evidence of such usage ;" the verdict being in favor of the 
 usage, and there having been two previous verdicts the 
 same way, one of which was set aside for misdirection, 
 the other as against evidence; and the evidence being 
 voluminous and conflicting.^ So where the burden of 
 j)roof was on the party complaining; the jury had twice 
 disagreed; the judge was satisfied with the result; and 
 there had been two former verdicts; one for the plaintiff, 
 the other for the defendant : a new trial was refused.'' So 
 where one verdict was set aside, because the court thought 
 that the principal witness was entitled to little or no 
 credit ; and, on the new trial, additional testimony having 
 been introduced on each side, a similar verdict was re- 
 turned: the court refused to set aside the second verdict 
 
 1 Hewitt i\ Wheeler, 23 Conn. ^ Fowlor v. The Etna, &c., 7 
 
 284. Wend. 270. 
 
 ^2 Means v. Means, 6 Rich. 1. ^ Johnson v. Blanchard, 5 R. I. 
 
 3 Pahner v. Hyde, 4 Conn. 42G. 24. 
 
 1 Baker v. Briggs, 8 Pick. 122.
 
 CH. XIV.] • VERDICT AGAINST EVIDENCE. 479 
 
 as against the weight of evidence.^ So, after four exami- 
 nations of the facts in a case, before the courts below, in 
 three of which the same finding was approved ; the Su- 
 preme Court will not overrule these adjudications without 
 the clearest conviction of their error.^ 
 
 § 56. In a late and important case it is held, that where, 
 in an action for the price of goods sold, the evidence of a 
 delivery and acceptance, sufficient under the statute ot 
 frauds, is so slight, that the court would set aside any 
 number of verdicts for the plaintiff, Mies quoties ; it is the 
 duty of the judge to withdraw the case from the jury, 
 and an exception lies to his refusal to do so. On the other 
 hand, if the evidence is such, that, though one or two 
 verdicts rendered upon it would be set aside on motion, 
 yet a second or third verdict would be suffered to stand ; 
 the cause should not be taken from the jury, but should 
 be submitted to them under instructions.2(a) 
 
 § 57. Where a motion is made for a new trial, upon the 
 ground that the facts, which the plaintiff's whole evidence 
 
 ' Handley c. Call, 30 Maine, 9. 3 Denny v. Williams, 5 Allen, 1. 
 
 2 Eastman «. Wight, 4 Ohio (N. 
 S.), 156. 
 
 (a) The fact, that two concurrent verdicts have been given for the de- 
 fendant, does not affect the right of the plaintiff to a new trial, when 
 the verdict is clearly against the law and the evidence. Monroe v. Broad- 
 field, 30 Geo. 1. It is with reluctance that the court grants a new trial 
 on the ground that a second verdict is against the weight of evidence, 
 and so far as it appears to the court, upon the same proof as the first. 
 But where, in an action for a malicious arrest, the declaration states that 
 the defendant " failed to enter," the writ on which the arrest was made, 
 " and to prosecute the same," and the proof on both sides is concurrent 
 and explicit, that, pending the writ complained of, the parties settled 
 their respective claims, embracing those alleged as the foundation of the 
 suit, and the defendant promised to pay his own costs, stop the suit, and 
 see that the plaintiff was discharged from custody in the jail-book ; the 
 coui't will grant a motion by the defendant for a new trial, the costs to 
 abide the event of the suit. Bounds v. Humes, 7 R. I. 535.
 
 480 THE LAW OF NEW TRIALS. • [CH, XIV. 
 
 tended to prove, were insufficient in law to authorize the 
 verdict in his favor ; no exception lies to the overruling 
 of that motion, it being addressed to the discretion of the 
 court, and in the nature of a demurrer to evidence, which 
 must be taken before verdict. The statutory provision 
 for exceptions to any ruling in matter of law^ does not 
 apply to such a case.^ 
 
 § 58. It has been held that a new trial will not be 
 granted for a jjervcrse verdict, or a verdict against the 
 opinion of the judge. (See chap. 8.) In this case, a dis- 
 tinction w^as made Ijctween a perverse verdict, and one 
 merely against evidence. The jury having found a small 
 amount of damages for the plaintiff, it was argued, that 
 they must have been of opinion that the plaintift' had 
 been himself negligent, and yet have given a verdict in 
 his favor by compromise.'^ 
 
 § 59. Witli respect to the class of cases in wliich a new 
 trial will be granted on this ground ; it has been granted 
 upon an inquisition of forcible entry and detainer.^ So in 
 questions of location.^ It is held, that, in cases for the di- 
 version of ivcder, the verdict of a jury will rarely be dis- 
 turbed.^ It has been refused in a patent case.*' 
 
 § 60. A new trial will be granted in criminal cases, 
 ■where circumstances of guilt are slight.^ Or where the 
 testimony preponderates against the verdict.^ So where 
 the court above, on a review of the testimony detailed on 
 a trial for homicide, resulting in conviction of murder in 
 the second degree, were satisfied, that the facts w^ere in- 
 
 » Lowell, &c. V. Bean, 1 Allen, ^ Blanchard, &c. v. Jacobs, 3 
 
 274. Blalch. Gi). 
 
 2 Hawkins v. Alder, 18 Com. B. ' The State v. Powers, Geo. 
 g33_ Decis., Part I. 150. 
 
 3 Adam 1). Robeson, 1 Mur. 392. « Copeland v. State, 7 Humph. 
 ■1 Bank t'.Bolio. 11 Rich. T)!)?. 479; Cochran v. State, ib. 544; 
 5 Brown v. Smith, 10 Cal. 508. Leake v. The State, 10 ib. 144.
 
 en, XIV.] VERDICT AGAINST EVIDENCE. 481 
 
 volvod in too much doiiLt and uncertainty to warrant the 
 conviction.^ Or wliere the jury, in a trial for murder, had 
 not, in the consideration of the evidence, given the 
 prisoner the benefit of every doubt.^ So, where a reason- 
 able doubt existed, as to the defendant's intention in in- 
 terfering in a struggle between two other persons, result- 
 ing in the death of one of them.'' So, where a citizen was 
 convicted of changing the brand on a hog, he was held 
 entitled to a new trial, the proof for him being stronger 
 and more decisive than that against him, leaving room to 
 doubt of his guilt." So a new trial was granted, of an 
 indictment for stealing a horse, it appearing that there 
 was a possibility that the Avitnesses might have mistaken 
 the person of the accused, and an alibi being clearly 
 proved by other witnesses, who gave their residence and 
 occupation.* 
 
 § 61. The distinction is taken, that in ijenal actions a 
 verdict for the defendant will not be set aside as being 
 against evidence, though it may be for misdirection.^ As 
 in case- of usury.'' So, on a defence of usury, where there 
 is a verdict for the plaintiiF, and there is any room for 
 doubt whether the usurious contract extended to the 
 original loan ; a new trial will not be granted, although 
 the court sitting as a jury would have found for the de- 
 fendant. The court speak of the defence as "severely 
 penal."* So, where the question, whether the purchase of 
 bills of exchange was a fair business transaction, or de- 
 signed as a cloak for usury, had been left to the jury 
 under proper instructions ; the court refused a new trial.^ 
 
 ' Garland v. State, 3 Swan, 18. The King v. Mann, 4 M. & S. 337 ; 
 
 2 The State v. Hammoud, 5 Hall v. Green, 24 Eng. Law and 
 Strobh. 91. See The State v. Jef- Eq. ATiZ. 
 
 froys, 3 Mur. 480. MO E. 2G8. 
 
 3 Guilford v. State, 24 Geo. 315. s Mansfield ». Wheeler, 23 Wend. 
 ' Reynolds v. State, 24 Geo. 427. 79. 
 
 5 Lincoln v. People, 20 111. 304. 9 Earll v. Mitchell, 33 111. 530. 
 
 6 Brook V. Middleton, 10 E. 368; 
 
 31
 
 482 THE LAAV OF NEW TRIALS. [CII. XIV. 
 
 So in case of soiling whiskey without license.' Or upon 
 a statute to prevent injury by dogs.' 
 
 § 62. It is said that, in penal actions, and in actions for 
 a libel or defamation, and other actions vindictive in their 
 nature, unless some rule of law be violated, in the admis- 
 sion or rejection of evidence, or in the exposition of the 
 law to the jury, the eoui't will not give a second chance 
 of success.^ Thus, in an action for malicious prosecution 
 on a charge of forgery, four witnesses testified for the 
 plaintiff, and the judge directed the jury in his favor, 
 but they found for the defendant. In consideration that 
 the action was of a criminal nature, a motion for a new 
 trial was overruled.^ 
 
 § 63. But where there is strong proof of fraud., a ver- 
 dict against it will be set aside.^ As in case of a verdict 
 for the defendant, in an action for fraud. ^ So in case of an 
 action of deceit for recommendation of the defendant's 
 son; where the defendant stated that his son had £300, 
 but it appeared that he had just before loaned him the 
 sum.^ So in a case of quo warranto^ which for this pur- 
 pose is held a civil proceeding.^ 
 
 § 64. A verdict will be set aside, if the jury acted upon 
 the hardship of the case, disregarding the rules of law, 
 and the verdict is clearly against evidence.^ (See Chap. 
 III.) So, on the other hand, though no single ground is 
 very strong, if the verdict is substantially unjust.'" So 
 where, in an action of trespass for an injury to a horse 
 
 ' Baker v. Richardson, 1 Cow. ' Corbctt v. Brown, 8 Bing. 33. 
 77. 8 King V. Francis, 2 T. K. 484. 
 
 ^ Comfort t'. Thompson, 10 Jolin. (In the case of Rex v. Bennett, 1 
 
 101. Str. 101, the point was left doubt- 
 
 3 Per Sutherland, J., Paddock «. ful.) 
 Salisbury, 2 Cow. 811. ^ Dickinson v. Cruise, 1 Head, 
 
 « Norris v. Tyler, 1 Cowp. 37. 258. 
 
 6 Homerton y. Holt, 23 Tex. 51. '° McDowell v. Preston, 26 Geo. 
 
 B Loflft, 212. 528.
 
 Cir. XIV.] VERDICT AGAINST EVIDENCE. 483 
 
 which was found in the defendant's enclosure, judgment 
 was given for the plaintiff, but it appeared before the 
 court above that the injury was rather the result of acci- 
 dent than of design; a new trial was granted.^ 
 
 § 65. It is held, that in trifling cases a verdict for the 
 defendant will not be set aside as against evidence.^ Thus 
 "the court will not grant a new trial for so trifling a sum 
 as £5, or even under £20.^ Nor in an action for trespass, 
 which is frivolous and vexatious, although the act is 
 clearly proved, and the verdict for the defendant.^ Nor 
 in slander, where the plaintiff had accidentally caused 
 the death of his brother, and the defendant in anger said 
 he had murdered him; the jury finding no malice.^ Nor 
 in an action upon the warranty of a horse, worth only 
 £20 2(/., MansSeld said, "Uncertain justice by a verdict 
 is much better than certain injustice, which latter, I 
 think, would follow by granting a new trial."^ Nor in 
 an action for breaking into a shop, where no damage was 
 proved, and the verdict was for the defendant. Lord 
 Mansfield said, the plaintiffs ought to waive their motion, 
 for upon another trial they might probably recover six- 
 pence, which would be all they could deserve.^ 
 
 § 66. It is held sufiicient ground for refusing a new 
 trial, that it would he of no ultimate benefit to the party 
 applying for it. (See Chap. III.) Thus, in an action of 
 replevin, the verdict was for the plaintiff", with four 
 guineas damages. In refusing a new trial. Lord Chief 
 Justice Best remarked, that it could he granted only on 
 payment of costs, and the defendant might eventually be 
 put to the expense of fifty pounds.* So where, in trespass 
 
 1 Self V. Deloach, 1 McMullan, * Macrow v. Hull, 1 Burr. 11. 
 13. 5 2 pi-ice, 283. 
 
 2 Lofft, 539. 6 Lotft, 14G. 
 
 3 Per :Mansfield, C. J., Roberts v. ? ib. 391. 
 
 Karr, 1 Tann. 493 ; Tarlin<?ton v. « Brown v. Ray, 9 Moo. 583. 
 Speucer, 4 Hurl. & Nor. 859.
 
 484 THE LAW OF NEW TRIALS. [CII. XIV. 
 
 qu. clans., the plaiiitill:" recovered Init iivo dollars, and was 
 therefore bound to pay full costs; a new trial was refused 
 to the defendant, although evidence offered by him was 
 wrongly rejected as a justification, but admitted in miti- 
 gation.^ So where, in trespass against a sheriff, who justi- 
 fied under an execution, he failed to produce the judg- 
 ment, but the plaintiff's title clearly appeared to be 
 fraudulent, and the jury found for the defendant.- And 
 upon the same principle it is held ground for refusing a 
 new trial, that the cause has been thoroughly tried, and 
 is susceptible of no new light.^ So where, in an action 
 for flooding the plaintift"s land, the verdict was for sixty- 
 six dollars ; a motion for a new trial was denied, on the 
 ground that the sum was too small to justify another trial, 
 unless, as was remarked by the court, "courts of justice 
 are kept open to gratify the evil passions of mankind."'* 
 
 § G7. Questions have arisen as to decisions against evi- 
 dence, where a jury had been waived, and the case sub- 
 mitted to the court to decide the facts as well as the law. 
 Upon this subject it is held, that, where there was any 
 evidence on which the finding of the court could be pre- 
 dicated, a new trial will not be granted f unless the 
 record shows that some requisite decision upon a point of 
 law was wrong.^ 
 
 § 68. AVhere a cause is by agreement submitted to tlie 
 court to decide on the facts as well as the law; on motion 
 for a new trial, the usual presumption will be made in 
 regard to the facts. If there is any evidence to su})]wrt 
 the judgment, or a conflict of evidence, the court will 
 not grant a new trial; but if there is no evidence to sup- 
 
 ' Hunt V. Barrel, 5 John. 137. ^ McEvoy v. Lane, 9 Mis. 48; 
 
 2 High V. Wilson, 3 John. 4G. Young v. Kelly, 9 Mis. 50; Sullivan 
 
 » Camden v. Cowley, 1 W. Bl. v. Bichardson, 25 Geo. 154. 
 
 418;Collinson».Larkins,3Taun. 1. ^ Von Fhul v. St. Louis, 9 Mis. 
 
 * Buddington v. Knowlcs, 30 49. 
 Conn. 2C.
 
 CH. XIV.] VERDICT AGAINST EVIDENCE. 485 
 
 port it they will.^ And submission of the facts to the 
 decision of the judge does not affect the reason of the 
 rule, that the Supreme Court will not disturb a verdict, 
 on the o-round that it is contrary to the evidence, where 
 the testimony is contradictory; and the judgment of the 
 court, in such a case, will be regarded in the same light 
 as the verdict of a jury.^ So, where an issue of fact is 
 tried before a judge, without a jury, by consent of parties, 
 under the 'New York judiciary act of May 12, 1847, the 
 finding of the judge on such issue will be treated as if it 
 were the verdict of a jury thereon; and it will not be set 
 aside as against the weight of evidence, unless the pre- 
 ponderance of the evidence be so great, that the verdict 
 of a jury to the same effect, on the same testimony, would 
 be set aside.^ So in Missouri, under Rev. Code, p. 1189, 
 providing that the trial of misdemeanors may be submit- 
 ted to the court with their assent, by agreement of the 
 prosecuting attorney and the defendant, a new trial will 
 not be granted after a finding by the court, simply because 
 the evidence is contradictory.^(a) 
 
 • Wiley V. Kelsey, 13 Geo. 223. ^ Osborn v. Marquand, 1 Sandf. 
 2 Paul V. Perez, 7 Tex. 338. 457. 
 
 4 State V. Moody, 24 Mis. 560. 
 
 (rt) Where there is not a clear and palpable weight of evidence against 
 the finding of the facts by the court below, the Supreme Court will not 
 disturb the verdict. Hallam v. Haywood, 21 Iowa, 398. See Jackson 
 V. Rutherford, 23 Ark. 24; Gulledge v. Howard, ib. 61. Where evidence 
 is contradictory, the finding must stand, if there is some evidence to 
 support it. Strong v. Blake, 46 Barb. 227. In an issue involving the 
 capacity of a testator, in which many witnesses testified to his great 
 eccentricity and belief in witchcraft, and gave their opinion against his 
 capacity to make a will, and other witnesses testified that he understood 
 the value of property, and had capacity ; the decision of the court will 
 not be disturbed, when the issue, by agreement, has been tried by the 
 court " in lieu of a jury." Kelly v. Miller, 39 Miss. 17. Upon a motion 
 to the lord chancellor to grant a new trial of a case heard by a vice- 
 chancellor without a jury, on the ground that his finding was against 
 the weight of evidence; held, that the lord chancellor would not consider
 
 486 THE LAW OF NEW TRIALS. [CII. XIV. 
 
 § GO. In a late case it h said: "A verdict taken by con- 
 sent will be sustained, if there was any competent evi- 
 dence on which it could have been found ; while a verdict 
 ordered by the court, will be set aside, if there was any 
 evidence upon wliich the jury might have found the other 
 way."^ 
 
 § 70. In Kew York, the award of a referee will not be 
 set aside as against evidence, unless clearly so.^ 
 
 § 71. Where a verdict is not only against the weight of 
 evidence, but at the same time against law ; this will fur- 
 nish additional ground of new trial. Thus where the 
 action was for injuries to the plaintiff, by the overturning 
 of a stage coach, in which she was a passenger, resulting 
 from the negligence of the defendant's agent ; and from 
 the undisputed facts the court could see that there was 
 culpable negligence; and the defence rested, not only upon 
 the absence of such negligence, but a settlement and dis- 
 charge, by the plaintiff's attorney, whose authority was 
 denied ; and, both issues being submitted to the jury, they 
 o-ave a verdict for the defendant: it was held, that the 
 iury must have proceeded upon false notions of law, and, 
 as in the opinion of the court the verdict was against the 
 evidence, on both grounds a new trial was granted.^ 
 
 § 72. So, where the question is one of fraud in the sale 
 of goods, evinced by the want of that change of possession 
 which the law requires, to render the sale valid as against 
 creditors, or by a cliange of possession merely colorable; 
 there is such a blending of the facts with the law on the 
 
 ' Per Sari^ont, J., Weeks «. Ro- ^ Dcrwort v. Loomer, 21 Conn, 
 bie, 2 N. n. ;32:{. 245. 
 
 2 Sinclair v. Tallmadgc, 35 Barb, 
 602. 
 
 what would be the proper view of the case had it been originally pre- 
 sented to him, but only whether there was snfllcient evidence to warrant 
 the verdict. Penn v. Bibby, Law Rep., 2 Ch. 127.
 
 CII. XIV.] VERDICT AGAINST EVIDENCE. 487 
 
 subject, the whole being submitted to the jury together, 
 as frequently to render it necessary for the court, in order 
 to avoid injustice, to be more liberal in the granting of 
 new trials.^ 
 
 § 73. And a new trial will be granted, though instruc- 
 tions are erroneous, if under those instructions the verdict 
 is against evidence.^ 
 
 § 74. But, in considering a ruling of the court below, 
 setting aside a verdict as against evidence, the court above 
 will look only at the evidence before the jury, and not at 
 competent evidence ottered and erroneously excluded.^ 
 
 § 75. The practice in England is said to have been, to 
 grant a new trial as against evidence, if the judge de- 
 clared himself dissatisfied ; otherwise, if he declared him- 
 self satisfied. ^(a) Upon this subject it is remarked : " The 
 practice of allowing new trials is of comparatively recent 
 
 « Potter V. Payne, 21 Conn. 361. ■» Bull, N. P. 827 ; Wheeler v. 
 
 2 Rogers v. Murray, 3 Bosw. Pitt, 6 Bac. Abr. GGS ; Rands v. 
 357. Tripp, 3 INIod. 199 ; Letgoe «. Pitt, 
 
 3 Tegarden v. Carpenter, 36 Miss. Barnes, 439. 
 404. 
 
 (a) A verdict will not be disturbed that is satisfactory to the judge of 
 the court below, where no error of law intervenes, if there is any evi- 
 dence to sustain it. Van Huss v. Rainbolt, 2 Cold. 139. The genuine- 
 ness of a note sued on is a question for the jury, and where the presiding 
 judge appears to have been satisfied, if not with the correctness, with 
 the legality of the finding, the court will not interfere on account of any 
 suspicions that the note has been altered. Dupree v. Price, 37 Geo. 235. 
 A verdict will not be disturbed, where no misdirection is complained of, 
 and there is an irreconcilable conflict of testimony, and the judge is 
 satisfied with the verdict, although the court may be unable to trace the 
 process by which the jury arrived at the amount of damages. Foute v. 
 Massey, 37 Geo. 258. When a verdict is wholly without evidence, still 
 more when it is directly against the entire evidence, and even when the 
 preponderance of evidence is manifestly in opposition to it, and, espe- 
 cially, when in any of these cases the impression made upon the mind of 
 the presiding judge concurs with the view of the court above, a new 
 trial will be granted. Plate v. Carolina, 15 Rich. L. 213.
 
 488 THE LAW OF NEW TRIALS. [CIL XIV.' 
 
 orio;in in tlie law, designed to avoid, some possible dangers 
 to which the trial by jury is obviously exposed ; but for a 
 long time it was considered doubtful Avhether a new trial 
 could be granted where there was any evidence on both 
 sides, and it was considered that a new trial could only 
 regularly be granted where the verdict was without evi- 
 dence, or against the whole evidetice. In the English 
 practice, it is believed, that such a motion is never enter- 
 tained by the court, unless where leave has been expressly 
 given to make such motion, by the judge at nisi iirius^ 
 and in practice such leave is usually given only when he 
 himself entertains doubts of the sufficiency of the evidence 
 and, on the whole, is not satisfied with the verdict. In 
 such cases the facts are usually stated from the judge's 
 minutes at the hearing."^ Thus a new trial was granted, 
 where there was evidence on both sides, but the judge 
 reported that the evidence for the prevailing party was 
 very slight, and that on the other side very strong.^ So 
 where two judges sat upon the trial, and one of them was 
 dissatisfied, although the other was not; the court re- 
 marking, " As a man, I am satisfied with the verdict, but 
 as a judge, I ought not to be satisfied, unless the court is 
 so."^ AVhile, on the other hand, if the judge is not dis- 
 satisfied, there must be a very strong case to justify a new 
 trial.* In an action on a promissory note by indorsee 
 against maker, the defence was, fraud, that the note was 
 indorsed without consideration, and that the plaintiff 
 sued as trustee. The defendant having closed his case, 
 the judge told the jury that there was no evidence to 
 sustain the plea. The jury, however, returned a verdict 
 for the defendant. The court granted a new trial, with- 
 out examining whether the direction of the judge was 
 rio"ht or wrong.' So the plaintiff and defendant were 
 
 ' Per Shaw, C. J., Miller v. Ba- '' Cain?). Henderson, 2 Binn. 108. 
 ker, 20 Pick. 28!)-90. '^ Wood ». Cox, 33 Eng. Law and 
 
 2 Berks v. :\Iason, Sayer, 264. E(i. 313. 
 
 3 Per Washington, J., Harrison 
 «. Rowan, 4 Wash. C. 32.
 
 ClI. XIV.] VERDICT AGAINST EVIDENCE. 489 
 
 witnesses, and gave contradictory testimony. There was 
 other evidence, and the jury found for the plaintiff. The 
 judge declaring that in his opinion the verdict was grossly 
 wrong, the court granted a rule for a new trial without 
 costs ; and after argument made it absolute, costs to be 
 costs in the cause. ^ 
 
 § 70. It has been sometimes held, however, that a new 
 trial will not be granted, though the judge is dissatisfied, 
 or would have come to a different conclusion; more espe- 
 cially if the case turned upon the credit of witnesses.-(a) 
 Or where the case turned " on a mass of testimony, writ- 
 ten and parol," more especially if unimpeached.^ ISTor if 
 the verdict is for the defendant, and there was some evi- 
 dence for him.* Nor though the judge reports that the 
 evidence for the plaintilf was very weak, and that he 
 summed up strongly for the defendant, the verdict being 
 for the plaintilf.^ Thus a new trial was refused in a case 
 of collision, where the verdict was for the plaintiff, 
 although ;Nransfield, C. J., said: "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."" 
 And the general rule is laid down, that, where there is 
 some evidence to sustain a verdict, the judge should 
 not set it aside, because, in his opinion, the evidence is 
 insufiicient.^ 
 
 ' Skiffina;ton v. Clark, 20 Eng. ^ Griffith ». Willing. 8 Binn. SIT; 
 
 Law and Eq. 356. Hull v. Hodge, 2 Tex. 328. 
 
 " Felil V. Good, 2 Binn. 495; * Ashley ». Ashley, 2 Str. 1U2. 
 
 Williams v. Vaiiderbilt. 21) Barb. ^ Smith v. Iluii-gins, 2 Str. 1142. 
 
 4!)1 ; Muckey v. N. Y., &c., 27 e Colllnson r. Larkiiis. 8 Taun. 1. 
 
 Barb. 528. ^ Dexter v. Cole, 6 Wis. 819. 
 
 (a) It is said, in a late case, " The jury had an opportunity to observe 
 the appearance and demeanor of the parties ; to ascertain their compa- 
 rative intelligence, accuracy of recollections, and general trustworthiness, 
 as well as the consistency or inconsistency of their admitted conduct 
 with their respective claims." Per Sanford, J., Waters v. Bristol, liG 
 Conn. 405.
 
 490 THE LAW OF NEW TRIALS. [CU. XIV. 
 
 § 77. And a new trial was refused, though the judge 
 Gortifiod that the wciglit of the evidence was witli the 
 pLaintilf, but the verdict was for the defendant; there 
 being evidence for the defendant.' So although " the evi- 
 dence presented in the case seems to be in favor of the 
 defendant ;" but it was contradictory, and the verdict was 
 for the plaintift? So where, in an action for negligently 
 driving against and killing a horse of the plaintift' proved 
 to be worth £30, the jury, there being strong evidence to 
 negative negligence on the part of the defendant, and 
 some evidence the other way, contrary to the opinion of 
 the judge, found for the plaintiff, damages £15 ; the court 
 refused to grant a new trial, on the ground of the verdict 
 being perverse.^ 
 
 § 78. In a leading case it is said: "If there hath been 
 a contrariety 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."* And the English rule is said not to prevail in 
 the United States.^ Where the court above is satisfied 
 with the verdict, it will reverse the allowance of a new 
 trial by the court below, although such allowance implies 
 dissatisfaction. ^(a) 
 
 ' AshU'v V. Ashley, 2 Str. 1142. Poake, 7 Tann. 15.3 ; Hartwriglit 
 
 Ace. 1 Wils. 22. V. Badham, 11 Price, 38S; Carstairs 
 
 2 Douglas v. Tousey, 2 Wend. v. Stdn, 4 M. & S. 192 ; Wood- 
 352. ^vard v. Payne, 15 .Tolin. 493 ; Ack- 
 
 3 Hawkins «. Alder, 37 Eng. Law ley «. Kellogg, 8 Cow. 223. 
 and Eq. 258. ^ Graham, 407. 
 
 » Per AVilinot, C. J., Swain v. ^ Daley v. Norwich, &c., 20 
 Hall, 3 Wils. 45. Ace. Lewis v. Conn. 591. 
 
 (a) After a verdict of not guilty upon an indictment for obstructing 
 a highway, a new trial will not be granted on the ground that the ver- 
 dict was against evidence ; although the judge who tried the case re- 
 ports Unit lie is dissatisfied with the verdict. Regina v. Johnson, 2 E1.& 
 E. 613.
 
 en. XV.] 
 
 NEWLY-DISCOVERED EVIDENCE. 
 
 491 
 
 CHAPTER XV. 
 
 NEWLY-DISCOVERED EVIDENCE. 
 
 1. General rule. 
 
 4. Hcniiirks of courts. 
 
 G. Dili.nencc must be proved. 
 
 7. Forj:;ett'ulness. 
 
 9. Documentary evidence. 
 
 11. Ignorance of counsel. 
 
 13. Cumulative evidence. 
 
 19. Evidence to impeach, contra- 
 dict, or otherwise affect a "witness. 
 
 28. Questions of amount. 
 20. Questions of form. 
 
 30. To prove a crime. 
 
 31. Court above. 
 
 35. Form of application, affida- 
 vits, statement of evidence, hear- 
 say, &c. 
 
 40. Materiality and credibility. 
 
 § 1. A FREQUENT ground of application for new trial, is 
 the discovery of new evidence subsequent to the former trial. 
 
 § 2. The general rule upon this subject is, that after- 
 discovered evidence, in order to afford a proper ground 
 for a new trial, must be such as reasonable diligence on 
 the part of the party offering it could not have secured 
 at the former trial; must be material in its object, going 
 to the merits of the case, and not merely cumulative and 
 corroborative, or collateral ; and must be such as ought to 
 be decisive, and productive, on another trial, of an oppo- 
 site result on the merits.^ And also, as is sometimes 
 said, not impeached by, or going to impeach, a former 
 witness.^(rt) 
 
 1 Thompson's Case, 8 Gratt. 037 
 Bourland c. Skinner, G Ens'!:. G71 
 Wise V. State, 24 Geo. 31 ; Reeves 
 V. Royal, 2 Greene (Iowa), 451 
 Com. V. ^Murray, 2 Ashmead, 41 
 Com. r. Williams, ib. Gi) ; Smith )' 
 ]\Iatthews, 6 Mis. GOO ; Robins v 
 Fowler, 2 Pike, 133 ; Crozier v. 
 
 Cooper, 14 111. 130; Clark v. Carter, 
 12 Geo. 500; Simpson v. Wilson, G 
 Ind. 474; Giles v. The State, G Geo. 
 276. 
 
 2 Perkins v. Fowler, 2 Pike, 133; 
 Crozier v. Cooper. 14 111. loO. See 
 Foot y. Silsby, 1 Blatch. 445. 
 
 (a) 111 South Carolina, it was formerly held that a new trial will not 
 be granted on account of new evidence discovered since the trial. Bu- 
 chanan V. Carolin, 1 Brev. 185 ; Faber v. Baldwick, 3 Brev. 350. lu
 
 492 THE LAW OF NEW TRIALS. [CH. XV. 
 
 § 2.(1. In a late case it is laid down, that a new trial will 
 not be granted on tlie ground of newly-discovered evi- 
 dence, unless it appear probable that injustice has been 
 done, and that the new evidence is of such controlling 
 character that it will probably correct the injustice ; nor 
 unless it goes directly to the merits of the controversy, 
 and not merely to contradict or impeach a witness; nor 
 if it applies to a point directly drawn in question by the 
 suit, but which -was so far abandoned at the trial, and in 
 the preparation for it, by the losing party, that all inquiry 
 for evidence upon that point was waived by liim.^ 
 
 § 3, In still another case the grounds are enumerated 
 as follow^s. Where a witness has discovered that he made 
 a mistake in his testimony. Where the new evidence 
 relates to declarations or confessions of the prevailing 
 party inconsistent with the evidence offered by him. 
 Where the new evidence was kept from the knowledge 
 of the petitioner by the prevailing party, for the purpose 
 of prejudicing his case. 
 
 2 
 
 > Crafts v. Union, &c., 3G N. H. 2 Warren v. Hope, 6 Greenl. 479. 
 44. 
 
 general, newly-discovered evidence must have been discovered since the 
 trial. Oakley v. Sears, 7 Rob. (N. Y.) Ill ; O'Barr v. Alexander, 37 
 Geo. 195. By analogy, however, the new evidence may sometimes be 
 said to have been matter nexoly created. Thus in an action upon a note, 
 assigned after maturity, the defendant alleged a breach of warranty in 
 the deed of land for which the note was given, and on the trial showed 
 a sheriff's sale of a portion of the land under a judgment on file in 
 the proper county, at the time of the conveyance; but the sheriff's 
 deed, which was offered in evidence, did not show that the execution, 
 upon which the sale was made, was issued upon the same judgment as 
 that set forth in the record. After judgment for the plaintiff, the de- 
 fendant moved for a now trial, on the ground that within three days 
 after the trial the sheriff executed another deed, in which the errors in 
 the first were corrected. Held, a new trial should be granted. Deere v. 
 McConnell's, 1.5 Iowa, 269. Where the right to a review exists, and no 
 misconduct is charged on the adverse party, a new trial will not be 
 granted on the ground of newly-discovered evidence. Ordway v. Haynes, 
 47 N. H. 9.
 
 en. XV.] NEWLY-DISCOVERED EVIDENCE. 493 
 
 § 4. The remarks of judges are often very strong against 
 the policy of interfering with verdicts upon this ground. 
 Thus it is said: "Motions of this kind are to be received 
 with great caution, because tliere 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 wlio has lost the verdict has 
 had an o}ii)ortunity of discovering the points both of his 
 adversary's strength and his own weakness."^ So, in an- 
 other case: "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 destroy verdicts, and 
 introduce new trials at their pleasure."^ And, in another 
 (criminal) case, where there had been want of diligence 
 in pre})aration for the trial: " By the assistance of con- 
 federates 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. "^(«) 
 
 ' Moore v. The Philadelphia 2 Per Rush. Pros., Aubcl».Ealer, 
 Bauk, 5 S. & R. 41. 2 Binn., 582 n. 
 
 3 State V. Harding, 2 Bay, 267. 
 
 (a) After ;i full trial, iicwly-discovered evidence, to warrant setting 
 aside the verdict, should be of the most satisfactory character. People 
 V. Sackett, 14 Mich. 320. Such applications are entertained with great 
 reluctance, and, in addition to the questions of materiality of the evidence, 
 and whether there is a probability of benefit by a re-hearing, all the 
 attending facts and circumstances should be looked into with great care. 
 Callahan v. Caffarata, 39 Mis. 136. The applicant must make a strong 
 case, both in respect to diligence in preparing for the trial, and the truth 
 and materiality of the new evidence, and by the best evidence that can 
 be obtained. Arnold v. Skaggs, 35 Cal. 084. Courts should not grant 
 a new trial ou the ground of newly-discovered evidence upon technical 
 ground, and when the substantial rights of the pai'ties have been fairly 
 adjudicated. McLaiu v. Lawson, 25 Iowa, 277. Nor unless it would 
 probably vary the result. McClusky v. Gerhauser, 2 Nev. 47. Or au- 
 thorize a different verdict. Yardeman v. li^dwards, 21 Tex. 737. So held 
 in a case of murder. Roach v. State, 34 Geo. 78. The evidence must 
 be so important, that it may reasonably be inferred that the verdict
 
 494 THE LAW OF NEW TRIALS. [cil. XV. 
 
 § 5. There are occasional instances, however, in which 
 the languaii;e of the courts woukl seem to sanction a 
 very liberal discretion in setting aside verdicts upon this 
 ground. Thus, in an early case in ISTew York, the court 
 remarked: "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 tlie case, that a new trial ought to be 
 granted, on the payment of costs."^ And although, to 
 entitle a party to a new trial for newly-discovered evi- 
 dence, it is indispensable that he should have been diligent 
 in his efforts fully to prepare his cause for trial ; yet, where 
 he did not know the existence of the evidence, and was 
 not put upon inquiry in regard to it, until the witness, by 
 whom alone it could be fully proved, had gone beyond his 
 reach, the non-production of this evidence on the trial does 
 not evince the omission of reasonable diligence.^(a) 
 
 > Doe V. Roe, 1 John. Cas. 402. 2 Waller?). Graves, 20 Conn. 305. 
 
 See Clark v. Carter, 12 Geo. 500. 
 
 would have been dififerent had it been offered. Leschi v. Territory, 1 
 AVash. Terr. 23. Newly-discovered evidence relating to one of several 
 if^sues, where on the other issues the judgment would be maintained, is 
 not a sufficient ground for a new trial. Sharpe v. Traver, 8 Minn. 273. 
 A new trial will be granted on the ground of newly-discovered evidence 
 upon the main question, likely to change the result ; but, if only upon 
 a subordinate point already gone into, it will be considered merely as 
 cumulative. Flannagan v. Newberg, 1 Idaho Terr. 82. 
 
 (a) In an action of trespass to try title to a labor grant, where 
 boundaries were in question, new evidence was held to be afforded by 
 the discovery of a new material call, if not the most material call in the 
 grant ; incidents of the trial having reminded a witness, that the spot 
 had been pointed out to him by an old citizen many years before, and 
 the spot having been since identified by him. Mitchell v. Bass, 26 Tex. 
 372. In a late case a new trial of the validity of a will, which was con- 
 tested on the ground of insanity, was granted for the discovery of new 
 evidence. Young v. Dendy, Law Rep. 1 P. & D. 344. In an action 
 against an agent and his principal upon a sealed instrument given by the 
 former, the principal denied the authority of the agent, and testified that
 
 CII. XV.] NEWLY-DISCOVERED EVIDENCE. 495 
 
 § 6. As already intimated, a new trial will not be 
 awarded on the ground of newly-discovered testimony, 
 when it appears that the testimony was or ought to have 
 l)een known to the party before the trial, and no sufficient 
 excuse is shown for not })rocuring it. There must have 
 been no delay; and the proof of diligence must be clear.* 
 It is said: "This rule is one of great practical importance, 
 and binding upon the court. It is necessary to secure to 
 litigant parties the termination of their legal controver- 
 sies. Every facility is to be granted to the parties to 
 
 » Holman v. The State, 8 Eng. 195 ; Gambart v. Mavno, 14 Com. 
 
 (13 Ark.) 105; Wright v. State, B. (N.) 320; Mininger r. Knox, 8 
 
 34 Geo. 110; McAffee v. State, 31 Min. 140; Swartzel v. Rogers, 3 
 
 ib. 411 ; Suyder v. Myers, 3 W. Va. Ivans. 374. 
 
 he had no knowledge of the transaction : the agent testified, that he had 
 not informed the principal of the making of the agreement. The plain- 
 tifl' demanded the production of all the correspondence between them, 
 but it was not produced. After trial and judgment for the defendants, 
 the plaintiff" moved for a new trial on the ground of newly-discovered 
 evidence, consisting of the letters between the defendants touching the 
 agreement, and material to the issues tried. Held, the failure of the 
 defendants to produce any such correspondence, coupled with their testi- 
 mony, misled the plaintiff", and excused his neglect in failing to elicit the 
 existence of such correspondence on cross-examination, and the motion 
 should be granted. Humphrey v. Havens, 9 Min. 318. 
 
 Wurtz V. Walton. New trial. Opinion by Hare, P. J. If this case 
 stood as it did at the trial, there would be no reason to disturb the ver- 
 dict of the jury, who, resting on the presumption in favor of a negotiable 
 instrument, might justly disregard the unsupported allegations of the 
 maker, that he had received no value, which were ingeniously thrown 
 into the scale of the defence. That a man who is proved to have ad- 
 mitted that he made a note, is also proved to have said, in the course of 
 the same conversation, that it was without consideration, certainly goes 
 but a small part of the way towards establishing that he ought not to be 
 called on for payment. But the case is between two brothers, one living, 
 who denies the obligation of the debt, the other dead, and reproscuted 
 by an administrator; and the after-discovered evidence of a third brother 
 is now adduced, which, if heard at the trial, would in all probability 
 have changed the result. In view of these circumstances, we think it 
 better to give the defendant an opportunity to bring the case before 
 another jury. Rule absolute. Leg. Intcll.
 
 496 THE LAW OF NEW TRIALS. [CII. XV. 
 
 present tlicir case fully at the hearing. This is their day 
 in court ; this the time to exhibit all their proofs. If they 
 lie by, through over-confidence in their own strength, or 
 in a mistaken belief in the weakness of their adversary, 
 and the result is against them, they must abide the con- 
 sequences."^ So it is said in an early case, " 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."" It must be made to appear afhrmatively that the 
 evidence could not have been discovered by due, ordinary, 
 or reasonable diligence.^ A party w^ho neglects to make 
 a defence, known to him at the time when it should have 
 been made, or to adduce evidence to substantiate it, of 
 which he was then aware, or which he could have ascer- 
 tained with reasonable diligence, and in consequence of 
 such neglect fails in the controversy, cannot subsequently 
 renew it upon the discovery of additional testimony to 
 establish such defence.* So it is held sufficient proof of 
 neo'liorence, if the evidence was known before verdict.^ 
 And this rule more especially applies, where, from the 
 relation of the party moving for the new trial to the 
 person whose acts are in controversy, a strong probability 
 arises of his previous knowledge on the subject; or where 
 the new evidence might easily have been procured, both 
 on account of the number of persons knowing the facts. 
 
 ' Per Dewey, J., Gardner v. Sinipkins v. Wilson, 11 Ind. o41 ; 
 
 Gardner, 2 Gra}', 444. Milton v. Blacksliear, 8 Flori. 161; 
 
 2 Watson V. Sutton. 12 IMod. 583. Avery v. State, 20 Geo. 233; Lcavv 
 
 3 Dean v. Young, 13 S. it M. 118. v. Roberts, 2 Hilt, 28o ; Campbell 
 See Howard v. Grover, 28 Maine, v. Genet, ib. 290; Stearns v. Allen, 
 97; Robinoe v. Doe, G Blackf. 8."J ; 18 Vt. 11!) ; Laflin v. Herrington, 
 Palmer ». Fiske, 2 Curtis G. C. 14; 17 HI. Sno ; ]\Iilhird i\ Singer, 2 
 Ham V. Ham, 31) IMaine, 203; Gard- Greene, 144 ; Beard v. Simmons, 9 
 ner«. Gardner, 2 Gray, 434; People Geo. 4; Dickson v. Mathers, 1 
 V. Mack, 2 Parker, 073 ; Watts i\ Hemp. 05 ; Washburn v. Gould, 3 
 Johnson. 4 Te.K. 311 ; Knox v. Storv. 122. 
 
 Work, 2 Binn. 582; Cooke v. Berry, ^ :Srunn v. Worrall, 10 Barb. 221 ; 
 
 1 Wils. \)% ; Gist v. Mason. 1 T. R. Reed v. Moore, 3 Ired. 310. 
 
 84 ; Hope v. Atkins, 1 Price, 143 ; ^ Higdeu v. Higdeu, 2 Mar. 42.
 
 CH. XX.] NEWLY-DISCOVERED EVIDENCE. 407 
 
 and the facility of access to thera.^ Thus a new trial will 
 not be granted for discovery of a material will, without 
 proof that it had been searched for in the probate office.^ 
 So a new trial was refused, where the assignees of the 
 bond in suit had notice of an important paper in the 
 hands of the obligee, but omitted to give notice for its 
 production at the trial.^ So, in an insurance cause, a 
 motion for a new trial, for the purpose of introducing a 
 copy of the proceedings and condemnation of the ship 
 and cargo at a foreign port, merely alleged that the evi- 
 dence had arrived at !N'ew York, but not that it had been 
 discovered since the trial. The motion was overruled, be- 
 cause from the nature of the case the evidence must have 
 been known to the party at the time of the loss, and he 
 must either have been negligent in procuring it, or, if 
 not, should have moved for a postponement.*(a) 
 
 ' 2 Gray, 445. ■• Vaudervoort v. Smith, 2 Caines, 
 
 2 Robinoe v. Doe, 6 Blackf. 85. 155. 
 * Drayton v. Thompson, 1 Bay, 
 263. 
 
 (a) It must appear in the application that there was due diligence. 
 Yoluntary absence from the State will not excuse a want of diligence. 
 Burnley v. Rice, 21 Tex. 171; Edmiston v. Garrison, 18 Wis. 594. 
 In a suit against a firm upon two notes, a new trial was refused, 
 upon the ground that the defendants had just discovered that one 
 of the notes was given by mistake, and that the partner who made 
 the notes did not know that the suit was brought upon the two 
 notes until he was called to the witness stand. Richardson v. Farmer, 
 36 Mis. 35. It is not sufficient that since the trial the party has disco- 
 vered the materiality of evidence he knew of before. O'Barr v. Alex- 
 ander, 37 Geo. 195. A general allegation of due diligence to obtain 
 testimony is not sufficient, where the new evidence is that of a witness, 
 who was subpoenaed by the party moving, and in court at the trial. 
 Diligence must be conclusively shown in such case. Carson v. Cross, 14 
 Iowa. 403. If the materiality of absent evidence is first discovered 
 during the trial, a continuance must have been asked for. Klockenbaum 
 V. Piersoii, 22 Cal. 160. There must be an affidavit from the prisoner or 
 his counsel, that the evidence was unknown at the trial, when it is from 
 a witness who was examined for the defence. Milner v. State, 30 Geo. 
 32
 
 498 THE LAW OF NEW TRIALS. [CH. XV. 
 
 § 7. "A want of recollection of a fact, whicli by due 
 attention might have been remembered, cannot be a 
 reasonable ground for granting a new trial; for a want of 
 recollection may always be pretended, and may be hard 
 to be disproved."^ '-'■Recollection is not (liseoven/. The 
 former deals with the known, the latter with the un- 
 known. "^ As in case of the recollection by a witness, 
 and especially of a party witness, of something which he 
 did not recollect or state when on the stand.^ So, upon 
 like ground, where the witness proposed to be called had 
 been summoned at the former trial, but dismissed without 
 examination.-* 
 
 § 8. But a new trial was granted, though the counsel, 
 upon seeing a commission, which first came to hand a few 
 days before the trial, suspected from it that some new in- 
 formation might be obtained.^ 
 
 § 9. The discovery of neiv documentary evidence, that 
 might have been obtained in season, will not authorize a 
 new trial.*' So, where the newly-discovered evidence was 
 all of record, in the court, or in a public office, and might 
 have been found by reasonable search, it was held that 
 this furnished no reason for a new trial.^ So in case of a 
 recorded deed or judgment.^ So where a verdict was 
 
 ' Per Parsons, C. J., Bond v. ^ Marshall v. Union, &c., 2 
 
 Cutler, 7 Mass. 205. Wash. Cir. 411. 
 
 2 Per Ames, C. J., Johnson v. ^ Tillman ». Hatcher, 1 Rice, 271. 
 Blanchard, 5 R. I. 26. See Gregg ? Morgan v. Houston, 25 Vt.570; 
 V. Bankhead, 22 Tex. 245. Vardeman v. Edwards, 21 Tex. 
 
 3 Johnson v. Blanchard, 5 R. I. 7;'>7 ; Simpkins v. Wilson, 11 Ind. 
 24. 041. 
 
 ^ Wilbor V. Gillicuddy, 3 Mill. « "VVeimer v. Lowcry, 11 Cal. 104; 
 (La.) 382. Reed v. Moore, 3 Ired. 310. 
 
 137. Upon similar grouud the application must be made as soon as pos- 
 sible. Cutler V. Columbia, 1 Oreg. 101. Where the causes are disco- 
 vered after the term at which the verdict or judgment was rendered, the 
 complaint should clearly show it. Tillson v. Crim, 22 Ind. 357. Want 
 of time to procure the necessary affidavits is no excuse for the want of 
 them, when no motion was made to postpone the rule. Johnson v. Lovett, 
 31 Geo. 187.
 
 CH. XV.] NEWLY-DISCOVERED EVIDENCE. 499 
 
 given against the validity of certain notes in suit, they 
 having been given in exchange for others, and the defen- 
 dant having been superseded by his assignees in the de- 
 fence; a new trial was refused, the insolvent disclosing, 
 after the trial, that the old notes had been returned to 
 him.^ 
 
 § 10. But a new trial was granted, for the purpose of 
 introducing documents from the custom-house at New 
 York, which would invalidate some of the testimony, and 
 show an alleged sale to have been a mere order, and the 
 property in question not neutral.^ 
 
 § 11. That counsel were ignorant of newly-discovered 
 evidence, is no ground of new trial, unless the party also 
 were ignorant of it.^ 
 
 § 12. But a new trial was granted, where the defen- 
 dant's attorney made affidavit, that on the first day of 
 the term the defendant had sailed for Barbadoes, and that 
 since the trial he (the attorney) had found in a memo- 
 randum-book of the defendant a receipt in full from the 
 plaintiff.* 
 
 § 13. Newly-discovered evidence, merely cumulative^ is 
 no ground for a new trial.^ It must appear affirmatively 
 
 ' Whetmore ». Murdock, 3 W. & Stimpson v. Wilsou, 6 Ind. 474 ; 
 
 M. 380. The Commonwealth v. Flanagan, 
 
 2 Marshall v. The Union, &c., 2 7 Watts & Serg. 415 ; Ferrin v. 
 Wash. Cir. 411. Protection Ins. Co., 11 Ohio, 147 ; 
 
 3 Fikes V. Bentley, 1 Hemp. 61. Schlencker v. Eisley, 3 Scam. 
 ^ Broadhead v. Marshall, 2 W. 483; Smith v. Schultz. 1 lb. 499 ; 
 
 Bl. 955. Brown v. Stacy, 5 Pike, 403 ; Wig- 
 
 5 Moore «. Ulm, 34 Geo. 565 ; gin v. Coffin, 3 Story, 1 ; Den v. 
 
 Merryman v. Ryan, 24 Ind. 202 ; Wintcrmute, 1 Green, 177 ; The 
 
 Spencer v. Doane, 23 Cal. 418 ; Al- Commonwealth B.Murray, 2 Ashm. 
 
 drich V. Palmer, 24 ib. 513 ; Cox 41 ; The Commonwealth v. AVil- 
 
 V. Hutchings, 21 Ind. 219 ; Stur- liams, ib. 09 ; Jennings v. Loring, 
 
 gcon V. Ferron, 14 Iowa, 160; Wil- 5 Ind. 250 ; Jones v. White, 11 
 
 helnii v. Thorington, ib. 537 ; Humph. 208 ; Palmer v. Fiske, 2 
 
 Harnsbarger v. Kinney, 13 Gratt. Curt. 14 ; Ham v. Ham, 39 Elaine, 
 
 511 ; Bagge v. Lynch, 22 Mis. 503; 203; Gardner v. Gardner, 2 Gray, 
 
 Dossett V. Miller, 3 Sneed, 72 ; 434 ; Wrights v. Greenwood, 17
 
 500 THE LAW OF NEW TRIALS. [CII. XV. 
 
 tliat the evidence is not cumulative.^ It is said, if the 
 rule were othenvisc, "not one verdict in ten would stand. 
 Some corroborating evidence may always be found or 
 made; and tlie trial by jury would become the most pre- 
 carious of all trials."- So, in another case, "It cannot 
 be permitted that eitlier party shall produce just so much 
 evidence as he thinks proper, and then stop short, and 
 ultimatelj^ obtain a new trial, on the ground that he did, 
 on the iirst trial, give all the evidence which he then 
 might, and has since found he ought to have given more."^ 
 And, in another case, with more sjiecial reference to the 
 multiplication of witnesses to one point, "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, 
 Avho can testify as to the destination of the Catharine. 
 This was the fact principally controverted on the former 
 trial, and we are now applied to for another, merely be- 
 cause 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 he acquainted Avith 
 some of the circumstances relating to the point in contro- 
 versy. 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."-* 
 
 Geo. 418; Latham v. Selkirk, 11 Stewart v. Hamilton, 19 Tex. OG ; 
 
 Tex. 314 ; Castro v. Wurzbach, 13 Ilandley v. Call, 30 Maine, J). 
 
 ib. 128; State v. Larimore, 20 ' Robins ». Fowler, 2 Pike, 133. 
 
 Mis. 425 ; AVells v. Sanger, 21 ib. ^ Per Boudinot, J., Jessup v. 
 
 354 ; Clark v. Carter. 12 Ceo. 500 ; Cook, 1 Halst. 434. 
 
 Live, etc. V. Oregon, *fcc., 7 Cal. 40; » Per Bayley, J., Doc v. Price, 1 
 
 Coggin V. Jones,' 29 Geo. 257 ; Mil- Man. & Ky. G83. 
 
 ton V. Blackshear, 8 Flori. IGl ; * Per Livingston, J., Steinbach 
 
 Newcjnib i\ State, 37 Miss. 383; v. The Colmubiau, &c., 2 Caiues, 
 
 Mauix V. Malory, 7 Clarke, 81 ; 129.
 
 CII. XV.] NEWLY-DISCOVERED EVIDENCE. 501 
 
 § 14. Witli regard to the nature of cumulative evi- 
 dence, it is remarked by the court in Massachusetts, 
 "whether particular testimony is cumulative or not, is 
 often a question of some nicety. This court has, in com- 
 mon with many other tribunals, been disposed to limit 
 this objection as to cumulative testimony to that which is 
 most obviously so, and not to apply it to all testimony 
 tending to establish the same fact." As where it differs 
 in kind. Thus, if the former evidence was wholly circum- 
 stantial, and the new evidence is positive and direct.' Cu- 
 mulative evidence is held to be evidence, which speaks to 
 facts in relation to which there was evidence on the trial.' 
 Or additional evidence, of the same kind, to the same 
 point.^ Evidence is not cumulative if of a distinct species 
 from any that was given at the former trial ;^ though 
 intimately connected with some parts of the former 
 testimony.^ Or if it relate to distinct and independent 
 facts of a diiierent character, though tending to establish 
 the same ground of claim or defence." Or to a matter 
 that has come to light since the trial, and on which the 
 party has never been heard.'' Cumulative is sometimes 
 spoken of as equivalent to corroboiritive evidence.^ Or as 
 evidence relating to a principally controverted fact.^ Or as 
 relating to the facts proved, whether bearing upon the 
 issue directly or collaterally.'*' It is said: " We are not to 
 look at the effect to be produced as furnishing an infallible 
 criterion. The kind and character of the facts make the 
 distinction. It is their resemblance that makes them 
 cumulative."'^ Thus, in an action relating to the settle- 
 
 ' Per Dewpy, J., 3 Gray, 443. ^ 39 Coun. 305. 
 
 2 McGavock )'. Brown, 4Humph. ^ Deu v. Wiutermute, 1 Green-, 
 251 ; Kihy v. Waterford, 14 Verm. 177. 
 
 414 ; Withers v. Butts, 7 Dana, » Smith v. Brush, 8 John. 84. 
 
 329 ; Bcauchamp v. Sconce, 13 Mis. s 3 Gaines, 139; 8 Jolin. 84; Pike 
 
 57. v. Evans, 15 John. 310 ; Whitbeck 
 
 3 Glidden v. Dunlap, 28 ]\Iaine, v. WMiitbeck, 9 Cow. 3(10. 
 
 379. '0 Loavv v. Roberts, 3 Hilt. 285. 
 
 < Watts V. Howard, 7 Met. 478. " Per Marey, J., Guyot v. Butts, 
 
 5 Vardemau v. Byrne, 7 How. 4 Wend. 570. 
 (Miss.) 365.
 
 502 THE LAW OF NEW TRIALS, [CII. XV. 
 
 ment of a pauper, the facts and testimony at tlie trial 
 applied to a period subsequent to the year 1801, and to a 
 statute passed in that year. It was held that new evi- 
 dence, relating to a residence and settlement at an ante- 
 cedent period, was not cumulative. ^(a) 
 
 ' Kirby v. Waterford, 14 Verm. 414. 
 
 (a) It is said, tlie best definition of the term " cumulative evidence," 
 is that in Parker v. Hardy, 24 Pick. 246 (Mass.), viz. : " cumulative evi- 
 dence is additional evidence of the same kind, to the same point." Bra- 
 dish V. State, 35 A"t. 452. Evidence is cumulative, when it goes to the 
 fact principally controverted on the former trial, and respecting which 
 the party produced testimony. Grubb v. Kalb, 37 Geo. 459. Evidence 
 of admissions is not cumulative, when there has been no other evidence 
 of such admissions. Gray v. Harrison, 1 Ncy. 502 ; Collins v. Loyd, 31 
 Geo. 128. Admissions and conversations of a defendant, in direct con- 
 flict with his testimony and with the theory of his defence, are. not im- 
 peaching, but original evidence. Alger v. Merritt, 16 Iowa, 121. Evi- 
 dence which is specifically distinct and bears upon the issue is not cumu- 
 lative, though it may be intimately connected with parts of the other 
 testimony. Ibid. "Where, in an action against the drawer of a check, 
 it is alleged in defence that the check Avas given, with the understanding 
 that it was not to be paid except from funds to be received from A., at 
 whose request it was made, and that the plaintiff" knew of such under- 
 standing ; and the evidence to support such allegation is controverted by 
 the plaintifT's testimony ; and it is ascertained, subsequently to the trial, 
 and a verdict for the plaintiff, that the plaintiff" had declared, that he 
 knew when he received the check that it was a loaned check, and no 
 consideration paid for it : a new trial may be granted. Oakley v. Sears, 
 1 Rob. 73. In an action on a note, the defendants were not allowed to 
 show the value of confederate currency at the date of the note, in order 
 to take advantage of the " scaling ordinance," the consideration of the 
 note not having been shown. The defendants afterwards moved for a 
 new trial in order that they might show, by their own testimony, that the 
 consideration of the note was confederate currency, parties having been 
 made competent witnesses by an act of the legislature passed since the 
 previous trial. Held, the motion was properly granted. Hill v. Van- 
 duzer, 37 Geo. 293.. Where the genuineness of a signature has been put 
 in issue, newly-discovered evidence of forgery is held cumulative. AV right 
 V. Carillo, 22 Cal. 595. Where one had failed in his defence to a charge 
 of larceny— that he purchased the alleged stolen articles— by the im- 
 peachment of his witness, and neglected to summon two other witnesses
 
 CH. XV.] NEWLY-DISCOVERED EVIDENCE. 503 
 
 § 14«. In Illinois, a second new trial in ejectment, under 
 Rev. Sts. c. 36, was refused, upon the ground, in part, that 
 the evidence on which the motion was based was merely 
 cumulative in character.^ So, where, on the first trial, the 
 main fact was proved by a single witness for the plaintiiF, 
 and the defendant then sought to overcome his testimony 
 by proof of his own statements, and of circumstances in- 
 consistent with such fact, and the defendant moved for a 
 new trial, on the ground of a newly-discovered witness, 
 who would prove similar inconsistent acts and statements; 
 it was held, that the evidence was cumulative, and a new 
 trial was refused.- So where an affidavit was made by 
 one who had been a witness in the cause, swearing to 
 further important facts not stated by him at the trial, be- 
 cause his recollection did not serve him.^ So newly-dis- 
 covered evidence of a boy's school-fellows, as to his capa- 
 city to write a certain paper, purporting to be written by 
 him, the genuineness of which is material to the issue, is 
 cumulative of evidence given to the same point at the 
 trial by his teachers and by medical men.^ Judge Dewe}^ 
 remarks : " It is in part a different kind of evidence, if 
 the source from which it comes gives it that character, 
 but generally it is not only testimony to the same facts, 
 but also by the same class of witnesses as testified at the 
 trial. "5 
 
 § 15. The following distinction is taken, with reference 
 
 > Laflin «. Ilerringtou, 17 111. ' Tomlin v. Den, 4 Harr, 7G. 
 399. '' Gardner v. Gardner, 2 Gray, 
 
 - Brisbane v. Adams, 1 Sandf. 434. 
 195. 5 2 Gray, 444. 
 
 of the purcliase, from an erroneous impression, that, by reason of their 
 youth — one being eleven, the other twelve years old — they would not be 
 allowed to testify ; held, a new trial, asked on the ground of newlj'-dis- 
 covered corroborative evidence, was properly refused. Bales v. State, 3 
 W. Ya. 685. A party is not entitled to a new trial on the ground of 
 newly-discovered evidence which is cumulative to testimony given by 
 himself. Fox v. Keyuolds. 24 lud. 46.
 
 504 THE LAW OF NEW TRIALS. [CIL XV. 
 
 to the iiaturo of the points, upon wliich new evidence is 
 or is not likely to be cuniulative. " A new witness to 
 character, credit, handwriting, dates, absences, violences, 
 and the like, might be found after half a dozen trials. It 
 ought to respect a new point — one that has come to light 
 since the trial, on which the party has never been heard — 
 such as the discovery of a release, or receipt for part pay- 
 ment, or some new ground of defence."' 
 
 § 16. In conformity with this distinction, a new trial 
 was refused on account of new evidence as to a date? 
 
 § 17. But although the rule, that a new trial will not 
 be granted on account of newly-discovered cumulative 
 evidence, is a rule that will be relaxed with great caution;' 
 yet it is said, " The court ought not to shut their eyes to 
 injustice on account of facility of abuse in cases of this 
 sort."Xa) And it is sometimes held, that they will not 
 refuse a new trial on the ground of newly-discovered evi- 
 dence, for the reason that such evidence is cumulative 
 merely, if it is sufficient to render clear that which before 
 was a doubtful case.^ Or in a nicely -balanced case."^ Or 
 if it is conclusive.'^ Or of such a character as yrimd facie 
 
 ' Den V. Wintermute, 1 Green, 305. See Porter v. The State, 2 
 
 177. Cart. 435. 
 
 2 Mitchell 1}. Printup, 25 Geo. ^ Gardner v. Mitchell, 6 Pick. 
 182. 116. 
 
 3 Jewin V. Morell, Dudley, Geo. ? Briggs v. Gleason, 1 Williams, 
 72. 114 ; Potter v. Padelford, 3 R. I. 
 
 < Gardner v. Mitchell, 6 Pick. 162 ; Watts v. Johnson, 4 Tex. 
 
 116. 311 ; Robinson v. Martel, 11 ib. 
 
 5 Barker v. French, 18 Verm. 149 ; Bixby v. State, 15 Ark. 395. 
 460 ; Waller v. Graves, 20 Conn. 
 
 (a) A new trial will not generally be granted on the ground of newly- 
 discovered cumulative evidence. Powell v. Jones, 42 Barb. 24; Edmis- 
 ton V. Garrison, 18 Wis. .594. Newly-discovered cumulative evidence 
 furnishes no ground for a new trial, unless it is of so controlling a cha- 
 racter that it would probably cliange the verdict. Windham v. Kendall, 
 7 R. I. 77 ; State v. O'Brien, ib. 336 ; Ileaton v. Manhattan, ib. 502 ; 
 Levitsky v. Johnson, 35 Cal. 41.
 
 CH. XV.] NEWLY-DISCOVERED EVIDENCE. 505 
 
 to raise a strong probability that it will be decisive of the 
 case.^ Thus, where the ground of defence to an action for 
 a libel, brought by A. against B., was, that the libellous 
 writing, after it was signed by B., and before publication, 
 was altered, by the insertion therein of material words, 
 without the knowledge or approbation of B. ; and C, who 
 drew up the writing, testified that the writing, as pub- 
 lished, did not contain the words in question ; and it was 
 afterwards discovered that D., without the knowledge or 
 consent of either B. or C, inserted those words : on a 
 petition for a new trial, brought by B., held, that the 
 testimony of D. was not cumulative.^ 
 
 § 18. A judgment, which would operate as an estoppel, 
 is not cumulative.^ So it is held sufiicient cause for a 
 new trial, that the successful party, after the verdict, 
 made an admission in respect to a fact material to the 
 issue, which, if proved, would probably produce a different 
 result.''(a) 
 
 § 19. ]^ewly-discovered evidence, which goes only to 
 impeach the credit or character of a witness, is not suffi- 
 cient ground for a new trial.^ Nor, it is said, certainly 
 
 1 Burr V. Palmer, 23 Vt. 3-44. s "VVriglit v. State, 34 Geo. 110 ; 
 See Snowman v. Wardwell, 33 Territory v. Lutsliaw, 1 Oreg. 146; 
 Maine, 375. Stoalies «. Monroe, 3G Cal. 383 ; 
 
 2 "Waller v. Graves, 30 Conn. Jaccard v. Davis, 43 Mis. 535 ; Bar- 
 305. rett v. Belsliee, 4 Bibb. 348 ; Mcln- 
 
 3 Lane v. Holliday, 27 Geo. 339. tire v. Young, 6 Blackf. 490 ; Deer 
 * Welch V. Nasboe, 8 Tex. 189 ; v. The State, 14 Mis. 348 ; Beard 
 
 Guyot V. Butts, 4 Wend. 579 ; j\[y- v. Simmons, 9 Geo. 4 ; Meakim v. 
 ers V. Brownell, 3 Aik. 407 ; Gard- Anderson, 11 Barb. 315 ; Harring- 
 ner v. Mitchell, 6 Pick. 114. tou'y.Bigelow, 3 Denio, 109; Brugli 
 
 (a) But, on the other hand, a new trial was granted, where a special 
 verdict had been rendered, founded upon certain admissions, which after- 
 wards appeared to have been made under a mistake of facts. Jackson 
 V. Cannon, 2 Cow. 615. Where a suit was brought against one of two 
 parties, both of whom were liable ; and a new trial was moved for, on 
 the ground of newly-discovered evidence that the plaintiff had casually 
 declared he should only look to the other party for payment : the motion 
 was denied. Dugan v. McDonald, 2 Tex. 355.
 
 506 THE LAW OF NEW TRIALS. [CH. XV. 
 
 except in rare cases, if tlic evidence is material only to 
 contradict witnesses sworn on the former trial.^ Especially 
 where their testimony operates unfavorably only by way 
 of inference, and when other evidence is very strong in 
 favor of the prevailing party. ^(rt) In a leading case upon 
 
 V. Shanks, 5 Leigh, 598 ; The State 201 ; Boggs v. Lynch, 23 Mis. 
 
 v. Henley, R. M. Charlt. 505 ; Den 563 ; 2 Denio, 109 ; Dickinson v. 
 
 V. Geiger, 4 Ilalst. 225 ; Fleming v. Solomons, 2G Geo. G84 ; Fleming 
 
 State, 11 Ind. 234 ; Duryee v. v. Ilollenback, 7 Barb. 271 ; Hal- 
 
 Dennison, 5 John. 248 ; Iluish v. sey v. Watson, 1 Gaines, 24. 
 Sheldon, Sayer, 27. ^ Tuttle v. Cooper, 5 Pick. 414, 
 
 1 Williams v. People, 45 Barb. 
 
 (a) A new trial may be granted, on account of newly-discovered evi- 
 dence to impeach a principal witness at the trial, when the applicant had 
 good reason to expect that such witness would testify, and did not use 
 proper diligence to ascertain his reputation for veracity. Tappin v. 
 Clarke, 32 Conn. 367. The court may refuse a new trial on the affidavit 
 of a party that a witness swore differently at a former trial, and that he 
 had since discovered that he could prove it. Judge v. Moore, 9 Flori. 
 269. Newly-discovered evidence, that one of the witnesses had pre- 
 viously to the trial stated, that J. (the losing party) had sworn falsely 
 against him, and he, the witness, " would pay him back in his own coin," 
 and that another witness had declared that J. was trying to get her 
 sister's (decedent of the winning party) property, and that she would 
 " stoop to anything to stop him ;" held insufficient therefor. Jackson v. 
 Sharpe's, 29 Ind. 167. The mere fact, that the verdict seriously damages 
 the character of the applicant — he having been called as a witness — by 
 contradicting his evidence, where it cannot be said to be against the 
 weight of evidence, is no sufficient ground for a new trial, though coupled 
 with new evidence tending to vindicate his character ; — no surprise being 
 shown. If the apparent alternative is, that either he must have 
 been guilty of perjury and forgery, or a servant of the plaintiff guilty 
 of embezzlement, and the verdict appears to point to the former conclu- 
 sion, and he shows the court that he has discovered evidence that the 
 servant was actually discharged for embezzlement ; that might be ground 
 for a new trial, although no technical " surprise" be shown. But, if the 
 fact thus stated be contradicted distinctly by the affidavit in answer, and 
 if, moreover, it be not satisfactorily shown how it was that the defendant 
 did not discover the supposed fact before the trial, it being of such a 
 nature that it might naturally and reasonaljly have been the subject of 
 inquiry on his part; the court will not grant a new trial. Lewis v. Truss- 
 ler, 25 Eng. Law and Eq. 422.
 
 CH. XV.] NEWLY-DISCOVERED EVIDENCE. 507 
 
 this point, the Superior Court liaving granted a new trial 
 for newly-discovered evidence to impeach an important 
 witness; a motion was made to the Supreme Court for a 
 mandamus^ on the ground that the court below had as- 
 sumed to exercise their discretion in opposition to a well- 
 settled rule of practice. An alternative mandamus was 
 granted; and, after a subsequent hearing upon demurrer, 
 was made peremptory.^ 
 
 § 20. So the defendant, in a criminal case, is not en- 
 titled to a new trial, on the ground of having discovered, 
 since the trial, that the witnesses for the State, who had 
 been for a long time subpoenaed, could be discredited, by 
 showing their reputation for veracity to be bad.^ So on 
 the trial of an indictment for obtaining goods by false 
 pretences, a book was produced in evidence, in which the 
 representations made by the defendant at the time of pro- 
 curing the goods were recorded, and, after conviction, the 
 counsel for the defence moved for a new trial, because 
 since the trial it had been discovered, upon the examina- 
 tion of the book, that the entry made therein of such 
 representations by the prosecutor, and sworn to by him as 
 having been entered at the time they were made, was, in 
 fact, entered many weeks after the making of such repre- 
 sentations, and because the jury were misled by such 
 statements of the prosecutor and the prosecuting officer, 
 in relation to the time of such entry. Held, that this 
 was no ground for a new trial.^ So where the new testi- 
 mony could only change the result, by destroying the 
 credit of two daughters of the prevailing party, and virtu- 
 ally declaring them guilty of conspiracy and perjury.* 
 
 § 21, Strong cases in illustration of this rule are, where 
 a witness had been asked if he was never burnt in the 
 
 ' The People v. Superior Court, 3 The Commonwealth v. Renish, 
 &c., 5 Wend. 114 ; 10 ib. 385. Thacher's Cnm. Cas. G84. 
 
 2 Herbert). The State, 7 Tex. 69. ^ Gardner v. Gardner, 3 Gray, 
 
 440.
 
 508 THE LAW OF NEW TRIALS. [CU. XV 
 
 hand for stealing a tankard ; to which he answered " no ;" 
 and a new trial was moved for upon producing the record 
 of conviction ; but the motion was overruled.^ So it was 
 held not to be ground for new trial, that since the trial a 
 Avitncss had declared, that "he would swear falsely in any 
 action for four pence half-pcnuj^ a time, and that he be- 
 lieved, when he should die, that he would perish like a 
 brute;" more especially as evidence had been offered at 
 the trial, which successfully discredited this witness.^ 
 
 § 22. And it is held that a new trial will not be granted, 
 for the confessions of a witness as to his own incompe- 
 tency.^ Though there are other cases to the contrary,* 
 especially if accompanied by a confession of the party.^ 
 
 § 23. The question often arises, in connection with a 
 charge of perjury against the witness whom it is designed 
 to impeach. A new trial was refused, where the principal 
 witness for the plaintiff had been subsequently indicted, 
 with the plaintiff and others, for a conspiracy to defraud 
 the defendants. In this case it was said : " 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."'' And it is held that the court will not set 
 aside a verdict obtained by perjury unless the witness has 
 been convicted of perjury, or has died since the trial, and 
 his conviction thus been rendered impossible.'^ So a rule 
 to stay execution, till after the trial of an indictment of 
 the plaintiff's witnesses for perjury, was discharged with 
 costs.^ So a petition to file a supplemental bill, because 
 
 ' Ford V. Tilly, 3 Salk. O.lf]. ^ Thurtell v. Beaumont, 1 Bing. 
 
 2 Hammond D. Wadliains, o Mass. 339. But see Fabrilius ». Cock, 3 
 353. Burr. 1771. 
 
 3 Waite's Case, 5 Mass. 2G1. ^ Dyche v. Patton, 3 Jones, Eq. 
 * Fabrilius v. Cock, 3 Burr. 1771 ; 333. 
 
 Lister v. Mundcll, 1 B. & P. 427; s Wanvick v. Bruce, 4 M. & S. 
 
 Chatfield v. Latlirop, 6 Pick. 417. 140. 
 
 '^ Chatfield v. Latlirop, 6 Pick. 
 417.
 
 CII. XV.] NEWLY-DISCOVERED EVIDENCE. 509 
 
 the defendant had on the plaintiff's testimony been in- 
 dicted and convicted for perjury, was dismissed.^ (Pro- 
 bably, however, the practice on this subject is much less 
 rigid than these cases would indicate.) 
 
 § 24. And a now trial will not be granted, to enable a 
 respondent to use the evidence of persons charged as 
 accomplices, who were acquitted on a joint trial. If no 
 material evidence is introduced by the prosecutor against 
 any particular one of the respondents, the course is to 
 move that the jury may pass on his case separately; and, 
 if he is acquitted, he may then be a witness as to the 
 others.^ 
 
 § 24a. But a new trial was ordered, on account of after- 
 discovered written evidence, which might have aiFected 
 the credit of a witness before the jury.^ And it is some- 
 times said, that, as a general rule, subject to a few excep- 
 tions, new trials are not granted for the impeachment of 
 witnesses.^ That a new trial is i-arely, if ever, granted on 
 account of newly-discovered evidence, if the only object 
 of the evidence be to impeach the character of a witness.' 
 But that cases may arise, so imperative, as to require the 
 interposition of the court to prevent a palpable wrong.^ 
 And, in 'New York, the general rule has been held inap- 
 plicable to questions of title to lands in the military tract; 
 upon the ground that the nature of the cases involves 
 peculiar obscurity and opportunity for fraud, and also 
 questions of identity.'^ 
 
 § 25. IN'ewly-discovered evidence, of hostility to the 
 defendant in a criminal action, on the part of a witness, 
 
 ' Bartlett v. Pickersgill, 4 E. 435 ; 16 111. 31G ; Thompson's 
 
 577, n. Case. 8 Gratt, 037. 
 
 ^ State V. Beau, 86 N. H. 132. s Bland v. The State, 2 Cart. (i08. 
 
 3 Durant v. Asbmore, 3 Rich. * Cochran «. Amnion, IG 111. 316. 
 
 184. ' Jackson v. Kinney, 14 John. 
 
 1 Porter v. The State, 3 Cart. 186 ; Jackson v. Hooker, 5 Cow. 
 
 207.
 
 510 THE LAW OF NEW TRIALS. [CH. XV. 
 
 whose testimony was used against the defendant at the 
 trial, is not a cause for a new triaL^ 
 
 § 26. It is no ground for a new trial, that a witness for 
 the party asking it, who had been excused from testifying 
 because his evidence miglit subject him to a penalty, has 
 promised to testify upon a new trial.' ISTor that a witness 
 was precluded from testifying by reason of interest, 
 although that interest has been removed.^ Nor that a 
 witness used expressions, after a trial, contradicting his 
 testimony.^ Nor that a man declares to a bystander, that 
 he knows more of the matter than all the witnesses ex- 
 amined, and then leaves the court before a subpoena can 
 be served on him.^ JSTor the voluntary withdrawal, during 
 the trial, of a witness who has been subpoenaed on behalf 
 of the State, but not examined, especially where his tes- 
 timony is not shown to be material for the defendant.^ 
 Nor an inadvertent omission by a witness to state all he 
 knows material to the case, on the motion of a party 
 having the privilege of cross-examination.^ So a new 
 trial will not be granted for newly-discovered evidence, 
 that the defendant can prove, by a witness who was ex- 
 amined on the trial, the payment of the note sued on.^ 
 Nor because a witness resident in another State was dis- 
 covered in the county too late to have him examined ; 
 unless it be shown that his deposition could not have been 
 taken.^ Nor upon an affidavit, that the affiant had sup- 
 posed the subscribing witness to a deed to be dead, and 
 discovered the contrary only during the trial ; no prepara- 
 tion having been made to prove the handwriting of the 
 
 ' The State v. Carr, 1 Fost. IGG. ^ The State v. Blennerhasset, 
 
 2 Lister v. Boker, G Blackf. 439. Walker, 7. 
 
 3 Franklin Bank v. Pratt, 31 ? Houston v. Smith, 3 S. & M. 
 Maine, 501. 597. 
 
 * The Commonwealth i'. Randall, * Wright v. Alexander, 11 S. & 
 
 Thacher's Crini. Cas. 500. M. 411. 
 
 5 Lester », Goode, 2 Murph. 37. ^ Couwell v. Anderson, 3 Cart. 
 
 123.
 
 en. XV.] NEWLY-DISCOVERED EVIDENCE. 511 
 
 witness.^ ]*^or, after a conviction for murder, upon the 
 prisoner's affidavit that A. was a material witness for 
 him ; that he was not summoned to attend the trial, be- 
 cause the prisoner was not then informed tliat he knew 
 anything relative to the affair ; and that he (the prisoner) 
 considered that the testimony of said witness would have 
 an important eflect on a subsequent trial of the cause.^ 
 
 § 27. But, where a witness, being called to prove a re- 
 ceipt a forgery, pronounced it genuine, but failed to dis- 
 close his knowledge of the fact that it was given for more 
 money than was received, supposing that he would not be 
 permitted to give such evidence; the court, on affidavit 
 to this efiect, granted a new trial, there being no con- 
 flicting testimony, and the plaintiflf being an adminis- 
 trator, without any personal knowledge of the matter.^ 
 And, where witnesses in question lived near the party, but 
 he did not know their testimony, and this evidence was 
 to new points, and there appeared to have been no neglect ; 
 a new trial was granted, on payment of costs of the first 
 suit.^ So, where, from the form of the indictment, the 
 defendant has been deprived of the testimony of a wit- 
 ness, vital to his defence, and whose evidence the result of 
 the trial proves him to be justly and legally entitled to, 
 the court will grant a new trial.® 
 
 § 28. A new trial will not be granted, because a witness, 
 who gave a loose estimate of an amount at the trial, has 
 since become satisfied that his estimate was large.^ Nor 
 on account of newly-discovered evidence, which is appli- 
 cable only to the mitigation of damages.^ Nor in case of 
 omission to assess mere nominal damag-es.^ 
 
 ' Bledsoe v. Doe, 4 How. Miss. ^ Com. v. Manson, 2 Ashm. 31. 
 
 13. 6 Carr v. Gale, 1 Curtis, 384. 
 
 ^ Bennett's Case, 8 Leigh, 7-45. ^ Schlencker v. Risley, 3 Scam. 
 
 3 Fitzgibbou v. Kinney, 3 Ear- 483 ; Ham v. Taylor, 22 Tex. 225. 
 
 ring. 72. ^ Jennings v. Loring, 5 Ind. 2.';0. 
 
 » Aiken v. Bemis, 3 W. & M. See Manix «. Malony, 7Clarke, 81. 
 348.
 
 512 THE LAW OF NEW TRIALS. [CIT. XV. 
 
 § 29. It is the general rule, that the newly-discovered 
 evidence must not relate to any matter of mere form. 
 Thus, after a conviction on an indictment for selling 
 spirituous liquors, &c., " without being duly licensed as an 
 inn-holder or common victualler," a new trial will not be 
 granted for the purpose of giving in evidence a license, 
 Avhich the defendant had omitted to produce, to sell fer- 
 raented liquor, and thus raise a question as to the mere form 
 of the indictment.^ The court remarked: "Where a con- 
 viction is manifestly right, on the facts and the law appli- 
 cable thereto, it would be a perversion of justice to allow 
 a defendant to avoid sentence by interj^osing a mere matter 
 of form, of which he might have availed himself at the 
 proper time."^ So the court refused to grant a new trial, 
 in a criminal case, on the ground of the newly-discovered 
 fact that the oflence was not committed within the 
 county.^ 
 
 § 30. A new trial was refused, for the purpose of intro- 
 ducing new evidence, in an action for slander, for charg- 
 ing the plaintiff with a crime, to prove the truth of the 
 charge, " merely to afford him an opportunity to prove 
 the plaintiff" a felon. Such an indulgence would not have 
 been granted to the people, if the party so charged had 
 been once tried and acquitted."* 
 
 § 31. In general, if courts below refuse a new trial on 
 the ground of newly-discovered evidence, such judgments 
 will not be reversed by the court above, unless it appear 
 clearly from such evidence, taken in connection with the 
 evidence introduced at the trial, that the right is with 
 the appellant. The inquirj' of the court above will be, 
 whether the refusal has involved the violation of a clear 
 legal right, or a manifest abuse of judicial discretion.* 
 
 ' Cora. «. Cburcliill, 2 Met. 118. * Beers v. Root, 9 John. 264. 
 
 2 Per Wilde, J., 2 Met. 126. ^ Abies v. Donley, 8 Tex. 331. 
 
 3 Henderson v. State, 12 Tex. See Blood v. Whitman, 3 Cliand. 
 525. 54.
 
 en. XV.] NEWLY-DISCOVERED EVIDENCE. 513 
 
 The application is usuajly confined to the sound discretion 
 of the court below, and the decision cannot be reviewed, 
 unless made upon principles of law, or upon facts brought 
 up in the record.^ 
 
 § 32. With reference to a motion of this nature made 
 in the appellate court, it has been held, in Vermont, that, 
 where a judgment was rendered in favor of the defendant, 
 on a demurrer to a plea of the statute of limitations, and 
 such judgment was affirmed, on exceptions, by the Su- 
 preme Court ; it was no ground for a new trial, that the 
 defendant, after the rendition of the final judgment, 
 promised to pay a part, or all, of the plaintiff's demand. - 
 So the Supreme Court will not sustain a petition for a new 
 trial, founded on the disclosure of facts, which should 
 have been presented to the county court as a reason for 
 rejecting the report of referees.^ So, where a case comes 
 to the Supreme Court on exceptions to the decision of the 
 county court, on questions of law; the Supreme Court 
 will not entertain a motion for a new trial, on the ground 
 of newly-discovered evidence.^ 
 
 § 83. In the same State, a petition to the Supreme Court 
 for a new trial, for the discovery of new evidence, must, 
 under the statute, be preferred, and the citation be served 
 on the adverse party, within two years from final judg- 
 ment in the county court; and, though the case may have 
 passed to the Supreme Court on exceptions, and the cita- 
 tions be served within two years from the time the judg- 
 ment was affirmed in that court, it is not sufficient, if it 
 exceed two years from the time of judgment in the county 
 court. And the right of the petitioner to insist upon the 
 dismissal of the petition for such defect is not waived, 
 
 ' Warren v. The State, 1 Iowa, 3 Fuller v. Wrii^ht, 10 Verm. 512. 
 
 lOG. ^ Minkler v. Miukler, 1-4 Verm. 
 
 2 Ferris v. Barlow, 10 Verm. 133. 558. 
 
 33
 
 514 TUE LAW OF NEW TRIALS. [CIL XV. 
 
 though his motion he not filed at the term when the peti- 
 tion is entered.^ 
 
 § 34. Where in a criminal case the judge a quo refuses 
 an application for a new trial, hased on the ground of 
 newly-discovered testimony and the failure of the sherilf 
 to summon witnesses, stating that he dishelieves the affi- 
 davit of the accused ; the refusal cannot on appeal be 
 assigned as error.- 
 
 § 35. With reference to the form of application, and 
 the nature of the evidence, requisite for obtaining a new 
 trial on the ground of newly-discovered evidence; the 
 usual practice requires, that the party file his own affi- 
 davit, stating that he has since the trial, and without 
 previous neglect, discovered material testimony going to 
 the merits of the case, and giving the names of the wit- 
 nesses ; and also the affidavit of the witnesses, setting 
 forth the facts they will swear to on the trial ; unless it 
 be shown that the latter cannot be obtained.^ It is not 
 sufficient for the applicant to state that he did not know 
 of the testimony in time to produce it for the trial ; it 
 must appear that he could not have ascertained it by 
 reasonable diligence.^ Thus, in an indictment for larceny, 
 the mere affidavit of a third person, that the prosecutor 
 had declared that there was in existence a bill of sale of the 
 property, tending to establish title in the prisoner, is not 
 sufficient ground for a new trial, without the affidavit of 
 the prisoner, alleging sufficient reason why the bill of sale 
 
 ' Mower v. Warner, IG Verm. 465 ; Silkmau v. Boif];er, 4 E. D. 
 
 495. Smith, 2;)G ; Giles v. The State, G 
 
 2 State V. Rollaml, 14 La. An. Geo. 270 ; Warren v. The State, 1 
 40. Iowa (Greene), JOG; Rulou v. Lin- 
 
 3 Blood V. Whitman, 3 Chand. tol, 2 IIow. Miss. 891. 
 
 54 ; Kane v. Burrus, 2 Sm. & M. » Pleasant v. The State, 8 Eng. 
 
 313. See Reed t. Staton, 3 Ilavw. 3G0; Cozart «. Lisle, 1 Meigs, 65 ; 
 
 159; Slone t. Slone, 2 Met. \ly. Madden v. Shapard, 3 Tex. 49; 
 
 339 ; McDauiel «. Grimes, 12 Ind. Suggs «. Anderson, 12 Geo. 461.
 
 CH. XV.] NEWLY-DISCOVERED EVIDENCE. 515 
 
 was not produced on the trial, and an expectation that it 
 would be procured at a subsequent trial.' 
 
 § 36. When a new trial is asked for on the ground of 
 newly-discovered evidence, the bill of exceptions, motion, 
 or other application, must set forth the testimony which 
 was submitted to the jury, so as to enable the court to 
 judge whether the result would be altered by the admis- 
 sion of such new testimony.^ The party must also state 
 fully, what the newly-discovered evidence is, by whom it 
 was discovered, the probability of procuring it in time, 
 and what diligence he has used in the preparation of his 
 case, that the court may be enabled to form their own 
 opinion on the foct.^ And the truth of the application 
 must be fully established.^ 
 
 § 37. As already suggested, the rule is well settled, that 
 the affidavit of the witness as well as the party will be 
 required.^ If it can possibly be procured.^ Or else a 
 satisfactory reason for its non-production must be given.^ 
 And the uewly-discovered evidence, if written, ought to 
 be produced.^ On the other hand, the affidavits of the 
 attorney and the witness are held insufficient without that 
 of the party.''(a) 
 
 ' F;iiar«.TlieState,3How. Miss. 194; Caldwell «. Dickson, 29 Mis. 
 
 422. 227 ; Deuu v. Morrcll, 1 Hall. 383 ; 
 
 2 Turnley v. Evans, 3 Humph. Shephard v. Shepliard, 5 Halst. 
 222 ; Simpson v. Wilson, 6 Ind. 250 ; Myers v. Brownell, 2 Aik. 
 474. 407 ; Scranton v. Tilley, IG Tex. 
 
 3 Bourland «. Skinner, 6 Eng. 183. 
 
 G71 ; Gilberts. Woodbury, 9 Sliep. ^ Manix v. Malony. 7 Clarke, 81. 
 
 246; Perry v. Cochran, 1 Cal. 180; See Humphries ». Marshall, 12 Ind. 
 
 Madden v. Shapard, 3 Tex. 49. See 609. 
 
 Millaudon v. First Municipality, 1 ^ Suggs v. Anderson, 12 Geo. 
 
 La. Ann. 214. 461 ; Welsh v. State, 11 Tex. 3G8. 
 
 4 Hinds V. Terry, Walker, 80 ; 8 Edrington v. Kiger, 4 Tex. 89. 
 Harbour v. Rayburn, 7 Yerg. 432 ; ^ State v. McLaughlin, 27 Mis. 
 Mclntire v. Young, G Blackf. 496. Ill ; Glascock v. Manor, 4 Tex. 7. 
 
 5 Jenny, etc. v. B'ower, 11 Cal. 
 
 («) Where two of the defendant's witnesses, being present when the 
 trial coninienccd, disappeared without leave or notice, and the party, in
 
 516 THE LAW OF NEW TRIALS. [CH. XV. 
 
 § 38. AVith reference to the form of the party's affidavit ; 
 it is held that the names of the new witnesses must be 
 o-iven.^ That the new evidence must be shown to be im- 
 portant, and must, therefore, be disclosed.^ It must also 
 appear by the affidavit, that tlie new evidence is not de- 
 signed to explain or contradict former testimony .^ The 
 affidavit must allege discovery of the evidence, and what 
 it will iJrove.-* And must show that there has been no 
 laches.^ 
 
 § 39. It is said, "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 
 contirm under oath."'' Thus a new trial will not be 
 granted, upon affidavit of the party's agent, that since the 
 trial he had been informed by a person of certain facts, 
 supposed to be material, in regard to which the agent had 
 sought for information before the trial; and that the 
 agent had also learned, since the trial, that certain persons 
 named were present at the occurrence which was the 
 
 ' Eichardson v. Backus, 1 John. ■» Sarah v. State, 28 Geo. 570. 
 
 r)d. ^ Mayos v. Deaver, 1 Clarke, 216. 
 
 2 McCombs V. Chandler, 5 Har- ^ Per Ford, J., Shephard «. Shep- 
 
 ring. 423. hard, 5 Ilalst. 250. 
 
 3'^ Smith V. Woodfinc, 1 C. B. (N. 
 S.) 660. 
 
 support of a motion for a new trial, filed, the next day, his own affidavit, 
 and that of another, of the fact; held, his affidavit ought to have been 
 accompanied by the affidavit of the witnesses, showing the facts to which 
 they would testify; and it ought to have stated that the defendant 
 could not prove the same facts by other testimony; and, if the affidavits 
 of the absent witnesses could not be procured, that fact should be 
 stated. Cotton v. State, 4 Tex. 260. The ground of a motion for a 
 new trial, on account of newly-discovered evidence, is not sufficiently 
 verified by an affidavit of the defendant, that he has been told by A., 
 that A. had been told by B., that B. had heard a saying of C, which 
 saying constitutes the newly-discovered evidence. White v. Wallen, 17 
 Geo. 106.
 
 on. XV.] NEWLY-DISCOVERED EVIDENCE. 517 
 
 foundation of tlio suit, but had not seen those persons to 
 ascertain what they would tcstify.'(rt) 
 
 • Wheeler v. Troy, 20 N. II. 77. 
 
 (a) The allegation of newly-discovered evidence must be supported 
 by affidavit. Leonard v. Schuler, 34 Mis. 475. The affidavit of the 
 witness that he had not communicated the facts to the party till after the 
 trial, and his own affidavit, that the facts were unknown to him until 
 after the jury retired. Bronson v. Green, 2 Duv. 234; 35 Yerm. 452. 
 The affidavit must show diligence, to discover the testimony, &c., before 
 the trial, the facts that can be proved, and the names of the witnesses. 
 Snider v. Myers, 3 W. Va. 195. It is not sufficient for the party to state 
 in his affidavit what, as he has learned, certain persons will testify. Un- 
 less some satisfactory reason to the contrary is given, he must produce 
 their affidavits as to what they will testify. Arnold v. Skaggs, 35 Cal. 
 684 ; 18 Wis. 295. Upon a motion, under ? 3G40 of the (Ga.) Code, the 
 applicant did not state the residence of the witness on whom he relied 
 and whose affidavit he produced, nor that he expected, or had reason 
 to expect, the benefit of the witness's testimony at a future trial, or that 
 the witness was within reach of process of the court. Held, no ground 
 for refusing the motion. Mann v. State, 34 Geo. 1. A petition for a new 
 trial in respect to the specific sum decreed to the petitioner instead of 
 alimony, on the ground of the discovery of new evidence, must state 
 under oath the names of the witnesses and what each is expected to tes- 
 tify, and allege that the parties have not cohabited since the trial, and 
 that neither of them has contracted a new marriage. Merrill v. Shat- 
 tuck, 55 Maine, 374. Where the affidavit for a new trial stated, that 
 the newly-discovered witness was absent from the State in which both he 
 and the party resided, and that the latter was unable to find him or pro- 
 cure his affidavit, and also stated important facts to which the witness 
 was expected to testify ; held, it was not an abuse of discretion to grant 
 a new trial. Smith v. Gushing, 18 Wis. 295. In the absence of a state- 
 ment of facts, the reviewing court will not consider the judgment of the 
 court below, overruling a motion for a new trial on the ground of newlj-- 
 discovered evidence. Thompson v. Callisou, 27 Tex. 438. In Indiana, 
 a complaint for a new trial on the ground of newly-discovered evidence 
 must set out the evidence given on the former trial. Freeman i\ Bow- 
 man, 25 Ind. 236. The application, when made after judgment, and at 
 a subsequent term of the court, must set out the evidence given at the 
 trial, together with the newly-discovered evidence. Huntington v. Drake, 
 24 Ind. 347. The Supreme Court will not grant a new trial, where the 
 evidence given on the trial is not in the record, as it cannot know how
 
 518 THE LAW OF NEW TRIALS. [CH. XV. 
 
 § 40. It is regarded as essential to tlie success of a mo- 
 tion for new trial upon this ground, that the testimony 
 will, in the opinion of the court, substantially change the 
 verdict.^ More especially if the motion is uncorroborated 
 by the affidavit of any disinterested person.^ Or, as it is 
 sometimes expressed, the new evidence must be material, 
 and of a decisive character, and such as to induce belief 
 that injustice has been done.^ 
 
 1 Kiby V. Watcrford, 14 Vt. 414; Tidwell, 10 Geo. 33 ; Snowman v. 
 
 IC Geo. 83 ; Glover v. Woolsey, Wardwell, 33 Maine, 27o. 
 
 Dudley (Geo.), 85; Middletown 2 Bixby ^i. State, 15 Ark. 395. 
 
 1). Adams, 13 Verm. 285; Willard " Mcehanics', &c. v. Nichols, 1 
 
 V. Sino;er, 2 Greene, 144; Barrett Harr. 410; Avery ?;. State, 26 Geo. 
 
 «. Belshee, 4 Bibb, 848 ; Carlisle v. 233 ; State v. Burge, 7 Clarke, 255. 
 
 far the new evidence is merely cumulative. Cowden v. Wade, 23 Ind. 
 471. A party must set forth in his bill of exceptions the testimony which 
 was submitted below, so as to enable the court to determine whether the 
 result would be changed by the new testimony, or whether the testimony 
 would be merely cumulative. Ruddick v. Ruddick, 21 Ind. 163. Where 
 an application fur a new trial is made after the term, there must be 
 brought to the knowledge of the court, by affidavits or otherwise, the 
 issues in the cause, the evidence adduced upon a former trial, and the 
 newly-discovered evidence. The application must be made by a com- 
 plaint, which should show, on its face, a cause for a new trial. Pattison 
 V. Wilson, 22 Ind. 358. The rule, that, where a new trial is a]>plied for 
 after the term, the evidence given on the trial must be substantially set 
 forth, does iu>t apply necessarily, where the new trial is applied for on 
 other grounds. House v. AVright, 22 Ind. 383. In Texas, newly-dis- 
 covered evidence should be set out verbatim, just as it can be testified 
 to in court, and be subscribed and sworn to by each of the newly-dis- 
 covered witnesses, or, at least, a satisfactory excuse should be shown for 
 the omission or absence of the affidavit. Burnley v. Rice, 21 Tex. 171. 
 In Vermont, a petition need not be accompanied by the certificate of the 
 presiding judge, to a statement of the former trial, or by the evidence 
 given at such trial. I'he petition must set forth the history of the former 
 trial fully enough to show the applicability and effect of the ucwly-dis- 
 covered evidence, and a statement of that evidence, to which must be 
 attached the affidavit of the party that the evidence is newly discovered, 
 and also the affidavits of the witnesses of what they will testify. Bradish 
 V. State, 3.0 Verm. 4.o2. If there is a doubt as to the evidence being 
 newly discovered, the court should allow the rule nisi, so as to give time 
 for an additional afiidavit. Sharnuin v. Morton, 31 Geo. 34.
 
 en. XV.] NEWLY-DISCOVERED EVIDENCE. 519 
 
 § 40a. A new trial will not be granted, unless the new 
 evidence will do some good.^ (See chap. 3.) The question 
 is not, "whether a jury might bo induced to give a 
 dift'erent verdict; but whether the legitimate effect of 
 such evidence would be to require a different verdict."^ 
 It is not enough that a party has discovered evidence 
 which would strengthen his case, if such evidence cither 
 could not or ought not to induce the jury to find a different 
 result.^ Thus, upon an indictment for obtaining property 
 by false pretences, it is no ground for a new trial, that the 
 defendant expects to prove by newly-discovered evidence 
 what he had done with the property or its proceeds, which 
 he had not done at the former trial.' So, upon a convic- 
 tion for manslaughter, a new trial cannot be granted on 
 account of newly-discovered evidence, to the effect that 
 the deceased bought a pistol, declaring it to be for the 
 purpose of killing the prisoner. This being some weeks 
 before the killing, and there being no evidence of notice 
 to the prisoner of the threats, it cannot be presumed that 
 he acted under their influence in slaying the deceased.^ 
 
 § 41. Partly for the reason, that the result of another 
 trial may or ought to be different from that of the former 
 one, it must also be shown, that the new evidence comes 
 from a source entitled to credit." It will be insufficient, 
 if shown to be unworthy of credit by facts proved there- 
 in.^ And, on a motion for a new trial on this ground, 
 evidence of the credibility of the witness is admissible.^ 
 Thus the defendant claimed the horse, which was the 
 subject of an action of trover, by a sale from the plaintiff' 
 through his agent. The only important inquiry on the 
 
 ' Simpkina v. Wilson, 11 Ind. ^ Macy v. DeWolf, 3 W. & M. 
 
 541. 193. 
 
 2 Lessee, &c. v. Park, 4 Ham. 5. ' Jernigan v. Waiuor, 13 Tex. 
 
 3 Fleet V. Hollenkam, 13 B. Mon. 180. 
 
 219. 8 Parker v. Hardy, 24 Pick. 246 ; 
 
 t Com. V. Benisli, Thaclier's Pomcroy v. Colnmbiau, &c., 2 
 
 Crim. Cas. 084. Gainos,2G0; Williams v. Baldwin, 
 
 5 Carr v. The State, 14 Geo. 358. 18 John. 4S9.
 
 520 THE LAW OF NEW TRIALS. [CE. XV. 
 
 trial was, whether the alleged agent had any authority. 
 After a verdict for the plaintiff, the defendant moved for 
 a new trial, founding his motion upon the deposition of 
 one Mallon, who testified that the plaintiff told him that 
 he had authorized Smart (the agent) to sell the horse. 
 At the hearing on the motion, the plaintiff offered depo- 
 sitions to prove that Mallon's reputation for veracity was 
 bad. It was held that such depositions w^ere admissible, 
 although such a practice was novel in Massachusetts, and, 
 as they established the point sought to be proved, the 
 motion for a new trial w\as overruled. Morton, J., says: 
 "We are not bound to grant a new^ trial, merely because 
 an individual will swear to some new fact. We must 
 judge of the importance of the fact, and whether, in con- 
 nection with the evidence already introduced, it will be 
 likely to affect the final result. And why should we not 
 also inquire into the credibility of the new witness? The 
 additional labor should be no objection, if it tend to pro- 
 mote justice. Neither the party nor the witness can 
 reasonably complain of a collateral attack on the wit- 
 ness's character, which they are not prepared to repel. 
 Both are in the same situation as if it were a trial on the 
 merits, and have equal opportunity and are equally bound 
 to be prepared to encounter any competent evidence."^ So 
 the incompetency of the evidence is a fatal objection to 
 the motion.^ 
 
 § 42. It is no ground of new trial, that a person told 
 the defendant's attorney of a certain fact ; more especially 
 in a case where such person would not bo obliged to tes- 
 tify to the fact, because he would thereby criminate him- 
 self. As, in a case of seduction, declarations of having 
 had criminal intercourse with the plaintiffs daughter, 
 who testified against the defendant.^ 
 
 ' Parker w. Hardy, 24 Pick. ^ Shumway v. Fowler, 4 John. 
 24G-9. 425. 
 
 - Ilolman v. The State, 8 Eng. 
 lO.j.
 
 CH. XVI.] 
 
 SURPRISE. 
 
 521 
 
 CHAPTER XVI. 
 
 SURPRISE. 
 
 1. General rule. 
 
 2S. 
 
 Absence, &c., of witness. 
 
 2. In criminal cases. 
 
 35. 
 
 Testimony given or omitted. 
 
 4. Second motion for new trial. 
 
 44. 
 
 Want of preparation. 
 
 5. Discretion — court above. 
 
 45. 
 
 Rejection or admission of 
 
 5a. For cause arising after ver- 
 
 evidence. 
 
 dict. 
 
 40. 
 
 Credibility of witness. 
 
 6. Justice done. 
 
 48. 
 
 Misconduct of, or tampering 
 
 7. Laches. 
 
 with, 
 
 witness. 
 
 8. Terms. 
 
 49. 
 
 Papers. 
 
 9. Concurrent with other 
 
 50. 
 
 Pleadings. 
 
 grounds. 
 
 51. 
 
 Perj ury. 
 
 10. Threats, &c., preventing a 
 
 53, 
 
 59. "Nonsuit. 
 
 defence. 
 
 53. 
 
 Absence, &c., of counsel. 
 
 11. Mistake of law. 
 
 60. 
 
 Delay, withdrawing juror. 
 
 13. Ignorance of fact. 
 
 61. 
 
 Defliult. 
 
 14. Sickness. 
 
 62. 
 
 Waiver. 
 
 15. Absence of party. 
 
 66. 
 
 Depositions, &c. 
 
 16. Erroneous notice for trial. 
 
 68. 
 
 Affidavits. 
 
 24. Premature trial. 
 
 73. 
 
 Delay in motion. 
 
 § 1. Another ground of new trial is surprise. The 
 general rule is laid down, that, when a party or his counsel 
 is taken by surprise, on a material point or circumstance 
 which could not have been anticipated, and when want 
 of skill, care, or attention cannot be justly imputed, and 
 injustice has been done, a new trial should be granted. 
 But this rests in the sound discretion of the court.^(rt) 
 
 ' Dorr V. Watson, 28 Miss. 383. Com. B. N. S. 659 ; Cooper v. 
 But see Cummins v. Walden, 4 Lloyd, 6 Com. B., J. Scott, N. S. 
 Blackf. 307; Smith v. Woodfine, 1 518. 
 
 (a) Where there is no surprise, and no miscarriage oa the part of 
 judge or jury, the special circumstances on which a court will grant a 
 new trial must be very strong. Lewis v. Trussler, 25 Eng. L. and Eq. 
 422. Mere surprise at the result of a trial is no ground of a new trial. 
 Lane v. Brown, 22 Ind. 239. It is necessary to show surprise, in a matter
 
 OSJ. 
 
 THE LAW OF NEW TRIALS. [CH. XVI. 
 
 And they will not relieve a party from the consequences 
 of mere ignorance, inadvertence, or neglect.^ 
 
 § 2. Surprise may be good ground for a new trial in 
 criminal, as in civil cases.-(«) 
 
 § 3. If a prisoner, without fault, has failed of a full and 
 im[)artial trial, a new one may be had though there was 
 no error of law. Thus a new trial was granted, where 
 the defendant had applied for and had good ground to 
 expect a change of venue, which was not granted ; one 
 material witness would not attend, and rather than wait 
 for compulsory process the State admitted what it was 
 understood he would testify to ; the prisoner's principal 
 counsel left him at the last moment, and the new one 
 appointed by the court had no time to prepare the case, 
 the prisoner being so sick as to be mentally incapable of 
 aftbrding him the needed information ; and the witness, 
 on whose evidence the whole defence rested, turned against 
 
 ' Rolfe V. Rolfe, 10 Geo. 143. ^ Regina v. Whiteliouse, 18 Eng. 
 
 Law and Eq. 105. 
 
 material to the issue, and that it produced injury ; that it was not the 
 consequence of neglect or inattention on the part of the party surprised, 
 and that he used all reasonable efforts to overcome the evidence which 
 worked the surprise, or that it was not within his power to do so by the 
 employment of reasonable diligence. Chicago v. Vosburgh, 45 111. 311. 
 In a late case— Gray v. Singerley, Leg. Intell.— Hare, P. J., says: "The 
 application for a new trial will be found, on examination, to rest on the 
 single ground that the defendant would be able to present his case in u, 
 more satisfactory manner if the cause wore tried again. I need hardly 
 say that this reason is not sufQcient under any principle which prevails 
 with regard to new trials. The rule that a party must come prepared 
 before the jury, and cannot claim another hearing to remedy any defi- 
 ciency that might have been avoided, may work hardly in particular in- 
 stances, but in the long run is of inestimable value in preventing the 
 delay that may be nearly equivalent to a denial of justice." 
 
 [a) A motion will be denied, when the affidavit does not show that the 
 testimony of the witness objected to was not true, or that it could be 
 obviated by other evidence. People v. Jocelyn, 29 Cal. 4G2.
 
 en. XVI.] SURPRISE. 523 
 
 him at the trial.* But it is held that a new trial in a 
 criminal case ought not to be granted on the ground of 
 surprise, upon the unsupported affidavit of the prisoner.^ 
 
 § 4. "Where a verdict has been set aside for surprise, and 
 a new trial is had on the merits, and a verdict found the 
 other way ; a new trial will not be granted except for the 
 most controlling reasons.^ 
 
 § 5. Motions for new trial, on the ground of surprise, 
 are addressed to the sound discretion of the court, and the 
 j udgment of the court below is not to be overruled, unless 
 clearly wroug.''(«) 
 
 § ba. Surprise, arising after verdict, is not ground for a 
 a new trial.^ 
 
 1 TniloclvB. State,! Clark (Iowa), ' Mason v. Bascom, 3 B. Mon. 
 
 515. 269. 
 
 ^ Jordan v. The State, 10 Tex. * Coker v. State, 20 Ark. 53. 
 
 479. 5 People v. Mack, 2 Parker, 673. 
 
 (a) In North Carolina, new trials for surprise can only be granted by 
 the superior courts, and the refusal to grant one cannot be examined on 
 appeal. Liudsey v. Lee, 1 Dev. 464. A motion for a new trial on the 
 ground of surprise, which consisted in a mere misapprehension of the law 
 in regard to the burden of proof, is for the sound discretion of the court, 
 and its action is not the subject of review. Ferguson v. Gilbert, 16 Ohio 
 St. 88. The Supreme Court will not interfere unless there was clear 
 abuse of discretion. Nooney v. Mahoney, 30 Cal. 226. An order, denying 
 a new trial for refusal of a continuance on account of absence of witnesses, 
 will not be reversed, where a counter affidavit was filed, to show that the 
 application for a continuance was not made in good faith, and where, on 
 the motion for a new trial, the affidavits of the absent witnesses were not 
 produced, to show that they could testify to the facts desired to be proved 
 by them. People v. De Laccy, 28 Cal. 580; People v. Jocelyn. 29 Cal. 
 562. Motions for a new trial on the ground of surprise arc addressed to 
 the sound discretion of the court ; but, when surprise is clearly shown, 
 resulting from no fault of the appellant, and he has been injured thereby, 
 the Supreme Court will reverse the judgment. Todd v. State, 25 Ind. 212.
 
 524 THE LAW OF NEW TRIALS. [CIL XVI. 
 
 § 6. As in other cases, where justice is done, a new trial 
 will not be granted for surprise.^ (See chap. 3.) Or if the 
 evidence justified the verdict, and there have been no 
 apparent errors of law or tact tending to the defendant's 
 })rojudice.^ Thus a defendant must not only show a sur- 
 prise which ordinary prudence could have guarded against, 
 but a valid defence to some material part of the cause of 
 action." The party must show injury, and also what 
 evidence would be proper upon a new trial.'* 
 
 § 7. A new trial will not be granted on this ground in 
 equity, where the party has neglected to make a season- 
 able application at law.' 
 
 § 8. "With regard to the terms of granting a new trial 
 for this cause ; it has been sometimes held, that, where 
 the defence does not go to the merits, the money must 
 be brouo;ht into court.^ 
 
 § 9. Surprise, misdirection, and newly-discovered evi- 
 dence are sometimes concurrent grounds for granting a 
 new trial. As in an action upon a policy of insurance, to 
 which the defence was set up, that the premises were 
 wilfully burned by the plaintifl'. The judge instructed 
 the jury, that the same evidence was requisite as upon an 
 indictment of the plaintifl*. And it further appeared that 
 the claim had been supported by gross fraud, the circum- 
 stances of which were discovered after the trial."(«) 
 
 ' Wits V. Polchampton, 2 Salk. < Blake v. llowc. 1 Aik. 806. 
 
 G47; Robbins v. Alton, &c., 12 '^ Bateman v. AVilloe, 1 Sch. & 
 
 Mis. 380. See chap. 3. Let'. 201. 
 
 2 Orthing v. Guiidersheimer, 12 ^ D. Agnilarc. Tobin, 2Mar. 265. 
 Fla. 640. ' ' Thurtell v. Beaumont, 1 Bing. 
 
 3 Cook v. De La Gucrra, 24 Cal. 339. 
 237. 
 
 (a) AVherc the plaintiff was unable to furnish certain evidence on the 
 trial which he subsequently discovered or deemed to be material ; held, 
 not a legal surprise. The surprise must consist of something which takes
 
 en. XVI.] SURPRISE. ' 5-') 
 
 § 10. A now trial wiis refused, wlieii moved for upon 
 the ground that the plaintiff, in an action for crim. con., 
 had by his violent conduct to the defendant prevented 
 him from making defence. It was alleged that the }»lain- 
 tifl" followed the defendant to France, thence back to 
 England, and thence to Brussels ; that he instituted a 
 criminal prosecution against him, upon which he was 
 imprisoned for six months ; and repeatedly challenged 
 him. The motion was overruled, in consideration of the 
 aggravated nature of the case, and because the defendant, 
 though imprisoned, had ample time to consult with his 
 attorney.^ 
 
 § 11. A new trial will not be granted on the ground of 
 surprise, when owing to a misapprehension of the law 
 applicable to the case.^ Or a mistake of the party as to 
 the nature of his case.^ ISTor upon petition, because the 
 court below ruled the law diflerently from what the party 
 
 ' Masters v. Barnwell, 7 Bing. 536 ; Ilite v. Lenhart, 7 Mis. 23 ; 
 324, u. Law v. Law, 3 Giatt. 36G. 
 
 2 Philips V. Wheeler, 10 Tex. ^ Robbius v. Alton, &c., 13 Mis. 
 
 380. • 
 
 place at the trial. Oakley v. Sears, 7 Rob. 111. A party is not entitled 
 to a new trial under (Iowa) Rev. 1860, §§ 3112, 3116, unless he shows 
 that he was surprised, prejudiced by the judgment, and that he has 
 material evidence which he could not, with the exercise of reasonable 
 diligence, have discovered before the term at which the judgment was 
 rendered, and that such evidence has been discovered since. Richards v. 
 Nuckolls, 19 Iowa, 5.55. AVhere, in a suit on a note, the defendant testified 
 to payment, with time, place, and circumstances, and the plaintiff was 
 never apprised of these particulars, and had uo time, after the evidence 
 was given, to inspect his books, or hunt up evidence to meet the facts 
 testified to, and only introduced evidence to deny payment generally; and 
 has found three witnesses since the trial, whose recollections have been 
 refreshed by an examination of the books, and who can testify as to what 
 did take place at the time and place of the alleged payment, in disproval 
 of the defendant's testimony : the plaintiff" is entitled to a new trial on the 
 ground of surprise, and newly-discovered evidence. Parshall v. Kliuck. 
 43 Barb. 203.
 
 526 THE LAW OF KEW TEIALS. [CII. XVI. 
 
 expected, and that ruling was affirmed by the court al)ove.^ 
 But a new trial was granted in case of surprise by relying 
 on a reported case.-(rt) 
 
 § 12. More especially, surprise founded on mistake in 
 law cannot be a ground for a new trial, where it arose 
 solely from the negligence of the party moving. As where 
 the affidavits do not show that he had, but rather lead to 
 the inference that he had not, disclosed all the facts to 
 his counsel, and that the defence was conducted by the 
 counsel in ignorance of some material facts, and therefore 
 
 ' Morgan w. Houston, 25 Yt. 570; = starkweather «. Loomis, 2 
 Fuller V. llutchiugs, 10 Cal. 523. Verm. 573. 
 
 (a) Where the mistake was one not resulting from fortuitous circum- 
 stances, but from an error of judgment or misapprehension on the part of 
 counsel as to some point involved in the proceedings ; a new trial was 
 denied. Heath v. Marshall, 4G N. H. 40. So where the defendant made 
 application for a continuance, for certain reasons stated in an affidavit, 
 and the plaintiff elected to go to trial, and admitted the facts stated in 
 the afifidavit, and at the second trial the defendant offered this admission 
 in evidence, and it was excluded. Kitchen v. Eeinsky, 42 Mis. 427. 
 After an opinion of the Supreme Court had negatived the liability of B., 
 one of several joint defendants, the court below, without notice to B., 
 and in his absence, permitted an amendment of the complaint, so that the 
 action could be prosecuted against him alone, and proceeded to trial. 
 Held, he was entitled to a new trial on the ground of surprise. Keller v. 
 Blasdel, 2 Nev. 162. A defence to an action of trespass, brought by an 
 administrator, having failed, owing to the incompetency of the defendant 
 to testify to the execution by the plaintifi"'s intestate of a mortgage, 
 accidentally destroyed by fire, to which the defendant was a subscribing 
 witness ; a motion for a new trial was made, supported by an affidavit of 
 a son of the intestate, that he had examined the mortgage, and knew his 
 father's signature to it was genuine, and by the affidavit of the defendant, 
 that he did not discover that the intestate's son knew of the above fact 
 until after the trial, and that the other subscribing witness to the mort- 
 gage was not called at the trial, because he had stated that he could not 
 sufBciently recollect the transaction. Held, a new trial should have been 
 granted. Knox v. Bigelow, 1.5 Wis. 415.
 
 en. XVI.] SURPRISE. 527 
 
 not on the proper grounds.^ But where the court and 
 the parties acted, at a previous stage of the proceedings, 
 on a supposed state of the law which would exclude 
 certain depositions ; it was held that their suhsequent 
 reception was such a surprise, as would justify a new 
 trial.2 
 
 § 13. Ignorance of a party, or of his attorney, of the 
 state of the case, is no ground for a new trial.' Thus a 
 new trial will not be granted of an issue on a garnishee's 
 answer, because the garnishee believed he had been dis- 
 charged on his answer, and therefore did not prepare for 
 the issue.* But where by law a verdict may be taken 
 after the death of a sole plaintiff', happening on the first 
 day of the circuit; and in such case the defendant, be- 
 lieving that the suit had abated, refused to appear : on 
 producing an affidavit of merits, a new trial was ordered 
 on terms.^ So a new trial was granted, where it was dis- 
 covered that a conveyance was made by a man and his 
 daughter, who upon the trial had been considered as his 
 wife.^(a) 
 
 § 14. A new trial was granted, where a motion for 
 postponement was made for the absence of a witness, but 
 one of the defendants, when the cause was called on for 
 trial and the motion made, lay sick in Philadelphia, and 
 
 ' People V. O'Brien, 4 Parker, ' O'Brien v. Liddcll, 10 S. & M. 
 
 203. 371. 
 
 2 Morrow v, Ilatfield, G Humph. ^ Broas v. Merscreau, 18 Wend. 
 108. 653. 
 
 3 Legrand V. Baker, 6 Monr. 235. s Daniel v. Eose, 1 N. & M'C. 
 
 33. 
 
 (a) The fact, that a defendant had forgotten at the trial, that before 
 suit brought he had, through his attorney, tendered a certain sum in 
 satisfaction of his claim, which was refused, and which was less than the 
 verdict, is no ground for a rehearing after final judgment, on the ground 
 of accident or surprise, uuder § 2408 of the (Ala.) Code. Alliugton v. 
 Tucker, 38 Ala. G55.
 
 528 THE LAW OF KEW TRIALS. [CII. XVI. 
 
 the other was unable to attend court, and each was 
 io-noraut of the other's situation, and consequently the 
 requisite proof was not furnished in reference to the 
 witness.\rt) So a new trial Avas granted, where the plain- 
 tiii' was prevented from attending by his daughter's being 
 at the point of death, and several witnesses, though 
 summoned, were prevented by various causes from com- 
 plying with the summons.^ So illness of the defendant, 
 which prevented his procuring the attendance of material 
 witnesses, or his being present himself to move for a 
 continuance, is ground for a new trial. And where the 
 court beloAV refused to grant a new trial for this cause, 
 the court above granted it, although satisfied with the 
 verdict.^ So in an inquisition of lunacy a new trial was 
 granted, for the reason that the defendant, as appeared by 
 affidavits, was prevented from making a defence by illness ; 
 with the additional i-eason, of the advantage to be derived 
 in a new trial from the inspection had by the chancellor and 
 the former jury.^ So on motion to set aside an inquest, 
 taken in scii^e facias to revive a judgment, it appeared by 
 affidavits, that the defendant lived at a great distance, 
 and had been discharged in insolvency, conformably to 
 his plea; that his attorney wrote to him, urging his 
 attendance, but he replied that he was disabled from com- 
 plying by a fractured leg, and desired an adjournment. 
 The inquest was set aside on payment of costs.' 
 
 § 15. A new trial may be granted for the absence of a 
 
 party who was summoned as a witness in another court." 
 
 > Sherrard v. Olden, 1 Ilalst. 344. ^ Ton Broeck v. Woolscy, 3 
 
 2 Peebles 'c. Kails, 1 Litt. 24. Caincs, 100. 
 
 3 Stewart V. Durret,3Monr. 113. <= South v. Thomas, 7 Mon. 59. 
 » Rex V. Roberts, 2 Str. 1208. 
 
 (a) Upon an application for a new trial on the ground of surprise 
 arising from the sudden illness of a witness ; what he would testify to 
 must be shown, and the court is not bound to take the statement of the 
 applicant or his counsel for the purpose. Swartzel v. Rogers, 3 Kans. 374.
 
 en. XVI.] SURPRISE. 529 
 
 And, in general, for the absence of a party from court, 
 from unavoidable circumstances. In such case, the ap[>li- 
 cation will be watched with jealousy, and the power ex- 
 ercised with caution ; but, if there is no reason to believe 
 that the cause is feigned, a new trial will be granted to 
 prevent a failure of justice. Thus an affidavit for a new 
 trial stated, that the plaintiff was prevented from reaching 
 court, before the trial took place, by high water ; that, 
 being in the habit of attcndino- the court resrularlv in 
 person, he had no counsel who knew anything of the 
 facts of the case; that his demand was just and true; 
 and that injustice had been done him on the trial. Two 
 other affidavits were also filed, tending to support the 
 affidavits of the plaintiffi Held, that this was sufficient 
 to authorize the granting of a new trial. ^ But a new trial 
 will not be granted,, as of course, for the party's unex- 
 pected absence at the trial.^ So a new trial was not 
 allowed, on the ground of imprisonment from inability to 
 procure bail, and consequent want of preparation for trial.^ 
 So where a defendant, at the trial term of the cause, after 
 employing an attorney and filing a plea in bar, left the 
 court, believing from the state of the docket and from 
 remarks made by the presiding judge and solicitor, out 
 of court, that his case would not be reached ; held, no 
 ground for a rehearing.^(rt) 
 
 ' Vannerson v. Pendleton, 8 S. 3 Yanez v. State, 20 Tex. 656. 
 & M. 452. 4 White v. Ryan, 31 Ala. 400. 
 
 2 Devine v. Martin, 15 Tex. 25. 
 
 (a) Where a party, during a trial, left the court-room, without asking 
 the court to wait for his return, and went to a hotel three squares dis- 
 tant, to procure the presence of a female witness, indisposed, and on his 
 return the evidence was closed ; held not a surprise entitling him to a 
 new trial. Thompson v. Updegraff, 3 W. Ya. G29. Where a party to 
 a suit, who intended to testify, was detained by a railroad accident ; 
 held, an order refusing a new trial on that account would not be reversed, 
 if he was at the place of trial when it began, but subsequently went 
 away on business, and it was not stated whether his business was urgent 
 
 34
 
 530 THE LAW OF NEW TRIALS. [CII. XVI. 
 
 § IG. It is ground for new trial, that, where tiicrc are 
 more actions than one pending between the same parties, 
 notice for trial is given for one only, and the party notified 
 thereby prevented from preparing his defence. Thus A. 
 brought two suits against each of the parties, B., C, and 
 D., one for slandering him as a clergyman, the other as a 
 merchant. Xotice of trial was served in the three cases, 
 one against each defendant, nine days before the circuit. 
 The defendants' attorney applied to the plaintiff's counsel, 
 who resided near, to know which causes were meant to 
 be tried. The reply was, that he was not informed ; but 
 two days after the counsel answered, that A. would try 
 the suits for slander of him as a clergyman, if he could 
 obtain his witnesses, otherwise the other suits. The de- 
 fendants' counsel had procured a stay, wath notice of 
 motion to set aside the notice as vague; which, after the 
 circuit, he countermanded, and the plaintiff's attorney 
 gave notice of motion for costs, for preparing for trial, 
 and of the motion. The motion was denied, with costs, 
 upon the ground that the notices were insufficient.^ 
 
 § 17. But, in cases of this kind, the court will inquire 
 whether the defendant could reasonably be misled, and 
 will <rrant or refuse the motion at their discretion. Thus 
 a notice for a writ of inquiry was for " Tuesday, the 14th 
 of January, instant," but the 14th was Thursday, on which 
 day the writ w^as executed. On the morning of the 14th 
 the plaintiff's attorney met tlio defendant, who told him 
 
 ' Lislier v. Parmelee, 1 Wend. 23. 
 
 or not. Yatcr v. Mullen. 24 Ind. 276. It is no ground for a new trial, 
 that the defendant, hearing that the presiding judge was sick, and in- 
 ferring that one of his own counsel would hold the court, and that there- 
 fore the cause would not be tried, went away, expecting to return in 
 time for the trial, at which he proposed to give material testimony, and 
 was detained by an accident to a freight train, so that he did not reach 
 court in time to testify. Yater v. Mullen, 23 lud. 5G2,
 
 CH. XVI.] SURPRISE. 531 
 
 his notice was irregular, and he should not attend, but 
 did not point out the irregularity. Held, as the de- 
 fendant was not misled, but, relying on the irregularity, 
 neglected to attend, and was not stated to have thereby 
 sufiered any injury, the execution of the writ should not 
 be set aside.' 
 
 § 18. And more especially will this disposition l)e made 
 of a motion founded upon such an irregularity, where the 
 time of holding the sittings was matter of general noto- 
 riety ; such motion being regarded as a captious attempt 
 to take advantage.^ Or where the defendant's counsel or 
 attorney was not misled ; notice of the court beino- re- 
 quired to be published, though not appointed l)y law, and 
 the attorneys living in the immediate neighborhood of 
 the circuit.^ 
 
 § 19. The affidavit of B., one of two defendants, A. and 
 B., stated, that they were in partnership as wine mer- 
 chants, B., however, having the whole management of 
 the business ; that an information was filed against them, 
 for mixing wines and smuggling brandy; that both were 
 served with subpoenas, to which they appeared and pleaded 
 by separate solicitors and clerks; that B. instructed his 
 solicitor to prepare his defence; that the case was tried, 
 and the crown recovered a verdict, though neither B. nor 
 his attorney had received notice of trial; that B. was 
 prepared for his defence, and A., relying on him, had 
 made no preparation ; that B. had never heard that notice 
 of trial had been given to A., and, for want of notice to 
 B., no steps were taken for the defence of either party. 
 B.'s attorney testified, that, after procuring a copy of the 
 information, he never had notice of further proceedings, 
 till the day before the trial, when he heard from the agent 
 
 ' Batten v. Harrison, 3 Bos. & ^ Wolfe v. Horton, 3 Caines, 8 
 Pul. 1. 3 Bander v. Covill, 4 Cow. CO.
 
 h32 THE LAW OF NEW TRIALS. [CH. XVI. 
 
 of tliG attorney of x\., that the trial would occur the next 
 day; that neither he nor his clerk in court had received 
 notice of trial ; that he never communicated with A. con- 
 cerning the case, or wdth his attorney or agent, till the 
 day before the trial ; and, had he received due notice of 
 trial, should have been prepared for the defence of B., 
 wdiich would have been also the defence of A., wdio, he 
 believed, had a good defence. The attorney for A. testi- 
 fied, that he was employed ibr A. only, but, having learned 
 that B.'s solicitor was preparing for his defence, which 
 would also be that of A., he thought it needless to do 
 anything further for A., and, wdien notice of trial was 
 received by his agent as attorney of A., he w^as not aware 
 that A. had received no notice. The agent of B.'s attorney 
 testified, that he had instructed his clerk in court to ap- 
 pear for B., wdiich he did, and that a separate plea was 
 afterwards entered for B. ; and that neither he nor his 
 clerk in court had received notice of trial. Held, the 
 parties were entitled to separate notices of trial, and the 
 rule was made absolute as to both.^ 
 
 § 20. Where a new trial is ordered, unless new notice 
 of trial is given, a third trial will be granted.^ 
 
 § 21. In England, if a defendant enter the case in the 
 marshal's book, with a memorandum ne recipiatur^ and the 
 plaintiff proceed to trial, as if there were no defence, 
 without notice; a new trial will be ordered.^ 
 
 § 22. AVhere notice of a writ of inquiry was served 
 upon the defendant himself, and not upon his attorney, 
 and the time appointed was between the hours of ten and 
 five, for both of which causes the proceeding w^as irregu- 
 
 ' Atty., &c. V. Stevens, 3 Price, ^ "Walsou v. Gowar, 8 Dow. itR. 
 72. 4oG. 
 
 2 Binglev v. Mollison, 3 Doug. 
 403.
 
 en. XVI.] SURPRISE. 533 
 
 lar; niul excessive damages were awarded; althougli an 
 attorney's clerk attended at the execution of the writs on 
 the part of the defendant, cross-examining the jilaintiff's 
 witnesses and producing a witness for tlie defenchuit: held, 
 the inquiry should be set aside upon payment of costs, 
 and a new writ executed before a judge at the next 
 assizes.^ So, in Texas, where a petitioner alleged "that 
 the appellee had obtained a judgment against the pe- 
 titioner as a non-resident debtor, that he was, at the time 
 of the institution of the suit, and had been for many 
 years before, a citizen of the State, that he had no notice 
 of the pendency of the suit, nor of the proceedings against 
 him, that they were ex partc^ that he had a good defence, 
 and could have made it if he had had notice, and prayed 
 that the judgment might be opened and he have an op- 
 portunity to make a defence;" it was held, on demurrer, 
 that the petitioner was entitled to a new trial, by Hart. 
 Dig. art. 783, and on principles of equity jurisprudence.^ 
 And, in general, a new trial will be granted, after the 
 term, where the defendant has a meritorious defence, and 
 has not had actual notice of the suit, or has not been per- 
 sonally served.^ 
 
 § 23. "Wliere one of two defendants, who alone is served 
 with a summons, gives notice of appearance for both, 
 as attorney for his co-defendant, but answers onl}- for 
 himself; and after trial on the merits the complaint is 
 dismissed ; and, after a case made upon appeal, it is moved 
 that the recital in the judgment that both defendants 
 appeared should be stricken out, upon evidence that the 
 notice was so drawn by mistake, and it is granted : this is 
 no ground to vacate the judgment and grant a new trial. 
 The plaintiff may well be relieved from proceedings had on 
 the faith that the notice so given was authorized and legal, 
 
 • Yate V. Swaine, Barnes, 233, ' Kitclien v. Crawford, 13 Tex. 
 See Love v. Jarret, ib. 4."")7. 516. 
 
 2 3Iussina v. Moore, 13 Tex. 7.
 
 534 THE LAW OF NEW TRIALS. [CH. XVI. 
 
 and which would be valid if such notice was authorized, 
 but invalid if not authorized ; but not from any other 
 proceedings. The correction of the unauthorized notice 
 after judgment, in a trial upon the merits as if both 
 defendants had appeared, if there is no error in the judg- 
 ment, is not ground for a new trial.^ 
 
 § 24. The facts, that a party, from looking at the docket, 
 concluded that his suit would not come on at a given time, 
 and that it did come on sooner, in consequence of which 
 the cause was tried in the absence of a material witness, to 
 whom it would have been specially inconvenient to remain 
 in court, and who was immediately summoned upon the 
 calling of the case ; furnish no ground for setting aside the 
 verdict and granting a new trial.^ Nor is it ground for a 
 new trial, that the case came on sooner than the party ex- 
 pected, in consequence of his mistaking the day set for trial. 
 The court remarked, that, if such motions should prevail, 
 " trial becomes a farce. "^ Kor will a new trial be granted, 
 on account of an unexecuted agreement for postponement.* 
 Or an alleged verbal agreement in the court below for a 
 continuance, between counsel, which is denied by one of 
 them.* 
 
 § 25. A new trial was allowed, where, on account of an 
 irregular calling of the docket, the party was forced by the 
 court unreasonably to trial, in the absence of his client ; 
 and he need not show that he had made any preparation, 
 or that a different result would probably occur on another 
 trial.^ So where a trial was had by twelve o'clock on the 
 first day of the term, before the defendant arrived, and in 
 the absence of material witnesses.^ So a trustee, in an 
 action returnable before a justice of the peace, failed, by 
 
 1 Keyes«. Moultrie, 1 Bosw. G2!). ^ Birdwcll v. Cox, 18 Tex. 535. 
 
 2 McAuley v. Loekert, 4 Ilumph. "^ Donnallen v. Lennox, G Dana, 
 229. 89. 
 
 3 Stout v. Colvor, G Mis. 254. ^ Price v. Ford, 7 Monr. 399. 
 < Moody V. Harper, 33 Miss. 465.
 
 en. XVI.] SURPRISE. 535 
 
 accident, to appear at the hour, and his default was entered, 
 after which the justice left the place. The trustee appeared 
 in the course of the same day, the justice and the plaintiff's 
 attorney being present, and denied his liability, and asked 
 for a new trial, which was refused. On petition to the 
 Supreme Court for a new trial, the trustee denying under 
 oath that he was indebted, or had any pro^ierty of the 
 principal, a new trial was granted, the costs of the petition 
 to abide the result of the suit.^ So a new trial was granted, 
 where a defendant in a criminal case employed no counsel, 
 but was in attendance with witnesses on the day of trial, 
 and, during a brief and necessary absence from the court- 
 room, judgment was rendered against him. 
 
 2 
 
 § 26. A new trial was granted, on payment of costs, 
 where the defendant's attorney, from a conversation with 
 the partner of the plaintiff's attorney, whom he supposed 
 to be also an attorney for the plaintiff, was led to suppose 
 the case could not come on, because there were eighteen 
 prior cases, and that the plaintiff's attorney himself w^ould 
 not attend.3 So where a case was numbered 17, and number 
 14 was a trial of a right of way, which was expected to 
 occupy most of a day, Init was postponed during the absence 
 of counsel in nmuber 17 for the purpose of preparing his 
 briefs.* 
 
 § 27. But a new trial was denied, where the case stood 
 number 90 in the printed list, and the written list, affixed 
 in the usual way on the outside of the court, ended at 
 number 26 ; but the case was tried, upon the statement 
 that there was no substantial defence, and that the plaintiff' 
 had witnesses in attendance from a distance. Both counsel 
 and attorney were present, but declined to appear ; and the 
 
 1 Riguey v. Hutchius, 9 N. II. » Siiycr v. Finck, 2 Caiues, 336. 
 257. ^ Beazley v. Sliapleigli, 1 Price, 
 
 2 St. Louis tJ.Murpliy, 24 Mis. 41. 201.
 
 536 THE LAW OF NEW TRIALS. [CH. XVI. 
 
 motion lor now trial was accompanied by no affidavit of 
 merits,'(_(() 
 
 § 28. "Wlicre a r>arty is surprised l)y the nnantliorized 
 withdrawal of his witnesses after the trial has commenced, 
 the better j)ractice is to apply for a continuance or postpone- 
 ment ; and refusal of the application might be ground for 
 a new trial. ^ And it is held ground of new" trial, that a 
 wntness, regularly summoned and in attendance, unex- 
 pectedly absents himself.-'^ As, for example, that a witness, 
 duly subpoenaed, and under whom the plaintiff claims title 
 to a note on wdiich the suit is brought, absents himself at 
 the moment of trial, so that tlie defendant cannot procure 
 his testimony.'* So a new trial was granted, wdiere an 
 iniiDortant witness for the defendant, detained by sickness 
 in his family, arrived during the opening argument for 
 the plaintiff; and a motion to examine the witness w^as 
 
 1 Blackburst v. Bulwer, 1 Dow. See Pilot, &c. v. Chapman, 11 Cal. 
 «&Ry. 551. 101. 
 
 2 Cotton V. State, 4 Tex. 2G0. « Tilden v. Gardiner, 35 Wend. 
 
 3 Rugglcs V. Hall, 14 John. 113. GG3. 
 
 (a) On a motion to set aside a verdict taken for the defendant in a 
 replevin case in the absence of the plaintiff, when the former noticed 
 the case for trial ; the defendant need not prove his notice of trial, where 
 this was done to the satisfaction of the court below, but its regularity 
 may be reviewed above. An affidavit of the plaintiff may be read, to 
 show that the indisposition of his counsel pi'cvcnted him from producing 
 evidence, which, he is advised, was material. Ilarwood v. Smchurst, 1 
 Vroom, 230. An appellant from a justice of the peace was allowed until 
 the opening of court on the second day of the term to enter his ay)peal. 
 The entry was made by him on the first day, but was inserted by the 
 clerk in an unusual place on the docket. The appellee's attorney, after 
 examining the docket for the case without success on the first day, left a 
 memorandum witli the clerk, rc(iuesting him to enter his appearance if 
 the appeal should bo ciilerod. The clerk assented, but inadvertently 
 neglected to do so, and the appellee was defaulted. He had no know- 
 ledge of the fact, until an officer called on him with an execution issued 
 upon the judgment. Held, he was entitled to an injunction and a new 
 trial. Seymour v. Miller, 32 Conn. 402.
 
 CII. XVI.] SURPRISE. 537 
 
 oveiTiiled; and, in addition, the charge was wanting in 
 explicitness.^ So wliore a ]ilaintifF had bound himself not 
 to ai)})eal, but, in consoquenee of his attorney's having 
 indorsed tlie writ, was unable to use the attorney as a 
 witness, a motion to sul)stitute another person as indorser 
 being overruled; and, instead of becoming nonsuit, suifered 
 a verdict to be rendered against him: a new trial was 
 ordered, on such terms as would place the parties in the 
 same situation as if there had been a nonsuit.- And a 
 verdict will be set aside on the ground of misconduct of 
 the party, if, by his procurement or connivance, one who 
 had knowledge of facts, material to contradict one of the 
 witnesses, is hired to keep out of the way, so that he may 
 not be summoned by the other party.^ 
 
 § 29. But a new trial will not be granted on an affidavit 
 of the absence of a material witness, where the court would 
 not continue the cause for this reason.^ JS'or upon the 
 ground that the party did not know that the evidence 
 would be of any use.^ So where the court below refused 
 to continue a cause on the ground of the absence of a 
 witness residing in a neighboring State, whose attendance 
 no eflbrt had been made to procure ; held, not cause for a 
 new trial.'' And a party is not entitled to a new trial on 
 the ground of surprise in the absence of a material witness, 
 where no diligence has been used to procure his attendance, 
 even though his absence was procured by the improper 
 conduct of tlie prevailing party ; although he may have a 
 new trial on the ground of such conduct.^ So where a 
 defendant was surprised by the sudden close of the plain- 
 
 • Watterson v. Wattcrson, 1 s jjobinson ». Stato, l.") Tex. 311. 
 Head, 1. ^ The State v. Smith, 8 Kich. 
 
 ^ Ililey V. Emerson, 5 N. IT. 581. 4G0. 
 
 3 Crafts V. Union, &c., 3(3 N. II. ' Carey v. King, 5 Geo. 75; 36 
 
 74 ; 5 Geo. 75. N. 11. 4-1. 
 
 * Peebles v. Overton, 3 Murph. 
 384.
 
 538 THE LAW OF NEW TRIALS. [CH. XVI. 
 
 tiff's case, and one of his witnesses had not yet arrived ; 
 held, no o-round for a new triaL^(c/) 
 
 § 30. It is no ground for a new trial, that a party forgot 
 the presence of a witness, at a conversation on tlie subject 
 of the suit, and in consequence did not obtain his testi- 
 mony.^ So, where a witness, who had been once examined 
 at length, but wlio w\as not under subpoena, declined to go 
 a second time upon tlie stand, and the court refused to 
 compel him so to do; held, such refusal was no ground for 
 a new trial. •'' 
 
 § 31. A new trial Avas granted, wdiere the attorney of 
 one of tlic parties had in his hands a deed, but before the 
 trial parted with it, without notice to the other party, and 
 was subpoenaed to produce it.'* 
 
 § 32. The fact, that a witness on the trial forgot to state 
 a material fact on account of intoxication, is no ground 
 for a new trial.^ Or inadvertently omitted to state all he 
 knows material to the case.^ Or forgets or refuses to 
 
 ' "Wells V. Sanger, 21 Mis. 354. ^ Jackson v. Warford, 7 Wend. 
 
 2 IMunn 0. Worrall, 10 Barb. 221. 02. 
 
 3 3Ioreiu v. Solomons, 7 Rich. ^ McQueen v. Stewart, 7 Ind. 
 97 535 
 
 6 WaUs i\ Jolinson, 4 Tex. 311. 
 
 (a) The fact, that an important witness "moved and travelled about 
 a great deal before the trial, so that it was exceedingly difficult to ascertain 
 his whereabouts so as to obtain his testimony," does not constitute a ground 
 for a rehearing, after final judgment. Allington v. Tucker, 38 Ala. 655. 
 The absence of a witness, a clerk of the party aggrieved, on the supposi- 
 tion that the cause would occupy a longer time than it did, is no ground 
 for a new trial. Speeding v. Young, 16 C. B. (N. S.) 824. A new trial 
 will not be granted, because a witness who had been present through a 
 part of the trial was missing when called to testify, when no motion was 
 made, upon the discovery of his absence, to postpone the trial, or to 
 procure his testimony de bene esse, and when other witnesses had testified 
 as to the same matter, and covered all the ground as fully as he could 
 have done. Read v. Barker, 1 Vroom, 378.
 
 en. XVI.] SURPRISE. 539 
 
 give expected testimony.^ Though it is otherwise if the 
 witness purposely concealed a fact.^ 
 
 § 33. Errors of judgment of the engineer appointed by 
 the defendant, in not delineating on the plan certain ob- 
 jects which might have tended to support the defence, do 
 not atibrd ground for a new trial.^ 
 
 § 34. The death of a witness is ground of surprise, to 
 support a motion for a new trial.* 
 
 § 35. It is, in general, a good cause for granting a new 
 trial, that the party has been surprised by evidence.^ But 
 a new trial will not be granted, for the purpose of giving 
 opportunity to prove a trade so notoriously illegal, that 
 the plaintitf must have known it to be so; on the ground 
 that the jmy at the former trial were expected so to find 
 without evidence.^ ISTor for a mistake in not meeting 
 evidence.'^ 
 
 § 36. A new trial was granted, where a witness from 
 mistake failed to prove the necessary fact to make out a 
 defence, the witness having previously assured the defend- 
 ant that he could and would prove such fact, whereby the 
 defendant was prevented from procuring other testimony 
 to prove the same fact, which it would have been in his 
 power to do.^ But, in such case, the affidavit should 
 allege that the witness, by previous statements, deceived 
 the party as to what he would swear ; and that the party 
 could prove the facts to be difi:erent by other evidence.^ 
 And, in general, it is held that a party is not entitled to 
 a new trial on the ground of surprise, occasioned by a 
 
 • :\rartin v. Clark, 1 Hemp. 259. ^ Gist v. Mason, 1 T. R. 84. 
 
 2 Kiiii; ;?. Gray, 17 Tex. 02. 7 Gilt v. Warner, 1 J. J. Mar. 
 
 3 Palmer v. Fiske, 2 Curtis, C. C. 590. 
 
 14. 8 Wilson V. Brandon, 8 Geo. 136. 
 
 * South V. Thomas, 7 Monr. 59. « Theobald v. Hare, 8 B. Men. 
 5 Sauford, &c. v. Wiggin, 14 N. 39. 
 
 H. 441.
 
 540 THE LAW OF NEW TRIALS. [CIL XVI. 
 
 witness, whom lie called, giving different evidence from 
 tliat wliicli he expected him to give.^ 
 
 § 37. The qualification is sometimes made, that surprise 
 at testimony given is no ground of new trial, unless it 
 occurred in the examination of a necessary witness; as 
 the witness to a deed.^ Or unless the affidavit shows how 
 the witness will be contradicted, and why he was not 
 before.^ So, that the testimony of a witness was not what 
 it was represented to the prisoner by a third person that 
 it would be, is no ground for a new trial, although it was 
 the only evidence upon which he relied for liis defence ; 
 the party not having sought to examine the witness till 
 lie was put on the stand, and not having moved for a 
 continuance at the trial.^ 
 
 § 38. A new trial, on the ground of surprise in the tes- 
 timony of a witness on the part of the defendant, will not 
 be granted to the plaintiff', when, before the trial, he was 
 informed by the defendant that the fact testiffed was his 
 defence, and was also told by the witness how he should 
 testify, and his testimony accorded with such statement.^ 
 Nor where the deposition of the witness had been filed 
 before the trial ; nor for any failure of the adverse party 
 to produce a witness." Nor can a defendant allege as 
 ground of new trial surprise in the testimony for the 
 plaintiff', there having been no cross-examination oivcom- 
 ment.^ And, in general, it must be shown distinctly that 
 the evidence was an entire surprise on the party appl\'ing, 
 so that he had no opportunity of meeting it at the trial ; 
 and it is not enough that it came upon him by way of 
 defence, without his having had any indication of it 
 through the cross-examination of his own witnesses, they 
 
 ' Graeter v. Fowler, 7 Blackf. ^ Mcakim v. Anderson, 11 Bfirb. 
 
 554; Curry v. Kuntz, 33 ]\Iiss. 24. 215. 
 
 2 Guard v. Risk, 11 Ind. 150. ^ Gentry v. McKehcu, 5 Dana, 
 
 3 Ellis V. Kellv, 38 Miss. O!).-). 34. 
 
 * Yancz v. State, 20 Tex. OoG. ? Bell v. Thompson, 2 Chit. 194.
 
 CII. XVI.] SURPRISE. 541 
 
 not having Ix'on recalled to contradict the defendants, no 
 reason being assigned for this not having been done, and 
 no surprise being sworn to or shown, otherwise than in the 
 statement of these circumstances.' 
 
 § 39. A new trial was refused in an action upon the 
 warranty of a horse, on the ground of surprise as to the 
 nature of the unsoundness relied on; on afhdavit of a 
 veterinary surgeon that there was no such disease known. ^ 
 So where the defendant was sued on his warranty of the 
 soundness of a slave, and the plaintiffs prevailed ; it was 
 held that the defendant was not entitled to a new trial, on 
 the ground that he had been surprised by the testimony 
 which the plaintiffs introduced as to the unsoundness of 
 theslave.^ 
 
 § 40. But, on the other hand, a new trial was allowed, 
 with leave to amend the pleadings, in the following case : 
 In an action by the owner of a slave against a steamer, to 
 recover damages and the statute penalty, in Louisiana, for 
 carrying a slave out of the State contrary to law, the 
 plaintiff's evidence in relation to a slave named Granville 
 was excluded, the slave mentioned in the petition being 
 stated therein to be named George. The j^laintiff's at- 
 torney was not aware, at the time of instituting the suit, 
 that the slave was known by another name, and the 
 testimony showed that the slave was known by the two 
 names, and that,- with the excluded testimony, the plaintili 
 could establish his claim.* 
 
 § 41. An indictment was found Xovember 21 for a 
 murder committed on the 11th of October previous. The 
 defendant was put upon trial immediately, and convicted. 
 
 ' EobertsiJ. Holms, 25Eng. Lavr. ' Anderson v. Duflicld, 8 Tox. 
 
 & Eq. 420. 237. 
 
 ^ Atterburry v. Fainnauner. 8 * Holmes v. Steamer Chieftain. 1 
 
 Moo. 32. La. An. 136.
 
 542 THE LAW OF NEW TRIALS. [CII. XVI. 
 
 and sentenced for murder in the second degree. The case 
 did not appear to be an aggravated one. The defendant 
 made affidavit that he liad been surprised by the evidence, 
 and had had no time for a proper defence. Held, that, 
 under these and other circumstances of the case, a new 
 trial should have been granted.^ 
 
 § 42. After the closing arguments, the plaintiff applied 
 to the court to admit the testimony of a material witness. 
 The court admitted it, and offered the defendant's counsel 
 an opportunity to introduce proof in rebuttal, which they 
 declined. The defendant, who was absent when this 
 evidence was admitted, made affidavit, after a verdict 
 against him, that he had such, rebutting evidence, and 
 asked for a new trial. His counsel also swore that he 
 was ignorant of the existence of any such evidence. The 
 witness was impeached, and the damages were excessive. 
 Held, the defendant was not guilty of negligence, and a 
 new trial should be granted.^ 
 
 § 43. A new trial was refused, where the plaintiff was 
 surprised by the defendant's denying his title, and became 
 nonsuit.^ 
 
 § 44. It is said to be a well-settled rule, that a new trial 
 will not be granted because the party came to trial unpre- 
 pared.* As in case of neglect to have witnesses to prove 
 handwriting.' So where, in an action of slander, the de- 
 fendant kept back evidence in justification; a new trial 
 was refused to give opportunity for its introduction." So 
 where an award had been made in favor of the defendant ; 
 
 ' Rosencrants v. State, G lud. ^ Jackson v. Roe, 9 John. 77. 
 407. ' Il)id. 
 
 2 Thompson v. Clendening, 1 ^ Wits v. Polehampton, 2 Salk. 
 
 Head, 287. See State i\ Wis^ht- 647. 
 
 man, 27 Mis. 121; Alexander v. ^ Spoug v. Hog, 2 W. Bl. 803. 
 Lewis, 1. Met. Ky. 407.
 
 en. XYi.] SURPKISE. 543 
 
 a new trial was refused, on the ground of the p]aintifi''8 
 omitting to introduce certain evidence.^ 
 
 § 45. A prisoner, advised by his counsel, that certain 
 evidence, which was admitted, was not admissible against 
 him, and so taken by surprise, may be allowed a new 
 trial, to produce, rebutting evidence.^ But a party cannot 
 be permitted to rely upon incompetent testimony, and, 
 when such testimony is rejected, claim a new trial on the 
 ground of surprise;^ especially if clearly illegal.* As 
 where a witness was rejected on the ground of interest.' 
 Or where a witness was excluded because he was a surety 
 for the costs.^ More especially where the plaintiif, sup- 
 posing himself prepared, urged a trial, and was nonsuited 
 because the evidence upon which he relied was rejected.^ 
 So, upon the trial of an issue in replevin, the plaintiff ad- 
 mitted that the defendant was a deputy-sherifl', and had 
 in his hands certain writs described in his brief statement. 
 The court ruled, that this was not evidence that the debts 
 on which the suits were brought were due. Held, this 
 ruling was not such a surprise on the defendant as would 
 authorize a new trial.^ 
 
 § 46. Where the credibility of a party's witnesses is 
 assailed and overthrown quite unexpectedly to him, and 
 he offers affidavits sustaining their character, a new trial 
 will be granted.^ But, where the answer in chancery of a 
 witness was filed among the papers in a case at law, but 
 was not read to the jury, and the plaintiff's counsel in 
 his closing argument referred to the answer for the pur- 
 pose of impeaching the witness, whereupon the defend- 
 
 ' IMcDermolt v. U. S., &c., 3 S. s Arrington v. Coleman, 2 Hay. 
 
 & R. 604. 300. 
 
 2 State V. Williams, 1 Williams, ^ McAllister v. Barry, 2 Hay. 
 724. 290. 
 
 3 Turnley v. Evans, 3 Humph. s Sanford, &c. v. Wigcin, 14 N. 
 222. H. 441. 
 
 * Nane v. Simpson, 5 Sneed, 612. a Wilson v. Clarke, 87 Miss. 270. 
 5 Haskinsw. Smith, 17 Verm. 263.
 
 544 THE LAW OF NEW TRIALS. [CH. XYT. 
 
 ant's counsel objected on the oTonnd of surprise, and lie 
 was allowed to reply to this point, and the witness was 
 introduced to explain his answer; held, no ground for a 
 new trial. ^ 
 
 § 47. The mere fact, that a witness used at a former 
 trial of a case was not used at the final trial, gives the 
 adverse party no ground for asking for a ncAV trial on 
 the ground of a surprise, where the court arc satisfied 
 that all the testimony which he thereby lost the oppor- 
 tunity of using could only have been used by him as 
 impeaching testimony, if the witness had been intro- 
 duced." But if the evidence to be introduced on the 
 new trial will tend to refute or repel that which caused 
 the surprise, it is not material that it may impeach the 
 witness.^ 
 
 § 48. It was held no ground for new^ trial, that one 
 witness informed another, who had not testified, what the 
 testimony of the former was; although punishable mis- 
 conduct.* But, in general, it is ground of new^ trial, that 
 one party induces a witness for the other to avoid, or 
 bribes a witness to testify in his favor.'' "The ofience 
 (briljery) is of a character so odious, and so utterly at war 
 with the due course of justice, that, when once established, 
 its injurious cSect would ordinarily be taken for granted, 
 unless very clearly disproved."*' So a new trial will be 
 granted for disingenuous attempts, on the part of the pre- 
 vailing party, to stifle or suppress evidence, thwart the 
 proceedings, or obtain an unconscionable advantage. As 
 where the defendant, by letters and persuasions, without 
 the plaintifi''s knowledge, induced a witness to absent 
 
 > Harasbarger «, Kinney, G Gratt. * Thomas v. State, 27 Geo. 287. 
 
 287. ^ Barron v. Jackson, 40 N. H. 
 
 2 Sliepberd «. Hayes, IG Verm. 3G;"i. 
 
 486. ^ Per Bellows, J., ib. 3G6. 
 
 » McFarland v. Clark, 9 Dana, 
 134.
 
 CII. XVI,] SURPRISE. 545 
 
 himself from the tow.n in which he lived, and in which 
 the court was sitting, on the day on which the cause was 
 set down for trial, in order to prevent the plaintiff from 
 proving a material fact, known to the witness, which he 
 know was material, and which he had reason to helieve 
 could be proved by no one but himself.'(a) 
 
 ' Carey v. King, 5 Geo. 75. 
 
 (a) Where a party has been vigilant, and has used every reasonable 
 precaution in preparing for trial, and is taken by surprise by the intro- 
 duction of evidence, which he could not reasonably have anticipated, 
 bearing upon a material fact and contributing to an unfavorable verdict ; 
 he will be entitled to a new trial. Holbrook v. Nichol, 3G 111. 161. So, 
 where a witness, called to prove a material fact, testifies directly con- 
 trary to his assertions made to the party calling him before the trial ; 
 providing the party shows he can produce testimony to the fact ; and 
 though a continuance was not moved for at the time. Eodriguez v. Com- 
 stock, 24 Cal. 85. So where a defendant's witness testifies differently 
 from what he had a right reasonably to expect ; where there was no want 
 of diligence in guarding against such surprise, and he is injured thereby. 
 Todd V. State, 25 Ind. 212. On an affidavit of the plaintiff's attorney, 
 that, to establish his case, he had relied on a statement made by the de- 
 fendant to the sheriff on service of the writ, but had been misled by the 
 sheriff's testifying differently from his statement made to the attorney 
 on the morning of the trial, whereby another witness had not been sent 
 for; held error to refuse a new trial. Delmas v. Margo, 25 Tex. 1. A 
 new trial will not be granted on the ground that witnesses testified dif- 
 ferently from what they did in a former trial, when it does not appear 
 that any efforts were made to refresh their minds or direct their atten- 
 tion to the points of difference. Howell v. Howell, 37 Mis. 124. Nor 
 upon an affidavit, that a party to a suit was surprised at the admission 
 of a certain witness, and at his testimony, as different from statements 
 made in conversation by the witness with him, as he understood it. 
 Klockenbaum v. Piersou, 22 Cal. 160. Untler the law allowing parties 
 to testify, where the plaintiff simply swears to the truth of his com- 
 plaint, it is doubtful whether the defendant can in any case have a new 
 trial, on the ground alone of surprise. Cox v. Hutchings, 21 Ind. 219. 
 Especially if the plaintiff had full knowledge of the fact. Peck v. 
 Hensley, 21 Ind. 344. A defendant whose property was attached filed 
 an evasive answer, under oath, admitting the debt sued on. A subse- 
 quent attaching creditor intervened, and, on the trial of the right to 
 35
 
 546 THE LAW OF NEW TRIALS. [CH. XVI. 
 
 § 49. A new trial will not be granted, where the sur- 
 prise arises out of the face of a paper, on which alone the 
 right of the party to recover depen(ls.'(rt) !Xor for the pro- 
 duction of a paper referred to in the petition.- Nor for 
 the reading, at the trial, of a letter of the defendant, 
 toucliing the matter in suit.^ Nor because the defendant 
 did not use a deposition taken by him.^ ISTor on the ground 
 of not find in o- among; the files of the court material writ- 
 ten evidence, where no attempt was made to ascertain 
 whether the evidence was among the files, until the case 
 was announced for trial.^ But a new trial has been granted 
 in case of nonsuit for want of a paper.^ Or where papers 
 and evidence are lost.'' So where the clerk of the admi- 
 ralty had failed to bring with him the necessary docu- 
 ments.^ So, in case of fraudulent sale, the defendants, 
 officers, failed to prove the judgment under which they 
 
 ' Cockrill V. Calhoun, 1 N. »fc ^ Liunard v, Crossland, 10 Tex. 
 
 McC. 285. 462. 
 
 2 McNeally c. Stroud, 22 Tex. ^ Smith t. Cuff, 2 Chit. 271. 
 229. 7 Wilkinson v. Martin, 13 La. 
 
 3 Henckloy v. Hcndrickson, 5 An. 479. 
 
 McLean, 170. ^ D^Aguilar v. Tobin, 2 Mar. 265. 
 
 * Briggs V. Gleason, 1 Williams, 
 114. 
 
 hold the property, the defendant in the first action, without any notice 
 that he should do so, testified that the debt was not due. Held, the 
 plaintiff was entitled to a new trial. Coghill v. Marks, 29 Cal. 673. A 
 refusal to allow evidence that the defendant's slave under his direction 
 shot the plaintiff's mare, in support of an averment that the mare was 
 shot by the defendant, justified the plaintiff in becoming nonsuit, it being 
 too late to amend, and the nonsuit should be set aside and a new trial 
 granted on the ground of surprise. Guffey v. Moseley, 21 Tex. 408. But 
 see Duunahoe v. Williams, 24 Ark. 2G4. A party will not be refused a 
 new trial because, M-hcn taken by surprise at the former trial, he did not 
 put his attorney on the stand, or immediately ask for a continuance, if 
 he had no knowledge at the time of evidence which would rebut such 
 testimony. Alger v. Merritt, IG Iowa, 121. 
 
 (a) A new trial should not be granted for failure to obtain important 
 documentary evidence, unless strict vigilance is shown. Tcift v. Marsh, 
 L West Ya. 38.
 
 en. XVI.] SURPRISE. 547 
 
 justified the seizure of tlic goods. But, in the language 
 of Lord Mansfield, "The verdict arises from a slip and in- 
 advertence; it is against law and justice. The plaintift 
 has no merits. The bill of sale was fraudulent ; the son 
 remained in possession. The recovery is manifestly con- 
 trary to reason and justice."' So surprise by the rejection 
 of documents, which had been read without any objection 
 on two former trials, is good ground for a new trial.^ So 
 where a bill of sale, admitted on a former trial without 
 objection, was objected to and rejected for wrong registra- 
 tion, and the plaintiff nonsuited.^ So where a deed was 
 excluded, which the party had reason to believe admis- 
 sible.* So where the plaintifi:' in a suit before a justice 
 relied upon an account, and upon the trial in the Circuit 
 Court, on api^eal, substituted a receipt of the defendant, 
 for the collection of moneys, as constable, without giving 
 the defendant notice.'' So where a verdict was found for 
 the defendant in an action upon an indorsed bill, on the 
 ground that the indorsement did not contain the words 
 or order ; and the plaintiff was unprepared to prove the 
 custom of merchants.^ So an action on a note against the 
 maker was dismissed by agreement, on the defendant's 
 paying the fees of the plaintift^'s attorney, who, in pur- 
 suance of the agreement, sent the note to a person in an- 
 other part of the country, stating to him, in an accom- 
 panying letter, that the maker had paid his fees, which 
 sum was to be indorsed on the note. In a subsequent 
 action on the same note, the maker set up payment of that 
 sum, and produced the attorney's letter in evidence; 
 whereupon the attorney testified, that he wrote the letter 
 at the request of the defendant, and in the terms of his 
 request, that the payment of the fees was made the con- 
 dition of the dismissal of the first suit, and that such 
 
 ■ Martyn v. Podgcr, 5 Burr. ^ Boyce v. Yoder, 2 J. J. Mar. 
 
 2631. 515. 
 
 2 Helm V. Jones, 9 Dana, 26. ^ Pawley v. McGimptey, 7 Yerg. 
 
 ' Palmeri).Poppleston,l Hawks, 502. 
 
 S07. 6 Edie V. E. I. Co., 1 W. Bl. 295.
 
 548 THE LAW OF NEW TRIALS. [CH. XVI. 
 
 payment was not to be a credit on tlie note; and the jury 
 found for the plaintiff the full amount of the note. Held, 
 the defendant was entitled to a new trial on the ground 
 of surprise by the testimony of the attorney.' So when, 
 in the progress of a trial, the cause suffers injustice from 
 the honest mistake of the party or his counsel, in omitting 
 to offer in evidence the account-book of one of the parties, 
 which had already been made competent by the necessary 
 evidence, and w^hich w^as material ; a new trial will be 
 granted. ^ So, in a criminal case, the fact of the assign- 
 ment of a judgment to the defendant became material, 
 and the attorney for the commonwealth denied the ex- 
 istence of the judgment, which denial the opposing counsel 
 and the court did not understand him to make. Parol 
 evidence to show that such judgment had become the 
 property of the defendant was rejected by the court. On 
 application for a new trial, it appeared that the judgment 
 was indorsed and made payable to bearer, and that time 
 would have been allowed by the court for the production 
 of the judgment, if the attorney for the commonwealth 
 had been understood to deny its existence. Under these 
 circumstances a new trial w^as granted.^ 
 
 § 50. A new trial was granted where the defendant, 
 relying upon a defect in the declaration, prepared no 
 defence, but the plaintiff amended without a rule.^ But 
 a new trial will not be granted to meet by memoranda 
 and receipts accounts prior to an alleged settlement, where 
 the declaration authorized the plaintiff to prove them.' 
 Nor in case of a wrong plea, by mistake of attorney ; as 
 in case of non cstfachim pleaded to an action for breach of 
 the covenant of seizin.^ Ilifor where, on a plea of payment, 
 
 ' Arthur v. Mitcliell, 10 S. & M. * 2 Show. 154. 
 326. 5 Smith v. Morrison, 3 Mar. 81. 
 
 2 Rolfe V. Rolfe, 10 Geo. 143. " McNcish v. Stewart, 7 Cow. 
 
 3 The Commonwealth v. Randall, 474. 
 Tbacher's Crim. Cas. 500.
 
 en. XVI.] SURPRISE. 549 
 
 it was objected that the evidence of the only witness for 
 the defendant did not sustain the plea; upon affidavits 
 that no defence was expected, and the plaintiff therefore 
 unprepared to contradict the witness.^ So a new trial was 
 refused, where the defendant pleaded the acceptance of 
 chests of tea in satisfaction of the plaintiff's claim; upon 
 the plaintiff's affidavit that he considered the plea as a 
 sham plea, and that he had a letter from the defendant, 
 admitting he had disposed of the tea to another person, 
 and promising to pay the plaintiff; which letter the 
 plaintiff failed to produce.^ 
 
 § 51. A new trial was granted, upon the ground that 
 the defendant had proved by two perjured witnesses a 
 payment of $500 of the plaintiff's claim. The plaintiff 
 corroborated his own affidavit by the testimony of several 
 witnesses.^ So where, in an action for seduction, the 
 female testified that the connections took place at a 
 period which the defendant had no reason to anticipate, 
 when he had left the neighborhood, and was thirty or 
 forty miles distant from her. The effect of such evidence 
 would not be merely to impeach the witness, but to 
 disprove the main fact of the case.* 
 
 § 52. In general, a new trial will not be granted in case 
 of nonsuit for want of evidence.* 
 
 § 53. The most numerous class of cases of surprise are 
 those connected with attorneys and counsel. Parties are 
 bound to attend to their cases, and appear when they are 
 reached. Therefore, where the defendant's attorney was, 
 from necessity, absent when the case was reached, and it 
 was defended by his partner, without the knowledge of 
 
 ' Price V. Brown, 1 Str. 691. < Sargent v. Dcuiston, 5 Cow. 
 
 2 Cooke V. Berry, 1 Wils. 98. 106. 
 
 3 Peterson v. Barry, 4 Biun. 481. ^ Gorgerat v. McCarty, 1 Yea. 
 
 253.
 
 550 THE LAW OF NEW TRIALS. [CH. XVI. 
 
 the defendant, wlio was in the city with witnesses ; it was 
 held, that these facts constituted no ground for a new 
 trial.^ So absence of counsel when the case was called, he 
 being engaged in a trial in another court, whereby an ex 
 'parte hearing was had, is not necessarily ground for a new 
 trial ; and it is a matter within the discretion of the lower 
 court, which the Supreme Court will not control, except 
 in an extreme case.^ So where one of a party's counsel 
 was called away during the trial, but the case went on 
 without objection or motion for an adjournment, under 
 the charge of other counsel ; it was held to be no ground 
 for a new trial.' Xor the absence of counsel in attending 
 the jail as counsel for the Humane Society of Kew York; 
 although he immediately afterwards came into court, 
 and the same day oflered to pay the costs.^ Kor an affi- 
 davit, that co-defendants were only sureties on the note 
 sued on, and unacquainted with the defence; that the 
 subscriber alone attended to it, and had employed counsel 
 at a previous term, who had attended thereto, but was 
 unable to make such defence on account of the absence of 
 the subscriber, who was sick at the time of, and had been 
 so for a month previous to, the trial.'' In a very late 
 case, a cause standing jSTo. 8 was called on at about 10 
 o'clock A.M. of the second day of the assizes. The plain- 
 tiff's attorney not being in attendance, and no counsel 
 instructed by him ; the plaintiff was nonsuited. His 
 attorney arrived about 6 P.M. Erie, C. J., said : "The 
 plaintiff's attorney had ample time to prepare his briefs 
 and instruct counsel ; and he had no right to speculate on 
 the time the cause would be called on. If, however, he 
 will undertake within a fortnight to pay the costs of the 
 day out of his own pocket, the rule may be absolute; 
 otherwise, it will be discharged."^ In another recent 
 
 ' Ilawthorne v. Bowman, 3 * Post v. "Wric^bt, 1 Caines, 111. 
 
 Sneed, 524. s Stetham v. Shoultz, 17 111. 100. 
 
 2 Jacob V. McLean, 24 Mis. 40. ^ Townloy v. Jones, 8 Com. B. — 
 
 3 Starr v. Torrey, 2 N. J. I'JO. J. Scott, N. S. 288.
 
 en. XVI.] SURPRISE. 551 
 
 case, a case of default, the court remark : " The attorney 
 takes all the blame upon himself; and there is reasonable 
 ground for granting the rule. The rule must therefore 
 be absolute on payment of costs by attorney."' (See § 57.) 
 And, in still 9,nother, "VVightman, J., says: "I want to 
 know why the attorney was not here. One cannot but 
 suspect that he had no answer to the action ; it was not 
 even suggested that he was here, or intended to he."\a) 
 
 § 54. A new trial has also been refused, on the ground 
 of neglect of counsel to prepare the case.^ Or because the 
 attorney went into the trial without preparation, and in 
 the absence of the party. '' Or because a plaintiff was non- 
 suited by the rejection of a copy instead of the original ; 
 upon the ground of forgetfulness of the counsel that the 
 latter would be required.^ Or for mistake of counsel, 
 unless clear.^ As in reference to the competency of a 
 witness.^ Or upon the ground that the leading counsel 
 rejected the line of defence adopted by the junior counsel ; 
 more especially if contrary to a suggestion of the court.^ 
 So where the ground assigned was the inattention and 
 
 ' Neave v. Milus, 29 Eng. L. and * Barrow v. Jones, 1 J. J. Mar. 
 
 Eq. 30G. 470. 
 
 2 Earl V. Dowling, 11 Eng. L. ^ Thompson v. Thompson, 2 
 and Eq. 420. See also Ratclifif v. Hay. 405. 
 
 Hicks, 23 Tex. 173; Freeman v. •* Dame v. Dame, 38 N. H. 434. 
 
 Xeyland, ib. 529 ; Walker v. Ar- ' Packer v. Heaton, 9 Cal. oG8. 
 
 raour. 22 HI. Go8 ; Alexander v. ^ Pickering v. Dowsou, 4 Taun. 
 
 Lewis, 1 Met. (Ky.) 407. 779. 
 
 3 Gwilt V. Crawley, 8 Bing. 144. 
 
 (a) The absence of counsel, to attend to business in another court, 
 when a case was called for trial, furnishes no ground for a new trial. 
 Power V. Gillespie, 27 Tex. 370. In Meyer v. Smith (Leg. Intell.), a 
 new trial was refused, where the case was tried in the absence of the 
 defendant's counsel, who, feeling indisposed, left the court-room without 
 leaving any notice with the court, or giving any notice to the plaintiff's 
 counsel, who, after keeping his witnesses in attendance for a day or two, 
 and receiving no word from the defendant's counsel, tried his cause when 
 it was reached.
 
 552 THE LAW OF NEW TRIALS. [CII, XVI. 
 
 misconduct of the clerk of the defendant's attorney, 
 whereby tlic case had been called on as an undefended 
 cause, the attorney having been obliged to go to Ireland. In 
 this case there were four defendants, and the three others, 
 a verdict having been rendered in their favor, objected to 
 a new trial.' So where counsel declined to call witnesses 
 who were in court, though requested to do so by the party 
 or his attorney.^ So where, in an action upon a bond 
 more than twenty years old, the defendant, in compliance 
 with the advice of his counsel, relied upon the presump- 
 tion of payment, though direct evidence might have been 
 produced.^ 
 
 § 55. And, in general, the mistake of counsel in reference 
 to some matter of fact which transpired in the course of 
 the trial, or his erroneous conclusion as to some point 
 involved in it, does not constitute a case within the 
 meaning of a statute, which authorizes the court, on 
 petition, to grant a new trial when injustice has been 
 done through accident, mistake, or misfortune.^ If the 
 party or his counsel failed in diligence in preparing for 
 the trial, or if there was a difference in opinion between 
 them as to the best mode of defence, and there was no 
 surprise, a new trial will not be granted.* Nor is it 
 ground for granting a rule to show cause, that the defend- 
 ant was not in attendance with his witnesses, by reason 
 of his attorney's having told him, that he would be in 
 time if he was in court the second day of the term.*' So 
 where a party authorized his attorney to settle a suit, and, 
 supposing it had been settled, gave no further attention 
 to it; this was held no ground for a new trial.^ 
 
 ' Breach v. Casterton, 7 Bing. ^ The Commonwealth v. Benech, 
 
 224. Thatclior's Grim. Gas. G84. 
 
 ^ Hall V. Stothard, 2 Chit. 2f>7. c Davis v. Winauts, 3 Harr. 30(5. 
 
 * Price V. Fuquha, 4 ^lunf. (W. ^ Patchiu v. Wegmau, 14 Mis. 
 
 * Handy v. Davis, 33 N. 11. 411. 151.
 
 en. XVI.] SURPRISE. 553 
 
 § 56. The defendant in an action for malicious prosecu- 
 tion did not prepare for trial, believing that the plaintiff 
 did not intend to prosecute his suit, as he had "gone 
 off;" but there was no other indication that he or his 
 lawyer had abandoned it, and the defendant's attorney 
 had promised to inform him in time in case it should be 
 necessary to prepare for trial, but did not do so. The 
 affidavit further stated, that the verdict was excessive, 
 and that he would be able to prove by witnesses, whose 
 affidavits were also offered, that he had probable cause for 
 the prosecution. Held, that these facts were not sufficient 
 excuse for not being ready for trial, and not sufficient 
 ground for a new trial, although the defendant swore that 
 tlie prosecution for which he was sued was commenced 
 without malice, and relied also on excess in damages.^ 
 
 § 57. On the other hand, cases sometimes occur, where 
 a new trial is granted for the absence of counsel.* So for 
 the mistake of counsel in suffering a verdict against him.^ 
 So a new trial was granted, as in the recent cases already 
 cited (§ 53), where a case was lost from the attorney's 
 neglect to defend it ; on the terms of his paying all costs, 
 as between attorney and client, thus putting the plaintift 
 in the same situation as if the neglect had not occurred.^ 
 So where a cause had been several days on the trial list, 
 but was taken up in the absence of the attorney ; a new 
 trial was granted on payment of costs. Abbott, C. J., re- 
 marked, " The circumstance of the cause being in the list 
 of the day is sufficient notice that it may be tried in the 
 course of the day, at any time or in any order, that cir- 
 cumstances might render most convenient."* So a de- 
 fendant moved for a new trial, upon an affidavit, that the 
 cause was a long way off and was called on, and, in the 
 
 ' Hollmrn v. Neal, 4 Dana, 120. * De Roufigny v. Peale, 3 Taun. 
 
 « 2 Salk. G4.-). 484. 
 
 ' Riley v. Emerson, 5 N. H. 531. ^ Fourdrinier v. Bradbury, 3 B. 
 
 Ace. Winn v. Young, 1 J. J. Mar. & Aid. 338. 
 52.
 
 554 THE LAW OF NEW TRIALS. [CII. XYT. 
 
 absence of tlic attorney, not defended; that he liad a good 
 defence and was ready to pay the money into court. The 
 motion was granted, on the terms that the money should 
 be brought into court; that judgment should be rendered 
 of the term, if the plaintiff again prevailed; and that the 
 defendant should forthwith pay the costs of the former 
 trial and of this application.^ So a cause was set down 
 for trial at the first sittings of the Michaelmas term, and, 
 no one appearing for the defendant, was taken at those 
 sittings as an undefended cause, and verdict entered for 
 the plaintiff. Upon affidavit by the defendant's attorney, 
 that he was under the impression that the cause would 
 be tried at the second sittings in that term, and had made 
 a memorandum accordingly in his note-book, the court 
 granted a rule for a new trial, on payment of costs by 
 the attorney.- 
 
 § 58. A new trial will be granted, where counsel are 
 prevented by an intimation from the judge, as to the sole 
 point to be tried, from introducing evidence in reference 
 to another material question.^ So where the defendant 
 was proceeding to examine witnesses, but was stopped by 
 the court, who instructed the jury that the plaintiff's 
 evidence did not sustain the action ; but they found for 
 the plaintiff."* But it is held otherwise, though in conse- 
 quence of an intimation of the judge, in favor of the de- 
 fendant, upon his calling a witness, he omits to examine 
 him, or introduce further testimony.' So a new trial was 
 refused, where, as the counsel- for the defendant was about 
 to address the jury, the judge remarked, that he considered 
 the case as turning on questions of law, and that he should 
 instruct the jury to give a verdict for a certain part of 
 the premises claimed ; whereupon the counsel omitted to 
 argue the case.® 
 
 ' Greatwood v. Sims, 2 Chit. 269. < Durham v. Baxter, 4 Mass. 79. 
 
 2 Ncavc V, Milns, 29 En;j. Law * Bookman v. Bemas, 7 Cow. 29. 
 and E(i. 300. ' ^ jacksou v. Cody, 9 Cow. 140. 
 
 ^ Le Fleming v. Simpson, 1 Man. 
 & Ry. 269.
 
 CH. XVI.] SURPRISE. • 555 
 
 § 59. The law does not favor the application of a plain- 
 tiff for a new trial, on the ground of having had a verdict 
 against him by surprise ; because he might have become 
 nonsuit.^ And this rule is adopted, though the case 
 turned upon evidence introduced by the defendant ; and 
 though the plaintiff offers affidavits tending to show 
 perjury in the defendant's witnesses and subornation by 
 him; counter-affidavits being introduced by the defend- 
 ant.^ And in such case equity will not interfere to grant 
 a new trial.^ 
 
 § 60. A distinction is made between the surprise neces- 
 sary to furnish ground of new trial, and that which is 
 sufficient cause to delay the trial.* And a similar distinc- 
 tion is made, where, according to practice, a juror might 
 be withdrawn^ instead of submitting to a nonsuit.' 
 
 § 61. Similar questions arise in case of the defendant's 
 default.{a) Thus, where the defendant's attorney, through 
 
 ' Richards v. Syms, Bull. N. P. « Willard v. "Wetlicrbee, 1 N. H. 
 
 326; Live, &c. v. Oregon, &c., 7 18. 
 
 Cal. 40. 5 xj. S. V. Coolidge. 3 Galli. 364. 
 
 2 Harrison v. Harrison, 9 Price, See People v. New York, ttc, 8 
 89. CoTV. 127 ; Hopper v. Smith, 1 AY. 
 
 3 Oswald V. Tyler, 4 Rand. 19. & M. 115. 
 
 (a) Where a party, in an action to recover a note in the Circuit Court 
 of the United States, had never had a trial, but was defaulted by mis- 
 take, supposing that the case was agreed to be continued ; he is entitled 
 to a trial on petition within three years, under a statute of the State of 
 Maine, and on proof of a probably good defence. That statute is not 
 repugnant to the provision in the judiciary act of 1789, authorizing a 
 new trial on motion after a verdict. It confers an additional right, not 
 inconsistent with the other, and not merely a new remedy for an old 
 right. A new trial, in such case, is usually had by a writ of review sued 
 oot and served, rather than by bringing forward the old action, and 
 serving a notice on the opposite side to defend. In either case, all pro- 
 per amendments in the pleadings will be allowed on the new trial, and, 
 where the plaintiff in the former action has since died, the service must 
 be on some administrator of the deceased who has taken out loiters in 
 Maine, Clark v. Sohier, 1 W. & M. 368.
 
 556 THE LAW OF NEW TRIALS. [CH. XVI. 
 
 a misapprehension of time, failed to arrive till fifteen 
 minutes after the hour at which the summons was return- 
 able, and, finding that judgment had gone against his 
 client as of default, thereupon requested the plaintift*, who 
 was present with his attorney and witness, to allow a 
 trial upon payment of the costs of default, which request 
 was refused; the default was held sufficiently excused, 
 and, the plaintift" having recovered upon the testimony of 
 his assignor alone, a new trial upon terms was ordered on 
 the unsupported affidavit of the defendant.^ But although 
 a default be satisfactorily excused, the court above will 
 not order a new trial, on the ground of manifest injustice, 
 unless the defendant ofi:er or show that it is in his power 
 to produce some other evidence, besides his own affidavit.^ 
 And it must be a very clear case of accident, mistake, or 
 misfortune, which will induce the court to grant a new 
 trial, where a party appears by counsel, and is defaulted, 
 with his assent, through mistake.^ 
 
 § 61a. Where the parties to a suit agreed that it should 
 be dropped, in consideration of which the defendant gave 
 up certain papers; but, remaining on the docket, it was 
 called for trial, and, the defendant not being prepared, a 
 verdict was given for the plaintiff: held, there should be 
 a new trial.* 
 
 § G2. A new trial will not be granted on the ground of 
 surprise, where the evidence in question was not objected 
 to.^ The objection in such case is held to be waived.^ 
 (See chap. 6, § 24.) More especially where the objection 
 might be obviated by further proof, if taken at the trial.^ 
 
 ' Seymour v. Elmer, 4 E. D. Jackson v. Cody, 9 ib. 140 ; Wait 
 
 Smith, 199. v. IMaxwell, 5 Pick. 217 ; Russell v. 
 
 2 Leut V. Jones, 4 E. D. Smith, Union, &c., 1 Wash. Cir. 440; Den 
 52. V. Geiger, 4 Halst. 235. 
 
 3 Dame v. Dame, 88 N. II. 429. ^ peters v. Phcenix, &c., 3 S. & 
 ♦ Comply V. Browne, 3 Brev. R. 2."). 
 
 240. ' Jackson v. Davis, 5 Cow. 123. 
 
 ^ Jackson v. Jackson, o Cow. 173;
 
 CH. XVI.] SURPRISE. 557 
 
 Thus a new trial will not be granted, where the objection 
 was first taken during the summing up, that the evidence 
 ofl'ered b}- the defendant did not maintain his pica of set- 
 oif.^ ISTor on the ground that a separate set-oft' was re- 
 ceived in answer to a joint claim, no objection being made 
 on that ground at the trial.^ 
 
 § 63. So a new trial was refused, where a verdict was 
 found in favor of a will, though the only living subscrib- 
 ing witness was not produced; the only objection having 
 been such non-production, which was said to be clearly 
 unfounded, and not a defective attestation.^ So, in reple- 
 vin on a distress for rent, the plaintiff" relied on a tender; 
 which was objected to, on the grounds that the precise 
 sum due was not offered, and a deduction of the property 
 tax claimed. The plaintiff" acquiesced in the objection, 
 and in a verdict for the defendant. Held, he could not 
 now raise the point, that the tender of a greater sum was 
 good.* Kor will a new trial be granted, where the de- 
 fendant acquiesced in the submission of a question rela- 
 ting to his own negligence, as a question of law to the 
 court; upon an affidavit that he did not expect the point 
 would come up as a question of fact, and that he could 
 have produced evidence in his favor.* 
 
 § 64. It has been sometimes held, however, that a new 
 trial may be granted, though the objection was not 
 made at the trial, where, if made, it could not have been 
 obviated.^ So if the evidence does not sustain the declara- 
 tion, although not objected to when offered, nor on that 
 specific ground. As where, in an action for diverting 
 water, after the testimony was closed the defendant ob- 
 jected, that upon the evidence either the plaintiff" and one 
 
 1 Abbott V. Parsons, 7 Bing. 5G3. < Robinson v. Cook, 6 Tann. 336, 
 
 2 Sherman v. Crosby, 11 John. ^ Lewis v. Stephenson, 3 Hall, 
 70. 248. 
 
 ^ Jackson v. Christman, 4 Wend. ^ Maynard v. Hunt, 5 Pick. 240. 
 
 S78.
 
 558 THE LAW OF NEW TRIALS. [CE. XVI. 
 
 A., or A. alone, owned the mills in question. This decision 
 was predicated upon the grounds, that the objection could 
 not have been met, however made ; and that the applica- 
 tion was made, as a case, not as a bill of exceptions.' So 
 though an erroneous charge was not objected to at the 
 time ; especially if founded upon evidence which was 
 wrongly admitted, though objected to.^ 
 
 § 65. A new trial was refused, where the plaintiff re- 
 covered a verdict, and the judge's report showed, that the 
 defendant had wholly failed to prove certain facts neces- 
 sary to a justification of the act complained of; although 
 at the trial the plaintiff did not object to the want of such 
 proof.^ 
 
 § Q6. It is ground of new trial, that the plaintiff, with- 
 out previous notice, objected to the reading of a deposition, 
 because the cross-interrogatories were not answered ; and 
 the deposition was rejected.* 
 
 § 67. But the general rule is laid down, that ruling 
 out a deposition on the ground of irregularity cannot in 
 any case be regarded as a surprise.^ So where a party, 
 who had taken the deposition of a witness, excepted on 
 the trial to so much of it as was illegal evidence, and the 
 court excluded it from the jury; the other party cannot 
 allege, as a ground for a new trial, that he was surprised.^ 
 So where a certificate of discharge in bankruptcy, granted 
 by the District Court of the United States in one State, 
 was offered in evidence as a defence to an action in another 
 State ; and rejected, because not authenticated by the judge 
 according to the act of Congress in respect to the authenti- 
 
 ' Rich V. Pcnficld, 1 Wend. 380. » Bcott v. Dclk, 14 Tex. 341. 
 
 Ace. Archer ». Hubbell, 4 Wend. ^ Smith ». Natchez, &c., 1 How. 
 
 514, n. Miss. 479. 
 
 2 Peoples. Ilolmos, 5 Wend. 193. ^ jV[organ v. Winston, 2 Swan, 
 
 ' Davies v. Morgan, 1 Cr. & Jer, 472. 
 587.
 
 CH. XVI.] SURPRISE, 559 
 
 cation of judgments; a new trial, asked on the ground of 
 surprise, was refused.' 
 
 § 68. An affidavit to support an application for a new 
 trial, on the ground of surprise, must show merits.^ And 
 that the surprise materially affected the verdict.^ And 
 that the contrary could be proved on another trial.^ So 
 also, not only that the evidence adduced at the trial was 
 unexpected, but that the party applying would have been 
 prepared, had it not been for the surprise, with evidence 
 to contradict the evidence adduced.^ "It is necessary to 
 swear that you were wholly surprised by the evidence."^ 
 
 § 69. Where a suit is managed by one for several, his 
 affidavit of facts and of a surprise will support a motion 
 for a new trial.^(a) 
 
 § 70. The affidavit for a new trial, because of the absence 
 of the party and his witness, must state the facts the wit- 
 ness would prove.^ Also the reason of his non-attendance.^ 
 
 § 71. If a new trial is sought on the ground that a 
 witness was mistaken in his testimony, and, having since 
 refreshed his memory, will testify differently on another 
 trial ; the affidavit of the witness to that effect should be 
 adduced, and the materiality of his testimony showu.^'^ 
 
 ' Dorsey v. Mawry, 10 S. & M. « Per Jervis, C. J., Roberts v. 
 
 398. Holmes, 34 Eiig. L. and Va[. 431. 
 
 2 Medium v. Judy, 4 Mis, 8G1. ^ South v. Thomas, 7 Mour. 59 
 
 3 29 Cal. 605. s Hjij. 
 
 * Holly v. Christopher, 3 Monr. ^ Spillars v. Curry, 10 Tex. 143. 
 
 14. '0 Ibid. 
 
 5 Walter v. Brandeis, 24 Eng. L. 
 and Eq. 245. 
 
 (a) Where counsel allege surprise as a ground for a new trial, they 
 should prove it by their own and not by their client's affidavit. Schell- 
 houfie V. Ball, 29 Cal. 605i
 
 560 TUE LAW OF NEW TRIALS. [CH. XVI. 
 
 § 72. Upon a motion for a new trial, where there were 
 several defendants, several afiidavits were introduced, 
 tending to show that some of the defendants were never 
 served with process, and never authorized the plea which 
 was filed. The language of the plea was, "The said de- 
 fendants (naming them) came in their proper persons," 
 &c., and, after they had heen served with process, and a 
 replication was filed, the record stated that "the defend- 
 ants" joined issue. Held, that the ohjections to the 
 verdict, as set forth in the afiidavits, were obviated by 
 the record.^ 
 
 § 73. Though the plaintiff's evidence be a surprise upon 
 the defendant, yet the defendant may by his own conduct 
 preclude himself from all relief on that ground. Thus a 
 new trial will not be granted on this ground, where the 
 party has been guilty of laches in making his motion ; or 
 after judgment has been entered ; nor where a defendant, 
 w^ho examines his own witness to disprove the plaintiff's 
 testimony, afterwards agrees that written points shall be 
 furnished to the court, but neglects to furnish them, in 
 consequence of which the judgment is delayed for several 
 months, several motion terms having in the mean time 
 elapsed ; and does this, without making any objection on 
 the ground of surprise, until some three months after- 
 wards.^ 
 
 ' Wright V. Haddock, 7 Dana, « Peck v. Ililer, 30 Barb. G55. 
 253,
 
 CII. XVII.J 
 
 AMOUNT OF DAMAGES. 
 
 5G1 
 
 CHAPTER XVII. 
 
 AMOUNT OF DAMAGES. 
 
 1. General rule. 
 
 
 19. 
 
 Nominal damages. 
 
 2. Cautiously applied— remarks 
 
 22. 
 
 Too small damages. 
 
 of judges. 
 
 
 29. 
 
 Partial new trial. 
 
 3. Exemplary damages. 
 
 
 30. 
 
 Remittur, &c. 
 
 4. Second new trial. 
 
 
 32. 
 
 Assault. 
 
 5. Declaration. 
 
 
 33. 
 
 False imprisonment. 
 
 6. Law and fact. 
 
 
 34. 
 
 Negligence. 
 
 8. Joint defendants. 
 
 
 35. 
 
 Libel, &c. 
 
 9. Fault of party — waiver. 
 
 
 40. 
 
 Malicious prosecution 
 
 10. Slight excess — opinion 
 
 of 
 
 41. 
 
 Trespass qu. claus. 
 
 judge, &c. — dissatisfaction. 
 
 
 42. 
 
 Watercourse. 
 
 13. Court above. 
 
 
 43. 
 
 Breach of promise. 
 
 14. Calculation of amount ; basis 
 
 44. 
 
 Seduction, «S;c. 
 
 of calculation. 
 
 
 
 
 § 1. A NEW trial may be granted for excessive damages.\a) 
 Or, for the finding of damages not justified by the evidence. 
 And a refusal to grant a new trial in such a case is held 
 ground for reversal of judgment.^ On this subject it is 
 remarked : " This is by no means encroaching upon the 
 jurisdiction of the jury, nor drawing the question to the 
 examination of a diflierent 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 
 
 • See Clerk v. Udall, 2 Salk. 649. 2 Pratt ». Blakey, 5 Mis. 205. 
 
 (a) Although a new trial is the legitimate and indeed exclusive mode 
 of correcting the errors of a jury in this important particular, it is 
 foreign from the plan of the present work to treat fully of the copious 
 subject of damages, or to do more than state the general principles upon 
 which applications for a new trial on this ground have been decided, with 
 a few miscellaneous illustrations applicable to particular injuries and 
 actions. Not a few of the cases founded upon the allegation of a verdict 
 against evidence turn wholly or chiefly upon the amount of damages. 
 36
 
 5G2 THE LAW OF NEW TRIALS. [CII. XVII. 
 
 been pronounced, 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. "'(«) 
 
 § 2. But excess of damages is a cause for granting a 
 new trial which the court will look at with great caution.^ 
 A new trial on this ground is said to be rarely granted 
 for personal torts.^ So in other cases judges have re- 
 marked : " Courts of justice have most commonly set 
 their faces against them" (in actions for torts).'' " I have 
 always felt it very diiRcult to interfere with the verdict 
 of a jury upon a question of amount."'' In refusing a 
 new trial, where a verdict had been rendered for £2000 
 for malicious prosecution, Mansfield, C. J., said: "Could 
 any one say, that any rational man of character would 
 for £2000 put himself in this situation? If not, the 
 damages are not excessive."^ 
 
 § 3. It is the prevailing rule, though seriously ques- 
 tioned and elaborately opposed by eminent jurists and 
 
 ' Per Lord Kcnyon, Duberley c. » Per "Wilmot, C. J., Huckle v. 
 
 Gunniiiir, 4 T. R. 6ol. Money, 3 Wils. 205. 
 
 2 CooTv ij. Hill, 3 Sandf. 341. See ^ Per Cresswell, J., Smith v. 
 Cliisvers v. Lambert, Barnes, 229 ; Woodfine, 1 Com. B., N. S. G61. 
 
 1 Mod. 2 ; Torre v. Summers, 2 N. ^ Hewlett v. Crucliley, 5 Taun. 
 & McC. 2G7. 277. 
 
 3 Per Lord Mansfield, Gilbert v. 
 Burtensliaw, Cowp. 230. 
 
 (a) Where there is no rule of law regulating the damages, and the 
 amount does not depend on computation, the judgment of the jury is to 
 govern, unless the damages are so excessive as to warrant the belief that 
 the jury must have been influenced by partiality or prejudice, or have 
 l)cen misled by some mistaken view of the merit.s. St. Paul v. Kuby, 8 
 Miu. ir)4. In a foreclosure action, where there is a counter-<;laim upon a 
 covenant of seisin, the question of damages is for a jury. Hall v. Gale, 
 20 Wis. 292. A new trial will not be granted for an erroneous instruction 
 as to the measure of damages, if it appears by the bill of exceptions that 
 the damages assessed were not too great. Couillard v. Duncan, G Allen, 
 440.
 
 CH. XVII.] AMOUNT OF DAMAGES. 563 
 
 commentators, that exemplary damages may sometimes be 
 properly awarded.^ Thus a verdict for $100 actual dam- 
 ages and $1000 exemplar}^ damages was held good.^ So, 
 in an action for entering the plaintift''s close and driving 
 off his hogs, though proved to have been worth but $25, 
 a verdict for $100 ; on the grounds of the invasion of the 
 plaintiff's premises, the vexation to his feelings, depriva- 
 tion of his property, its value, and " smart money," or 
 exemplary damages.^ But a verdict was set aside by the 
 court above, for a charge, in an action of tres[)ass, that, 
 if the jury should believe the plaintiff entitled to exem- 
 plary damages, "tlie law left it to their discretion to say 
 what the amount should be, and they could find any 
 amount they thought proper," within the limits of the 
 declaration.* And, in general, where it is plain, from the 
 amount of the verdict, that the jury have given exem- 
 plary damages where none should have been allowed, the 
 verdict will be at once set aside.^(a) 
 
 § 3«. In general, where there is no certain measure of 
 damages, the court will not disturb the verdict, except 
 for prejudice, passion, or corruption in the jury, and 
 where the verdict is palpably against evidence." Or, as is 
 
 1 McGeliee v. Sliafer, 9 Tex. 20. Mis. 354 ; Lang v. Hopkins, 10 Geo. 
 
 2 Pendleton v. Davis, 1 Jones, 37 ; Barnette v. Hicl<s, 6 Tex. 352; 
 98. Cook V. Garza, 9 ib. 358 ; Goetz v. 
 
 3 Clark V. Bales, 15 Ark. 452. Ambs, 27 Mis. 28 ; Gilbert v. Bur- 
 * Bryan v. Acee, 27 Geo. 87. tenshaw, Cowp. 230 ; Sargent v. 
 5 Beveridge v. Welch, 7 Wis. Deniston, 5 Cow. 106; Payne v. 
 
 465. The Pacific, &c. , 1 Cal. 33 ; George 
 
 • 6 Goodall D. Thurman, 1 Head, v. Law, ib. 363 ; Allen v. Blunt, 2 
 
 209 ; Danville, &c. v. Stewart, 2 W. & M. 121 ; Aiken v. Bemis, 3 
 
 Met. (Ky.) 119; Smith v. Wood- ib. 348; Carr ». Gale, ib. 38. But 
 
 fine, 1 Com. B. 659; Bircliard v. see Josey v. Wilmmgtou, &c., 11 
 
 Booth, 4 Wis. 67; Treanor ». Don- Rich. 390; Parker v. Lewis, 1 
 
 ahoe, 9 Cush. 228 ; Sexton ». Brock, Hemp. 72. 
 15 Ark. 345 ; Wells b. Sawyer, 21 
 
 (a) Whether a trespass was committed under circumstances of aggra- 
 vation, is for the jury, and an instruction requiring them to assess vin- 
 dictive damages is erroneous. Hawk v. Ridgway, 33 111. 473.
 
 564 THE LAW OF NEW TRIALS. [CH. XVII, 
 
 sometimes said, where the damages found by a jury de- 
 pend on facts, the court will not interfere.' In other 
 cases the proposition is laid down, that the power to 
 grant new trials will be applied, when the damages are 
 either so large or so small as to force upon the mind 
 of every one acquainted with the case the conviction, 
 that the jury have acted under the influence of a per- 
 verted judgment.- 
 
 § 4. A second new trial has been refused for excess of 
 damages.3(a) So a new trial has been refused, where upon 
 a second trial the same damages were given as on the 
 first.* So, in a late case, by means of a railroad collision 
 a child six years old was injured as follows. Her skull 
 was fractured back of the ear, and the bone pressed in 
 upon the pupil of the eye, causing a visible and perma- 
 nent deformity. Whether her sight or health was affected, 
 did not distinctly appear. Six years afterwards, when 
 the case was tried, no more serious results had appeared, 
 since the first healing. The mind and sight were not 
 seriously afl:ected ; nor had there been any epilepsy or fits. 
 The defendant corporation had paid the physicians. Two 
 verdicts had been rendered for $7000. The first was 
 set aside for errors of law. Held, the last verdict should 
 stand.^ 
 
 § 5. That judgment was rendered for a larger sum than 
 that claimed in the complaint, is suflicient ground for a 
 new trial. '^ So, if the evidence does not sustain the dec- 
 
 ' Rice V. Sims, 8 Rich. 416. * Clerk v. Udall, 3 Salk. 649. 
 
 2 Clapp ('. Hudson, ttc, I'J Barb. ^ Macon, &c. v. Winn, 20 Geo, 
 461. 250. 
 
 3 Chambers v. Robinson, 1 Str, "^ Roberts v. INIuir, 7 Ind, 544. 
 691. 
 
 (a) Upon the question whether a verdict is excessive, if it concurs 
 with a previous one, unless clearly shown to be excessive, it will not be 
 set aside. Russ v. War Eagle, 14 Iowa, 363.
 
 en. XVII.] AMOUNT OF DAMAGES. 565 
 
 laration, the verdict will be set aside, although upon the 
 evidence alone the damages would not be excessive. Thus 
 the complainant set forth a contract to pay him a specific 
 remuneration (the use of two negroes), for services to be 
 rendered, and, in case of failure to do so, to pay him $300. 
 He proved the first part of the contract, but failed to 
 prove the other ; and he proved also that the value of the 
 remuneration promised was $300; for which sum the jury 
 found a verdict, and the court below rendered a judgment 
 thereon. The court above held, that, as the alternative 
 promise was not proved, the verdict was without evidence 
 to support it, and reversed the judgment.' But a new 
 trial was refused, though on a writ of inquiry after de- 
 fault the jury assessed the damages by the sum under- 
 written in the policy declared on, without further evi- 
 dence.^(c() 
 
 § 6. Where it is the duty of the court to determine 
 the amount of damages, and the judge submits the matter 
 to the jury, who decide correctly, a new trial will not be 
 granted.^ 
 
 § 7. Although, if a jury ask what amount of damages 
 will carry costs, there is no reason why the judge should 
 not inform them ; yet their having given a verdict, in 
 ignorance that it will not carry costs, is no reason why, 
 after an application for a certificate, which implies that the 
 verdict is recorded, the verdict should be disturbed.^(6) 
 
 ' McGreal v. Wilson, 9 Tex. 426. ^ Hathaway v. Crosby, 5 Shep. 
 2 Thellusou V. Fletcher, 1 Doug. 448. 
 315 * Kilmore v. Abdoolah, 3 Hurl. 
 
 & Nor. 956. 
 
 (a) Under the (Ind.) Code, a new trial will not be granted, on the 
 ground that the plaintiff has recovered larger damages than were de- 
 manded in his writ. Webb v. Thompson, 23 Ind. 428 ; Raymond v. Wil- 
 liams, 24 ib. 416. 
 
 {&) The jury having found a verdict for five guineas, in an action for 
 a trifling assault, evidently acting upon information given to them by
 
 566 THE LAW OF NEW TRIALS. [ciI. XVII. 
 
 § 8. In tlic case of Gregory v. Slowman (1 Ell. & Bl, 
 369), Lord Campbell, C. J., suggested the point as a doubt- 
 ful one, whether a verdict against two defendants could 
 be set aside, on the ground that the damages were exces- 
 sive as to one of them only, or whether, on the other 
 hand, as claimed for the plaintiff, " the measure of damages 
 ought to be the sum which ought to be awarded against 
 the most guilty." 
 
 § 9. It is held that a verdict will not be set aside, where 
 the excess is caused by the defendant's own fault.^ Or 
 where judgment is rendered against a defendant for a 
 slight amount too much, if he appears by design or care- 
 lessness to have contributed to the result.-(«) Or where 
 an improper deduction has been made from the plaintiiFs 
 damages, if he is satisfied.^ But, in an action for injury 
 to the nervous system sustained by a railroad collision, 
 the damages were £2600. It appeared that the plaintiif 
 was advised by physicians to abstain from his business — 
 that of a barrister — for two years, but did not follow that 
 advice. In overruling the motion for a new trial, Erie, 
 C. J., said, "It is impossible for any one to say posi- 
 tively whether, if the plaintiff had acted on the advice, 
 the depression of mind resulting from that circumstance 
 might not have been more injurious than his continuing 
 in his work."^ 
 
 • Brown v. Tanner, 1 Car. & P. 3 Lucy v. Bnndy, 9 N. II. 208. 
 
 Gol. * Saunders ». The London, &c., 
 
 2 Billingsley v. Groves, 5 Ind. 8 Com. B.— J. Scott, N. S. 887. 
 553. 
 
 the plaintiff's counsel, that a verdict for less would not give the plaintiff 
 her costs; the court granted a new trial without terms. Poole v. "Whit- 
 comb, 12 C. B. (N. S.) 770. 
 
 (a) AVhere the defendants, upon the trial, admit that the amount 
 claimed is correct, if anything is due; the court will not grant a new 
 trial, upon the suggestion that the evidence does not warrant the I'ccov- 
 ery of so large au amount. Kowe v. Smith, 10 Bosw. 268.
 
 CH. XVII.] AMOUNT OF DAMAGES. 567 
 
 § 10. A verdict will not be set aside, merely because 
 higher damages were assessed than the court would have 
 given. ^(r<) Unless the court are satisfied that the jury either 
 were actuated by some improjier motive, by partiality, 
 prejudice, passion, or corruption, or proceeded on some 
 erroneous principles of assessment.^ Or are clearly con- 
 vinced the damages are too great.^ More especially where 
 there is no certain measure of damages.'* Or where the 
 verdict violates no rule of law.^ Or there is only a slight 
 excess.^ 
 
 § 11. As in cases of motion for a new trial, upon the 
 ground that the verdict is against evidence^ generally; the 
 prevailing rule is, that a new trial will not be granted for 
 excessive damages, where the judge is satisfied with the 
 verdict.'^ But, on the other hand, the dissatisfaction of 
 the judge is not regarded as conclusive in favor of a new 
 trial. Thus the verdict was sustained, though the judge 
 reported the damages to be very excessive.^X^) 
 
 ' Chenowitb. v. Hicks, 5 Ind. Lang v. Hopkins, 10 Geo. 37; Fish 
 
 234. See Blanchard v. Morris, 15 v. Roseberry, 22 111. 288. 
 111. 35. ^ Steppaclier v. Reneau, 25 Miss. 
 
 2 Creed v. Fisher, 26 Eng. Law 114. 
 
 and Eq. 384 ; Boyce v. California ^ Milton v. Blackshear, 8 Flori. 
 
 Stage Co., 25 Cal. 4G0 ; Reuck v. IGl. 
 
 McGregor, 3 Vroom, 70 ; Aldrich ^ Tullidge v. Wade, 3 Wils. 18 
 
 v. Palmer, 24 Cal. 513; Ross v. Bennett v. Alcock, 2 T. R. 166 
 
 Innis, 35 111. 487 ; Kennedy v. Rcdshaw v. Brooks, 2 Wils. 405 
 
 North, 36 Mis. 351; McCarty v. Britton v. South, &c., 3 Hurl. & 
 
 Fremont, 23 Cal. 196. N. 963. 
 
 3 Woodson V. Scott, 20 Mis. 272. « Sharpe v. Brice, 2 W. Bl. 942. 
 * Jacobs a. Bangor, 4 Shep. 187; 
 
 (a) A verdict will not be disturbed, in an appellate court, on the 
 ground of excessive damages, where it appears only doubtful whether 
 they are too l^rge. New Orleans v. McBride, 38 Miss. 32. 
 
 (&) In an action, claiming special damages for non-delivery of goods 
 within a reasonable time, the defendants, admitting their negligence to 
 have been the cause of the non-delivery, paid £10 into court. The judge 
 left it to the jury, whether the £10 was a sufficient compensation for the 
 pecuniary loss, pointing out that on the evidence there was no pretence 
 for saying that the plaintiff had sustained any substantial loss. The
 
 568 THE LAW OF NEW TRIALS. [CH, XVII. 
 
 § 12. In a lending English case of crim. con., the de- 
 fendant oflered evidence, tending to show gross negligence 
 or inattention on the part of the husband in reference to 
 the conduct of his wife. Lord Kenyon intimated to the 
 jury, that the evidence sustained this ground ; but they 
 returned a verdict for £5000. A motion for a new trial 
 was overruled, although Lord Ivenyon remarked that the 
 damages were much too large, and that he should have 
 been satisfied with merely nominal damages.^ 
 
 § 13. It is sometimes held, that, upon a rule for a new 
 trial for excessive damages, the decision of the court 
 which tried the cause is conclusive.^ So, in North Caro- 
 lina, the Supreme Court refused to reverse a judgment of 
 the Superior Court and order a new trial, because of the 
 alleged finding of excessive damages by the jury, or the 
 refusal of the court to set aside that finding.^ But the 
 qualified rule is more generally adopted, that a verdict 
 will not be set aside for this cause by the court above, 
 unless in case of partiality, corruption, &c.' 
 
 § 14. The application for a new trial on the ground of 
 excessive damages is of course more favorably received, 
 where the jury have disregarded some definite basis of 
 calculation, than where from the nature of the case the 
 damages are left to their discretion. To the former class 
 
 ' Duberlpy «. Gunning, 4 T. K. * Cropsey v. Murphy, 1 Ililt. 
 
 Ool. 126; Blum ?,'. Iliirgins, lb. 147; 
 
 2 Young V. Ilairston, 3 Dev. 55. Lester v. Baruett, 33 Mis. 584. 
 
 3 McRae v. Lilly, 1 Ired. 118. 
 
 jury liaving given a verdict for £5, beyond the £10; held, the amount 
 of damages had been properly left to them, and, although the court 
 might think the verdict wrong, and £10 enough, yet, the damages 
 recovered being less than £20, the verdict could only be disturbed on 
 the ground of its being perverse ; and, as the jury had not disobeyed 
 any directions of the judge, the court could not disturb it. Adams v. 
 Midland, 7 Hurl. & Nor. 1034.
 
 en. XVII.] AMOUNT OF DAMAGES. 569 
 
 of cases belong actions on contracts, or for torts done to 
 property, the value of which may be ascertained by evi- 
 dence; in which therefore a new trial will be awarded, 
 if the finding be contrar}^ to the evidence.^ It is ground 
 of new trial, that mistakes were made by the jury in their 
 calculations.^ But, on a motion to set aside a verdict for 
 excessive damages, it is not allowable to prove, by the 
 jurors, their mode of computation.' And if by any calcu- 
 lation, which the evidence will reasonably support, the 
 verdict can be sustained as to amount, a new trial should 
 not be granted, whether it be the same calculation made 
 by the jury or not.\a) As where the judge of the court 
 below certified that he had made a laborious calculation, 
 which resulted in a larger amount than was found by 
 the jury.' Nor when the damages appear to have been 
 assessed neither at the highest nor the lowest estimate of 
 witnesses, and there is nothing indicating that the jury 
 must have acted under the influence of passion or undue 
 bias.^ 
 
 § 15. In some cases, the plaintiff ought not to be held 
 to the most explicit or exact proof of the amount of his 
 
 • Lang V. Hopkins, 10 Geo. 37. ^ Hovey v. Luce, 31 Maine, 346. 
 
 See Fish v. Roseberry, 22 111. 388 ; « Dacy v. Gay, 16 Geo. 203. 
 
 Southwestern Railroad v. Paulk, 5 gndling c.Darrell, 17 Geo. 141. 
 
 24 Geo. 356. ^ Gilbert v. Woodbury, 9 Shep. 
 
 2 Killen v. Sistrunk, 7 Geo. 283. 246. 
 See Southwestern, &c. v. Paulk, 
 24 Geo. 356. 
 
 {a) In a suit to recover a slave or her value, it is no ground for a new 
 trial, that the jury assessed the price of the slave at $8.5 more than her 
 value, the judgment being in the alternative, for the slave or her value. 
 Cochrane v. Winburn, 13 Tex. 143. Where the verdict, in an action to 
 recover for legal services was for a much larger sum than that sustained 
 by the weight of evidence, the judgment of the court below was reversed. 
 Packard v. Bates, 38 111. 40. The right to recover interest, in an action 
 for money had and received, is a question of law. A jury has the right 
 to pass upon the question, only where it may be charged as damages. 
 Robinson v. Corn Exchange, 1 Rob. 14.
 
 570 THE LAW OF NEW TRIALS. [CII. XVII. 
 
 damages, and the jury arc warranted in exercising a 
 liberal discretion. Thus, in an action for infringement of 
 a patent, there was no proof of the cost of the manufacture, 
 or of the sale price, but it was in evidence that sales were 
 hi^dily profitable, and that the defendants had manu- 
 factured and sold very large quantities. No proof was 
 oftered by the defendants in regard to the amount of their 
 manufacture or sales, nor of the value of the article in the 
 miirkct. Held, a verdict for the plaintift'for $2000 should 
 not be set aside.' So, though the damages appear greater 
 than the court would have given, if they depend on sun- 
 dry matters of account, which the evidence does not ena- 
 ble the court to state with precision.2(a) 
 
 § 16. A new trial was granted, where the plaintiff sued 
 for a l^alance of $300 on an account for $700, admitting 
 the payment of $400, and then proved only about $600 of 
 the account, and the jury brought in a verdict for the 
 whole balance.^ So in case of a verdict, finding the 
 value of a chattel to be $45, and assessing $100 for the 
 use or detention of it from the commencement of suit.* 
 Or a verdict, in trover, for the full value of slaves, where 
 the plaintitt" has only a life-estate.'* So where the price of 
 three slaves, sold with warranty of soundness, was $2550; 
 and, in an action for a breach of warranty as to two only, 
 the damages were $2200.^ So where, in an action for the 
 rents and profits of land, before recovered, but which the 
 
 > Stephens ti.Felt, 2 BlatcU. C. C. ' Sclmette v. Sutter, 23 :Mis. 240. 
 37^ 39. ^ Morris v. Thomson, 1 Rich. 
 
 2 Douglas V. Chapin, 26 Conn. 65. 
 
 7g. G In^^raham v. Russell, 3 How. 
 
 3 Allen V. Brown, 11 Tex. 520, Miss. 304. 
 
 (a) In questions of damages for taking gold from a mining claim, the 
 plaintiff must necessarily find great difficulty in showing the amount 
 taken, and therefore the defendants cannot complain of excessive 
 damages, if they do not show the correct amount of gold taken out by 
 them. Antoine Co. v. Ridge Co., 23 Cal. 219.
 
 CH. XVII.] AMOUNT OF DAMAGES. 571 
 
 defendant retained two or three montlis after sueli re- 
 covery, the verdict was for more than $200, although it 
 appeared in evidence that the annual value did not exceed 
 $200.^ So where, in an action for harboring and concealing 
 slaves, founded upon the loss of their services for six days 
 and certain expenses of recovering them, which could not 
 according to the evidence exceed six hundred dollars, the 
 verdict was for twelve hundred ; a new trial was granted 
 at the cost of the defendant.^ 
 
 § 17. Damages in a suit for the wrongful taking of 
 property will not be regarded as excessive, merely because 
 they greatly exceed the price obtained by a sale of the 
 property. Thus a new trial was refused in an action of 
 trover, where the damages were three times the amount 
 for which the property, being machinery in a factory, sold 
 at auction at sherilf 's sale.^ 
 
 § 18. It is ground of new trial, if the jury find arbitrary 
 damages, instead of an increased rent, which by agreement 
 is the measure of damages.^ But not, in case of a penalty, 
 where the verdict is for a less sum.^ Or for stipulated 
 damages.^ 
 
 § 18a. Where the criterion of damages is fixed by law, 
 if the jury, after judgment by default, assess too great an 
 amount, the court should set aside the verdict.^ So where 
 the rule of damages is fixed by statute, and the verdict is 
 evidently the result of a mistaken view of the rule applica- 
 ble to the facts.8 'Bwt^ on the other hand, where a statute 
 provides expressly that the jury in cases under the statute 
 
 1 Lelire v. Sumter, 3 Brev. 19. 346 ; Dennis v. Cummius, 3 John. 
 
 2 Jones V. Van Zant, 2 McLean, Cas. 297. 
 
 611. 6 Hasbrouck'U. Tappen, 15 John. 
 
 3 Aycr V. Bartlett, 9 Pick. 156. 200. 
 
 * Farraut v. Olmins, 3 B. & Aid. ? Wliite v. Green, 3 Monr. lo5. 
 692. ^ Todd v. Boone County, 8 Mis. 
 
 5 Astley V. Weldeu, 2 B. & P. 431.
 
 572 THE LAW OF NEW TRIALS. [CH. XVII. 
 
 shall "be the sole judges of the damages sustained;" the 
 courts have no authority to set aside a verdict, for excess 
 in the damages.^ 
 
 § 19. It is held that a new trial will not be ordered, 
 merely for a failure to assess nominal damages,^ when 
 there is a mere technical right to recover.^ ]More espe- 
 cially when substantial justice has been done.* 
 
 § 20. In an action for cutting down one hundred and 
 eighty-two timber trees, held not error for the judge to 
 leave it to the jury, whether the party was entitled to 
 more than nominal damages, and, if so, how much.^ Nor, 
 on the other hand, in an action for false imprisonment, to 
 express an opinion that more than nominal damages 
 should be given, where the question of amount is fully 
 left to the jury.^ 
 
 § 21. In general, the court will not grant a new trial, 
 to enable the plaintiii' to recover vindictive damages 
 merely. Otherwise if he is entitled to nominal damages 
 only, and the action is brought to try a question of per- 
 manent riglit.'^ 
 
 § 22. It is said in an old case, " 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. "^ 
 
 § 23. A verdict will not be set aside merely for the 
 
 ' Lewis V. Black, 37 Miss. 435. e Oswald v. Kcnncdv, 48 Pcnn. 
 
 2 Patton V. Hamilton, 13 Iiul. 9. 
 
 256. '' Plumloigh v. Dawson, 1 Gilm. 
 
 ^ Ilndspcth p. Allon, 30 Ind. 105. 544. See Johnson v. Wccdnian, 4 
 
 » The State v. i\Iiller, 5 Blackf. Scam. 495 ; Jenny v. Delesdernier, 
 
 381. 2 App. 183. 
 
 5 Archibald v. Davis, 4 Jones, ** Tultou v. Andrews, Barnes, 
 
 133. 448.
 
 CH. XVII.] AMOUNT OF DAMAGES. 573 
 
 small amount of damages, however trifling it may be. 
 As where the amount was half a farthing} 
 
 § 24. A new trial will not be granted, on the ground 
 that from the small amount of damages the jury must 
 have come to a compromise, unless, from the circum- 
 stances of the case, it is evident that there has been a 
 total refusal on the part of the jurors to discharge their 
 duty, and the verdict is necessarily w^holly inconsistent.^ 
 
 § 25. A new trial was refused, where the verdict was 
 for fifty dollars, in a case of very great bodily injury by 
 being run over with a dray ; the plaintiff being in fault, 
 but less so than the defendant.^ 
 
 § 26. The court refused to grant a rule for a new trial, 
 on the ground of the insufiiciency of the damages, w^here 
 the jury had given only one farthing damages in an action 
 of trespass for taking the plaintiff before a magistrate, 
 upon an unfounded charge of felony, merely because a 
 question of character was involved.^a) 
 
 ' Marsham v. Buller, 2 Ro. R. ^ Richards v. Rose, 24 Eng. L. 
 
 21 ; Cro. Jac. 458. See Lord G— r and Eq. 40G. 
 
 V. Heath, Barnes, 445 ; Hay ward » Flanders v. Meath, 27 Geo. 358. 
 
 V. Newton, 2 Str. 940 ; Barker v. * Apps v. Day, 26 Eng. Law and 
 
 Dixie, ib. 1051 ; Mauricet v. Breck- Eq. 335. 
 nock, 2 Doug. 509 ; Burges v. 
 Nightingale, Barnes, 230. 
 
 (a) It is no ground for a new trial, in an action for an assault and 
 false imprisonment, that the plaintiff had incurred an expense of 7Z. 14s., 
 in procuring his discharge from custody, and the jury have awarded him 
 a farthing only. Bradlaugh v. Edwards, 11 C. B. (N. S.) 377. In an 
 action against a bailee, for injury to and destruction of goods, the jury 
 returned a verdict for the plaintiff, with nominal damages. Held, no 
 ground for a new trial, that, according to the evidence, the damage, if 
 any, must have been more than nominal, and that there was uncontra- 
 dicted evidence of a loss of goods, to the extent of 2/. Mostyn v. Coles, 
 7 Hurl. & Nor. 872.
 
 574 THE LAW OF NEW TRIALS. [CIL XVII. 
 
 § 27. The rule, against granting a new trial on the 
 ground of too small damages, in actions for wrongs or 
 injuries, is by no means without cxce[ttions. More espe- 
 cially where the circumstances furnish a reasonably certain 
 measure of damages.^ As where, in an action for injury 
 caused by running over the plaintiti', the jury found a 
 verdict for 6c/. damages, though the plaintift' had paid 4?. 
 10s. for necessary surgical attendance.^ So upon a writ 
 of inquiry, in an action for dilapidations, two surveyors 
 were called on each side: those called for the plaintiff 
 estimated the dilapidations, the one at 119/., the other at 
 124/.; those called for the defendant estimated them, the 
 one at 63/. 15.^., the other at 68/. Verdict for 36/. 10s. 
 The court ordered that the inquisition be set aside with- 
 out costs, unless the defendant will consent to the verdict 
 being entered for 63/. 15s.^ So a new trial was granted, 
 where, in an action against a lessee for cutting down a 
 grove of large oak-trees which surrounded the buildings, 
 evidence was furnished, not only of serious injury, but of 
 the actual extent of the injury, and the jury found only 
 nominal damages.'* Verdicts have also been set aside on 
 this ground, in cases of libel,' slander,^ and assault.^ Thus 
 the defendant had fired a gun loaded with buckshot at 
 the plaintifi", and nearly taken off an arm. In an action 
 for assault and battery, the jury gave a verdict for one 
 dollar. On motion for a new trial, the court remarked, 
 that the jury had behaved shamefully, and deserved the 
 severest reprehension for such glaring partiality and in- 
 justice, and granted the motion.^ 
 
 § 28. In general, where the damages are susceptible of 
 
 ' Bishop V. The Mayor, &c., 7 < English c.Clerry, 3 Hill (S.C), 
 
 Geo. 200. 279. 
 
 2 Tfdd V. Douglas, 5 C. B. (N. ^ Lpyi ^.Milno, 4 Bing. 195. 
 S.) 89.J. '' Kixcy v. Ward, 3 Raud. 52 
 
 3 Weeding v. Mason, 3 C. B.(N. (authorized l)y statute). 
 
 S ) 382. ^ Baeot v. Keith, 2 Bay, 466. 
 
 8 Ibid.
 
 CH. XVII.] AMOUNT OF DAMAGES. 575 
 
 compntation, if too small, the verdict may be set asi(le.'(a) 
 As, where, in an action on a warranty, the plaintiff's evi- 
 dence was conclusive, but the jury found a verdict for one 
 cent damages.^ So where, in assumpsit on the implied 
 warranty of the soundness of a negro, a verdict was given 
 for the plaintift', for one dollar.^ So the defence to an 
 action, brought to foreclose a mortgage, was failure of 
 consideration as to the notes secured, on the ground of 
 eviction from one of the four pieces of land purchased, 
 with an averment, that such piece of land was worth 
 $2000. The defendant introduced three witnesses, one of 
 whom estimated the land at $900 to $1050, another at 
 $1125, and the third at $1200, which evidence was not 
 contradicted by the plaintiff, nor the witnesses impeached. 
 A verdict for $440, for breach of the covenants in the 
 plaintiff's deed, was set aside as contrary to evidence.* 
 So where the damages have been reduced by the admis- 
 sion of improper evidence, this is ground for setting aside 
 the verdict.^ In some cases, however, a new trial has 
 been refused on this ground, though there was a manifest 
 error of computation. A strong case of this nature was 
 where the jury allowed interest upon a note only from 
 the date of the writ, whereas it should have been allowed 
 from the date of the note ; and the effect was, to reduce 
 
 • See Parr v. Purbeck, 8 Mod. « Wallace v. Frazier, 2 N. & 
 
 194 ; Earl, &c. v. Sadler, 13 ib. McC. 516. 
 
 348; Woodward v. Eadcs, 1 Str. ^ Verdier». Trowell, 6 Rich. 1G6. 
 
 425 ; Markham v. Middleton, 2 ib. ■» Fawcett v. Woods, 5 Clarke, 
 
 1259; Taunton, &c. v. Smith, 9 400. 
 
 Pick. 11 ; Russell v. Ball, Barnes, ^ Tutton u. Andrews, Barnes, 
 
 445. 448. 
 
 (a) In an action to recover fees for professional services, the only testi- 
 mony as to the value of the services was, that they were worth not less 
 than a certain sum. Held, a verdict for a less sum must be set aside. 
 Hood V. Ware, 34 Geo. 328 ; Shropshire v. Doxcy, 25 Te.\. 113. So in 
 an action on a bond, where no evidence was given by the defendant ; a 
 verdict for only one-fourth of the debt. Carwilc v. Harvey, 15 Rich. L. 
 314.
 
 576 THE LAW OF NEW TRIALS. [CH. XVII. 
 
 the verdict to a sum which imposed the costs upon the 
 plaintiff? So a new trial was refused, in a case of com- 
 putation, for too small damages, though the verdict was 
 contrary to the instructions of the court.^ 
 
 § 28a. In an action for an injury sustained upon a 
 railroad, it appeared without contradiction, that the 
 plaintiff" in consequence of the injury remained insensible 
 through the day ; that he did not use his feet or hardly 
 know that he had any feet for ten or twelve days ; and 
 was laid up nearly five months, and most of the time 
 confined to the house. A verdict for the plaintiff* for six 
 cents damages was on his motion set aside.^ 
 
 § 29. "Where the damages are excessive, a new trial 
 may be granted, to determine the damages, without open- 
 ing the whole case.^ So where the jury find for the plain- 
 tiff', and assess damages for the detention of his property, 
 but do not find the value of the property; the court may 
 award a writ of inquiry to assess the value, and not order 
 a new trial in toto.^ 
 
 § 30. The court may allow a remittitur of the excess of 
 damages found, and overrule a motion for a new trial.^ 
 Thus, even in an action for a personal injury, the sum to 
 be entered was named by the court.'' But, in case of a 
 verdict for twenty-five dollars more than the evidence 
 warranted, the court, apprehensive that there was culpable 
 
 ' Hager v. Weston, 7 Mass. 110. s jjey ^, Allen, 3 Murpli. 523. 
 
 Ace Walker v. Smith, 1 Wash. Cir. ^ Young v. Englehard, 1 How. 
 
 202 ; Bourke v. Bulow, 1 Bay, 49. l\Iiss. Ifl ; Smith v. Paul, 8 Port. 
 
 2 Walker v. Smith, 4 Ball. 389. 503; Reasoner v. Brown, 19 Ark. 
 
 ' Piobbins v. The Hudson, &c., 7 234 ; Evertson v. Sawyer, 2 Wend. 
 
 Bosw. 1. 507 ; Harry v. Watson, 4 T. R. 
 
 * Boyd V. Brown, 17 Pick. 453 ; G59, n. ; Branch v. Bass, 5 Sneed, 
 
 Bobbins v. Townsend, 20 ib. 345; 3GG. 
 
 Harriston v. Sale, G S. & M. G34. ' Dillin v. Murphy, 3 Sandf. 19.
 
 CII. XVII.] AiMOUNT OF DAMAGES. 577 
 
 inattention or indifference on the part of the jury, did 
 not order a remittitur, but remanded the case for a new 
 trial. ^ So if the jury find a gross sum for principal and 
 interest, where the plaintiff is not entitled to interest, 
 and it cannot be collected from the verdict what part of 
 the sum was found for interest ; the verdict will be set 
 aside and a new trial ordered, although the plaintiff offer 
 to release the interest.-(rt) 
 
 § 31, "Where an obvious arithmetical error, in a discount 
 sj^ccially pleaded, was corrected by a jury, so that the dis- 
 count allowed was greater than that claimed by the plea, 
 the court would not set aside the verdict.^ But on an 
 indictment for larceny of several articles of the same 
 kind, for each of which there is a specific penalty, if a 
 less number be proved than is laid in the indictment, and 
 the jury find a general verdict, a new trial will be granted, 
 although the attorney -general oft'ers to procure a remission 
 of the penalties for all but the articles proved.^ 
 
 ' lilies V. Diercks, 16 Tex. 251. * The State v. Herring, 1 Brev. 
 
 2 Lesesue v. Grant, 1 Brev. 403. 159. 
 ^ Richardson v. Murraj^, Cheves, 
 11. 
 
 (a.) In a late English case, in which the defendant had seized and 
 sold the stock npon the plaintiff's farm, claiming under an instrument, 
 which was ruled to be a bill of sale to her by a former occupier of the 
 stock then on the farm, as security for money advanced by her ; and the 
 plaintiff had repeatedly applied to the defendant in vain for accounts of 
 his claim ; and there was no satisfactory evidence as to whether the origi- 
 nal debt was subsisting; and the sale included many things which the 
 defendant must have known were not in the bill of sale at all ; and there 
 were circumstances of great aggravation : it was held, that it was rightly 
 left to the jury whether they believed the debt to be due, and whether 
 it was due to the assignor as executrix, and that, if not,- they should 
 find for the plaintiff, and it was a proper case for vindictive damages. 
 The jury having given, beyond the full value of the stock seized, more 
 than double that value by way of damages, the court were reluctant to 
 interfere, although they thought the amount excessive, and recommended 
 a compromise. Thomas v. Harris, 3 Hurl. & Nor. 961. 
 
 * 37
 
 578 TUE LAW OF NEW TRIALS. [CU. XVII. 
 
 § 32. Ill actions for personal torts, the law does not 
 prescribe any defiiiite rule of damages, but, from neces- 
 sit}^, leaves it to the good sense of the jury. Hence their 
 verdict will not be disturbed, unless the amount is so 
 large, as to induce a reasonable person, upon hearing the 
 circumstances, to declare it outrageously excessive, or 
 as to suggest, at the first blush, passion, or prejudice, or 
 corruption.^ The court will not set aside a verdict for 
 excessive damages, in tres-pass against the 2>erso7i, unless 
 they are so extravagant as to induce a suspicion of im- 
 proper conduct.- Thus a verdict was sustained for the 
 sum of £200 for a blow on the face, causing a black eye, 
 the court remarking, "The plaintift' has been used unlike 
 a gentleman by the defendant in striking him, with- 
 holding his property (which was a turtle, delivered by 
 mistake to the defendant, and demanded by the plaintitf), 
 and insisting upon his privilege, all of them tending to 
 provoke him to seek his revenge in another way than by 
 law."^ So in an action for trespass, in wrongfully entering 
 the plaintiff's office, and there making a violent assault 
 upon the plaintiff's clerk, it appeared that the defendant 
 went there for the purpose of demanding payment of a 
 small debt, with the malicious intent of provoking a 
 quarrel with the clerk, in case he was not paid ; and that 
 he wounded the clerk in pursuance of this intention. 
 Held, a verdict of $400 damages was not excessive.* But 
 a new trial will be awarded, where the verdict shows a 
 want of sound discretion, or passion, partiality, prejudice, 
 or corruption.^ Thus a new trial was awarded where 
 $2000 were given for assault with a whip." So in case 
 of a verdict for $9000 for assault and false imprisonment, 
 the damages being held unreasonable and outrageous, 
 such as must strike every one at first blush as enormously 
 
 ' Wheaton v. North, 36 Cal. 590. 3 Grey «. Sir Alexander Grant, 
 
 2 Bell V. Morrison, 37 IVIiss. G8 ; 3 Wils. 352. 
 Benson v. Frederick, 3 Burr. 1845 ; » Walker -y. Wilson, 8 Bosw. 586. 
 Ducker v. Wood, 1 T. R. 277; s Coffiu «. Coffin, 4 Mass. 1. 
 Clianellor v. Vaughn, 3 Bay, 410. ^ Goetz v. Ambs, 22 Mis. 170.
 
 en. XVII.] AMOUNT OF DAMAGES. 579 
 
 disproportioned to the case proved.* So, in an action for 
 assault, a verdict for £200 was set aside.^ So, where no 
 special injury was shown, a verdict of $1000 for ejecting 
 a passenger, who refused to pay his fare, at a place some 
 distance from tlie station.^ 
 
 § 33. The same rule against a new trial is adopted in 
 actions for false imprisonment.* As in case of a verdict 
 for £300;^ or for £3000.^ So, where the imprisonment 
 was under an illegal warrant from Lord Halifax, Secretary 
 of State, a verdict for £1000.^ But a verdict for £2000 
 has been set aside.* So a verdict for $9000.^ ' So a verdict 
 for £100, where the evidence, in the view of the court, 
 would have sustained a plea of accord and satisfaction.*" 
 
 § 34. In an action for a personal injury arising from 
 indisputable negligence, the injury being permanent and 
 recovery apparently hopeless, the court will not reduce 
 the damages, if the judge be not dissatisfied with the 
 verdict." Thus where a pole, used as a toll-gate upon 
 a turnpike road, was so insecurely fixed as to form an 
 obstruction to the road, and a passenger travelling in the 
 stage-coach along the road had his thigh badly fractured 
 by the upsetting of the coach in the night-time, occasioned 
 by the running of the horses and coach against the 
 pole, in consequence of the driver's failing to see the 
 obstruction ; held, in view of all the evidence, and the 
 serious if not irreparable injury done to the plaintiff, a 
 verdict of $4000 in his favor against the turnpike company 
 
 ' McConnell v. Hampton, 13 '^ Fabrigas v. Mostyu, 2 "W. Bl. 
 
 John. 334. 929. 
 
 2 Goldsmith v. Softon, 3 Anst. "< Beardmore v. Carrington, 2 
 808 ; Jones v. Sparrow, 5 T. R. Wils. 344. 
 
 257. s Ash V. Ash, Comb. 357. 
 
 3 Terre Haute, «fcc. v. Vanatta, ^ McConnell t. Hampton, 12 
 'jl 111. 188. John. 234. 
 
 » Huckle V. Money, 2 Wils. 205. '» Price v. Severn, 7 Bing. 316. 
 5 Leeman«. Allen, 2 Wils. 160. " Britton v. South, &c., 3 Hurl. 
 
 «fc Nor. 903.
 
 580 THE LAW OF NEW TRIALS. [CH. XVII. 
 
 was not excessive.^ So in an action by an administratrix 
 to recover damages for the killing of the intestate, her 
 liusband, by the wilful neglect of the defendant, the facts 
 proved showed that the killing, although not intentional, 
 was the result of perfect recklessness. A verdict for 
 $1000 was held not to be excessive, even if punitive 
 damages were not allowable.^ So, in consideration of the 
 past and future disability of a passenger injured by a 
 railroad collision; held, a verdict of $4500 was not so 
 excessive as to indicate partiality, prejudice, passion, or 
 anything improper in the jury.^ But, w^iere a passenger 
 on a railroad had his leg broken and some liesh wounds 
 on the head, by a collision, and was restored to sound 
 health after about ten months, but the injured leg w^as 
 somewhat shorter than the other; held, a verdict of $6000 
 was excessive, and a new trial was ordered, unless the 
 plaintiff would stipulate to reduce the verdict to $4000.* 
 So in an action for negligently causing the death of the 
 plaintifi;"'s son, who w^as four years of age; a verdict for 
 $1500 was set aside.'^(«) 
 
 ' Danville, &c. v. Stewart, 2 Met. * Clapp v. Hudson, &c., 19 Barb. 
 
 Ky. 119. 461. 
 
 2 Chiles V. Drake, 3 Met. (Ky.) ^ Lelimau v. Brooklyn, 29 Barb. 
 
 146. ' 234. 
 
 * Curtiss V. Rocbester, &c., 20 
 Barb. 283. 
 
 [a] In an action for negligence, the jury are the sole judges of the 
 damages, and, where no evidence of prejudice, or passion, or gross 
 error, or misconception appears, courts will seldom set aside the verdict. 
 Illinois V. Simmons, 38 111. 242 ; 1 Cliff. 524. As in an action on the 
 case to recover damages for personal injuries in consequence of a defect 
 in a highway. Wightman v. Providence, 1 Cliff. 524. But where the 
 damages were assessed at 05525, for serious injuries, a new trial was 
 granted. Gleason v. Bremen, 50 Maine, 222. The plaintiff, a cooper, 
 but employed as a teamster at the time of the injury, recovered a verdict 
 for .^8000 for the loss of his hand, caused by the alleged negligence of 
 employes ou a ferry-boat belonging to, and under the control of, the 
 defendant There were some grounds for belief that the plaintiff's own 
 negligence contributed to the injury ; and there was little evidence of
 
 CH. XVII.] AMOUNT OF DAMAGES. 581 
 
 § 35. There is no action, in which a motion for new 
 trial on the ground of excessive damages has been more 
 frequently overruled, than that for libel or Rlander,^(«) As 
 where the damages for a libel were $1400, and the de- 
 
 ' See Alexander v. Thomas, 25 Soutlnvick, 9 .Tolin. 45; Letton v. 
 
 Ind. 3G8 ; Sliute v. Barrett, 7 Pick. Young, 2 Met. (Ky.) 558 ; Root v. 
 
 82; Neal v. Lewis, 2' Baj', 204; King, 7 Cow. 013; Cole v. Perry, 
 
 Davis V. Davis, 2 N. & McC. 81; 8 Cow. 214; Douglass v. Tousey, 
 
 S. Jones, 200; Tillotson v. Cheet- 2 Wend. 352. 
 ham, 2 John. 63 ; Coleman v. 
 
 either his former or present capacity for labor, and none as to the amount 
 of his ordinary earnings. Held, the damages were excessive, and a new 
 trial nmst be granted, unless the plaintiff would reduce the damages to 
 •SGUOO. Murray v. Hudson, 47 Barb. 196. In an action to recover 
 damages for the death of a woman, killed by the negligence of the 
 defendant, it appeared that she was strong and healthy, about fifty years 
 of age, and a widow, that her services commanded a dollar a day beside 
 her board, that she died intestate, leaving a small property, and that her 
 children were of age and had left her. Held, a verdict of $3.o00 was so 
 excessive, that a new trial would be granted unless the plaintiff would 
 remit ."i^'iOOO. Mclntyre v. New York, 47 Barb. .515. In an action 
 against a railroad for negligently causing the death of the plaintiff's 
 daughter, ten years old; a verdict for $3775 was held so excessive, as to 
 show prejudice or partiality, and therefore to be set aside. Potter v. 
 Chicago, etc., R. R. Co., 22 Wis. 615. 
 
 (rt) Where the plaintiff, in consequence of the utterance of slanderous 
 words, lost an engagement at £50 a year, with her board, £60 are not ex- 
 cessive damages. Jackson v. Hopperton, 16 C. B. (N.S.) 829. In a late 
 case — Willard v. Shaffer, Leg. lutell. — Sharswood, J., says: '-This was 
 an action for a libel of a very gross character, sent by the wife of the 
 defendant, who was sued with her, by post, to a third person, charging 
 the wife of the plaintiff, in effect with adultery. All the parties con- 
 cerned were nearly related, being aunts and nieces ; and it did not 
 appear that the scandal would ever have been spread beyond the family 
 circle, if the plaintiff had not instituted this action and the publication 
 been made in open court. No doubt it was this consideration mainly, 
 which induced the jury to give so moderate a verdict ils one hundred 
 dollars for the plaintiff. Yet the first reason assigned for a new trial by 
 the defendants is that the damages were excessive. The defendants, I 
 • think, have much reason to be satisfied with this result, and I certainly 
 am not disposed to disturb the verdict on this ground.''
 
 582 THE LAW OF NEW TRIALS. [CH. XVII. 
 
 fendant a man of wealth and influence.^ So, in a case of 
 slander, a verdict for £4000.^ So, for a charge of perjury, 
 $7000, the defendant being very rich.^ 
 
 § 36. In an action for slander, in imputing undue 
 familiarity with a female servant, misappropriation of 
 the sacrament-money, &c., to a clergyman, a verdict for 
 £750 having been rendered, the court refused to set it 
 aside, Cockburn, C. J., remarking, "Looking at the de- 
 structive and fatal tendency of the imputations cast upon 
 the plaintiff as a clergyman and a gentleman, the damages 
 are anything but excessive."^ 
 
 § 37. More especially the verdict will not be set aside, 
 where there is a plea of justification.^ 
 
 § 38. Where the jury, in an action for slander, charging 
 the plaintiff wnth theft, swindling, &c., rendered at first a 
 verdict for $1100 damages, from which the judge dissented, 
 and, after expressing his own views and urging reasons 
 against so large an amount of damages, returned them to 
 a second consideration, the result of which was a verdict 
 for $800 ; held, a new trial would not be granted, although 
 the conduct of the plaintiff had been such as to raise a 
 doubt whether he was entitled to more than nominal 
 damages.^ 
 
 § 39. In this, however, as in other actions, an excep- 
 tion to the general rule is made. The amount must be 
 so large as to be clearly and grossly unjust, and to make 
 it apparent that it is the result of excitement or some 
 
 ■ Bodwell V. Osgood, 3 Pick, * Ilighmoro v. The Earl and 
 
 379 ; SovUlnvick v. Stevens, 10 Countess of Harrington, 3 Com. B. 
 
 Jolin. 443. (3 J. Scott, N. S.) 142. 
 
 2 Townsend v. Hughes, 2 Mod. '^ Clark v. Binney, 2 Pick. 113. 
 150. ^ Woodruff v. Kichardson, 20 
 
 3 Byckman v. Parkins, 9 AYend. Conn. 238. 
 470.
 
 Cir. XVir.] AMOUNT OF DAMAGES. 583 
 
 Other influence than that of the law and the evidence.^ 
 The damages must be exorbitant, or such as at first blush 
 appear to have been the off'spring of partiality, corrup- 
 tion, passion, prejudice, malice, or undue bias.^ The 
 amount must show unfair dealing.^ The rule of fair com- 
 pensation must have been departed from.^ Thus, in an 
 early case, a verdict for .£1500 for calling the plaintiff a 
 " traitor" was set aside.^(rt) 
 
 § 40. The rule, against granting a new trial for exces- 
 sive damages, has been applied to the action for malicious 
 prosecution, where the verdict was for £50 f or £250;^ or 
 $500;® or £400.^(^) So where an attachment was sued 
 
 ' Potter V. Thompson, 32 Barb. Barlow, 1 Man. & R. 275 ; Cham- 
 87. bcrs ». Robinson, 1 Str. 691; Ilarry 
 
 2 Fallenstehi ■». Boothe, 13 Mis. v. Watson, 4 T. R. 0.19, n. 
 
 427. ' Farmer v. Darling, 4 Burr. 
 
 3 Mayson v. Sheppard, 12 Ricli. 1971. 
 
 254. ^ Paukett?). Livermore, 5 Clarke, 
 
 < Broach v. King, 23 Geo. 500 ; 277. 
 
 Guard v. Risk, 11 Ind. 15G. ^ Gilbert v. Burtenshaw, Cowp. 
 
 5 Wood V. Gunston, Sty. 466. 230. 
 
 6 Barnes, 436. See Caddy v. 
 
 (a) In an action for calling the plaintiff a whore, the refusal of the 
 court to set aside, as excessive, a verdict for $4250, was held to be error, 
 when it appeared that the defendant was actuated by a desire to protect 
 his family from an unworthy neighbor, that he had no malice toward 
 the plaintiff, that he was so poor that he was unable to give security on 
 the appeal, and that the plaintiff's conduct was forward and suspicious, 
 although no act of prostitution was proved. Beggarly v. Craft, 31 Geo. 
 309. AVhcre, in an action for slander, the -syords charged were, " Shut 
 your mouth, you damned whore," the speaking of which was not denied ; 
 and the plaintiff was shown to have kept in her family two lewd women, 
 a fact which was known among her neighbors and to the defendant, be- 
 fore the speaking ; and where no evidence appeared that the words were 
 believed, but the record showed that the plaintiff below was married 
 during the pendency of the suit; and no direct evidence appeared 
 against, but some sustaining her chastity; and where, on a second trial, 
 the verdict of the jury was for $2000 damages : held, the damages were 
 excessive, and the decision of the court below, refusing a new trial on 
 that ground, must be reversed. Swartzcl v. Dey, 3 Kans. 244. 
 
 (h) A verdict of $1400, in an action for malicious prosecution and slander,
 
 584 THE LAW OF NEW TRIALS. [CH. XVII. 
 
 out on a i>ai(l judgment, and property to the amount of 
 §180 sold, and the defendant in the attachment for a 
 malicious prosecution recovered $750.' So for indicting 
 a baronet, a military officer, and member of Parliament, 
 for larceny, with a view to screen the prosecutor from the 
 charge of usury; a verdict was given for £10,000. The 
 defendant was proved to be a man of great wealth. The 
 motion for a new trial was overruled.^ But a verdict for 
 $7600 was set aside.^ 
 
 § 41. New trials for excessive damages have been often 
 applied for in the action of trespass qu. cl.\a) Thus, in an 
 action against custom-house ofhcers, for entering the 
 dwelling-house of the plaintiff to search for goods, the 
 jury gave a verdict for £100. In overruling the motion 
 for a new trial, Wilmot, C. J., said, "The plaintiff being 
 a butcher or inferior person makes no difference. The 
 suspicion of having run goods, is the same damage to him 
 as if he was the greatest merchant in London."^ 
 
 § 42. A verdict, in an action for injury to a mill, by 
 causing the water to flow back thereon, will not be set 
 
 ' Bump V. Betts, 23 Wend. 85. 216 ; Redshaw v. Brooks, 2 Wils. 
 
 2 Leilh V. Pope, 2 W. BL 1327. 405. 
 
 3 Kinsoy v. Wallace, 30 Cal.4o2. ^ Bruce v. Rawlins, 3 Wils. 01. 
 
 4 See Matthews v. West, 2 N. & Ace. Sharpe v. Brice, 2 W. Bl. 942. 
 McC. 415 ; Reed v. Davis, 4 Pick. 
 
 is not excessive, where the defendant had tlic plaintiff, a woman, arrested 
 for larceny, and persisted in the prosecution after he was advised by able 
 counsel to desist. Humphries v. Parker, 52 Maine, 502. 
 
 (a) But, in an action for a trespass upon land, damages to the full 
 value of the land are excessive, and a new trial will be granted. Thomp- 
 son V. Morris, &c., 2 Harr. 480. A new trial was refused, where, in 
 an action of trespass qu. clans., the parties being both men of rank, it 
 appeared that the defendant, being intoxicated, insisted upon sporting 
 on the plaintiff's land, though ordered off, and used very intemperate 
 language. The verdict was for £500. Merest v. Harvey, 5 Taun. 442. 
 As to the action of trespass de bon. uspor., see Hazard v. Israel, 1 Binn. 
 240.
 
 CH. XVII.] AMOUNT OP DAMAGES. 585 
 
 aside for excessive damages, unless tlie court can see that 
 the jury fell into some important mistake of computation, 
 or departed from some rule of law given to them for their 
 guidance, or made deductions from the evidence plainly 
 not warranted by it.' lUit a verdict, in an action for di- 
 version of a Avatcrcoursc, for £3000, was set aside.^ 
 
 § 43. In an action for breach of j^romise of marriage^ it 
 is said, in a late case, in order to justify a new trial for 
 excessive damages, "we must have laid before us a very 
 clear and striking case of indubitable wrong, so clear and 
 striking as to indicate the influence of undue sympathy, 
 prejudice, or corruption."^ Or there must be some obvious 
 error or misconception.'* It is not sufficient that the dam- 
 ages are higher than the court would have awarded, unless 
 flagrantly excessive, or disproportioned to the injury.' 
 More especially, in an action for breach of promise, accom- 
 panied with seduction, a new trial will not be granted, 
 unless it appears clearly that the jury acted under pre- 
 judice, partiality, or gross ignorance, or disregard of their 
 duty.^ Thus a verdict was sustained for $5000.^ So where 
 the defence was, that the defendant had heard rumors 
 against the character of the plaintifi", but nothing was 
 shown in her life and conduct to give foundation to such 
 rumors, and it did not appear that he was ignorant of such 
 conduct before he made the promise, and the defendant 
 oflered no evidence as to his means ; a motion to set aside 
 the verdict as excessive was overruled.^ 
 
 I 44. In an action for seduction alone, as there is no 
 
 ' Palmer v. Fiske, 2 Curt. 14. 1 John. Cas. 116. But see Gougli 
 
 2 Plcydell V. Dorchester, 7 T. R. v. Farr, 3 Carr. & P. 631. 
 
 525. 5 Clark v. Pendleton, 20 Conn. 
 
 ^ Per Sandford, J., Waters «. 495. 
 
 Bristol, 26 Conn. 406 ; 1 C. B. (N. « pidlcr v. McKinley, 21 111. 308. 
 
 S.) 660. ' Goodall v. Thurman, 1 Head, 
 
 « Smith V. Woodfine, 1 C. B. (N. 209. 
 
 S.) 660. Sec Johnston v. Caulkins, »Capehart«. Carradiuc,4Strobh. 
 
 43.
 
 586 
 
 THE LAW OF NEW TRIALS. 
 
 [CU. XVII. 
 
 legal measure of damages, a verdict will not be set aside 
 as excessive, unless so great as to raise the suspicion ot 
 partiality or passion.^ Thus a verdict for $920 was sus- 
 tained, though in the language of the court "the character 
 of the daughter had long been considered loose and aban- 
 doncd."2 go a verdict for $5000, although the court 
 would have been better satisfied with a smaller sum.^ So 
 where the verdict was for $9000, a motion for new trial 
 on other grounds did not object to the amount of damages."* 
 
 § 45. The rule is applied to actions for criminal conver- 
 sation with the wife of the plaintift? So for enticing 
 away and harboring the plaintiff's wife.^ 
 
 • Stevenson v. Belknap, G Clarke, 
 97. See Tullidije v. Wade, 3 Wils. 
 18 ; Bennetts. Alcock, 2 T. R. 166; 
 Sarsient v. Deniston, 5 Cow. 106. 
 
 2'^Per Sutherland, J., Sargent «. 
 Deniston, 5 Cow. 106. 
 
 Ingersou v. Miller, 47 Barb. 47. 
 
 1 Moran v. Dawes, 4 Cow. 412. 
 
 5 Wilford «. Berkley, 1 Burr. 
 009 ; Cliem v. Brig, 1 il). 609. 
 But see Chambers I). Caulfield, 
 E. 244. 
 
 5 Scberpf «. Szadeczky, 4 E. D. 
 Smith, 110.
 
 CH. XVIII.] 
 
 NEW TRIALS IN EQUITY. 
 
 587 
 
 CIIArTER XVIII. 
 
 NEW TRIALS IN EQUITY. 
 
 1. 
 
 Genera] rem.irks. 
 
 24. 
 
 Formal errors. 
 
 2. 
 
 Mode of proceeding — injunc- 
 
 20. 
 
 Default. 
 
 tion. 
 
 
 27. 
 
 Confession. 
 
 8. 
 
 Special grounds must be 
 
 30. 
 
 Compromise. 
 
 show 
 
 n. 
 
 81. 
 
 Award. 
 
 7. 
 
 Amount of judgment. 
 
 32. 
 
 New evidence 
 
 8. 
 
 Form of decree. 
 
 34. 
 
 In jiart. 
 
 9. 
 
 Judii;mcnt in another State. 
 
 40. 
 
 Payment. 
 
 10. 
 
 Terms. 
 
 43. 
 
 Set-off 
 
 14. 
 
 Successive injunctions. 
 
 45. 
 
 Estop])el. 
 
 lo. 
 
 Time. 
 
 46. 
 
 Pleadings. 
 
 IG. 
 
 Laches — neglect, delay, &c. 
 
 46f 
 
 . Parties. 
 
 19. 
 
 Pleadings. 
 
 52. 
 
 Title to lands. 
 
 20. 
 
 Exce])tions to the strict rule. 
 
 58. 
 
 Surety. 
 
 21. 
 
 Accident, mistake, &c. 
 
 54. 
 
 Trust. 
 
 22. 
 
 Fraud. 
 
 55. 
 
 Execution. 
 
 § 1. It has abundantly appeared in tlie foregoing pages, 
 that the remedy of a nao trials regarded as a strictly legal 
 proceeding, partakes largely of equitable considerations. 
 More especially, in the third chapter, the point was fully 
 illustrated, that a new trial will not be granted, for purely 
 technical reasons, where either it would be of no substan- 
 tial benefit, or substantial justice has been done. A gene- 
 ral view of the Law of IS'ew Trials would, however, be 
 technically incomplete, without some notice of Ncio Trials 
 in Equity. The subject has become comparatively unim- 
 portant in practice, since the recognition by courts of law 
 of the various grounds for setting aside verdicts, which 
 we have considered at length; but some or most of which, 
 anciently, could be relied on in chancery alone. ]More 
 particularly the two grounds of newly-discovered evidence 
 and surprise furnished the most constant occasion of ap- 
 peal to equitable interposition.
 
 588 THE LAW OF NEW TRIALS. [CH. XVIII. 
 
 § 2. Chancery did not assume to order a new trial, 
 directly, but only to compel the prevailing party to 
 submit to a new trial, or else be j>crpetually enjoined from 
 enforcing his verdict or judgment.^ And a bill for this 
 purpose is said to have been watched with extreme 
 jealousy ; not being sustained for the rehearing of what 
 had been already heard, or " when it consists in swearing 
 only — unless it appears by deed or writing, or that a 
 witness, on whose testimony the verdict was given, was 
 convicted of perjury. "-(«) 
 
 ' Floyd V. Jfiyno, 6 John. Ch. 3 Atk. 819. See also 1 Story's Eq., 
 
 479. But see Carriugton v. Ilolal- 8d ed., § 874 ; 3 Lead. Cas. in Eq. 
 
 bird, 19 Conn. 84. 160; 1 Hall. Const. Hist. 472; Coit 
 
 2 Batcman v. Willoe, 1 Scli. & v. Haven, 30 Conn. 190; Pelham 
 
 Lef. 201; Tovey v. Young, Free. v. ]\Ioreland, G Eng. 443; Pickins 
 
 in Chan. 193; Richards v. Symes, «. Yarborough, 30 "Ala. 408. 
 
 (a) If, in equity, a question of personal identity is submitted to the 
 jury, on motion and with consent, and a verdict found and a motion for 
 a new trial overruled ; the court has no power at a subsequent term to 
 disregard the verdict, and, dispensing with a jury, dismiss the petition. 
 Under I 343 of the (Ky.) Civil Code, the verdict was entitled to the same 
 weight as in an action at law. Moore's v. Shepherd, 2 Duv. 125. A new 
 trial of issues, tried by a vice-chancellor without a jury, for improper 
 rejection of evidence, will not be granted, unless the evidence has been 
 formally tendered to the judge. Penn v. Bibby, Law Rep., 2 Ch. 127. 
 In Georgia, whenever a court of equity has power to grant a new trial, 
 such new trial can be granted on the common-law side of the superior 
 court, upon precisely the same principles. "Where the omission of the 
 clerk to reject as security an incompetent person misled the plaintiff in 
 error, and prevented his giving additional security, as the law required, 
 or moving before the term had closed for a new trial ; held, these 
 circumstances authorized the judge below to hear the application for a 
 new trial, and, if, upon any of the grounds contained in the motion, he was 
 entitled to a rehearing, it should have been granted. Eufaula v. Plant, 
 37 -Geo. 672. In general, when it is proper for a court of law to grant a 
 new trial, if the application is made while that court has such power, 
 it is equally proper for a court of equity to do so, if the application 
 be made on grounds arising after the court of law has ceased to have 
 the power. Hoskins v. Ilattenback, 14 Iowa, 314. A bill to procure 
 a new trial of an ejectment, so as to enable a witness to correct his 
 testimony as to the time of the commencement of the occupancy of the
 
 CII. XVIII.] NEW TRIALS IN EQUITY. 589 
 
 § 3. From this brief introduction it may ho seen, that 
 a 7iew trial in equity is virtually an injunction^ by a court 
 of equity, of a judgment rendered, or an execution of such 
 judgment issued, by a court of law. It is said, in an 
 old case: "When a judgment is obtained by oppression, 
 wrong, and a hard conscience, the chancellor will frustrate 
 it and set it aside, not for any error or defect in the judg- 
 ment, but for the hard conscience of the party."^ And 
 the general rule is laid down, that equity will grant relief 
 against a judgment, which is against conscience, or the 
 justice of which can be impeached by facts, or on grounds 
 of which the party could not avail himself at law, or of 
 which he was prevented from availing himself by fraud, 
 accident, mistake, or the act of the opposite party, without 
 any negligence or fraud on his own part.- So equity will 
 prevent the inequitable use of a good judgment.^ The 
 
 1 Per Lord EUesmere, Oxford's t. Zane, 6 Gratt. 246; Clifton v. 
 
 Case, 1 Ch. Rep. 1; Totli. 126. Livor, 24 Geo. 91; White v. Wash- 
 
 Mient i\ Ricards, 3 Md. Ch. iugtou, . 5 Gratt. 64.'5; Post t\ Board- 
 
 Decis. 302; Marine. &c. ■y.IIodgsou, man, 1 Clark, 523; Jordan v. 
 
 7Cranch,332; Jarvis ?;. Chandler, Loftin, 12 Ala. 547; Forrester «. 
 
 1 Turn. & R. 319; Lamb d. Ander- Wilson, 1 Duer, 624 ; Ridgeway w. 
 
 son, 1, Chand. 224; Rowan v. The Bank, &c., 11 Humph. 523 ; 
 
 Runnels, 5 How. 134 ; Moore v. Lapiece v. Hughes, 24 :Miss. 69 ; 
 
 Gamble, 1 Stockt. 246; Pollock v. Prewitt v. Perry, 6 Tex. 260; Doss 
 
 Gill)ert, 10 Geo. 398 ; Little v. v. Miller, 6 Tex. 338 ; Perrine v. 
 
 Price, 1 ]\Id. Ch. Decis. 182. Carlisle, 19 Ala. 086 ; Pickens «. 
 
 3 Garlick v. McArthur, 6 Wis. Yarborough, 30 Ala. 408 ; Robb ?). 
 
 450. See, as to surprise, Gallaway Halsey, 11 S. & M. 140 ; P«well v. 
 
 B. Alexander. 8 Leigh, 114; Meem Stewart, 17 Ala. 719; Western 
 
 V. Rucker, 10 Gratt. 506 ; Yathir v. AVoods, 1 Tex. 1 ; Warner v. 
 
 defendant, who relied on a statutory title, is not to be regarded with 
 favor. Jones v. McCrea, 37 Ga. 48. Equity should not grant a new 
 trial at law, upon the ground that a party was deprived, without fault 
 on his part, of his remedy by writ of error to correct erroneous rulings 
 on the first trial, when no error in the judgment at law appears on the 
 record. Parker v. Home, 38 Miss. 215. In case of issues awarded in 
 equity, and a motion for a new trial upon the ground that the verdict is 
 against evidence, the court will ordinarily be governed by the rules and 
 principles applied to such motions in suits at law, and will not grant a 
 new trial merely because on weighing the evidence the court would have 
 reached a different result. Clark v. First, 45 N. H. 331.
 
 590 THE LAW OP NEW TRIALS. [CH. XVIII. 
 
 more familiar as well as technical expression, for the 
 ground of equitable interference in this mode, is smyrise. 
 (See chap. 16.) 
 
 § 4. But, on the other hand, it is said: "The general 
 rule is, that this court will not relieve against a judgment 
 at law on the ground of its being contrary to equity, 
 unless the defendant below was ignorant of the fact in 
 question, pending the suit, or it could not have been 
 received as a defence. There may be cases, perhaps, in 
 which this general rule would be subject to some modifi- 
 cation."^ And the general doctrine is laid down, that 
 courts of equity reluctantly interfere to restrain proceed- 
 ings had in courts of law, and especially after judgment.^ 
 That a court -of chancery will not interfere with a judg- 
 ment at law, unless some special ground for relief is 
 shown.' More especially where the relief sought is 
 predicated on a defence equally available at law.'* That, 
 where a party is sued in a court of law, having exclusive 
 jurisdiction of the subject-matter, he must make his 
 defence there, and cannot resort to equity for relief, unless 
 he is hindered or prevented from making such defence.' 
 And that, before equity will grant relief, three things 
 must concur: ignorance of the defence when the judg- 
 ment was rendered, diligence on the part of the com- 
 plainant, and that adequate relief cannot be had at law." 
 So it is held, that equity will not relieve against a 
 judgment at law, except for fraud, accident, surprise, or 
 manifest injustice, unmixed with fault or negligence on 
 
 Conant, 24 Vt. 351; Harris tJ.Gwin, » Lockard v. Lockard, IG Ala. 
 
 10 S. & M. 563 ; Peters v. Lea<?ue, 423; 17 ibid. 673. 
 
 13 Md. 58; Powell v. Stewart, 17 ^ Foster v. The State Bank, 17 
 
 Ala. 719; Dyclie ». Patton, 8 Ired. Ala. 073. 
 
 Eq. 295; Governor v. Barrow, 13 -' Jamison v. May, 8 Eni::. GOO; 
 
 Ala. 540. White v. Cahal, 3 Sw^an, 550. 
 
 1 Lansing v. Eddy, 1 .John. Ch. ** Taylor v. Sutton, 15 Geo. 103; 
 
 50; Dunham v. Downer, 81 Verm. Ileudrickson v. Ilinchley, 17 How. 
 
 249. 443. 
 
 * Marsh v. Edgerton, 1 Chand. 
 198.
 
 en. XVIII.] NEW TRIALS IN EQUITY. 591 
 
 the comi)lainant's part.^ A party seeking to enjoin a 
 judgment must sliow that the plaintift' had no cause of 
 action.- That a defence which lie failed to make would 
 have been available.^ That the judgment is clearly con- 
 trary to equity and good conscience.* Equity will not 
 enjoin a judgment merely on the ground of error!' 
 (See § 5.) So it is held, that a judgment at law cannot 
 be impeached collaterally in equity.*' A court of chancery 
 cannot enter into a case which has been already investi- 
 gated in a court of law, according to the ordinary rules of 
 investigation in such courts, merely on the ground that 
 injustice has been done. Or that the judgment was 
 obtained through the erroneous statement of witnesses. 
 Or on the ground of error in law, committed by the law 
 court. Or that the complainant was deprived of his 
 defence at law, by the court's admitting parol proof of a 
 judgment.^ And a party has no right to enjoin the 
 execution of a judgment, absolute and unconditional as 
 to the matters it professed to decide, during a litigation 
 as to other matters in controversy reserved by the 
 judgment.*^ 
 
 § 5. The restriction upon courts of equity, as to their 
 interference with judgments at law, is sometimes expressed 
 in the proposition, that, unless a necessity exists for it, and 
 a manifest injury would otherwise be done, no court, o/At'r 
 than that rendering the judgment^ has jurisdiction over the 
 execution.^ Relief against an erroneous judgment at law 
 
 ' Pearce v. Chastain, 3 Kelly, ' Vauglin v. JoUnsou, 1 Stockt. 
 
 226 ; PlK'lps -v. Peabody, 7 Cal. 50; 173. See Ellis v. Gosney, J. J. 
 
 Rice V. Kailroad Bank, 7 Uiimpli. Mar. 346 ; Bantley v. Dillanl, 1 
 
 39. Eiig. 79 ; Hempstead v. Watkins, 
 
 2 Huebscliman v. Baker, 7 Wis. ib. 317. 
 
 542. 8 Hereford v. Babin, 14 La. An. 
 
 3 23 Verm. 720. 333. See Huugcribrd v. Sigcrson, 
 « Wright V. Eaton, 7 Wis. 595 ; 20 How. 156; Gatlin v. Kilpatrick, 
 
 1 Stockt. 240 ; Bradley v. Richard- 1 Car. L. U. 534; Dickson i\ Kich- 
 
 son, 23 Verm. 720. ardson, 16 Ark. 114; Bradley v. 
 
 5 Dann ('. Fish, 8 Blackf. 407. Ricluirdson, 23 Vt. 720. 
 
 6 Redwiue v. Brown, 10 Geo. ^ Douncll v. Parrott, 13 La. An. 
 311. 251.
 
 692 THE LAW OF NEW TRIALS. [CIL XVIII. 
 
 cannot be granted by the chancellor.^ (See § 4.) If a 
 defendant wishes to avoid the effect of a judgment im- 
 properly rendered against liim, he should apply to the 
 court in which it was rendered; and, if he does not so 
 apply, it seems a court of chancery will not inquire beyond 
 the record, into the means by which the judgment was 
 obtained. 2 So, as we have already seen, it is held, with 
 some qualifications, that a court of equity cannot set aside 
 the judgment of a court of law, and grant a party a neio 
 trial ; it cannot act upon the case^ but may upon i\\Q person^ 
 and so might well decree that, unless he consents to have 
 the judgment set aside and a new trial awarded, he shall 
 be ^perpetually enjoined from executing it.^ 
 
 § 6. Where there is a judgment, and also a decree for the 
 same demand, the collection of the money under the decree 
 cannot be enjoined, unless the complainant allege in his 
 bill that the judgment has been satisfied.^ So, to entitle 
 a party to an injunction on the execution of a decree, 
 pending a rehearing, he must present such a state of facts 
 as, if true, would entitle him to a reversal of the decree.' 
 And the proper course to stay proceedings, under a decree 
 for irregularity, is not by a bill of injunction, but by 
 petition to the court.^ An original bill for an injunction 
 by the parties to a former suit, or their privies, will not 
 lie to restrain proceedings under the decree in such suit.^ 
 But an injunction, commanding and enjoining one to 
 cease from all proceedings on his judgments recovered at 
 law, was held to operate to restrain him from proceeding 
 in equity.^ 
 
 ' Reynolds^. Ilorine, 13 B. IVIon. s Luckett v. White, 10 Gill & J. 
 
 234 ; Methodist, eVc. v. Mayor, &c., 480. 
 
 G Gill, 391. •> Dyckman v. Kcrnochan, 2 
 
 2 Hone V. Woolsey, 2 Edw. Ch. Paii,^e, 2G. 
 289. 7 Ibid. 
 
 3 Pelham v. Morcland, G Eug. 8 Littler. Price, 1 Md. Ch. Decis. 
 443. 182. See Georgia v. Brailslbrd, 2 
 
 < Duuham v. Collier, 1 Iowa, 54. Dal. 402, 415.
 
 CII. XVIII.] NEW TRIALS IN EQUITY. 593 
 
 § 7. In reference to tlie amount of a judgment, as bearing 
 upon the right to an injunction; equity will enjoin a 
 judgment by mistake excessive in amount, though the 
 land of the debtor, upon which execution is levied, was 
 previously conveyed, fraudulently, to defeat the judgment.* 
 
 § 8. Where an injunction is granted on a judgment, 
 and afterwards dissolved, and the judgment is collected 
 pending the bill, the court, on final decree perpetually en- 
 joining the judgment, may decree the money to be re- 
 funded, though there is only a prayer for general relief.^ 
 
 § 9. An injunction may issue against a judgment re- 
 covered in one State, on a prior judgment recovered in 
 another State, for cause aiiecting the judgment of the 
 other State.^ So it is held, in Illinois, that a bill may be 
 filed to enjoin proceedings upon a judgment of one of the 
 courts of the State, recovered upon a judgment in the 
 courts of another State, if the party applying has not 
 been guilty of any laches in the assertion of his rights, 
 and the judgment of the foreign court has been reversed.-* 
 So equity will restrain the use of an advantage gained in 
 a court of ordinary jurisdiction of another State by fraud, 
 accident, or mistake.^(a) 
 
 ' "Williamson r'. Johnson,! Halst. 'Wilson ^.Robertson, 1 Over- 
 
 Ch. 537. See Yantes v. Bnrdett, 3 ton, 266. 
 
 Mis. 457 ; Greathouse v. Ilord, 1 * McJilton v. Love, 13 111. 486. 
 
 Dana, 105. s Pearce v. Olney, 20 Conn. 544. 
 
 2 Bryan v. Primm, Breese, 33. 
 
 (a) DilTerent local rules prevail in different States, with reference to 
 the eujoiuiug of judgments. In Texas, an injunction to stay execution 
 should be directed to the District Court of the county in which judg- 
 ment was rendered, llendrick v. Cannon, 2 Tex. 259. In Kentucky, 
 where A. and B. obtained judgments against each" other in different 
 counties; held, the chancellor of the county in which the defendant lived 
 might enjoin one judgment, and set it off" against the other. Mitchell v. 
 Stewart, 4 J. J. Marsh. 551. But a judgment in the Circuit Court of one 
 county cannot be enjoined by the Circuit Court of another. Lamaster v. 
 38
 
 594 THE LAW OF NEW TRIALS. [CIL XVIIl. 
 
 § 10. AVith regard to tlie terms upon which a ju(lt>;ment 
 will 1)0 enjoined; it is held that, where a judgment debtor 
 conies into equity for protection, on the ground that he 
 has satisfied the judgment, the door is fully open for the 
 court to modify or grant his prayer, upon such conditions 
 as justice demands.^ 
 
 § 11. It is lield tliat an injunction to a judgment at 
 law will, in general, be at the cost of the complainant.^ 
 
 § 12. Unless in aid of a suit at law, it is held that no 
 injunction should be granted, where the applicant for it 
 does not submit to a judgment at law, as he cannot con- 
 tend at law and in chancery at the same time.^ 
 
 § 13. An order for injunction to a sale under execution 
 is not effectual, until the execution of the bond required 
 by the order. ^(a) 
 
 'Mechanics', &c. v. Lynn, 1 ' Conway «. Ellison, 14 Ark. 300. 
 Pet. 370. •» Pell v. Lander, 8 B. Mou. 554. 
 
 2 Mosby V. Haskins, 4 lien. & M. 
 
 427. 
 
 Lair, 1 Dana, 109. In Ohio, an injunction cannot be issued by the Court 
 of Common Pleas, to restrain an execution of the Supreme Court, upon 
 a decree of alimony. The remedy is by application to the Supreme Court 
 on return of the execution. Sample v. Ross, 16 Ohio, 419. 
 
 (a) In North Carolina, under the statute of 1800, before a judgment 
 will be enjoined, the amount of it must be paid to the clerk of the court. 
 Pugh V. l^Iaer, 4 Hawks, 302. The statute of New Jersey (Rev. Laws, 
 704, ^ 6), which directs an injunction to stay proceedings in a personal 
 action at law, after verdict and judgment, on application of the defend- 
 ant, unless the money be first paid into court, applies to bills of inter- 
 pleader. Morris, &c. v. Bartlett, 2 Green, Ch. 9. The statute is not 
 confined to proceedings in the suit in which the judgment is recovered. 
 Kinney v. Ogdcn, 2 Creen, Ch. 108. So it applies, where an injunction 
 is prayed by the defendant in a judgment, to restrain proceedings by 
 foreign attachment to enforce the judgment. Ibid. In Maryland, an 
 injunction may be granted to stay execution, in some cases, without bond. 
 Cape, &c., 3 Bland. COO. In New York, on a bill to restrain proceedings
 
 CH. XVIII.] NEW TRIALS IN EQUITY. 595 
 
 § 14. In some cases there may be successive wjunctions 
 to the same judgment. Thus, after the dissolution of one 
 injunction, another was granted to tlie same judgment, 
 and made perpetual, it appearing that the contract in 
 question, though not tainted with fraud, was founded in 
 a mistake of both parties in relation to the existence of a 
 fact of which both parties were ignorant, and whicli was 
 not known to the complainant until after the first injunc- 
 tion was dissolved.^ 
 
 § 15. The question of time often becomes material in 
 cases of this nature. 
 
 § 16. Delay in an application for relief against a judg- 
 ment furnishes a presumption against the equity of the 
 proposed defence.- Thus, after a verdict for the plaintiff 
 on a bond, equity will not order an account of transac- 
 tions which are old and stale, although occurring, in part, 
 
 ' Armstroug v. Hickman, 6 Mnnf. = Bartlett v. Gleiuly, 3 ^lis. 345. 
 
 287. 
 
 at law upon a judgment, the plaintiff will not be ordered to pay the 
 amount of the judgment into court, unless there is danger of his insol- 
 vency. Eodgers v. Rodgcrs, 1 Paige, 426. And where a creditor's bill 
 charged that the defendant, pending a suit at law by the plaintiff, con- 
 fessed judgment to another person, for a debt not due, and which was 
 fully secured; an injunction to stay proceedings upon the judgment was 
 granted, without a deposit of security by the plaintiff. Burns v. Morse, 
 6 Paige, 108. A purchaser, who shows no sufficient reason for not 
 making his defence at law, and seeks equity for relief, must be governed 
 by the general rule on this subject, to submit to take a title at the hear- 
 ing, and complete his purchase. McLaurin v. Parker, 24 Miss. 509. In 
 a suit to enjoin the collection of a judgment, the complainant gave a 
 bond for the exact amount of the judgment, conditioned to pay when 
 ordered by the Superior Court. Held, the sureties were bound only for 
 that sum. Dickerson v. Cook, 3 Duer, 324. To obtain an injunction 
 against a judgment, on the ground that the complainant cannot safely 
 pay it, there being several claimants, he should file a bill of interpleader, 
 and pay the debt into court for the party showing himself entitled thereto. 
 Fowler v. Lee, 10 Gill Sc J. 358.
 
 596 THE LAW OF NEW TRIALS. [CIL XVIII. 
 
 subsequent]^ to the making of the bond, for the purpose 
 of obtaining a discount.^ So equity will not disturb a 
 judgment by default, upwards of twenty years old, and 
 an execution title to real estate vested under it, for w^ant 
 of notice of a wa-it attaching the defendant's real estate, 
 when he was openly at large wathin the State; the facts 
 having come to his knowledge about seventeen years be- 
 fore the filing of his bill for relief; the sole excuse for the 
 delay to proceed being, that the complainant had no evi- 
 dence of the facts upon which he relied for relief, until 
 the passage of a recent statute enabling parties to be wit- 
 nesses for themselves in civil cases; and the purchaser 
 under the execution having, in the mean time, built upon 
 and improved the estate.^ 
 
 § 17. In a suit to stay proceedings at law, a defendant 
 obtained time to answer, and then pressed on the action 
 and obtained judgment. After a very considerable delay, 
 he again applied for further time to answer; but it 
 was held, that, as he came for an indulgence, it could 
 only be granted upon the terms of staying execution in 
 the action.^(a) 
 
 § 18. As has been already suggested, a judgment, erro- 
 neous simply because the defendant or his attorney ne- 
 iilected to make a defence which he could have made, in 
 the absence of surprise, accident, mistake, or fraud, will 
 not be enjoined. And it is even held sufiicient ground of 
 
 ' Randolph v. Randolph, 1 Hen. ^ Zulueta f. Vincnt,21 Eng. Law 
 & M. 181. and Eq. 581. 
 
 2 Briggs v. Smith, 5 R. I. 213. 
 
 (a) In North Carolina, the statute, providing that an injunction upon 
 a judgment at law shall not issue more than four months after the ren- 
 dition of judgment, does not apply, where the ground of the application 
 did not exist when the judgment was rendered. Kerns v. Chambers, 3 
 Ired. Ch. 57G.
 
 CH. XVIII.] NEW TRIALS IN EQUITY. 597 
 
 refusal that the hill itself shows a good defence.' So, 
 where the defendant might have had all the relief he was 
 entitled to, upon an application in the original action, 
 which ho neglected to make, he cannot have an injunc- 
 tion.^ Thus if he could have had the judgment opened; 
 even though the claim was unconscientious.^ So where a 
 party moved for a now trial on the ground of surprise, 
 and for other causes examinable at law, the motion being 
 denied and no exceptions taken ; the Court of Chancery 
 has no jurisdiction to grant relief.'* Thus it is no suffi- 
 cient excuse for not making a defence at law, so as to give 
 chancery jurisdiction, that a creek, which had to be 
 crossed to get to the court-house, was so swollen by rains, 
 on the first day of the court, that it could not be crossed, 
 and so continued for three days ; it not being shown on 
 what day the court adjourned, or when the judgment was 
 rendered, and no eflbrt having boon made to get to the 
 court-house after the flood subsided.' And an injunction 
 will not be granted, where a defendant has not used due 
 diligence in applj'ing to chancery for a discovery to assist 
 his defence at law.^ Or where he neglected to prosecute 
 
 ' Jordan v. Thomas, 34 Miss. 72; 4 ; Shipp v. Wheelcss, 33 ;Miss. 640; 
 
 Todd V. Fish, 14 La. An. 13 ; Gib- Donnell v. Parrott, 13 La. An. 351; 
 
 son V. Moore, 23 Tex. 611 ; Kriecli- Walker v. Robbius, 14 How. 584; 
 
 baum V. Bridires, 1 Clarice, 14; Bellamy v. Woodson, 4 Geo. 175; 
 
 Champion v. Miller, 3 Jones Eq. Duncan v. Lyon. 3 John. Ch. 351 ; 
 
 194; Vauixhn v. Fuller, 23 Geo. Trevor v. McKay, 15 Geo. 550; 
 
 366; 2 Fairf. 218; Rogers t'. Kings- Skinner r. Deming, 2 Cart. 558; 
 
 bury, 23 Geo. 60; Carters. Bennett, Bruuer y. Planters' Bank. 23 Miss. 
 
 6 Flori. 214; Jones v. Kilgore, 3 400; Scroggins p. Howorth, ib. 514; 
 
 Rich. Eq. 63 ; Pearce v. Chastain, Basye v. Beard, 12 B. ]\Ion. 581 ; 
 
 3 Kelly, 226 ; Brandon v. Green, 7 Prewitt v. Pcrrv, 6 Tex. 200. 
 
 Humph. 130; Meek r. Howard, 10 2 Borland ». Thornton. 12 Cal. 
 
 S. & M. 502; Methodist, &c. v. 440. 
 
 Mayor, &c., 6 Gill, 391 ; Conway » ibid. 
 
 V. Ellison, 14 Ark. 360; Little v. *■ Hendrickson 1J. Hinkley, 5 Mc- 
 
 Price, 1 Md. Ch. Dec. 182 ; Wil- Lean, 211 ; Champion v. Miller, 3 
 
 liams V. Jones, 10 S. & i\I. 108 ; Jones, Eq. 194. 
 
 Scrapie V. ISIcGatagan, ib. 98; Bran- ^ English v. Savage, 14 Ala. 342. 
 
 don V.Green, 7 Humph. 130; Faulk- See Burton v. Hynson, 14 Ark. 32; 
 
 ner v. Campbell, 1 Morris, 148 ; Sanders «. Fisher, 11 Ala. 813 ; 
 
 Miller v. IMeGuire, ib. 150 ; Paynter Houston v. Wolcott, 7 Clarke, 173. 
 
 V. Evans, 7 B. Mou. 420 ; 13 Tex. « Titcomb v. Potter, 3 Fiiirf. 318.
 
 598 THE LAW OF NEW TRIALS. [CII. XVIIL 
 
 a certiorari in season.' Or where be has a perfect remedy 
 by a cross-action, for breach of warranty of the article, 
 for the price of which the original suit was brought ; or 
 has any other adequate remedy.^ lie must show that he 
 has a good defence, of which he had no knowledge until 
 after judgment, or that he was prevented from using it 
 by fraud or accident, or the acts of the adverse jmrty, un- 
 mixed with negligence or fault on his part.^ So any de- 
 fence, which might be interposed at law to defeat a 
 recovery upon a contract, or a portion of it, must be so 
 interposed, or it is concluded by the judgment.^ 
 
 § 19. The same general principle is adopted in reference 
 to the i-)lcadii}gs. (See § 18.) Tims, though the bill states, 
 that the complaii^ant was ignorant of facts wdiich would 
 constitute a perfect defence to an action at law against 
 him, until after judgment; yet equity will not restrain 
 the collection of the judgment, unless it be further 
 stated, that the complainant had, before the rendition of 
 the judgment, used due diligence to ascertain the facts 
 necessary to his defence.^ So it is not sufficient for the 
 complainant to allege, that he was ignorant of the facts 
 on which he relies for defence until long after the rendi- 
 tion of the judgment." 
 
 § 20. But it is held that the same certainty of proof is not 
 required to establish an excuse for not making a defence 
 at law, which would be required to establish the existence 
 of that defence.^ And the general rule above stated does 
 not apply, if the defendant in an action at law, who seeks 
 relief in equity, had a good defence, but his neglect to 
 
 ' Musgrove D.Chambers, 13 Tex. * Day «. Cummings, 19 Vt. 496. 
 
 83. 5 Slack V. Wood, 9 Gratt. 40 ; 
 
 - Ponder v. Cox, 2G Geo. 485 ; Taliaferro v. Branch Bank, 33 Ala. 
 
 Fitzhugh V. Orton, 13 Tex. 4. 755. 
 
 3 Ko'bbins v. :Mount, 3 Kelly, 74; e 23 Ala. 755. 
 
 Brandon «. Green, 7 Humph. 130 ; ^ Ricct?.Euilroad, &c.,7IIumph. 
 
 Meek v. Howard, 10 S. & M. 503. 39.
 
 CH. XVIII.] NEW TRIALS IN EQUITY. 509 
 
 make it was the result of fraud or accident, or tlic action 
 of the plaintiff.^ Or where he was not served with pro- 
 cess, liad no notice of the suit, and neither appeared, nor 
 authorized any one to appear for him.- 
 
 § 21. "Where, through accident or mistake (as well as 
 fraud), a judgment has been entered for an amount, or in 
 terms, not intended, equity will, on clear proof, give relief.^ 
 But not where the party was prevented from making his 
 defence at law by a mistake of law, although a mutual 
 mistake of both parties.^ ISTor on the ground that his 
 counsel mistook the facts of his defence, if he was present 
 at the trial.' ISTor that the party has mistaken his rights, 
 and so failed to make a defence, whicli it was competent 
 for him to make at law.*' So where a judgment was 
 obtained by default, in consequence of a letter's not being 
 received in season, which was sent by mail by the party 
 to his attorney ; this was held not to be such an accident 
 as would warrant the interference of a court of equity, 
 since common prudence would have guarded against it 
 by sending an agent.^ 
 
 § 22. Fraud is another ground of injunction.^ And 
 this, although the party might find a remedy in a court 
 of law ; or though he had notice of the judgment in time 
 to appeal, and made an abortive attempt to do so.^ A 
 former recovery, pleaded in bar to a bill for relief against 
 a judgment at law, alleged to have been obtained by 
 fraud, will not avail the defendant.^" Thus equity will 
 enjoin a judgment, on the ground that there was a good 
 
 ' Watt ■». Cobb, 32 Ala. 530; ^ Essex v. Berry, 2 Verm. IGl. 
 
 Farmprs\ &c. v. Ruse, 27 Geo. 391. « See ]Munn v. Matlock, 17 Ark. 
 
 2 Stubbs V. Leavitt, 30 Ala. 353. 513 ; Wiiigate v. Haywood, 40 
 
 3 Katz V. Moore, 13 Md. 506. N. H. 437. 
 
 * Richmond, Ac. v. Skippen, 3 » Nelsou v. Rockwell, 14 111. 
 P. & II. (Va.) 327. 375. 
 
 5 Jamison v. May, 8 Eng. GOO. '" Easton v. Collier, 3 Mis. 379, 
 
 6 Dickerson v. Board, etc., G lud. 
 138.
 
 600 THE LAW OF NEW TRIALS. [CII. XVIII. 
 
 defence, of wliich tlie defendant did not know at the time 
 the judgment w^as rendered, and tliat ho w^as entitled to 
 pay the debt in depreciated notes, of wliich privilege It 
 liad been sought to deprive him by fraud and collusion.^ 
 And where, after a judgment for A., a nominal party, a 
 fraud is discovered, by which a bill for the enforcement 
 of the judgment by A. for B. is successfully resisted; this 
 is binding on A. and B., and a suit for cancelling the 
 judgment and for perpetual injunction will be sustained. 
 The last suit may be brought by the defendant in the 
 original cause, or his assignees as representing his property, 
 that the cloud upon the property may be dispelled.^ So 
 wdiere a party, having a good defence to an action, is 
 prevented, by the gross fraud of the plaintiff in the suit, 
 and others, from setting up that defence, and a judgment 
 is obtained against him, without any negligence or fault 
 on his part: it is a proper case for relief in equity against 
 the judgment; and the persons guilty of the fraud, 
 although not parties to the suit at law, are proper parties 
 to the bill in equity.^ So where an owmer of personal 
 property, encumbered by liens for more than its value, 
 sold it, under a representation that it was unencumbered, 
 and then obtained a judgment for the purchase-money; 
 the collection of the judgment was enjoined till the 
 encumbrances were removed.^ 
 
 § 23. A bill, to enjoin a judgment at law for fraud in 
 the contract on which it is founded, must show that the 
 defence w^as not made at law, and that the omission to 
 make it occurred without any neglect of the complainant.'* 
 
 • Davis V. Tilcston, G IIow. 114. 179 ; Frocman v. Sedwick, G Gill, 
 
 2 Monroe v. Delavan, 2G Barb. 28 ; Riclianlson v. Williams, 3 
 16, Jones Ei[. 110; Gougli v. Pratt, 9 
 
 3 Iluggins V. Kins, 3 Barl). GIG. Md. 520 ; Nelson v. Armstrong, 5 
 
 4 Poe ». Decker, o Ind. 150. Gratt. £554 ; Wells v. Smith, 13 
 
 5 Parker v. Morton, 5 Blackf. 1. Gray, 2C7. 
 Sec Sohier v. Merril, 3 W. & M.
 
 CH. XVIII.] NEW TRIALS IN EQUITY. GOl 
 
 § 24. In reference to formal errors as a ground for 
 equitable interference; the fact, that an error in the 
 docketing of a judgment was the error of the clerk, and 
 not the fault of the judgment creditor or his attorney, 
 will not authorize the Court of Chancery to interfere, to 
 deprive another judgment creditor of his legal priority 
 thereby obtained.^ And judgments of a court of record 
 cannot be falsified by -pvooi aliunde. Thus, where a judg- 
 ment was entered by the clerk as upon a verdict, the error 
 cannot be corrected by a court of chancery, upon parol 
 proof that the judgment, by agreement, should have been 
 entered nil dieit for a less sum.^ So, on the other hand, 
 A. commenced a suit against B. on a valid debt, and 
 attached a large amount of property; the writ being 
 issued by a clerk who had usually issued such writs, but, 
 as was afterwards decided, without authority. B. brought 
 an action of trespass against A. and obtained judgment. 
 A filed a bill to enjoin the judgment. Held, he was not 
 entitled to relief.^ 
 
 § 25. Equity will not perpetually enjoin a judgment, 
 upon the ground that the ofiicer's return as to the service 
 was false.^ So a bill for an injunction did not allege 
 fraud on the part of the plaintift' in the judgment, but 
 merely that the deputy sheritf served the summons out of 
 his bailiwick, and, being informed of the defendant's 
 residence out of his bailiwick, failed to make the return 
 of non est as he had promised to do. The bill also 
 admitted indebtedness for a part of the amount, but did 
 not state how much, nor offer to pay it. Held, no suffi- 
 cient ground of injunction.^ So (in California) a judgment 
 by default will not be enjoined, on the ground that the 
 
 > Buciifin V. Sumner, 1 Barb. 040 ; "Williams v. Caplinger, 6 
 
 Ch. IG.-). Humph. 2r)7. 
 
 2 Bank of Tennes3ee v. Patter- ^ Walker v. Robbins, 14 Ho-w. 
 son, 9 Humph. 3G3. 584. See Windwart v. Allen, 13 
 
 3 Stetson V. Goldsmith, 31 Ala. ]\Id. 19G. 
 
 5 Gardner v. Jenkins, 14 Md. 58.
 
 602 THE LAW OF NEW TRIALS. [cil. XVIII. 
 
 sheriff's return on the summons does not show the place 
 in whicb service was made, where it is proved on the 
 hearing, that the defendant was served in a certain county 
 in tlie State more than forty days before the entry of his 
 default.' But equity will enjoin tlio judgment in a suit 
 where the plaintiff is a sheriff and serves his own writ.^ 
 So, where no process was executed upon a defendant in an 
 action at law, and he did not appear to make defence, and 
 judgment went against him, of which he had no notice 
 until long after its rendition; held, he was entitled to an 
 injunction against the judgment, whether he could have 
 made a valid defence or not.^ And a judgment obtained 
 by means of a false return, and Avithout any notice to the 
 defendant, may be relieved against. Thus where it was 
 uncertain whether the notice was served at all, and, if it 
 was, it appeared to have been served in such a manner, by 
 reading it to the defendant, who was a laboring man and 
 unacquainted with such matters, and at the same time 
 handing to him the declaration in another suit, as would 
 naturally mislead him ; and it appeared that he had a 
 good defence to the action: an injunction against the 
 judgment was ordered.^ 
 
 § 26. Equity will relieve against a judgment obtained 
 on default^ by the fraud of the plaintiff.^ Or where there 
 is no service and a default, if the merits require it.*^ So 
 where, by the neglect of an attorney of good reputation, 
 a party has been defaulted ; if he, immediately upon dis- 
 covering the default, apply for redress; more especially 
 where the attorney is insolvent.'^ But where a defendant, 
 whose counsel was elected to the bench, heard the court 
 announce at the next term, that no case in which he had 
 been employed would be heard, and went away and was 
 
 • Pico V. Sunol, 6 Cal. 294. ■> Oweus v. RanstPatl, 23 111. 161; 
 
 2 Kuott «. Jarboe, 1 Met. (Ky.) Pryor «. Emerson, 23 Tex. 1G3. 
 tj04. 5" Porter v. Moffet, 1 ^Morris, 108. 
 
 3 Bell V. Williams, 1 Head, 239. « laicas v. Waller, 1 ]\Iorris,3n;5. 
 
 ' Ilucbsch V. Baker, 7 Wis. 542.
 
 CII. XVIII.] NEW TRIALS IN EQUITY. 603 
 
 defaulted; bold, in the al)seiice of any substantial de- 
 fence, be was not entitled to an injunction.^ So a 
 party, against wbom a judgment at law is rendered 
 by default, cannot obtain relief against it in equity, 
 upon the ground that his attorney failed to appear for 
 him, and appeared for the opposite party; when he had 
 only requested the attorney to attend to any and all 
 business for him, and had not mentioned any particular 
 ease.2 Nor where a defendant misnamed in the process is 
 in court wlien judgment is rendered against him by de- 
 fault, and fails to defend by advice of his counsel.^ Nor 
 where one, not duly served with process, suffers judgment 
 by default, and, on the execution of a writ of inquiry at 
 a subsequent term, appears, defends, submits evidence to 
 the jury, makes various motions, files a bill of exceptions, 
 and appeals, but makes no proper attempt to have the 
 judgment by default set aside. His remedy was perfect 
 at law.^a) 
 
 § 27. A judgment may also have been rendered by 
 confession. 
 
 § 28. In order to induce a court of equity to declare a 
 judgment confessed for a certain amount to be merely 
 collateral security for whatever sum might be found due, 
 they must be satisfied beyond a reasonable doubt that 
 sucli was the agreement; but they will then enjoin the 
 judgment, on the ground that to enforce it would be a 
 fraud.^ 
 
 ' Cardia -y. Jones, 23 Geo. 17.J. s Hoighler v. Savage, &c., 13 
 
 2 Watts V. Gayle, 30 Ala. 817. Md. ;58:}. See Daveiss v. McKee, 
 
 3 Graham v. Roberts, 1 Head, 56. 1 Bibb, 331 ; Oakley v. Yoimg, 3 
 1 Ibid Halst. Ch. 433 ; Cheek v. Taylor, 
 
 23 Geo. 137. 
 
 (a) An application in equity by a defendant for a new trial, on the 
 ground that he was defaulted, and thereby prevented from maintaining 
 a claim in set-off, will be refused, if it does not appear that he is in 
 danger of losing his claim. Clute v. Ewiug, 21 Tex. 677.
 
 604 THE LAW OF NEW TRIALS. [CIL XVIII. 
 
 § 29. T>nt it will require a very strong- case to justify 
 an injunction upon a judgment rendered by confession 
 on a debt due for more than thirty years, from which no 
 appeal has been taken,' So where judgments were ren- 
 dered on confession before a justice of the peace, no war- 
 rants having been issued or served on the defendants; on 
 a bill for injunction to restrain executions, it was held, 
 that relief should be sought at law by appeal, and not in 
 equity.^ 
 
 § 30. Equity will not re-examine and re-adjust settle- 
 ments made by compromise judgments in courts of law 
 having jurisdiction of the subject-matter, unless in case of 
 fraud, accident, or mistake.^ 
 
 § 31. A bill will not lie to enjoin a judgment upon an 
 award, upon the ground that the arbitrators received 
 hearsay evidence, and committed other irregularities at 
 the hearing.* 
 
 § 32. After a verdict in an inferior court, which has no 
 power to grant a new trial, chancery will grant relief on 
 the ground of newly-discovered evidence, where the sum in 
 controversy is sufficiently large to bear the expense.^ 
 
 § 33. In a bill to enjoin a judgment on the ground of 
 newly-discovered evidence, such evidence should be set 
 forth." It must not be ciimidativeJ And it has been 
 
 » Gravelyw. Sout]ierlana,29Geo. Lyford, 37 N. IT. 512; Robb v. 
 
 335. Ilalscy, 11 S. & M. 140. 
 
 2 Bmmbangh v. Schnebly, 2 Md. 3 Hahn v. Hart, 12 B. IMon. 426. 
 
 320. Sec Mihior v. Georgia, &c., 4 * Hunt «. Coachman, G Rich. Eq. 
 
 Geo. ?,S~} ; Gwinn v. Newton, 1 280. 
 
 Humph. 710 ; Stein v. Burden, 30 ^ FJoyd v. .Taync, .Tolin. Ch. 
 
 Ala. 270; Young ». Beardsk^y, 11 479. See Basye v. Beard, 12 B. 
 
 Paige, 93; Lake v Cooke, 15 111. Mon. 581 ; Billups». Scars,5 Gratt. 
 
 353 ; llichards v. Curlcwis, 31 Eng. 31. 
 
 Law and Eq., 419 ; Prather v. ^ Miller v. McGuire, 1 Morris, 
 
 Prathcr, 11 Gill & .T. 110; Cayce 150. 
 
 V. Powell, 20 Tex. 767 ; Buuton v. ^ Pemberlon v. Kirk, 4 Ired. Eq. 
 
 178.
 
 CII. XVIII.] NEW TRIALS IN EQUITY. 605 
 
 sometimes held tliat 0([mty will not interfere, except in a 
 case of fraud, in behalf of either party, upon the ground 
 of testimony being discovered since the trial, which was 
 unknown to the party at the time of the trial, and which 
 would have materially varied the result.^ Such relief 
 will not be granted for newly-discovered evidence of pay- 
 ment, where the plaintiff neglected to plead the payment, 
 and to produce witnesses of admissions, by the defendant, 
 of the payment; though the full extent of their testimony 
 was not known to the plaintiff, who, it appeared, had 
 made no inquiry.^ 
 
 § 34. Where the execution of a judgment has been 
 enjoined, and the defendant admits, upon being interro- 
 gated, a 'partial payment, the injunction should be per- 
 petuated for this amount, and dissolved for the re- 
 mainder.3 So where part of the judgment appears from 
 the petition to be just, an injunction as to the whole 
 should be reversed.^ 
 
 § 35. When the amount of the /. fa. exceeds that of 
 the judgment, the right to enjoin is limited to the excess.' 
 
 § 36. Equity will grant relief against a judgment ob- 
 tained by fraud, to the extent of the injury, and, if it 
 applies only to part of the land, relief will be granted 
 to that extent.^ 
 
 § 37. Where, on relieving against a judgment, there is 
 no means of ascertaining how far it is correct, but only 
 
 ' Powell V. Watson, 6 Ired. Eq. 89 ; Sneed v. Town, 4 Eng. 535 
 
 94. Thomas v. Brashear, 4 ]\Ionr. 65 
 
 2 Floyd V. Jayne, 6 John. Ch. Rust v. Ware, 6 Gratt. 50 ; New 
 479. man v. Meek, 1 S. ct M. Ch. ;J31 
 
 3 Perry v. Kearney, 14 La. An. AVillis v. Gordon, 2'3 Tex. 241 
 400 ; Tapp v. Beverley, 1 Leigh, Alexander v. Baylor, 30 ib. 500. 
 80. 5 iJjiiTow V. Kobichaux. 14 La 
 
 * Crisswell v. Bledsoe, 22 Tex. An. 207. 
 656. See Booth v. Kesler, 6 Gratt. ^ Dunlap y. Stetson, 4 Mas. 349 
 350 ; Bell c. Cunningham, 1 Sumn.
 
 606 THE LAW OP NEW TRIALS. [CIL XVIII. 
 
 that it is unconscionable to some extent, it will be set 
 aside in toto.^ 
 
 § 38. Equity has, under ordinary circumstances, no 
 power to reduce an assessment of damages by a jury in 
 an action of covenant, or to enjoin the collection of any 
 part thereof.* 
 
 § 39. A bill, to enjoin a judgment on account of usury, 
 must tender the amount equitably due.^ And an injunc- 
 tion, on the ground that the defendant is entitled to a 
 credit for part of the judgment, should be with a proviso, 
 that the plaintiff may proceed by execution to collect the 
 balance.^ 
 
 § 40. Payment may be set up as the ground for an in- 
 juction. As where a payment is made in confidence that 
 it will be credited, and the credit is not given, but judg- 
 ment taken for the whole amount.'^ So, where prior j udg- 
 ments have been paid, and yet the holder threatens to 
 levy on land, the holder of a junior judgment may have 
 this cloud on the title removed by injunction."^ 
 
 § 41. But it is no ground for relief from a judgment, 
 that a payment on a bond was not indorsed on the bond. 
 Such defence might have been made at law.'' Kor that 
 the party did not prove, on the trial, payments which he 
 alleges he had made, unless he shows some fraud or cir- 
 cumvention, to prevent his making the proof.^ So, it is 
 held, the defendant in a judgment has a full and complete 
 remedy at law, by supersedeas^ to obtain credit for a part 
 
 » McRae v. Woods, 2 Wash. Va. "^ Shaw v. D wight, IG Barb. 536. 
 
 80. Sec 3 Story's Eq. 194, sect. 876 ; 
 
 2 Reed v. Clarke, 4 Monr. 18. ib. 196, sect. 879 ; Humphreys v. 
 
 3 Shelton v. Gill, 11 Ohio, 417. Leggett, 9 How. 297. 
 
 1 Hodges V. Planters', c^'c, 7 ' Harnsbarger v. Kinney, 13 
 
 GilKt.T.306. Gratt. 511. 
 
 5 Dickenson v. McDermott, 13 ^ Deaver v. Erwin, 7 Ired. Eq. 
 
 Tex. 348. 250.
 
 CH. XVIII.] NEW TllIALS IN EQUITY. 607 
 
 payment of the judgment, and consequently such payment 
 constitutes no ground for equitable relief.^ So equity will 
 not interfere with a judgment, recovered after a settle- 
 ment between the parties, prior to the commencement of 
 suit. The remedy is by appeal or error.^ 
 
 § 42. Analogous to payment, as a defence, is that of 
 set-off. 
 
 § 43. The allegations in a bill in equity, for an injunc- 
 tion against a judgment, that the defendant is indebted 
 to the complainant, that he is insolvent, and that the de- 
 mand sought to be enforced at law is satisfied, are suffi- 
 cient to give the court jurisdiction.^ 
 
 § 44. But a party going into equity, to enjoin a judg- 
 ment on the o-round of oflsets, must show as strong; a claim 
 to be paid the offsets as if he were suing on them in law 
 or equity.* And a defendant in an action at law, having 
 a set-off available either at law or in equity, but neglect- 
 ing to plead it, cannot afterwards make it a ground of 
 relief in equity from the judgment against him in such 
 action, without showing sufficient excuse for his neglect. 
 That he was advised the law court had no jurisdiction of 
 the set-off, is no such excuse.^ 
 
 § 45. It has already been stated, that a trial at law and 
 
 > Perrine «, Carlisle, 19 Ala. 686. Monr. 144; Moore v. Gamble, 1 
 
 2 Dunn V. Fish, 8 Black. 407. Stoclit. 246. 
 
 See AVilliams v. Bradbury, 9 Tex. * Wallier ». Ayers, 1 Clarke, 449. 
 
 487 ; Holland v. Dale, Minor, 2Go ; ^ pearce y. Winter, &c., 33 Ala. 
 
 Crawford v. Thurmond, 3 Leigh, 68. See Pogue v. Shotwell, 2 Dana, 
 
 85 ; Buchanan v. Torrance, 11 Gill 281 ; Griffith v. Thompson, 4 Gratt. 
 
 & J. 343 ; Knox v. Coroner, 13 La. 147 ; Hudson v. Kline, 9 ib. 379 ; 
 
 An. 88 ; Williams v. Bradbury, 9 Rives v. Rives, 7 Rich. Eq. 353 ; 
 
 Tex. 487 ; Paddock v. Palmer, 19 Wellborn v. Bonner, 9 Geo. 82 ; 
 
 Vt. 581 ; Peatross v. McLaughlin, Brady v. Hancock, 17 Tex. 361 ; 
 
 6 Gratt. 64 ; Bellamy v. Woodson, Beall v. Brown, 7 Md. 393 ; Lips- 
 
 4 Geo. 175. comb v. Winston, 1 Hen. &, M. 
 
 3 Bettison v. Jennings, 3 Eng. 453. 
 287. See Dickinson v. Chism, 2
 
 608 THE LAW OF NEW TRIALS. [CII. XVIII. 
 
 a judgment founded thereon cannot be revised by a court 
 of equity, unless there are special equitable reasons for 
 such interference. The o-eneral rule is applied, of res ju- 
 dicata and estoppel. Where a defence has been made to a 
 suit at law, the defendant has elected his tribunal ; and, 
 from that time, he must make his entire defence in that 
 court, if such as may be heard by it.' Thus, in case of a 
 bill for an injunction against a judgment and a new trial, 
 alleging the same facts pleaded in answer to the suit at 
 law; held, the judgment was conclusive, and the bill was 
 dismissed.^ So when a cause, exclusively of legal juris- 
 diction, has been tried at law, and a judgment rendered 
 against the defendant, and there was no fraud or con- 
 cealment by the plaintiff at law^, chancery has no juris- 
 diction to interfere.^ So, as we have already seen in an- 
 other connection, the execution of a judgment cannot be 
 enjoined on the grounds which migJd have been urged as 
 a defence to the original action.^ So where a party first 
 submits to try at law, with a knowledge of the facts upon 
 which he rests in support of his title, and a verdict is 
 rendered against him; he cannot come into equity and 
 iile his bill for discovery and relief, and enjoin the opera- 
 tion of the verdict, until he can have another trial in 
 equity in attempting to perfect his title.^ 
 
 § 46. Mutual accounts, if not complicated, do not furnish 
 ground for overhauling a judgment at law, more especially 
 when they have been submitted to, and passed upon by, 
 the court." So a defendant, who has demurred to the 
 declaration, will be regarded as having elected to defend 
 at law^, and will be precluded from coming into equity for 
 
 > Dickson?). Richardson, IG Ark. ^ Donaldson v. Kendall, 3 Geo. 
 
 11^ Decis. 237. Sec Campbell v. 
 
 ^Forsythe®.McCreight,10Rich. Briggs, 4 Rich. Eq. 370; Sample 
 
 Eq 308 • Youguc v. Billups, 23 v. Barnes, 14 llow. 70 ; Lucas v. 
 
 Miss 407 Bank, &c., 2 Stew. 380. 
 
 3 White V. Cahal, 2 Swan, o.jO. *> Powell v. Stewart, 17 Ala. 719. 
 
 * Minor v. Stone, 1 La. An. 283.
 
 CH. XVIII.] NEW TRIALS IN EQUITY. 609 
 
 relief, in reference to any matter of defence of which he 
 might have availed himself in a court of law.^ So, if a 
 defendant at law makes an equitable defence, if it be such 
 as courts of law take cognizance of, he cannot come into 
 chancery for relief, unless unavoidable accident, ignorance 
 of facts, surprise, or fraud, have prevented him from 
 making his defence at law.^ And a defence cannot be set 
 up in equity which has been fully and fairly tried at law, 
 although it may be the opinion of the court that the de- 
 fence ought to have been sustained at law.^ 
 
 § 4:6a. "With reference to the ])^^<^dings in cases of this 
 nature; chancery will not restrain a judgment upon a bill 
 in which all the material facts are charged upon informa- 
 tion and belief only, without any allegation as to whence 
 the information was derived, or any affidavit connected 
 with the bill.^ Nor will equity enjoin a judgment at law 
 and grant a new trial, unless the complainant's bill sets 
 forth distinctly his causes of grievance.^ The plaintiif must 
 state the cause of his not defending at law, where he had 
 a legal defence;^ more especially in a case which is in 
 general exclusively cognizable at law.^ And a court of 
 chancery will not grant relief so readily against a judg- 
 ment in attachment to an absconding^ as to an absent or 
 non-resident debtor ; a bill should therefore state in which 
 of these characters the attachment was taken out against 
 the defendant.^ So in a bill for relief against a judgment, 
 on the ground that the defendant was prevented from de- 
 fending at law by fraud or accident, the matter of fraud 
 
 ' Arrington v. Washington, 14 * Williams ■y.Lockwood, 1 Clark, 
 
 Ark. 218. 172. 
 
 2 Burton v. Hynson, 14 Ark. 32 ; ^ Gamble v. Campbell, 6 Fieri, 
 
 7 Gill, 189. 347. 
 
 '■* Briesch v. McCauley, 7 Gill, ^ Yancy v. Fenwick, 4 Hen. & 
 
 189. See White v. Crew, IG Geo. M. 423. 
 
 416 ; Gough v. Pratt, 9 IVId. 526; ? Dilly v. Barnard, 8 Gill & J. 
 
 Van Mater v. Holmes, 2 Halst. Ch. 170. 
 
 575 ; Money i\ Jordan, 11 Eng. ^ Moore v. Gamble, 1 Stockt. 
 
 Law and Eq. 182. 246. 
 
 39
 
 GIO THE LAW OF NEW TRIALS. [CH. XVIII. 
 
 or accident mnst l)e sot fortli with certainty and precision, 
 and it must also be alleged, that the fraud or accident is 
 unmixed with any negligence on the part of the complain- 
 ant.^ And allegations, that a judgment was obtained 
 through fraud and other ill j^radices^ are too general to 
 authorize the arrest of its execution.^ 
 
 § 46^. An injunction cannot stand based on a written 
 agreement alleged to be lost, where the bill does not allege 
 that the party in whose custody it was placed has been 
 asked to produce it, nor that its contents can be proved, 
 and where it appears that the party who executed it is 
 dead, and its existence and all transactions concerning it 
 are fully denied by the answer.^ 
 
 § 46c. If a bill of injunction, to stay proceedings on a 
 judgment, charge the plaintiff at law with having failed 
 to do an act on which the equity of his claim depends, 
 and in his answer he take no notice of that allegation; 
 the court, on the hearing, will consider this an admission 
 that he has not done the act in question, and will decree 
 against him without any exception to the answer, or any 
 interlocutory order, taking the bill for confessed in part.^ 
 
 § 46d. "Where a bill for relief from a judgment at law 
 alleged, as a reason for not making a defence, that the 
 plaintiff was deceived by his attorney as to the time of 
 trial ; held, this fact must be proved, although uot 
 answered or denied by the answer.^ 
 
 § 46c. All the ijarties to a decree, the execution of which 
 is sought to be enjoined, must be made parties to the in- 
 junction bill.'' The plaintiff in the judgment enjoined is 
 
 ' French v. Gamer, 7 Port. 549. * Page v. Winston, 2 Miinf. 298. 
 
 2 Brooks «. Williams, 13 La.Au. ^^ Cowan v. Price, 1 Bibb, 173. 
 374. '' Heudrick v. Kobinsou, 7 Dana, 
 
 3 Kent V. De Bauu, 1 Beasl. 220. 105.
 
 CH. XVIII.] NEW TRIALS IN EQUITY. 611 
 
 a necessary party.\a) So, to a bill by a purchaser of land 
 from a judgment debtor, to enjoin the judgment creditor 
 from subjecting the land to his judgment, the debtor is 
 a necessary party.- So, to a bill for relief, from a judg- 
 ment on a note against the maker, in favor of an asignee 
 of the note, the payee is a necessary party.^ So the 
 assignee of a judgment is a necessary party to a bill, to 
 perpetually stay proceedings thereon for equities existing 
 between the parties previous to the assignment.^ But a 
 surety need not be made a party to a bill by the principal, 
 for an injunction against a judgment.^ ISTor a sheriff, to 
 a bill brought to enjoin the execution of legal process.^ 
 The clerk and sheriff are not proper parties to a bill for 
 an injunction to stay execution.^ 
 
 § 47. The distinction is made, that no person can enjoin 
 a judgment at law, to which he is is not a party ; but, if 
 he is aggrieved by the proceedings thereon, he should 
 pray for an injunction to the execution.^ 
 
 § 48. It is held, that, where property of one is levied on 
 to satisfy the debt of another, a bill of injunction may be 
 maintained by him to restrain the sale, notwithstanding 
 he has also remedies at law, and although the sheriff, by 
 
 1 Daniel v. Haunegan, 5 J. J. ^ oiin v. Hungerford, 10 Ohio, 
 Marsh. 48. 368. 
 
 2 Scott V. Bennett, 1 Gihn. 646. ' Edney v. King, 4 Ired. Eq. 
 
 3 Elston V. Blanchard, 3 Scam. 465. 
 
 420. ® Jordan v. Williams, 3 Eand. 
 
 ^Munford v. Sprague, 11 Paige, 501. See Scott v. Whitlow, 30 111. 
 438. 310. 
 
 5 Bentley v. Gregory, 7 Mour. 
 368. 
 
 (a) A. ofFers for probate a paper as the will of B., in which he is made 
 executor and a legatee. Verdict against the will. A bill in equity is 
 filed by C, to set aside this verdict, and to be allowed to prove, as the 
 will of B., all that part of the paper in which A. has no interest, alleging 
 that the verdict was fraudulent and void. A. was not made a party. 
 Held, there was no equity in the bill. Barksdale v. Brown, 16 Geo. 95.
 
 612 THE LAW OF NEW TRIALS. [cn. XVIII. 
 
 reason of his doubts as to the title to the pro])crty, takes 
 an indemnifying bond.^ But it is also held, that a sale of 
 personal property will not be enjoined at the suit of a 
 third person, claiming the property, but he will be left to 
 his legal remedy.^ 
 
 § 49. An execution in ejectment will not be restrained 
 at the instance of a stranger holding a paramount title ; 
 for, if his title is good, the judgment does not affect him. 
 It makes no difierence, that after judgment the defendant 
 attorned to that title and received possession under it.^ 
 
 § 50. A perpetual injunction may be granted to stay 
 proceedings on a judgment at law, obtained in a suit 
 brought in the name of a })crson not interested, for the 
 purpose of preventing a defence, which the defendant had 
 against the real plaintift'.^ 
 
 § 51. A judgment debtor who has been garnished may 
 compel the creditor and the garnishee to interplead, and 
 may have the execution enjoined until the interpleader 
 is determined.* 
 
 § 52. Equity has jurisdiction to enjoin a sale of land on 
 execution, on the application of the ownier of an equitable 
 lien prior to the lien of the judgment; and, having thus 
 obtained jurisdiction, the court will adjust the rights of 
 all the parties. 
 
 G 
 
 § 53. Similar questions arise in connection with the 
 obligation of suretyship. Thus equity will, in favor of 
 
 ' Wilson V. Butler, 3 Mnnf. HoO. s Henderson v. Garrett, 35 Miss. 
 
 2 Poage V. Bell, 3 Rand. 58G. 554. 
 
 Sec Bowyer v. Crcigh, 3 Band. 25 ; ^ Parkcr v. Kelly, 10 S. & M. 
 
 Allen V. Freeland, ib. 170; Kelly 184. See Cox v. Mayor, &c., 17 
 
 V. Wiseman, 14 La. An. 601. Geo. 249 ; Hamilton v. Adams, 15 
 
 3 Harper v. Hill, 35 Miss. 03. Ala. 590. 
 '' Grcenleaf v. Maker, 2 Wash. 
 
 C. 44, 393.
 
 CH. XVIII.] NEW TRIALS IN EQUITY. 613 
 
 a surety, enjoin a judo;ment, suftbred by him on the 
 promise of the creditor, that it shall only be used to 
 enforce a settlement with the principal, and will give 
 him relief if the judgment is too large.^ So where, in 
 consequence of representations made to him by the holder 
 of a note, the surety upon it ceases to maintain a valid 
 ground of defence, proceedings under a judgment so 
 obtained will be enjoined.^ 
 
 § 54. The same remedy is applied in cases of trust. Thus 
 a bill was filed for an injunction, alleging that A. made a 
 deed of property in trust for himself and wife, remainder 
 in trust for their children ; that he was possessed, at the 
 time of making such deed, of property far greater than 
 the amount of his liabilities ; that the defendant took a 
 note from A., executed after the enrolment of the deed 
 (of the existence of which deed the defendant was well 
 aware), and has since taken out execution on a judgment 
 on such note, and caused a levy to be made on the property 
 conveyed in trust, alleging that such conveyance was void 
 as to creditors, intending thereby to injure the sale of such 
 property on the execution, to the irreparable injury of the 
 complainants, the wife and child of the grantor. Held, 
 the bill discloses sufficient ground for injunction. Held, 
 further, that, on appeal from the order granting such 
 injunction, the case must be decided on the bill alone, 
 without reference to the answer.^ 
 
 § 55. The precept of injunction is often applied directly 
 to executions upon judgments at law ; and, in what has 
 
 • Cage v. Cassidy, 33 How. 109. &c., 6 Ind. 138 ; Bradley v. Lamb, 
 
 2 Dew V. Hamilton, 23 Geo. 414. Hardin, 537 ; Buri^e v. Burns, 1 
 See Pike v. The State, &c., 14 Ark. Morris, 387 ,- Paulding v. Watson, 
 403. 21 Ala. 379; Roberts v. Jordans, 4 
 
 3 McCann v. Taylor, 10 Md. 418. Munf. 488 ; Winnie v. Grayson, 3 
 See further, as to the injunction of Tex. 439; Price ». Johnson County, 
 judgments, Henley v. Robertson, 4 15 Mis. 433; Barada v. Carondelet, 
 Yerg. 173; McFarland v. Rogers, 16 Mis. 333; Ford v. AVeir, 34 Mis. 
 1 Wis. 453; Dickerson v. Board, 563; Denny v. Moore, 13 Ind. 418.
 
 614 THE LAAV OF NEW TRIALS. [CII. XVIII. 
 
 been said with reference to judgments, it has not been found 
 practicable to omit some cases which would seem equally 
 applicable to executions.^ Thus, if a valid judgment at 
 law be iniquitously used, equity will annul what has been 
 improperly done under it.' So chancery will grant an 
 injunction to prevent a party's making use of a legal writ 
 of execution for the purpose of vexation and injustice.^ 
 Or restrain the sale of property illegally taken in execu- 
 tion.'' So the sheriff may be enjoined from paying over 
 money received from the sale of an estate under executions 
 issued by individual creditors, where it appears that the 
 complainants had a specific lien on the estate, and a 
 preference over individual creditors, and that the claim 
 was pending and undetermined.^ 
 
 § 56. But equity does not, as of course, take executions 
 upon judgments at law into its own hands, as such power 
 would be oppressive, both to the debtor and the court.^ 
 And the presumption is, that the court which renders a 
 judgment is competent to enforce it by its own process, 
 and it is only in special cases that chancery interferes.^ 
 So a debtor cannot resort to equity to enjoin an execution 
 against him, if he has had an opportunity to apply to the 
 court from which it issued for redress.^ And it is held, 
 that it would take a very strong case of fraud, mistake, 
 surprise, or accident, to induce equity to interfere with 
 the completion of a sale upon an execution at law.^ Thus 
 
 ' See Strong v. Daniel, 5 Tncl. 111. 83 ; Malloryw. Norton, 21 Barb. 
 
 348 ; Shiff v. Carprcth, 14 La. An. 424 ; Taylor v. Strong, 10 S. & M. 
 
 801; Sowle v. Pollard, ib. 287; 63 ; Sevier «. McWliortcr, 27 Miss. 
 
 Gleiscs V. McHatlon, ib. 560. 442 ; Moore v. Barclay, 16 Ala. 
 
 2 Bissell V. Bozman, 2 Dev. Ch. 158 ; Dyer v. Armstrong, 5 Ind. 
 160. 437. 
 
 3 Colt V. Cornwell, 2 Root, 109. s Macon, &c. v. Parker, 9 Geo. 
 < Keuyon v. Clarke, 2 R. I. C7. 377. 
 
 5 Read v. Dews, Charl. R. M. ? Ibid. 
 
 355. See Petitt v. Shepherd, 5 ^ Beckloy v. Palmer, 11 Gratt. 
 
 Paige, 493 ; Grant v. Lathrop, 3 625. 
 
 Fost. 67; Cyrus v. Hicks, 20 Tex. s Skillman v. Ilolcomb, 1 Bcasl. 
 
 483 ; Davis v. ]Millaudon, 14 La. 131. 
 An. 808 ; Ballauce v. Loomis, 22
 
 CH. XVIII.] NEW TRIALS IN EQUITY. 615 
 
 the claimant of personal property, taken on several exe- 
 cutions against the same person, cannot maintain a bill to 
 enjoin the proceedings; his proper remedy is at law.'^ So 
 an injunction will not be granted, to stay a sale under an 
 execution, on the ground of usury, that being a good de- 
 fence at law.^ ISTor upon the allegation that the judgment 
 has been satisfied, the remedy at law, in such case, being 
 prompt and adequate.^ So a bill for an injunction was 
 brought against the sheriff, to stop the sale of slaves on 
 execution, alleging a bond fide purchase on the part of the 
 complainant, previous to the execution. The bill was 
 dismissed, on the ground that the remedy was at law.^ 
 So an agreement, by a third person, with the defendant 
 in the execution, to pay it off, is no ground for an injunc- 
 tion against the enforcement of the execution.^ So equity 
 has no jurisdiction to enjoin the sale of property seized 
 on execution, on the application of a third party, claim- 
 ing it as his own, though he is a trustee of the property.^ 
 And, where a statutory writ of possession has been 
 awarded by a court of law, to enjoin the issuing of such 
 writ in favor of a purchaser of lands, at a sale under an 
 execution against a party in possession, where there is no 
 allegation or pretence that waste may be committed, or 
 irreparable mischief done, is held to be a clear abuse of 
 the writ of injunction,^ So, where the object of a bill 
 will be answered by restraining the proceeds of a sheriff's 
 sale in his hands, the sale of the property ought not to be 
 enjoined.^ IS'or merely on the ground that the validity 
 of the execution or the justice of the judgment is denied 
 by the party who applies for the injunction.^ 
 
 ' Henderson v. Bates, 3 Blackf. ^ Watkins v. Logan, 3 Mour. 20. 
 
 460. 7 Blakeney v. Ferguson, 14 Ark. 
 
 2 Lansing v. Eddy, 1 John. Ch, 641. 
 
 49. ^ Receivers, &c., 3 Green Ch. 
 
 3 Ibid. 222. 
 
 1 Keudrick v. Arnold, 4 Bibb, s Williams v. Wright, 9 Humph. 
 
 235. 493. See Johnson v. The Connec- 
 
 5 Triplett'y.Turner, 2J.J.Marsh. ticut, &c., 21 Conn. 148. 
 475.
 
 616 THE LAW OF NEW TRIALS. [CH. XVIII. 
 
 § 57. Where, pending an issue to try tlie riglit to per- 
 sonal property taken on execution, other executions are 
 issued on the same judgments, and levied on the same 
 property, an injunction will be granted to restrain pro- 
 ceedings on the latter.^ So an injunction will issue, at 
 the instance of an execution creditor, to restrain the 
 debtor and a prior execution creditor, from selling or re- 
 moving any of the personal property levied on, unless by 
 sale under the execution, until the second execution is 
 satisfied.^ 
 
 § 58. On a bill to enjoin an execution against particular 
 property, the allegation that a prior execution in favor of 
 another plaintiff against a part of the same defendants 
 had been enjoined, is not ground for equitable relief, it 
 not appearing but that the ground for the prior injunc- 
 tion had reference to the judgment or process itself, and 
 not to the property.^ And two executions of the same 
 kind may be issued upon the same judgment, and, as 
 courts of law have authority to prevent abuse of their own 
 processes, equity will not interfere for that purpose.^ 
 
 ' Huntinj^ton v. Bell, 3 Porter, Brown. 12 La. An. 181; Capcrtown 
 
 51. v. Huddleston, 7 Humph. 453; 
 
 2 Edgar v. Clcyenger. 1 Green Gutsball v. Salsberry, Wright, 137; 
 Ch 358. See Norton v. Hickok, 25 Hammond v. St. John, 4 Yerg. 
 Conn. 350; Barnes ?j. Dodge, 7 107 ; Boale t'. Diggcs, G Gratt. 582; 
 Gill 109 Boughton v. Bank, «fec., 2 Barb.Ch. 
 
 3 Dunn V. Bank, &c., 3 Ala. 153. 458 ; Nashua, &c. v. Stimpson, 35 
 
 4 Elliott V. Elmore, 16 Ohio. 37. N. H. 280 ; Bryan v. Knight, 1 
 See further, as to injunction of exc- Tex. 180 ; Bean v. Blanton, 3 Ired. 
 cutions, Pope v. Eakin, 3 Humph. Ch. 59; Heath v. Hand, 1 Paige, 
 413; Yerg. 34; Wood v. Cruis- 339; Bccklcy v. Palmer, 11 GraU. 
 man, G Humph. 379 ; Saunders v. G35 ; Lovett v. Longmire, 14 Ark. 
 Woods, 5 Yer<r. 143; Warwick v. 839 ; Drake v. Jones, 37 ^lis. 438; 
 Michael, 11 Gill & J. 153; Kelly «. Oldham v. Erhart, 18 Tex. 147; 
 Wiseman, 14 La. An. GGl ; I^Iarriot Dail v. Traverse, 8 Gill, 41. 
 
 V. Givens, 8 Ala. G94 ; McRae ^^ 
 
 It is no part of the plan of the present work to treat of proceedings 
 or remedies in equity, except so far as they are connected with proceed- 
 ino-3 at law; as by way of injunction to judgments and executions, which 
 makes the subject of the foregoing chapter. There is, however, a pro-
 
 en. XVIII.] NEW TRIALS IN EQUITY. 617 
 
 cess in courts of equity, for obtaining are hearing, somewhat analogous 
 to the new trial at law, of which the following account is given by ap- 
 proved writers : " Courts of equity have a class of cases originating in 
 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 cases upon the pleadings and proofs, without the 
 intervention of a jury; but it is usual, in matters of intricacy and im- 
 portance, especially 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. The practice is thus laid down by Sir William Blackstone : ' The 
 Chancellor's decree is either interlocutory or final. It very seldom hap- 
 pens that the first decree can be final, or conclude the cause; for, if any 
 matter of fact is strongly controverted, 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 the validity of a will, or whether A. is the heir 
 at law to B. — 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 
 is brought, wherein the plaintiff, by a fiction, declares that 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 £5. 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 fact in 
 the Court of Equity.' " 3 Bl. Comm. 452 ; Graham on N. T. 557. The 
 practice referred to is so purely one of equity, and at the same time has 
 fallen into such comparative disuse in the United States, more especially 
 ■with reference to the details mentioned by Blackstone, that any further 
 notice of it would be superfluous, and wholly foreign from the general 
 subject of Neio Trials. 
 
 The verdict of a jury, in a trial ordered by a court of equity, is conclu- 
 sive, unless regularly set aside. Franklin v. Greene, 2 Alien, 519.
 
 618 
 
 THE LAW OF NEAV TRIALS. 
 
 [CII. XIX. 
 
 CHAPTER XIX. 
 
 OTHER FORMS OF REHEARING THAN NEW TRIAL— WRIT 
 OF ERROR. 
 
 1. General remarks. Peculiari- 
 ties of American laAV. 
 
 2. Nature of a Avrit of error. 
 
 3. Ex dehito justiticB. 
 5. A new action. 
 
 G. Writ of error, and motion in 
 arrest of judgment. 
 
 7. Judgment must be according 
 to the course of the common lai.o. 
 
 8. Qualifications of this rule. 
 
 9. Special proceedings; whether 
 error lies. 
 
 10. Grounds of the writ. 
 
 11. Mere irregularity. 
 
 12. Whether for acts after judg- 
 ment. Executions. 
 
 18. Error of foimdation, pro- 
 ceeding, or judgment. 
 
 18. Error coram nobis or coram 
 vobis. 
 
 19. Error of law and of fact. 
 
 24. A remedial process ; con- 
 struction of statutes. 
 
 25. Cases of discretion. 
 
 2G. Questions of amount; ad 
 damnum, interest, costs, &c. 
 
 32. Defects in the declaration ; 
 variance ; misjoinder, &c. 
 
 35. Right of aj-)pcal, whether a 
 writ of error lies in case of. 
 
 43. The judgment must hcfi7ial. 
 
 50. The plainlitf in error must 
 have been injured l)y the judgment; 
 voluntary nonsuit, &c. 
 
 53. The error must be substantial, 
 not merely formal ; limitations and 
 
 qualifications of the rule ; judgment 
 in lavor of the plaintiff in error. 
 
 58. The error must appear upon 
 the record ; what constitutes the 
 record ; papers used or filed, parol 
 evidence, &c. 
 
 02. The error must appear, af- 
 firmatively. Judgment presumed 
 to be correct. 
 
 G4. Wlicn the right to a writ of 
 error is waived. 
 
 G8. Error in case of default. 
 
 69. For want of, or defect in, 
 service of the writ ; joint defend- 
 ants, &c. 
 
 74. In case of arbitration. 
 
 77. Eff'ect of a writ of error upon 
 the judgment and the rights of the 
 parties ; supersedeas of execution, 
 &c. 
 
 86. Course of proceeding upon a 
 writ of error ; assignment of errors; 
 allegations of the Avrit, &c. 
 
 103. Parlies ; must be interested; 
 joint parties ; in case of death ; pur- 
 chasers, creditors, agents, &c. 
 
 IIG. Summons and severance. 
 
 134. IMisnomer. 
 
 136. Service of writ of error. 
 
 139. Defences; dismissal: in nul- 
 lo est erratum ; release of errors. 
 
 158. Judgment upon a writ of 
 error ; reversal in part ; remanding 
 of the case, and proceedings of the 
 court below ; miscellaneous ]ioints. 
 
 188. Successive writs of error. 
 
 196. Error in criminal cases. 
 
 § 1. As a natui-al and useful sequence to the foregoing 
 treatise upon new trials, we proceed to present a concise 
 view of other forms of rehearing ; including the writ of 
 error, certiorari, appeal, audita querela, and mandamus.
 
 CH. XIX.] WRIT OF ERROR. 619 
 
 These subjects, more especially error and appeal, have 
 furnished abundant material for controversy and judicial 
 action in the United States. The cases are numerous, and 
 the points decided nice and various. A large proportion 
 of them, however, are not of general applical)ility, turning, 
 to a great extent, upon the construction of local statutes, 
 which seem to have made these forms of remedy subjects 
 of very special care and interest. Indeed American legisla- 
 tion has largely broken down the common law boundaries 
 between different modes of rehearing. The grounds of 
 new trials of which we have treated at length in the fore- 
 going pages, are in many of the States made by statute 
 grounds of appeal or error. Appeal, not a common law 
 remedy, but originally designed for the rehearing of 
 questions of fad^ is now often but another name for a 
 review of decisions upon jjoints of law ; and in some of 
 the States error^ although including some additional causes 
 of relief, means substantially the same thing as exceptions, 
 or motion for new trials which terms it has, for the most 
 part, superseded. It is proposed to confine the present 
 view of the several proceedings to such points as are 
 independent of express statutory regulation, and chiefly 
 to those which do not fall within the substantial range 
 oinew trial; although, as will be seen, the latter limita- 
 tion is not always strictly observed. For the reason stated, 
 topics, which occupy a large space in the American reports, 
 are here presented in a comparatively very small compass. 
 
 § 2. A writ of error is an original writ, in the nature 
 of a commission to the judges of the court from which it 
 issues, authorizing and requiring them to examine the 
 grounds upon which a judgment either in their own or an 
 inferior court was given, in the case specified in the writ, 
 and upon such examination alter, reverse, or affirm the 
 same according to ]aw.^ 
 
 ' Howe's Prac. 460.
 
 620 THE LAW OF NEW TRIALS. [CH. XIX, 
 
 § 3. In civil cases, the writ of error is ex dehito jusfitice, 
 and may be sued out without motion.^a) And it is held, 
 that, where such a writ is sent to the clerk of the court 
 below, commanding him to send up a transcript, &c., he 
 has no right to withhold it until his fees for making it 
 out are paid, but must obey the writ.^ 
 
 § 4. By the adoption of the common law, the writ of 
 error is held to have been introduced into a State as a 
 part of that system.^ 
 
 § 5. Uidike the application for a new trial, a writ of 
 error it held to be a neiu action.* 
 
 § 6. In addition to its analogy, under the effect of the 
 statutory law, to the motion for new trial, a writ of error 
 is in many respects like a motion m arrest of judgmevt ;^ 
 and may often be adopted as an alternative remedy, where 
 such motion might at the election of the party have been 
 effectually made.(6) 
 
 § 7. To sustain a writ of error, the judgment must have 
 been rendered in a court of record^ according to the course of 
 the common law.^{c) Thus, where a new jurisdiction is 
 
 ' 2 Salk. 504 ; Pembroke «. ^ Sweeney v. The People, 28 111. 
 
 Abiuti;ton, 2 Mass. 142. 208. 
 
 2 Thorn fl. Clendouin, 7Eng. 60. ^ Aurentz «. Porter, 48 Penn. 
 
 3 ]\loorc V. Harris, 1 Tex. 3G. 335 ; Commonwealth v. Haas, 57 
 « Ripley v. IMorris, 2 Gilm. 381 ; Penn. 443. 
 
 "WashiugtouB.Durant, 7Wall. 694. 
 
 (a) If an alleged error is not the subject of a writ of error or appeal, 
 it is then without remedy, and must not be regarded as an error. Loomis 
 V. Lane, 29 Penn. 242. If a sentence of a court of competent jurisdiction 
 is only voidable, the proper remedy is by a writ of error, not habeas 
 corpus. Shaw, 7 Ohio (N. S.), 81. 
 
 (fe) A decision, overruling a motion in arrest of judgment, which 
 motion contained questions of fact and of law, and leaving it uncertain 
 whether the court found the motion untrue, or judged it insufficient; is 
 erroneous. Bird v. Bird, 2 Root, 411. 
 
 (c) Error lies, in New Jersey, upon proceedings not according to the 
 course of the common law. Evans v. Adams, 3 Green, 373. As to
 
 CH. XIX.] WRIT OF ERROR. 621 
 
 created by statute, authorizing a proceeding not known 
 to the common law ; error will not lie, but certiorari is the 
 proper remedy. As, an allowance against an executor or 
 administrator.^ So a writ of error will not lie upon a 
 statutory judgment, arising upon the forfeiture of a forth- 
 coming bond.2 
 
 § 8. Although proceedings in the commencement in a 
 lower court were not in common-law form, yet if, on appeal, 
 the trial assumes substantially that nature, the writ of 
 error will lie. Thus appeal was had from a decree of the 
 Probate Court allowing a will, and a substantial issue 
 was tried in the Circuit Court, though no new common- 
 law issue was made there. Held, such proceedings were 
 governed by the analogies of common-law trials, and a 
 writ of error would lie to the Supreme Court, without 
 regard to the precise form of the proceedings in the 
 
 ' Campbell v. Strong, 1 Hemp. ^ Smiser v. Robertson, 16 Ark, 
 195. 599. 
 
 equity jurisdiction in connection with writs of error, see Wilson v. iEtna, 
 &c., 3 Ind. 557 ; Delaplaine v. Madison, 7 Wis. 407. In New York it 
 was held, that a court of chancery cannot supersede a writ of error, 
 quia improvidc emanavit, not even, as it seems, where the prerequisites 
 required by the statute, such as filing a certificate of counsel, have not 
 been complied with. Yates v. The People, 6 Johns. 337. Whether the 
 writ is properly granted or not, is a question for the decision alone of the 
 court in which it is returnable. Where the chancellor has committed a 
 person for contempt, and the Supreme Court, the prisoner being brought 
 before them on habeas corpus, refuse to discharge him, and a writ of 
 error is brought; the Court of Errors may inquire into the validity of the 
 order of the Court of Chancery, awarding the attachment, notwithstanding 
 an appeal might have been brought on that order. Yates v. The People, 
 6 Johns. 337. A court of errors will not so readily interfere with the 
 discretion of a court of chancery as with that of a court of law, although 
 the duties are discharged by the same person. Johnson v. Holt, 3 Kelly, 
 117. Where judgment is recovered at law, notwithstanding the de- 
 fendant has an equitable defence, he is not precluded from afterwards 
 seeking relief in equity, by suing out a writ of error, on which the judg- 
 ment is affirmed. McClure v. Colclough, 5 Ala. 65.
 
 622 THE LAW OF NEW TRIALS. [CII. XIX. 
 
 circuit.^ So a writ of error lies, though the jurisdiction 
 and mode of process depend upon a statute, if the pro- 
 ceedings are according to the common law.^ So in the 
 proceedings under tlie act of "forcible entries and de- 
 tainers," instituted before county commissioners, thence 
 appealed to the Circuit Court, and then brought by writ 
 of error to the Supreme Court, on a motion to quash the 
 writ ; held, that, granting that the proceedings in their 
 inception were summary, yet, after their arrival in the 
 Circuit Court they were according to the course of the 
 common law, and, as certiorari only brings up the question 
 of jurisdiction in the court below, error is the only method 
 of reviewing the charge of the judge.^ 
 
 § 9. It is held that a writ of error does not lie to the 
 Probate Court ;* nor, in Michigan, from an order of the 
 Circuit Court, on an appeal from a decree of the Probate 
 Court, removing an administrator f nor to a court martial f 
 nor to reverse a judgment upon a petition for a new high- 
 way f nor in case of certiorari ^{a) mandamus^ procedendo, 
 
 ' Baptist, &c. Union v. Peck, 9 ^ Smith «. Rice, 11 Mcass. 507. 
 Mich. 445 ; Waters ®. Randall, 8 ^ Holbrook v. Cook, 5 Mich. 325. 
 Met. 133. s Dunbar, 14 Mass. 393. 
 
 2 Drowue i). Stimpson, 3 Mass. ^ Dorchester v. Wentworth, 11 
 441. Fost. 451. 
 
 3 Parkers. Copland, 4 Mich. 538. 
 
 (a) "Where an ex parte application had been made to the presiding 
 judge of the court below, to sanction a petition for certiorari, which 
 application was granted, but, before the grounds of error alleged in the 
 petition had been considered and decided upon by the court, the plaintiff 
 in error sued out his writ of error to the Supreme Court ; a motion to 
 dismiss the writ of error, on the ground that it had been prematurely 
 sued out, was allowed by the court. Van Ness v. Cheeseborough, 11 
 Geo. 377. On a writ of error in cases taken to' the Circuit Court on 
 certiorari, the Supreme Court has no jurisdiction, like that of the Cir- 
 cuit Court, to inquire into the evidence exhibited in the inferior tribu- 
 nal, but can correct errors of law only. Elliott v. Whitmore. 5 Mich. 
 532. Error lies to reverse a judgment in scire facias, which is shown 
 by the record to have been commenced after the time limited by the 
 statute. Gass v. Bean, 5 Gray, 397.
 
 CH. XIX.] WRIT OF ERROR. 623 
 
 or denial of a writ of j^rohibition ; uor, as is sometimes 
 held, in case of habeas corpus.\a) 
 
 § 10. The OTOunds for a writ of error are, of course, 
 very numerous and various.^ 
 
 § 11. It is held that a mere irregularity is not ground 
 of error,^ hut of amendment, on motion, by the court 
 where the proceedings are had.* 
 
 § 12. In general, it is said, error does not lie for any 
 act after judgment.^ 
 
 § 12o. But error lies on an award of execution;^ or to 
 remove an order of court to stay indefinitely an execution 
 
 1 Mayor, &c. v. Shaw, 14 Geo. 436 ; Toralin li. State, 19 ib. 9 ; 
 163 ; Hammond v. The People, 33 Saltmarsh v. Bird, ib. 665. 
 
 111. 446 ; Laytou v. State, 4 Dutch. ^ Payne v. Collier, 6 Mis. 331. 
 575 ; Coston v. Coston, 35 Md. 500; « Claggett v. Simes, 11 Post. 33. 
 State V. Boyle, ib. 509. See City ^ Frazier v. Campbell, 5 Tex. 
 
 of London, 8 Co. 131 ; Com. Dig. 375 ; Davis «. Thomas, ib. 389 ; Co. 
 
 Pleader 3, B. 7 ; Yates, 6 John. Lit. 388 b; Bowen v. Lanier, 3 
 
 337; Holmes v. Jamison, 14 Pet. Tay. 341. 
 540 ; People v. Hessing, 38 111. 410. « Harger v. Commissioners, &c., 
 
 2 See Braley v. Clarke, 18 Ala. 13 Penn. 351. 
 
 (a) The weight of authority, however, would seem to be otherwise. 
 Under the act of Indiana, 1847, p. 113, either party to a writ of habeas 
 corpus may sue out a writ of error from the Supreme Court to the judg- 
 ment thereon of one of the associate judges of the court trying the same, 
 the matter having been tried before such judge. Sherry v. Winton, 1 
 Cart .6. So a prisoner, who has applied for a writ of habeas corpus 
 to be let to bail, and been refused by the judge, may prosecute a writ of 
 error from such judgment to the Supreme Court. Lumm v. State, 3 
 Ind. 293. In Mississippi, a writ of error will lie to the judgment of a 
 circuit judge, rendered in vacation, on a writ of habeas corpus, for pos- 
 session of a slave. Covington v. Arrington, 32 Miss. 144. • So, in Georgia, 
 error lies from the inferior to the Supreme Court in cases of habeas cor- 
 pus. Livingston v. Livingston, 24 Geo. 379. The writ does not lie in 
 case of contempt. State v. Galloway, 5 Cold. 326. Nor of divorce. 
 Parmenter v. Parmenter, 3 Head, 225. It lies in case of bastardy. 
 People V. Noxon, 40 111. 30.
 
 624 THE LAW OF NEW TRIALS. [CIL XIX. 
 
 Upon a jiulixnieiit;' or tea decif^ion that the plaintifl" shall 
 not pay costs, and quashing an execution issued tlierefor, 
 on a judgment for such costs, which was afterwards an- 
 nulled ;2 or upon an order made, settling the priority 
 among executions against the same defendant, and order- 
 ing one to be satisfied out of the proceeds of sale in pre- 
 ference to others.3 Qq^ though the right of a court of 
 common pleas to stay execution is undoubted, an order 
 to stay an execution indefinitely, as it is a final adjudica- 
 tion of the plaintiff's right, is subject to revision.-* And, 
 in general, error may be brought to set aside an erroneous 
 execution.'(a) 
 
 § 126. Error lies, where the judgment does not follow 
 the verdict.^ But there can be no writ of error u})on a 
 verdict, unless there is a judgment.^ 
 
 § 13. Another form of statement of the grounds for 
 writ of error is, that it must be for error in the founda- 
 tion, proceeding, judgment, or execution.^ 
 
 § 14. Thus, in reference to foundation^ where a writ of 
 review is sued out by a party not entitled to it.^ 
 
 § 15. In reference to the jprocecdings ; failure to continue 
 an action as-ainst an absent defendant.^"' 
 
 ' O'llara v. Pennsylvania, &c., 2 See Brown v. Chase, 4 Mass. 436 ; 
 
 Grant, 241. See Johnson v. liar- Clark v. Lamb, G Pick. 512; Whit- 
 
 vey, 4 Mass. 483. ini? v. Cochran, 9 Mass. 532 ; Petrie 
 
 2 Norcross v. Boulton, 1 Ilarr. v. Ilannay, 3 T. K. Go9. 
 
 310. ' Rule v. Ilaydcn, 3 B. Monr. 
 
 » Woodrufl' t). Chapin, 3 Zabr. 319; Wharton w. State, 41 Miss. G80. 
 
 555. « Co. Lit. 288 b. 
 
 * Patterson ^). Patterson, 27 Penn. ^ Hall v. Wolcott, 10 Mass. 218. 
 40. '" Blanchard «.AVild, 1 Mass. 342 ; 
 
 * Phillips V. Russell, 1 Hemp. 02. Bullard i\ Brackett, 2 Pick. 85. 
 6 Holmes v. Wood, G Mass. 1. 
 
 (a) It is held that an order of the court below to quash an execution 
 is not a judgment to which a writ of error will lie. McCargo v. Chap- 
 man, 20 How. 555.
 
 CH. XIX.] WRIT OF ERROR. 625 
 
 § IG. Ill reference to the Judgment ; where judgment is 
 given against an infant or non compos, without a guardian.' 
 
 § 17. But the writ was disallowed, where a judge, after 
 allowing exceptions, entered judgment at the next term.^ 
 So in case of omission to enter continuances upon the 
 docket.^ 
 
 § 18. A writ of error generally lies, either to an inferior 
 court, or to the same court, by which, or l)y a judge 
 thereof, the error has been committed. In the former case 
 it is error "com?7i vobis ;" in the latter '■'■coram 7iohis.'\a) 
 
 ' Knapp V. Crosby, 1 Mass. 479 ; 2 Brown v. Bull, 3 Mass. 311. 
 White V. Palmer, 4 lb. 147. » Weston, 11 Mass. 417. 
 
 (a) In Maryland a writ of error coram nobis lies to correct an error 
 in fact, in the same court where the record is ; but the same court can- 
 not correct an error in law, eitlier by or without a writ of error ; such 
 error should be redressed by another court. Hawkins v. Bowie, 9 Gill 
 & Johns. 428. A writ of error coram nobis lies to correct an error in 
 fact, or in process, or arising through default of the clerk, to the same 
 court where the record is. As where the defendant, being under age, 
 appeard by attorney, or where the defendant or plaintiff was a married 
 woman at commencement of suit. Kemp v. Cook, 18 Md. 130. In 
 Iowa, a writ of error coram nobis may be brought in the court where 
 judgment was rendered, when the error was not the fault of the court, 
 but of the clerk or other ministerial ofiScer, or was error in fact. Phillips 
 V. Russell, 1 Hemp. 62. It is only an error in fact, committed by the 
 inferior court in its own judgments, that can be reviewed by the writ of 
 error coram nobis. McKinney v. Western, &c., 4 Iowa, 420. The 
 ofBce of that writ is to correct a material error in fact, committed be- 
 fore or in the presence of " us," and not before "you;" or an error com- 
 mitted by the court or tribunal from which the writ issues, and not 
 by one to which it issues. A writ in the nature of a writ of error coram 
 nobis exists in New York, under another name ; but the provisions 
 of the Rev. Sts. relative to writs of error do not apply to this writ. 
 Smith V. Kingsley, 19 Wend. G20. Although a writ is not demaudable 
 of right, yet, if error in fact is shown to exist, it will always be awarded. 
 Higbie v. Comstock, 1 Denio, 652. On application for such writ, the 
 court cannot look into the cause of action ; and, where it was shown 
 40
 
 626 THE LAW OF NEW TRIALS. [CII. XIX. 
 
 § 19. Error may be either of law or of fact. As we have 
 already explained, in American practice, errors of fact, as 
 contradistinguished from those wdiicli appear upon the 
 record, and which alone are strictly of law^, may be revised 
 and corrected, in many of the States, by writ of error, 
 precisely as they might be, independently of statute, by 
 application for a new trial. It must be admitted, that 
 the distinction between errors in law and in fact is 
 somewhat shadowy ; and it wnll be presently seen, that 
 both alike must be brought to the notice of the corrective 
 court, as a part of the record ; whether so inserted, as of 
 course^ by the lower court or its clerk ; or upon the motion 
 of the party who complains of the error. Possibly this last 
 distinction may approximate as nearly as is practicable 
 to the difterence between errors of law^ and errors of 
 fact.(rt) 
 
 that the contract was made by the defendant, while an infant, by fraud- 
 ulently concealing- his infancy, and he now sought to reverse the judg- 
 ment, because he had appeared by attorney ; held, he was entitled to 
 the writ. Ibid. If, on such application, the plaintiff elects to vacate 
 the judgment, he will be permitted to do so, and the application will 
 then be denied. Ibid. 
 
 (a) See Bridendolph v. Zellers, 3 Md. 32,5. It is sometimes held, that 
 a writ of error lies only for error of law. Ward v. Bull, 1 Branch, 271. 
 An error in fact, in the judgment of a court, cannot be brought up as 
 an error in law. Walworth v. Walworth, Wright, 673. It is generally 
 held that error in fact and error in law cannot be joined in one assign- 
 ment. If they are so joined, it may be taken advantage of by demurrer. 
 Freeborn v. Denham, 2 Halst. 190; Fitch v. Lothrop, 2 Root, 524; 
 Clark V. Bell, 2 Litt. 1G2 ; Moody v. A'reeland, 7 AVend. 55 ; Brents v. 
 Barnett, 3 Bibb, 251. But see vStarbird v. Eaton, 42 Maine, 569. Errors 
 in fact, and in law, may be joined in a motion to quash an execution, or 
 ill a rule to show cause M-hy an execution or sale shall not be quashed, 
 though not in a writ of error coram nobis. Logan v. Steele, 7 J. J. 
 Marsh. 41. (See p. 627.) In Michigan, the Supreme Court has jurisdiction 
 over both errors of fact and errors of law. The constitutional provision 
 for trial of writs of error, in the Supreme Court, gives necessarily by 
 implication all the common law means to execute such provision. If 
 necessary, a venire may be issued for a jury to try the issue of fact in 
 the Supreme Court, or it may be sent to the proper Circuit Court for
 
 en. XIX.] WRIT OF ERROR. 627 
 
 § 20. With reference to the error complained of, as it 
 originally existed, and not in respect to the form in which 
 it is finally presented ; errors of fact are those not appearing 
 upon the face of the record ; as that the defendant, heing 
 an infant, appeared by attorney; that the j^laintitf or 
 defendant was a married woman, or had deceased; or 
 that the defendant was out of the State, or, contrary to 
 law, defaulted at the first term.^ 
 
 § 21. Errors in law are said to be either common or 
 special. The former, that the declaration is insufiicient to 
 sustain the judgment, and that judgment was rendered 
 for the wrong party. The latter are particular defects, 
 apparent on the record. 
 
 § 22. The plaintiff may assign several errors in law, but 
 only one in fact.^ Errors of fact and law cannot be joined ; 
 as the former are to be tried by the jury, the latter by the 
 court,^ (See p. 626 n.) 
 
 § 23. A writ of error to obtain relief from an illegal 
 taxation of costs, a memorandum of which taxation has 
 been filed in the case, but not incorporated in the record, 
 must assign the error as one of fact. And where the 
 executor of a plaintift' deceased was admitted to come in 
 and prosecute the suit ; and the defendant was defaulted, 
 and afterwards brought a writ of error, assigning as errors, 
 that it appeared by the record that the suit abated by the 
 plaintiff"'s death, and that illegal costs were taxed: the 
 
 ' See Kemp W.Cook, 18 Md. 130; » 2 Bac. Ab. 217; 2 Ld. Ray 
 
 Camp V. Bennett, 16 Wend. 48. 883 ; Jetfry v. Wood, 1 Str. 439. 
 
 2 2 Tidd's Prac. 1140. But see Metcalf t;. Fonts, 27 111. 
 
 110. 
 
 trial. Neither the constitution nor the statutes give power to the 
 Circuit Court to issue a writ of error in any case. Errors of fact may 
 be assigned on a writ of errors of law, when the court has the jurisdiction 
 of both classes of errors. Teller v. Wetherell, G Mich. 46.
 
 G28 THE LAW OF NEW TRIALS. [CU. XIX. 
 
 court refiiseil to dismiss tlie writ, for misjoinder of errors 
 ill law and errors in fact.' 
 
 § 24. A writ of error is held purely remedial. Hence 
 the Mass. St. 1851, c. 87, providing that in criminal cases 
 the court reversing a judgment may render the ]>roper 
 judgment, relates to writs of error on past as well as 
 future judgments; and such a construction does not make 
 it an ex post facto nctJ So a (N. Y.) statute, which provides 
 that the Court of Appeals shall have power to review, by 
 writ of error, any judgment rendered by the Supreme Court 
 in favor of any defendant charged with a criminal ofl'ence, 
 includes all judgments rendered after the passage of the 
 act, except where the defendant w\as acquitted by a jury.^ 
 But the ISTew York statute, authorizing Avrits of error to 
 review^ judgments which shall have been rendered in favor 
 of those indicted for criminal offences, does not include 
 judgments rendered before its passage.'' 
 
 § 25. As in case of new trial (see chap. 12), error does 
 not in general lie, for a decision upon a motion addressed 
 merely to the sound discretion of the court ; as for a de- 
 cision of the court below, upon a motion to vacate a 
 judgment, founded upon affidavits.^ So a refusal to set 
 aside an aAvard, under a compulsory arbitration law, for 
 misbehavior, or wdien the award has been obtained by 
 undue means, is not the subject of a writ of error." Nor 
 the decision of a court of original jurisdiction, upon an 
 application to open a judgment on confession.^ !N"or an 
 order opening a judgment to let in a defence.** So where 
 
 ' Yalentiue v. Norton, 30 Maine, Byrcl v. Johnson, 38 Geo. 113 ; 
 
 194. City. &c. V. Jackson, 1 Doug. 106 ; 
 
 2 Jacquins v. Commonwealth, 9 Chairec v. Soldan, 5 Mich. 243 ; 
 ■ Cush. 279. Bulson v. The People, 31 111. 409. 
 
 3 The People v. Clark, 3 SeUl. <i Bemus v. Clark, 29 Penn. 251. 
 385. ' Bunce v. Wightman, 29 Penn. 
 
 « The People v. Carnal, 2 Seld. 335. 
 4G3. ^ Hill V. Irwin, 32 Penn. 314. 
 
 5 Hill V. Canneld, 50 Penn. 404 ;
 
 CH. XIX.] WRIT OF ERROR. 629 
 
 the court declined to pass upon certain pleas in a scire 
 facias^ but saved the right to insist on them at the trial; 
 held, the ruling was not oiie to which error would lie.' 
 And the court above will rarely, if ever, interfere with 
 the exercise of its discretion by the inferior court, in 
 setting aside a default f or, except in cases of manifestly 
 gross and flagrant abuse of power.^ So the want of suffi- 
 cient particularity in the specification of a set-off is not 
 ground of error;* or the ruling of a court on a question of 
 amendment ;^ or the exercise of discretion in discharging 
 or sending out the second time a jury who cannot agree.® 
 
 § 26. It has been sometimes held, that a writ of error 
 does not lie, to correct error in the amount of a verdict,'^ 
 as in case of interest f or where the damages recovered are 
 more than the amount laid in the declaration f or in 
 adding the costs in the damages ;'" in which case there 
 may be a remittitur of damages even after error brought.^' 
 So in an action upon a note, if the verdict be for an 
 amount greater than appears from the declaration to be 
 due, a writ of error is not the proper remedy, but the 
 defendant should ask for a new trial.'^ 
 
 § 27. But the better opinion would seem to be, that error 
 lies, where the damages awarded exceed those claimed in 
 the declaration;'^ or where the amount of the judgment 
 exceeds the ad damnurii}^ 
 
 ' Bcalle V. Day, 38 Geo. 435. ^ Thompson v. French, 10 Yerg. 
 
 2 Chicago V. Adams, 34 111. 493. 453. 
 
 3 Rich -y. Hathaway, 18 111. 548. i" McAlexander v. Wright, 3 
 ♦ Hodges V. Rutland, &c., 3 Monr. 189. 
 
 Wms. 330. " Pickwood v. Wright, 1 H. Bl. 
 
 5 Crawford v. New Jersey, &c., G43. 
 
 4 Dutch. 479. '2 McKenzie «. McColl, 3 Ala. 
 
 6 Coit V. Waples, 1 Min. 134. 516. 
 
 ^ Abney v. Carter, 3 Ala. 715 ; '^ Rives v. Kumler, 37 111. 391. 
 
 Moore «. Bradford, ib. 550. '^ Grosvenor v. Dauforth, 16 
 
 s Whitwell V. Atkinson, 6 Mass. Mass. 74. 
 273.
 
 630 THE LAW OF NEW TRIALS. [oiL XIX. 
 
 § 28. The taxation of costs is revieAvable upon error. ^ 
 Thus, in Illinois, error, not appeal, lies from the Circuit to 
 the Supreme Court on a question as to the taxation of 
 costs on a fee-bill replevied.^ 
 
 §29. But, where the judgment for costs is against 
 neither party, no one has a right to complain.^ 
 
 § 30. The allowance or disallowance of costs in chancer}/ 
 is entirely discretionary, and not the sul)ject of error, 
 especially where such allowance is in favor of the prevail- 
 ing party." 
 
 § 31. But although a writ of error will not lie to re- 
 verse a decree for costs only ; where the court obtains 
 jurisdiction in error on other grounds, it may reform the 
 matter of costs.' 
 
 § 32. Error lies, in case of default, for a defect in the 
 declaration.^ So where one count is bad, and there is a 
 general assessment of damages ; unless the certificate of 
 the judge shows that they were assessed only upon the 
 good counts.'^ So where the illegality of the promise sued 
 on appears on the declaration.^ So in case of misjoinder.^ 
 Thus where legatees sue jointly for money bequeathed to 
 them separately; a judgment by default in their favor 
 may be reversed by a writ of error:'" and, in such case, 
 there can be no amendment by striking out all the names 
 
 ' Andrews v. Crcssy, 2 Min. G7. ^ Randolph v. Rosser, 7 Port. 
 
 Pee Weston, 11 Mass. 417 ; Field 249. 
 
 V. First, &c,., 5 ib. 389; South- g Perry ». Goodwin, G Mass. 498. 
 
 worth V. Packard, 7ih. 9.j ; Brewer ^ Ilnninenwav v- ITicks, 4 Pick. 
 
 V. Brewer, 6 Geo. r,87. 497 ; Dryden t'.'Dryden, 9 ib. 54G. 
 
 2 Smith V. Coats, 19 111. 405. « Stotesbiiry v. Smith, 2 Burr. 
 
 3 Ross V. Ilayne, 3 Iowa, 211. 924. 
 
 ♦ Tomlinson v. Wood, 2 Conn. 9 Fairfield v. Burt, 11 Pick. 244. 
 
 89G ; Cowlesy.Whitman, 10 ib. 131. '» Whiting v. Cook, 8 Allen, G3.
 
 en. XIX.] AVRIT OF ERROR. 631 
 
 but one; especially where there is nothing upon the record 
 to show the sum to which he would be entitled.^ 
 
 § 33. But a writ of error docs not lie, after a verdict 
 for the plaintiff in a writ of entry for a described portion 
 of land sued for, on the ground that there are no sufficient 
 monuments or other means to ascertain the land recovered ;^ 
 nor wliere an indictment contains several counts, upon 
 one of which a verdict of guilty is rendered, and sentence 
 passed, though upon one of the other counts there is no 
 finding ;3 nor where, upon an indictment, a general ver- 
 dict of guilty is returned, and one count is good, because 
 there is another count defective.^ So it is held that a 
 misjoinder of the defendants is not available on error, 
 when the complaint shows a substantial cause of action 
 against both, and the question was not raised in the pri- 
 mary court.^ So, in an action on a contract against three 
 defendants, who all pleaded the general issue, judgment 
 on a verdict having been rendered against two only, with- 
 out objection on their part; they cannot reverse the judg- 
 ment on error, although the statute does not authorize a 
 judgment for the plaintiff in such case.'' 
 
 § 34. It is held that advantage cannot be taken, on 
 error, of a variance between the writ and declaration, 
 when the parties were regularly defaulted ;^ nor of a vari- 
 ance, between the amount of damages laid in the prcecijye, 
 and that laid in the declaration.^ 
 
 § 35. It has generally been held, that error does not lie, 
 where the party had a remedy by appeal; more especially 
 
 ' Whiting B. Cook, 8 Allen, 63. s Harris v. Plant, 31 Ala. 639. 
 
 2 Silloway v. Hale, 8 Allen, 61. ^ Walker v. Mobile, &c., 31 Ala. 
 
 3 Edgerton v. Com., 5 Allen, 514. 529. 
 
 See Baron ». The People, 1 Parker, ^ Thompson ?). Turner, 23 111. 
 
 246. 389. 
 
 * Jennings v. Com., 17 Pick. 80. » McKay v. Friebele, 8 Flori. 31.
 
 632 THE LAW OF NEW TRIALS. [c.U. XIX. 
 
 if the only one provided by stutiite.'(a) Or " where the 
 plaintitl:" in error was in such a condition, that without 
 laches he could avail himself of his right to appeal and 
 did not do it. The reasons are, that the remedy by ap- 
 peal is more simple, more prompt, less expensive and cir- 
 cuitous."^ So when an appeal is allowed by law, it is held 
 that no writ of error will lie, until the appeal has been 
 tried, and the final judgment of the court has been en- 
 tered thereon.-'' Kor to a decree, from which an appeal is 
 still pending.-* Thus a writ of error will not be sustained 
 to reverse the judgment of a justice of the peace, if the 
 plaintiff in error had an opportunity to appeal. And 
 where a party, by his counsel, ai)peared before a justice, 
 and before judgment had permission on his own motion 
 to withdraw, and did withdraw his appearance; he is 
 considered as having had an opportunity to appeal.^ 
 
 § 36. But a writ of error was held to lie, in Massa- 
 chusetts, to reverse a judgment of the Court of Common 
 Pleas, in an action commenced since the Statute of 1840, 
 c. 87 (restricting appeals to questions of law), took cliect, 
 although an appeal might have been taken from such 
 judgment by virtue of § 5 of that chapter.^ In this case, 
 the rule above stated is said to have been " adopted with 
 
 ' Jobns V. Fuller, 13 Geo. 50G ; ^ Per Siiaw, C. J., Monk v. 
 
 Haight V. Gay, 8 Cal. 297 ; Carter Guild, 3 IMet. 373. 
 
 V. Buchanan, 2 Kelly, 337 ; MrIcIIc- » ilorner v. Roberts's Lateral 
 
 ton ». Gould, 5 Cal. 100; Savage Railroad, 37 Pcnn. 333. 
 
 r. Gulliver, 4 Mass. 171 ; Cham- * Jones ;;. Crawford, 18 Geo. 281. 
 
 piou V. Brooks, 9 ib. 228. ^ Howard v. Hill, 31 Maine, 420. 
 
 6 Peck D. Ilapgood, 10 Met. 172. 
 
 (a) The distinction between writs of error and appeals cannot be 
 overthrown by an agreement of counsel, in the court below, that all the 
 evidence in the cause shall be introduced and considered as a statement 
 of facts. Minor v. Tillotson, 2 llow. 392. A party cannot obtain re- 
 dress, by motion in error, for a mistake of the jury in relation to a 
 question which is properly before them. Sheldon v. Hartford, &c., 22 
 Conn. 235.
 
 CH. XIX.] "WRIT OF ERROR. 633 
 
 many qualifications and exceptions. An appeal o^iened 
 the whole case, upon matter of fact as well as law. The 
 pleadings might be amended, new evidence offered, and 
 the case treated as an original action. It was held reason- 
 able that, if a party could appeal, and declined to do so, 
 he should be considered as acquiescing in the judgment."^ 
 
 § 37. So an infant defendant may, in all cases, have a 
 writ of error to reverse a judgment against him. "The 
 very minority of the party, which is assigned for error, 
 disabled him from appealing."^ 
 
 § 38. So a writ of error lies, for want of legal notice 
 of the suit and a defoult, though the party might have 
 appealed.^ 
 
 § 39. So, notwithstanding an agreement not to appeal.* 
 Or declining to prosecute an appeal after claiming it.^ 
 
 § 40. So where the court to which an action was 
 brought by appeal from a justice dismissed it without 
 trial.^ 
 
 § 41. And the rule in reference to appeal does not pre- 
 clude a writ of error, though the party has a right to file 
 exce-ptions? 
 
 § 42. The distinction is made, that, after an appeal has 
 been dismissed for negligence of the appellant in filing his 
 record, he cannot afterwards sue out a writ of error ; but 
 
 ' Per Shaw, C. J., Peck «. Hap- « Poasj v. Rowe, 16 Tex. 590. 
 
 good, 10 Met. 175. ^ Keen v. Turner, 13 Mass. 2G5. 
 
 2 Valicr v. Hart, 11 Mass. 300. ^ Hemmenway v. llicks, 4 Pick. 
 
 » Skipwith V. Hill, 2 Mass. 35. 497. 
 ♦ Wynn v. Bellas, 34 Peun. 100.
 
 G3-1 TUE LAW OP NEW TRIALS. [CII. XIX. 
 
 the rule is difterent, where the appeal is dismissed without 
 this fault.'(a) 
 
 § 43. To authorize a writ of error, the judgment must 
 h& final} It is not employed to bring up interlocutory or 
 discretionary orders, made pending the litigation.^ There 
 must he such a decision as settles the rights of the parties 
 respecting the subject-matter of the suit, until reversed or 
 set aside.^ And an order, in the progress of a suit, and 
 before judgment, to be final, and lay the foundation for a 
 petition in error, must be such as determines the action, 
 and prevents a judgment.^ 
 
 § 44. Upon this ground, in part, it is held, that error 
 does not lie upon a judgment granting a new trial ,^ such 
 order being only in the nature of an interlocutory judg- 
 ment.^ jSTor, where there are three issues, upon a decision 
 of one only.^ So an order that all proceedings on a judg- 
 ment shall be stayed, and that no writ of hah.fac. shall 
 issue thereon, until the final determination of a pending 
 proceeding to assess damages for taking the land recovered, 
 "subject to such further order of the court as the justice 
 
 ' Smith V. Union, &c., 13 S. & » Holbrook v. Cook, 5 Mich. 225; 
 
 M. 240. AVallace v. Middlebrook, 28 Conn. 
 
 2 INIartin v. Crow, 28 Tex. 613 ; 4G4. 
 
 Tilford V. Ilamsev, 43 Mis. 4fi0 ; * Hayes v. Caldwell. 5 Gilm. 33. 
 
 Allen V. Tyler, "3 Vroom. 498; ^ Hobl)es v. Beckwith, 6 Ohio 
 
 Tradesmen's v. Fairchild, 3 ib. (N. S.). 252. 
 
 542 ; Patten v. People, 18 Mich. '^ Enimorson v. Harriet, 11 Mis. 
 
 314 ; Fairtliorne v. Wiggington, 11 413; Emmcrscmfl. Scott, ib. ; Evans 
 
 B. Mon. 3G8; Kankin w! Ballance, v. Adams, 12 Geo. 44; Keating v. 
 
 13 111. 766; Hughes v. Maddox, 6 Bradford, 25 Mis. 86. 
 
 Tex. 90 ; Bisliop v. Hampton, 19 ^ Cathcart v. Commonwealth, 37 
 
 Ala. 792 ; Black v. Black, 20 ib. Penn. 108. 
 
 401 ; Knapp v. Marshall, 26 111. 63; s Bank, &c. v. Armstrong, 5 
 
 Bradley v. Bearss, 4 Ind. 186 ; Lit- Eng. 498. 
 tie V. Morris, 10 Tex. 263. 
 
 (a) In Texas, where, on appeal by the defendant, the judgment is 
 affirmed, his sureties in a sequestration replevy bond may nevertheless 
 prosecute their writ of error to the judgment, so far as it affected them. 
 Sartain v. Hamilton, 14 Tex. 348.
 
 CH. XIX.] WRIT OF ERROR. 635 
 
 of the case may require;" is not a final judgment, nor 
 removable by writ of error.^ So a decree of the Court of 
 Probate is not final, unless it makes distribution of all the 
 assets found to be in the hands of the executor, &c., 
 among all the parties who appear by the record to be in- 
 terested in the estate, and unless all the parties in interest 
 are before the court, either in person or by notice.^ So a 
 refusal to quash an indictment cannot be reviewed on 
 error.^ So where a temporary injunction is dissolved, on 
 motion, on the coming in of the answer, and judgment 
 entered against the plaintiff and his sureties, and tlie de- 
 fendant is required to give the refunding bond directed 
 by statute, conditioned to refund in the event of the in- 
 junction being made perpetual on final hearing; it is not 
 a final judgment upon which a writ of error will lie/ So 
 a forfeited replevin bond, upon which an execution has 
 issued, is not a final judgment, upon which a writ of error 
 lies, but the party has a further remedy by motion in the 
 court below.^ So where the (Ohio) Court of Common 
 Pleas order a larger assessment than that fixed by the 
 Probate Court for land taken for a railway, and render a 
 judgment therefor; this is not a final judgment, author- 
 izing a petition in error.^ So it is held that a judgment 
 is not final, which does not dispose of the question of 
 costs.'^ Nor does error lie upon a mere interlocutory, as 
 distinguished from a final, order of imrtitlon.^ 
 
 § 45. But error lies to a decision on a motion, if it in 
 any way determines the case, and is a part of the record.^ 
 As, to an order of court striking a case from the docket.^" 
 
 ' O'Hara «. Pennsylvania, &c., 2 ^ Stenbenville, &c. v. Patrick, 7 
 
 Grant, 241. Ohio (N. S.). 170. 
 
 2 HoUis V. Caugham, 22 Ala. 478. "• Delap v. Hunter, 1 Sneed, 101. 
 
 3 The State v. Jones, 5 Ala. 066. » Stephens v. Hume, 25 Mis. 849. 
 * Albright v. Mallory, 19 Tex. « Cavanaugh v. Titus, 5 Wis. 
 
 106. ' 143. 
 
 6 Testard v. Neilson, 20 Tex. 139. '» Woodruff v. Bacon, 34 Conn. 
 
 181.
 
 G3G THE LAW OF NEW TRIALS. [CH. XIX. 
 
 Or to ail order rejecting a claim against an insolvent es- 
 tate.^ So to a judgment that a writ be quashed for want 
 of a seal, and the defendant recover his costs.^ Or where 
 a party is before the court, and the suit is improperly 
 dismissed.' 
 
 § 46. If there is error in the dismissal of a suit or a 
 refusal to reinstate it, at a former term, the remedy lies 
 in appeal or writ of error, and not in a second a])i)lieation 
 in the same court at a subsequent term. Though if the 
 dismissal was occasioned by the plaintiff's laches, the ap- 
 plication should be refused.^ So error lies to the improper 
 dismissal of an appeal.^ But not to a judgment refusing 
 to allow a plaintiff to dismiss, as it is not final. Nor if 
 a plaintiff' voluntarily dismiss.^ 
 
 § 47. It is held (subject, of course, to the rules as to 
 discretion and waiver\ that errors in an interlocutory judg- 
 ment can be revised on a writ of error brought on the 
 final judgment, any error in such interlocutory judgment 
 entering into and making erroneous the final judgment.^ 
 
 § 48. The rendition of a judgment is the actual decision 
 of the case, and not the perfecting of that decision of 
 record ; and the time of appeal runs from the filing of the 
 decision by the judge. A judgment, conditional upon the 
 defendant's failure to answer within a certain time, is 
 not consummate until the expiration of that time, and 
 a writ of error must be sued out (in Min.) within one 
 year afterwards.^ 
 
 ' Bartol V. Calvert, 21 Ala. 42. (N. S.) 622 ; Williams v. Stewart, 
 
 2 Bank, &c. v. Bates, 5 Eni?. 3 Wis. 773. 
 
 G31. ' 6 Newman v. Dick, 23 111. 338. 
 
 3 Bradford t). Bayles, 8 Ala. 8G5. ? Cathcart v. Com., 37 Penn. 
 < Chambers v. Shaw, 23 Tex. 108. 
 
 165. 8 Haines v. Paxton, 5 Min. 443. 
 
 5 Eaton, &c. v. Varnum, 10 Ohio
 
 CH. XIX.] WRIT OF ERROR. 637 
 
 § 49. The final decree intended ])y a statute, limiting a 
 writ of error to three years after its rendition, is the last 
 decree rendered in the cause ; and a writ of error will not 
 l;e barred, although more than three years have elapsed 
 since the decree was rendered, if there has been a subse- 
 quent decree within the three years.^ 
 
 § 4:9a. Where a decree ascertains and settles the rights 
 of the parties, it is so far final as to sustain a writ of 
 error, although the cause may be afterwards referred to a 
 master to ascertain facts for an account ; and it will not 
 vary the case that proceedings are afterwards had, and 
 new parties made, for a purpose not aftecting the merits, 
 but relating: to the account to be taken.^ 
 
 § 50. Error does not lie upon a correct decree, though 
 rendered for a wrong reason.^ And the substantial ques- 
 tion on a writ of error is, whether the judgment is just 
 and correct on the facts shown by bill of exceptions. The 
 rulings of the court may be erroneous, and yet the judg- 
 ment be clearly correct.* 
 
 § 51. Nor does error lie for informality of the issue, 
 unless it prevent the party from putting forth the strength 
 of his case, and prejudice him.-^ ISTor if the plaintiff in 
 error was not injured by the error assigned." IN'or where 
 an alleged error is in favor of the plaintifl" in error.^ As 
 where error is brought by a party in whose favor a de- 
 murrer has been decided.^ Nor if the correction would 
 avail nothing to the plaintiff' in error.^ 
 
 • Bank, &c. v. Hall, f. Ala. 141. ^ Jackson «. Bank, &c., lOPenn. 
 2 Bank of Mobile v. Hall, 6 Ala. 61. 
 
 141. 8 Hurbert w. Duniont, 3 Ind. 346. 
 
 » Stiles V. Lis^btfoot, 26 Ala. 443. ^ Hamrick v. Rouse, 17 Geo. 56 ; 
 
 * Gwin«. Williams, 27 Miss. 824. Dupue «. Perry, 18 Ala. 34 ; Sbir- 
 
 5 Gates V. Jobnston, 3 Penn. 53. ley v. Lunenlmrgb, 11 Mass. 379; 
 
 6 llaminitt z). Coffln,3Iowa, 205; Wbiting v. Cocbran, 9 ib. 533; 
 Ball V. Maloney. 37 Conn. 560; Lyman ?;. Arms, 5 Pick. 213; Orms- 
 Banning -v. Banning, 12 Obio (N. by v. Ibnisen, 34 Penn. 463. 
 
 S.), 437; Berry c.LoVe, lOMicb. 9.
 
 638 THE LAW OF NEW TRIALS. [CIL XIX. 
 
 § 52. And the maxim is applied — ^'- volenti not fit injuria "^ 
 Hence a writ of error will not lie from a voluntary nonsuit.^ 
 Nor after a retraxit^ though the objection must be made 
 before joinder in error.^ Nor where the party voluntarily 
 dismisses his suit, subsequently to the decision complained 
 of.* When it becomes necessary for a plaintiff to suffer a 
 nonsuit, on account of any decision of the court on the 
 trial, he must reserve the point by bill of exceptions, if he 
 wishes to revise the action of the court, even when the 
 ruling is otherwise disclosed by the record.^ 
 
 § 53. And, in general, the writ of error lies only for 
 errors of substance, not of mere /or?n;^ — not for such errors 
 as furnish ground of abatement,^ or as are in their nature 
 amendable at common law, or cured by any of the statutes 
 of jeofails.^ Thus, where the complaint shows a substantial 
 ground of action, and no objection is interposed to it in 
 the primary court, a misjoinder of causes of action is not 
 available on error.^ Nor the nonjoinder of co-plaintiff', 
 after forcing the plaintiff" to amend by omitting him.'" 
 Nor a nonjoinder of joint obligors as defendants, not 
 pleaded in abatement, though the judgment was by de- 
 fault, and it was apparent from the petition that there 
 were such, unless proved that they are still living." 
 
 § 54. So no objection can be taken to a declaration, 
 where judgment was rendered by default, except such as 
 
 ' Cora. V. Shanks, 10 B. Mon. ^ Palmer v. Bice, 28 Ala. 480. 
 
 804. 6 Benuct v. Bullock, 85 Penn. 
 
 2 Union, &c. ■;;. Carr, 2 Humph. 8G4 ; Buckfield v. Gorham, 6 Mass. 
 
 345 ; Ewing v. Glidwell, 3 How. 445. 
 
 Miss. 332; trice v. Smitli, G Yerg. ? Piper v. Goodwin, 10 Shepl. 
 
 319 ; Howell v. Pitman, 5 Mis. 251. 
 
 246; Atkinson v. Lane, 7 ib. 403; s ^llen v. The Mayor, &c., 9 
 
 Kclscy V. Koss, G Blackf. 53G ; Geo. 286; Shoenberger v. Zook, 34 
 
 Vestal V. Burditt, ib. 555 ; Kent v. Penn. 24. 
 
 Hunter, 9 Geo. 207; Greenlee «. ^ Walker w. Mobile, &c., 31 Ala. 
 
 McCoy, 30 Miss. 588. 529. 
 
 » Harris v. Preston, 5 Eng. 201. i" Powell v. Ross, 4 Cal. 197. 
 
 ^ Dannolly v. Speer, 7 Geo. 227; " Anderson v. Chandler, 18 Tex. 
 
 Mott V. Hill, ib. 79. 436.
 
 en. XIX.] WRIT OP ERROR. 639 
 
 would be good on general demurrer. ^ So, if, pending the writ 
 of error with supersedeas, the defendant in error prove the 
 existence and loss of the process and sheriiF's return, the 
 want of Vv'hich was the only error, the judgment will be 
 affirmed.2 So, that an action, otherwise maintainable, was 
 begun prematurely, is an objection which cannot be taken 
 advantage of on error, after the time when it could be com- 
 menced.^ Nor, in an action brought by a corporation, the 
 omission to aver its corporate existence in the complaint, 
 when a trial was had on the plea of the general issue, 
 without this objection.* And it is not a fatal error, to 
 sustain a demurrer to a special plea, setting up a defence 
 which is available under the general issue.^(a) 
 
 § 55. "Where, from the whole record, it appears conclu- 
 sively that the proper judgment was entered, the pro- 
 ceeding will not be reversed on error, even if the court 
 mistook the law on some of the propositions discussed.® 
 Nor where there has been a trial, as upon an issue, though 
 no issue was joined, if the merits have been reached.^ 
 
 ' Fournier ■». Faggott, 3 Scam. * "Walker v. Mobile, &c., 31 Ala. 
 
 347. 529. 
 
 ' Gentry v. Hutchcraft, 7 Monr. ^ "W^allace v. Scales, 36 Miss. 53. 
 
 241. ^ Harman v. Kelley, 14 Ohio, 
 
 '^ Mahoney v. O'Leary, 34 Ala. 503 ; Andre v. Johnson, 6 Blackf. 
 
 97. 375. 
 
 7 Ward V. Moore, 6 Yerg. 491. 
 
 (a) Error to the allowance of a merely formal amendment of the 
 pleadings is evidently frivolous, and intended for delay, and the judg- 
 ment in such case was afiirmed, with ten per cent, damages. Jenkins v. 
 Banning, 23 How. 455. In New York, Ohio, and perhaps other States, 
 error is limited to judgments which " affect substantial rights." Many 
 cases have occurred involving the construction of this phrase. In Ohio, 
 an order of the Court of Common Pleas, discharging an attachment 
 against a resident, as to the whole property attached, affects a substantial 
 right, and is made in a special proceeding, and, by ^ 512 of the code, is a 
 final order which may be reversed pending the action. Watson v. Sulli- 
 van, 5 Ohio (N. S.), 42. So an order, dismissing an action appealed from 
 a justice of the peace to the Common Pleas, for want of a petition. 
 Ilettrick v. W' ilson, 12 Ohio (N. S.) 136.
 
 640 THE LAW OF NEW TRIALS. [CH. XIX. 
 
 Nor where the siil)jcct-malter of exceptions becomes im- 
 materiul in the further progress of the cause.^ 
 
 § 56. It is held that a writ of error may be brought, 
 unless the error is one from which it is impossible any 
 injury could have accrued.* And a party may sometimes 
 reverse a judgment in his favor. Tlius A. sued B., C, and 
 D. on a joint bond. Judgment was rendered against B. 
 by default, and the suit was dismissed as to C. and D. 
 After B.'s death, the judgment remaining unsatisfied, A. 
 brought a writ of error to have the judgment reversed. 
 Held, A. was entitled to a reversal of the judgment in his 
 favor, and, as the judgment stood in the way of his re- 
 covery against C. and 1)., it was reversed.^ 
 
 § 57. But it is held, tliat aparty suing out an execution 
 and enforcing a judgment in his favor elects to take it as 
 rendered, and cannot afterwards prosecute a writ of error 
 tlicreto.^ 
 
 § 58. The error complained of must a^pm/* upon the 
 record.\a) And unless points intended to be raised for 
 
 ' Philadelphia, &c. v. Howard, &c., 27 111. 145 ; Smith v. Trimble, 
 
 13 Ilow. 307. ib. 153; Benedict v. Stale, 12 Wis. 
 
 ■^ Pinkston «. Greene, 9 Ala. 19; 313; Peglow v. State, ib. 534; 
 
 Fuller V. Robb, 26 111. 246 ; John- Frantz v. State, ib. 536 ; Keed v. 
 
 eon V. Jebb, 3 Burr, 1772; 2 Sauu. De Wolf, Wright, 418; Guthrie v. 
 
 101, d. n. Wilson, 40 Penn. 430 ; Graham 
 
 s'llale v Crowell, 2 Florida, -y. McCrcary, ib. 515 ; Leak «. Mc- 
 
 534 Dowell. 6 Geo. 264; Eldrcd v. 
 
 » Lacy v. Hall, 37 Penn. 366. Haslett, 38 Penn. 16 ; Lutkins v. 
 
 5 Schoeppe^.Com., Leg. Inlell., Zabriskie, 1 N. .1.337; Sccrest v. 
 
 Feb. 18, 1870; Summerville v. Townsend, 1 Tex. 414; Jones v. 
 
 Painter, 44 Penn. 110; Taylor v. Black, ib. 527; People v. Judges, 
 
 Cora., ib. 131 ; State v. Thompson, &c., 1 Doug. 434; Millerd v. Reeves, 
 
 18 Tex. 526 ; llakman v. Sheufl'er, 1 Mann. 107; Miller v. Chaffee, ib. 
 
 48 Penn. 176 ; Hallam v. Jacks, 11 257. 
 Ohio (N. S. ), 692 ; Roddick v. Slate, 
 
 (a) The purpose of a writ of error is to examine the record. Star- 
 bird V. Eaton, 42 Maine, 569. As to the application of this rule in case 
 oiwant of jurisdiction, see Riley v. Waugh, 8 Cush. 220; Fesseudcn v.
 
 CH. XIX.] WRIT OF ERROR. 641 
 
 revision are set out in the record with reasonable certainty, 
 so as to enable the court to decide without danger of mis- 
 take; the exception or point reserved will be disregarded.^ 
 
 § 59. Thus error cannot be maintained upon a report of 
 the judge; or reasons given for the opinion of the court, 
 or such opinion itself; or papers and documents filed.-(rt) 
 So, in Pennsylvania, on writ of error to a judgment, on 
 summary proceedings before two justices by a landlord, to 
 obtain possession, which are removed by certiorari into the 
 Common Pleas; the Supreme Court cannot notice matters 
 not appearing on the record, although proved, by deposi- 
 tion in the court below, to have occurred before the 
 
 ' Findlay v. Pruitt, 9 Port. 195. Adams, 8 Mass. 383; Paul v. Hus- 
 
 2 McFadden v. Otis, 6 Mass. 323; sey, 35 Maine, 97; Com. ■». Church, 
 
 Storer v. White, 7 ib. 448 ; Gerrish 1 Penn. 105. 
 
 V. Morss, 2 Pick. 025 ; Pierce v. 
 
 Hill, 6 Mich. 242. The record of a judgment having been amended 
 during the pendency of a writ of error thereon, the amended record 
 becomes the only subsisting record for the consideration of the court. 
 Weed V. Weed, 25 Conn. 494. 
 
 (a) In Pennsylvania, where it appears from the record that deeds, 
 records, or papers material to a sufficient understanding of the case, 
 were given in evidence in the court below, and these documents are not 
 annexed to the record, the court will affirm the judgment. Barton v. 
 Wells, 5 Whart. 225. In Maine, errors in fact may be assigned which 
 are not disclosed by the record; but nothing can be assigned which 
 contradicts the record ; the deposition of the justice who rendered the 
 judgment cannot be received to discredit it. Papers and documents filed 
 in the case, but not incorporated into the record, constitute no part of 
 it. Paul V. Hussey, 35 Maine, 97. In New York, a special assignment 
 of errors, that the issues were not tried, is bad, as impeaching the record; 
 and a plea of in mdlo est erratum to such assignment operates as a 
 demurrer, and not as a confession of the fact assigned as error. Lovett v. 
 Pell, 22 Wend. 369. In Alabama, upon a writ of error coram vohis, error 
 cannot be assigned which contradicts the record. Thus it cannot be 
 assigned that a corporation, against which a judgment had been rendered, 
 had ceased to exist previous to the rendition of the judgment, that fact 
 having been put in issue and determined in the judgment sought to be 
 reversed. Holford v. Alexander, 12 Ala. 280. 
 
 41
 
 642 THE LAW OF NEW TRIALS. [CU. XIX. 
 
 justices.^ So the reasons of the court below, or deposi- 
 tions there read, on a rule to show cause why an execution 
 should not be set aside, on the ground that a conditional 
 verdict, rendered in the case, had been complied Avith; 
 cannot be inquired into on error.'- So the record should 
 disclose the full names of the parties to the action.' So 
 the court will not take notice of a note not made part of 
 the record, although filed in the case, any more than a 
 deposition or other proof oftercd to sustain it.* So an 
 account, unless made so by a bill of exceptions, is no part 
 of the record, and cannot be noticed upon error, so as to 
 raise the question of variance between the parties and the 
 account sued on.^ So it being claimed as error, that the 
 court below required a remittitur of a certain sum only, 
 when it should have included therewith several years' 
 interest thereon, which it appeared, by the motion for a 
 new trial, had been allowed by the jury in their verdict, 
 in connection with said sum ; it was held, that, as it did 
 not appear from the record on what ground that sum was 
 required to be remitted, it was impossible for the court to 
 know that the interest in question ought to have been 
 added to it.'' So where the assignment of error was, that 
 the court refused to hear the prisoner by himself or 
 counsel, on a motion in arrest of judgment; such error 
 cannot be examined into by the Supreme Court, there 
 appearing nothing on the record to show, wdiether the fact 
 is as stated in the specification in error.^ So the venire 
 facias is not properly part of the record, and objections 
 touching it must be made in the court below.^ So error 
 does not lie, in case of a mere agreement to change a 
 certain paper into a special verdict or bill of exceptions, 
 
 ' McMillan v. Graliam, 4 Peun. ^ Cornelius v. Merritt, 2 Head, 
 
 140. 97. 
 
 2 Moyer «. Germantown, &c., 3 ^ Weed v. Weed, 25 Conn. 594. 
 AV. & S. 91. ' Weaver v. Commonwealth, 29 
 
 3 Knox v. Starks, 4 Min. 20. Penn. 445. 
 
 ' Starbird v. Eaton, 42 Maine, « Newcomb v. State, 30 Miss. 
 
 569. 383.
 
 on. XIX.] WRIT OF ERROR. 643 
 
 wliicli was not done' So a statement of facts made by a 
 judge, for the purpose of taking the advice of the court 
 thereon, is not a judicial finding of the facts, and does not 
 become a part of the record of the case, on a writ of error; 
 but is a mere informal statement for the single purpose of 
 taking such advice, and, when the advice is rendered, has 
 performed its office and is of no further effect.- So, that 
 the court disregarded a former judgment, cannot be noticed 
 as error, where the record does not show that the judg- 
 ment was ever offered in evidence, and the court did not, 
 as it usually does, find the facts.^ So, in Vermont, de- 
 cisions of the county court, upon questions of law not 
 ai:»pearing upon the record in any other way than by 
 means of exceptions, not signed by the presiding judge, 
 nor filed within thirty days from the rising of the court, 
 cannot be revised by the Supreme Court upon a writ of 
 error. The only mode of allowing exceptions, and passing 
 causes to the Supreme Court upon them, is that prescribed 
 by the Comp, Sts. c. 28, § 4-1:. But questions of -law 
 apparent upon the record by means of a report of auditors, 
 or the pleadings, or placed there by the agreement of 
 parties, may be revised in the Supreme Court by writ of 
 error, although no exceptions are filed in conformity with 
 the statute.^ So where the record of a case, brought up 
 by writ of error to the Supreme Court of the United 
 States, from the Circuit Court for the eastern district of 
 Louisiana (by the practice of which State, matters of fact 
 as well as of law are decided by the judge, if neither party 
 ask for a jury), does not show that any question of law 
 arose or was decided by the court; the judgment must be 
 affirmed.^ So on motion to dismiss a writ of error, on the 
 ground that an appeal was entered, and an appeal bond 
 given below, the record certified up is the only evidence 
 
 ' Suydam v. Williamson, 20 ^ j^cw Orleans v. Gaines, 2Z 
 
 How. 437. How. 141. 
 
 2 Nichols «. Bridgeport, 27Couu. » Small v. Haskins, 30 Vt. 172. 
 459. 5 Bond v. Brown, 12 How. 254.
 
 G44 , THE LAW OF NEW TRIALS. [CII. XIX. 
 
 of tliosc facts. If tlic record is not complete, a diminution 
 may be suggested, and the deficiency supplied in the ordi- 
 nary' manner.' So a deposition, though copied in the 
 record, but which has not l)een made a part thereof by a 
 l)ill of exceptions or order of court, will not be noticed by 
 a court of error.- And if a writ of error assign for error 
 the admission of im})roper testimony, the record must 
 disclose what the testimony was which is objected to.^(rt) 
 
 § GO. But whether a plaintiff in error had notice of 
 the suit, is a question of fact, open to parol evidence.'* 
 9o a citation is no part of the record, and the fact of its 
 having been issued and served may be proved aliunde.\b) 
 So, although nothing can be assigned for error, which 
 contradicts the record ; yet where it appeared, from the 
 record of a justice of the peace, that he was present on 
 the 7th of August, and adjourned the cause until the 14th, 
 when he rendered judgment against the defendant by 
 default, and it was alleged, in the assignment of errors, 
 
 ' Coffee V. Newson, 2 Kelly, 439, * Morrison v. Underwood, 5 
 
 * Sl)urloek v. Fulks, 1 Swan, Cush. 52. 
 
 289. ^ Inuerarity v. Byrne, 5 Uow. 
 
 * Jones 0. Trustees, &c., 1 Cart. 295. 
 109. 
 
 (a) The record on a writ of error must state the facts found, not the 
 evidence of the facts, leaving the court of error to find them. If this 
 is not done, a venire facias de novo will be ordered. Graham v. Bayne, 
 18 How. 60. 
 
 {b) Where the inquisition found a demise " for one year, and from 
 year to year at a rent of $200 for the first year," and the justice's record 
 recited the complaint, and due proof that the landlord demised " until 
 the end and term of one year thence next ensuing, at the yearly rent of 
 iif'iOO, and rented the same from year to year, at diflerent rents ;" it was 
 held, the inquisition should be read thus: "^200 for the first year, and 
 from year to year." Nor is it any objection that the inquest have not 
 awarded restitution, the place for that being in the justice's record; or 
 that tlie record set out tlie proceedings thus : " We, the said justices and 
 freeholders, proceed to hear, &c., and do find," &c. McMillan v. Graham, 
 •i Penn. 140.
 
 CH. XIX.] WRIT OF ERROR. 645 
 
 that the defendant attended on the 7th of August, from 
 nine o'clock until ten o'clock in the forenoon, and the jus- 
 tice did not appear: held, such assignment was not incon- 
 sistent with the record.^ So, on the other hand, error 
 cannot be maintained, if a judgment, in itself defective, 
 refer to the declaration.^ So the return to a writ of error, 
 in a criminal case, brings up the indictment, the pleas, 
 and the trial and judgment on the pleas, as well as 
 the bill of exceptions. On such a return, therefore, a 
 special plea of a former trial on the same indictment, and 
 the proceedings on such plea, are before the court for 
 review.^ 
 
 § 61. On error to the Circuit Court of the United 
 States in Louisiana, where trial by jury has been waived, 
 and the judge has decided both the law and the facts, no 
 more evidence need be returned, although offered at the 
 trial, to the Supreme Court, than is necessary to present 
 the legal questions to be reviewed. If the evidence bore 
 upon these questions, it should have been incorporated 
 into the record or exceptions. The defendant's neglect to 
 do this implies it had no such effect.^ 
 
 § 62. The remark is made, in a late case: "The party, 
 to retain his judgment, must show a good record."^ 
 
 § 63. Eut the general rule is, that the proceedings in 
 the court below are 'presumed to be right. The error must 
 appear affirmatively of record.*' Thus A. sued B. in the 
 
 • Burgess «. Tweedy, 16 Conn. Hemphill v. Saladay, ib. 301 ; Mac- 
 
 39. kemcr v. Beuner, ib. 157 ; Dunham 
 
 « Clap V. Clap, 4 Mass. 520. v. Benedict, ib. 74; The People®. 
 
 3 Grant v. People, 4 Parker, 527. Hessing, 28 111. 410 ; IMaynard v. 
 
 ■» Arthurs v. Hart, 17 How. G. Penniman, 10 IMich. 15o ; "Powe v. 
 
 5 Per Breese, J. ; Sweeney v. Duke, 10 Geo. 93 ; Cox v. Cox, 8 
 The People, 28 111. 208. S. & M. 292 ; Eskrido-e v. The 
 
 6 Hough V. Baldwin, IG 111. 293; State, 25 Ala. 30; Forelander v. 
 Lee ^•. Hardgrave, 3 Micli. 77 ; The Ilicks, G Ind. 448; Duekett v. 
 State V. Donevan, 11 Mis. 635; Townsend, 3 Tex. 119; Burnham 
 Saum V. Jones, &c., 1 Iowa, 165 ; v. Butler, 31 N. Y. (4 TilTa.), 480;
 
 046 THE LAW OF NEW TRIALS. [ClI. XIX. 
 
 Court of Common Picas on two notes amounting to over 
 $100, but filed no affidavit. B. pleaded payment and set- 
 ofl". The verdict was for a less amount than $100. Held, 
 the court must presume, the record stating no facts to 
 repel the presumption, that the plaintiff's claim was re- 
 duced by set-off; and the plaintiff should recover costs.' 
 So wdicre the date of a forthcoming bond was subsequent 
 to the time stipulated for the delivery of the property, it 
 wnll be presumed that the wrong date was sufficiently ex- 
 plained to tlie court below.^ So where it appears from 
 the bill of exceptions, that the land in controversy was 
 entered by a party who afterwards received a patent of 
 it; it will be presumed that the entry was made accord- 
 ing to law, and this is a sufficient proof of title to sus- 
 tain ejectment.^ So where a statement of facts is filed 
 after the trial, mine i^ro nunc, it is reasonable to presume 
 that the court w^as requested to draw^ it up at the time of 
 the trial.^ So where, in assumpsit by two parties against 
 a corporation, issue is joined, and before trial a new party 
 is introduced byleav of court, and files a declaration in 
 covenant, upon which issue is also joined ; it will be pre- 
 sumed that the new party and declaration were admitted 
 by consent after a trial upon the merits.' So a declara- 
 tion in error must negative a condition, performance of 
 which would make the proceedings valid.^ So upon scire 
 facias to renew a judgment, there was judgment for the 
 defendant on a plea of bankruptcy, and after three years' 
 acquiescence it came to the Supreme Court without plea 
 
 Stcadman ». TTolm.an, 83 jNIiss. 550; ' Minich v. Minicli, 33 Penn. 
 
 Pierson v. Burncy, 15 Tex. 272; 378. 
 
 Ilouderson z). Trimble, 8 ib. 174; ^ Hyman v. Seaman, 33 Miss. 
 
 :\Ior<,'an v. Green, 17 111. 395; St. 185. 
 
 Clair V. McGohce, 23 Tex. 5 ; Sea- » Carter y. Blanton, 33 Miss. 291. 
 
 well V. Lnwrey, IG ib. 47; Little, * McGavoch v. Woodlief, 20 
 
 &c. V. Collett, 6 Ohio (N. S.), 182; How. 221. 
 
 Brazier v. Burt, 18 Ala. 201 ; Dun- ^ Huntingdon, &c. v. McGovern, 
 
 can V. ]\IcNeill, 31 IMiss. 704 ; Wahe 2!) Penn. 78. 
 
 V. Wells, 3 Cal. 148 ; Brady v. ^ Dunlap v. Atkinson, 33 Maine, 
 
 Malonc, 4 Iowa, 14G ; Cameron v. 265. 
 
 Ward, 22 Geo. 1G8.
 
 en. XIX.] WRIT or error. 647 
 
 or certificate of bankruptcy, but the judgment entry 
 showed that such a plea was filed. Held, the filing of the 
 plea and certificate should be presumed, and the proceed- 
 ing was correct.^ 
 
 § 63(2. And in criminal as well as civil cases the pre- 
 sumption is, that the proceedings were regular, and it is 
 incumbent on the party alleging error to show by the 
 record that errors were committed.^ Thus, where the record 
 recites, that the jury "were all sworn or afiirmed respec- 
 tively, to try," &c., the presumption is, that they were 
 properly sworn or aflS.rmed ; especially where no excep- 
 tions to the mode of qualification were taken at the time, 
 and nothing on the record indicated any irregularity. So 
 it is not error, that the record does not show afi&rmatively 
 that the prisoner had counsel at the trial. The law will 
 presume it, unless the record exhibit the fact that this 
 constitutional right was denied.^ 
 
 § 64. It is sometimes held, that the objection relied on 
 need not have been made in the court below ;* that ob- 
 jections which go to the foundation of an action, and 
 which are apparent from the record, may be taken on 
 error, though not taken below.^ As where an attach- 
 ment is issued by a justice in one county, returnable to a 
 court in another ; if it has not been waived by appearing 
 and pleading to the merits.® So a scire facias on a judg- 
 ment nisi, rendered on forfeiture of a recognizance, is 
 merely process to effectuate that judgment. A material 
 variance, therefore, between the scire facias and judgment 
 nisi, is fatal to the former, and may be reached by writ 
 of error to final judgment on the scire facias, though no 
 
 ' Bndyman^j. Viele, 3Iowa,2fl7. « Gautier v. Franklin, 1 Tex. 
 
 2 Cathcart v. Com., 37 Penn. 108. 733. 
 
 See Larillian v. Lane, 3 En<r. 373. ^ McDonough v. State, 19 Tex. 
 
 3 Brazier v. Burt, 18 Ala. 201. 293. 
 
 6 Brooks V. Goodwin, 8 Ala. 396.
 
 648 TUE LAAV OF NEW TRIALS. [CH. XIX. 
 
 objection to the sufficiency of the proceedings was taken 
 prior to that judgment.^ 
 
 § G5. But, as in applications for new trial, the doctrine 
 of waiver is often recognized.(a) Points not raised and 
 passed upon in the court below are held not open for dis- 
 cussion in the court above.- Objections to acts of mere 
 irregularity must be urged at the earliest practicable 
 moment.^ So, as we have seen (§ 58), in reviewing the 
 proceedings of subordinate tribunals, whether civil or 
 criminal, the court is confined to adjudication ujjon the 
 errors of law upon the record, and cannot look beyond 
 them.^ So if, after refusal of the court to reject a plea, 
 the plaintift' reply to or join issue on the plea, the refusal 
 cannot be assigned as error.^ And the want of a replica- 
 tion cannot be assigned for error, when the cause is tried 
 without apparent objection.'' So where an objection to a 
 witness is taken at nisi lorius^ and a reason assigned, no 
 other reason can be noticed on a writ of error, the facts 
 of the case being known to the parties.^ So a writ of 
 error does not lie after an agreement against it.^ Nor upon 
 
 ' Douthit V. State, 30 Miss. 133. ^ Smith v. Craig, 3 Penn. ir)3 ; 
 
 2 Spencer v. Kunkle, 2 Grant's Klines. Guudrum, 11 ib. 243; Pot- 
 Cases, 406. ter v. Dcnnison, 5 Gilm. 590 ; Duf- 
 
 3 Bass v. Winfrjs 20 Geo. 631. fee v. Bucliauau, 8 Ala. 27. 
 
 * Cathcart®. Com., 37 Penn. 108. « Camden v. Edie, 1 II. Bl. 21 ; 
 
 5 State v. Bodlv, 7 Blackf. 355. Gates v. West, 2 T. R. 183 ; Wright 
 
 6 Clement v. llayden, 4 Penn. v. Nutt, 1 ib. 388. 
 
 (a) A point cannot be made in the U. S. Supreme Court, on error, in 
 relation to instructions given to the jury, which was not made in the 
 court below. Doe v. Watson, 8 How. 263. See, as to waiver, Durant 
 V. Palmer, 5 Dutch. 544; Chumasero v. Gilbert, 26 111. 39; Gillilan v. 
 Nixon, ib. 50; Voltz u. Newbert, 17 Ind. 187; Scoville v. Chapman, ib. 
 470; Edwards •?;. Edwards, 31 111. 474; Ilollinshead v. Van Glahn, 4 
 Miu. 190; Laher v. Cooper, 7 Wall. 565; Kenna's v. Quarrier's, 3 AV. 
 Ya. 210. See Wash v. Com., 16 Gratt. 530 ; Fortier v. Ball, 43 Mis. 23 ; 
 Ewing V. Howard, 7 Wall. 499 ; McMickcn v. Com., 58 Penn. 213.
 
 CH. XIX.] AVIIIT OF ERROR. 649 
 
 a case stated.^ l^or in case of a judgment upon an erro- 
 neous judgment. " The second judgment is maintained 
 by the first, which is valid until reversed. The course to 
 be taken is first to obtain a reversal of the original judg- 
 ment by writ of error; and the plaintiff in error may then 
 apply for a review of the action, upon which the writ of 
 eiTor is brought."^ So errors in form in the declaration 
 are cured by the statute of jeofails, after plea and a ver- 
 dict on the merits.^ So where, after a demurrer in a jus- 
 tice's court has been overruled, the demurring party pleads 
 to, or takes issue upon, the pleading to which the demurrer 
 related; such demurrer forms no part of the case, upon 
 eiTor brought by such demurring party.^ And error can- 
 not be maintained by the party who committed the first 
 fault in pleading.5 g^ i\jq ^ig^t of a corporation to hold 
 land or maintain an action for its recovery cannot be 
 made for the first time in the Supreme Court." So when 
 an administrator de bonis non is appointed pending a suit, 
 which was brought originally by the intestate, and after- 
 wards revived in the name of his administrator in chief; 
 if the defendant make no objection in the primary court 
 to the right of the administrator in chief to proceed to 
 judgment, he cannot raise the objection on error.^ So 
 where parties waive the right of trial by jury, the 
 decision of the court on matter of law only can be re- 
 versed on error.^ Thus where, after a special plea, the 
 parties submitted the cause to a judge without a jury, 
 and defined in the agreement what evidence might be 
 given, which evidence could not have been submitted 
 under the pleadings ; held, a waiver of the special plead- 
 ings, which precluded proceedings in error.^ So where 
 
 ' Alfred v. Saco, 7 Mass. 380. ^ Henley v. Brancli, &c., 16 Ala. 
 
 2 Ilawos D. Hathaway, 14 Mass. 553. 
 
 233 ; Whitehead v. Henderson, 4 ' Robinson v. Tipton, 31 Ala. 
 
 S. & M. 704. 595. 
 
 3 Welch V. Van Bebber, 4 Yeat. s Gest v. Kenner, 7 Ohio (N. S.), 
 420 ; Miles v. Oldfield, ib. 423. 75 ; 1 Chandl. 149. 
 
 < Peck ■». Cowing, 1 Denio, 222. ^ Flanegan v. Earnest, 1 Chand. 
 5 Jorie V. Handley, 3 Bibb, 225. 149.
 
 650 THE LAW OF NEW TRIALS. [CU. XIX. 
 
 tlic parties to an ejectment suit agreed in writing, in ac- 
 cordance -with the laws and practice of the State, to Avaive 
 a jury and submit both matters of law and fact to the 
 court, saving all rights of exception and appeal, as though 
 the case were tried by a jury, and, after a decision by the 
 court below, exceptions were taken to all the decisions 
 and rulings of the court, and a writ of error w^as sued out 
 to the Federal Supreme Court ; held, that errors of fact 
 or law, alleged to have been committed in such an irregular 
 proceeding, could not be inquired into, and the judgment 
 should be affirmed. ^(a) So wdiere one of the several de- 
 fendants failed to appear and plead, and the plaintiff, in- 
 stead of taking judgment against him by default, sub- 
 mitted the case to a jury, who found for the defendants; 
 held, that the plaintiff was not entitled afterwards upon 
 error to have the judgment reversed.^ So if no objection 
 has been made in the court below to the manner of taking 
 a deposition, it is too late to object on a writ of error.^ 
 So where a defendant suffers default, and fails to take 
 advantage below of points open to him, without a satis- 
 factory excuse ; he will be held to have waived them.\6) 
 
 ' Kclsey v. Forsyth, 21 How. 85. » Ncwlin v. Newlin, 8 S. & R. 41 ; 
 2 Anderson v. Walker, 31 Miss. Clark «. Dibl)lc, 16 Wend. 001. 
 642. '' riolliushead v. Von Glahn, 4 
 
 Min. 190. 
 
 (a) As a general rule, the Supremo Court of the United States will 
 not, upon a writ of error, re-examine or revise questions, whether of fact 
 or law, where the parties agree that the court below shall decide both 
 the facts and the law; but the facts must be found in the court below by 
 a jury, by a general or special verdict, or must be agreed upon in a 
 case stated. But where, as by the laws of Louisiana, the facts may be 
 by consent tried and found by the court, this court is bound, upon a writ 
 of error, to regard them as judicially determined, and to treat them as 
 if they had been found by a special verdict; and the questions of law 
 which arise on them are consequently open to revision. Campbell v. 
 Boyreau, 21 How. 223. 
 
 (6) That he relied upon a previous decision by the Supreme Court of 
 the State on a certain point, which decision the same court has since 
 overruled, is suflBcient excuse. 4 Min. 190.
 
 en. XIX.] WRIT OF ERROR. 651 
 
 § GQ. But the distinction is made, that the court may, 
 in the exercise of its discretion, reverse a judgment for 
 an error not assigned in the writ of error, hut is under no 
 obligation to consider such an error.' And an error going 
 to the foundation of the action, as overruling a demurrer 
 to the petition, is held not waived by an omission to assign 
 it as error.^ So a writ of error lies, notwithstanding an 
 agreement not to appeal.* And where a cause, by consent, 
 is submitted to the court without a jury, error will lie 
 for ruling on questions of law.^ So, in Alabama, error 
 lies, under the Act of 1846, in all cases in which a non- 
 suit is taken, on account of the adverse ruling of the 
 court upon the pleadings.^ So error lies to a nonsuit, 
 suffered in consequence of an express instruction to the 
 jury. 6 
 
 § 67. "Where error is brought to reverse a judgment 
 recovered on a note against an infant, who appeared by 
 attorney; a promise, made by him after he comes of age, 
 to pay the note, is neither a release nor a waiver of the 
 error, nor a bar to a writ of error. 
 
 § 68. Error lies in case of default.\a) Thus a writ of 
 
 * Ives v. Finch, 28 Conn. 113. ^ Duncan v. Hargrove, 22 Ala. 
 
 2 Sueod V. Moodie, 24 Tex. 159. 150. 
 
 3 Putnam v. Churchill, 4 Mass. ^ English v. Devarro, 5 Blackf. 
 516. See Flanegan v. Earnest, 1 588. 
 
 Chand. 149 ; Amidown v. Osgood, ' Goodridge v. Ross, G Met. 487. 
 
 24 Verm. 278. ^ Doolittle v. Shclton, 1 Iowa, 
 
 * Franklin, &c. v. Buckingham, 271 ; Karns v. Kunkle, 2 Min. 313; 
 12 Ohio, 482, Griffin v. Wilson, 19 Ala. 27. 
 
 (a) In Pennsylvania, under the $100 act of 1810, a judgment by de 
 fault in the Court of Common Pleas, on an appeal from the judgment 
 of a justice of the peace, merely affirms the judgment of the justice ; 
 and no defect of the declaration can be taken advantage of by writ of 
 error. Elkinton v. Fennimore, 13 Peun. 173. Where the record shows 
 an appearance of the defendant by attorney in the court below, that a 
 plea was filed, an issue made, and an agreed case submitted to the court, 
 upon which judgment is rendered; it is too late ft, r the defendant to com-
 
 652 THE LAW OF NEW TRIALS. [cil. XIX. 
 
 eri'or, in Xcw York, whoso constitution is similar to the 
 English Court of King's Bench, was held to lie upon a 
 judgment on default: the exception, in case of the Court 
 of Errors in that State, was made by the particular lan- 
 guage of the constitution.^ So where a justice misled a 
 defendant, by informing him that the cause was discon- 
 tinued, and afterwards gave judgment against him, in his 
 absence; the judgment was reversed.^ So a writ, dated 
 October 30, 1789, to be returned on the 30th of October 
 next, is j'eturnable to October twelvemonth, and a judg- 
 ment rendered on the 30th of the same October is erro- 
 neous.^ So a writ, dated June 12, 1833, required the 
 defendant " to aj)pear on the fourth Tuesday of June 
 next." Held, the time of the appearance was the fourth 
 Tuesday of June, 1834; and, consequently, a default in 
 June, 1833, was erroneous.'' 
 
 § 69. A writ of error lies, where the defendant in the 
 former suit was not served with process.^ Or in case of 
 service by an unauthorized officer, or other defective ser- 
 vice.^ So where a party not served was wrongly defaulted, 
 
 ' Kauouse v. Martin, 3 Sandf. ^ Ilart v. Huckins, 5 Mass. 260. 
 
 053. Sec Foster v. Iladduck, 6 N. H. 
 
 2 Tyler v. Olncy, 12 Johns. 378; 217; Hcatliman v. Ilulin, 3 J. J. 
 Bullard v. Bracla-tt, 2 Pick. 85. Mar. 42 ; ]Moores v. Parker, 3 Litt. 
 
 3 Austin V. Nichols, 1 Root, 199. 268 ; Prince v. Flyun, 2 ib. 240 ; 
 See Way v. Clark, ib. 439. Jones v. Smith, 3 N. H. 108 ; 
 
 * Todd V. Ilalc, 10 Conn. 544. Cooper v. Bissell, 16 John. 14G ; 
 
 5 Klemm v. Dewes, 28 111. 317; Hart v. Huckins, 6 Mass. 399; S. 
 
 Arnold V. Tourtellot, 13 Pick. 172; C, 5 ib. 2G0 ; Eno v. Frisbie, 2 
 
 Whiting V. Cochran, 9 Mass. 532. Day, 122. 
 
 plain, on a writ of error, that he was not served with process. If the 
 attorney was unauthorized, it is an error of fact which cannot be joined 
 in an assignment with errors in law, and the appropriate remedy is not 
 by writ of error to the Superior Court. Nor can it be corrected by a 
 WTit of error coram nobis, but the court below can, and upon proper 
 evidence will, set aside the judgment on motion, and let the defendant 
 in to defend. Abernathy v. Latimore, 19 Ohio, 286. Error does not lie 
 for setting aside a default. Final v. Backus, 18 Mich. 218.
 
 en. XIX.] WRIT OF ERROR. 653 
 
 thougli otlicrs, who were served, appeared.^ So, in case of 
 default of an absent defendant, without the required no- 
 tices and continuances.2 And it is held that in such case 
 there shall be only a judgment of reversal, not an order 
 of notice.^ 
 
 § 70. A writ of error lies upon a judgment rendered by 
 confession^ but made without sufficient authority.* 
 
 § 71. A judgment entered against defendants, upon one 
 of whom no service was made, if he did not a[)pear or 
 plead, was erroneous as to him.' So in an action against 
 a partnership, if the names of the partners are omitted in 
 the writ and declaration, and the writ served on a person 
 not named in either; a judgment against the company, 
 upon such person's default, will be erroneous.® 
 
 § 72. One of two joint defendants resided out of the 
 State, and no service was had upon him, and no appear- 
 ance made by him. The other defendant appeared and 
 pleaded, and judgment was rendered by the county court 
 in favor of the defendants. The plaintiff appealed to the 
 superior court, and had judgment in his favor. On error 
 to the Supreme Court, it was held, that the proceedings of 
 the county court were void, and the judgment of the su- 
 perior court was erroneous.^ 
 
 § 73. But a judgment on default, and without continuance, 
 against two partners, upon one of whom, being a resident 
 of another State, no service was made, is not erroneous, in 
 Connecticut.^ And the principal defendant, in a trustee 
 
 1 Ibid. « Scott V. Dunlap, 2 ]\Iunf. 349. 
 
 2 Smith V. Paic;e, 4 Allen, 94. ^ Stoyel v. Westcott, 3 Day, 349. 
 
 3 Packard v. Matthews, 9 Gray, « Southmayd v. Backus, 3 Conn. 
 311, 474. See Violett v. Dale, 1 Bibb, 
 
 »' Hinds V. Hopkins, 28 111. 344. 144. 
 5 Graham v. Graham, 4 Muuf. 
 205.
 
 054 THE LAAV OF NEW TRIALS. [CH. XIX. 
 
 process, cannot avail himself, on a writ of error, of a want 
 of service on one summoned as his trustee.^ 
 
 § 74. In Pennsylvania, error does not lie to reverse an 
 order of court, setting aside a rule of reference and award.^ 
 And while mistakes appearing on the lace of a report of 
 referees are examinable in a court of error; for the correc- 
 tion of other errors committed by arbitrators, the court 
 below is the proper tribunal.^ 
 
 § 75. Error lies, in case of a judgment varying from an 
 award.^ And, in Massachusetts, the remedy has often 
 been applied in case of submission to referees by virtue of 
 a statute providing that form of trial. Thus a writ of 
 error lies to reverse a judgment rendered upon the report 
 of referees, who were appointed under a statute, unless 
 the statute be strictly pursued. As where the statute 
 provided for three referees, and the submission was made 
 to two, who were to appoint a third in case of disagree- 
 ment.^ So where the statement of the demand submitted 
 did not exhibit on what account or for what cause the 
 demand was made, but merely the amount.^ So where it 
 did not appear on the record, that all the referees heard 
 the parties ; two only signing the award, and making no 
 reference to the third.'^ So where, after entering into the 
 statutory submission before a justice of the peace, the 
 parties by a further agreement, not thus acknowledged, 
 extended the authority of the referees to other matters ; 
 which were also taken into consideration and passed 
 upon.^(a) So the (Mass.) Statute of 1840, c. 87, § 5, docs 
 
 ' Whiting v. Cochran, 9 ]\Ias3. ' Nelson v. Andrews, 2 Mass. 
 532. 164. 
 
 2 Erie, &c. v. Brawley, 8 Watts, ^ Monosiet v. Post, 4 Mass. 582. 
 530. ^ Jones v. Hacker, 5 Mass. !J64. 
 
 3 Sands v. Rolshouse, 3 Penn. ^ Short v. Pratt, G ]\Iass. 4nG. 
 45G. See Metcalf v. Mattison, 32 » Tudor v. Peck, 4 Mass. 242. 
 N. Y. (5 Tiffa.) 464. 
 
 {a) See, as to the foregoing cases, the note of Mr. Eaud in Bacon v. 
 Ward. 10 Mass. 143.
 
 en. XIX.J WRIT OF ERROR. 655 
 
 not take away the right, given by Rev. Sts., c. 114, § 13, 
 to a writ of error to reverse a judgment on an award ; it 
 merely gives a cumulative remedy by appeal.^ 
 
 § 76. Error lies, where it is agreed that an award shall 
 be final and without appeal, and the award is struck oft? 
 
 § 77. The effect of a writ of error of course depends much 
 upon the varying practice which usage and statute have 
 established in difterent States.^ 
 
 § 78. In England, it is said by an approved writer, in 
 general, as a writ of error operates a supersedeas of the 
 execution, the plaintiff" in error must give security to 
 prosecute the writ, satisfy the judgment, and pay damages." 
 
 § 79. Where, as in some States, the writ does not stay 
 execution, no security is required ; unless, upon motion, a 
 supersedeas is expressly ordered.^ 
 
 § 80. A bond is not a condition precedent on the writ; 
 but, if no bond is given, the writ does not operate as a 
 supersedeas.® 
 
 § 81. Where an order for a writ of error is made, the 
 order Avill be vacated or modified, if the penalty of the 
 bond be less than the statute requires.^ 
 
 § 81«. Where the judgment sought to be reversed is for 
 the penalty of a bond conditioned to pay money by in- 
 stalments, a part only of which has become due, the pen- 
 
 ' Day V. Laflin, 6 Met. 280 ; Nixan, 1 T. R. 280. See Ferris v. 
 
 Henderson v. Adams, 5 Cush. 610. Douglass, 20 Wend. 626. 
 
 2 Wjam «. Bellas, 34 Penn. 160. ^ Bailey v. Baxter, 1 Mass, 156. 
 
 3 See Kinsman U.Paige, 24 Verm. ^ Turner v. Hamilton, 6 Tex. 
 656. 250. 
 
 ■• 2 Tidd's Prac. 1105. Jaqueso. 7 ^'illougbby v. Comstock, 7 
 
 Hill, 162.
 
 656 THE LAW OF NEW TRIALS. [CII. XIX. 
 
 alty of the error bond need not Ijc proportioned to the 
 nominal amount of the judgment, but may be double the 
 amount for which the plaintiff has the right to issue 
 execution.* 
 
 § 82. A writ of error with supersedeas does not ^fr se 
 revive an injunctiou.2(rt) 
 
 § 83. It is held that, notwithstanding a writ of error, 
 an action lies upon the judgment.^ 
 
 § 84. In Ohio, the filing a petition in error, and the 
 execution of an undertaking for stay of execution, do not 
 discharge interlocutory orders made for the preservation 
 of property, or the protection of jiarties, during the liti- 
 gation, and the jurisdiction to make such orders, pending 
 the proceedings in error, remains in the court below. The 
 petition does not bring the whole cause before the appel- 
 late court, but only the judgment complained of, and 
 leaves in the court below all jurisdiction in the cause not 
 inconsistent with the power to reverse, vacate, or modify 
 the final judgment.* 
 
 § 85. But suing out aji.fa. and a collection of costs, 
 upon a judgment in ejectment, is inconsistent with the 
 
 ' Willoiighby v. Comstock, 7 ^ Nill v. Comparet, 16 Ind. 107. 
 Hill, 1G2. * Goode v. Wiggins, 13 Ohio (N. 
 
 2 Blount V. Tomlin, 26 111. 530. 8.), 341. 
 
 (a) The Supreme Court of the United States will not quash an exe- 
 cution issued by the court below to enforce its decree, pending the writ 
 of error, if not a supersedeas. Wallen v. AVilliams, 7 Cranch, 276. In 
 Alabama, a writ of error bond, without security, does not operate as a 
 supersedeas of the judgment, and in taking such bond the clerk com- 
 mits no such breach of duty as will support an action against him. Wil- 
 liams V. Ilart, 17 Ala. 102. A supersedeas was revoked in case of a 
 prisoner who escaped. Sherman's, etc., 14 Gratt. 677.
 
 CH. XIX.] WRIT OF ERROR. 657 
 
 prosecution of a writ of error, and the writ will be dis- 
 missed on motion.^ 
 
 § 86. The usual course of proceeding in error is, first a 
 writ in the nature of a mandamus from the court above 
 to the court below, commanding the latter to send the 
 record and process of the suit in question to the court 
 above. Second, a scire facias ad audiendum en-ores is 
 directed to the sheriff, commanding him to summon the 
 defendant in error to appear before the court above. 
 
 § 87. The practice in New Hampshire, with respect to 
 the return to he made to a writ of error, is as follows : 
 Upon the delivery to him of the writ, the clerk of the 
 Court of Common Pleas makes out a transcript of the 
 record and also a return upon the writ, with a seal affixed, 
 and presents it to the chief justice, who signs the certifi- 
 cate of return, and the writ and transcript are then sent 
 to the Superior Court. This practice is correct.^ 
 
 § 88. It is improper to insert an assignment of errors 
 in a writ of error. The errors should be stated in the 
 sci. fa.^ 
 
 % 89. The assignment of errors is usually filed in the 
 clerk's office. If filed before the issuing of the scire facias, 
 it may be inserted therein. The practice upon this point 
 is generally regulated by express statute. In case of ne- 
 glect to assign errors, the writ is dismissed, and any super- 
 sedeas itself superseded.^ 
 
 § 90. An error going to the foundation of the action 
 will not be waived by an omission specially to point it 
 
 1 Smith V. Jack, 2 Watts & Scrg. ^ Peirce v. Adams, 8 IMass. 383. 
 
 101. * See Phelps v. Tilton, 17 Ind. 
 
 ^ Rochester v. Roberts, 5 Fost. 423; Henry ?>. Coats, ib. 161. 
 495. 
 
 42
 
 658 THE LAW OF NEW TRIALS. [CH. XIX. 
 
 out ill the assignment of errors. But, if such error can be 
 cured by a reinitUtiu\ the judgment will be reformed at 
 the cost of the appellant, unless objection was taken in 
 the court below\' 
 
 § 91. In general, more especially in civil cases, causes 
 of complaint not specially noticed in the assignment of 
 errors are not available.^ Or wdiere not assigned in accord- 
 ance with the rules of court. The failure to assign them, 
 as directed by the rules, is a w^aiver.^ 
 
 91(2. In Connecticut, upon a motion in error, there must 
 be a special assignment of the errors relied on before the 
 trial.^ 
 
 § 92. In Alabama, in civil cases, the practice of the 
 appellate court is, to decide only points presented by those 
 assignments of error on which counsel insist in argu- 
 ment.' 
 
 § 93. In Illinois, it is too late to assign additional errors 
 after argument commenced.*^ 
 
 § 93a. A cross assignment of errors w^ill not be consid- 
 ered by the court, unless by consent of parties.'^ 
 
 § 94. For mistake in the time when a writ of error from 
 the Supreme Court of the United States is returnable, it is 
 void, and ^vill be dismissed. It cannot be amended, nor 
 can the mistake be cured by a citation from the Supreme 
 Court.** So a writ of error cannot be amended in Mis- 
 
 > Wetmore v. Woodliouse, 10 ^ Robinson v. Tipton, 31 Ala. 
 
 Tex. 33. 595. 
 
 2 Smith V. Williams, 3G Miss. ^ Bristol «. Cliicago, 31 111. 605. 
 545 ; Prater v. Darby, 24 Ala. 496. ' Charles v. Dubose, 29 Ala. 367. 
 
 3 Thompson v. McConnell, 1 * Insurance Co., &c. v. ]\Iorde- 
 Grant, 396. cai, 21 IIow. 195 ; Porter v. Foley, 
 
 * Tolland t). Willington, 26 Conn. ib. 393. 
 578.
 
 CII. XIX.] WRIT OF ERROR. 659 
 
 souri, tliG statute of 5 Geo. I., c. 13, not Laving been re- 
 enacted in this State.^ But, in Michigan, the Supreme 
 Court has power to allow amendments to assignments of 
 errors, and will exercise the power where justice requires 
 it. But the application must be seasonably made. Thus, 
 where four weeks in term elapsed, after filing joinder in 
 error, before the application was made, the motion was 
 denied.^ 
 
 § 95. Misdescription of the judgment in a writ of error 
 is o-ood 2:round for motion to dismiss. So if the bond be 
 given, or the citation issued, to a person other than a party 
 to the original suit.^ But a writ of error need not be so 
 minutely certain, as to preclude the possibility of any 
 other record like that required to be brought up.^ 
 
 § 96. Two or more judgments or decrees may be em- 
 braced in the same writ of error, where they are rendered 
 on similar suits, and founded on the same principles.^ But 
 not final decrees, distinct from each other, and rendered 
 at difl[erent times.^ 
 
 § 97. A writ of error, which does not set out the names 
 of the parties to the judgment, will be dismissed on 
 motion.^ 
 
 § 98. In Texas, it is not essential that the petition for a 
 writ of error should state any grounds on which it is 
 asked. The citation is sufliciently explicit, if it gives the 
 names of the parties, the date of the judgment, and the 
 
 ' Frernon v. Carondclet, 25 Mis. ^ Colyer v. Thompson, 2 Monr. 
 
 62. 16 ; Powers v. Lillie, Kirby, IGO. 
 
 2 Parsons v. Copeland, 5 INIich. <= Carncal v. May, 2 A. K. Marsh. 
 144. 587. 
 
 3 Davenport B.Fletcher, 10 How. ^ gmyth v. Strader, 12 Uow. 
 143 327. See Schoficld v. SeUley, 31 
 
 ^ Brown v. McKee, 1 J. J. Marsh. 111. 515 ; 17 lud. 43. 
 471.
 
 660 THE LAW OF NEW TRIALS. [CH. XIX, 
 
 nunilxT of tliG case on tlic docket.^ So if tlic judgment is 
 correctly described in the petition, but misdescribed in 
 the citation, a copy of the former accompanying- the latter, 
 the latter may be amended, and the writ will not be dis- 
 missed.^ 
 
 § 99. ISTothing can be assigned for error in fact, of which 
 the party might have taken advantage in the court below. 
 Nor which contradicts the record. (See § 58.) There- 
 fore, where a suit was brought on a probate bond, and 
 judgment recovered in the name of D. P., as judge of 
 probate; held, the fact, that D. P. ceased to be judge be- 
 fore such judgment, could not be assigned for error.^ 
 
 § 100. Error cannot be assigned on a matter collateral to 
 the action in the court below.^ 
 
 § 101. "Wliere the plaintiff in error makes the general 
 assignment, and then assigns particular causes, he cannot 
 insist upon other particular causes under the general 
 assignment. If, however, the court, on inspection of the 
 record, discover a fatal defect, not specially assigned, it 
 will be their duty to reverse the judgment.^ 
 
 § 102. On error, after the case was argued and sub- 
 mitted, it appeared that there was no special assignment 
 of errors. The case was therefore remanded, with liberty 
 to make a special assignment, and to re-argue the case, 
 before the court of errors, upon such terms as the court 
 below should impose.® 
 
 § 103. In general, no person can bring a writ of error 
 
 ' Turner v. Hamilton, G Tex. '' Irwin n. Gallagher, 8 S. & R. 
 
 250. 528. 
 
 2 Owen V. Tankersly, 13 Tex. 38. s Crandall v. State, 10 Conn. 339. 
 
 3 Wetmore v. Plant, 5 Conn. 541 ; ^ Bissell v. Spencer, 8 Conn. 504. 
 Hill V. West, 4 Yeat. 385.
 
 en. XIX.] WRIT OF ERROR. 661 
 
 who is not a party or privy to the record. '(a) Thus, in 
 case of land sold on execution, the judgment debtor can- 
 not bring a writ of error to reverse a judgment, recovered 
 in a controversy between the several judgment creditors, 
 as to the priority of their respective claims.^ So where 
 A. sued B. on a note, which had been indorsed to A. by 
 C, and judgment was obtained for A. ; held, C. could not 
 bring a writ of error for its reversal, on the ground that 
 he was interested in the note by a collateral agreement 
 between him and A.^ Nor can any one be made a defend- 
 ant in the writ of error, who was not a party to the judg- 
 ment in the inferior court.'* 
 
 § 104. The rule is sometimes stated in the qualified 
 form, that no person can bring a writ of error who is not 
 a party or privy to the record, or who is not injured by 
 the judgment.' That a stranger to a judgment cannot 
 sue out a writ of error thereon.^ 
 
 § 105. In ejectment, where all that is claimed is recov- 
 ered, one lessor of the plaintifl" cannot bring a writ of error 
 against another, because too much was recovered on the 
 demise of the latter, and too little on that of the former. 
 
 ' Bayard v. Lombard, 9 IIow. * Payne v. Nilos, 20 How. 219. 
 
 530; 3 Tex. 424; Sturms, 2.") 111. ^ Howse v. Judson, 1 Branch, 
 
 390; Robinson v. Magarity, 28 ib. 133; Ailing v. Sliclton, 16 Conn. 
 
 423 ; Dupree v. Perry, 18 Ala. 34. 436. 
 
 2 Bayard i'. Lombard, 9 How. ^ steel v. Bridenbach, 7 W. & S. 
 530. 150. 
 
 3 Smitli V. Gerlack, 2 Tex. 424. 
 
 (a) "Where, in a case brought up to the Supreme Court of the United 
 States by writ of error, it appeared to the court, by aflidavits and 
 other evidence filed by persons not parties to the suit, that there was no 
 real dispute between the plaintiif and defendant in the suit, but on the 
 contrary that their interest was identical, and was adverse to the inter- 
 ests of the persons filing the alTidavits ; held, the judgment of the Circuit 
 Court entered j)ro/o/-?/ia was a nullity and void, and the writ of error 
 must be dismissed. Lord v. Veazie, 8 How. 251. See Woodruff i". 
 Bacon, 34 Conn. 181.
 
 662 THE LAW OP NEW TRIALS. [CH. XIX. 
 
 The rights of each can only bo determined between them- 
 selves.^ 
 
 § IOC). The general mile is applied in case oi joint par- 
 ties. All must be parties to the writ of error.^ 
 
 § 107. A husband must join his wife in a writ of error.^ 
 
 § 108. Where debt was brought against three on a 
 joint and several promissory note, one of whom pleaded 
 nil debet, and there was an issue thereon, and a verdict 
 and judgment in his favor, but no judgment as to the 
 other two; held, a writ of error was properly sued out 
 against all.'* 
 
 § 109. The qualification is sometimes added, that all 
 the parties aggrieved may join in the writ of error, and 
 may ask a reversal of the judgment, in those matters 
 wherein it aiiects injuriously and erroneously their respec- 
 tive rights.' That all the j)roper parties must join, and no 
 one who has not been prejudiced by the judgment.^ 
 
 § 110. If a writ against two is served on only one of 
 them, and judgment rendered against both, both must 
 join in a writ of error.'' 
 
 ' Fortune V. Center, 2 Ohio (N. Allen, G3 ; Eggleston v. Buck, 31 
 
 S ) 527 in. 254 ; Thorp v. Thorp, 40 ib. 
 
 2 'Knox V. Costello, 3 Bur. 1789 ; 113. 
 
 Bahcock v. Sivnhorn, 3 Min. 141 ; 3 sty, 254, 280; Haines ». Corliss, 
 
 Hottle V. Kindle, 8 Blackf. 205; 4 Mass. 059 ; McNamara «. Fisher, 
 
 Carey v. Giles, 10 Geo. 1 ; Branch, 8 T. R. 302 ; McPhail «. Mosely, 
 
 &c. V. McCollum, 20 Ala. 280 ; Un- 14 Ala. 740. 
 
 derhill v. Thomas, 24 Tex. 283 ; ^ Bank of the State «. Kerby, 4 
 
 Olcott V. The State, 5 Gilm. 481 ; Eng. 345. 
 
 State, &c. -y. Wilson, 3 ib. 89: s Hancock «. Metz, 15 Tex. 205 ; 
 
 Harrington v. Roberts, 7 Geo. 510; Coe v. Turner, 5 Conn. 86; Chris- 
 
 Huncr v. Iteevcs, 2 Greene (Iowa), man v. Miller, 15 Tex. 159. 
 
 190 ; Dill V. Jones, 2 Kelly, 79 ; ^ Jaqueth v. Jackson, 17 Wend. 
 
 Carey v. Rice, ib. 408; GriHin v. 434. 
 
 Wilson; 19 Ala. 27; Burger v. i Gay «. Richardson, 18 Pick. 
 
 Potter, 32 III. 00 ; Baker ». Backus, 417. 
 ib. 80. See Whiting t). Cook, 8
 
 CII. XIX.] WRIT OF ERROR. GG3 
 
 § 111. "Writs of error, if defective, may be amended by 
 the record, but not so as to strike out the name of one as 
 plaintiff and malce him defendant, unless the record shows 
 that he was improperly made a plaintiif, when he should 
 have been a defendant.^ 
 
 § 112. One plaintift' cannot assign error against another.^ 
 
 § 113. A writ of error wnll be dismissed on motion, for 
 a misjoinder of the defendants appearing on inspection of 
 the writ.^ 
 
 § 114. "Where a w^rit of error is prosecuted by the defend- 
 ants in a chancery suit, a part of them cannot assign that 
 for error which affects only tlieir co-defendants.^ And, 
 wdicre parties are not jointly interested in reversing a 
 decree, they need not join in the same writ of error to 
 reverse the decree, but several writs will lie in favor of 
 each.' 
 
 § 115. If a judgment against several defendants is 
 reversed for error as to a part of them, it is reversed wholly.® 
 
 § 116. But, w^here some will not prosecute the writ, there 
 should be a summons and severance J Sometimes accom- 
 panied by a bond of indemnity.^ And, in case of judgment 
 against some parties, and in tavor of others, the writ lies in 
 favor of the former alone.^ And wdierc, in trespass against 
 three, in which the defendants pleaded the general issue, 
 A., one of them, severally, and the others jointly, the jury 
 returned a verdict that "the defendant is guilty," and 
 
 ' Knox «. Steele, 18 Ala. 815. ^ Yelv. 4; 2 Saim. 101 d. ii. ; 
 
 2 Ibid. Ilari-ravcs v. Lewis, 7 Geo. 10 ; 
 
 3 Brown v. Levins, G Port. 414. Knox v. Steele, 18 x\.la. 815. 
 
 * Barker v. Calliliau, 5 Ala. 70S. » lluiier v. Reeves, 2 Greene, 
 
 * Campbell v. Johnson, 4 Dana, 190. 
 
 177. '■> 1 Lev. 210 ; Hob. 70. 
 6 Benuer v. Welt, 45 Maine, 483.
 
 GG4: THE LAW OF NEAY TRIALS. [CII. XIX. 
 
 jn(li;-incnt tlicrcon was rendered against A., without taking 
 any notice of the others ; it was held, that A. was alone 
 entitled to error, and that a writ of error in favor of the 
 three was improvidently issued, and must be quashed.^ 
 
 § 117. An assignee, under the United States Bankrupt 
 Act of 1841, may maintain a writ of error to reverse a 
 judgment rendered against the l^ankrupt.^ So the assignee 
 of an insolvent.^ 
 
 § 118. A creditor cannot sue out a writ of error to a 
 judgment recovered against the debtor.^ But judgment 
 creditors, claiming participation in a common fund, have 
 such an interest in the order of court for its distribution, 
 as to entitle them to a writ of error.^ 
 
 § 119. A tenant in possession, upon whom notice in 
 ejectment was served, cannot, after others are made defend- 
 ants to the suit (the tenant being no party to the suit), 
 maintain a writ of error.^ 'Nor to reverse a judgment 
 taken by default ; it must be sued out in the name of the 
 casual ejector.^ 
 
 § 120. It is held, that a party purchasing land after a 
 judgment, which is a lien upon the land, and of which he 
 was bound to take notice, cannot prosecute a writ of error, 
 even if the land is endangered b^^ the lien.^ But a party 
 purchasing an interest during a suit may maintain a writ 
 of error in the names of those from whom he purchases.^ 
 And a deputy sheriff', who is the purchaser at a sheriff" 's 
 
 ' Shaw V. Blair, 4 Cnsli. 97. ^ Campbell v. Smith, 3 A. K. 
 
 2 Jacobs. United States, 1 Brock. Marsh. 118. 
 
 520 ; Day v. Laflin, 6 Met. 280. ? Walker v. Badger, 3 Bibb, 433. 
 
 3 Johnson v. Thaxter, 7 Gray, See Stiles v. Jackson, 1 Blackf. 
 242. 214 ; Hoe v. Bank, &c., 3 Ham. 26. 
 
 * Black V. Kirgan, 3 Greene, 45 ; >> Howse v. Judson, 1 Branch, 
 
 Sherer v. Collins, 2 Harr. 181. 133; Samuel v. Sayrc, 5 Dana, 22G. 
 
 6 Adkins v. Baker, 7 Geo. 56. ^ Mason v. Peck, 7 J. J. Marsh. 
 
 300.
 
 en. XIX.] WRIT OF ERROR. 665 
 
 sale., has sufficient interest to support a writ of error to a 
 judgment, setting aside the sale on motion.' So when a 
 judgment is transferred according to hiw, and the execu- 
 tion levied on property, and another person interposes a 
 claim; the assignee is the proper party to a writ of error.^ 
 
 § 121. The following summary view of the law, ujion 
 the question what persons miay maintain a writ of error to 
 reverse a judgment to which they are not nominal parties, 
 on the ground of jjrivity or an interest in the subject mat- 
 ter, is found in a late case in Massachusetts: "A party, 
 privy in estate with the party against whom a judgment 
 has been rendered, may have a writ of error to reverse it. 
 As where an erroneous judgment is rendered against a 
 tenant for life or years, the owner of the remainder or the 
 reversion may maintain a writ of error after the term is 
 expired. So by him in reversion, after an estate tail is 
 determined.^ But if the tenant alien, ■pendente lite^ the 
 alienee shall not have crror.^ It is true that it is laid down 
 in Bac. Ab. Error B, that ' no person can bring a writ ot 
 error to reverse a judgment, who was not a party or privy 
 to the record, or who was not injured by the judgment, and 
 therefore is to receive advantage by the reversal thereof.' 
 So it is laid down in 9 Vin. Ab. Error K, 1, that 'the writ 
 of error shall be brought by him who should have the 
 thing for which the judgment is erroneously given, if the 
 judgment had not been given.' But these rules are laid 
 down too broadly, and must be understood in a restricted 
 sense; for it is immediately after laid down in Viner, that 
 ' none shall have a writ of error, unless he be party or privy 
 to the judgment.' This latter proposition appears to be 
 too much restricted ; for a privy in estate may, as before 
 laid down, maintain a writ of error in certain cases."* 
 
 > Flournoy v. Smith, 3 How. * 1 Rol. Ab. 748. 
 
 Miss. 62. ^ Pot- Wilde, J. Leonard v. Brj-- 
 
 2 Slayton v. Jones, 15 Geo. 89. ant, 11 Met. 372. 
 
 3 Com. Dig. Pleader, 3 13. 9.
 
 G66 THE LAW OF NEW TRIALS. [CE. XIX. 
 
 § 122. Questions liavo often arisen in case of a party's 
 death. ^ ^AHien it appears from the record that the persons 
 named as plaintiffs in the writ of error were dead when 
 the writ was sued out and filed, and that their legal represen- 
 tatives arc not parties, it will be dismissed.^ 
 
 § 123. A writ of error cannot be prosecuted in the name 
 of " the unknown heirs " of a party .^ Where the error 
 assigned is, that the defendant in error was dead at the 
 rendition of the judgment, the executor or administrator 
 must be made party defendant. Service of notice upon 
 the attorney, after the death of the party, is invalid.* 
 
 § 124. In a real action, if a party to the judgment die, 
 his heirs must be made parties to a writ of error.^ But, 
 in real actions, the death of either party, after a writ of 
 error sued out, does not abate the suit.^ 
 
 § 125. In ISTew Jersey, if the defendant in error die 
 after errors assigned, his executors may proceed until judg- 
 ment is affirmed, as if he were living, and then the judg- 
 ment must be revived by sci.faJ 
 
 § 126. In Kew York, where a plaintiff* in error dies 
 pending a writ of error, judgment will be entered as of 
 the term when he was living.^ 
 
 § 127. In Ohio, where the defendant in error dies after 
 assignment of error and joinder, the case may proceed to 
 judgment without making his representatives parties.^ 
 
 ' See Dolaplaine v. Bergen, 7 ^ Porter v Rnmmery, 10 Mass. 
 
 Hill, 591; Cisna v. Beach, 15 Ohio, 64; 2 Saim. 4G n. 6. 
 
 300; McClane, v. ]3oon, Wall. ^ Macker v. Thomas, 7 Wheat. 
 
 244 ; Bostwick v. Williams, 40 111. 530. 
 
 113 7 Harwood «. Murphy, 1 Green, 
 
 2 Neves v. Scott, 15 Geo. 510. 193. 
 
 3 Bowie, &c. V. Rouse, 3 Gilm. ^ King v. Dunn, 21 Wend. 258. 
 408. ^ Spurk v. Vangundy, 3 Ham. 
 
 1 Cisna v. Beach, 15 Ohio, 300. 307 ; McKinney «. Carroll, 13 Pet. 
 
 GG.
 
 en. XIX.] WRIT OF ERROR. 667 
 
 § 128. Where one sued as garnishee of the defendant 
 was after his death appointed administrator; held, he could 
 not assign errors, as administrator, in the judgment against 
 the garnishee.^ 
 
 § 129. In case of the death of one of joint parties ; he 
 must he still named in the writ of error.^ 
 
 § 130. In an action at law by two partners, upon the 
 death of one, the action proceeds in the name of the sur- 
 vivor, and it is error to make the administrator a party. 
 If, however, the administrator is thus made a party at his 
 own request, it is not an error of which he can avail 
 himself.^ 
 
 § 131. Questions may also arise in connection with 
 agency. Thus an execution was issued by a justice at the 
 suit of C. against the goods and chattels of A., and levied 
 on a slave which A. made oath was the property of W., 
 and held by the affiant as his agent. A trial of the right 
 of property was had between the plaintifi' in execution 
 and A., as agent, and the slave condemned to satisfy the 
 execution. A. then, upon his petition, obtained a certio- 
 rari^ and entered into bond with M. as his surety, and the 
 cause, being removed to the Circuit Court, was dismissed 
 on motion of C. ; whereupon TV. applied for a writ of 
 error, and executed a bond with surety for its prosecu- 
 tion. Held, that if W. was the owner of the slave, the 
 claim of property and all subsequent proceedings should 
 have been in his name, instead of the name of A. as agent ; 
 that W. could not prosecute a writ of error on the judg- 
 ment of dismissal ; and that the judgment was correct.'* 
 
 § 132. Though he, in whose name a writ of error is 
 
 > Seawell ?). Lowcry, IC) Tex. 47. ' Koirlo v. Shrivcr, 11 Gill & 
 2 Bremer v. Turner, 1 Sir. 233; 3 Johns. AOT). 
 Saun. 101 d. n. " 8 Ala. r)oO.
 
 668 THE LAW OF NEW TRIALS. [CH. XIX. 
 
 prosecuted, express a desire to dismiss, yet, if the court 
 be satisfied that it is prosecuted for the benefit of another, 
 a dismissal will be refused.' 
 
 § 133. AV^Iiere a will case was submitted to a judge, with 
 power to settle the whole controversy, and fix the counsel 
 fees, which he did ; a writ of error was dismissed, because 
 it did not make the counsel parties.^ But when a submis- 
 sion provided, among other things, that the award should 
 fix the counsel fees; held, the counsel need not be made 
 parties to a motion to set aside the award, nor to a writ 
 of error to the ruling on that motion.^ 
 
 § 134. A writ of error coram vobis will be quashed, 
 where the names of the parties in the judgment are not 
 truly stated.^ 
 
 § 135. But the omission of the addition of "junior" to 
 the name of the defendant, in the writ of error, is no cause 
 for quashing the writ, where there is any other descriptio 
 personce by which the real party can be ascertained.^ So 
 a writ of error was not sustained, in case of a judgment 
 against Chase Langmaid, in an action commenced by writ 
 against Charles Langmaid, actually served upon Chase, 
 and amended, after default, by substituting Chase for 
 Charles, without notice.^ 
 
 § 136. In general, a writ of error cannot be considered 
 until service has been made or acknowledged.'' Though 
 
 ' England v. Wickwarc, 4 J. J. ^ Langmaid v. Puffer, 7 Gray, 
 
 Mar. 378. 
 
 2 Barksdale v. Bunkley, 26 Geo. ? Mills v. Ba?by, 4 Tex. 330 
 398. Davenport v. Field, 13 ib. 94 
 
 3 Soutli Carolina, &c. v. Moore, Chapman v. Gray, 8 Geo. 337 
 28 Geo. 398. Pvolierts v. Landrum, 3 Tex. 10 
 
 '' Brown v. Davenport, 4 AVend. .James v. Gray, ib. 514; Chambers 
 
 205. V. Uodges, ib. 517. 
 5 Fleet V. Young, 11 Wend. 533.
 
 ClI. XIX.] WRIT OF ERROR. 669 
 
 the court sometimes proceed ex parte upon a return of non 
 est inventus.^ 
 
 § 137. In Texas, if the defendant in error cannot l)e 
 found, the original process may be served on the attorney 
 of record.^ And where the record shows that the attor- 
 ney served was attorney of record, it need not be stated in 
 the return of the officer.^ 
 
 § 138. The validity of a writ of error docs not depend 
 upon the scire facias. If the latter is informal or insuffi- 
 cient, an alias may issue, which, when served, gives the 
 court jurisdiction. Jurisdiction will also be conferred by 
 the appearance of the parties.* 
 
 § 139. There is a diiFerence between quashing and dis- 
 missing a writ of error. The condition of a bond, to pay 
 the judgment, &c., if the writ be dismissed, is not broken 
 by refusal to pay on the judgment of the court quashing 
 the writ.^ 
 
 § 140. K the defendant in error files a copy of the 
 record within the time prescribed, and the plaintiff sub- 
 sequently, but in due time, files his record, the defendant's 
 case will be dismissed.^ Where thirty-five days inter- 
 vened between the signing of the bill of exceptions and 
 the suing out and serving of the writ of error, citation, 
 and notice, the writ of error was dismissed.^ So where 
 no assignment of errors has been filed, at the time a writ 
 of error is called in its order.^ But not for the reason that 
 the same cause has been previously before the Sujireme 
 Court, where the error assigned is diflcrent, and the ob- 
 jection not raised or pleaded in the court below.^ 
 
 ' Vandegrift v. Page, 5 Ilarring. ^ Bosley r». Bruncr, 24 ]\riss. 457. 
 
 439. ^ Hartshorn v. Day, 18 How. 28. 
 
 2 Owen V. Tankersly, 13 Tex. 38; ^ Porry v. Ilii^jgs, (i Geo. 43. 
 Forshoy r. Railroad, 10 Tex. 516. « Gonckc v. Garrett, G Geo. 119. 
 
 3 ]\Iills p. ^o^vard, 12 Tex. 9. ^ llargraves v. Lewis, 6 Geo. 
 * Birkby v. Birkby, 15 111. 120. 207.
 
 670 THE LAW OF NEW TRIALS. [CII. XIX. 
 
 § 141. Limitation will not be ground of dismissal, unless 
 there is a motion to dismiss.^ 
 
 § 142. A writ of error will be dismissed, and judgment 
 affirmed, for delay in certifying the transcript of the 
 record.2 q^ jf r^ (.Qpy \^ j-^q^; served and an entry made 
 thereof within the time required.^ 
 
 § 143. "Where a motion for affirmation by the defendant 
 in error, and a motion to withdraw his writ of error by 
 the plaintiff, are pending at the same time ; the court will 
 grant that which the nature and justice of the case require.* 
 
 § 144. "Where there is no appearance for a plaintiff in 
 error, the case being called for hearing, and the plaintifi' 
 being himself called ; upon motion of the defendant, the 
 record will be opened, and the judgment, as we have seen, 
 affirmed.* 
 
 § 145. The plea in nullo est erratum admits all the mate- 
 rial facts to be well alleged.^ 
 
 § 146. If this plea is joined with that of the statute of 
 limitations, the party will be required to elect between 
 theni.^ 
 
 § 147. Upon a writ of error, nothing can be assigned 
 for error which contradicts the record. If an error in fact 
 is well assigned, a plea of in nullo est erratum is a confes- 
 sion of it. If the defendant in error intends to dispute 
 the truth of the assignment, he should deny the fact and 
 join issue thereon, and thus have the matter tried by a 
 
 ' Williams v. Craig, 10 Tex. 437. ^ Rogers v. Alexander, 2 Greene 
 
 2 Crawford v. Ferryman, 7 Geo. (Iowa), 337. 
 
 558. 5 Stiles v. Chapman, 7 Geo. 1. 
 
 3 Turner v. Collins, 8 Geo. 252 ; ^ Hago-ett v. Com., 3 IMet. 457; 
 Mears v. Garretson, 2 Greene (lo- Merrill a. Suffolk,&c., 31 Maine, 57. 
 wa), 310. , ' Acker «. Ledyard, 1 Denio,G77.
 
 CII. XIX.] WRIT OF ERROR. 671 
 
 jury. If an error in fact be assigned which is not assign- 
 able, or if it be ill assigned, "m nullo est erratuiii'^ is not a 
 confession, bnt is taken only for a demurrer. "Where the 
 plaintiff assigned for error, that the judgment, which pur- 
 ported to have been rendered and entered up against him, 
 was entered up by the clerk of the court without the 
 authority or order of the court, held, the assignment was 
 bad, as contradicting the record ; also that the plea of in 
 nullo est erratum did not confess the fact alleged, but was 
 only in the nature of a demurrer.^ 
 
 § 148. Where the cause assigned for reversal is, that a 
 part of the defendants in the original suit were minors 
 and did not answer by guardian or next friend, and the 
 defendant in error pleads in nullo est erratum; the fact 
 alleged, not being traversed by the plea, is to be treated as 
 admitted ; that plea putting in issue only such errors as 
 appear on the face of the record.^ 
 
 § 149. A release of errors for a valuable consideration 
 is a bar to a writ of error.^ And if a plea of a release of 
 errors, in the appellate court, be sustained by the proof, 
 the judgment of the court below will be afErmed.* 
 
 § 150. A release of errors by one partner will bind his 
 copartner.' 
 
 § 151. But an error in a judgment, prejudicial to a de- 
 fendant, cannot be cured by a release of the plaintifl', 
 entered on the record at a subsequent term.^ And a 
 release of errors, whether actual or constructive, cannot 
 form the subject of a mere motion to dismiss the writ of 
 error ; it must be pleaded.^ 
 
 ' Claggett to. Simes, 11 Fost. 22. ^ Smucker v. Larimore, 21 111, 
 
 2 Boniicr v. Welt, 45 Maine, 483. 267. 
 
 3 Baiucs V. Moody, .'> How. Miss. s "VVood v. Goss, 21 111. 604. 
 636. 8cc Glackin v. Zcllcr, o2 Barb. e Buford v. Biirdett, 3 Monr. 226. 
 147 ; Ruckman v. Alhvood, 44 111. "> Yick v. Mauldiug, 1 How. Miss. 
 183 ; Holt V. liees, 46 ib. 181. 217.
 
 G72 THE LAW OF NEW TRIALS. [CIL XIX. 
 
 § 152. An averment that a release of errors is obtained 
 by fraud should set forth the facts constituting the fraud.' 
 
 § 153. Questions oi amendment may arise, either in refer- 
 ence to the original proceedings or the proceedings in error. 
 
 § 154. Where, after demurrer to a declaration, it is 
 amended, an irregularity in that respect, unless objected 
 to at the time, is not subject to objection on error.^ 
 
 § 155. In the Supreme Court of the United States, a 
 writ of error cannot be amended, as that court has no ju- 
 risdiction unless the writ be correct. Thus a mistake of 
 parties, misplacing the names of the plaintiff and defend- 
 ant, is fatal.^ 
 
 § 156. In ISTew Jersey, the Court of Errors cannot 
 amend a material error in the record sent up. Such error 
 may be amended in the court below. The defendant in 
 error should allege diminution of the record, and sue out 
 a writ of certiorari^ on which the amended record may be 
 returned. This may be done even after argument. But 
 such an amendment would hardly be allowed on any terms 
 at a period of two terms after the writ of error was re- 
 turned, if no laches was imputable to the plaintiff in error.^ 
 
 § 157. "Where it appeared that the court had no juris- 
 diction of the cause, on account of omissions in the decla- 
 ration, the cause was remanded, to give the plaintiff an 
 opportunity to amend. * 
 
 § 158. The nature of the judgment to bo rendered upon 
 a writ of error, where the plaintiff in error prevails, 
 
 • Wood v. Goss, 21 111. G04. » IIod.o:e v. Williams, 22 How. 87. 
 
 2 Pcmam V. State, etc., 4 Pike, » Apgar v. Hiler, 4 Zabr. 808. 
 202. 5 ^Yard x. Lathrop, 11 Tex. 287.
 
 CU. XIX.] "WRIT OF ERROR. 673 
 
 -wholly or in i)Urt, depends very luucli upon the circuiu- 
 stanccs of the case, and upon local statute and usage.^ 
 
 § 159. In Massachusetts, where a convict brings two 
 writs of error at the same time, one to reverse an original 
 judgment, and the other to reverse a sentence to addi- 
 tional punishment, founded on an information Avhicli sets 
 forth such original judgment as one of the grounds of 
 such additional punishment; if the original judgment is 
 reversed, the sentence on the information falls with it, 
 and will also be reversed, if the error assigned be a matter 
 of mere law, apparent on the record, although the original 
 judgment was in full force when the writ of error was 
 l^rousht to reverse the sentence on tlie information.^ 
 
 § 160. In replevin, commenced before a justice of the 
 peace, and carried to the Court of Common Pleas by 
 appeal, which court rendered judgment for the defendant 
 for a return, with damages and costs, the plaintiff brought 
 a writ of error, on the ground that neither court had juris- 
 diction. So much of the judgment as awarded a return 
 and damages was reversed, and so much as awarded costs 
 was affirmed.^ 
 
 § 161. It is held that, if the judgment is reversed, the 
 Court of Error must give the same judgment which the 
 court below ought to have given. ^ But, elsewhere, that, 
 in general, judgment on a writ of error will follow success 
 in the particular issue. It is proper, however, to examine 
 the whole record, and to adjudge either for the plaintiff or 
 defendant, according to the legal rights, as it may on the 
 whole appear, without regard to the issue in law between 
 
 ' Sec Farquhiir v. :\IcFarUmd, 13 ^ Hutchinson r. The Commou- 
 
 Tex. 92; Park v. Walker, 3 Snced, wealth, 4 Met. 3o!). 
 
 503 ; Doolittlc v. Shelton, 1 Iowa, 3 Jordan v. Dennis, 7 Met. -500. 
 
 271; Peck v. Stephens, 5 Gilm. 127. « Garr v. Stokes, 1 Ilarr. 403. 
 
 43
 
 674 THE LAW OF NEW TRIALS. [CII. XIX. 
 
 the parties -wliicli may Lave been raised and decided.^ And, 
 in Vermont, in a case standing upon pleadings and demur- 
 rers, if the judgment is erroneous, and reversed, the court 
 will look into all the issues standing upon the record, and 
 render such a judgment as the court below should have 
 rendered.^ 
 
 § 162. When an infant brings a writ of error, the court 
 only vacate the judgment, but do not set aside the pro- 
 ceedings altogether.^ 
 
 § 163. The court will not upon error reverse a judgment, 
 where generally errors in law have been assigned, without 
 ascertaining, by an inspection of the record, that the judg- 
 ment of the court below is erroneous, though an issue of 
 fact, arising upon a plea of the statute of limitations 
 made by the defendant in error, has been found for the 
 plaintiiF. Judgment will be given upon the same princi- 
 ples as if there had been a joinder in error. The plaintiii' 
 in error, in such a case, in New York, must make up error 
 books, and place the cause on the calendar at a general 
 term, and either party may give notice of argument.* 
 
 § 164. A statute, giving damages at the rate of ten per 
 cent., on affirmance of judgment in the Supreme Court, 
 when the defendant below is the plaintiii* in error, and 
 has superseded the judgment, applies to judgments for 
 specific money demands only, and does not embrace judg- 
 ments of condemnation in trials of the right of property. 
 A judgment in the Supreme Court, which awarded ten 
 per cent, damages on affirmance of a judgment, in such 
 case, is too uncertain to enable the clerk of the court 
 below to compute or ascertain the amount of damages, 
 and to that extent is consequently void.' 
 
 • Stephen v. The State, 11 Geo. » Hymaiin v. Cook, 2 Denio, 201, 
 
 235. ^ Hooks V. Branch, &c., 18 Ala. 
 
 2 Wires v. Farr, 24 Vt. 645. 451. 
 » Barber v. Graves, 18 Vt. 290.
 
 CII. XIX.] WRIT OF ERROR. G75 
 
 § 165. In case of a verdict and judgment in ejectment, 
 for nominal damages; if a writ of error has been sued out 
 by the defendant and security given, the court cannot 
 interfere to enlarge the security, to cover damages which 
 may be recovered by the plaintift' in an actioii for mesne 
 proiits, or for any other losses which he may sustain by 
 delay in prosecuting the writ of error.' 
 
 § 166. Where there was no final judgment against one 
 defendant, the writ of error was dismissed as to him, and 
 it was ordered that a judgment nunc pro tunc should be 
 entered against him in the court below.^ 
 
 § 167. An entire judgment against several, erroneous 
 as to one, must be reversed in toto.^ Thus a judgment on 
 default, in an action on contract, against two persons, one 
 of whom was an infant.^ And the rule applies to judg- 
 ments upon several liabilities, under the (New York) 
 statutes authorizing suit against different parties to com- 
 mercial paper. As, where the judgment was against 
 maker and indorser, and the alleged error was, that the 
 maker, when an infant, appeared in the suit, in which 
 judgment was rendered, by attorney.^ 
 
 § 168. The course sometimes adopted by the court 
 above is, to remand the cause to the court below.^ 
 
 § 169. Upon error to reverse a final judgment, erro- 
 neously rendered for the plaintifi", on demurrer to a plea 
 in abatement, if an execution has been issued and collected, 
 the former judgment will be reversed, the proper judg- 
 ment ordered upon the pleadings, the case remitted to the 
 
 ' Roberts «. Cooper, 19 ITow. 373. * Sargeant v. French, 10 N. II. 
 
 2 Fowler v. Morrill, 8 Tex. 153. 444. 
 
 3 Harman v. Brotlierson, 1 Deuio, ^ yan Sclioonhoveni>. Comstock, 
 537 ; Davis v. Campbell, 1 Ircd. 1 Denio, (555. 
 
 482. ^ See ]\IcMastcrs v. Blair, 31 
 
 Penn. 467.
 
 676 THE LAW OF NEW TRIALS. [CH. XIX. 
 
 Common Pleas for further proceedings, and a writ of 
 restitution awarded for the amount of the execution issued 
 in the Common Pleas, and costs thereon, as paid, with 
 interest, as damages, and the costs of the proceedings in 
 crror.^ 
 
 § 170. In Vermont, where a case is brought into the 
 Supreme Court, standing upon issues of law, on demurrer, 
 and the judgment of the County Court reversed, and re- 
 pleader awarded ; the case should be retained, until by 
 the new pleadings some issue of fact is joined, wherel)y it 
 becomes important to remand it. The reversal only opens 
 such issues as were affected by the errors.^ 
 
 § 171. When a cause is reversed and remanded, the 
 inferior court cannot re-examine an assignment of errors, 
 on which it had previously passed, and which had been 
 reviewed and adjudged insufficient by the Supreme Court. 
 The determination of the Supreme Court, on errors 
 assigned, is the law of the case, binding alike on the Su- 
 preme and inferior court. If the Circuit Court, on a 
 cause being remanded, refused to permit additional errors 
 to be assigned, such refusal, being discretionary, cannot be 
 assigned for error in the Supreme Court.^ 
 
 § 172. In Massachusetts, where the court below renders 
 an erroneous judgment against a convict, and he brings a 
 writ of error to reverse it, the supreme judicial court 
 cainiot render a new judgment, nor remit the case to the 
 court below, in order that a new judgment may be ren- 
 dered there, but can only reverse the judgment and dis- 
 charo-e the convict."* 
 
 "ft" 
 
 ' Trow V. Messer, 32 N. H. ,"01. * Shepherd v. The Common- 
 
 2 Kinsman v. Paige, 34 Vt. G.IG. wealth, 3 Met. 410. 
 
 3 Adams v. Llorsefield, 14 Ala. 
 
 00 o
 
 CII. XIX.] WRIT OF ERROR. 677 
 
 § 173. In Iowa, where tlic judgment of a justice of the 
 peace is reversed upon writ of error, the cause should be 
 remanded to the justice, or a trial de novo awarded in the 
 District Court.^ 
 
 § 174. When a judgment is reversed and remanded, 
 the cause may be taken up by the court ])elow, at the 
 point where the first error was committed, and proceeded 
 with, as in other cases, to final judgment.* 
 
 § 175. After a mandate reversing a judgment for the 
 plaintiff, the defendants must take notice of the situation 
 of the case, and must make their defence if they have 
 any; if they make none, the plaintiff may discontinue as 
 to the defendants not served, and take judgment by default 
 ascainst the others.^ 
 
 § 176. "Wliere no one appeared for the plaintiff in error, 
 the counsel for the defendant in error was required to 
 state the nature of the case, and the judgment of the court 
 below was then afiirmed, with costs.'* 
 
 § 177. On affirmance of the judgment, where such judg- 
 ment has been superseded by bond, the judgment below is 
 merged in the judgment of affirmance.^ But, in general, 
 where a judgment is afiirmed on writ of error, the rights 
 of the parties stand as if no writ of error had been sued 
 out.^ 
 
 § 178. Where the writ of error is stricken from the 
 docket, on account of a division of opinion in the court 
 above, the court below may enter an affirmance.^ 
 
 ' Garvin v. Wells, 8 Clarke ^ Jones v. Cannock, 18 Eng. L. 
 
 (Iowa), 280. anclEq. 81. 
 
 2 Commissioners, &c. ■». Carey, 1 s Wiswell v. IMuuroe, 4 Ala. 9. 
 
 Ohio, 4G'3. Sec Cox v. Henry, 30 « Shore v. Jones, 1 Brock. 285. 
 
 Penn. 44."). ' Styles v. Stale, 28 Geo. 388. 
 
 •> Uuderhill v. Thomas, 24 Tex. 
 283.
 
 678 THE LAAV OF NEW TRIALS. [CH. XIX. 
 
 § 179. Upon a writ of error, tlie court found that there 
 was an error in taxation of costs to the amount of eight 
 dollars and twenty-three cents, and ordered the judgment 
 to he set aside, and a new judgment entered for the correct 
 amount, the plaintiff in error to have a writ of restitution 
 for the excessive costs paid by him, with interest.^ 
 
 § 180. Where the court irregularly dismissed an appeal ; 
 on error, the order was reversed, but a new one entered, 
 dismissing the appeal, and remanding to the original 
 court." 
 
 § 181. On appeal, a judgment was held to have been 
 beyond the power of the court, and was therefore set aside. 
 Held, thereafter, on error, that, the alleged judgment 
 having been declared on the appeal to be void, the writ 
 of error must be dismissed, with costs to the defendant in 
 error.^ 
 
 § 182. Where a judgment was rendered against the de- 
 fendant in error, for his non-appearance ; on motion, the 
 judgment was set aside, and the court held, that they were 
 bound to look into the record, and see whether there was 
 an error sufficient to reverse the judgment ; but the trial 
 should be ex farted 
 
 § 183. Wliere a party seeks the enforcement of so 
 rigorous a rule as the affirmance of a judgment without 
 reference to the merits, his application ought certainly to 
 receive no favor beyond what the law peremptorily de- 
 mands. The transcript was filed by a defendant in error, 
 who moved for an affirmance of the judgment, without 
 rea;ard to the merits. There was no indorsement on the 
 
 -=>' 
 
 • George «. Starrctt, 40 N. H. 3 jiawke w. Deuel, 2 Min. 58. 
 135. ^ MiircU «. Howell, 1 Mis. 138. 
 
 2 Eaton, &c. v. Varnum, 10 Ohio 
 (N. S.) 022.
 
 en. XIX.] WRIT OF ERROR. 679 
 
 transcript such as the statute required. The motion was 
 refused, the writ of error dismissed, and the defendant 
 was ordered to pay costs. ^ 
 
 § 184. Upon reversal of a judgment, the plaintiff in error 
 is to be restored to all things which he has lost by the 
 judgment. But the proceedings of the court below afford a 
 justification for all done under them before the reversal.^ 
 
 § 185. In ]S"ew Hampshire, a writ of restitution, after 
 a reversal for error, issues only for the amount for which 
 the goods taken on execution were sold ; not for the value 
 of them. And in such case trespass does not lie to recover 
 the difference between the value of the goods and the 
 amount of the sale.^ 
 
 § 186. In Massachusetts, on reversal of a judgment 
 which has been satisfied by a levy and entry upon land, 
 the court will not order restitution, but will leave the 
 plaintiff in error to his writ of entry.^ 
 
 § 187. Upon reversal of a judgment, a writ of restitution 
 is to be awarded for the amount received by the defendant 
 in error, in satisfaction of the judgment, and officers' 
 fees, with interest. There can be no inquiry into the 
 damages sustained by the levy of execution upon the 
 property, and a sale at a sacrifice.^ 
 
 § 188. Questions have arisen respecting the right to, 
 and effect of, successive writs of error upon the same 
 judgment. 
 
 § 189. After a cause has been brought to the Supreme 
 Court of the United States, and decided, and a mandate 
 
 ' Harris v. Williams, 4 Tex. 339. s Gay v. Smith, 30 N. H. 435. 
 
 2 Gaj' V. Smith, 38 N. II. 171. See AVilliams d. Coward, 1 Graut, 
 
 ^ Ibid. 21. 
 » Ilorton V. Wilde, 8 Gray, 425.
 
 680 THE LA"W OF NEW TRIALS. [CH. XIX. 
 
 issued to tlic court boloAv, if a second writ of error is sued 
 out, it Lriiio-s up for revision nothing but the proceedings 
 subsequent to the mandate.^ 
 
 § 190. A common-law case having been dismissed at the 
 last term for want of jurisdiction, it appearing that there 
 was no final judgment in the court below; a motion was 
 made to annul the order of dismissal and reinstate the case 
 upon the docket, and supported by an affidavit, that the 
 judgment below was a final one, and that the first tran- 
 script was erroneous, and by the production of a correct 
 record. Held, the motion could not be granted; the proper 
 course being to sue out another writ of error; thouo-h it 
 might be otherwise in the admiralty side of the court.^ 
 
 § IQOa. A second writ of error is allowable in the same 
 cause, only when the first was dismissed for a defect over 
 which the party had no control. But if the transcript of 
 the record in a writ of error omits the final judgment of 
 the court below, as this might have been supplied by 
 certio7rm, dismissal for this cause is final.^ 
 
 § 101. In Pennsylvania, a plaintifi' in error may have a 
 second writ of error, after a noil pros, of the first, but it 
 will not be a supersedeas to an execution.^ 
 
 § 192. In Virginia, where the general court have upon 
 writ of error reversed a judgment and directed a new 
 trial; that judgment is conclusive, and neither the court 
 below, nor the general court on a second writ of error, 
 can inquire into its correctness.^ 
 
 § 193. In New Jersey, where a plaintifi" has removed 
 his cause from the Circuit, by writ of error, to the Su- 
 
 ' Roberts v. Cooper, 20 How. ^ Sherman v. Lovejoy, 30 Miss. 
 
 4G7. 105. 
 
 2 Rice V. Minnesota, «fcc., 31 ^ Power v. Frick, 2 Grant, 306. 
 
 How. 82. 5 Marshall's Case, 5 Gratt. 693.
 
 en. XIX.] WRIT OF ERROR. 681 
 
 premo Court, he cannot, after tliat writ has heen dismissed 
 for want of prosecution, remove it by writ of error to the 
 Court of Errors.^ 
 
 § 194. In :Massachusetts, an affirmance of a judgment, 
 on a writ of error to which in nullo est erratum is pleaded, 
 is a bar to a second writ of error to reverse the same 
 judgment for any error apparent on tlie record, where it 
 was brought before the court on tlie first writ.j^ 
 
 § 195. In Alabama, a certificate, which omits to show 
 the time at which the writ of error issued, and the term 
 to which it is returnable, is insufficient to authorize an 
 affirmance of the judgment. If a writ of eiTor is not 
 returned to the term to which it issued, but is abandoned, 
 by afterwards suing out a new one, returnable to a sub- 
 sequent term; it becomes a nullity, and a certificate 
 issued on it, pending the second writ, will not authorize 
 an affirmance of the judgment.^ 
 
 § 196. The subject of writs of error in criminal cases is 
 perhaps more generally governed by express statutes than 
 the same remedy in civil proceedings. Only a brief notice 
 of it, therefore, is practicable or desirable. 
 
 § 196a. TVe have in ajnother connection considered the 
 question, whether a neio trial, technically so called, can be 
 granted after an acquittal. A similar question has some- 
 times arisen in reference to a writ of error. In a late case 
 in England, being the somewhat celebrated case — a prose- 
 cution for bigamy — involving the validity of a marriage 
 with the sister of a deceased wife, a writ of error was 
 brought at the suit of the crown to reverse a judgment in 
 favor of the defendant. IsTo question was raised, whether 
 
 ' Garr v. Panlmier, 1 N. J. 681. 3 Tardy v. Muriy, 17 Ala. oSo. 
 
 2 r>n()tli V. The Commouwcalth, 
 7 Met. 2So.
 
 682 THE LAW OF NEW THIALS. [CH. XIX. 
 
 the crown could have a writ of error, and nothing was 
 said on tlic subject at the bar or by the court. The judg- 
 ment of the court below was sustained on other grounds, 
 and therefore this point became immaterial.^ 
 
 § 197. The same question arose a few years since in 
 Massachusetts, and the court in an elaborate judgment 
 decided that the writ of error could not be maintained. 
 Some portions of Mr. Chief Justice Shaw's opinion will 
 show the grounds upon which it was predicated, and 
 which are probably alike applicable in other States : " In 
 favor of sustaining the writ, it seems to be necessary, in 
 every well-ordered government, that the decisions and ad- 
 judications in matters of law, of all courts and bodies 
 vested with judicial powders, within the jurisdiction of 
 any one State or government, should be brought, in some 
 form, to the final adjudication of a tribunal, having a 
 common jurisdiction over the whole of such State. — The 
 learned counsel for the government relied strongly on the 
 large powers vested in this court by the provisions of the 
 Rev. Sts., c. 81. — These powers are certainly very large 
 and unlimited, and give the court superintending juris- 
 diction over all judicial proceedings, civil and criminal, at 
 law and in equity, between party and party, and between 
 the commonwealth and any of the subjects thereof. These 
 considerations would be very strong — if they were wholly 
 unqualified, and stood alone. But there are some qualifi- 
 cations, though briefly expressed, annexed to them ; but, 
 what is more important, they are to be taken in connec- 
 tion with various other legislative provisions, directing 
 when, how, and in what cases, appeals may be taken and 
 prosecuted, exceptions filed, writs of error, habeas corpus^ 
 certiorari^ mandanms^ and the like, sued out, as of right, 
 or granted on application, thus, in eftect and by implica- 
 tion, limiting the generality of the provisions conferring 
 
 » Reg. v. Chadwick, 11 Ad. & Ell. N. 205.
 
 en. XIX.] WRIT OF ERROR. 683 
 
 these powers. — It is difficult perceive why the argument 
 drawn from a consideration of the general superintending 
 powers of the court, in support of a writ of error for the 
 commonwealth, would not apply equally in favor of ap- 
 peals. But we believe it has never been supposed, that 
 an appeal would lie for any party in a criminal case, 
 except where it had been expressly given by statute; nor 
 was it ever claimed, that the commonwealth could appeal 
 from a judgment of acquittal. — Another important ques- 
 tion is, whether in any case, in a criminal prosecution, the 
 commonwealth can have a bill of exceptions. Without 
 this, there would be no mode in which, even by the aid 
 of a writ of error, the material questions of law, raised 
 and decided, could be brought before this court, because 
 they would not appear upon the record. — No bill of ex- 
 ceptions can be claimed for the commonwealth. This 
 consideration has a tendency to show, that the intention 
 of the legislature, in limiting the right to file exceptions 
 to the party accused, was also to limit in like manner the 
 rio-ht to brino- a writ of error. "^ 
 
 § 198. A writ of error does not lie, in a criminal case, 
 in behalf of the United States.^ ISTor, independently of 
 statute, according to the latest decisions, in IsTew York.^ 
 In that State, under c. 82, of the laws of 1852, a writ of 
 error in favor of the people lies only when there has been 
 judgment for the defendant upon an indictment, and not 
 where there has been a conviction and certiorari with stay 
 of judgment in the court below.^ 
 
 § 199. The same rule is adopted in Iowa,* and in Geor- 
 gia;^ though a writ of error, to the judgment of an 
 
 ' Com. V. Cummiugs, 8 Cush. " People v. NcstlQ, 19 N. Y. (5 
 
 212-7. Smith) 583. 
 
 2 U. S. 7>. More, 3 Crancli, 174; « State v. Johnson, 2 Chirko, 549. 
 overruling U.S. ■«. Simnis, 1 ib. 6 state of Georgia y. Jones, 7 Geo. 
 251. 422. 
 
 3 The People v. Corning, 2 
 Comst. 1.
 
 684 TUE LAW OF NEW TRIALS. [CH. XL\. 
 
 inferior court on a recognizance, may be prosecuted at 
 the instance of the State.^ 
 
 § 200. In Maryland, it is held that a writ of error lies 
 for the State.^ 
 
 § 201. In Ohio, after a verdict for the State upon a plea 
 of not guilty in an indictment for murder, a motion for a 
 writ of error, because the record did not show that the 
 grand jurors were all legally qualified, cannot be sup- 
 ported.2 
 
 § 202. In criminal cases, the Supreme Court of Penn- 
 sylvania has jurisdiction of those errors only which appear 
 on the face of the record.-* 
 
 § 203. It is not ground of error that, on one of two 
 counts, in an indictment charging the same offence, there 
 was an acquital, and on the other a conviction.^ 
 
 § 204. Where two are convicted on an indictment for 
 larceny, and are severally sentenced thereon to longer terms 
 of imprisonment than are warranted by law ; they may 
 join in a writ of error to reverse the judgment.^ 
 
 § 205. In Arkansas, the grand jury asked instruction 
 of the court upon a point of law, and the attorney for the 
 State excepted to the instructions, and brought error. 
 Held, the record presented no case for the decision of the 
 Supreme Court, but simply an abstract point of law.^ In 
 the Supreme Court of the United States, where the 
 attorney-general suggests that he wishes the record to 
 
 ' State V. Lockhart, 24 Goo. 430. » Vanpool?). The Commonwealth, 
 
 2 The State v. Buchanan, 5 Har. 13 Penn. 391. 
 
 & .1. 317. 5 IMills V. Com., 13 Penn. G34. 
 
 3 Parks V. State, 4 Ohio (N. S.), ^ Sumnor v. Com., 3 Cush. 521. 
 234. ^ The State v. Biscoe, 7 Eug. GS3.
 
 en. XIX.] WRIT OF ERROR. 085 
 
 present other questions which he deems necessary for the 
 understanding of the case, and thereupon moves for a 
 discontinuance; the court will grant it, without further 
 investigation.^ 
 
 • United States v. Minnesota, &c., 18 How. 241.
 
 686 
 
 THE LAW OF NEW TRIALS. 
 
 [CH. XX. 
 
 CHAPTER XX. 
 
 CERTIORARI. 
 
 1. Definition, nature, and pur- 
 pose. 
 
 6. What is to be reviewed. 
 
 7. Distinction between error 
 and certiorari. 
 
 8. Lies only upon pending pro- 
 ceedings. 
 
 9. Not a writ of right — discre- 
 tionary. 
 
 12. The proceeding must be a 
 judicial one. 
 
 13. Relates to the legality and 
 vegxilarity of the proceedings re- 
 viewed. 
 
 14. Supersedeas. 
 
 15. Jurisdiction of the court 
 below. 
 
 IG. Questions of law and of fact. 
 19. Return to the writ. 
 23. Docs not lie where there are 
 other remedies ; appeal. 
 25. In criminal cases. 
 2G. Parties. 
 
 2Ga. To justices of the peace. 
 32. Form of petition and affidavit. 
 43. Miscellaneous. 
 
 § 1. Under the general term writ of error is usually in- 
 cluded the writ of certiorari; of which the foUowiug 
 account is given by an approved English writer.(«) 
 
 § 2. The mode of obtaining an exemplification of the 
 record of another court, is by certiorari and mittimus. The 
 certiorari is an original writ, issuing sometimes out of 
 chancery, and sometimes out of the king's bench, and 
 lieth where the king would be certified of any record 
 which is in the treasury, or in the common pleas, or in 
 any court of record, or before the sherifi" and coroners, or 
 of a record before commissioners or before the escheator ; 
 in these cases, the king may send that -writ to any of the 
 
 (a) The same remark is to be made with reference to this writ which 
 has already been made respecting the ^Y^it of error ; that, in the United 
 States, the statutory law has in many instances changed its common-law 
 character and application. In Georgia, the superior courts have express 
 power under the constitution, and independent of any legislation, to 
 correct errors in inferior judicatories by certiorari. Smith v. Joiner, 27 
 Geo. 65.
 
 CII. XX.] CERTIORARI. 687 
 
 said courts or officers to certify sucli record before liiin, in 
 banco, or in chancery, or before other justices, where the 
 king pleaseth to have the same certified ; and the courts 
 or officers, to whom the certiorari is directed, ought to 
 send the same record, according to the tenor of the writ, 
 and as tlie writ doth command them ; and if they fail so 
 to do, then an alias shall be awarded, and afterwards a 
 'plurics, with a clause of vel causani nobis signijices, and 
 after that an attachment, if a good cause be not returned 
 upon the 2)luries, wherefore they do not send the record. 
 On this writ, where the superior court doth not send for the 
 record of an inferior one, to see whether they keep within 
 the limits of their jurisdiction, but merely, on nid tid 
 record., to know whether there be such a record or not, it 
 is sufficient to certify the tenor of the record; and in 
 chancery they never certify anything more, for that court 
 does not send for the record of the inferior one, to bound 
 their jurisdiction, but to send it to other courts by mittimus. 
 
 § 3. If a recovery in an inferior court be pleaded, or 
 declared on, in a superior one, and denied, the certiorari 
 may in general issue either out of the superior court, or 
 the chancery. If it issue out of the former, the record 
 itself must be certified ; if out of the latter, only the tenor. 
 But, if such recovery be pleaded, or declared on, under the 
 seal of the inferior court, the certiorari must issue out of 
 chancery. And so, -where nul tiel record is pleaded, to the 
 record of a superior court, or court of concurrent juris- 
 diction, there is no way to have it but by certiorari and 
 mittimus out of chancery ; for one court is not bounded 
 by the other in point of jurisdiction, and in their judicial 
 capacities they cannot command each other; but the 
 chancery, which is the centre of all the courts, may, by 
 its original constitution, send for the records of any of 
 them, and from thence the subjects may receive copies, or 
 exemplications under the Great Seal.^ 
 
 2 Tidd's Practice, G75.
 
 688 THE LAW OF NEW TRIALS. [CU. XX. 
 
 § 4. Another description of the same writ, more nearly 
 conformable to the American practice, is the followino-: — 
 
 § 5. '■'■ Certiorari is a writ issued from a superior court 
 directed to one of inferior jurisdiction, commanding the 
 latter to certify and return to the former the record in the 
 particular case. When any error has occurred in the pro- 
 ceedings of the court below, different from the course of 
 the common law, in any stage of the cause, in either civil 
 or criminal cases, the writ of certiorari is the only remedy 
 to correct such error, unless some other statutory remedy 
 has been given. Sometimes the writ of certiorari is used 
 as auxiliary process, in order to obtain a full return to 
 some other process. When, for example, the record of an 
 inferior court is brought before a superior court by appeal, 
 writ of error, or other lawful mode, and there is a mani- 
 fest defect, or a suggestion of diminution, a certiorari is 
 awarded requiring a perfect transcript and all papers."^ 
 
 § 6. Certiorari brings up, as part of the record, what- 
 ever entered into or was necessarily passed upon in the 
 decision of the question to be reviewed.^ 
 
 § 7. Certiorari is the appropriate writ for the removal 
 of a cause before judgment (see § 15), and the writ of error 
 aftcr.^ The former requires no assignment of errors." 
 
 § 8. Certiorari lies, only to remove proceedings which 
 remain before the inferior tribunal.^ Thus it cannot be 
 maintained upon a return signed by one juryman several 
 months after the separation of the jury." I^or to review 
 
 ' Bouv. L. D. ; Davis v. Randall, ' Com. ■». Simpson, 2 Grant, 438. 
 
 20 111. 248 ; Harrison v. Cliipp, 25 * Stokes v. Jacobs, 10 Mich. 290. 
 
 ib. 57.") ; Appeal, 57 Penn. 452. 5 fi^e People, &c. «. The Com- 
 
 2 Magee v. Cutter, 43 Barb. 239. missiouers, &c., 30 N. Y. (3 Tiffa.), 
 
 See Koss v. Ellsworth, 49 Maine, 72. 
 
 417. 6 Ibid.
 
 CII. XX.] CERTIORARI. 689 
 
 an assessment, after the roll has been delivered hy tlie 
 commissioners to the board of supervisors, and the tax 
 collected.^ 
 
 § 9. Certiorari is not a lorit of right. Hence it does not 
 lie for mere technical errors or inaccuracies, where sub- 
 stantial justice is done.^ "The petition for this writ is 
 addressed to the judicial discretion of the court, and the 
 writ will not be granted if substantial justice has been 
 done, though the record may show the proceedings to have 
 been defective and informal. "^ 
 
 § 10. The discretionary character of the writ of certio- 
 rari is not taken away by a statutory provision requiring 
 it to be issued within two years, which is only a limita- 
 tion ; nor by the provision for its allowance out of court, 
 which only does away with the necessity for a special 
 application during a session of court.^ 
 
 § 11. More especially in cases of public interest a certio- 
 rari is matter of discretion, and after long delay will not 
 be granted.'^ So, at the hearing, the court may dismiss 
 the writ, as improvidently granted, or may refuse the 
 relief asked.^ And an applicant for certiorari, who al- 
 leges that he was misled by the opposite party, must show 
 how he was misled, and that he has been diligent in ascer- 
 taining and asserting his rights.^ 
 
 § 12. As already explained, certiorari is a process to 
 bring up for review the record of an inferior court, or a 
 tribunal Qx.QV(i\s\ng judicial functions.^ Acts simply minis- 
 
 • The People, &c. v. The Metro- ^ Por Thomas, J. Thorre v. 
 
 politan, &c., 43 Barb. 494. County, &c., 9 Gray, .')8. 
 
 2 Ewiiii,' V. Thompson, 43 Pcnn. " Lautis, 9 Mich. 324. 
 
 Inhts. kc. V. Co., A:c., 5 Al- ^ state v. Hudson, 5 Dutch. 115. 
 
 6i:i 
 
 len, 13; Granville v. Hampden, 97 ^ Ibid. ^ , ^io 
 
 Mass. 193 ; March v. Thomas, 63 ' Davis r. Randall, 26 111. 34o 
 
 N. C. 349. ^ 43 Barb. 233. 
 
 44
 
 690 THE LAW OF NEW TRIALS. [CH. XX. 
 
 terial in their character cannot be thus reviewed; but acts 
 of a judicial nature, whether those of a court, or of a 
 board of municipal officers, are subject to review in this 
 form.^ Thus it does not lie, in the case of a board of 
 supervisors, passing resolutions to provide for the raising 
 of money upon the credit and for the use of their county, 
 or of a town, for the purpose of paying bounties to volun- 
 teers. Such proceeding is legislative^ not judicial. So with 
 a resolution passed at a town meeting.'' So, in Georgia, a 
 justice of the inferior court, acting in county matters, is 
 not a court, and therefore its orders cannot be brought up 
 upon certiorari.^ 
 
 § 13. The remedy in question only pertains to the 
 legality and regularity of the proceedings. It is not a 
 remedy for injury done to the party who applies for it.'* 
 And the object of the writ is to confine inferior tribunals 
 within their jurisdiction, not to correct errors in the exe- 
 cution of their j)roper powers. Thus refusal of a justice 
 to receive the defendant's plea, after submission of the case 
 by the plaintiff, is not a proper subject for certiorari." 
 
 § 14. Certiorari involves a supersedeas, but only suspends 
 the power of the court below.^ 
 
 § 15. With more particular reference to the point of 
 jurisdiction ;{a) it is held that the common-law writ of 
 
 1 Robinson v. Supervisors, IG * People v. Neamig, 27 N. Y. (13 
 Cal. 208. Smith) 306. 
 
 2 The People, &c. r. The Board, ^ Tallmadge v. Potter, 12 Wis. 
 &c., 43 Barb. 232 ; 33 ib. 344. 317. 
 
 3 Justice, <fcc. V. Hunt, 29 Geo. <= Ewing v. Thompson, 43 Penn. 
 155 372. See St. Martin f. Desuoyer, 
 
 1 Min. 41. 
 
 (a) In England, where an appeal is determined at quarter sessions by 
 ma"-istrates, some of whom are interested in the matter, the proceeding 
 is null, and it is properly quashed on certiorari. Hopkins, 1 Ellis, B. & 
 E. 100.
 
 CII. XX.] CERTIORARI. 601 
 
 certiorari was for the puri»ose of Ijringiiig the record of 
 an inferior court or jurisdiction, after judgment (see § 7), 
 before a higher court, to examine v:hether Jurisdiction ex- 
 isted in the lower court, and whether its proceedings were 
 regular.* So certiorari is the proper remedy by which to 
 determine, whether a court of magistrates and freeholders 
 has jurisdiction to order restitution of leased premises to 
 the landlord.- So, in California, review, by certiorari, of 
 the action of the board of supervisors, in granting a ferry 
 license, can be had only for excess or want of jurisdiction.^ 
 
 § 16. It is undoubtedly the general rule, that, on cer- 
 tiorari, the court will not review the finding of the lower 
 court U})on the fads.* The of^ee of a certiorari is to review 
 questions of law, not of fact ; and, in examining into evi- 
 dence, the appellate court does not determine the prepon- 
 derance of probabilities, but simply whether the evidence 
 will justify the finding as a legitimate inference from the 
 facts proved, whether that inference would or would not 
 have been drawn by the appellate tribunal.*^ 
 
 § 17. But the court above will inquire, not only into the 
 jurisdiction of the inferior tribunal, but also into errors of 
 law occurring on the trial, and afi:ecting the merits of the 
 case. And it is sometimes held, that, where facts exist, 
 which, if apparent, would have ousted the inferior juris- 
 diction, the appellate tribunal may allow them to be set 
 forth in the affidavits of the relator, and require a response. 
 So, that the rulings at law upon the admission and exclu- 
 sion of evidence should be reviewed. That questions of 
 law, arising either upon the admission of evidence, or the 
 other rulings in the proceedings, must always have a bear- 
 ing on the result, and the appellate court cannot, generally 
 
 ' Chicago, &c. v. Fell, 23 111. 333. « Brown ii. Ramsay, o Dutcli.117; 
 2 FoUiii V. Coogan, 13 Rich. 44. De Rochebrune v. Southcimcr, 12 
 ' nenshaw v. Supervisors, 19 Min. 78; States. Hudson, 3 Vroom. 
 Cal. 150. 305. 
 
 5 9 Mich. 111.
 
 G92 THE LAAV OF NEW TRIALS. [CII. XX. 
 
 at least, assume that any of tlietn have not contributed 
 to it.' 
 
 § 11a. So, upon a common-law certiorari for the removal 
 of summary convictions before magistrates, the power of 
 review is not contined to questions affecting either the 
 jurisdiction of the magistrate or the regularity of the 
 proceedings, but extends to all other legal questions; and, 
 unless it appears upon the face of the record that there 
 was evidence sufficient to warrant the conviction, it will 
 be quashed.- 
 
 § 176. Generallj', as we have seen, this writ brings up 
 only questions as to the jurisdiction and power of the 
 inferior tribunal, and the regularity of its proceedings, 
 and not as to the correctness of the decision below ujion 
 the merits. But its decisions upon questions of fact, 
 relating to its jurisdiction and the extent of its powers, 
 are open to review. And the qualification is sometimes 
 added to the general rule, that, on certiorari, the court 
 will not look into facts, unless it appears that gross in- 
 justice has been done. And where the objection taken 
 was a refusal to charge that a prior judgment was a bar, 
 and, by the transcript of the record, it appeared that the 
 former suit was still pending, although this was disputed ; 
 the court refused to interfere.^ 
 
 § 18. But, as the liability of a corporation for trespass 
 would depend upon a fact, as to the orders and directions 
 of the company to commit or not commit the act com- 
 plained of; certiorari is not a proper remedy, in such 
 case, to authorize a review of the judgment of a justice 
 of the peace.* 
 
 » Jackson v. People, 9 ]\Iicli. 111. 36 N. Y. 218 ; Roddy v. Bacon, 3 
 
 2 Mullins V. People, 34 N. Y. (10 Cold. 253 ; People v. Board, 39 
 Smith) 399. N. Y. 81. 
 
 3 Pcoi)le V. Van Alstyne, 32 * Chicago, &c. v. Fell, 22 111. 
 Barb. 131; Whitney v. Board, &c., 333. 
 
 14 Cal. 479. See People v. Ferris,
 
 CII. XX.] CERTIORARI. 693 
 
 § 19. It 13 the general rule, that the return made to a 
 writ of certiorari is couchisive as to the facts stated in 
 \t.\a) The only questions upon certiorari are those raised 
 by the record.^ The court, in its affirmance or reversal of 
 the judgment, cannot regard facts set up only in the 
 affidavit. 2 
 
 § 20. The return, in a criminal case, should set out the 
 evidence ; and, if the evidence as set forth be not sufficient 
 to justify the conviction or other judicial act complained 
 of, it will be quashed on certiorari — as, upon a sunmiary 
 conviction before a magistrate* So where the jurisdiction 
 of a subordinate tribunal depends upon the facts to be 
 proved before themselves, and such facts are disputed ; the 
 evidence should be returned to a certiorari, and it may be 
 examined to see whether the fact be established.' So the 
 return by a justice to a certiorari should not be confined 
 to the averments in the affidavit of the party suing out 
 the writ, but should be a complete return of all the pro- 
 ceedings and rulings at the trial." But where commis- 
 sioners, appointed under an act of the legislature, returned 
 to a certiorari the proceedings resulting in their appoint- 
 ment, in which return it appeared that both the common 
 council and the Supreme Court had determined that a 
 sufficient petition of a majority of persons (which petition 
 was a necessary preliminary to the appointment) had been 
 
 ' Inhts., &c. V. Co., «fec., 5 Allen, ^ Gervais ». Powers, 1 Min. 45; 
 
 13. See Hays v. Gorby, 3 Clarke, Taylor v. Bissell, ib. 225. 
 
 203; Blair c. Hamilton,' 32 Cal. 49; ^ 3Iullins v. People, 24 K Y. 
 
 Central v. Placer, ib. 582; Central (10 Smith), 399; Jackson ». People, 
 
 V. Board, 34 ib. 352. 9 Mich. 111. 
 
 2 People V. Wheeler, 21 N. Y. ^ People v. Lawrence, 36 Barb. 
 
 (7 Smith) 82. 177. 
 
 6 Gervais v. Powers, 1 Min. 45. 
 
 (a) "With regard to the application itself, it is held that a petition for 
 a certiorari to bring up proceedings before a justice must stand on its 
 own merits ; it cannot be supported or defeated by affidavits. Davis i'. 
 Randall, 26 111. 243.
 
 694 THE LAW OF NEW TRIALS. [CH. XX. 
 
 presented; such determinations were held conclusive on 
 the point, in proceeding by certiorari in the Supreme 
 Court.i 
 
 § 21. The qualification is sometimes added to the o'cneral 
 rule, that, in a trial under a writ of certiorari, had only 
 upon the return of the judge below, uncontradicted state- 
 ments in his return will be taken as true.^ And, in 
 determining a question oi jurisdiction in the lower court, 
 the appellate court is not bound by, nor restricted to, the 
 facts stated in the record Ijrought u}i, but may look at 
 the evidence bearing on those matters.^ 
 
 § 22. But, \\\)on trial of a cause brought up ])y certiorari 
 to a justice of the peace, the court has no jurisdiction of 
 items not claimed before the justice.^ 
 
 § 23. The writ of certiorari cannot be maintained, till 
 a special statutory remedy has been exhausted.^(^() Thus, 
 in Illinois, the writ may issue to all inferior tribunals, 
 where they proceed illegally, and there is no mode of 
 appeal, or other way of reviewing their proceedings.^ So 
 where the application showed on its face that the party 
 had an adequate remedy by appeal, the writ was refused.^ 
 
 ' People V. Lawrence, 3G Barb. < Clark n. Snow, 24 Tex. 242. 
 
 177. 5 The People, etc. v. Board, &c., 
 
 2 Schroder v. Crary, 11 Iowa, 37 Barb. 12G. 
 
 555. 6 Ohicago, &c. v. Whipple, 23 
 
 i Whitney v. Board, &c. 13 Cal. 111. 105. 
 
 479. ' Clary v. Iloagiand, 13 Cal. 173. 
 
 (a) la Vermont, the proceedings of the county court upon the report 
 of commissioners, appointed by a justice of the peace, under the statute, 
 to appraise the damages occasioned to a lanel-owner by the laying out of 
 a highway by selectmen, cannot be revised upon exceptions, but only 
 upon certiorari. Lyman v. Burlington, 32 Vt. 131 ; Adams v. Newfane, 
 8 Yt. 271.
 
 en. XX.] CERTIORARI. 695 
 
 § 24. If a justice render judgment for a sum beyond his 
 jurisdiction, this should be taken advantage of by appeah 
 If, being ignorant of the judgment, the party has allowed 
 the time allowed for appeal to pass, he should state the 
 fact as a legal excuse for not appealing, and pray for 
 certiorari for a new trial, and not for the purpose of 
 quashing the judgment and execution. Such prayer 
 should be made at the next term of the court. ^ And a 
 petition for certiorari and supersedeas upon a judgment 
 by a justice, which showed the judgment to be unjust, 
 and gave a good legal reason for not appealing; was held 
 sufficient and timely.^ So where a party, in the county 
 court, prayed an appeal, which was granted, and tendered 
 his sureties, one of whom was prevented from signing by 
 the fault of the clerk, and was compelled, by the state of 
 the weather and bad health, to leave the court without 
 executing the bond ; it was held to be good ground for a 
 certiorari, without reference to the merits.^ 
 
 § 25. In the last chapter, we briefly considered the sub- 
 ject of writs of error, in criminal cases, on behalf of the 
 State. In Pennsylvania, certiorari lies for the correction of 
 errors in a criminal case, in behalf of the commonwealth.* 
 
 § 26. Certiorari must be brought by a imrty to the 
 former proceedings.^ 
 
 § 26a. The ordinary mode of revising the judgments of 
 justices of the 'peace is by appeal. Certiorari, however, is 
 often resorted to for the same purpose. 
 
 § 27. In Texas, if a justice of the peace grant a new 
 trial without notice to the adverse party, who does not 
 
 ' Mason v. Westmoreland, 1 * Com. v. Capp, 48 Penn. 53. 
 
 Head, 555. s People, itc. v. McCafiFrey, 43 
 
 2 Nance v. Hicks, 1 Head, G24. Barb. 530. See Debeny c. Holly, 
 
 3 McConnell «. Caldwell, G Jones, &c., 35 Miss. 385. 
 469.
 
 696 THE LAW OF NEW TRIALS. [CII. XX. 
 
 appear at the second trial; he may either enjoin the 
 collection of the judgment, or remove the cause to the 
 District Court by certiorari.^ 
 
 § 28. In New York, the only method of reviewing a 
 decision of a justice of the peace in summary proceedings 
 is by a certiorari to the Supreme Court.- 
 
 § 29. Certiorari will not lie to a justice of the peace, for 
 any matter which might have been availed of at the trial 
 before the justice.^ 
 
 § 30. In Michigan, in proceedings for certiorari to a 
 justice, if the error alleged is total want of evidence to 
 prove a fact necessary, the court will look into the testi- 
 mony, to see whether or not there was such evidence ; if 
 there was, without weighing or examining it, the court 
 will affirm the judgment; if not, and all the testimony 
 appears to have been returned, the court will reverse the 
 judgment.'* 
 
 § 31. On petition for certiorari to a justice of the peace, 
 based upon the ground that he has decided unjustly on the 
 merits, all the evidence which was before him should be 
 reported with an allegation that it has been done ; but, 
 where this was evidently the intention of the applicant, 
 though without a distinct allegation that he has reported 
 all the evidence, if the evidence reported shows the in- 
 justice of the judgment, it will bo reversed.'* 
 
 § 32. A petition for certiorari should state facts, and 
 not the opinions or conclusions of the petitioner.^ 
 
 ' Aycock V. "Williams, 18 Tox. "• Berry v. Lowe, 10 Mich. 9. 
 
 392. 5 PhiHips V. Parr, 19 Tex. 91. 
 
 2 Romaine v. Kiushimer, 3 Ililt. '^ Peabody v. Bucntillo, 18 Tex. 
 519. 313. 
 
 3 Peabody v. Buentillo, 18 Tex. 
 313.
 
 CII. XX.] CERTIORARI. 697 
 
 § 33. A petition for certiorari, averring that, about six 
 months after the due-bill, on which judgment had been 
 recovered, was given, a settlement had been eifected be- 
 tween the parties, and receipts in full exchanged, should 
 also state that the due-bill was included in such settle- 
 ment, and that the receipt, emln-acing the note in question, 
 was proved at the trial. It should also allege that the 
 facts recited as proved at the trial were all the facts 
 proved.^ 
 
 § 34. Where a written agreement is alleged as a ground 
 of certiorari, it should be set out, that the court may judge 
 of its eftect and construction, and of its conformity with 
 the allegations.^ 
 
 § 35. The admission of improper evidence before a 
 justice of the peace is no ground for certiorari, where it 
 is manifest, from the allegations in the petition, that the 
 petitioner was not thereby injured. A petition on such 
 ground will be refused, where the averments do not show 
 any error of law on the part of the justice, or that there 
 might not have been satisfactory and sufficient evidence 
 in support of the judgment.^ 
 
 § 35a. On a petition for certiorari to a justice of the 
 peace, there must be such fulness and certainty in the 
 statement of the facts, as to show what the case really 
 was, and that some material error or injustice has been 
 done the petitioner, or that he has not been able to avail 
 himself of a legitimate defence. The certainty required 
 is a reasonable certainty.^ 
 
 § 36. A petition for certiorari, after setting forth a suit 
 and judgment against the petitioner in a justice's court, 
 
 • Givens B. Blocker, 23 Tex. ^33. ■» McKcnsie v. Pituer, 19 Tex, 
 2 ^Martiu v. Nix, 19 Tex. 93. 135. 
 
 =» Ibid.
 
 698 THE LAW OF NEW TPvIALS. [CH. XX. 
 
 for a cow or her value, stated that the petitioner "had 
 been in peaceable and undisputed possession of the cow 
 for three years, or over, and that he proved the same to 
 the jury, and that yet, without any contradictory or ex- 
 planatory evidence by the plaintiff, on that point, the 
 verdict was rendered against him;" but not that he 
 relied on the statute of limitations at the trial. Held, 
 the petition was insufficient.^ 
 
 § 37. The absence of a material witness at the trial is no 
 ground for a certiorari, unless it appears that a continuance 
 was demanded for that cause.^ 
 
 § 38. A petition for a certiorari must not be based upon 
 mere irregularities, but must set out facts showing that 
 the petitioner has not been guilty of laches in pursuing 
 his remedy, and showing also the merits of his case, and 
 the means which he has of proving it.^ 
 
 § 39. The rejection of evidence can be no ground for a 
 certiorari, on error, unless the petition sets forth the facts 
 expected to be proved, so that the materiality of the re- 
 jected evidence can appear.* 
 
 § 40. "Where the petition purports to report the evidence 
 introduced by either party at the trial, and states that there 
 is no proof to support the account sued on ; it is sufficient, 
 though it omit to state that there was no other evidence.' 
 
 § 41. The affidavit to a petition for certiorari to a 
 justice's court may be made by the agent or attorney of 
 the petitioner.^ 
 
 ' Robiusou V. Lakcy, 19 Tex. '' Ibid. 
 
 139. 5 Rollison V. Hope, 18 Tex. 446. 
 
 2 Ibid. e.jkleAlpiniJ. Fiucli, 18 Tex. 831. 
 * Bodman v. Harris, 20 Tex, 31.
 
 en. XX.] CERTIORARI. 699 
 
 § 42. An affidavit to a petition for certiorari, " that the 
 material facts as set fortli in the foregoing petition arc 
 true, as they have come to his own knowledge; and the 
 information of others concerning the facts, which has 
 come to his knowledge, he helieves to he true in like 
 manner;" was held to be sufficient.* 
 
 § 43. AVhere a judge, sitting at chambers, has erro- 
 neously issued and directed an order to be filed as of a 
 special term; a certiorari properly issues to the judge 
 acting as an officer out of court, and not to the court of 
 which he is a justice.^ 
 
 § 44. 1^0 assignments of error are required on a common- 
 law certiorari.^(a) 
 
 • RoUisou y. Hope, 18 Tex. 44fi. » Stokes u. Jacobs, 10 Mich. 290. 
 2 People V. Kelly, 35 Barb. 444. 
 
 (a) As to certiorari in case of commitment for contempt, see People 
 V. New York, 29 Barb. 622.
 
 700 
 
 THE LAAV OP NEW TRIALS. 
 
 FciI. XXI. 
 
 CHAPTER XXI. 
 
 APPEAL. 
 
 1. Definition. 
 
 2. In the United States ; statu- 
 tory law. 
 
 3. A statutory remedy ; the 
 statutes must be strictly complied 
 with ; time, &c. 
 
 G. A continuation of the original 
 suit ; notice, &c. 
 
 7. Question as to right of appeal ; 
 process in connection therewith; 
 constitutional right. 
 
 13. Issue, default, &c. 
 
 17. Restricted right of appeal ; 
 title to land, &c. ; construction of 
 statutes. 
 
 20. From a favorable judgment, 
 &c. 
 
 22. As connected with other 
 forms of rehearing ; error, injunc- 
 tion, review, audita querela, &c. 
 
 32. Proceedings must he judicial. 
 
 33. In case of habeas corpus. 
 
 34. Mandamus. 
 
 35. Contempt. 
 
 36. There must be vl judgment. 
 
 37. The judgment must he final, 
 not interlocutory ; qualifications 
 
 and exceptions; what is a final 
 judgment. 
 
 4(3. Discretionary judgments. 
 
 49. Neglect and waiver ; objec- 
 tions not raised in the court below. 
 
 Gl. Questions oi jurisdiction. 
 
 71. Effect of an appeal ; suspends 
 or vacates the judgment ; irregular 
 or void appeal ; neglect to enter or 
 prosecute, 
 
 78. Course of proceeding in the 
 appellate court ; whole case re- 
 opened ; limitations of this rule ; 
 pleadings, evidence, &c. 
 
 89. Dismissal of an appeal. 
 
 99. Remanding of the case. 
 
 104. Parties ; persons interested ; 
 joint parties ; executors, assignees, 
 &c. 
 
 118. ^TO(>w7i< of judgment ; juris- 
 diction, etc. 
 
 lol. Return of papers by the 
 court below ; copies, originals, pa- 
 pers filed, &c. 
 
 145. Bond and recognizance. 
 
 15G. Payment of fees. 
 
 170. Successive appeals. 
 
 § 1. Another form of rehearing is appeal. Appeal is 
 defined as " the act by which a party submits to the de- 
 cision of a superior court a cause which has been tried in 
 an inferior tribunal."^ 
 
 § 2. As will be seen (§ 3), appeal is a purely statutory 
 mode of revision. Ilcnce, although the cases upon the 
 subject are very numerous, a large proportion of them, 
 being founded upon the construction of local statutes, are 
 
 Bouv. Law Diet. See Leach v. Blakely, 34 Verm. 134.
 
 CH. XXI.] APPEAL. 'i'Ol 
 
 themselves of local application, and of little use in a 
 general treatise like the present work, except so far as the 
 enactments of ditforent States may happen to be identical 
 or similar, and the construction of them in one State may 
 therefore be of authority, by way of analogy, in another. 
 And a further consideration, adding to the difficulty of 
 any general view of the subject, is, that the term itself — 
 a^jKol — is in the several States used in very different 
 senses. It has, to a great extent, in statutes and deci- 
 sions, lost its distinctive meaning, and is either the generic 
 term for all forms of rehearing, or else nearly or quite 
 synonymous with error or new trial. As distinguished 
 from revisions of questions of law, and peculiarly api)licable 
 to those of fact, appeal now finds its chief application in 
 cases carried to a higher court from courts of probate or 
 from justices of the i^eace, both of them tribunals of con- 
 stant activity and great practical importance in the United 
 States. The former class of cases it has been found im- 
 practicable to notice. The settlement of the estates of 
 deceased persons is at once of itself a most extensive and 
 important subject, and emphatically and almost exclusively 
 a matter of statutory regulation. With regard to trials 
 before justices of the peace, as well as the local town and 
 city courts which are invested with their limited jurisdic- 
 tion, both of which tribunals proceed without a jury, and 
 whose powers it is now the uniform tendency of the statu- 
 tory law to enlarge; the leading, more particularly the 
 most recent cases are summarily referred to, so far as 
 they settle or illustrate general rules and principles. The 
 selection is a diflicult one, and in the nature of things 
 cannot wholly exclude decisions, which upon examination 
 would be found to turn upon some express statutory pro- 
 vision. It is hoped that the following chapter, though 
 necessarily concise, may be found a useful summary of the 
 law upon a subject very prolific of questions and decisions ; 
 without being encumbered with the details which are in- 
 appropriate to a general, American treatise.
 
 702 THE LAW OF NEW TRIALS. [CII. XXI. 
 
 § 3. Appeal, as already stated, is wholly a statutory 
 remedy, not being known to the common law.(rt) And it 
 does not exist without legislative provision, even though 
 expressly recognized in the constitution of the State.^ 
 
 § 4. Such being the nature of the proceeding, the ap- 
 pellant must show the error below, or the judgment must 
 be affirmed. (/j) 
 
 § 5. As appeal is a proceeding unknown to the common 
 law, it cannot be extended beyond the plain and obvious 
 import of the statutes granting it.^ And similar strict- 
 ness is adopted as to tlrae.{c) Thus, in !N'ew York, the 
 time wdtliin which an appeal may be taken, under the 
 Code, cannot be enlarged by the court.^ So the marine 
 court has no power to extend the time, w^ithin which an 
 appeal to the general term must be taken, beyond the 
 
 ' Ohio, iSrc. «. Lawrence, &c,, 27 ^ street «. Francis, 3 Ham. 277 ; 
 111. 50 ; Hammond «. The People, 14 Mass. 420 ; 7 Pick. 321. 
 33 ib. 446. » Renouil v. Harris, 2 Sandf. 641. 
 
 (a) It is said " there is no instance at common law, of an appellate 
 court retrying a case by jury, except where the former judgment has 
 been reversed or annulled. The practice is almost peculiar to New 
 England, few innovations upon the common law having been made in 
 this respect, in the other States of the Union." Howe's Prac. 435. 
 (The practice has been many years discontinued in Massachusetts, and, 
 except with reference to certain classes of cases, more particularly 
 those relating to the title of real estate, is probably for the most part 
 obsolete.) 
 
 [h) In "Wisconsin this applies now, equally, to what were chancery and 
 to what were common-law proceedings before the code, lleald v. Wells, 
 7 Wis. 149. 
 
 (c) See Ladow v. Groom, 1 Denio, 429. In reference to time, however, 
 the principle of nunc pro tunc has been sometimes applied. Read v. 
 Dickinson, 2 Ashm. 224. More especially, where a party is ready and 
 willing to comply with the prerequisites to an appeal, but would be de- 
 prived of his right by the wilful or accidental omission of the justice. 
 Louderback v. Boyd, 1 Ashm. 380.
 
 en. xxr.] APPEAL. 703 
 
 thirty days limited by statute.^ So, in England, an api>eal 
 from a decision of a judge at chambers will not be enter- 
 tained after the lapse of a term.^ So the time within 
 which an appeal may be taken is not suspended by a mo- 
 tion pending to set aside the judgment.^ And, in Wis- 
 consin, unless the plea of notice, of a title to land, and 
 the proceedings thoreon, strictly conform to the statute, 
 the Circuit Court has no jurisdiction, and must dismiss 
 the appeal. The want of jurisdiction is not cured by the 
 appearance of both parties. The i»arty who filed the plea 
 and carried up the case may move to dismiss it. And it 
 must clearly appear from the plea or notice, that the title 
 to lands will come in question. Thus, in an action for 
 conversion, a plea that the stack of grain converted was 
 on the defendant's land, does not show that tlie title must 
 necessarily be brought in question.* 
 
 § 6. Unlike a writ of error, an appeal is merely a con- 
 tinuation of the original suit. It is held, and probably 
 this is the prevailing practice, that an apj)eal must be 
 prayed in oi^en court, and the bond ordered to be given 
 must be approved by the court. The clerk has no autho- 
 rity, either by law, or by direction of the court, to ap- 
 prove the bond.^ And it is the general rule, that either 
 party to a cause is bound to take notice of an appeal taken 
 at any proper time, without service of any process, or other 
 notice, ^(rt) 
 
 ' De la Figaniere v. Jackson, 4 ' Renoul v. Harris, 2 Sandf. 041. 
 
 E. D. Smith, 477. * Ycrbeckt;.Verbcck, G Wis. 15!). 
 
 2 Craske v. Smith, 4 C. B. (N. ^ Parker v. Willis, 27 Miss. 766. 
 
 S.) 446. ^ iSIalone v. Hardesty, 1 Cart. 79. 
 
 {a) This peculiarity of appeal, however, as distinguishing it from other 
 forms of revision, has doubtless been extensively changed l)y statute. In 
 Iowa, to give the appellate court jurisdiction, the appellee must be 
 served with notice of the appeal. Where there has been no personal 
 service on the defendant below, the appellee, and he has never appeared, 
 and his residence is unknown; there is no provision for notice in the
 
 704 THE LAW OF NEW TRIALS. [CII. XXI. 
 
 § 7. The question, whether an appeal lies in any given 
 case, is a question for the appellate court alone.^ And 
 when the right depends on the sufficiency of an answer, 
 it is not necessary to wait, before appealing, till its suffi- 
 ciency be determined by the lower court, but the question 
 may be left for the Court of Appeals to decide.^ 
 
 § 8. Though the jurisdiction of a court is strictly ap- 
 pellate, yet it may exercise such jurisdiction by means of 
 the process of mandamus ; and also, it seems, by writs of 
 habeas corpus^ supersedeas^ prohibition^ and certiorari.^ And, 
 
 ' Thompson v. McKim, 6 liar. & ^ The People v. Turner, 1 Cal. 
 J. 302. 143. 
 
 2 Kcighlcr «. Savage, &c., 12 Md. 
 883. 
 
 code. But tliis is a defect in the organization of the court, which the 
 court above, under the code, has power to supply. Therefore it was 
 ordered, in such a case, that notice be given, as provided in the code, 
 ?§ 1725, 1826, 2498. McClellan v. McClellan, 2 Clarke, 312. In Cali- 
 fornia, unless the notice be filed and served, and the undertaking filed, 
 within the required time, the court above has no jurisdiction, and the 
 appeal must be dismissed. The service must be made between the filing 
 of the notice, and the filing of the undertaking. The time for filing the 
 undertaking cannot be abridged by the neglect of the appellant, nor can 
 the appellee be kept watching for the filing of the original notice of the 
 appeal by premature service of a copy thereof on him. These provisions 
 of the code are intended for the repose of parties, and must be strictly 
 complied with. Hastings v. Halleck, 10 Cal. 31. But where notice of 
 the appeal is not served until the day after it is filed, the api>ellee is not 
 injured if he objects to the undertaking within the proper time, and 
 therefore cannot have the appeal dismissed on the ground that the notice 
 was not served on the day of filing. Mokclumue, &c. v. Woodbury, 10 
 Cal. 185. In Indiana, notice of an appeal to the resident attorney of a 
 non-resident appellee is good. Hurlbut v. Ilurlbut, 12 Ind. 346. See 
 Eobinson v. Hudson, &c., 1 Hilt. 144 ; Cabre v. Sturges, ib. IGO ; New 
 York V. Green, ib. 393 ; Lee v. Schmidt, ib. 537. An appeal from a 
 justice of the peace, which by statute may be taken " at any time within 
 twenty-four hours after the entry of the judgment, to the Court of Com- 
 mon Pleas then next to be hold in the same county," must be to the court 
 held next after the entry of the judgment, although before the taking 
 of the appeal. Mclniffe v. Wheelock, 1 Gray, 600.
 
 CII. XXI.] APPEAL. 705 
 
 in general, in cases not provided for hy the statute, it is 
 within the legal powers of the court, to devise and au- 
 thorize such appellate process as may be necessary to 
 enforce its own jurisdiction.^ 
 
 § 9. A statute, giving an appeal to one court, to persons 
 aggrieved by the doings of the authorities of a particular 
 city, as to damages done by the location of streets an<I 
 ways, takes away the appeal given by the general law to 
 another tribunal. ^ 
 
 § 10. Constitutional questions have sometimes arisen in 
 connection with the right of appeal. 
 
 § 11. A statute, which takes away the right to a future 
 appeal in an action pending and undetermined when the 
 statute takes eifect, is not unconstitutional.^ 
 
 § 12. A constitutional right of trial by jury is suffi- 
 ciently secured by the right of appeal to a court before 
 which causes ar6 thus tried.^ 
 
 § 13. It is sometimes expressly provided, that an appeal 
 may be taken whenever an issue has been joined. («) It is 
 
 ' Teas V. Robinson, 11 Tex. 774. ^ Grover v. Coon, 1 Comst. 536. 
 2 Bangor v. County, &c., 30 * Sullivan v. Adams, 17 Pick. 
 Maine, 270. 295. 
 
 (o) It is held, that, if a defendant duly served suffer a default, he 
 thereby conclusively admits the facts set out in the complaint, and can- 
 not deny them on an appeal. Therefore, though the appeal be both as 
 to law and fact, he is not entitled to a trial de novo. The " trial anew" 
 of (California) Practice Act, I 626, means only a retrial of such issue as 
 was actually tried below, and, if issue was not there taken on the facts, 
 it cannot be taken on the appeal. People v. County Court, 10 Cal. 19 ; 
 Funkcnstein v. Elgutter, 11 Cal. 328. But, under the Rev. Sts. of Mas- 
 sachusetts, c. 85, I 13 — "any party aggrieved ]>y the judgment of a jus- 
 tice of the peace" may appeal — an appeal lies from a judgment rendered 
 45
 
 706 THE LAW OF NEW TRIALS. [CII. XXI. 
 
 held, that the issue intended by statute is one in technical 
 form, or at least a coming together by the parties, in their 
 2 .leadings, to a point to be tried by a jury as matter of 
 fact, or by the court as matter of law.^ Thus an allegation 
 by a plaintiif in a trustee process, that there are goods, &c., 
 deposited with A., and A.'s denial in his answer in court, 
 constitute an issue ; and therefore A. may appeal from a 
 judgment charging him as trustee, though the principal 
 defendant was defaulted.^ 
 
 § 14, Where the court ordered a " misentry" to be en- 
 tered, in a case that had been pending several terms, 
 because the writ was lost, an appeal from this order was 
 sustained.^ 
 
 § 15. An appeal was held not to lie from a judgment on 
 a case stated by the parties for the opinion of the court.'* 
 But, if an appeal be made in such case, and entered, the 
 judgment will be affirmed, without any inquiry as to its 
 correctness.^ 
 
 § 16. Statutes sometimes restrict the right of appeal to 
 particular subjects; usually those connected with the title 
 to real estate. 
 
 § 17. Under a statute allowing appeal where the judg- 
 ment is final, and relates to a franchise or freehold, the 
 
 ' Purple V. Clark, 5 Pick. 206. Wellington v. Stratton, 11 Mass. 
 
 2 Ricbards v. Allen, 8 Pick. 405. 394. 
 
 3 Gilbreth v. Brown, 15 INIass. ^ 11 Mass. 394; Emerick -v. Arm- 
 178. strong, 1 Ham. 513. See Stewart 
 
 4 Phillips V. Friend, 2 Fairf. 411; v. Betzer, 20 La. An. 137 ; Batch- 
 
 elor «. Creditors, ib. 193. 
 
 upon a default, as well as from one rendered after trial on an issue joined, 
 llolman v. Sigourney, 11 Met. 436. An appeal lies, in Iowa, from a 
 judgment by default, or a decree pro confesso. Woodward v. Whites- 
 carver, 6 Clarke, 1. A judgment upon a confession, reserving the right 
 of an appeal, is appealable. Melins v. Home, 29 Geo. 536.
 
 CII. XXI.] APPEAL. 707 
 
 right of the freehold must he dlrccthj the suhjcct of action, 
 and the judgment must he conclusive of the right until 
 reversed.* 
 
 § 18. "While a statute was in force, prohibiting an appeal 
 from a justice of the peace, except in certain specified cases, 
 unless the sum in demand exceeded seven dollars, an action 
 was brought by the selectmen of a to\yn, demanding seven 
 dollars damages, to recover the expenses incurred by them, 
 in removing a fence from the public highway, under the 
 act to prevent and remove nuisances; to which the de- 
 fendant pleaded the general issue, and also that the land 
 from which the fence was removed was his soil and free- 
 hold. Held, Buch action was not within a provision con- 
 cerning appeals on plea of title, nor one concerning appeals 
 where the plaintiff's right of way is in question.^ 
 
 § 19. A statute, prohibiting an appeal to correct a "cle- 
 rical misprision" until the court below has refused to cor- 
 rect it, applies to a premature judgment.' But not to an 
 omission to serve proper process on the defendant before 
 rendering judgment.^ 
 
 § 20. It is generally hold, that, where a party has a judg- 
 ment Avholly in his own favor, and sutlers no injury from 
 it, an appeal will not be allowed ; he must prosecute a writ 
 of error.^ 
 
 § 21. An appeal does not lie for re-examination of facts, 
 after satisfaction of the judgment.^ 
 
 ' Rose v. Chotcan, 11 111. 1G7. 448 ; Iloltou v. Rugglos, 1 Root, 
 
 2 Wildman v. Rider, 23 Conn. 318 ; Raymond v. Barker, 3 ib. 
 173. 370 ; Eyler «. Hoover, 8 Md. 1 ; 
 
 3 Webber ». Webber, 1 Met. Barker o. Ilobbs, G Ind. 385. But 
 (Ky.), 18. see Lemoir v. South, 10 Ired. 337. 
 
 » Amyx 'c. Smith, 1 Met. (Ky.), " Roberts y. Cautrell, 3 Ilayw. 
 529. 230. 
 
 5 Addix V. Fahnestock, 15 111.
 
 708 THE LAW OF NEW TRIALS. [CH. XXI. 
 
 § 22. Appeal may be noticed in connection witli other 
 forms of rehearing.(a) 
 
 § 23. Appeal and error seem to be sometimes used pro- 
 miscuously.^ But a statute allowing a writ of error does 
 not take away the right of appeal from a final decree.^ 
 
 § 24. As we have already stated, appeal is generally 
 held to be an exclusively statutory remedy. 
 
 § 25. In Maryland, the qualified rule is laid down, that, 
 unless by express statute, an appeal will not lie in any case 
 in which a writ of error would not lie.^ 
 
 § 26. In ISTew York, a final judgment was rendered in 
 the Supreme Court in May, 1848, before the code of pro- 
 cedure took effect. After the code took effect, an appeal 
 was brought according to its provisions. Held, the judg- 
 ment could be reviewed only by writ of error according 
 to the old law; and the appeal was dismissed.* 
 
 ' Nill 7). Comparet, 16 Ind. 107. 2 Hallowell's, &c., 20 Pcmi. 215. 
 See Bolton v. McKinley, 19 111. 404; 3 Savage, &c. v. Owings, 3 Gill, 
 
 Isaacs V. Beth, 19 N. Y. (5 Smith) 497. 
 584. * Rice «. Floyd, 1 Comst. 008. 
 
 (a) As to neiv trial and appeal, in case of a verdict against evidence, 
 sec Young v. Davis, 30 N. Y. (3 Tiffa.) 134; Morrison v. Whiteside, 
 17 Md. 452. It is held that no appeal lies from an order for a new trial. 
 White V. Harvey, 23 Ind. 55 ; Comstock v. Ward, 22 111. 248. In Illinois, 
 a writ of certiorari to a justice of the peace is distinct and separate from 
 an appeal ; and, if dismissed in the Circuit Court, an appeal or writ of 
 error should be prosecuted to reform that judgment. On the hearing in 
 the Supreme Court to revise the judgment of the justice on appeal, the 
 judgment on the certiorari cannot be examined. Chicago, &c. 11. R. Co. 
 V. Whipple, 22 111. 337. In Delaware, appeal and certiorari arc concur- 
 rent remedies. Williams v. Burchinal, 3 ITarring. 83. Where certiorari 
 issues, to test the power and jurisdiction of the inferior court to act at all 
 in the matter, and not to try the correctness of its action ; the decision 
 of the superior court is appealable. 15 Md. 193.
 
 CH. XXI.] APPEAL. 709 
 
 § 27. An appeal does not lie from an order overruling a 
 motion to quash a writ of error coram nobis, it not being 
 a final judi^ment.* In Alaljama, an appeal will not be 
 dismissed, because the record shows that a writ of error 
 was sued out on the judgment, when it does not appear 
 that any transcript was filed at the term to which the 
 writ was returnable, and the judgment has not been 
 affirmed.^ 
 
 § 28. In some cases, appeal and error are alike held to 
 be an inapplicable remedy. Thus, where a party enters a 
 judgment not authorized by the verdict, the proper remedy 
 is by motion, not by appeal or error.^ So where a referee 
 directed judgment for return of possession or for the ascer- 
 tained value, and judgment was entered for the value only ; 
 held, it was a mistake to be corrected on motion below, 
 and not ground for an appeal.* 
 
 § 29. An appeal is held not to lie from an order of a 
 Circuit Court to -put a purchaser of property sold under 
 its direction in possession. The proper remedy is an 
 injunction.^ 
 
 § 30. Audita querela cannot be maintained in case of re- 
 fusal to allow an appeal.^ But, in Massachusetts, where a 
 party intends to appeal, and supposes he has done so, when 
 in fact he has not; he is entitled to a review. X«) 
 
 § 31. One cannot prosecute his appeal from a judgment 
 at law and his petition in chancery enjoining collection 
 
 > Bridendolpli v. Zellers, 3 Md. s Callan v. May, 2 Black, o-ll. 
 325. s Bradish v. Redway, 35 Verm. 
 
 2 Cooper V. Macliu, 25 Ala. 298. 424. 
 
 3 Eaton V. Caldwell, 3 Min. 134. ? riutcliinson v. Gurley, 8 Allen, 
 t In^'ersoll v. Bostwick, 22 N. Y. 23. 
 
 (8 Smith) 425. 
 
 (a) Appeal and review do not lie coucurrontly. Kirk v. Reynolds, 12 
 Cal. 99.
 
 710 THE LAW OF NEW TRIALS. [CII. XXT. 
 
 thereof, at the same time; the institution of the equity 
 proceedings is a release of errors in the action at law.^ 
 
 § 32. The different proceedings, in which an appeal has 
 been claimed, and either admitted or denied, are of course 
 of a very various character. It is held, in general, that a 
 general statute on the subject of appeals applies only to 
 usual and ordinary civil proceedings, and does not embrace 
 proceedings under special acts.^ In reference to the general 
 requisite, that they must be in their nature judicial^ in 
 order to be thus revised; it is held, that, where any power 
 is conferred upon a court, to be exercised by it as a court, 
 in the manner and with the formalities of a court and in 
 its ordinary proceedings, the action of such court is to be 
 regarded as judicial, irrespective of the original nature of 
 the power; and the determination of the court thereon 
 may be therefore appealable.^(a) Thus the power of re- 
 moval from office, for cause, being conferred upon a court, 
 is a judicial and not an executive function ; and an order 
 for such removal is appealable.^ But where a referee 
 appointed by the court to make a sale claimed certain 
 fees; and the parties agreed to refer the matter to the 
 judge: held, no appeal lay from his decision, as he acted 
 only as arbitrator.^ 
 
 § 33. The question of appeal is often raised in connection 
 with habeas corpus. "Where, as is usual, the jurisdiction 
 of a court of appeals extends only to the final orders and 
 judgments of inferior courts, and not to those which judi- 
 cial officers are authorized to make out of court ; an order 
 
 ' Gordon t). Ellison, 9 Iowa, 317. * Lowe «. Commonwealth, 3 
 
 * Allen V. Ilostctter, 16 Ind. lo. Met. (Ky.) 237. 
 
 3 Henry v. Cooper, 22 N. Y. (8 ^ Lansing's, &c., 10 Wis. 120. 
 Smith) 67. 
 
 (a) In New York it is appealable, if it is a final order afifecting a 
 snl)stantial right, in a special proceeding. As, for example, an order 
 refusing the admission of an attorney. [Three judges dissenting.]
 
 CH. XXT.] APPEAL. 711 
 
 on a writ of habeas corjms is not an order of court, and 
 cannot bo appealed from, even thongli heard and decided 
 in court.^ So an appeal does not lie from a decision of the 
 court below remanding a prisoner, brought up on habeas 
 corpus to the Supreme Court, where the jurisdiction of the 
 two courts is concurrent in all criminal matters, and 
 because the decision is not a final judgment.^ Nor on the 
 refusal of a judge below to discharge a prisoner, on the 
 writ of habeas corpus.^ And the appellate power conferred 
 upon a court, to revise the judgments of justices of the 
 peace, does not authorize that court to do so on habeas 
 corjms.'^ j^or does an appeal lie from a judgment of the 
 court below, overruling a motion for a discharge from 
 custody upon the return of a habeas corpus, this not being 
 a judgment or determination of that court, in a civil suit 
 or action.^ 
 
 § 34. An appeal will not lie on a refusal to grant a 
 mandamus.^ 
 
 § 35. It is sometimes held, that proceedings for confe?/i/)< 
 in not carrying out orders of the court, in the execution 
 of which parties are interested, are appealable, because 
 they are in the nature of civil remedies.^ Thus an order, 
 fining an attorney for contempt, was held the subject of 
 appeal before the fine had been paid; an appeal not 
 necessarily operating as a supersedeas in all cases.^ But, 
 on the other hand, the remedy is held not applicable in 
 case of contempt, unless specially authorized by statute.^ 
 
 ' Weddinijton v. Sloan, 15 B. ' State v. Giles, 10 Wis. 101 ; 
 
 Mon. 147. See State v. Gallowaj^, Ware v. Robinson, Cal. 107. See 
 
 5 Colli. 326; Coston, 23 Md. 271. Romcyn v. Caplis, 17 Mich. 440. 
 
 2 Yarbrough v. The State, 2 Tex. s State v. Hunt, 4 Strobh. 322. 
 
 519. 9 Crow V. State, 24 Tex. 12; 
 
 8 Howe V. State, 9 Mis. 690. Hunter v. State. 6 Ind. 423; Cooper, 
 
 ♦ State, itc. V. Mace, 5 Md. 337. 32 Vt. 253 ; :\rartiu's case, 5 Ycrg. 
 
 5 Bell V. The State, 4 Gill, 301. 450. 
 
 ^ Shrevcr v. Livingston, &c., 9 
 Mis. 190.
 
 712 THE LAW OF NEW TRIALS. [CII. XXI. 
 
 The distinction is made, that, although a court of appeals 
 cannot and ought not to re-try a question of contempt or 
 no contempt, and has no jurisdiction for that purpose; 
 still it has power to revise and correct erroneous and 
 illegal sentences or judgments pronounced against such 
 ofltences. As in case of an order, directing the name of 
 an attorney to be stricken from the roll, upon charges of 
 malpractice and official misconduct.^ 
 
 § 36. To authorize an appeal, there must be a judg- 
 ment.(rt) Thus, on appeal from a justice of the peace, if 
 it appears that no judgment was entered by the justice, 
 the appeal must be dismissed.^ So if the record does not 
 show that a judgment was rendered.^ So if, on appeal, 
 it does not appear of record that a judgment has been 
 rendered, but only a verdict.^ And, in Massachusetts, an 
 action, entered by the defendant in the Court of Common 
 Pleas, on appeal from a justice of the peace, might be 
 dismissed on the defendant's motion, if the justice never 
 rendered any judgment on the verdict returned for the 
 plaintiif on the trial before him, although the action was 
 one which might have been commenced in the Court of 
 Common Pleas.^ So a decision on a demurrer is a judg- 
 ment, and must be perfected like one before it is ap- 
 pealable.^ 
 
 § 37. In addition to this requisite, appeal, like a writ 
 
 ' Tumor v. Commonwealtli, 3 * Harrison v. Singleton, 2 Scam. 
 
 Met. (Ky.) G19. 21. 
 
 2 Kimble v. Riggin, 2 Greene ^ Bowler v. Palmer, 2 Gray, 553. 
 (Iowa), 245. '^ Cummings v. Heard, 2 Min. 
 
 3 Brown «. Scott, 2 Greene 34. 
 (Iowa), 454. 
 
 (a) It is held, that an error in entering judgment in a justice's court 
 can only be corrected in the appellate eourt by a rcTcrsal and bringing 
 a new action. Hardy v. Seelye, 1 HUt. 90.
 
 en. XXI.] APPEAL. 713 
 
 of error,(a) is generally confined to a final judgment. It 
 cannot be taken, unless expressly authorized by statute, 
 from a judgment merely interlocutory ov in'ovisional} 
 
 % 38. And this rule applies, although a statute " regu- 
 lating appeals" provides, that in equity "any party may 
 appeal from any order or decree;" such construction Ijeing 
 given, in view of the other provisions of that and other 
 kindred statutes.^ Thus an order for the allowance of a 
 plea, and thereupon for the dissolution of an injunction, 
 is not final or appealable.^ Nor an interlocutory decree 
 made on a motion to dissolve an injunction.^ !N'or a mere 
 decree for costs.^(6) ISTor does an appeal lie, where a prize 
 
 ' Lord V. Ostrander, 43 Barb. Harrell, il). 41 ; Powell v. Central 
 
 387; 15 B. Mon. 47; Dows v. Plank Road Co., 24 Ala. 441; Keel 
 
 Congdou, 28 N. Y. (1 Tifla.) 122; v. Bently, 15 111. 328; Shotwell 
 
 Roome v. Phillips, 27 N. Y. (13 v. Taliaferro, 2,"]i Miss. lOo; States. 
 
 Smith) 357; Walmcr «. Shulen- Smith, 42 Mis. 550; Pryor «. Smith, 
 
 bergcr, 23 Ind. 454 ; INIclcher v. 4 Bush, 379 ; OflFut's v. Bradford, 
 
 Frendeubnrg, 18 ib. 180 ; Martin- ib. 413; Inman v. Strattan. ib. 445; 
 
 dale V. Brown, ib. 284 ; McGregor Ilanna v. Putnam, 20 Ind. 170; 
 
 v. McGregor, 32 N. Y. (5 Tifla.) Ilazlehurst v. JMorris, 28 Md. 67; 
 
 479; House v.AVright, 22 Ind. 383; Smithson v. United States, 29 ib. 
 
 Ilarting v. The People, 26 N. Y. 162 ; Pumphney v. Brown, 3 W. 
 
 (12 Smith) 154 ; Dc Barry v. Lam- Va. 9; Block v. Barthc, 20 La. An. 
 
 bcrt, 10 Cal. 503; Griffin v. Cran- 344; State v. Bonchon, ib. 394; 
 
 stou, 5Bosw. 658; Keirle?).Shriver, State ». Sixth, ib. 574; Wells v. 
 
 11 Gill & Johns. 405; The State N(!W Orleans, ib. 300; Stoppen- 
 
 V. Pepper, 7 Mis. 348 ; Gray v. bach v. Tohriart, 21 Wis. 385 ; 
 
 Grundy, 2 J. J. Marsh. 134 ; Ilulett v. Matteson, 12 Min. 349 ; 
 
 Ilorseley v. Hopkins, ib. 54 ; Read Cummings o. State, 4 Kans. 225. 
 
 11. Roble, 4 Yerg. 66; Berryhill ®. 2 Chouteau v. Rice, 1 Min. 24. 
 
 McKee, 3 Yerg. 157 ; Joslyn v. » Ibid. 
 
 Sappington, 1 Overt. 222; Hoyt «. •» Ewing v. Kinnard, 2 Tex. 163. 
 
 Brooks, 10 Conn. 188 ; Latham v. ^ Higbee v. Bowers, 9 Mis. 354. 
 Bowen, 3 Hawks, 418; Medford v. 
 
 {a) It is sometimes held that error is the only mode of revising an 
 interlocutory judgment. Robiuson v. Baillead, 2 Tex. 160. 
 
 (t) No appeal lies, under St. 13 and 14 Vict., c. 61, § 14, from the de- 
 cision of a county court on an interlocutory matter, such as the taxation 
 of costs under St. 19 and 20 Vict., c. 108, I 34. An appeal on such a 
 matter having been brought, the court refused to hear the point argued, 
 on the ground that they had no jurisdiction, but entertained the appeal 
 so far as to dismiss it with costs. Carr v. Stringer, 1 Ell. B. «t E. 123.
 
 714 THE LAW OF NEW TRIALS. [CII. XXI. 
 
 vessel had been condemned, and the captors moved for 
 jud<!;ment on a stipnlation bond, upon which the money 
 had been paid out of the registry of the court, and the 
 motion was overruled.^ iSTor from an order appointing a 
 receiver, but making no disposition of the funds, except 
 directing the payment of certain accrued costs.^ Nor 
 from an order ajipointing a receiver of mortgaged pro- 
 perty, and requiring him to rent out a portion of it for a 
 limited term.^ IS'or a judgment for the sale of mortgaged 
 lands for the benefit of the mortgagees, and that a deduc- 
 tion for rents and profits, received by them while in pos- 
 session, shall be made according to the report of a referee 
 appointed to ascertain the amount thereof.'* Kor an order 
 for an administrator's sale.^ Or setting aside a default 
 and judgment.^ So where a judgment is entered against 
 the defendant, and afterwards the court on motion arrests 
 the judgment, but no final judgment is entered after the 
 motion in arrest is sustained ; the case is still pending in 
 the court below, and an appeal, being premature, will be 
 dismisscd.^(a) So an order that, upon the coming in of a 
 report, a peremptory mandamus issue, is not a final order, 
 
 1 Moore V. Schooner, &c., 11 ^ Tompkins v. Hyatt, 19 N. Y. 
 Tex. 655. (5 Smith) 534. 
 
 2 Eaton, &c. v. Varnum, 10 Ohio ^ Love v. Mikals, 13 lud. 439. 
 (N. S.), G22. ^ Spauldiug v. Thompson, ib. 
 
 3 ]\Iaysville, &c. v. Punnett, 15 477. 
 
 B. Mou. 47. ' Garesche v. Emerson, 31 Mis. 
 
 258. 
 
 A decree in equity, disposing of all the matters in controversy, but re- 
 serving the question of costs, is interlocutory and not final. Williams v. 
 Field, 2 Wis. 421. 
 
 (a) In New York, the special term on motion amended a judgment, 
 and at general term the order allowing the amendment was reversed. 
 An appeal therefrom was dismissed, because the order of I'eversal was^ 
 neither a final judgment, nor an order which in effect determined the 
 action and prevented a final and appealable judgment, its effect being 
 to leave in force the original judgment, which was appealable unless the 
 right had been lost by delay. N. Y., &c. v. North, &c., 23 N. Y. (9 
 Smith) 357.
 
 en. XXI.] APPEAL. 715 
 
 from which an appeal will lie' Xor a judgment not to 
 transfer a suit to tlic United States court.^ iSTor a decree 
 in equity for the distribution of funds not collected, but 
 secured by judgments, and appointing a master to state 
 an account.^ Nor a decretal order sustaining a general 
 demurrer to a bill in equity, but not in terms dismissing 
 the bill, or, if dismissing it, not stating whether without 
 prejudice or not; also saying nothing about costs.^ ISTor 
 an order of chancery opening for review a decree for ali- 
 mony, in a divorce case, and referring it to a commis- 
 sioner to take testimony and report.^ Nor an order grant- 
 ing a writ of alternative mandamus.\a) Nor a judgment 
 quashing a writ of scire facias upon a forfeited recogni- 
 zance.' Nor a judgment in a partition suit, that parti- 
 tion be made.^ 
 
 § 39. And an appeal does not lie from a judgment of 
 nonsuit for not complying with an interlocutory order.^ 
 
 § 40. It is held that a criminal case cannot be brought 
 into the appellate court, by agreement, before a final judg- 
 ment below.'*' 
 
 § 41. It is, however, sometimes held, that an appeal lies 
 from an interlocutory decree." And numerous cases illus- 
 
 • People V. Haws, 34 Barb. GO. ^ The State v. Vauglian, 14 Ark. 
 
 2 Hopper V. Kalkmau, 17 Cal. 424. 
 
 517. s McMurtry v. Glasseock, 30 
 
 3 Ogilvie V. Knox, &c., 3 Black, Mis. 433. 
 
 539. 9 Hoyt v. Brooks, 10 Conn. 188. 
 
 * Blackwood v. Van Vlcet, 10 '« Butter v. State, 1 Clarke (lo- 
 Mich. 398. wa), 99. 
 
 5 Perkins v. Perkins, 10 Mich. " Cover v. Hall, 3 Har. & -T. 43; 
 435. Smith v. Lawrence, 3 Wis. 779. 
 
 6 The State v. Anson, Busb. 303. 
 
 (a) In New York, an appeal lies from an order issuing a mandamus, 
 under the statute of 1854, authorizing an appeal "from any judgment, 
 order, or final determination, made at any special term of the court in 
 any special proceeding therein." People v. Schoonmaker, 19 Barb. G57.
 
 71G THE LAW OF NEW TRIALS. [CH. XXI. 
 
 trato the right of ai)pGal from a judgment wliich is sub- 
 stantially finah^(a) As in the case of the appointment of 
 a receiver and a final account.^ So in case of a conditional 
 iujunction.3 Or an order setting aside a sale of mortgaged 
 premises, made under a decree of foreclosure; which is 
 final as to the purchaser after confirmation of the com- 
 missioner's report.* Or an order made under § 4094 of 
 (Mich.) Comp. L., punishing a party for a contempt for 
 violating an injunction.^ Or the finding a certificate re- 
 quired by the " landlord and tenant" act of Illinois." Or 
 an order setting aside an execution sale, and ordering a 
 new execution; upon the ground that it is final, affects a 
 substantial right, and is made on a summary application 
 after judgment. (Minnesota Rev. St., c. 80, § 11, subd. 
 3.)^ Or a judgment overruling a motion to quash an 
 execution.^ So, in Minnesota, a decision on a motion to 
 strike out pleadings, or parts thereof, in an equitable ac- 
 tion, is appealable.'' And an appeal lies from a judgment 
 on an issue found between the plaintiff" in attachment and 
 an interpleader, before the final determination of the cause 
 between the plaintiff' and defendant.^'' So the court has 
 jurisdiction to determine who has the right to the control 
 of a suit, brought in the name of one for the benefit of 
 another; and its decision is appealable." So where a jus- 
 tice, on hearing the evidence, nonsuited the plaintiff'; it 
 was held a judgment on the merits, from which the plain- 
 tiff" might appeal.'- And if the court arrest judgment, or 
 
 ' Adams v. Woods, 18 Cal. 30 ; ' Tillman v. Jackson, 1 Min. 
 
 Graft" V. Merchants, &c., 18 Md. 18;{. 
 364. 8 Scott V. Allen, 1 Tex. 508. 
 
 2 Neall V. Hill, 10 Cal. 145. » Woir«. Bannin-,s 3 Min. 203. 
 
 3 Ely y. Frisbie, 17 Cal. 250. 'o Weisenecker y. Kepler, 7 Mis. 
 
 4 Bnllard v. Green, 9 ]\Iich. 222. 52. 
 
 5 People y. Simonson, ib. 492. " May v. Hardin, 13 B. ]\Ion. 344. 
 
 6 Wade V. Halligan, 16 111. 507. '^ Smith v. Crane, 12 Verm. 487. 
 
 (rt) In Louisiana, an exception is made to the general rule, in case of 
 zrrcparahle injury. White v. Cazenave, 14 La. An. 57 ; Horton v. 
 Thornhill,_ib. 142 ; Young v. Chamberlain, ib. 687.
 
 CII. XXI.] APPEAL. 717 
 
 send the parties out of court without giving any juclgnient, 
 in cases where an ai»[)cal Ym^ from a final decision; an 
 appeal may be sustained.^ 
 
 § 42. And, although an appeal cannot be taken until 
 final judgment: yet where, as in some States, appeal is in 
 the nature of application for a new trial, and involves or 
 turns upon questions of law ; it is held the right and duty 
 of api^ellate courts to revise interlocutory orders and de- 
 crees aft'ecting rights, equally with final decrees. The 
 enunciation by the judge of the law upon the facts is the 
 judgment, and, whether partial or final, it is the function 
 of appellate courts to determine whether it is correct or 
 not.^ Thus an appeal from the decree for a rule in a par- 
 tition suit brings up the order ratifying the return of the 
 commissioners. (Md. St. 1830, c. lS5.f So after final 
 judgment upon issues of fact, against one whose demurrer 
 has been overruled, be may appeal from the ruling on the 
 demurrer.^ And, after reversal of an interlocutory order 
 in equity upon a demurrer, the case will be remanded, and 
 not finally disposed of in the appellate court. ^ 
 
 § 43. A judgment of a justice, after reciting the names 
 of the parties, the amount claimed, the cause of action, 
 and that the cause liad come before him by change of 
 venue, recited, that the parties met by counsel before him, 
 that the testimony was heard, and that " it is believed 
 that the plaintifi" is entitled to seventy-five dollars debt, 
 and costs taxed as follows." Held, that this appeared to 
 be a final adjudication, exhibiting the parties, the matter 
 
 ' Lamplicar v. Lamprey, 4 Mass. ' Plielps r. Stewart, 17 'Md. 231; 
 
 108; Tappan v. Brueu, o Jlass. 1!)5; Joslyn v. Sappiiigtou, 1 Overt. 23'2. 
 
 Bemis v. Faxon, 3 ib. 141; Buck- ■* Schindel y. Suman, 111 ]\Iil. lilO; 
 
 man v. Buckman, 4 N. H. 31!); IMaynard ?'. Ho^kills, S ]Mich. 81. 
 
 Page V. Hurd, 1 Aik. lOo. 5'i>i(.rsou v. David, 1 Clarke 
 
 « State V. ^'orthcru, 6cc., 18 Md. (Iowa), 23. 
 193.
 
 718 THE LAW OF NEW TRIALS. [CH. XXI. 
 
 in dispute, and the result, and. therefore ii good final judg- 
 ment to be appealed from.^ 
 
 § 44. Questions sometimes arise, as to what constitutes 
 the final judgment or decree. 
 
 § 45. Thus where, in the United States Court, upon a 
 libel against ship-owners, a decree passed against them 
 for over $2,000, with leave to set oft' a sum due them for 
 freight, which would reduce the amount decreed against 
 them to less than §2,000 ; and the party elected to make 
 the set-oft', saving his right to appeal: held, the reduced 
 decree was the final decree, and the party could not save 
 a right of appeal where it was not allowed by act of Con- 
 gress.^ And it is held, that the practice of making a de- 
 cree final in form, by anticipation of a commissioner's re- 
 port on a reference to him, is objectionable, and the decree 
 will not be considered final for purposes of appeal, until 
 the commissioner's report is actually made and allowed.^ 
 
 § 46. As in case of new trial, an appeal cannot be taken 
 from rulings or decisions upon matters which are merely 
 discretionary.* Thus from a refusal to grant a continuance, 
 on account of the absence of a witness, although the 
 court may have mistaken the rights of parties as to com- 
 pelling attendance.* Or leave to amend pleadings.*' Or 
 refusing leave to file a supplemental answer in equity.^ 
 Or a ruling upon the question, whether counsel may open 
 
 ' Stowers V. Milledge, 1 Clarke Wright, 5G8 ; 85 Ala. 226 ; Sayre 
 
 (Iowa), 150. «. i)unvood, ib. 247; Gandy v. 
 
 2 Sampson ■o. Welsh, 24 How. Humphries, ib. 617; People v. 
 207. The New York, &c., 29 N. Y. 
 
 3 Enos V. Sutherland, 9 Mich. (2 Tiffa.) 418; Dows ». Congdon, 
 148. 28 N. Y. (1 Tiffa.) 122 ; Brady ». 
 
 « Ellicott V. Eustace, 6 Md. 506 ; Dilley, 27 Md. 570 ; Henry v. Kauf- 
 
 The State v. Bogue, 9 Ired. 300 ; man, 24 ib. 1. 
 State V. Lamon, 3 Hawks, 175; ^ Locket «. Child, 11 Ala. 640. 
 Sneed v. Lee, 3 Dev. 364; Can- '^ New York, &c. «. North, &c., 
 
 non ». Becmer, ib. 36:5 ; liallcngcr 23 N. Y. (9 Smith) 357 ; 6 Md. 
 
 V. Barnes, ib. 400 ; Pratt v. Kit- 506. 
 tcrcll, 4 ib. 168 ; Price v. Orauge, ^ Calvert v. Carter, 18 Md. 73.
 
 CII. XXI.] APPEAL. 719 
 
 and close to tljo jury, unless decided abuse be shown.' Or 
 an order setting aside a foreclosure sale, and directing a 
 resale.- Or an order vacating a decree pro coiifcsso^ and 
 allowing the defendant to answer.^ Or the refusing a new 
 trial, unless a remittitur is entered as to a portion of the 
 verdict.* So decisions as to a change of venue in a crimi- 
 nal case are not appealable.^ So where the United States 
 Circuit Court certified, that they had divided in opinion 
 upon a question, whether a party luid a right to proceed 
 summarily on motion to vacate a decree in that court ; 
 held, the question was one of practice, in regard to which 
 the court had discretionary power, which could not be 
 revised upon appeal.^ So the question of granting a 
 rehearing, after an amendment to a bill in equity, is 
 addressed to the discretion of the court, from whose 
 decision no appeal lies.'^ So the court has power and dis- 
 cretion to take up a case out of the regular order ; if the 
 party objects, he should move for a continuance, and except 
 to the ruling of the court thereon ; he cannot except to 
 the action of the court in taking up the case.^ So an 
 order of reference, in a case in which the court has autho- 
 rity to refer at its discretion, is not appealable.^ So a 
 motion to open a default is addressed to the discretion of 
 the court, and from its order no appeal lies.'" 'Soy from 
 an order quashing an order of attachment."(«) IN'or an 
 
 1 Smith V. Coopers, 9 Iowa, 376. ^ French -«. Howard, 14IucI.455. 
 
 2 Buffalo, &c. V. Newton, 23 N. » Ubsdell v. Root, 1 Hilt. 173 ; 
 Y. (0 Smith) IGO. Kennedy v. Shilton, ib. 546. 
 
 3 Perrin v. Oliver, 1 Min. 202. '" Muldenor v. McDonough, 2 
 ^ Baltimore i;. Reynolds, 18 Md. Hilt. 46; Churchill -y. Mallison, ib. 
 
 270. 70. 
 
 5 SlcCorklc V. State, 14 Ind. 39. " Humphrey v. Hezlep, 1 Min. 
 
 6 Wiggins V. Gray, 24 How. 303. 239. 
 
 7 Hoyt V. Smith, 28 Conn. 466. 
 
 (a) A party not entitled to a new trial, as matter of right, moved for 
 one, which was granted by the court in its discretion, upon terms. He 
 appealed from the order granting it ou terms, asking its reversal on 
 account of the terms. Held, being a matter of discretion, it was not 
 reviewable on appeal. Burger v. White, 2 Bosw. 92.
 
 720 THE LAW OF NEW TRIALS. [CH. XXI. 
 
 order on a motion for ca new trial.^ Or on an application 
 to open a sale under a judgment, on the ground of mis- 
 aj^prchension as to the time of sale; or other proceedings, 
 not affecting the regularity of the proceedings.^ 
 
 § 47. It is sometimes held, however, that orders made 
 in the discretion of the court may be appealed from.^ 
 Tlius the (qualified rule is laid down, that the court above 
 will not review decisions on matters of practice which 
 depend chiefly on discretion, except in very gross cases.* 
 So that, if the refusal of a justice to allow an amendment 
 of pleadings is in any case ground of appeal, it can only 
 be so wdien injustice will result from refusal of the appli- 
 cation.^ And, in low^a, under the code, the refusal to 
 allow an amendment is appealable.^ So the setting aside 
 of a default.^ And an appeal was allowed, where the 
 opinion of the judge showed that the order asked for was 
 refused, not on grounds which were within his discretion, 
 but because he thought the merits of the case against the 
 mover.^ So where a superior court, having an absolute 
 discretion to pronounce on a matter decided in the county 
 court, gave a judgment, not in the exercise of such dis- 
 cretion, but in obedience to a supposed but mistaken prin- 
 ciple of law.** 
 
 § 48. The principle of discretion lies in part at the 
 foundation of the rule already considered (§ 32), that the 
 exercise of a ministerial power reposed in a court cannot 
 be revised by a court of appeals ; but such court can take 
 cognizance only of judicial acts. As in case of acts 
 which do not violate any right defined and regulated 
 
 ' Dufolt ®. Gorman, 1 Min. 301. ^ Harvey v. Spanlding, 7 Clarke, 
 
 2 Kiugslaud v. Bartlett, 28 Barb. 423. 
 
 480. 7 Harrison v. Kramer, lb. .143. 
 
 * Farmers', etc. v. Griffith, 2 ^ Artisans', etc. v. Treadwell, 34 
 
 Wis. 443. Barb. 553. 
 
 1 Oldham v. Stakcr, 22 Tex. 200. ^ Powell v. Jopliug, 2 Jones, 400. 
 
 5 Tattersall v. Haas, 1 Hilt. 5G.
 
 Cir. XXI.] APPEAL. 721 
 
 by hnv, or the exercise of powers confided to executive 
 officers.^ 
 
 § 49. The right of appeal ma}' l)e lost by negligence^' or 
 by imiver.^ 
 
 § 50. Thus, in case of appeal from a default, an appear- 
 ance of the party is a waiver of objections prior to the 
 default.-* So an appeal from a justice of the peace gives 
 the court jurisdiction, though the party was not served 
 with process.'' So the defendant in a suit before a justice 
 pleaded in abatement, and the justice rendered judgment 
 against him on the plea. He then moved for an appeal, 
 but the justice refused to allow it, and required him to 
 plead to the merits. He then pleaded the general issue, 
 on which judgment was rendered against him. He then 
 moved for an appeal from both judgments, and the justice 
 allowed both appeals. Held, the defendant, by pleading 
 to the merits, had waived his right to appeal from the 
 judgment upon the plea in abatement, and the case could 
 be heard in the Superior Court only upon a plea to the 
 merits. So although the justice had refused to allow the 
 appeal, and had required the defendant to plead to the 
 merits, as the justice had no right to refuse it, and could 
 have been compelled to grant it by a mandamus.^ 
 
 § 51. And the general rule is laid down, although per- 
 haps more particularly applicable to questions of revision 
 in matters of law, that appellate courts will not reverse, 
 for causes not mooted or objections not raised in the 
 
 ' Gorbam v. Luckctt, G B. :Mou. « Fee v. Big, &c., 13 Ohio St. 5G3. 
 
 140. 5 oiiio, &c. V. :M'Cutobin, 27 111. 
 
 ^ Whitmore v. Divilbis, 10 Iowa, J) ; :Mnrpby v. Williams, 1 Pike, 
 
 68. 37G ; Cbildrcs v. Mayor, etc., 3 
 
 ^ IlolbrookiJ. Coney, 25 111. 543; Snecd, 347. Sec Granger u. Buzick, 
 
 Champion y. The Plymouth, &c., 3 Iowa, 570. 
 
 42 Barb. 441. Sec Hay v. Jenkins, •* Prosser v. Chapman, 29 Conn. 
 
 28 3I(.l. 5G4; Pearson v. Lovejoy, 515. 
 53 Barb. 407. 
 
 46
 
 722 THE LAW OF NEW TRIALS. [CII, XXI. 
 
 court below. A party is not at liberty to rely upon one 
 set of objections before the court below, and then seek to 
 reverse tlieir judgment uiwn grounds which had not been 
 distinctly presented for their adjudication.^(a) Prelimi- 
 nary objections, not affecting the merits, must affirmatively 
 appear to have been taken below, or they will not be con- 
 sidered on appeal.^ And the irregularity of an appeal is 
 waived by an appearance in the appellate court,^ Where 
 there is a fatal objection to the right of appeal, the re- 
 spondent ought to apply to quash the appeal, and not to 
 wait till the hearing to urge such objection to its 
 competency.^ So on appeal from a justice of the peace, 
 if no objection to the irregularity of the appeal is taken 
 in the Circuit Court, the Supreme Court will presume it 
 to have been regularly taken. ^ So, on appeal from a 
 justice's court, the objection that the suit was not brought 
 in the ^iroper township cannot be taken in the appellate 
 court, unless before taken in the justice's court.'' So an 
 appeal from a justice of the peace prevents the party 
 appealing from objecting before the higher court, that the 
 justice issued the process and determined the case in a 
 place beyond his precinct.^ So an attachment returnable 
 Ijefore a justice of the peace cannot be quashed in the 
 appellate court, because the attachment was not executed 
 in the county in which it issued; the objection not having 
 been taken before the justice.^ So, in an action of eject- 
 
 • Vantilburgh v. Sliann, 4 Zabr. ^ Jlaxam v. Wood, 4 Blackf. 207. 
 
 740. 6 Allison v.Hedgcs, 5 Blackf. 546. 
 
 2 Merritt v. Thompson, 1 Ililt. ' Monroe v. Brady, 7 Ala. 59. 
 550. s Slaton v. Apperson, 15 Ala. 
 
 3 Pcarce v. Swan, 1 Scam. 2G6. 731. 
 1 Tronson «. Dent, 3G Eug. Law 
 
 and Eq. 41. 
 
 (a) More especially, where the parties have mutually stipulated that 
 no appeal shall be taken, and this agreement has been made a part of 
 the record by order of the lower court; the Court of Appeals will refuse 
 to pass upon questions thus waived. Towusend v. Masterson, kc, 15 
 N. Y. (1 Smith) 587.
 
 CH. XXI.] APPEAL. 723 
 
 ment, an appeal was entered by one of the lessors of the 
 plaintiff. At the trial, the counsel for the defendant, in 
 his concluding argument, moved to dismiss the appeal for 
 want of evidence of appeal. Held, such motion was made 
 too late, even if it could have been sustained at any time.^ 
 So, in Maryland, a bill in equity was filed by -a legatee 
 against an executor and the sureties upon his bond, and, 
 having been dismissed as to the sureties, the complainant 
 appealed. Held, no objection to the jurisdiction appearing 
 by the record to have been made in the court below, by 
 the act of 1841, c. 163, the appellate court was precluded 
 from considering that question.^ So, in a suit for freedom, 
 a special verdict found, that the defendant took the plain- 
 tiff into his possession in another county, but not that he 
 detained the plaintifl" as a slave in the county where the 
 suit was brought. These facts were, however, alleged in 
 the petition. On appeal, held, such detention was neces- 
 sary to give the court jurisdiction, but the objection could 
 not be first taken in an appellate court, but should have 
 been pleaded or raised by rule or motion before the jury 
 were sworn.^ 
 
 § 52. A similar rule is adopted in reference to the 
 evidence and course of the trial in the court below ; more 
 especially with regard to objections not affecting the 
 merits. Thus if a fact, which the plaintiff" probablj' could 
 have proved, as for example a conversion, was assumed 
 without objection at the trial, the defendant cannot after- 
 wards object that it was not proved.^ So, in Maryland, 
 where advantage is not taken in the court below of the 
 insufliciency of a notice to charge indorsers ; it cannot, by 
 the Act of 1830, c. 186, be done on appeal.^ So the filling 
 up of a blank indorsement is a mere matter of form, and 
 
 • Kinsey v. Sensboxigli's, &c., 3 Hunter o. Humphreys. 14 Giatt. 
 17 Geo. 540. 287. 
 
 2 Kuiglit V. Brawner, 14 Md. 1. * Lcc r. Schmiilt, 1 Hilt. 537. 
 
 5 ManuiDg v. Hays, G Md. 5.
 
 724 THE LAW OF NEW TRIALS. [CH. XXI. 
 
 its omission cannot bo taken advantage of on appeal, 
 unless the objection is raised in the court below.^ Nor 
 the defence of usury, in an action on a promissory note, 
 after a motion to dismiss the case had been overruled.^ 
 So where, by a policy of insurance, the amount in case of 
 loss was payable in ninety days; an objection that the 
 suit was brought before the ninety days expired, if not 
 taken at the trial, is not good on appeal.^ So, on a trial 
 in ejectment, the record of a judgment, in a scire facais to 
 foreclose a mortgage, ordering a sale of the premises, was 
 read in evidence without objection. The judgment did 
 not describe the premises. Held, the judgment, although 
 technically defective, could not be vitiated in a collateral 
 proceeding, and the objection could not be raised in the 
 appellate court for the first time.^ ISTor, where a decree 
 of partition is a necessary link in a chain of title, an 
 objection that the decree had not been recorded in the 
 county where the land lies.^ So if the good faith of an 
 assignment of wages is not questioned in the court below, 
 at the hearing of a trustee process by which the wages 
 are sought to \)Q held ; it cannot be questioned in the court 
 above, on appeal.'^ So the plaintiflf's title under a foreign 
 bankrupt law is a question not to be raised in the appellate 
 court for the first time.^ Nor the point, that it does not 
 appear that a corporation had power to make the contract 
 sued on.^ And, on appeal from a justice, a plaintiff is not 
 authorized to increase the amount of his demand; the 
 same cause of action must be tried anew, and a new action 
 is not to be substituted.^ So coverture cannot be insisted 
 on as a defence upon appeal, when it was neither set up in 
 
 ' Scaramon v. Adams, 11 111. '^ Boyclen v. Leonard, 2 Allen, 
 
 575. 407. 
 
 2 Bates «. Buckley, 5 Oilman, ' Mosselman v. Caen, 34 Barb. 
 389. ' CG. 
 
 3 Bumstcad v. Dividend, &c., 2 » Bank, &c. v. EUery, 34 Barb. 
 Kern. 81. 630. 
 
 ' Bellingall v. Duncan, 3 Gilm. ^ Burbage v. Squires, 3 Met. 
 477. (Ky.) 77. 
 
 5 Wynnz). Harman, 5 Gratt. 157.
 
 en. xxi.J APPEAL. 725 
 
 answer nor raised at tlic trial, the defendant having been 
 a feme sole wlicn the suit was brought.^ So A. sued B.'a 
 executors for services rendered B. Answer: 1. Not in- 
 debted. 2. Payment. 3. Limitations. In the Supreme 
 Court the further objection was made, that A. had not 
 duly filed his claim in the probate office. Held, as the 
 objection was not taken in the pleadings below, it came 
 too late.2 So where a vessel was condemned as unsea- 
 worthy during the voyage ; on appeal the court refused 
 to consider whether the underwriters were thereby dis- 
 charged, the question not having been raised below.^ 
 
 § 53. The same principle of waiver (as appears by some 
 of the citations in § 52) is often applied to the pleadings. 
 Thus an objection to the sufficiency of a complaint cannot 
 be first taken on appeal.^ So it is held, in Iowa, that 
 questions as to the sufficiency of an indictment do not 
 properly arise in the appellate court, unless there has been 
 a demurrer, or a motion to set aside the indictment, or in 
 arrest of judgment.'' So, on appeal from a justice of the 
 peace, the court is held to be restricted to the issue or 
 issues of law or fact framed below, and appearing upon 
 the record. And where, before the justice, the plaintift' 
 omits to reply to the demurrer or plea; he cannot, on 
 appeal, object to tlie form of the plea. So where a de- 
 fendant, in a suit before a justice, pleads his discharge 
 under the bankrupt act, and the plaintifl^ goes to trial 
 without replying; ho cannot, on appeal, prove a new 
 promise, subsequent to the discharge.^ So in an action 
 for taking and converting timber, where evidence was 
 given of the value of shingles made from the timber, and 
 
 • Castree v. Gaville, 4 E. D. * Pope v. Dinsmore, 29 Barb. 
 
 Smith, 425. 367. 
 
 2 Hardin t. Crist, 7 Ind. 107. 5 state p.Burgc, 7Clarlve (Lwa), 
 See Donohue v. Uenry, 4 E. D. 255. 
 
 Smith. 102. 6 Ross v. Ilamilton, 3 Barb. 009. 
 
 3 Insurance Co., &c. ■B.Mordecai, 
 22 How. 111.
 
 726 THE LAW OF NEW TRIALS. [CH. XXI. 
 
 the defendant did not object because of any defect in the 
 coniiilaint, and the plaintitf recovered full damages ; the 
 objection cannot be raised on appeal.^ So the want of 
 a declaration in a writ cannot be first taken advantage 
 of on appeal, after a trial on the merits in the inferior 
 court.- Nor a variance between the pleadings and the 
 evidence.^ ^ov that a declaration in trespass quare clausum 
 was not broad enough to cover the locus in quo.* So, on 
 appeal from a justice, if the parties voluntarily try an 
 action of tort, under pleadings applicable only to an action 
 ex contractu ; it is a waiver of all objections to the form of 
 the action, and also to any variance between the form of 
 proceeding before the justice and that on appeal.^ So 
 objections to the sufficiency of a. libel are too late, when 
 taken in the appellate court." And if no pleas are filed in 
 the inferior court, the appellate court will not permit such 
 pleas, and the only matter subject to review is the assess- 
 ment of damages.^ So an objection to a bill for foreclosure, 
 that it does not allege title in the mortgagor when he 
 executed the mortgage, must be taken in the court below.^ 
 So where a declaration in assumpsit contained two counts, 
 a^id judgment was rendered on default, and entire damages 
 assessed by a jury; held, the objection could not be first 
 made in the Supreme Court, that one of the counts was 
 bad.^ And where, on demurrer, judgment is given against 
 the plaintill", and he asks and obtains leave to amend, and 
 does amend, he abandons his right to appeal.'° So a judg- 
 ment declared, that the defendant held a lease for the 
 plaintiff's use, and required him to assign it, on being 
 indemnified against its personal covenants, the plaintiff 
 
 ' Rice V. Ilollenbeck, 19 Barb. ^ Witherspoon v. Wallis, 2 Ala. 
 
 6G4 GC~ ; IMonroe «. Bnuly, 7 ib. 59. 
 
 2 Lane v. Roberts, 3 Gray, 514. i Dunn v. Littlelicia, 2 R. I. 97. 
 
 '' Barnes v. Pcriue, 2 Keru. 18; ^ Patlison v. Shaw, Ind. 877. 
 20 Penn. 432. s Lackey «. Coffin, 7 Ind. 1G9. 
 
 ■« Chandler v. Walker, 1 Fost. '' Stoddart v. Newman, 7 Har. & 
 
 282. J. 251. 
 
 5 Steckel -y.Weber, 20 Penn. 432.
 
 en. XXI.] APPEAL. 727 
 
 refunding the rent and taxes already paid. The defendant 
 enforced the provisions in his favor, and then appealed 
 from the judgment. Held, the right of appeal was waived 
 by enforcing a part of the judgment, all the provisions 
 being connected and dependent.' So the objection, that a 
 foreign executor has not filed letters in the State, &c., 
 before bringing suit under the statute, must be made in the 
 court below.^ So in a complaint for an account, notwith- 
 standing a previous settlement, on account of fraudulent 
 overcharges, the complaint alleged the fraudulent over- 
 charges generally, and specified some of them. It was 
 not professed in the complaint that all were specified, and 
 some were proved at the trial that were not specified, but 
 without objection on that ground. Held, the objection 
 could not be taken on appeal. ^ So it is too late to object 
 for the first time on appeal, that the case was tried by the 
 court without a jury.^ 
 
 § 54. Upon a similar principle, an agreement to appeal 
 gives the appellate court jurisdiction, though the case 
 should properly have been brought up on error.^ So, where 
 parties agree in open court that judgment shall be entered, 
 and that one of them may appeal without security, and 
 such an appeal is taken, and various acts are done by 
 both parties treating the case as appealed; one of them 
 cannot deny that an appeal has been properly taken.^ So 
 a motion to quash an appeal from a justice of the peace 
 will not be entertained, after the case has been referred to 
 arbitrators, a trial had upon the merits, and an award 
 filed.^ So when an admission of record is made by counsel 
 in the court below, for the purpose of obviating the 
 
 < Bennett «. Van Syckel, 18 N. Y. s Ry^n v. Anderson, 24 111. G53. 
 (4 Smith) 481. « Lentilhon v: New York, 3 
 
 2 Wayland p. Porterfiekl, 1 Met. Sandf. 731. 
 
 (Ky.) 638. ' Greenawalt v. Shannon, 8 
 
 3 Sheldon v. Wood, 3 Bosw. 2G7. Penn. 465. 
 
 < Smith P. Brannan, 13 Cal. 107; 
 Burgess v. Matlock, 12 lud. S.")?.
 
 728 THE LAW OF NEW TRIALS. [CIL XXI. 
 
 necessity of }»roof ; it will be presumed that lie Lad autho- 
 rity to make it, aud the admission cannot be withdrawn 
 in the appellate court. ^ So where counsel in the court 
 Ijelow admits a letter to be genuine, the handwriting need 
 not be proved on appeal. ^ So a party, who moves for a 
 nonsuit on a specific ground, cannot on appeal assume a 
 new one.^ And, on the other hand, if a motion for a 
 nonsuit is not made at the trial, the court above will not 
 consider whether the plaintitf should have been nonsuited 
 or not.^ So, that nominal defendants were not formally 
 detaulted, and that issue was not joined, cannot be taken 
 as an objection for the first time in the Supreme Court.' 
 
 § 55. It is held, that, as the appellate court does not 
 generally inquire into matters not submitted to the court 
 below, so it does not consider matter occurring since the 
 decision.^ But the distinction is taken, that the defend- 
 ant, appellant, may plead the same plea as before, or any 
 subsequent matter of defence, which, by the rules of the 
 common law, lie would have had a right to |:)lead in the 
 court below; but not any matter, which had been pleaded 
 and determined in the court below, j^r/or to that so pleaded 
 and determined.^ 
 
 § 56. There are cases, however, where the doctrine of 
 waiver is less rigidly applied. Thus an appearance to a 
 void appeal, for the purpose merely of moving to set it 
 aside, does not cure the defect.^ So it is sometimes held, 
 that a defence may be made on the trial of an appeal 
 from a justice of the peace, which was not made before 
 the justice.^ As in case of a discharge in bankruptcy. '° 
 
 ' Montgomery v. Givban, 24 ^ Denny v. Moore, 13 Ind. 418. 
 
 Ala. 568. 6 Martiii's, &c., 23 Penn. 488. 
 
 2 Ovcrholtzer v. McMicliael, 10 ^ Wickwire v. The State, 19 
 Penn. 139. Conn. 477. 
 
 3 IMatecr v. Brown, 1 Cal. 231. » Seymour v. Judd, 2 Comst. 464. 
 ' Rockingham, &c. v. Claggctt, s Hall v. Mills, 11 Miss. 215. 
 
 9 Post. 292. 10 McCary v. Mabc, 7 Ala. 356.
 
 CII. XXI.] APPEAL. 729 
 
 So the defendant may prove his account l)j his own oath, 
 as an offset, though he did not make or otter to make 
 such defence before the justice.' And, in a suit before a 
 justice for the value of rails converted, the defendant may 
 show, on appeal, that the land on which the rails were 
 cut belonged to himself.^ So, that the petition does not 
 show a right to recover is an objection which may be 
 taken at all stages, under (Kentucky) Code, § 123, whether 
 relied upon below or not.^ And a motion to dismiss a 
 case, for want of jurisdiction in the justice before whom 
 it was commenced and tried, may be first made in the 
 court above, on appeal."' So, on the other hand, when the 
 appellate court has no jurisdiction, a joinder in error is 
 not a waiver.^ So it is held that an appeal lies from a 
 decision on an agreed statement of facts, in a criminal as 
 well as in a civil proceeding.'' 
 
 § 57. Somewhat upon the principle of waiver, there is 
 held to be no right of appeal in case of trial by the court.^ 
 But an appeal lies from judgment by confession.^ Or by 
 consent.^ 
 
 § 58. Upon the trial of an appeal, it may be shown that 
 a written instrument, wliich was the basis of the action, 
 was offered in evidence in the court below, and that the 
 justice neglected to file it, and then it may be introduced.'" 
 
 § 59. It is a rule analogous to that of waiver, or perhaps 
 an extended application of the same rule ; that an appeal 
 must generally be founded upon matter of substance, not 
 of mere /or?/i; and is treated rather liberally than techni- 
 
 1 Cliirk V. Howard, 10 Ycrg. ^ Keller v. State, 13 Md. ?.23. 
 250. ^ Bass v. Haverhill, &c. , 10 Gray, 
 
 2 Wilson V. Petty, 21 Mis. 417. 400. 
 
 3 Walters?). CUinn, 1 Met. (Ky.) ^ Troxcl v. Clarke, 9 Iowa, 201. 
 499. 9 Wassen v. Iletlncr, 1:J Ohio 
 
 * Elder v. Dwight, &c., 4 Gray, St. 573. 
 201. '" Eggleston v. Colis, 10 Iowa, 
 
 5 Johnson v. Fort, 30 Ala. 78. 554.
 
 730 THE LAW OF NEW TRIALS. [CII. XXI. 
 
 cally.^ It is held that no appeal will lie from an order of 
 court which is merely irregular.^ 
 
 § GO. Wliere the law gives an appeal, the courts are 
 authorized to supply deficiencies in the provisions pre- 
 scribing the practice.' Thus, as has been seen, a variance 
 which is mere matter of form, and has nothing to do with 
 the substance of the action, in causes before justices, is 
 not a fatal variance. Hence, under a quantum meruit^ a 
 plaintiff was allowed to recover on a special contract.^ So 
 a defect in the summons, in a case before a justice of the 
 peace, cannot be taken advantage of in an appeal.^ So 
 error in the sentence of a justice of the peace is no ground 
 for dismissing the complaint in the appellate court." So, 
 on the trial of an appeal from a justice, in a criminal 
 case, if the proof corresponds with the comi:)laint, the 
 jury may presume the offence to be the same as that 
 found before the justice, in the absence of evidence to the 
 contrary.^ So in cases of conflict of testimony, where both 
 courts below have concurred in the decision of questions 
 of fact, the appellate court will not reverse that decision, 
 if the testimony disclosed by the record is in law suffi- 
 cient to support it.8 So, on bill and answer referred to a 
 master in chancery, the parties amicably arranged their 
 differences, and discontinued the proceedings in equity, 
 before the filing of the report, which was returned with 
 the testimony, but without an account. The fees of the 
 master being excepted to, the court confirmed the report, 
 and ordered them to be paid on or before a given time by 
 the complainant, who appealed from that decree. Held, 
 the court below were the best judges of the amount due, 
 and, where it appeared that the master had much labor 
 
 ' Jol) ». Harlan, 13 Ohio, 48.-) ; » Warne «. Baker, 34 111. 351. 
 
 Brownell v. Winnie, 39 N. Y. (3 * MoXz v. Eddy, 31 Mis. 13. 
 
 Tiffa.) 400; Williston ■». Fisher, ^ Hill v. White, 1 Ala. 570. 
 
 88 111. 43. ^ Com. v. Tinkham, 14 Gray, 13. 
 
 2 Hungcrford v. Gushing, 3 AVis. ^ Com. v. Burke, ib. 81. 
 
 416, 8 Ship Marcellus, 1 Black, 414.
 
 CII. XXI.] APPEAL. 731 
 
 ill investigating the case, the order of the court below 
 would not be interfered with, even if it were a final 
 decree.^ 
 
 § 61. Questions oi jurisdiction often arise, whether re- 
 lating to that of the court above or of the court below.(a) 
 AYant of jurisdiction in the District Court of the United 
 States, where the cause was commenced, is a proper matter 
 for an appeal, and therefore to be argued when the case is 
 reached, and not upon a motion to dismiss.^ It is for the 
 appellant to show afiirmativelj that the court above has 
 appellate jurisdiction. "Where the declaration contains 
 several counts, and there is nothing upon their face which 
 shows that the sum in demand exceeds ten dollars, but 
 each count concludes with an ad damnum of ten dollars, 
 and the counts are of the same nature, and describe appa- 
 rently the same contract; the court (in Vermont) should 
 not intend that they are for different causes of action, but 
 rather the contrary, and should, in the absence of any 
 proof except what is shown by the declaration, dismiss 
 the suit.^ 
 
 § 62. It is sometimes held, that, where a limited tribunal 
 exercises jurisdiction which does not belong to it, its deci- 
 sion amounts to nothing, and requires no appeal.'* That 
 the jurisdiction of the upper court depends upon the pre- 
 vious jurisdiction of the lower court ; and, if that fail, 
 the appeal will be quashed.^ 
 
 ' Tottcn's, &c., 40 Penn. 885. 110; Baltimore v. Porter, 18 :Md. 
 
 2 Nelson v. Leland, 32 How. 48. 284. 
 
 3 Persons v. Centre, &c., 20 Vt. * Bnrl)age v. Squires, 3 Met. 
 170. (Ky.) 77. 
 
 » Osgood V. Thurston, 23 Pick. 
 
 («) An appeal is said to be proper in the case of jurisdictional 
 defects, as in those of mere irregulariUj. Fitch v. Devlin, 15 Barb. 47 ; 
 Poyscr V. IMnrray. 6 Port. (Ind.), 35 ; Blecker v. St. Louis, &c., 30 Mis. 
 Ill ; lladlcy V. Duulap, 10 Ohio N. S. 316.
 
 732 THE LAW OF NEW TRIALS. [CIL XXI. 
 
 § 63. Whatever may be the technical doctrine upon this 
 point, tlie appellate court should dismiss the suit, if the 
 court below had not jurisdiction.^ The former cannot 
 obtain jurisdiction by the appeal, notwithstanding a 
 statement of facts has been agreed to.^ Nor although it 
 might have had original jurisdiction.^ The superior court 
 will not try, on appeal from a justice of the peace, a case 
 not within his jurisdiction, though within theirs. The 
 transcript must show jurisdiction." And a motion to dis- 
 miss may be made at a term subsequent to the entry.'^ 
 
 § 64. But evidence must be heard, before it can be de- 
 termined that a justice of the peace had not jurisdiction.^ 
 And the court above has jurisdiction on appeal from a 
 justice of the peace, where the justice had jurisdiction, 
 however defective the service may have been. And, by 
 taking an appeal, the appellant gives jurisdiction, even 
 where there was not service.^ So, by pleading to the 
 merits, it is held that the appellant waives exceptions to 
 the jursdiction of the court.^ 
 
 § 65. Where the justice had no jurisdiction, it is held 
 that the court may give judgment against the original 
 plaintifl' for costs.^ 
 
 § 66. The jurisdiction of the justice is to be determined 
 in the appellate court, not by the amount of the recovery, 
 but by the amount legally due or actually claimed at the 
 time judgment was rendered.^" 
 
 § 67. Where an appeal from the judgment of the Court 
 of Common Pleas, on a plea in abatement, was entered in 
 
 > Sec Ilough V. Leonard, 13 111. ° Swiiigley v. Uayncs, 22 111. 
 
 456. 214. 
 
 2 Hatch V. Allen, 27 Maine, 85. ^ Ibid. 
 
 3 Aulanier v. Governor, 1 Tex. ^ g^aw v. Mosen, 8 ]\rich. 71. 
 653. 9 McKitriek v. Peter, 5 Dana, 
 
 * Barr v. Logan, 5 ITarring. 53. 587 ; Bassett v. Oldham, 7 lb. 168. 
 5 Ashuclot, &c. V. Pearson, 14 '" Crabtrec v. Cliatt, 23 Ala. 181. 
 Gray, 531.
 
 CII. XXL] APPEAL. too 
 
 theSui)rcnic Court, and dir^iiiissed tor want of jurisdiction; 
 held, the Court of Common Pleas might order the case to 
 be brought forward upon its docket, on motion of the 
 appellee, and might proceed to the final disposition of the 
 action.^ 
 
 § 68. An amendment cannot be allowed, if the jurisdic- 
 tion of either court would be affected thereby.- 
 
 § G9. Payment of fine and costs docs not prevent an 
 appeal on the ground that the court had no jurisdiction.^ 
 
 § 70. Where, on appeal, the judgment is for an amount 
 exceeding the jurisdiction of the justice, it must be re- 
 versed, unless the plaintiff will remit the excess, and pay 
 the costs of appeal.^ 
 
 § 71. With regard to the effect of an appeal,(r/) it is the 
 general rule, that a judgment, from which an appeal has 
 been granted, is no longer in forcc.^ An appeal, properly 
 perfected by bond, &c., suspends the judgment and all 
 proceedings to enforce it.\b) Thus an action of debt 
 
 ' Browning t!. Bancroft, 8 Met. (rT. S.), G17; Suggs v. Suggs, 1 
 
 278. Overt. 2 ; Stewfirt v. Stringer, 41 
 
 2 Osgood i). Green, 10 Fost. 210. Mis. 400; Davis v. The Seneca, 
 
 3 State w.Rollet, 6 Clarice (Iowa), Gilpin, "A\ Stone v. Spillman, 16 
 535 Tex. 4o2 ; Kinbrougli v. Mitchell, 
 
 * Dnnbar v. Bittle, 7 Wis. 14:5. 1 Head, oS!) ; Gale v. Butler, 35 
 
 5 Marshall v. Lester, 2 Murph. Term. 44!) ; Tarbox v. Fisher, 50 
 
 227. Maine, 2B0 ; Hunter v. Cole, 49 
 
 s Bassett v. Daniels, 10 Ohio Maine, 55G. 
 
 (a) See Graham v. Merrill, 5 Cold. 622 ; Freeman v. Henderson, ib. 
 G47. 
 
 (&) And in some cases this condition is dispensed with. (Sec p. 590.) 
 Thus the defendant, in a suit for the possession of a factory, appealed 
 from an order appointing a receiver, and filed his appeal bond. The 
 court below refused to accept a bond to stay proceedings, under the 
 order appealed from, under the (Wisconsin) Act of 1859, and directed 
 the receiver to proceed. Held, iu the absence of any special law re-
 
 734 THE LAW OF NEW TRIALS. [CH. XXI. 
 
 cannot be maintained upon it.^ ISTor can it be pleaded as 
 r-es judicata.^ So an appeal from an order dissolving an 
 injunction suspends the order, and continues the in- 
 junction, and the chancellor cannot allow the party to 
 disregard it.^ So, while an appeal is pending, every pro- 
 ceeding under the original judgment is void.^ And the 
 court will not, on certiorari, affirm or reverse the judg- 
 ment.^ So an appeal, though after transcript iiled and 
 execution issued, supersedes the execution.^ " A case by 
 appeal comes to the higher court as an original case, 
 unaffected by the pleadings below, except as to the pre- 
 liminary pleas that may have been waived."^ And the 
 lower court has no longer jurisdiction over the case, so 
 that it can amefid its record.^ Upon the same ground, no 
 objection can be made to the judgment for any cause.^ 
 So, where commissioners continue in the execution of a 
 decree, after an appeal taken and process served on them, 
 
 1 Atkins «. Wyman, 45 Maine, « Sholts v. Judges, &c., 2 Cow. 
 399. 50G. 
 
 2 Byrne «. Prather, 14 La. An, ' Per Button, J. Phelps ». Hurcl, 
 653. 31 Conn. 44G. 
 
 3 Penrice v. Wallis, 37 Miss. 173. » McGlaughlin v. O'Rourke, 13 
 1 Thompson ». Thompson, Coxe, Iowa, 459. 
 
 159. 9 Bixby v. Harris, 6 Post. 125. 
 
 6 White V. McCall, Coxe, 93. 
 
 quiring special bonds before an appeal can operate to stay proceedings, 
 all appeals, in all classes of cases, when duly entered and perfected, 
 operate necessarily as a stay of proceedings under the order appealed 
 from. Hudson v. Smith, 9 Wis. 122. 
 
 St. 1859, c. 139, I 2, providing that no appeal from an intermediate 
 order shall stay proceedings, unless a bond conditioned to pay the final 
 judgment be filed, applies to suits for the possession of property, as well 
 as in the case of a suit for the recovery of money. Held, that, where a 
 proper bond to abide the judgment had been filed in a suit as above, an 
 order staying proceedings was proper. And, upon refusal of the Circuit 
 Court, as above, to fix the amount of the bond and stay proceedings, the 
 appellate court, on an ex parte application, fixed the amount and ordered 
 the stay. lb. An appeal from an order vacating a judgment leaves the 
 judgment and execution in force. Murphy v. Merritt, 63 N. C. 502.
 
 CII. XXI,] APPEAL. 735 
 
 they are guilty of a contempt ol" the appellate coart, and 
 their acts are null and void as to the parties.^ 
 
 § 72. And this effect docs not depend upon the entry of 
 the appeal.2 Thus an appeal rightly taken, but not en- 
 tered in the court above, will dissolve an attachment.^ 
 And an action cannot be sustained upon the judgment.^ 
 If not entered in the court above, or in case of a nonsuit, 
 the court above must make a new judgment or decree.^ 
 The appellee may make the judgment appealed from, the 
 appeal, and the laches of the appellant, a foundation for 
 a new judgment in the appellate court, which may be 
 there executed.'^ The appellant, though a defendant, is 
 bound to prosecute his appeal.^ 
 
 § 73. But, on the other hand, partly, no doubt, as the 
 result if not the direct provision of express statutes, it is 
 held that the only effect of an appeal is to stay execution 
 upon the judgment. In all other respects, the judgment, 
 until annulled or reversed, stands binding upon the parties 
 as to every question directly decided.^ So the lien of a 
 levy on execution is not destroyed.^ So, under the 'New 
 York Code, §§ 339, 342, an appeal from a judgment, 
 though accompanied with a proper undertaking for pay- 
 ment of the judgment and costs, does not^;er se supersede 
 an execution previously levied on personal property.^" So 
 granting an appeal does not, ipso facto^ suspend the judg- 
 ment, in Kentucky, nor prevent proceedings for its en- 
 forcement.^^ Nor does an appeal vacate the liun of the 
 
 1 McLaughlin ».Janney, 6 Gratt. ^ Paine v. Cowdin, 17 Pick. 142; 
 G09. Davis v. Cowdin, 20 ib. 510. 
 
 2 Camplx'll V. Howard, 5 Mass. ^ 5 Mass. 376; U. S. v. Fremont, 
 37G. See also Penhallow v. Doane, 18 How. 30. 
 
 3 Dall. 54; Keenv.Turucr, 13 Mass. "> Lum v. Price, 1 llarr. 19o. 
 266. ^ Nill V. Comparet, lU Ind. 107. 
 
 3 Snydam ?). Huggeford, 23 Pick. ^ jMoore v. Rittenliouse, 15 Ohio 
 465. St. 310. 
 
 ^ Curtiss V. Beardsley, 15 Conn. '» Cook v. Dickerson, 1 Duer,679. 
 518 ; Felton v. "Weyman, 10 Peuu. " Freeman v. Pattou, 1 J. J. 
 70. Marsh. 193.
 
 736 THE LAW or new trials. [cii. xxi. 
 
 juilgmoiit, but, on the contrary, extends it over property 
 acquired pending the appeal.^ And, upon the ground 
 tliat an appeal does not vacate the verdict and judgment 
 api)ealod from, the plaintift' cannot become nonsuit.- An 
 invalid appeal of course leaves the case as it stood previ- 
 ously.3 (-See § 75.) 
 
 § 74. The dismissal of an appeal is equivalent to a regu- 
 lar, technical affirmance of the judgment of the court 
 below, so as to entitle the party to claim a forfeiture of 
 the bond and have his action therefor.^ 
 
 § 75. If an appeal be granted where it is not given by 
 law, or be irregularly or informally taken, and dismissed ; 
 it is void ab initio, the judgment is in force, and execu- 
 tion may issue upon it, as if there w^ere no appeal.^ 
 An appeal, without a sufficient undertaking, does not sus- 
 pend the right to issue execution, but takes away all right 
 to amend the judgment.^ (See p. 587.) In such case the 
 judgment cannot be affirmed.^ So, if an appeal is im- 
 properly perfected and for that reason dismissed, the court 
 have no jurisdiction to render judgment in favor of the 
 plaintiff, for the amount recovered before the justice.* 
 So the defendants, in an action of trespass before a justice 
 of the peace, pleaded in abatement the defective service 
 of the plaintiff's writ, to which plea the latter demurred. 
 The court sustained the demurrer, and ordered the de- 
 fendants to answer over, which they refused to do, where- 
 upon judgment w^as rendered in favor of the plaintiff. 
 The defendants then appealed from the judgment upon 
 
 ' Sfiible t). "Walpole, Wright, 447; ^ Loveland v. Burton, 3 Verm. 
 
 Curtis V. Root, 28 111. 367 ; Steck- 521 ; Com. v. Messenger, 4 Mass. 
 
 racsser i). Graham, 10 Wis. 87. 402; Campbell v. Howard, 5 ib. 
 
 2 Williams v. Jlizell, 10 Ircd. 370 ; Latham v. Edgerton, !) Cow. 
 274 ; ?, Za1)r. 201. 227. 
 
 3 Com. V. Dunham, 22 Pick. 12 ; ^ Br.yan v. Berry, 8 Cal. 130. 
 Com. V. Crawford, 12 Cush. 271. ^ Bol)bins v. Appleby, 2 N. II. 
 
 * McConnel v. Swailes, 2 Scam. 223. 
 571. ^ Shifl" V. Brownell, 4 Wis. 285.
 
 CH. XXI.] APPEAL. 737 
 
 the demurrer to the Superior Court. Held, such appeal 
 did not vacate the final judgment of the justice, and the 
 Superior Court could take no cognizance of the case.^ 
 
 § 7G. By a peculiar practice, in New Hampshire, an 
 appeal from the Court of Common Pleas to the Supreme 
 Court vacates the judgment, hut leaves the case, with all 
 its incidents, its pleadings, and evidence, unaftected.^ 
 
 § 77. The judgment of the appellate court will be con- 
 clusive until reversed, although the appeal in the case was 
 improperly taken and prosecuted.^ 
 
 § 78. In general, subject to the rules as to icaive?-, an 
 appeal re-opens the whole case.^(a) It involves a general 
 right to have a full new trial, in all matters of law and 
 fact, in the court appealed to.^ A case is to be heard in 
 the appellate court, as if no sentence or judgment had been 
 pronounced below, such sentence, &c., being altogether 
 suspended by the appeal.*' The case comes before the 
 court, not for revision, as on a writ of error, but for trial 
 de novo on the merits, and the court should give judgment 
 
 ' Blackman v. Beha, 24 Conn. Tiffa.) 494. See So. Life, &c. v. 
 
 331 Cole, 4 Flor. 359; Catlin v. Henton, 
 
 2 Stalbird v. Beattie, 36 N. H. 455. 9 Wis. 476. 
 
 3 Atkins V. Wynian, 45 Maine, ^ Com. «. Ricliards, ITPick. 295; 
 399. Com. V. O'Neil, 6 Gray, 345. 
 
 1 Brancli^J.Dicli, 1401iioSt.551; ^ Yeaton ». U. S., 5 Crancli, 281; 
 
 Robinson v. Raynor, 28 N. Y. (1 Tlie Venus, 1 Wlicat. 113. 
 
 (a) " The plaintiff by his appeal opened the whole case." Richards v. 
 Smith, 9 Gray, 316. In Missouri, the bestowal of mere appellate power 
 on the Circuit Courts does not authorize them to try causes de novo. 
 An appeal gives no more power than would a writ of certiorari. Lacy 
 V. Williams, 27 Mis. 280. See Com. v. Emmons, 98 Mass. 6 ; Wolfe v. 
 Security, 39 N. Y. 49; Gough v. Manning, 26 Md. 347 ; Young v. Mer- 
 tens, 27 ib. 114; Lane v. Lantz, ib. 217; Morrison v. Hammond's, ib. 
 604 ; Everett v. State, 28 ib. 190 ; List v. Pumphrey, 3 W. Ya. 672 ; 
 Persch v. Quiggle, 57 Penn. 247 ; Sledge v. Bhun, 63 N. C. 374. 
 47
 
 738 THE LAW OF NEW TRIALS. [CIL XXI. 
 
 on tlie merits, regardless of defects in the justice's judg- 
 iiicnt.* 
 
 § 79. Partly upon this ground, if the law, on which a 
 judgment was founded, be afterwards repealed, the appel- 
 late court must set the judgment aside, though right at 
 the time.^ 
 
 § 80. It is held that the judgment will not be reversed 
 on default of the appellee ; it must be examined on the 
 affidavits or return.^ It is error for the court to affirm the 
 judgment without hearing evidence. A trial cannot be 
 had on the transcript of the justice, without other proof.'* 
 So the court does not review or revise the decision of the 
 iustice, but investigates the case as if it had never under- 
 gone a previous investigation.' And, on a judgment of 
 affirmance, a mere entry that the court affirm the judg- 
 ment below is not sufficient; judgment should be rendered 
 for a specific sum.^ So, on appeal from a justice of the 
 peace, the rulings of the justice cannot be revised.'^ The 
 court cannot, for error of law in the trial below, nonsuit 
 the plaintiff, or reverse the judgment, but must retry the 
 cause on its merits, and give such judgment as the justice 
 ought to have given.^ And upon the ground, that, on 
 appeal from a justice of the peace, the court is required 
 by statute to try the case de 7iovo, and to give judgment 
 according to its justice and equity, &c. ; it should, in a case 
 where the })laintilf could maintain trespass or assumpsit, 
 disregard the form of the warrant, designating the pro- 
 ceeding as an action of debt.^ So also any other defects 
 
 ' Allen V. Wood, 1 Head, 436. ^ "Waterman v. Bristol, 1 C.ilm. 
 
 2 U. S. V. The Peggy, 1 Crancli, 593; Tiiulall ». Meeker, 1 Scam. 137. 
 110 ; United fStatcs v. Preston, 3 ^ Doremus v. Howard, 3 Zabr. 
 Pet. 58. 390. 
 
 3 Bellony v. Alexander, 1 Sandf. ^ Harper v. Baker, 9 Mis. 116. 
 784. ^ Vannov v. Givens, 3 Zabr. 201. 
 
 ^ Shook V. Thomas, 21 111. 87. '■* CaUerlln v. Spinks, 16 Ala. 467.
 
 en. XXI.] APPEAL. 739 
 
 in the warrant, capias^ summons, or otlier proceedings of 
 the justice.^ 
 
 V § 81. In general, the same case is to be retried," and only 
 the merits of the case.^ The court above .should not dis- 
 miss it, on account of irregularities in the justice's pro- 
 ceedings.* The question of identity, however, depends 
 somewhat upon the pleadings. Thus at the trial, in the 
 court above, of an action brought before a justice of the 
 peace upon a bond for the prison limits, the plaintiff may 
 prove any act of escape specified in his bill of particulars 
 filed before the justice, although not relied upon at the 
 trial thcre.^ 
 
 § 82. But an appeal does not re-open a question of 
 amendment.^ So, as has been already seen, in case of 
 appeal on facts agreed^ no other questions can be raised.^ 
 So an appeal does not apply to an order subsequent to 
 the judgment concerning the execution sale.^ And it is 
 sometimes held, under local statutes, that the case must 
 be retried upon the same evidence.^ 
 
 § 83. And the general rule is laid down, that the form 
 of action may be sometimes changed; the cause of action, 
 never. ^° The proceedings are de novo only as to the decla- 
 ration , pleadings, and evidence.^^ Thus the cause of action 
 must exist at the commencement of the suit, and cannot 
 be varied by subsequent circumstances.^^ Nothing can be 
 recovered on appeal which could not be recovered before 
 
 ' Hart V. Turk, 15 Ala. 675; Goss ^ Diedriclis v. Stomach, 9 AVis. 
 
 V. Davis, 21 ib. 479. 548. 
 
 2 Stuart V. Biusse, 3 Bosw. Go7. ^ Devin v. Patchin, 2G N. Y. 
 
 3 State V. Wilson, 7 N. H. 543. (12 Smith) 441. 
 
 * Maltock V. King, 23 ]\Iis. 400. '° CahvcU v. Thompson, 1 Rawle, 
 
 5 Kennedy v. Gooding, 7 Gray, 370. 
 
 417. " O^A'en -o. Shelhamer, 3 Binn. 45. 
 
 6 Parker v. Baker, 43 N. H. 35. '^ Ibid. ; IMcLaughlin v. Parker, 3 
 ' Johnson v. Stewart, 11 Gray, S. & R. 144 ; Bcchtol v. Cobaugh, 
 
 181. 10 S. & K. 131.
 
 740 THE LAW OF NEW TRIALS. [CH. XXI. 
 
 tbe justice, except the intermediate interest.^ And, on 
 the other hand, in Xew York, where, in order to move 
 for a new trial, or for the purposes of appeal, a party lias 
 made and served a case ; the adverse party has no right to 
 make a new case, and serve it as a proposed amendment 
 by way of substitution.^ So, in a criminal case, only the 
 same oftence can be tried, wdiicli was tried in the court 
 below.3 
 
 § 84. The course of proceeding in the appellate court 
 seems to be predicated upon the prevailing theory that 
 such court has full control of the case, as an original 
 action. Thus it is held that a party may succeed in any 
 form of action, if the justice of the peace had jurisdiction 
 of the subject-matter.^ So the court may, in its discretion, 
 allow amendments, not only of the appeal bond, but also 
 of the original accounts filed in the case. Either party 
 may file additional accounts, upon such terms as the court 
 may direct. Such accounts, however, when filed by the 
 plaintiif and proved, and the ofisets deducted, must not 
 exceed the original demand indorsed on the back of the 
 process.^ So, in Vermont, where an action upon a promis- 
 sory note is appealed, the plaintifi" may, by the rules of 
 court, file a new declaration ; and he may file it in the 
 form of a count for money had and received, and ofier 
 any evidence which would have been competent under a 
 count declaring specially upon the note.*' So, under the 
 general power to allow amendments of the process and 
 proceedings in court, if, in an action of debt upon a 
 judgment before a justice of the peace, the judgment is 
 described erroneously by giving a wrong initial of the 
 justice's name, and by stating the aggregate amount of 
 
 ' Moore v. "Wait, 1 Binn. 219 ; ^ "Waterman v. Bristol, 1 Gilm. 
 
 Owen V. Slielhamer, 3 ib. 45 ; 593. See SaAvyer v. Kane, 47 N. H. 
 
 Wright V. Guy, 10 S. & R. 227. 173; McQuade v. U'Neil, 15 Gray, 
 
 2 Stuart V. Binsse, 3 Bosw. G57. 52; Footer. Roberts, 7 Itob. (N.Y.) 
 
 3 Com. V. Blood, 4 Gray, 31. 17. 
 
 ' Swingley v. llayucs, 21 111. 214. <= Fletcher v. Blair, 20 Vt. 124.
 
 CH. XXI.] APPEAL. 741 
 
 the debt and costs, instead of reciting each of them sepa- 
 rately; the plaintiff, after the action has been appealed, 
 may jfile a new declaration.^ So, on the trial of an appeal, 
 the defendant it not restricted to the set-off relied on 
 before the justice of the peace.^ So, where the defendant 
 appeals from an award, the plaintiff may recover for a 
 cause of action which was not mentioned before the arbi- 
 trators, when the evidence is admissible under the original 
 pleadings.3 So, in an action against a connecting railway 
 company for a loss by lire, there was a verdict for the 
 plaintiff. A rule to enter a nonsuit was granted, upon the 
 ground that the defendants received the goods on condition 
 that they were not liable for loss by lire. Held, it was 
 open to them, on appeal in the House of Lords, to deny 
 that there was any contract between them and the plain- 
 tiff.* And a decree, exceeding the power of the court in 
 one distinct.particular, may be amended in the appellate 
 court, and then affirmed.^ 
 
 § 85. So, although the cause of action must appear to 
 be the same, yet, where the transcript stated that the suit 
 was on a promissory note, and on the appeal the evidence 
 was of a sealed instrument, or bill obligatory, for the sum 
 stated in the transcript ; it was held that the variance was 
 not material, the cause of action being evidently the same.^ 
 So, if the appellant has been guilty of no laches in per- 
 fecting his appeal, the court may enlarge the time for 
 filing his bond, and in the mean time order a stay of 
 proceedings for that purpose, upon proper terms.^ So 
 where a party appealed, and filed a bond with only one 
 surety ; on motion to dismiss the appeal, the court may 
 order a bond with two sureties, and on such bond the 
 
 > Stevens v. Hewitt, 30 Vt. 263. s D'Wolf v. Haydn, 34 111. 535. 
 
 2 Tate V. Tate, 3 Grant, 150. ^ Beclitol y. Cobaugli, 10 S. & R. 
 
 3 McConnell v. Miclieltree, 4 131. 
 
 Penn. 197. ^ Bradley v. Hall, 1 Cal. 199. 
 
 * Bristol, &c., V. Collins, 5 Hurl. 
 & Nor. 969.
 
 742 THE LAW OF NEW TRIALS. [CII. XXI. 
 
 same summary judgment may bo rendered as if it bad 
 been taken in tbe court below. ^ And, on appeal from a 
 justice of tbe peace, the names of tbe parties may be so 
 transposed as to adapt tbe legal form to tbe merits of tbe 
 case.2 
 
 § 8G. 33ut where the appellate powders of a court are 
 fixed by statute, they have no power to grant a new^ trial, 
 or reinstate a cause which they have once disposed of, by 
 judgment on the merits, or by nonsuit.^ And an amend- 
 ment will not be allowed, if the eifect would be to reverse 
 a judgment below, rightly given, and to enter a judgment 
 for a ditiercnt plaintiff.^ 
 
 § 87. A defendant, against wdiom judgment is rendered 
 by a justice of the peace, is regarded as the actor in the 
 proceedings after appeal, and is held to be constantly in 
 court.' And, if the appellant fail to prosecute his appeal, 
 the judgment must be affirmed.*^ 
 
 § 88. It is held that the plaintiff, on appeal, cannot take 
 a non -pros, at pleasure.^ More especially, there can be no 
 judgment of nonsuit, after the merits of the case, on the 
 part of the plaintiff, have been submitted.^ But after 
 judgment, affirming tbe judgment of the court below, 
 which was in favor of the defendant; the judgment of 
 affirmance, on motion, was not entered up, but the court, 
 ^;ro/orma, reversed the judgment of the county court, and 
 sufiercd the plaintiff to become nonsuit.^ 
 
 § 89. An appeal is often disposed of by judgment of 
 
 • McDowell 1). Bradley, 8 Ircd. ^ ISIartin v. TTisrgins, 32 Ala. 775. 
 93. ISIartin v. While, 11 Mis. 214. 
 
 2 Giffen v. St. Clair Township, 4 ^ Prettyman v. Waples, 4 Har- 
 W. A: S. ;527. ring. 299. 
 
 3 Schuyler'y.Mills, 4Dutch. 137. « Doremus v. Howard, 3 Zabr. 
 « Justices, «&c. v. Simmons, 3 390. 
 
 Jones, 187. ^ Morton v. Edwin, 19 Vt. 77.
 
 CH. XXI.] APPEAL. 743 
 
 dismissal.{a) Where the appellee files a copy of the record, 
 and gives reasonable notice to the appellant, he may move 
 to dismiss an appeal which has been improvidcntly granted, 
 and which improperly restrains him from collecting his 
 judgment.^ So, if the appellant fails to appear, the appeal 
 may be dismissed, and the judgment of the justice of the 
 peace affirmed.^ 
 
 § 90. Neglect of the appellant, to comply with an order 
 to file a new recognizance before the case was reached in 
 order, is ground for a dismissal.^ So where the record 
 sent up is insufiicient to give jurisdiction, the court may in 
 its discretion either compel the proper record to be certified 
 to it, or the proceedings dismissed.^ 
 
 § 91. A plaintiff in detinue, having recovered only one 
 of the slaves sued for, excepted to the rulings of the court 
 against him, and took an appeal, but afterwards coerced 
 satisfaction of the judgment. This fact having been 
 proved by afiidavits, he was required to make restitution 
 by the next term of the court ; and, having failed to 
 comply with this order, his appeal was dismissed.^ 
 
 § 92. The granting of an appeal by a justice of the 
 peace in a criminal cause, without sureties, is an irregu- 
 larity which the court above may correct. And, on 
 motion, if seasonably made, the appeal will be dismissed 
 as in civil causes, leaving the judgment in the court 
 below in full force.^ 
 
 ' Reynolds r. Perry, 11 111. 534. * Baker «. Calvert, 10 Ark. 485. 
 
 2 Shook V. Thomas, 21 111. 87. ^ Earle v. Reid, 2r) Ala. 463. 
 
 3 Crow V. French, 3 Iowa, 134. « State v. White, 41 N. 11. 194. 
 
 (a) See Michie v. MicMe, 17 Gratt. 109; Gardner v. Diedricli, 40 III. 
 72 ; Bynum v. Hamilton, 19 La. An. 446 ; Holsenback v. Martin, 28 Geo. 
 73. If, in an appeal from a justice of the peace, it appear that the 
 justice had no jurisdiction, the court should dismiss the suit. Fleming 
 V. Limebaugh, 2 Met. (Ky.) 265.
 
 74-t THE LAW OF NEW TRIALS. [CII. XXI. 
 
 § 93. If, in case of an indictment fatally defective, the 
 prosecution is barred by the statute of limitations, the 
 appellate court will dismiss the case entirely.^ 
 
 § 94. The court below having omitted to give judgment 
 upon the verdict on an indictment ; on appeal, the case 
 was dismissed.^ 
 
 § 95. It is held that a motion to dismiss for irregularity 
 must be made without delay. ^ But a motion of the plain- 
 tiff to dismiss an appeal from a judgment of a justice of 
 the peace, on the ground that his record does not show 
 that an appeal was taken, need not be made at the first 
 term.** And an appeal from a justice of the peace may 
 be dismissed, even after trial and verdict, where it appears 
 that the amount in controversy exceeded his jurisdiction. 
 Neither the laches of the defendant, nor his consent, could 
 give jurisdiction.^ 
 
 § 96. The dismissal of an appeal is equivalent to an 
 affirmance of the judgment.*' And the appellate court 
 cannot afterwards reverse it. If, after the appeal has 
 been regularly entered by the defendant, the plaintifl:' 
 fails to appear and prosecute ; the court may order a dis- 
 continuance.^ But it is error to dismiss an appeal, and to 
 reverse the judgment; for, by dismissing the appeal, the 
 court loses cognizance of the subject, and the judgment 
 stands in full forcc.^ And, after a full investigation, the 
 appellate court may refuse to dismiss the appeal upon the 
 appellant's motion, and insist upon finally deciding the 
 case.^ 
 
 ' Redflekl v. State, 24 Tex. 133. « Snthorland v. Phelps, 23 111. 
 
 2 Ilonrv V. State, 24 Tex. 3G1. 91 ; G Wis. 3.-)0. 
 
 3 Steward v. Dixon, G Mich. 391. ' Haner v. Polk, G Wis. 350. 
 
 » Moore v. Lyman, 13 Gray, 394. 8 Mauion v. The State, 11 Mis. 
 5 Collins V. Collins, 37 Penn. 387. 578. 
 
 9 Delta V. Walker, 24 111. 233.
 
 en. XXI.] APPEAL. 745 
 
 § 97. The defendant appealed from the judgment of a 
 justice, but neglected to enter his appeal. The plaintift", 
 at the next term of the court following the appeal, caused 
 a copy of the justice's record, certified by the county 
 clerk (the justice, though out of ofiice, still continuing to 
 reside in the same county), to be entered for affirmance. 
 The defendant moved to dismiss the suit on account of the 
 defective mode of certifying the records, and consequent 
 want of jurisdiction. Held, the county court, pending 
 this motion, might continue the cause, to enable the plain- 
 tiff to file a properly certified copy of the record, and, upon 
 its being filed, proceed and try the cause upon its merits.' 
 
 § 98. Where an appeal is dismissed, whether on motion 
 or for other cause, the whole case is out of court, includ- 
 ing cross-errors filed by the appellee.^ 
 
 § 99. It is sometimes the practice to remand a cause to 
 the court from which an appeal was taken.^ But, where, 
 after a verdict for the plaintifi', and an appeal by the de- 
 fendant, the court is of opinion that the plaintiff cannot 
 recover — as where there is an admission of satisfaction of 
 his demand — they will not, upon the reversal of the judg- 
 ment, award a 'procedendo.^ 
 
 § 100. Where a defendant was convicted on an indict- 
 ment for a felony, and appealed, and the error assigned in 
 the appellate court was, that the facts stated in the indict- 
 ment did not amount to a felony ; held, the Supreme Court, 
 upon reversing the judgment for this error, would, under 
 the provisions of the act establishing the court, give direc- 
 tions to the court below to give judgment for a misde- 
 meanor, that being the proper judgment.^ 
 
 ' Carruth i). Tigke, 32 Vt. 626. 73; Humpbrey v. Sears, 2 Wis. 201; 
 
 2 Crawford v. Basliford, 16 B. McMillan v. Richards, 12 Cal. 467. 
 
 Mon. 3 ; Maxwell v. Williams, 1 < Stockton v. Frey, 4 Gill, 406. 
 
 Hemp. 172. ^ Tlie State v. Upcliurch, 9 Ired. 
 
 * See Dennis ». Dennis, 15 Md. 454.
 
 746 THE LAW OF NEW TRIALS. [CH. XXL 
 
 § 101. On a chancery appeal, the whole cause is reheard, 
 and the merits determined; therefore, after the judgment 
 of the appellate court, the lower court cannot rehear the 
 cause, unless specially directed so to do hy the decree on 
 appeal, nor take any steps except such as are necessary to 
 carry out that decree.^ 
 
 § 102. After a rcmUtUur has been regularly sent to the 
 court below, in an appeal case, the court of appeals loses 
 jurisdiction of the cause.^ 
 
 § 103. A cause was docketed and dismissed in the Su- 
 preme Court of the United States, and a mandate there- 
 upon sent down, on the motion of the appellee. It appeared 
 afterwards, that an appeal had not then been allowed, but 
 was under consideration in the court below, and the dis- 
 missal w-as thereupon revoked ; it appearing also that the 
 judgment below against the United States was obtained 
 by the fraudulent connivance of the district attorney, and 
 that what purported to be the order allowing the appeal 
 was drawer and sent up by the same fraudulent con- 
 nivance.^ 
 
 § 104. In reference to the parties to an appeal, none but 
 parties to the decree or judgment have the right of appeal.* 
 And, on the other hand, every person, against whom a 
 justice of the peace renders a judgment, is entitled of com- 
 mon right to an appeal and a trial by jury, whether the 
 judgment was obtained by confession of the party or his 
 agent, or otherwise.^ The right exists only in favor of a 
 party, whose substantial rights are prejudiced by the judg- 
 
 1 Sonle V. Dawes, 14 Cal. 247. * McKim v. Mason, 3 ^Ul. Ch. 
 
 2 Dresser «. Brooks, 2 Comst. 559. Dccis. 18G; Montgomery v. Leaven- 
 
 3 United States «.Gomcz,23 How. Avorth, 2 Cal. 57. 
 
 326. ^ Rowen v. King, 23 Penu. 409.
 
 en. XXT.] APPEAL. 747 
 
 meiit.X«) Thus if a verdict and judgment in a petition 
 for freedom are in ftivor of the defendant, he cannot sus- 
 tain an appeal, because he is not aggrieved. ^ So, where 
 part of an order appealed from is in favor of the appellant, 
 such portion is not open for review on his appeal.^ So a 
 decree will not be reversed for the benefit of a party who 
 has not appealed.* But either party may appeal, and 
 therefore, if one party only appeals, he may dismiss his 
 appeal against the wish of the appellee.^ 
 
 § 105. Both parties may appeal. In such case, the clerk 
 should make two transcripts of the record, as there are 
 two cases in the court above ; otherwise, the clerk of the 
 Supreme Court should minute two cases on his docket, 
 and, if judgment is affirmed, should charge both appel- 
 lants costs.^ 
 
 § 106. Substantial parties must all join in an appeal.^(«) 
 
 « Comhs v. Jefferson, &c., 3 Met. ? Lovejoy v. Irelan, 17 Md. 525; 
 
 (Ky ), 72. Kelly v. Muse, 11 Ired. 182; Brew- 
 
 2 Einirgold V. Barley, 5 i\[d. 186. ster v. Wakefield, 22 How. 118; 
 
 3 Smith fl. SDiith, 7 Md. 55. Clifton v. Sheldon, 23 ib. 481; 
 * Lanahan». Latrobe, 7Md. 208. "Wells v. Reynolds, 3 Scam. 191; 
 
 5 Bacon v. Lawrence, 26 111. 53. State v. Martin, 2 Ired. 101. See 
 
 6 Devereux v. Burgwin, 11 Ired. Smith v. Foster, 3 Cold. 139. 
 490. 
 
 [a) Where the appellant had by an assignment to a friend substan- 
 tially acquired all the appellee's interest and control in the decree, and 
 had agreed to pay the counsel on both sides, though nothing of this was 
 known to the counsel on either side ; the court dismissed the appeal. 
 Cleveland v. Chamberlain, 1 Black, 419. Pending a foreclosure suit, the 
 mortgagor sold, agreeing with the vendee, that the latter should pay off 
 the mortgage, counting money paid thereon as paid towards the price 
 if less than the price, the mortgagor to repay the vendee all that the latter 
 should pay on the mortgage in excess of the price. A judgment was then 
 had for a foreclosure sale, from which the vendees appealed in the name 
 of the mortgagor, who waived the appeal, and asked to have it dismissed. 
 Held, the vendees had no such interest as would enable them to insist 
 on an apppeal, against the will of the mortgagor. Baasen v. Eilers, 11 
 Wis. 277. 
 
 (a) In Louisiana, where one defendant appeals, the appeal will be
 
 748 THE LAW OF NEW TRIALS. [ciI. XXI. 
 
 One defendant cannot sustain an appeal from a joint judg- 
 ment against two or more, when all Lad joined in the 
 pleadings, and the trial was joint.' But it is held that 
 one defendant may appeal for all, and cannot afterwards 
 withdraw the appeal for the others.^ Thus where A. and 
 B. were sued as partners, and served with process from a 
 justice, and A. alone appeared, and swore that he never 
 was a partner, and did not owe, &c., and judgment was 
 thereupon rendered against B. alone; held, the judgment 
 did not dismiss the action as against A., and therefore he 
 was a proper appellant with B., as the appellate court had 
 jurisdiction against him.^ So where several co-sureties 
 were sued, and did not resist the plaintiff's right to re- 
 cover, but pleaded that one w^as co-surety of another; 
 held, an appeal could not lie for one alone, if any appeal 
 could be allowed.'* So where several defendants in trover 
 pleaded severally, but a joint judgment was rendered 
 against all, and one only appealed ; the appeal was dis- 
 missed on motion.' 
 
 § 106rt. In the Supreme Court of the United States, a 
 motion was made to dismiss an appeal, because it had 
 ])een taken only by a part of the complainants, and such 
 as had been omitted were not parties to the appeal. The 
 court refused the motion, but held that the matter might 
 be brought up again at the hearing on the merits, as the 
 questions involved in the motion were connected wntli the 
 merits, and could not be determined upon a summary 
 proceeding.^ 
 
 ' Ilicks V. Gilliam, 4 Dcv. 217. « Donnell v. Shields, 8 Ired. 371 ; 
 
 ^ Bonner v. Campbell, 48 Peun. Smitli v. Cuuniugham, ib. 4G0. 
 
 28G. 6 Day v. Washburn, 23 How. 
 
 3 Hooper v. Farwell, 3 Min. lOG. 309. 
 
 ^ Loftin V. Kornegay, 11 Ired. 
 437. 
 
 dismissed, unless he makes his co-defendants, who were necessary parties 
 in the court below, parties to the appeal. Folger v. Kouanet, 13 La. 
 An. 29G.
 
 en. XXI.] APPEAL. 749 
 
 § 1066. Ill Indiana, under 2 R. S. (p. 160, §§ 561-2), 
 where an appeal is barred as to some appellants by lapse 
 of time, and as to others, who were infants, it is not ; the 
 former may be stricken from the record, and the appeal 
 will be good as to the others.^ 
 
 § 106c. In trespass against A., B., and C, in the justice's 
 court, there was a discontinuance as to A., and judgment 
 against B. and C. B. appealed, and both appeared before 
 the appellate court; judgment on the merits was rendered 
 against B. and C. ; and B. appealed to the Supreme Court. 
 Held, the appearance of the two in the county court cured 
 the defect of only one's appealing ; also any objection on 
 error to the jurisdiction of the justice, or to the joining of 
 the other defendants in the county court .^ 
 
 § 106(/. Though, in a suit ex contractu against several, 
 the judgment is either good against all, or bad against all, 
 and cannot legally be reversed in part ; yet, where this has 
 been done, the error cannot be taken advantage of, on 
 appeal, by the parties against whom alone the judgment 
 should have been entered.^ 
 
 § 107. If, of several defendants, some appeal in their 
 own names, without joining the others, the appeal should 
 be dismissed on motion. The appeal should be taken in 
 the names of all who are living and aggrieved by the 
 judgment ; and, if any refuse to unite with the others in 
 its prosecution, they should be summoned and severed.^ 
 
 § 108. Where one appellant dies after the appeal is 
 perfected, either party may have the appeal revived in 
 the name of his representative.^ 
 
 ' McEudreew. McEndee, 12 lud. * Kain v. Gradon, 6 Blackf. 138; 
 
 97. Savage v. Walsh, 3^ Ala. 293. 
 
 2 Tower v. Lamb, G Mich. 362. ^ Raiue v. Bauk, &c., 4 Gratt. 
 
 3 Geisler v. Acosta, 5 Seld. 227. 150.
 
 750 THE LAW OF NEW TRIALS. [CIL XXI. 
 
 § 109. If, before trial on appeal, one defendant dies, Lis 
 representatives must be made parties, although the appeal 
 was taken by another alone.' 
 
 § 110. When subsequent attaching creditors come in 
 and defend a suit, they have the right to appeal.^ 
 
 § 111. After the bankrupttcy of a partner, he cannot be 
 joined with his copartner as plaintiiF. But where such an 
 action is brought to the court above by appeal, the assignee 
 may be substituted.^ 
 
 § 112. An assignee for the benefit of creditors may 
 appeal from a judgment of a justice against a trustee, on 
 an attachment a2:ainst his assicinor.^ 
 
 "&* 
 
 § 113. When the appellant is an infant, the appeal must 
 be sued out by his guardian or next friend, who may either 
 give bond to supersede the judgment, or security for the 
 costs of the appeal ; and where the appeal is sued out by 
 the infant in his own name, and errors are assigned by 
 attorney, the appeal — the fact of infancy being shown by 
 affidavits — will be dismissed on motion.^ 
 
 § 114. As a party in interest (by reason of his commis- 
 sions), it is held that the agent, attorney, or trustee of a 
 mortgagee may appeal.^ 
 
 § 115. If the purchaser of land at sheriff's sale has the 
 right to claim a writ of habere facias possessionem, such 
 right does not, after his death, devolve upon his adminis- 
 trators, and they cannot appeal from an order, discharging 
 
 ' Stcll V. Glass, 1 Kcllv, 475. < Blctz v. Haldeman, 2G Pcnn. 
 
 2 Chaffee v. Malarkoe, 20 Vt. 242. 403. 
 
 ' Merrill v.' Tamauy, 3 Penn. ^ c^ok v. Adams, 27 Ala. 294. 
 433. e White v. IMulcolm, 15 Md. 529. 
 
 See Teacklc v. Crosby, 14 Md. 14.
 
 CII. XXL] APPEAL. Vol 
 
 a rule laid upon tlic tenant in possession and claimants of 
 the land, to show cause why the writ should not issue.^ 
 
 § 116. An appeal lies from an order discharging a 
 garnishee.^ 
 
 § 117. In Vermont, a trustee cannot appeal, unless the 
 other parties could do it.^(a) 
 
 § 118. In reference to the amount of the judgment 
 appealed from •,{b) a case will not he dismissed on appeal, 
 on motion of the appellant, because the amount of damages 
 awarded by the justice of the peace exceeds a justice's 
 jurisdiction, nor because it exceeds the ad damnum of the 
 writ.'* 
 
 § 119. Judgment cannot be rendered for a sum greater 
 than could be recovered below, and interest. But, where 
 the declaration is for a sum within the jurisdiction of the 
 court below, and interest on such sum from the time it 
 became due, and there is a verdict for a sum beyond the 
 jurisdiction of the court below; judgment will not be 
 reversed.^ 
 
 > Turner v. Waters, 14 Md. G2. ^ Earl v. Leland, 14 Verm. 338. 
 
 2 Bcbb v. Preston, 1 Clarke < Wallace v. Brown, 5 Fost. 216. 
 (Iowa), 4G0. ® Panitt «. Stuart, 5 Ala. 112. 
 
 (a) As to an appeal for the State, in criminal prosecutions, see State 
 V. Jones, 1 Murph. 257 ; Commonwealth v. Sandford, 5 Litt. 289 ; State 
 V. Solomons, 6 Yerg. 3G0; State v. Haddock, 2 Hayw. 162; State v. 
 McGrorty, 2 Min. 224; State v. Judge, 14 La. An. 323; State v. Ross, 
 ib. 364; Commonwealth v. Van Tuyl, 1 Met. (Ky.) 1 ; Commonwealth 
 V. Thompson, 13 B. Mou. 159 ; State v. Cason, 20 La. An. 137 ; State 
 V. Credle, 63 N. C. 506. 
 
 (6) See Spear v. Place, 11 How. 522. It is sometimes held, that on 
 appeal the defendant may recover an amount beyoud the justice's juris- 
 diction. Prettyman v. Waples, 4 Harring. 299. And that a verdict 
 for a larger sum than was within the jurisdiction of the justice is not 
 evidence that the justice had no jurisdiction. McKiuley v. McCalla, 5 
 Biun. 600 ; McEntire v. McElduff, 1 S. & R. 19.
 
 752 THE LAW OF NEW TRIALS. [CIL XXI. 
 
 § 120. "Where the judgment was rendered for too large 
 an amount, and the correct sum was certain and fixed hy 
 the evidence on appeal; the judgment was reversed, and 
 the case remanded, with directions to the court below to 
 cuter judgment for the proper sum.^ 
 
 § 121. After a trial on the merits, an appeal, and a trial 
 in the appellate court on the merits ; the defendants can- 
 not object that the damages claimed were beyond the juris- 
 diction of the justice, the objection not being raised in the 
 appellate court.- 
 
 § 122. Where damages are given, an appeal embraces 
 not only the question of amount, but also the question, 
 whether by the nature of the case, or upon the facts 
 shown, any damages are recoverable.^ 
 
 § 123. "Amount in dispute" is held the amount of the 
 plaintiff'' s claim.^ 
 
 § 124. On appeal, the amount of the recovery, and not 
 the amount of damages laid in the declaration, is to be 
 looked to to show the jurisdiction of the court.^ 
 
 § 125. A set-off, which exceeds in amount the sum of 
 which the lower court has jurisdiction, is not allowable on 
 appeal." So, in Alabama, judgment cannot be rendered, 
 on appeal from a justice, for a set-olf which exceeds $50, 
 against the consent of the plaintiff.^ 
 
 § 126. In Vermont, a declaration, in an action com- 
 menced before a justice of the peace, counted upon two 
 notes, both together less than $20 in amount, and also 
 contained a count for money had and received, for $20. 
 
 • Fan- V. Johnson, 25 111. 522. ^ Hart v. Funk, 15 Ala. G75. 
 
 « Tower v. Lamb, G Mich. 8G2. e Pi(iuet v. Cormick, Dudley, 
 
 3 Spray v. Thompson, 9 Iowa, 40. Geo. 20. 
 
 « Gillespie v. Benson, 18 Cal. 400. ^ SuiiUi v. Fleming, 9 Ala. 7G8.
 
 en. XXI.] APPEAL. 753 
 
 The plaintiff oftbrecl in evidence the notes alone, and, 
 before judgment, waived and abandoned the count for 
 money had and received. Held, the action was not ap- 
 pealable.^ Nor an action before a justice of the peace, on 
 a promissory note exceeding twenty dollars, but indorsed 
 below ten dollars ; the ad damnum in the plaintiff's writ 
 being ten dollars, and there being no plea in offset.^ 
 
 § 127. In the same State, where the account pleaded in 
 ofiset exceeds the sum of ten dollars, the case is appealable, 
 unless the account appears to be fictitious, or filed for the 
 purpose of obtaining the right of appeal.^ 
 
 § 128. In Tennessee, replevin was brought before a jus- 
 tice for a mule. Value laid in the warrant not above fifty 
 dollars. Judgment for the plaintiff. On appeal, the jury 
 found a special verdict, assessing the value at $110, sub- 
 ject to the decision of the court whether the justice had 
 or had not jurisdiction. The court gave judgment for the 
 defendant. Held, on appeal, it was error for the court to 
 give judgment for the defendant for above fifty dollars, 
 its jurisdiction on appeal from the justice being limited 
 to his jurisdiction.^ 
 
 § 129. Where several sailors join in a libel against a 
 vessel and cargo, and the District Court awards salvage 
 to the amount of more than $2000, but not so much as 
 that amount to any one libellant ; no appeal lies by either 
 party to the Supreme Court of the United States.^ 
 
 § 130. A complaint demanded $2000; and the verdict 
 was $3000. The court below amended the complaint, by 
 inserting $3000 instead of $2000, and rendcrcd judgment 
 for $3000. On ai:)peal, the court above vacated the order 
 
 ' Cooper V. Miles, 16 Verm. 643. ' Phcvwin v. Colhurn, 2.j Vt. 613.. 
 2 Boardman v. Ilarriugtou, 9 ' Gray v. Jones, 1 Iloatl, o42. 
 Verm. 151. ^ Spear v. Place, 11 Uow. 523. 
 
 4a
 
 754 THE LAAV OF NEW TRIALS. [CH. XXI. 
 
 of amendment, gave leave to the plaintiff* to remit the 
 damages over $2000, affirmed the judgment for that 
 amount, with costs, and reversed it as to the excess.^ 
 
 § 131. As we have seen, the form of taking an appeal 
 is not by a new and original process, like a writ of error, 
 but by the allowance of the court which renders the judg- 
 ment appealed from. From this it results, that certain 
 prescribed formalities are to be observed in transferring 
 the case to a higher tribunal, the neglect of which will 
 render an appeal wholly ineffectual.^ 
 
 § 132. The fact of appeal can be proved by the record 
 only, and not by the statements of the appellee in a com- 
 plaint filed by him for affirmation of the judgment.^ 
 
 § 133. The statutory requirements as to a return of the 
 proper papers must be strictly complied with. Thus, in 
 l!^ew York, upon appeal from a judgment by default, the 
 justice must return that a copy of the complaint was 
 served, verified by the oath of the pleader, or his attorney. 
 A return, that the summons was by the constable's return 
 certified "to have been served with the complaint veri- 
 fied," is insufficient. So the return must state, that the 
 complaint annexed is the one served on which judgment 
 was rendered.'* So, in Vermont, an appeal from a justice 
 is in no sense entered, when the copies required by Comp. 
 Laws, p. 238, § 73, are never filed, the statute being man- 
 datory.^ So, in Texas, when a cause comes up on appeal, 
 the transcript of the record must be certified by the clerk 
 
 ' Corning ■». Corning, 2 Sekl. 97. wood, 12 Flori. 432; Carleton v. 
 
 2 See Puget v. Pierce, 1 "Wash. Goodwin's, 41 Ala. 153 ; Collins v. 
 Terr. 89. U. S. itc, 27 Ind. 11 ; Watt v. Al- 
 
 3 IMoore i\ Lyman, 13 Gray, 394; vord, ib. 495 ; Wetherbee v. Car- 
 1 How. Miss. 21. roll, 33 Cal. 549. 
 
 * Spring V. Baker, 1 Hilt. 526. ^ Goodenow v. Stafford, 1 Wii- 
 
 See Edmonson v. Bloomshire, 7 liams, 437. 
 Wall. 300 ; Underwood t'. Under-
 
 CH. XXI.] APPEAL. 755 
 
 to be a true transcript of all the proceedings.^ And it is 
 a general rule, that an appellate court can act only on the 
 record from the court below, which must contain a case 
 sufficiently certain in its character to enable the appellate 
 court to act upon it." Thus where the transcript is unin- 
 telligible from omissions, interlineations, and erasures, 
 the appeal will be dismissed at the cost of the appellant.^ 
 Or, where the record is so confused, that the appellate 
 court cannot act upon it with safety to the rights of the 
 parties, the cause will be remanded, with leave to the 
 parties to replead.* 
 
 § 13-4. In Georgia, if the clerk, on appeal, send up the 
 original papers and a certified copy of the appeal bond, 
 this is a transmission of the appeal, within the meaning 
 of the statute.^ And in Delaware, though the transcript 
 of a justice of the peace, on appeal, is required to be under 
 seal; the seal is not necessary to give jurisdiction to the 
 superior court. And the seal may be waived by pleading 
 to an irregular transcript.^ So, in New Jersey, an appeal 
 will not be dismissed, because the justice omitted to cer- 
 tify in his transcript the fact that he granted it. The 
 acceptance of the bond, and the sending up of the papers, 
 are sufficient evidence that he did grant it.^ So, in Rhode 
 Island, a copy of the recognizance, given on appeal from 
 a justice's court, is not an essential portion of the copy of 
 the case to be filed in the appellate court, and the filing 
 of an incorrect copy is no ground for dismissing the 
 appeal.^ So, in Indiana, on appeal from a justice of the 
 peace, the certificate of the justice annexed to the tran- 
 script was as follows : " I hereby certify that the foregoing 
 is a true transcript of the proceedings had before me, in 
 
 ' Martin v. Latimer, 4 Tex. 335. Nisbet v. Lawson, 1 Kelly, 275; 
 
 2 Carrawayo. Board, &c., 1 How. Iludson iJ.Pettijohn, 4 niirring.350. 
 Miss. 21. *' Lewis v. Hazel, 4 Harring. 470. 
 
 3 Hugbartv.Giddens, 6Tex. 488. ? Rodenbough v. Rosebury, 4 
 » < Lyou V. Tevis, 8 Clarke (Iowa), Zabr. 491. 
 
 79. « State v. Almy, 3 R. I. 149.
 
 756 THE LAW OF NEW TRIALS. [CII. XXI. 
 
 tlic above cause, as appears from my docket. Given under 
 my hand and seal," &c. Held, sufficient.^ 
 
 § 135. The uniform statutory requirement is, that copies 
 of the material papers be sent up.(a) It is irregular for a 
 clerk and master, even by consent of counsel, to send up 
 the original papers of a cause, on an appeal from an- inter- 
 locutory order, or, by consent, to charge, in such a case, 
 as if copies had been made and sent up.- And original 
 papers, without a certified transcript of the record, confer 
 no jurisdiction upon the court above, on appeal.^ See 
 § 1^2. 
 
 § 136. It is the usual requirement, that copies of any 
 papers constituting the foundation of the plaintifl''s de- 
 mand be sent up as part of the record."* 
 
 § 137. On appeal from a justice, in Indiana, it must 
 appear, from the transcript of the record, that the plaintiff 
 had filed a statement of his demand, or some note or other 
 Avriting relied on as the cause of action; othervrise the 
 action will be dismissed.' But any statement, however 
 short or informal, will answer the purpose, provided 
 enough be shown to bar another action for the same 
 demand.^ 
 
 § 138. It is error to receive notes in evidence not marked 
 as filed by the justice, nor otherwdse identified by the 
 transcript.'' 
 
 § 139. The bill of particulars filed in the justice's court, 
 
 ' Whitney v. Mills, Blackf. 545. 5 Bell v. Trotter, 4 Blackf. 12. 
 
 2 Emmons w. McKesson, 5 Jones, ^ Denby v. Hart, 4 Blackf. 13. 
 Eq. 92. ^ Grafts. Diltz, 3 Greene (Iowa), 
 
 3 Huston V. Huston, 3 Iowa, 248. 570. 
 * Waugh V. Andrews, 3 Ired. 75. 
 
 (a) See Buckley v. Lacroix, 14 La. An. 29.
 
 CU. XXL] APPEAL. 757 
 
 in Ohio, must l)e certified on appeal, and the evidence con- 
 fined to such particulars.^ 
 
 § 140. If the papers necessary on the appeal are not 
 submitted to the court ; either the appeal will be dismissed 
 for informality ,2 or the appellee may docket the cause 
 himself, and have the judgment proper upon the merits 
 entered.^ 
 
 § 141. In general, however, reasonable indulgence is 
 allowed, in case of failure strictly to comply with the 
 statutory requirements as to return of papers. It is held, 
 that neglect of a justice of the peace, to file the papers in 
 the clerk's ofiice in time, is no cause for dismissing the 
 a]3peal.'' So, that, where an appellant has entered into 
 bond, which is approved and accepted by the justice; the 
 appeal is taken, and is not defeated by the neglect of the 
 justice to send up the papers within the time required by 
 law. But the appellant may apply to the court to compel 
 the justice to send up the papers.' So an appeal, dismissed 
 because the transcript was not filed in time, was rein- 
 stated, on affidavit of the clerk that the failure was owing 
 to his not having prepared it in time.^ 
 
 § 142. When, in Alabama, the original papers and judg- 
 ment entry are sent up properly certified, the appellate 
 court, without other proof, will look to them as evidence 
 of what was done in the cause.^ See § 135. 
 
 § 143. An error in a certified copy of an appealed crimi- 
 
 > McCoy V. Thompson, Wright, Scam. 288 ; Little v. Smith, 4 lb. 
 
 649, 400 ; Ewing i\ Bailey, ib. 420 ; 
 
 2 Sun, &c. V. Dwight, 1 Hilt. 50. Sherman v. Kolberg, 9 Cal. 17 ; 
 
 3 Holloway «. Baker, 6 Clarke Dickerson «. Apperson, 19 Mis. 
 (Iowa), 52. 319. 
 
 ^ Lacy V. Fairman, 7 Blackf. 558. « Stark ». Barnes, 2 Cal. 162. 
 s See Campbell v. Quiuliu, 3 ' Wolfe v. Parham, 18 Ala. 441.
 
 758 THE LAW OF NEW TRIALS. [CH. XXI. 
 
 nal case may be corrected iu the appellate court by the 
 certifying officer.^ 
 
 § 144. If the transcript sent up by a justice of the peace 
 be imperfect, a motion for a rule against the justice, to 
 certify a full and correct transcript, &c., should be granted, 
 although not made until after a motion to dismiss the suit 
 by the appellee. But if the imperfect transcript shows a 
 good cause of action, the suit should not be dismissed, but 
 only the appeal, although there should be no motion to 
 require the justice to amend.^ 
 
 § 145. It is the invariable practice to require of an 
 appellant a bond or recognizance, with surety, as the 
 condition of his appeal. In this respect, as in others, 
 appeal differs from those proceedings, which are designed 
 to aiford revision in matters of laio. In general, it seems 
 to be contemplated that a party has a right to such 
 revision, without terms ; while a second trial of questions 
 of fact is moi^ in the nature of 2, favor ^ upon the granting 
 of which any reasonable conditions may be imposed. In 
 the various legislation, however, of the several States, this 
 cannot be laid down as by any means the uniform rule. 
 
 § 146. The terms of the bond or recognizance usually 
 relate to costs and intervening damages, and are designed 
 to indemnify the appellee from the consequences of delay, 
 and the necessary expenses incurred during the pendency 
 of the cause in the appellate court. 
 
 § 146«. An appeal is void without an approved bond or 
 recognizance by the appellant.3(rt) So where the recogni- 
 
 i Btate V. Littlefield, 3 R. I. 124. Gilm. 2G0; Mills v. Bagby, 4 Tex. 
 
 2 Boiles V. Barnes, 4 Blackf. 176. 820. See Turq\iand v. Moss, 17 
 
 3 Dolloft" V. Plartwell, 38 Maine, Com. B. (N.) 15; McLane v. Rus- 
 54; Slater v. Steamboat, &c., 10 sell, 29 Tex. 127; Wilson v. Ed- 
 Mis. 513; Simpson v. Alexander, 5 Avards, 5 Cold. 238. 
 
 (a) In New Hampshire, when an appeal is taken from a justice of the 
 peace, the proper practice is, for the justice to go through with the usual
 
 en. XXI.] APPEAL. 759 
 
 zancG mis-recites the judgment.^ And where an appeal 
 bond is not in proper form, the appeal may he dismissed.^ 
 (See § 153.) So the claim of an appeal does not operate 
 as a supersedeas or stay of execution, until the appeal bond 
 is filed.^ 
 
 § 147. In Illinois (and this is probably the usual prac- 
 tice), it is not sufficient for the clerk to certify that an 
 appeal bond had been Hied ; a copy of it should be inserted 
 and certified in the record sent up.^ 
 
 § 148. An appeal bond, which recites that one not a 
 party to the suit has taken an appeal, is void, as against 
 public policy.^ 
 
 149. Under the Rev. Sts. of Massachusetts, c. 138, § 5, 
 giving an appeal to convicts, in certain cases, and pro- 
 viding that the appellant shall be committed until he 
 shall recognize, &c. ; an appeal was disallowed, where the 
 appellant, after claiming his appeal, absconded without 
 recognizing.^ 
 
 § 150. Where a party paid the justice his fee for an 
 appeal, and merely said that he would ofter A. as bail, 
 and A. afterwards came into the room where the justice 
 was, for the purpose of becoming bail, but nothing was 
 
 ' Curry v. Hinman, 3 Gilin. 90. « Pickering ». Mizncr, 4 Gilm. 
 
 2 Young V. Mason, 3 Gilm. 55. 334. 
 
 3 Branigau v. Rose, 3 Gilm. 123. ^ Reid v. Quigley, IG Ohio, 445. 
 
 5 Com. v. Dunham, 23 Pick. 11. 
 
 form in taking the recognizance of the principal and sureties. Where 
 they present themselves before the magistrate, to recognize as required 
 by statute, and he, with their assent and in their presence, makes an 
 entry upon his docket of an appeal and of tlieir recognizing as principal 
 and sureties, the appeal and recognizance are sufTiciently taken. And he 
 may be compelled by mandamas, upon his refusing, to make out a copy 
 in due form. Ballou v. Smith, 9 Fost. 530.
 
 760 THE LAW OF NEW TRIALS. [CH. XXI. 
 
 tlien said l)y liim or any one else in regard to his becoming 
 bail, and the justice did not enter him as bail, and nothing 
 more than this was done within two hours after rendition 
 of the judgment; held, audita querela would not lie to set 
 aside the judgment.^ 
 
 § 151. The defendant, in an action of debt on a judg- 
 ment rendered by a justice of the peace, pleaded, that, 
 upon the rendering of said judgment against him, he 
 moved an appeal to the county court, which was allowed ; 
 and the plaintiff replied, that, though true it is that, upon 
 the rendering of said judgment, the defendant moved an 
 appeal to the county court, which said appeal was allowed, 
 &c. Held, 1st, that the plea was not bad for want of an 
 averment that a bond or recognizance was given on the 
 appeal, as this fact was necessarily implied in the allow- 
 ance of the appeal; 2d, that the replication contained an 
 admission that a valid appeal was taken and allowed.- 
 
 § 152. After an entry of judgment for the plaintiff on 
 a justice's docket, this statement followed, viz.: "On, &c., 
 comes the defendant, and files an appeal bond, but does 
 not ask an appeal until he further considers the matter." 
 Held, that, notwithstanding this statement, the defendant 
 might, on appeal, show by affidavits, that the appeal was 
 prayed for when the appeal bond was filed.^ 
 
 § 153. In case of a defective bond or recognizance, the 
 appeal may be dismissed.^ (See § 146a.) Thus the court 
 may refuse to proceed, for want of jurisdiction, if they 
 become satisfied, during the trial, that the appeal bond 
 was executed without authority.' So where an appeal 
 was allowed to two defendants, on the "condition that 
 
 ' Ilarriman v. Swift, 31 Vt. BSo. » Frazer v. Smith, G Blackf. 210, 
 2 Curtiss V. Beardsley, 15 Conn. ^ FiTiicli v. Sncll, ;J7 Elaine, 100. 
 518. ^ Slietliar's Case, 4 Cow. 540.
 
 en. XXI.] APPEAL, 701 
 
 they file their bonds," and only one filed Lis bond ; the 
 appeal was dismissed with costs.^ 
 
 § 154. The plaintiff filed a motion to dismiss the appeal, 
 for non-compliance with the statute requisitions as to re- 
 cognizances. The defendant moved for a nonsuit, as of a 
 previous term, supporting his motion by affidavits of a 
 previous agreement and order of discontinuance by the 
 plaintiffs ; which motion was granted, and nonsuit entered 
 nunc 2))'0 tunc. It appearing that the statute requisitions 
 had not been complied with; held, the judgment must be 
 reversed for want of jurisdiction, the alleged discontinu- 
 ance at a previous term being entirely immaterial. 
 
 2 
 
 § 155. But it is not a matter of course to dismiss an 
 appeal for this cause.^ Thus it is hold erroneous to dismiss 
 an appeal on account of a defect in the bond, when the 
 appellant offers to execute a new and sufficient bond and 
 proceed to trial forthwith.'' So where it appears to the 
 appellate court that the surety is insufficient, such court 
 may require a new recognizance.' So if the appellant 
 does everything required of him by the statute to perfect 
 his appeal, but the magistrate neglects to indorse his 
 satisfiiction as to the surety ; the appeal ought not to be 
 dismissed.^ So, in Illinois, an appellant from a justice of 
 the peace, in a trial of the right of property, having 
 filed a defective bond, may have leave to amend it in the 
 appellate court.^ 
 
 § 156. Questions have arisen respecting the payment of 
 fees, as a necessary condition of appeal. 
 
 • Johnson v. Barber, 4 Gilm. 1 ; « Appleton v. Turrentine, 19 Ala. 
 
 Watspn V. Thrall, 3 ib. 69. 700. 
 
 2 Varney v. Caswell, 3 Wis. 744. » state v. Lavally, 9 Mis. 834. 
 
 3 Maynard v. Hoskins, 8 Mich. ^ Shiff d. Brownell, 4 Wis. SSo. 
 81 7 Patty V. Winchester, 20 111. 
 
 261.
 
 762 THE LAW OF NEW TRIALS. [CH. XXI. 
 
 § 157. All ofter to pay fees, -when the appeal papers 
 shall be made out, is not a tender of the fees. The justice 
 is not bound first to make out his papers, and then rely 
 on having his fees paid afterwards.^ 
 
 § 158. The judgment below was afRrrned according to 
 the rule of court, because the appellant failed to pay the 
 fees and have the appeal papers filed. To obtain a trial, 
 he afterwards made aflidavit, that he was sick in bed at 
 the time and was unable to attend to the payment ; but 
 it appeared, that, when the judgment was aflirmed, his 
 attorney was present and made no objection. Held, the 
 affidavit did not sufficiently show that the sickness of the 
 appellant prevented the attorney from attending to his 
 case, and the judgment was allowed to stand.^ 
 
 § 159. In reference to successive appeals, it is held that a 
 party cannot appeal a second time, the first appeal being 
 dismissed, from the same judgment.^ 
 
 § 160. A defendant in equity appealed from a decree in 
 favor of the plaintifl", and gave bond to prosecute his 
 appeal ; and afterwards moved the court to open the 
 decree and grant a hearing, which motion being over- 
 ruled, he appealed from this decision also. Held, as the 
 decision of such a motion rested in the sound discretion 
 of the court below, the second appeal must be dismissed, 
 but the appellate court would not order the court below to 
 carry the first decree into execution, until the first appeal 
 had been heard.* 
 
 § 161. A decree of the Circuit Court of the United 
 States, in a suit to enjoin infringement of a patent, after 
 reciting that 13. was the inventor of the machine, and that 
 
 ' People V. Harris, 9 Cal. 571. » Brill v. Meek, 20 Mis. 3o8. 
 
 2 McMiinus V. Ilurncs, G Clarke * Wylie v. Coxc, 14 How. 1. 
 (Iowa), l.VJ.
 
 en. XXI.] APPEAL. 763 
 
 his patent had been duly assigned to the plaintiff, dis- 
 missed the bill, on the ground that the defendant used his 
 machine under a license from the patentee. The plaintiff 
 appealed to the Supreme Court, who reversed the decree. 
 Held, the defendant could not afterwards appeal from so 
 much of the decree of the Circuit Court as recited the 
 invention and the assignment.^ 
 
 § 162. In Indiana, if a suit be brought to the Supreme 
 Court a second time on appeal, only the proceedings since 
 the cause was remanded can be examined.^ 
 
 § 163. After an appeal from the judgment of a justice 
 of the peace, judgment in the Circuit Court, judgment 
 reversed by the Supreme Court and remanded for another 
 trial; it is too late for a motion in the Circuit Court to 
 reject the pleas because not filed until after the appeal, 
 or to dismiss the appeal because the justice had not filed 
 the papers in time.^ And where judgment had been ren- 
 dered by a justice for the plaintift', a new trial granted, an 
 appearance by the parties, a continuance at the instance 
 of the plaintiff', judgment again for the plaintiff, and an 
 appeal by the defendant; the court refused to set aside 
 the appeal, on the aflidavit of the plaintiff, that the first 
 judgment was rendered in his absence, and that the new 
 trial was granted without his knowledge.'' 
 
 > Coruiug I'. Troy, &c., 15 IIow. ^ Abel v. Burgctt, 4 Blackf. 5tl. 
 451. * Jones V. Rodman, 4 Blackf. 
 
 2 Ilobson V. Doe, 4 Blackf. 487. 493.
 
 764 
 
 THE LAW OF NEW TRIALS. 
 
 [on. XXII. 
 
 CHAPTER XXII. 
 
 AUDITA QUERELA. 
 
 1. Dcfiuition ; for the most part 
 obsolete. 
 
 2. As connected with other 
 modes of revision. 
 
 6. General natnre and objects. 
 8. Lost by neglect. 
 
 9. Absent defendant ; default. 
 12. Imprisonment. 
 15. Payment of judgment. 
 18. Parties. 
 21. Practice. 
 
 § 1. Audita querela is defined as "a writ applicable to 
 the case of a defendant against whom a judgment has been 
 recovered (and who is therefore in danger of execution or 
 perhaps actually in execution), grounded on some matter 
 of discharge which happened after the judgment. It is a 
 remedial process, which bears solely on the wrongful acts 
 of the opposite party, and not upon the erroneous judg- 
 ments or acts of the court. It will not lie, therefore, 
 where the cause of complaint is a proper subject for a writ 
 of error. It is in the nature of an equitable suit — a regu- 
 lar suit, in which the parties may plead, take' issue, &c. 
 In modern practice, it is usual to grant the same relief on 
 motion. "'((() 
 
 ' Bouv. Law Diet. ; Whart. Law 210; Chambers v. Neal, 13 B. Men. 
 Diet. See White v. Clapp, 8 Allen, 256 ; Job d. Walker, 3 Md. 129 ; 
 283; Marsh v. Haywood, 6 Humph. McDonald v. Falvey, 18 Wis. 571. 
 
 (a) The audita querela is superseded, in Maryland, by motion. Hus- 
 ton V. Same, 20 Md. SO.o. Audita querela is not an action of tort. Stone 
 V. Chamberlain, 7 Gray, 206. It will be seen that nearly all the cases 
 cited have occurred in the State of Yermont, where this writ seems to 
 be a favorite remedy. It is truly remarked by the court of that State, 
 that the writ of audita querela is an important remedial and ecputable 
 process, and should be allowed, where an execution has been irregularly 
 issued, from which the party ought to be relieved ; and it should at least
 
 en. XXir.] AUDITA QUERELA. 765 
 
 § 2. This remedy may be considered in connection with 
 other modes of revision, besides that of a simple motion. 
 
 be a concurrent remedy with relief on motion. Porter v. Vaughn, 24 
 Yt. 211. 
 
 The following case recently occurred in Pennsylvania : — 
 
 Commonwealth v. William Berger. Opinion by Paxson, J. March 
 4, 1871. 
 
 This was a rule to show cause why the judgment in the above case 
 should not be stricken off. The said judgment was obtained March 20th, 
 1868, in a suit brought upon a forfeited recognizance, and is entirely 
 regular. On the 28th of January, 1869, the governor of this common- 
 wealth remitted the said recognizance. There can be no doubt, under 
 the authority of Commonwealth v. Shick, 11 P. F. S. 495, of the power 
 of the governor to remit a recognizance at any time before the money 
 has actually been made upon the execution. It is also a part of the his- 
 tory of this case, that the defendant, in order to obtain the full benefit 
 of the aforesaid remission of the recognizance, and to procure such order 
 or decree as would destroy said judgment for the purposes of execution 
 and lien, obtained a writ of audita querela in this court, in which the 
 commonwealth was made the defendant. This writ was served by the 
 counsel for the above defendant upon the counsel of record for the com- 
 monwealth in the above-stated action. Judgment was taken against the 
 commonwealth in the audita querela by default, for want of an appear- 
 ance, which, so far as the record shows, ended the proceedings in that 
 case. We are now asked to strike off the judgment in the suit upon the 
 recognizance, as a proper and logical result of the action of the governor 
 above referred to, and of the judgment upon the audita querela. 
 
 The latter writ, though seldom used in practice, is not obsolete, as was 
 at one time supposed, and has occasionally been resorted to in this and a 
 number of other States. It is too late to question the right to issue such 
 writ in a case where the defendant has a defence which he has had no day 
 in court to plead. But every relief that could be obtained by audita 
 querela is now grantable upon motion. The latter more simple and 
 speedy form of proceeding has driven this ancient and cumbrous remedy 
 out of general practice. The application of the unused machinery of 
 the law may be compared to the firing of a piece of rusty ordnance. 
 The danger is greater to those who use it than to those against whom it 
 is directed. In this case the proceedings upon the audita querela are 
 defective, because — 
 
 1. The writ was not served upon the defendant therein, but upon a 
 member of the bar. 
 
 2. Judgmeijt by default for want of an appearance was entered against
 
 766 THE LAW OF NEW TRIALS. [CII. XXII. 
 
 § 3. Matter of error^ wbetlicr iu law or fact, will not 
 sustain it.'(rt) 
 
 § 4. The rule, that the denial of an appeal by a justice 
 of the peace, from a judgment rendered in his court in a 
 case which by law is appealable, is sufficient ground for set- 
 ting aside the judgment on audita querela, is not changed 
 by a statute introducing the new remedy of a petition.^ 
 
 § 5. Where an execution has been issued from a court 
 of law, this writ cannot be sustained to vacate it, or sus- 
 
 ' School, &c.'y.Rood, 1 Williams, ^ Edwards v. Osgood, 33 Vt. 224. 
 214. 
 
 the defendant without any declaration having been filed by the plaintiff. 
 Audita querela is an independent suit, the pleadings are as in other 
 cases, and damages may be recovered against the defendant therein. But 
 even if a declaration had been filed, this judgment would still be erro- 
 neous, for the reason that judgment by default for want of an appearance 
 cannot be taken in an audita querela. The common law abhors ex parte 
 proceedings, and recognizes no such thing as a judgment for want of an 
 appearance. Such judgment with us rests entirely upon statute, and 
 there is no statute in Pennsylvania which authorizes it in an audita 
 querela. By the old practice the remedy for non-appearance of the de- 
 fendant to such writ was by distress infinite. Clerk v. Moore, 2 Salk. 
 92. Under our practice the plaintiff would probably be allowed to enter 
 a common appearance for the defendant, and then rule him to plead as in 
 other cases. Lynd v. Benjamin, 2 Miles, 1 72. 
 
 3. Audita querela does not lie against the commonwealth. 
 
 Those who are curious to examine the old law upon this subject will 
 find it in 3 Viner's Abridg. 345 ; 1 Bacon's Abridg. 309 ; 1 Comyn's 
 Digest. 785 ; while the modern authorities are well collected in Troubat 
 and Haly's Pr., vol. i., part ii., p. 11G4. 
 
 The audita querela being an independent suit, it follows that we can 
 make no order in this proceeding in any way affecting that case. It is a 
 sufiBcient answer to the present application that, the judgment being free 
 from fraud and lawfully entered, there is no power in this court to strike 
 it off 
 
 Rule discharged. 
 
 (a) Audita querela does not lie to correct an erroneous taxation of 
 costs. Goodrich v. Willard, 11 Gray, 380; Clough v. Brown, 38 Vt. 179.
 
 en. XXII.] AUDITA QUERELA. 707 
 
 pcnd its operation, on the ground that it has been enjoined 
 by a court of chancery. The remedy is by application to 
 that court. '(a) 
 
 § 6. Audita querela, though authorized by statute, is 
 derived from the common law, and is governed by the 
 rules of the conmion law as to misjoinder, and })artics and 
 causes of action, and as to its proceedings, mode of trial, 
 and the rendition and effect of final judgment.^ 
 
 § 7. It is maintainable as well quia timet as for one actu- 
 ally in execution.3 Thus (in Vermont) an execution issued 
 by a justice of the peace for more than $53, and returnable 
 in sixty days instead of one hundred and twenty days, is 
 irregular and void. And the writ of audita querela is a 
 proper remedy to set aside the execution, though the offi- 
 cer has not called upon the debtor for the execution, nor 
 made any effort to collect it, if sixty days from the date 
 of the execution have not expired.* 
 
 § 8. A party is not entitled to this relief, when he has 
 
 • Porter v. Vaughn, 24 Vt. 211. ^ Glover v. Chase, 1 WiUiams, 
 2 Johnson -o-PUmpton, 30 Vt. 420. 533. 
 
 * Hovey v. Niles, 2G Vt. 541. 
 
 (a) A motion to compel a plaintiff who seeks to maintain audita que- 
 rela, together with a bill in equity, upon the same cause of action, to 
 elect between his remedies, will not be entertained, where both cases 
 have been reserved after hearing to be determined by the full court, with- 
 out objection by the defendant. The plaintiff, having recovered judg- 
 ment against the defendant, levied execution upon an equity of redemp- 
 tion conveyed by the defendant in fraud of creditors; but, through failure 
 to bring suit within a year to recover the land, the levy became iueffec- 
 tuah The defendant afterward sued out a writ of review of the judgment, 
 and obtained judgment against the plaintiff, under Kev. Sts., c. 99, for 
 the amount of the execution, and took out and levied execution upon the 
 plaintiff's land. Held, the plaintiff could maintain neither audita que- 
 rela, nor a bill in equity, for relief from the judgment in review and 
 execution thereon. Barker v. Walsh, 14 Allen, 172.
 
 768 THE LAW OF NEW TRIALS. [ciI. XXII. 
 
 had a legal opportunity to avail himself of the matters of 
 defence set forth in his complaint, or when the injury, of 
 which he complains, is attributable to his own neglect. 
 Thus when a collector of taxes is summoned by the town 
 before a justice of the peace, to show cause why an extent 
 should not issue against him for arrears of taxes, and he 
 appears, and the justice, upon hearing, decides to issue an 
 extent ; the collector cannot have relief by audita (jucrela, 
 by showing that he did not receive proper notice of the 
 proceedings before the justice, or that there was not a legal 
 grand list, or that there was no legal rate bill and warrant 
 committed to him for collection — these being all proper 
 subjects of inquiry and adjudication by the magistrate.^ 
 
 § 9. "When the defendant, in a suit commenced before a 
 justice of the peace, was without the State at the time the 
 writ was served, and had no notice of the pendency of the 
 suit, and judgment was rendered against him by default, 
 without any security being given by recognizance, as re- 
 quired by statute, conditioned that the plaintitf would 
 refund such sum as might be recovered by the plaintiff 
 upon writ of review ; the defendant may have a remedy 
 by audita querela.^ So, in Massachusetts, audita querela 
 may be maintained by a judgment debtor residing out of 
 the commonwealth, and not served with process, to set 
 aside an execution taken out by the creditor without first 
 filing the bond required by Rev. Sts., c. 92, § 6, even after 
 the execution has been levied upon his real estate and 
 returned satisfied.^((2) 
 
 » Griswold U.Rutland, 23 Vt. 324. Eastman t. "Waterman, 26 ib. 494. 
 
 2 Alexander v. Abbott, 21 Vt. See Marvin v. Wilkius, (> Aik. 107. 
 
 476 ; Wliitney v. Silver, 23 ib. 634 ; » Dingman v. Myers, 13 Gray, 1. 
 
 (a) If a writ, brought upon a just claim, is served by leaving a sum- 
 mons at the debtor's last and usual jjlace of abode, and he, though know- 
 ing of the action, never receives the summons, and afterwards commences 
 proceedings in insolvency, and does not appear to defend or procure a 
 continuance of the action ; he cannot maintain an audita querela to set 
 aside the judgment. White v. Clapp, 8 Allen, 2b3.
 
 CU. XXII.] AUDITA QUERELA. 769 
 
 § 10. A suit was commenced against a non-resident, 
 who had no notice of it. The suit was entered; an attor- 
 ne}', not employed by the defendant, entered an appearance 
 for liini; and judgment was rendered against him, without 
 proof of notice, and without giving a bond to repay to the 
 defendant such sum as might be recovered by him on 
 review. Held, audita querela was not the proper remedy.^ 
 And audita querela, brought to set aside a judgment for 
 want of notice of the commencement and pendency of a 
 suit, cannot be. sustained in contradiction of the officer's 
 return, this being conclusive.^ 
 
 § 11. Where the plaintiff in a justice suit has been led 
 by the defendant to suppose that the suit would be de- 
 fended, and accordingl}^, on the return of the writ, it 
 beino; inconvenient then to remain and attend to the trial, 
 in good faith applies for and obtains a continuance, still 
 supposing that the defendant will appear and claim trial ; 
 the fact, that the defendant does not appear on the day 
 when such continuance is granted, is not sufficient to 
 sustain audita querela to set aside a judgment for the 
 plaintiff, subsequently rendered by default.^ 
 
 § 12. Audita querela lies by a person imprisoned under 
 an execution, in which, by a mistake of the clerk, the 
 date of the judgment is erroneously stated, and the officer 
 thereby required to collect more interest than is due.^ 
 
 § 13. A debtor, having been imprisoned by virtue of an 
 execution, was admitted to the liberties of the prison, and 
 subsequently obtained a discharge as a bankrupt, but the 
 creditor refused to discharge him from imprisonment, or 
 to consent to his going at large. Held, the debtor could 
 
 ' Spaukling v. S-nMft, 18 Vt. 214. See Paddlefora v. Bancroft, 23 ib. 
 2 Withcrell v. Goss, 26 Vt. 748. 529. 
 
 » Aldiich V. Bouett, 33 Vt. 202. * Stone v. Chamberlain, 7 Graj-, 
 
 20G. 
 
 49
 
 770 THE LAW OF NEW TRIALS. [CII. XXII. 
 
 not maintain audita querela against the creditor to dis- 
 charge him, but must judge for himself, whether his dis- 
 charge would justify him in going at large, and act accord- 
 ingly.^ But, if the debtor bo actually in prison, he may 
 sustain such process in order to obtain liis liberty. ^ 
 
 § 14. The liability of bail, by indorsing his name upon 
 the writ, is a liability iipon contract, within the Rev. Sts. 
 of Vermont, c. 28, § 63 ; and an execution issued against 
 the body of such bail, upon a judgment against him on 
 scire facias, will be set aside on audita querela.^ 
 
 § 15. AYhere satisfaction has been made on an execu- 
 tion, a bill for an injunction to restrain a second execution 
 is not the proper remedy, but a motion, on notice, in the 
 nature of a writ of audita querela, to call in the execution, 
 and have satisfaction entered of record.* 
 
 § 16. A tender of the amount due upon an execution, 
 and a refusal to receive it, may entitle the debtor to an 
 audita querela; but not unless it is kept good and the 
 money brought into court, which must appear affirma- 
 tively by the declaration.* 
 
 § 17. Audita querela will not lie, in Vermont, to set 
 aside an execution, issued on a judgment rendered by the 
 county court, when the only grounds of complaint are, 
 that the judgment was rendered by default, in an action 
 on a note, and that the plaintiff had neglected to indorse 
 upon the note certain payments which the complainants 
 had made, but took judgment for the face of the note, 
 without deducting any payments, and that the clerk, in 
 making up the judgment, had made an error in the com- 
 
 > Goulds. Mathewson, 18 Vt. Of). « Mcl{:io v. Davis, 5 Jones Eq. 
 2 Comstock V. Grout, 17 Vt. 512. 140 ; Parker v. Jones, ib. 27G. 
 ■i Stou-hton V. Barrett, 20 Vt. 385. * Perry v. Ward, 20 Vt. 93.
 
 CH. XXII.] AUDITA QUERELA. 771 
 
 putation of interest, whereby execution had issued for a 
 larger sum than actually appeared due on the note.'(a) 
 
 § 18. All the parties to a judgment complained of must 
 join in the writ.^ But a joint action of audita querela 
 cannot be maintained by a principal defendant, and a 
 trustee, to vacate the judgments rendered against them 
 respectively, when their grounds of complaint are wholly 
 different, and the judgments if vacated must be vacated 
 on different grounds.^ 
 
 § 19. When the basis of an audita querela is altogether 
 personal, it will die with the person, and, in such ease, the 
 bail upon the recognizance cannot be held. But an audita 
 querela, when it goes to the foundation of the judgment, 
 may be prosecuted by executors and administrators.* 
 
 § 20. In Maryland, the affidavit, on a rule to show cause, 
 in a proceeding of the nature of an audita querela, may 
 be made by another person, as well as by the defendant.'* 
 
 § 21. A judgment rendered by a justice of the peace 
 against an insane person, who had a guardian, but whose 
 guardian was not notified of the suit, and who has no 
 guardian appointed for him by the court, will be vacated 
 upon audita querela.^ 
 
 § 22. A judgment was rendered by a justice of the peace, 
 
 • Perry v. Ward, 18 Vt. 120. * Conn., &c. v. Bliss, 24 Vt. 411. 
 
 2 Herrick v. Orange, &c., 1 Wil- « Job v. Walker, 3 Md. 139. 
 
 liams, 584. 6 Lincoln v. Flint, 18 Vt. 247. 
 » Johnson v.Phinpton, 30 Vt. 420. 
 
 (a) Where a petition for a writ of audita querela averred an agree- 
 ment to accept a certain sum in compromise of a judgment for a* larger 
 amount, and an actual payment of the greater part, with a tender of the 
 balance ; it was not error to refuse the writ, as, to discharge the judg- 
 ment, the agreement nmst be fully executed. Kean v. Vaughan, 48 
 Penn. 477.
 
 772 THE LAW OF NEW TRIALS. [CH. XXII. 
 
 against an infant, who appeared by attorney, and the de- 
 fendant appealed. While the case was pending in court, 
 the infant became of age, the attorney withdrew his ap- 
 pearance, and judgment thereupon was rendered by defoult. 
 Hold, audita (piorela would not lie to vacate such judg- 
 ment, it being not void, but voidable.* 
 
 § 23. If the plaintiff, in an audita querela to set aside 
 an execution, desire to set it aside on the ground that the 
 judgment was entered on Sunday, which, as appears from 
 the exceptions, was the day on which the trial was in fact 
 concluded, and the judgment rendered; he should by his 
 declaration advertise the defendant of that ground of 
 objection.^ 
 
 § 24. In Vermont, the affidavit of the truth of the facts 
 set forth in a writ of audita querela should be annexed to 
 the writ, or become part of the process. But where the 
 judge who signed the writ certified that the facts con- 
 tained in the writ were sworn to, and, on the trial, the 
 affidavit of the attorney of the complainant, in the terms 
 required by statute, and made before the writ was certified 
 as a supersedeas, was produced ; it was held to be a suffi- 
 cient compliance with tlie statute. The minute of recog- 
 nizance, in such case, signed by the judge, is matter of 
 record, and cannot be contradicted by parol.^ 
 
 § 25. The duty imposed upon the judge allowing a writ 
 of audita querela (Verm. Comp. Stat. 292, § 8), to take a 
 copy of the whole process and recognizance, "and file the 
 same in the office of the county clerk, in the county in 
 which such writ is allowed," is directory in its character; 
 and, if any injury results from the neglect of the judge to 
 so leave a copy, it should not be visited upon those upon 
 
 ' Barber v. Graves, 18 Vt. 290. 3 Hinman v. Swift, 18 Vt. 315. 
 
 2 Oakes v. School District, 'do Vt. 
 156.
 
 CH. XXII.] AUDITA QUERELA. 773 
 
 whom no duty was imposed, or obligation rested for its 
 performance.^ 
 
 § 26. In Vermont, where the county court determine 
 that a writ of audita querela was brought for delay, they 
 have power, under the statute, to award to the defendant 
 twelve per cent, interest on his judgment, as damages, and 
 double costs. Such determination is one resting in the 
 discretion of the county court, and cannot be revised by 
 the Supreme Court on exceptions.^ 
 
 § 27. Where the county court, in Vermont, adjudged 
 that a writ of audita querela was brought for delay 
 merely, and awarded to the defendant double costs and 
 twelve per cent, interest, nnder the statute, and this judg- 
 ment was affirmed in the Supreme Court, upon exceptions, 
 and thereupon the complainants paid the double costs and 
 twelve per cent, interest ; held, there was no irregularity 
 in taking an execution upon the original judgment for its 
 full amount, without regard to such payment, since the 
 payment did not appear upon the records of the county 
 court, where the original judgment was rendered.^ 
 
 § 28. On audita querela brought to seek relief from a 
 judgment and execution, no order can be entered to bring 
 forward on the docket the action in which such judgment 
 and execution were obtained.^ 
 
 ' Kidder v. Hadlev, 25 Vt. 544. » Perry v. Ward, 30 Vt. 92. 
 
 2 Perry v. Ward, 18 Vt. 120. * Foss v. WitUam, 9 Alien, 572.
 
 774 
 
 THE LAW OF NEW TRIALS. 
 
 [Cn. XXIII. 
 
 CHAPTER XXIII. 
 
 MANDAMUS. 
 
 1. Definition, &c. 
 
 2. Does not lie in case of other 
 remedies. 
 
 4, Parties. 
 
 5. As connected witli appeal, 
 error, &c. 
 
 8. Designed to compel action. 
 
 10. Lies only to a continuing 
 tribunal. 
 
 11. Constitutional questions. 
 13. In reference to new trial, 
 
 exceptions, &c. 
 13. Miscellaneous cases. 
 
 § 1. Mandamus is defined, as a " command issuing in 
 the name of the sovereign authority from a superior court 
 having jurisdiction, and directed to some person, corpora- 
 tion, or inferior court,(a) within the jurisdiction of such 
 superior court, requiring them to do some particular thing 
 therein specified, which appertains to their office and duty, 
 and which the superior court has previously determined, 
 or at least supposes to be consonant to right and justice."^ 
 
 § 2. But it is further said, mandamus is only to be re- 
 sorted to in cases of the last necessity^ not where there is 
 
 ' Bouv. Law. Diet.; Whart. Law Diet. 
 
 (a) A mandamus may be directed to \\\q judges of the District Court 
 instead of the District Court. Ilollister v. Judges, 8 Ohio (N. S.), 201. 
 Mandamus will lie to compel a clerk of the court to deliver the transcript 
 on a writ of error. Davis v. Carter, 18 Tex. 400. A plaintifi" who has 
 recovered a judgment for debt and costs, and has received the debt out 
 of court, is entitled to an execution for the costs, and the court will 
 grant a mandamus to the clerk, comuuuiding him to issue such execution, 
 llegina v. The Clerk, &c., 12 I]ng. Law and Eq. 428. It is of course 
 foreign from the plan of the present work, to consider the process of 
 mandamus, as applied to any other than judicial proceedings. Even 
 with this limitation, it hardly comes under the head of revision, or bears 
 any analogy to a new trial. (See p. 781.)
 
 CH. XXIII.] MANDAMUS. 775 
 
 another eftectual remedy.^(a) And the writ should allege 
 that the relator has no other remedy.^ (See p. 781.) 
 
 • Cora. V. Clark, Leg. Intcll., v. Wood, 35 Barb. 653; 27 Mis. 
 Feb. 7, 1808; Reading v. The Com- 225; 4 Tex. 329. 
 mouwealth, 11 Peun. 1S)G ; Greeu 2 School, &c. v. People, 20 111. 
 
 525; Goolsby's Case, 2 Gratt. 575. 
 
 (a) The court will not interfere by mandamus, unless there is a clear 
 legal obligation shown to perform the duty required. State v. Warren, 
 3 A^room, 439. The pendency of another suit for the same purpose 
 would be a good plea in abatement to an alternative writ of mandamus; 
 but the respondent cannot rely upon that plea, and at the same time ask 
 the judgment of the court upon the merits of the controversy, by setting 
 up the facts upon which he relies, as showing that upon the merits a per- 
 emptory writ should not issue. Silver v. People, 45 111. 224. A manda- 
 mus will not be granted to compel the judge of the lower court to sign a 
 bill of exceptions, when it does not appear that the bill of exceptions had 
 been exhibited to the adverse party, previously to its being presented to 
 the court. State v. Judge, &c., 13 La. An. 481. (See p. 778.) It is not 
 the proper remedy, where an inferior court refuses to enter a judgment for 
 costs. The party complaining has a right to appeal from such defective 
 judgment, or he may resort to his action for the costs. Peralta v. Adams, 
 2 Cal. 594. Nor does it lie to correct an erroneous award of costs. 
 State V. Judge, &c., 3 Wis. 809. Mandamus will not lie to compel a 
 judge of the (Cal.) District Court to try an action therein begun, but by 
 him ordered to be transferred to the United States Circuit Court. Such 
 order is not void, even if erroneous, and the act was judicial, not ministe- 
 rial. Francisco v. Manhattan Ins. Co., 36 Cal. 283. A district attorney 
 cannot have a peremptory mandate, to compel a judge of the District 
 Court to enter his name in an action wherein the county is a party, if he 
 has ceased to be such attorney, and the action has been disposed of. 
 Herringtou v. Sawyer, 36 Cal. 289. On an affidavit, on a motion for 
 new trial, where there is something upon which the judge is called to 
 exercise his judgment; the question is one addressed to his discretion, 
 and the Supreme Court has no authority to compel him by mandamus to 
 rescind his order. People v. Circuit, 17 Mich. 67. One court, having 
 adopted a rule not to grant mandamus where another has concurrent 
 jurisdiction, unless some good reason is shown for not making the appli- 
 cation to the latter, will not entertain an application for such writ, based 
 merely on the ground that the judge of the former has " expressed some 
 opinion" in regard to the matter related. State v. Haben, 22 Wis. 101. 
 Mandamus to a district judge, directing him to fix the amount of a release 
 bond, and to grant au order for the release of certain property sequestered
 
 776 THE LAW OF NEW TllIALS. [Cll. XXIII. 
 
 More especially it is never resorted to for the j^roteciion of 
 individual rights^ where the party applying for it has 
 another adequate, specific, legal remedy.^ And it is held 
 ■that one court will not interfere with the proper jurisdic- 
 tion of another in granting this writ. Thus the Supreme 
 Court of ISTew York will not, by mandamus, compel a 
 Court of Common Pleas to permit a cause to be removed 
 to the Circuit Court of the United States, the latter court 
 having itself the power to award the writ, when necessary 
 to the exercise of its jurisdiction.^ 
 
 § 3. It is further said, that a writ of mandamus does 
 not issue in virtue of any prerogative power, and, m 
 modern practice, is nothing more than an ordinary action 
 at law in cases where it is the appropriate remedy.^ Also, 
 that a mandamus ought not to issue except to compel 
 performance of a duty clearly defined by law, involving 
 
 ' White, &c., 23Vt. 478. ' Kentucky a.Dennisou, 24 How. 
 
 2 People V. Judges, &c. , 2 Denio, 66. 
 197. 
 
 iu a suit, will not be granted at the instance of the defendant in a suit, 
 where the suit has been duly and legally discontinued, and the effect of 
 the discontinuance is to put the defendant in possession of the property 
 sequestered. State v. Farrar, 20 La. An. 99. Where every essential 
 fact exists, necessary to authorize the (Tenn.) county court to receive, 
 file, and record the authenticated copy of a will, and issue letters testa- 
 mentary thereon, the entering up of the proper judgment is a ministerial 
 act, and, on the refusal of the court so to enter up judgment, mandamus 
 will lie. Williams v. Saunders, 5 Cold. 60. The (Ky.) Circuit Court 
 may by mandamus compel the county court to levy a county tax to pay 
 a bill for medical services rendered a poor negro woman afflicted with 
 smallpox, under the employment of the county judge. Rodman v. Larue 
 County, 3 Bush, 144. Where an attorney is debarred by an inferior 
 court, for cause over which it has no jurisdiction, a writ of mandamus 
 will lie from the higher court for his restoration. Bradley, 7 Wall. 364. 
 So where the lower court decided erroneously on the testimony. State 
 V. Kirke, 12 Fla. 278. Mandamus is the proper remedy to compel a 
 circuit judge to set aside a judgment rendered against a party in his 
 absence, without legal notice. People v. Bacon, 18 Mich. 247.
 
 cii. xxiil] mandamus. 777 
 
 no discretion, nor leaving any alternative. The petition 
 should state, with precision and distinctness, all the cir- 
 cumstances under which the applicant claims the right to 
 this species of remedy, and all the objections which may 
 be anticipated should be brought to view and answered.^ 
 (See p. 781.) 
 
 § 4. A writ of mandamus will not be issued on the ap- 
 plication of an individual, who has no private nor parti- 
 cular interest in the matter, independent of that which 
 he holds in common with the public." Thus one applying 
 for a mandamus, to compel an inferior court to make a 
 rule on one of its ministerial officers, must clearly show 
 his interest in the subject matter.^ So where the court 
 made an order, dismissing a bill as to one of the com- 
 plainants for his non-appearance; and, the day after, the 
 judge in open court, upon his own suggestion, and with- 
 out notice to any of the parties, inserted therein the words, 
 "without prejudice:" held, a mandamus would not lie 
 against the judge, as the insertion made by him did not 
 affect the legal rights of the relator." It is for the public 
 officers, exclusively, to apply for such writ, where public 
 rights are to be subserved. Thus a mandamus will not 
 be granted, commanding county commissioners to locate a 
 road, although it may be their duty to do so, on the peti- 
 tion, merely, of one of the original petitioners for the road, 
 who has no greater interest than the rest of the commu- 
 nity in procuring such location.^ 
 
 § 5. Mandamus cannot be substituted for an ajJiJeal 
 Thus, in California, where a cause has been remanded, for 
 the court below to determine the truth of the allegations, 
 and that court refuses to grant the relief to which the in- 
 
 ' Cunom V. Latimer, 4 Tex. 329. * The State v. Larrabec, 3 Cliand. 
 
 2 Poopl(M'.Tnspector,&c.,4Micli. 179. 
 
 187; 2.-) Maine, 2fll. » Sanirer v. County, &c., 25 
 
 3 Fleming, 2 Wall. 759. Maine, 291.
 
 778 THE LAW OF NEW TRIALS. [CH. XXIII. 
 
 tervcnoi's arc entitled according to tlic opinion delivered 
 above, if true; the proper remedy is by ap})eal, and not 
 mandamus.^ So a mandamus will not be granted to bring 
 under review the proceedings of an inferior court on the 
 ground of error, where a writ of error will lie.^ So where 
 the defendant, in a suit commenced in the Circuit Court 
 by writ of attachment under the statute of Michigan (Rev. 
 Sts. 506), moved the court to quash the writ, &c., because 
 the aflidavit was not made before an authorized officer; 
 and the court thereupon permitted the plaintiff to file a 
 new affidavit, and then refused to grant the defendant's 
 motion: held, the proceedings by attachment being under 
 a special statute, and out of the course of the common 
 law, the affidavits, with the adjudication, would go upon 
 the record, and be removed to the Supreme Court by cer- 
 tiorari ; and tlierefore the Supreme Court refused to grant 
 a mandamus to compel the Circuit Court to quash the 
 attachment, &c.^ 
 
 § 6. Upon proceedings in error a mandamus was prayed 
 for but refused, to compel the judge of the court below to 
 sign a bill of exceptions. On error in the Supreme Court, 
 to review the affirmation of the original judgment ; held, 
 the refusal of the mandamus was not a part of the case 
 for review, but distinct from it."* 
 
 § 7. In iTew York, a mandamus will not be granted, on 
 the suggestion that the party applying wishes to bring 
 error to the court of errors, in a case where it is well set- 
 tled that the court of errors has no jurisdiction to grant 
 a mandamus.* But where a petition to the county court, 
 for commissioners to appraise the value of certain lands 
 sought to be taken for the conq»any, filed by persons 
 
 1 Lmllum V. Fourth, &c., 9 Cal. ^ People v. Judges, &c., 1 Doug. 
 7; 27 Mis. 225. 310. 
 
 2 Williams^. Judge, &c., 27 Mis. * Morgau v. Boyd, 13 Ohio St. 
 220. 27!). Sec p. 77."), n. 
 
 6 Elkiusy.Athearn, 2Deiiio, 181.
 
 CII. XXIIl.] MANDAMUS. 779 
 
 claiming to be a corporation, was dismissed, on the ground 
 that the articles did not show sufficiently where the prin- 
 cipal place of business of the company was located ; and 
 the company applied to the Supreme Court for a writ of 
 certiorari^ which was refused: held, the county judge had 
 not exceeded his jurisdiction under the (California) act of 
 1858 ; and that the proper remedy was by mandamus from 
 the District Court.' So, though an attachment for disre- 
 gard of an injunction is in form a punishment for con- 
 tempt; it is in substance a private right, and, as such, 
 the aid of a superior court may be invoked. Where a 
 judge will not hear an application for an attachment for 
 disregarding an injunction; mandamus will issue, to com- 
 pel him to act according to his discretion.^ So, in Ala- 
 bama, a wife has a right to a support out of her husband's 
 estate, pending a suit for divorce against him, and also to 
 such sum as is necessary to procure solicitors; and, when 
 this right is denied by the chancellor, at any time before 
 final alimony is set apart to her, a mandamus will be 
 awarded from the Supreme Court, to compel him to make 
 the necessary order, as there is no other adequate and spe- 
 cific remedy .3 So the judgment of a county court, in 
 refusing to accept the report of road commissioners, is not 
 a final judgment which will sustain a writ of error: the 
 proper writ is a mandamus.* So where a ministerial duty 
 devolved upon the county court, but that court, undertak- 
 ing to act judicially, did not perform the duty, but gave 
 judgment against the party moving such performance; the 
 pro]icr remedy is not a writ of error or supersedeas, but a 
 mandamus.5 go^ iii j^e^v York, a mandamus will lie to 
 compel the justices, and the jury summoned to assess 
 damages for taking land for public use, to make return of 
 
 ' Spnn;rYalloy,v.tc.,17Cal.l33. ' Phitto, etc. v. McFarland, 13 
 
 2 :\Ic'rcfd, »tc. "«. Fremont, 7 Cal. Mis. IGO. 
 
 130. * Delaney v. GodJin, 13 Gratt. 
 
 ' » King, 27 Ala. 387. 266.
 
 780 THE LAW OF NEW TRIALS. [CII. XXIII. 
 
 their action in tlio }uvmises, and. will not be CLuasliod oil 
 the ground that replevin will not lie.^ 
 
 § 8. As may be gathered from what has been already 
 said, the primary object of this process is to compel the 
 inferior tribunal to act. As expressed in a late case, its 
 office is to "stir up."^ Thus when an inferior judicial 
 tribunal declines to hear a case upon what is termed a 
 preliminary objection, which is purely a matter of law ; 
 as where the court declined to go into the merits, in a 
 proceeding to contest a sheriff's election, because the party 
 complaining had not given the notice required by statute : 
 a mandamus will lie to proceed with the trial, if the infe- 
 rior court has misconstrued the law.^ And, as we have 
 seen (p. 770), a mandamus to an inferior court will not be 
 granted, unless the petition alleges facts sufficient, if 
 proved, to show that such court has omitted a manifest 
 duty. It must contain not only the affirmative allegation 
 of the proceedings necessary to entitle the party to the 
 process, but also that other facts, which would justify the 
 omission complained of, do not exist. Thus a mandamus 
 to the county commissioners will not be granted, if every 
 statement in the petition therefor may be true, and yet 
 the commissioners be in no fault.^ So if it appear in the 
 proceeding by mandamus, that the district judge does not 
 refuse to render a judgment upon the petition; it is not 
 in the power of the Supreme Court to compel him to 
 render the particular judgment prayed for.' 
 
 § 9. Mandamus cannot be used to review or correct 
 
 ' Trustees, &c., 1 Barb. 34. < Hoxie«.County,&c., 25 Maine, 
 
 2 Per Woodward, J. School, &c. 333. 
 
 V. Anderson, 45 Penn. :590. ^ gtate v. Judge, &c., 13 La. An. 
 
 3 Castello V. St. Louis Circuit 481. 
 Court, 28 Mis. 2.j9.
 
 CII. XXIII.] MANDAMUS. 781 
 
 judicial errors.'(a) It docs not lie to inferior tribunals, to 
 correct their errors by annulling what they have errone- 
 
 ' Smyth V. Titcomb, 31 Maine, 272 ; Reg. v. Dayman, 7 Ell. & B. G72. 
 
 (a) See p. 774, u. Under Sts. 3 and 4 W. IV., c. 90, a meeting of the 
 rated iuUabitants of the parish of H. was held, to determine whether the 
 provisions of the act sliould be applied to the parish. The assent of two- 
 thirds of the voters was not given. AVithin a year, a meeting was held 
 of the rated inhabitants of a district of the parish, to determine whether 
 the act should be applied to that district ; when two-thirds of the voters 
 assented. A rate was laid upon the district in conformity with this. S., 
 one of the parties so rated, having refused to pay the rate, was sum- 
 moned before the justices, when he objected that, the latter meeting 
 having been held within a year of the former, the proceedings were void 
 by 1 16, and the rate invalid. The parties agreed that the question was, 
 whether the two meetings were substantially the same. The justices 
 decided in the affirmative, and refused a warrant for levying. Held, the 
 question was properly put before the magistrates, and, they having de- 
 termined it, the court could not, on a rule to order the justices to issue 
 a distress warrant, review their decision. Regina v. Dunn, 7 Ell. &, B. 
 220. A district board of works, under §§ 109 and 227 of the metropolis 
 local management act (18 and 19 Vict., c. 120), and Sts. 11 and 12 Vict., 
 c. 43, summoned a gas company before a justice, for opening ground 
 without the consent of the board. The company defended on the ground 
 of their charter and certain local acts. The justice stated, that he con- 
 sidered the answer valid, and that the summons ought to be dismissed ; 
 but, at the request of the board, he refused to adjudicate, stating that 
 he did so in order that the opinion of the higher court might be obtained. 
 The company insisted on his dismissing the summons. A rule having 
 been obtained by the board for an order directing the justice to adjudi- 
 cate and convict : the court discharged the rule, refusing to give any 
 opinion upon the question, and holding that the justice must act upon 
 his own view, and could not by this proceeding obtain the opinion of the 
 court ; and that the board, having requested him to refuse to adjudicate, 
 were not entitled to an order compelling him to do so. Held also, that 
 Sts. 11 and 12 Vict, c. 44, ? 5, are inapplicable to such a case. Regina v. 
 Payuter, 7 Ell. & B. 328 ; 48 Eng. L. and Vai 209. Under St. 1 and 2 
 Vict., c. 110, I 92, which directs that it shall be lawful for the insolvent 
 debtors' court, if there be a surplus after satisfaction of the debts, to 
 make an order vesting such surplus in the insolvent, his heirs, &,c. ; that 
 court acts judicially and not merely ministerially. Therefore, where a 
 party claimed such order under an alleged assignment from the insolvent.
 
 782 THE LAW OF NEW TRIALS. [CII. XXIII. 
 
 ousl}^ done, nor to guide their discretion, nor to restrain 
 them from exercising a power not delegated to them.^ 
 Thus where a judge dismisses a cause, not for want of 
 jurisdiction, but on the ground that the parties cannot by 
 law sustain the cause ; a mandamus will not be granted 
 to compel him to hear the cause again.^ 
 
 § 10. "With reference to the nature of the tribunal to 
 which a mandamus may be addressed, as continuing or 
 otherwise, it is remarked, in a recent case — " The tribunal 
 to which the writ is asked to be directed is not a perma- 
 nent or continuing one, but it is summoned to sit on each 
 particular citation of a poor debtor, and may consist, in 
 the county of Providence, of any judge of the Supreme 
 Court, or justice of the court of magistrates, in the city of 
 Providence sitting with a justice of the peace, and in the 
 
 ' Dunklin, &c. v. District Coi;rt, ^ Regina v. Eecorder, &c., 1 Eng. 
 23 Mis. 440. L. and Eq. 291. 
 
 and that court, upon inquiry, held the assignment invalid as against 
 other claimants; the court above refused to issue a mandamus, command- 
 ing the insolvent debtors' court to make an order vesting the property 
 in the alleged assignee. Regiua v. Law, 7 EU. & B. 366. By St. 18 and 
 19 Vict., c. 120, the vestry of a parish may pave any new street, and 
 the owners of the houses forming the street shall, on demand, pay to the 
 vestry the amount of the estimated expenses; such amount to be reco- 
 vered before two justices, on summons, who are to hear and determine 
 the matter, and to make such order as to costs or otherwise as to them 
 seems just. The owner of houses in a street having been summoned 
 before a police magistrate, to show cause why an order for the payment 
 of his share of the estimated expense of paving the street should not be 
 made upon him, the magistrate, after hearing the evidence, dismissed the 
 complaint, on the ground tliat the street, having been dedicated to the 
 public, as a highway, before the passing of the act, was not "a new 
 street" within the meaning of it. On a motion under the 11 and 12 Vict., 
 c. 44, § 5, calling on the magistrate to show cause why he should not 
 hear and adjudicate ; held (Erie, J., dissenting, upon the ground that the 
 decision by the magistrate was of a fact going to his jurisdiction), that 
 he had done so, and that this court could not interfere. Rcgina v. Day- 
 man, 40 Eng. L. and Eq. 67.
 
 CII. XXIII.] MANDAMUS. 783 
 
 other counties of tlic State of any two justices of the 
 peace. The tribunal takes its jurisdiction under the sta- 
 tute, in each particular case, from a citation duly served 
 upon the committing creditor, and when it has acted 
 upon that citation is, so to speak, dissolved. The two 
 magistrates declined to proceed with his examination 
 unless upon certain conditions, and without adjourning 
 to a day certain, as they might have done, rose; and as a 
 tribunal upon that citation discharged themselves, and 
 the creditor cited, from it. Without a fresh citation to 
 the creditor it is difficult to see how the magistrates can 
 act, any more than any other two magistrates; and as 
 none has been taken out, and the old one is not now pend- 
 ing, I cannot see what there is for the mandamus to ope- 
 rate upon."^ 
 
 § 11. A statute of the United States (March 3, 1863), 
 provided for removal to the United States Circuit Court 
 of suits brought in the State courts for acts done under 
 authority of the President during the rel)ellion. Held, a 
 constitutional law ; and that the act of accepting surety 
 and suspending jurisdiction by the State court was one 
 which, upon refusal to perform it, might be compelled by 
 mandamus. The following distinctions were taken by the 
 court: "Would the issuance of a writ be an attempt 
 to 'control judicial discretion,' within the meaning of the 
 (State) law ? We are clear that it would not. To hold 
 otherwise would be to relinquish all control 6ver inferior 
 judicial tribunals by mandamus, except where actual cor- 
 ruption is shown. Of course it is assumed that the court 
 acted conscientiously, and, for the purpose of deciding 
 this question, erroneously. It is one thing to compel a 
 court to take jurisdiction, or to relinquish jurisdiction of 
 a case ; and it is quite another thing, having compelled 
 the court to take jurisdiction, to dictate what judgment it 
 
 ' Per Ames, C. J., Ballou, 7 R. I. 4G9.
 
 784 THE LAW OF NEW TRIALS. [CII. XXIII. 
 
 shall render therein. It is the latter kind of interference 
 that the law })rohibits. We are not asked to control the 
 judghicnt of the court, but the act of the court which is to 
 follow its judgment. The one is '^iYioXXy judicial^ the other 
 is to be regarded 2(& ministerial. Tha judgment of the court 
 has already been rende7-ed, and no mandamus can reach or 
 modify it. The ultimate act — of receiving or refusing 
 surety — which is to follow that judgment, must depend, 
 not on what the judgment is, but what it should have 
 been. It would be strange, indeed, if we have power to 
 compel the proper court to take jurisdiction, and have not 
 the power to compelthe improper court to relinquish juris- 
 diction, or to do a necessary act in order to the exercise of 
 jurisdiction by the proper court."^ 
 
 § 12. Where a Court of Common Pleas, without having 
 power BO to do, set aside a verdict and granted a new 
 trial ; a mandamus was issued to compel them to enter a 
 judgment on the verdict.^ So mandamus lies, to compel a 
 referee to settle exceptions; and, upon due allegations and 
 proof, the court may direct the referee to allow or refuse 
 certain specific exceptions.^ But a mandamus will not 
 lie to a court below, requiring it to set out in a bill of 
 exceptions evidence not there appearing; the matter is 
 within the discretion of the court.^ i^or to compel a 
 judge to insert in a bill of exceptions instructions which 
 it is alleged that he gave to the jury, when he returns that 
 he has settled the bill of exceptions truly, according to the 
 facts as he remembers them.' So where a case, by consent 
 of counsel, was tried before a private individual sitting as 
 judge ; it was held, that a mandamus could not be granted, 
 to compel either the judge, or the individual who took 
 his place, to settle or sign a bill of exceptions." So the 
 
 ' The State, &c. v. The Court, ^ Peoi)lc v. Baker, 35 Barb. 105. 
 &c., 15 Ohio St. 377. Per Welsh, » Jamison v. Reid, 3 Greene 
 
 J., ib. 813. (Iowa), 394. 
 
 ^ Cortleyou v. Teu Eyck, 3 N. ^ g,,ite «. Noi^gle, 13 Wis. 380. 
 J. 45. « State v. Larrabee, 3 Wis. 783.
 
 OU. XXIII.] MANDAMUS. 785 
 
 Supreme Court of Gcori^ia will not grant a writ of manda- 
 mus or prohil/ition to a juduo of the Superior Court, wLou 
 acting as clianccUor, to restrain Lim from hearing and 
 adjudicating a motion made before him, on the ground 
 that one of the parties has excepted to his decision on a 
 point made before him during the hearing and progress of 
 such motion, and has sued out a writ of error thereon, and 
 filed bond, &c., in accordance with the statute; before 
 any decision has been had upon the main question in- 
 volved in the original motion made before him.^ So, 
 under the laws of the territory of Iowa, bills of exceptions 
 were required to be taken, and tendered to the judge for 
 his signature, during the progress of the trial, although he 
 might sign them afterwards nunc 2)ro tunc. But where a 
 bill of exceptions appeared to have been signed two years 
 after the trial ; held, they were rightfully stricken from 
 the record by the appellate court, and a mandamus to the 
 judge to sign the bill 7iunc pro time was properly refused, 
 especially as it did not appear that the exceptions were 
 taken during the trial.^ And where one bill of exceptions 
 has been dismissed, the Supreme Court will not issue a 
 mandamus to the circuit judge, to certify a second bill of 
 exceptions in the same case and for the same cause.^ 
 
 § 13. In N'ew York, where referees of an appeal from the 
 report of county commissioners have improperly dismissed 
 the appeal without due hearing; the remedy is not by 
 certiorari, but by mandamus to the referees, directing them 
 to hear and decide tl;e appeal properly.^ But mandamus 
 does not lie, to compel a Circuit Court to strike a cause 
 from the docket, on motion, on the ground that it has 
 been discontinued by a submission to arbitration f or to 
 
 ' Jones V. Dougherty, 11 Geo. * People v. Cortelyon, 3G Barb. 
 
 305. 1G4. See Davis v. Ma.\;well, 27 
 
 ^ Sliopparil V. AVilson, G IIow. Geo. 368. 
 
 260. 5 Garlington, 26 Ala. 170. 
 
 3 Harris v. State, 3 Kelly, 290. 
 
 50
 
 786 THE LAW OF NEW TRIALS. [CH. XXIII. 
 
 compel it to discharge a rule of reference, as that was in 
 the discretion of the inferior court. ^ 
 
 § 14. In Alabama, mandamus from the Supreme Court 
 does not lie, to compel the chancellor to dismiss a cause, 
 on motion, in pursuance of a written agreement between 
 the }iarties.- But if, under an agreement of record, a party 
 is entitled to judgment, and the court below allow the 
 other party to amend and go on with the case ; mandamus 
 lies, to compel the court to follow the agreement.^ 
 
 § 15. In Georgia, for the refusal of the ordinary to 
 allow an appeal, mandamus is the only remedy.^ So the 
 remedy of an appellant, seeking the removal of a case 
 from the State District Court to the United States Court, 
 is by application to the Supreme Court for a mandamus.' 
 
 » Ferris v. Munn, 2 N. J. IGl. " Grcsliain v. Pyron, 17 Goo. 2G3. 
 
 2 Rowland, 26 Ala. 133. ^ Hopper v. Kalkman, 17 Cal. 
 
 3 Lawrence, 34 Ala. 446. 517.
 
 APPENDIX
 
 APPENDIX-STATUTES. 
 
 The following are some of the leading statutory provi- 
 sions on the subject of New Trials in the different States. 
 For the most part, they do not supersede or conflict with, 
 but merely explain or affirm, the common-law rules laid 
 down in the foregoing chapters. The statutes relating to 
 Error, Appeal, &c., are too numerous and various to admit 
 of citation. 
 
 In Massachusetts, the courts shall not charge juries with 
 respect to matters of fact, but may state the testimony and 
 the law. The courts may report a case for determination 
 by the Supreme Court. Decisions upon pleas in abatement, 
 or on motions to dismiss for defect of form in process, shall 
 be final. Exceptions are minutely provided for.^ 
 
 In case of trial by the court without a jury, exceptions 
 may be taken, or a new trial had, for mistake of law or 
 newly-discovered evidence.^ 
 
 In criminal cases, a new trial may be granted within a 
 year, for legal cause, or where justice has not been doue.^ 
 
 In ISTew Hampshire, new trials appear to be granted 
 
 le process of review.^ 
 
 In Connecticut, new trials are authorized " for misplead- 
 ing, or discovery of new evidence, or for other reasonable 
 cause, according to the common and usual rules and 
 
 ' Mass. Gen. Sts. 566. ' H'id. 843. 
 
 2 Ibid. G61. ^ N. II. Comp. Sts. 493.
 
 790 THE LAW OF NEA7 TRIALS. 
 
 methods in such cases." So, upon report of the evidence 
 to the Supreme Court of Errors, where the Superior Court 
 is of opinion that the verdict is against evidence.^ 
 
 Provision is also made in cases before justices of the 
 peace.^ 
 
 The English practice of notice to show cause is also recog- 
 nized, where motion is made for a new trial upon the 
 ground of erroneous decisions on matters of law.^ 
 
 Kew trials are provided in criminal cases."* 
 
 In Rhode Island, the court shall give instructions to the 
 jury, and, when thought advisable, sum up the evidence.^ 
 
 A new trial may be had in any suit commenced in the 
 Supreme Court.*' 
 
 The court may grant a new trial in any case for sufficient 
 cause; as also upon the grounds allowed by the common 
 law.^ 
 
 Xew trials are provided for in criminal cases.^ 
 
 In Vermont, if a party, during the term at which a 
 verdict is given in his favor, give to a juror in the cause, 
 knowing him to be such, victuals or drink, or procure the 
 same to be done, by way of treat, either before or after 
 the verdict ; there shall be a new trial.^ 
 
 The supreme and county courts may grant a new trial 
 at the same term in which the verdict or judgment is ren- 
 dered. And the Supreme Court may do it on petition 
 after such term, within the periods expressly limited.^'' 
 
 The county court may grant a new trial in case of the 
 default of a party or trustee before a justice of the peace 
 by fraud, accident, or mistake; or where he is unjustly 
 deprived of a hearing in the assessment of damages, or by 
 fraud, &c., prevented from entering an appeal." 
 
 ' Conn. Comp. Sts. (1854) 101. ^ ibid. 467. 
 
 2 Ibid. 103. 6 ii,id. 4G8. 
 
 3 Ibid. 103. 9 Verm. Gen. Sts. 332. 
 ^ Ibid. 353. >o Ibid. 333. 
 
 5 K. I. Kev. Sts. 390. " Ibid. 334. 
 
 6 Ibid. 407.
 
 STATUTORY PROVISIONS. 791 
 
 In Maine, it is ground of new trial, if cither party dur- 
 ing the term give to any of the jurors who try the cause 
 anything by way of treat or gratuity, or purposely intro- 
 duce among the papers delivered to the jury any papers 
 connected with the case, but not offered in evidence.^ 
 
 E'ew trials may be granted in divorce cases, where the 
 parties have not cohabited since the trial, nor either of 
 them remarried,^ . 
 
 In ¥ew York, new trials are granted in ejectment, sub- 
 stantially as in Illinois.^ 
 
 I^Iinute provisions are made as to the form in which 
 application shall be made for a new trial, in reference to 
 the statement of evidence, a bill of exceptions, and other 
 points ; specially mentioning " exceptions, insujOScient evi- 
 dence, or excessive damages."* 
 
 A new trial ordered by the Supreme Court in a criminal 
 case shall be had in the court where the indictment was 
 first tried,' 
 
 In 'Be^Y Jersey, after denial of the motion for a new 
 trial, there may be a motion in arrest of judgment; but 
 not the reverse.^ 
 
 After the trial of an appeal from a justice in the Court 
 of Common Pleas, no new trial shall be granted.^ 
 
 Specified rules of court are provided as to new trials.* 
 
 In Illinois, a new trial shall be granted in ejectment 
 within one year from judgment, upon payment of costs 
 and damages. Also a second new trial may be granted 
 within one year from the first, if justice will thereby be 
 promoted and the rights of the parties more satisfactorily 
 ascertained and established. Similar provision is made in 
 case of default.^ 
 
 1 Maine Rev. Sts. (1857) 524. ^ ihid. 1035. 
 
 2 Ibid. 395. "^ Nix. Dig. 660. 
 
 3 3 K Y. Rev. Sts. 596. (Infra, ' Ibid. 430. 
 Illinois.) ^ Ibid. 962. 
 
 * Ibid. 541. 9 1 111. Sts. 218.
 
 702 THE LAW OF NEW TRIALS. 
 
 The overruling of motions for a new trial in criminal 
 cases may be assigned as ground of error.^ 
 
 In Ohio, an exception is defined as an objection taken 
 to a decision of the court upon a matter of law. The 
 exception must be stated with so much of the evidence 
 as is necessary to explain it, and no more, and the whole 
 as briefly as possible. An exception m«st be material and 
 prejudicial to the substantial rights of the party .^ 
 
 A new trial is formally defined,^ 
 
 The grounds of new trial are irregularity in the pro- 
 ceedings of the court or referee, or abuse of discretion; 
 misconduct of the ^ury or party; accident or surprise 
 which ordinary prudence could not have guarded against ; 
 excessive damages, caused by passion or prejudice, error 
 in amount, whether too large or too small, where the 
 action is upon a contract, or for the- injury or detention 
 of property ; insufficient evidence, or that the decision is 
 contrary to law; newly-discovered evidence, if due dili- 
 gence were used ; error of law, excepted to."* 
 
 A new trial shall not be granted for the smallness of 
 damages in an action for injury to person or reputation, 
 nor where the damages equal the actual pecuniary injury.'^ 
 
 Provision is also made for new hearings in many speci- 
 fied cases of error and injustice.^ 
 
 A justice of the peace may set aside a verdict obtained 
 before him by fraud, partiality, or undue means,' 
 
 A new trial may be had as of course in actions I)rought 
 before the Court of Common Pleas; and a second new trial 
 for any cause above stated.^ 
 
 Provision is made for revision of the court's decision 
 upon the application for a new trial. ^ 
 
 ' 2 111. Sts. 1216. c ii^id. 1251. 
 
 2 Curw. Laws of Ohio, 1209. ' Ibid. 1293. 
 
 s Ibid. 8 2 Ohio Rev. Sts. 1155. 
 
 * Ibid. 1210. 3 Ibid. 1159. 
 
 6 Ibid. 1210.
 
 STATUTORY PROVISIONS. 793 
 
 A new trial may be had as of course iu actions for re- 
 covery of real property.^ 
 
 Til Indiana, the grounds of a new trial are substantially, 
 if not precisely, the same as in Ohio.^ 
 
 A new trial in criminal cases is defined as a re-examina- 
 tion of the issue in the same court. The granting of a 
 new trial places the parties in the same position as if none 
 had been had ; the former verdict cannot be used or re- 
 ferred to, either in the evidence or argument. The grounds 
 are, when the jury has received any evidence, paper, or 
 document not authorized by the court; or the court has 
 admitted illegal testimony ; or newly-discovered evidence. 
 Separation or misconduct of the jury. Deciding the verdict 
 by means other than a fair expression of opinion on the part 
 of all the jurors. Misdirection. When the verdict is con- 
 trary to law or evidence ; but not more than two new trials 
 shall be granted for this cause alone.^ 
 
 In Missouri, specific regulations are made with reference 
 to general and special verdicts. There shall be only one 
 new trial granted to the same party of the same issue.'* 
 
 The grounds of new trial are mistake or surprise, mis- 
 direction, mistake of the jury, a verdict contrary to the 
 instructions of the court ; fraud by one party upon the 
 other; perjury or mistake of witnesses, resulting in an 
 improper verdict, which defeats a just action or defence. 
 The pleadings may be amended.' 
 
 There shall be only one new trial, unless the triers of fact 
 err in the matters of law; or the jury are guilty of mis- 
 behavior.^ 
 
 In Arkansas, a new trial shall not be granted after 
 motion in arrest of judgment, l^ot more than two new 
 
 ' 1 Ohio Pwev. Sts. 397. « 2 Mis. Rev. Sts. 1263. 
 
 2 2 ^>ts. of lud. 211-6. ■ 5 ibia. 12S5. 
 
 » Ibid. 423. 6 Ibid. 1286.
 
 794 THE LAW OP NEW TRIALS. 
 
 trials shall be granted, unless the jury err in matter of law 
 or arQ guilty of misconduct.^ 
 
 In Iowa, a new trial may be granted in an action for the 
 recovery of land, at the discretion of the court.- 
 
 Also, in actions before justices of the peace.^ 
 
 The same code, in reference to criminal prosecutions, 
 defines a new trial. The proceedings upon a second trial 
 must be entirely de novo, without reference to the former 
 one. The causes enumerated are absence of the defendant 
 in case of felony ; the offering in evidence of any paper or 
 document to the jury, out of court, and without authority ; 
 separation or misconduct of the jury ; their deciding upon 
 the verdict by lot, or in some other illegal mode; misdi- 
 rection of the judge; a verdict against law or evidence. 
 But for the cause last named only two new trials are 
 allowed.^ 
 
 In the same code very specific rules are laid down in 
 reference to the jury, the form of the verdict, and other 
 points connected with a trial. 
 
 In Tennessee, not more than two new trials shall be 
 granted to the same party in an action at law, or upon the 
 trial by a jury of an issue of fact in equity.^ 
 
 A new trial shall not be allowed in criminal cases for 
 certain formal errors.^ 
 
 In Michigan, new trials are granted in ejectment, as in 
 New York.^ 
 
 So where justice is not done in a criminal case.^ 
 
 In Minnesota, the definition of and grounds for new 
 trial are substantially as in California.^ See p. 795. 
 
 1 Ark. Dig. 8G5. « Ibid. 937. 
 
 2 Iowa Code, 284. ^ 2 Mich. Comp. L. 123G. 
 
 3 Ibid. 313. 8 ibia. 1594. 
 
 4 Ibid. 421. s sts. of Miu. 504. 
 
 5 Code of Tennessee, 590
 
 STATUTORY TROVISIONS. 795 
 
 In actions for recovery of real property, a new trial may 
 be granted within six months. Generally, a third trial 
 shall not be granted.^ 
 
 New trials arc provided in criminal cases.^ 
 
 In Wisconsin, in an action for the recovery of specific 
 real property or the possession thereof, a new trial shall 
 be rendered on application and payment of costs within one 
 year. (Other provisions, as in Kew York and Illinois.^) 
 
 New trials are provided in criminal cases.'* 
 
 In California, a new trial is defined as a re-examination 
 of an issue of fact in the same court, after a trial and 
 decision by a jury, court, or referees. 
 
 The grounds of new trial are irregularity in the pro- 
 ceedings of the court, jury, or adverse party, or order of 
 court ; or any abuse of discretion ; misconduct of the jury ; 
 accident or surprise ; newly-discovered evidence ; provided, 
 in the two last cases, the party has not been guilty of 
 negligence ; excessive damages, caused by passion or prej u- 
 dice; insufficient evidence; a verdict against law; error 
 in law.^ 
 
 In South Carolina, new trials are granted under such 
 restrictions and in such manner as the judges may establish 
 by the rules and orders of court.*^ 
 
 In North Carolina, new trials are provided in criminal, 
 as in civil cases.'' 
 
 Also by justices of the peace, after judgment or execu- 
 tion against an absent party.^ 
 
 In Georgia, new trials are granted according to the 
 usages and customs of courts. A new trial may be 
 
 ' Sts. of Min. 595. » Wood's Cal. Dig. 192. 
 
 « Il)icl. 777. 6 7 S. C. Sts. 256. 
 
 3 Wis. Rev. Sts. 841. ' N. C. Rev. C. 234. 
 
 » Ibid. 995. « Ibid. 364.
 
 796 THE LAAV OF NEW TRIALS. 
 
 granted upon the verdict of a special jury contrary to 
 evidence and the principles of justice and equity.^ 
 
 The jury are made judges of the law. Ko new trial 
 shall 1)6 granted after acquittal. 
 
 2 
 
 In Florida, new trials shall not be granted for certain 
 enumerated formal defects.^ 
 
 In Alabama, a new trial may be granted in case of a 
 lost or mislaid receipt, which could not be proved by 
 secondary evidence, but is since found, within two years 
 from the judgment.* 
 
 So also for want of defence by surprise, accident, mis- 
 take, or fraud, without fault of the party ; within four 
 months.^ 
 
 Only two new trials shall be granted the same party.'' 
 
 In Louisiana, in all cases appealable to the Supreme 
 Court, it shall be the duty of the judge to charge the jury 
 in writing, if counsel require it.^ 
 
 In Mississippi, new trials shall be granted on terms di- 
 rected by the court But there shall be only two new 
 trials.^ 
 
 The granting or refusal of a new trial is ground of 
 error,^ 
 
 The judge shall not sum up or comment on the evidence, 
 nor charge on the law, unless the parties difl'cr, or unless 
 one party asks for specific instructions.'" 
 
 In Texas, any justice of the peace may order a new 
 trial, whenever he shall consider that justice has not been 
 done. But only one new trial shall be granted." 
 
 ' Cobb's Laws of Georgia, 503. ' La. Rev. Sts. 98. 
 
 2 Ibid. 805. ^ Hutch. Code, 87G. 
 
 3 Thomp. Dig. Sol. s Il)id. 885. 
 * Code of Ala. 443. '° Ibid. 88G. 
 
 ' Il)id. " Oldli. & White's Dig. 2G3. 
 
 5 Ibid. 423.
 
 INDEX. 
 
 ABSENCE, 
 
 •whether a surprise, 528, 544. 
 of witness — surprise, 536. 
 
 certiorari for, 698. 
 of counsel — surprise, 549. 
 and default, aucl. que. in case of, 768. 
 ABSTRACT, 
 
 instruction to jury, 260, 293, 305, 380, 385. 
 ACC1D*ENT, 
 
 injunction for, 598. 
 ACQUITTAL, 
 
 error in case of, 681. 
 AD qUESTIONEM LEGIS JUDICES, S^-c, 448. 
 ADVERSE POSSESSION, 
 
 law and fact, 340. 
 ADVISING OF NEW TRIAL, 17. 
 AFFIDAVIT, 
 
 of juror as to agreement, 158, 160, 162. 
 
 ■whether admissible, 239. 
 as to competency of juror, 162. 
 conversation, 211. 
 misconduct of jury, 250. 
 in case of new evidence, 514. 
 
 surprise, 559. 
 upon certiorari, 692. 
 aucl. que., 771. 
 AFFIRMANCE, 
 
 on -writ of error, 677. 
 on appeal, 738, 743. 
 AGAINST EVIDENCE, 
 
 verdict, 444. (See Verdict.) 
 AGE OF JUROR, 
 
 objection to, 155, 167.
 
 798 INDEX. 
 
 AGENCY, 
 
 •writ of error in case of, 6G7. 
 
 appeal, 750. 
 AGREEMENT, 
 
 necessary to verdict, 157. 
 ALIENAGE OF JUROR, 154, 167. 
 ALTERATION OF INSTRUMENT, 
 
 a question for the jury, 325. 
 AMBIGUOUS INSTRUCTION TO JURY, 263, 270. 
 AMENDMENT, 
 
 of exceptions, 35. 
 
 of verdict, 148, 151, 152, 153. 
 
 discretionary, 390, 404. 
 
 of record — error, 640 n. 
 
 of writ of error, 658. 
 
 in case of writ of error, 671. 
 appeal, 739. 
 AMOUNT, 
 
 statement of, in verdict, 138. 
 
 as affecting verdict against evidence, 482. 
 
 in case of injunction, 592. 
 
 writ of error, relating to, 629, 
 
 in case of appeal, 751. 
 
 of damages, measure of, 568. 
 APPEAL, 
 
 definition, 700. 
 
 in the United States ; statutory law, 701. 
 
 a statutory remedy ; the statutes must be strictly complied with 
 time, &c., 702. 
 
 a continuation of the original suit ; notice, &c., 703. 
 
 question as to right of appeal ; process in connection therewith ; 
 constitutional right, 704. 
 
 issue, default, &c., 705. 
 
 restricted right of appeal ; title to land, &c. ; construction of 
 statutes, 706. 
 
 from a favorable judgment, &c., 707. 
 
 as connected with other forms of rehearing ; error, injunction, 
 review, audita querela, &c., 707. 
 
 proceedings must be judicial, 709. 
 
 in case of habeas corpus, 710. 
 mandamus, 711. 
 contempt, 711. 
 
 there must be a judgmerit, 712.
 
 INDEX. 799 
 
 APPEAL, continued. 
 
 the jiulgmcnt must he final, not interlocutory; qualifications and 
 
 exceptions ; what is a final judgment, 712. 
 discretionary judgments, 718. 
 
 neglect and waiver; objections not raised in the court below, 721. 
 questions o{ jurisdic(io7i, 731. 
 ej^cct of an apjical ; suspends or vacates the judgment; irregular 
 
 or void appeal ; neglect to enter or prosecute, 733. 
 course of proceeding iu the appellate court ; whole case re-opened ; 
 
 limitations of this rule ; pleadings, evidence, &;c., 737. 
 dismissal cf, 742. 
 remanding of the case, 745. 
 parties; persons interested; joint parties; executors, assignees, 
 
 &c., 747. 
 amount of judgment ; jurisdiction, <S:c., 751. 
 return of papers by the court below ; copies, originals, papers 
 
 filed, &c., 754. 
 bond and recognizance, 758. 
 payment of fees, 761. 
 successive appeals, 761. 
 from the granting, &c., of new trial, 7. 
 and writ of error, 678. 
 certiorari, 695. 
 mandamus, 758 n., 777. 
 aud. que., 759, 767. 
 ARBITEATION, 
 
 error in case of, 654. 
 ARGUMENT OF COUNSEL, 224. 
 
 as connected with instructions, 309. 
 ARREST OF JUDGMENT, 
 and new trial, 17, 37. 
 writ of error, 620. 
 ASSAULT, 
 
 damages for, 578. 
 ASSIGNEE OF BANKRUPT, 
 writ of error in case of, 664. 
 appeal in case of, 750. 
 ASSIGNMENT OF ERRORS, 657. 
 
 in case of certiorari, 699. 
 ASSOCIATION, 
 
 membership of juror in, 192. 
 ASSUMING OF FACT, 
 
 in instructions of judge, 301.
 
 800 INDEX. 
 
 ATTORNEY, 
 
 payment of costs by, G8. 
 
 sui'i^rise, in connection with, 549. 
 
 appeal by. (See Appeal.) 
 AUDITA QUERELA, 1U. 
 
 definition ; for the most part obsolete, 7G4. 
 
 as connected with other modes of revision, 765. 
 
 general nature and objects of, 767. 
 
 lost by neglect, 767. 
 
 absent defendant ; default, 768. 
 
 imprisonment, 769. 
 
 payment of judgment, 770. 
 
 parties, 770. 
 
 practice, 773. 
 
 and appeal, 709, 759. 
 AYERAGE YERDICT, 160. 
 
 aflulavit of, 245. 
 AWARD, 
 
 against evidence, 486. 
 
 injunction in case of, 604. 
 
 error in case of, 643. 
 
 B. 
 
 BANKRUPTCY, 
 
 ■writ of error in case of, 663. 
 
 appeal in case of, 750. 
 BILL OF EXCEPTIONS, 76 n. (See Exceptions.) 
 
 in criminal cases, 114. 
 BOND, 
 
 upon writ of error, 655. 
 
 in case of appeal, 758. 
 
 new, in case of appeal, 742. 
 BOOK, 
 
 use of, by jury, 221. 
 
 reading of, to jury, 228. 
 BOUNDARY, 
 
 questions of law and fact, 340. 
 BREACH OP PROMISE, 
 
 damages for, 585. 
 BRIBERY OF WITNESS, 
 
 surprise by, 544. 
 BURDEN OF PROOF, 
 
 on appeal, 702, 705.
 
 INDEX. 801 
 
 C. 
 
 CALCULATION OP DAMAGP:S, 
 
 means of, 568, 575. 
 CAPITAL PUNISIIMFA'T, 
 
 conscientious scruples as to, 193. 
 CARRIER, 
 
 mixed question of law and fact as to, 348. 
 CASE STATED, 
 
 appeal on, 706. 
 CAUSE OF ACTION, 
 
 on appeal, 740. 
 CERTIFICATE OF JUDGE, 
 
 as to verdict against evidence, 488. 
 CERTIORARI, 680. 
 
 definition, nature, and purpose, 686. 
 
 what is to be reviewed, 688. 
 
 distinction between error and certiorari, 688. 
 
 lies only upon pending proceedings, 688. 
 
 not a writ of right — discretionary, 689. 
 
 the proceeding must be a, judicial one, 689. 
 
 relates to the legality and regularity of the proceedings reviewed. 
 690. 
 
 supersedeas, 690. 
 
 jurisdiction of the court below, 690. 
 
 questions of law and of fact, 691. 
 
 return to the writ, 692. 
 
 does not lie where there are other remedies ; appeal, 695. 
 
 in criminal cases, 695. 
 
 parties, 696. 
 
 to justices of the peace, 696. 
 
 form of petition and affidavit, 697. 
 
 in case of new trial, 7. 
 
 and writ of error, 623. 
 appeal, 704, 708 n. 
 mandamus, 778. 
 CHALLENGE OF JUROR, 155, 156 n. 
 
 and new trial, in connection, 167 n., 190 n. 
 for the principal cause, and to the favor, 181,. • 
 CHANCE, 
 
 verdict determined by, 100. 
 CHANGE OF JURORS,'l74. 
 CHARGE. (See Rulings.) 
 51
 
 802 INDEX. 
 
 CHARACTER OF WITNESS, 
 
 instruction as to, 366. 
 CIRCUMSTANTIAL EVIDENCE, 
 
 verdict against, 462. 
 CLERK, 
 
 mandamus to, 774 n. 
 COLOR OF TITLE— 
 law and fact, 340. 
 COMMENT OF JUDGE, 
 
 upon the evidence, 285. 
 
 refusal of, 291. 
 COMMON LAW 
 
 remedy, writ of error is, 620. 
 proceedings, writ of error limited to, 620. 
 COMMONWEALTH, 
 
 new trial in favor of, and against, 114. 
 COMPETENCY 
 
 of witness, time of objection to, 89. 
 of juror, 162, 165. 
 of evidence, a question of law, 313. 
 and sufRciency of evidence — distinction, 451. 
 COMPROMISE, 
 verdict, 160. 
 
 question of — law and fact, 313. 
 COMPUTATION, 
 
 ground of, as to damages, 568, 575. 
 COMYNS' 
 
 definition of new trial, 2. 
 CONDITION 
 
 of new trial, 65. 
 of verdict, 152. 
 CONFESSIONS, 
 
 instructions as to, 367. 
 CONFESSION 
 
 of judgment — injunction, 603. 
 error, 653. 
 CONFLICT OF EVIDENCE, 
 instructions in case of, 653, 
 verdict against evidence, 457, 461, 474. 
 CONSCIENTIOUS 
 
 scruples of juror, 193. 
 CONSENT, 
 
 verdict by, against evidence, 486.
 
 INDEX. 803 
 
 CONSTITUTION, 
 
 whether a new trial is prohibited by, 118. 
 
 as affecting the powers of a jury in criminal cases, 315. 
 
 question as to the, is for the court, 321. 
 of, as to appeal, 705. 
 
 mandamus, 783. 
 CONSTRUCTION 
 
 of charge to jury, 265. 
 
 of writings — law and fact, 318, 324. 
 CONTEMPT, 
 
 certiorari in case of, 699 n. 
 
 in reference to appeal, 711. 
 CONTINUANCE— DISCRETIONARY, 390, 403. 
 CONTINUING TRIBUNAL, 
 
 in case of mandamus, 782. 
 CONTRACT, 
 
 question as to — law and fact, 324, 337. 
 CONTRADICTION OF WITNESS, 
 
 newly-discovered evidence for, 505. 
 CONVERSATION WITH JURORS, 202, 206. 
 CORAM VOBIS, &c., ERROR, 625. 
 CORPORATION, 
 
 whether member of, can be a juror, 190. 
 COSTS, 
 
 upon new trial, 65. 
 
 instructions as to, 376. 
 
 and damages, 565. 
 
 writ of error as to, 629. 
 
 aud. que. as to, 772. 
 COUNTS, 
 
 form of verdict as to, 136, 137, 143, 145. 
 
 instructions based on, 308. 
 
 writ of error in relation to, 629. 
 COUNSEL, 
 
 surprise in connection with, 550. 
 
 waiver by act or neglect of, 105. 
 
 writ of error by, 668. 
 
 argument of, 224. 
 
 ignorance of — new evidence, 499. 
 COUNTY, 
 
 jury in case of, 190 
 COURT, 
 
 trial of fact by, 121
 
 804 INDEX. 
 
 COURT, continued. 
 
 above, objection to form of verdict, 1 35. 
 as to jury, 185. 
 argmnent of counsel, 227. 
 affidavit of juror, 250. 
 and jury, respective provinces of, 311. 
 trial by — evidence, 427. 
 above, verdict against evidence, 446, 453. 
 
 in cast} of newly-discovered evidence, 512. 
 opinion of, as to damages, 567. 
 above, in case of excessive damages, 568. 
 injunction, in what, 591. 
 of record, writ of error requires, 620. 
 COURT-MARTIAL— 
 
 writ of error, 622. 
 COURTS, 
 
 above and below, new trial in, 1 n., 7, 29, 37 
 respective jurisdiction of — mandamus, 783. 
 CREDIBILITY 
 
 of evidence, is for the jury, 313. 
 CREDIT, 
 
 question of — law and fact, 338. 
 of witness, instruction as to, 362. 
 CREDITOR, 
 
 writ of error by, 664. 
 CRIMINAL CASES, 
 
 new trial in, 113. (See Neio Trial.) 
 writ of error in, 681. 
 law and fact in, 314. 
 verdict against evidence in, 460. 
 surprise in, 522. 
 certiorari in, 696. 
 appeal in, 751. 
 CRBI. CON., 
 
 damages for, 586. 
 CROSS-EXAMINATION— 
 
 discretionary, 401. 
 CUMULATIVE 
 
 incompetent evidence, 414. 
 uewly-discovered evidence, 499.
 
 INDEX. 805 
 
 I>- 
 
 DAMAGES, 
 
 amount of, new trial for, 561. 
 
 general rule. .")G1. 
 
 cautiously applied — remarks of judges, 5G2. 
 
 exemplar}/ damages, 5G2. 
 
 second new trial, 564. 
 
 declaration, 565. 
 
 law and fact, 565. 
 
 joint defendants, 566. 
 
 fault of party — waiver, 566. 
 
 slight excess — opinion of judge, &c. — dissatisfaction, 567. 
 
 court above, 568. 
 
 calculation of amount; basis of calculation, 568. 
 
 nominal damages, 572. 
 
 too small damages, 572. 
 
 partial new trial, 576. 
 
 remittitur, ko,., 576. 
 
 assault, 578. 
 
 false imprisonment, 579. 
 
 negligence, 579. 
 
 libel, &c., 579. 
 
 malicious prosecution, 583. 
 
 trespass qu. clans., 584. 
 
 watercourse, 584. 
 
 breach of promise, 585, 
 
 seduction, <fec., 585. 
 
 excessive, but substantial justice, 63. 
 
 waiver in case of, 102. 
 
 new evidence as to, 511. 
 
 writ of error in relation to, 629. 
 
 in case of error, 674. 
 instructions as to, 376. 
 DANGER 
 
 in granting new trial, 6. 
 DEATH, 
 
 writ of error in case of, 666. 
 appeal in case of, 750 
 and. que. in case of, 771. 
 DECLARATION, 
 
 writ of error in reference to, 630, 638. 
 in connection with damages, 565. 
 DECREE, 
 
 injunction of, 592.
 
 806 INDEX. 
 
 DEED, 
 
 construction of — law iuul fact, 321. 
 DEFAULT, 
 
 waiver of objection to, 98. 
 surprise in, 555. 
 
 writ of error in case of, 630, 638, 651. 
 appeal in case of, 705 n. 
 and. que. in case of, 168. 
 DEFINITION OF NEW TRIAL, 1. 
 DELAY, 
 
 in case of injunction, 595. 
 appeal, 743. 
 DELIVERY— 
 
 law and fact, 34-1. 
 DEPOSITION, 
 
 waiver in case of, 92, 93. 
 ruling as to — distinction, 400. 
 admission or rejection of, 441. 
 surprise as to, 558. 
 DEPOSITIONS, 
 
 whether delivered to jury, 218. 
 DESCRIPTION OF LAND— 
 
 law and fact, 340. 
 DISCHARGE OF JURY, 
 
 eifect on the action, 237. 
 order as to, 238. 
 DISCOVERY 
 
 of new evidence. (See Neivly, &c.) 
 and recollection — distinction, 498. 
 DISCRETION, 
 
 as to new trial, 6, 37, 121. (Sec Rulings.) 
 competency of juror, 185. 
 new evidence, 513. 
 surprise, 523. 
 writ of error in case of, 628. 
 in reference to certiorari, 689. 
 appeal, 718. 
 DISEASE OF JUROR, 166. 
 DISMISSAL 
 
 in case of error, 535, 669. 
 
 appeal, 736, 742, 759. 
 DISSATISFACTION 
 
 of judge with the verdict, 487, 567.
 
 INDEX. 807 
 
 DOCUMENTARY EVIDENCE, 
 
 discovery of, 499. 
 DOUBTFUL INSTRUCTIONS, 309, 314. 
 DRAWING OF JURY, 165 n., 167, 170. 
 DRINKING BY JURORS, 199. 
 DRUNKENNESS 
 
 of juror, 167 n. 
 
 law and fact as to, 344. 
 
 E. 
 
 EATING, &c. 
 
 by jury, 198, 208 n. 
 
 by juror, 211. 
 EFFECT 
 
 of new trial and motion for, 74. 
 
 of evidence, instruction as to, 285. 
 
 of writ of error, 655. 
 
 of appeal, 733. 
 EJECTMENT, 
 
 writ of error in, 664. 
 ELECTION, 
 
 between exceptions and new trial, 73. 
 ENTICING A WIFE, 
 
 damages for, 586. 
 EQUITY, NEW TRIAL IN, 587. 
 
 for surprise, 524. 
 
 general remarks, 587. 
 
 mode of proceeding — injunction, 588. 
 
 special grounds must be shown, 589. 
 
 amount of judgment, 593. 
 
 form of decree, 593. 
 
 judgment in another State, 593. 
 
 terms, 594. 
 
 successive injunctions, 595. 
 
 time, 595. 
 
 laches — neglect, delay, &c., 595. 
 
 pleadings, 598. 
 
 exceptions to the strict rule, 598. 
 
 accident, mistake, &c., 599. 
 
 fraud, 599. 
 
 formal errors, 601. 
 
 default, 602. 
 
 confession, 603. 
 compromise, 604.
 
 808 INDEX. 
 
 EQUITY, NEW TRIAL IN, continued. 
 award, G04. 
 new evidence, 604. 
 in part, (505. 
 payment, 606. 
 set-ofF, 607. 
 estoppel, 607. 
 pleadings, 609. 
 parties, 610. 
 title to lands, 612. 
 surety, 612. 
 trusts, 613. 
 
 in case of execution, 614. 
 and writ of error, 620 n. 
 ERROR. (See Writ of Error.) 
 
 whether granting, &c., of new trial may be, 7, 16 n., 37. 
 
 and new trial, 17, 37. 
 
 whether a ground of injunction, 591, 601. 
 
 and certiorari, 686 and n,, 688. 
 appeal, 701, 708, 712 u. 
 aud. qiie., 767. 
 mandamus, 777. 
 ESCROW— 
 
 law and fact as to, 326. 
 EVIDENCE. (See Verdict against, &c., Newly-discovered, Sec.) 
 
 admission or rejection of, new trial for, 407. 
 
 general rule, 407. 
 
 effect of an instruction to disregard incompetent evidence, &c., 
 409. 
 
 irrelevant or immaterial evidence, 410. 
 
 cumulative evidence, 414. 
 
 conflicting evidence, 417. 
 
 infamy of witness, 417. 
 
 incompetent question, 417. 
 
 secondary evidence, 417. 
 
 admission as affecting the course of trial, 417. 
 
 purpose of offering the evidence, as affecting its competency, 419. 
 
 miscellaneous, 422. 
 
 writings, hearsay, secondary evidence, 423. 
 
 evidence connected with other evidence, 424, 429. 
 
 reasons for rejecting evidence, 426. 
 
 trial bi/ the court, or upon lorit of inquiry, 427. 
 
 new trial in connection with, 429. 
 
 interlocutory proceedings, 429. 
 
 evidence as connected with the pleadings, 429.
 
 INDEX. 
 
 EVIDENCE, contmncd. 
 
 whether evidence must be confined to fads, 432. 
 
 may come from either party, 433. 
 
 must be regularly offered, 433. 
 
 must be objected to; form of objection, 433. 
 
 questions of time, 436. 
 
 depositions, 441. 
 
 set-off, 441. 
 
 practice in New York, 442. 
 
 waiver, 4r)7. 
 
 error in relation to, must be proved, 27. 
 
 new trial in relation to, requires injury, 44, 53. 
 
 where substantial justice is done, 60. 
 
 verdict against — substantial justice, Gl. 
 
 waiver of objection to, 88, o.iG. 
 
 nonsuit for want of, 270. 
 
 weight and tendency of — distinction, 284. 
 
 instructions based upon, 295, 382, 385. 
 relating to, 3151. 
 
 competency and sufficiency of — distinction, 451. 
 
 report of, in case of verdict against evidence, 454. 
 
 certiorari in reference to, 698. 
 EX DEBITO JUSTITI^— 
 
 writ of error is, 620. 
 EXAMINATION 
 
 of witnesses — discretion, 412. 
 EXCEPTIONS, 16, 32. 
 
 appeal, and error, 634. 
 
 amendment of, 35. 
 
 and new trial, election between, 73. 
 
 practice as to, 76 n. 
 
 and motion for new trial, 76 u. 
 
 in criminal cases, 114. 
 
 and error, 480. 
 EXCESSIVE DAMAGES. (See Damages.) 
 
 substantial justice, 63. 
 
 waiver in case of, 102. 
 EXCITEMENT, 
 
 whether disqualification of juror, 186. 
 EXCULPATION 
 
 of juror, affidavit for, 247, 248. 
 EXECUTION 
 
 of contract— law and fact, 324, 329. 
 
 injunction of, 614. 
 
 809
 
 810 INDEX. 
 
 EXECUTION, continued. 
 
 error as to, 623. 
 
 after writ of error, G56. 
 
 in case of appeal, 589. 
 EXECUTORS, 
 
 writ of error in case of, GGG. 
 
 aud. que. in case of, 771. 
 EXEMPTION 
 
 and qualification of juror — distinction, 164. 
 EXEMPLARY DAMAGES, 562. (See Damages. 
 EXPERTS, 
 
 instructions as to, 369. 
 EX POST FACTO— 
 
 writ of error, 628. 
 
 F. 
 
 FACT, 
 
 only questions of, are for jury, 312. 
 
 error of, 626. 
 
 questions of, upon certiorari, 691. 
 FACTS, 
 
 statement of, in charge, 286. 
 
 opinion of judge as to, 385. 
 FALSE 
 
 imprisonment, damages for, 579. 
 
 return, injunction for, 601. 
 FEES, 
 
 payment of, on appeal, 761. 
 FEIGNED ISSUE, 617. 
 FINAL JUDGMENT— 
 
 writ of error, 634. 
 
 appeal, 708, 712. 
 FORM 
 
 of action, new trial in connection with, 70. 
 
 of verdict. (See Verdict.) 
 
 of oath of jury, 165. 
 
 of instructions, 380, 384. 
 
 newly-discovered evidence as to, 512. 
 
 errors of — injunction, 601. 
 
 writ of error, 638. 
 appeal, 740. 
 FO UNDA TION, 
 
 error of, 624.
 
 INDEX. 
 
 FRAUD, 
 
 questions of — law and fact, 349. 
 injunction for, 599. 
 FREEMASON, 
 
 juror in case of, 192. 
 
 G. 
 
 GARNISHEE, 
 
 appeal in case of, 751. 
 GENERAL 
 
 objection to evidence, 423. 
 
 and special verdicts, 126, 127. 
 GOVERNMENT, 
 
 new trial in favor of, 114. (See Commomoealth, State.) 
 GROUNDS 
 
 of new trial, 1, 20, 121. 
 
 of verdict, inquiry of court as to, 250. 
 
 H. 
 
 HABEAS CORPUS 
 
 and new trial, 19. 
 
 error, 620 n., 621 n., 623. 
 appeal. 704. 710. 
 HARMLESS ERROR, 
 
 whether ground of new trial, 40. 
 HEARSAY, 
 
 as to verdict, 250. 
 
 instructions as to, 366. 
 
 evidence, newly-discovered, 520. 
 HEIRS, 
 
 error in case of, 666. 
 HISTORY OF NEW TRIAL. 2. 
 HUSBAND AND AVIFE, 
 
 error in case of, 662. 
 
 IDENTITY— 
 
 law and fact, 344. 
 IGNORANCE 
 
 of jury, 166. 
 
 whether a ground df surprise, 521 
 ILLNESS. 
 
 whether a surprise, 528. 
 
 811
 
 812 INDEX. 
 
 ILLUSTRATION 
 
 by jiulj^^c to the jury, 288. 
 IMPEACHMENT 
 
 oF witness, instruction as to, 365. 
 
 new evidence for, .505, 509. 
 in case of newly-discovered evidence, 519. 
 in reference to surprise, 5415, 549. 
 IMPORTANCE 
 
 of new trial, 4. 
 IMPRISONMENT— 
 
 and. que., 769. 
 INCOMPETENCY OF JUROR, 162, 105. 
 
 waiver in case of, 82. 
 
 affidavit of, 248. 
 INCOMPETENT EVIDENCE, 
 
 instruction to disregard, 409. 
 INCONSISTENT 
 
 verdict, 147. 
 
 instructions, 265. 
 INDEFINITE 
 
 measure of damages, 570. 
 INDICTMENT, 
 
 writ of error in case of, 681. (See Government, State. 
 INFANCY, 
 
 error in case of, 673. 
 
 and. que., 771. 
 INFERENCE, 
 
 instruction as to, 284. 
 
 in instructions, 303. 
 
 questious of, 324. 
 INFLUENCE UPON JUROR, 202. 
 INJUNCTION, 
 
 and new trial, 588. (See Equity.) 
 appeal, 709. 
 mandamus. 779. 
 aud. que., 767. 
 INJURY, 
 
 new trial requires, 40, 98. 
 
 whether writ of error requires, 637, 639. 
 appeal, 707, 
 INJUSTICE, 
 
 general ground of new trial, 121. 
 IN NULLO EST ERRATUM, 6'40 h., C70.
 
 INDEX. 813 
 
 INQUIRY, 
 
 writ of — evidence, 429. 
 INSANITY— 
 
 aud. que., 771. 
 INSPECTION, 
 
 verdict founded on, 476. 
 INSTRUCTION. (See Rulings.) 
 
 error of, must clearly appear, 21. 
 
 not injurious, whether ground of new trial, 42, 56. 
 
 error of, in case of substantial justice, 57. 
 
 waiver of objection to, 88, 96. 
 
 supplementary, to jury, 222. 
 
 as to agreement, 238. 
 fraud, 350. 
 
 to disregard incompetent evidence, 409. 
 
 whether a surprise, 554. 
 
 juror's affidavit as to, 248. 
 INTENTION— 
 
 law and fact, 344. 
 
 evidence of, 432. 
 INTEREST 
 
 of witness — for the court, 313. 
 
 of juror, 186, 190. 
 INTERLOCUTORY 
 
 proceedings — evidence, 419. 
 
 judgment — appeal, 712. 
 INTOXICATING 
 
 liquor used by jurors, 199. 
 IRRELEVANT 
 
 instruction, 260. 
 
 evidence, 410, 424, 429. 
 ISSUE, 
 
 form of verdict in reference to. 134, 142, 145. 
 
 verdict against evidence in connection with, 446. 
 
 in reference to appeal, 705. 
 
 J. 
 
 JEOPARDY, 
 
 meaning of, in the constitution, as to new trial, 118. 
 JOINDER 
 
 of errors of law and fact, 62 7. 
 error as to, 630, 638. 
 in writ of error, 659. 
 in appeal, 748.
 
 814 INDEX. 
 
 JOINT 
 
 parties, form of verdict in case of, 139, 145, 151, 152, 
 
 testimony of, new trial for the purpose of using, 509. 
 writ of error, 653, GG2, GG7, G74. 
 defendants, damages against, 5GG. 
 JUDGE, 
 
 dissatisfaction of — verdict against evidence, 487. 
 as to damages, 5G7. 
 mandamus to, 774 n. 
 JUDGMENT, 
 
 effect of new trial on, 74. 
 injunction of, 588. 
 error of — writ of error, 624. 
 final, on writ of error, 634. 
 suit on, after writ of error, 656. 
 appeal requires, 712. 
 JUDICIAL 
 
 matters, certiorari applies to, 689. 
 proceedings — appeal, 710, 714. 
 
 mandamus, 774 n., 780, 783. 
 JURISDICTION, 
 
 in case of certiorari, 690. 
 
 appeal, 731, 742 n. 
 JUROR, 
 
 communication by, to others, 213. 
 JURY, 
 
 Qiisconduct of, must have caused injury, 51. 
 objection to, waiver of, 82. 
 only questions of fact are for the, 312. 
 rights and duties of, as to the law, upon indictments, 314. 
 discretionary rulings as to, 391. 
 judgment of, as to damages, 571. 
 constitutional right of trial by, 705. 
 grounds of new trial connected with, 121. 
 general grounds — irregularity and injustice, 121. 
 general and special verdicts, 127. 
 
 form of verdict — uncertainty, generality, inconsistency, &c., 133. 
 amendment of verdict; sending back of jury; remittitur, 148. 
 irregularities connected with, as grounds of new trial, 154. 
 general principle, 154. 
 presumption of competency, 154. 
 challenge, 155. 
 
 agreement of jury ; mode of proof on the subject; affidavits; 
 mode of arriving at the verdict, &c., 157.
 
 INDEX. 815 
 
 JURY, continued. 
 
 incompetency of juror, 162, 1G6. 
 
 swearing, 164. 
 
 aliens, 167. 
 
 drawing and impanelling, 168. 
 
 misnomer, 170. 
 
 talesmen, 173. 
 
 change of jurors, 174. 
 
 partiality ; preconceived opinion ; examination on voir dire, kc, 
 175. 
 
 relationship, 187. 
 
 other connections with a party, 190. 
 
 interest ; inhabitants of a county or town ; members of an asso- 
 ciation ; miscellaneous cases, 190. 
 
 opinions of juror; conscientious scruples, 193. 
 
 misconduct of, 198. 
 
 eating and drinking, 198. 
 
 sleep, 201. 
 
 conversation ; statements of one juror to the others, 202. 
 
 custody of the jury, 214. 
 
 introduction of papers to the jury-room ; minutes, books, depo- 
 sitions, &c., 214. 
 
 further instructions to the jury, 222. 
 
 arguments to the jury, 224. 
 
 separation of the jury, 232. 
 
 affidavits of jurors, 239. 
 JUSTICE 
 
 done, whether new trial in case of. (See Injury, Substantial, 
 Surprise.) 
 
 of the peace — certiorari, 696, 697. 
 appeal, 701. 
 jurisdiction of, iu case of appeal, 733. 
 
 LACHES. (See Waiver, Delay.) 
 
 iu case of surprise, 560. 
 certiorari, 698. 
 LAND, 
 
 description of — law and fact, 340. 
 LANGUAGE, 
 
 verdict against evidence in reference to, 476. 
 LAW 
 
 and fact — waiver of objection as to, 99. 
 distinction, 121, 272, 21S, 310.
 
 816 INDEX. 
 
 LAAV, continued. 
 
 and fact — undisputed facts, 282. 
 
 instruction as to, -vvliat it includes, 283. 
 wrongful blending of, by jury, 466. 
 
 verdict against, 486. (See Verdict.) 
 
 mistake of, whether a surprise, 525. 
 
 and fact, as to damages, 565. 
 error of, 626. 
 
 questions of, in certiorari, 601. 
 
 and fact, revision of, security in case of, 611. 
 LEADING QUESTIONS— 
 
 discretion, 399. 
 LIBEL, 
 
 &c. — law and fact, 35, 354. 
 
 damages for, 581. 
 LIMITATIONS— 
 
 law and fact, 335. 
 LOST INSTRUMENT, 
 
 construction of — law and fact, 324. 
 LOT, 
 
 verdict by, 160. 
 
 M. 
 
 MALICE— 
 
 law and fact, 353. 
 MALICIOUS PROSECUTION, 
 
 damages for, 583. . 
 MANDAMUS, 774. 
 
 definition, &c., 774. 
 
 does not lie in case of other remedies, 775. 
 
 parties, 777. 
 
 as connected with appeal, error, &c., 777. 
 
 designed to compel action, 780. 
 
 lies only to a continuing tribunal, 782. 
 
 constitutional questions, 783. 
 
 in reference to new trial, exceptions, <fec., 784. 
 
 miscellaneous cases, 785. 
 
 and error, 623. 
 
 appeal, 704, 711, 714, 777. 
 MARKING BY JURY. (See Jurj.) 
 
 affidavit of, 248. 
 MATERIALITY 
 
 of instructions, 290. 
 
 of newly discovered evidence, 516.
 
 INDEX. 817 
 
 MEASURE OF DAMAGES, ' 
 
 (lefiuite, 568. 
 MINISTERIAL ACTION— 
 
 certiorari, G89. - 
 
 and appeal, 710, 720. 
 MISCONDUCT 
 
 of jury, 154 n., 155, 157, 198. (See Jury, Injury, Waiver.) 
 as to agreement, 157. 
 
 of juror, 195. 
 MISDIRECTION. (See Bulings.) 
 
 must distinctly appear, 21. 
 
 waiver in case of, 96. 
 MIS-ENTRY, 
 
 appeal in case of, 706. 
 MISNOMER, 
 
 writ of error in case of, 668. 
 MISTAKE 
 
 of juror, affidavit of, 248. (See Affidavit.) 
 
 of counsel, whether a surprise, 553. 
 
 injunction for, 598. 
 MIXED 
 
 questions of law and fact, 310, 347. 
 MOTION, 
 
 to show cause for new trial, 16. 
 
 for new trial, and exceptions, 76 n. 
 
 and and. que., 764. 
 MUTUAL ACCOUNTS, 
 
 injunction in case of, 608. 
 
 N. 
 
 NAME 
 
 of juror, error in, 170. 
 
 in writ of error, 668. 
 NECESSARIES— 
 
 law and fact, 348. 
 NEGLECT OF COUNSEL— 
 
 surprise, 549. 
 NEGLIGENCE. (See Laches, Waiver.) 
 
 law and fact as to, 355. 
 
 prevents new trial for new evidence, 495. 
 
 in case of surprise, 560. 
 
 injunction, 589, 596. 
 aud. que., 767. 
 
 52
 
 818 INDEX. 
 
 NKUI.IGENCE, continued. 
 ai)peal in case of, 721. 
 (laiiiujrcs for, .'379. 
 NEW TRIAL. (See Jury, PadingR, Evidence, Verdict, Nexohj-dis- 
 covered, &,-c., Sitrprise, Damages.) 
 and mis-trial — distiuction, 211. 
 error, 610, 701. 
 appeal, 707 n. 
 definition. 1. 
 history. 2. 
 importance. 4. 
 
 mode of obtaining ; discretion ; appeal ; error, &c., 6. 
 form of proceeding ; rule to show cause ; bill of exceptions, &c., IG. 
 in connection with other forms of rehearing, 16. 
 
 habeas corpus, 19. 
 grounds of, 20. 
 
 general grounds — dehors the record, 20. 
 verdict presumed correct ; motion for new trial must 
 show affirmatively the ground of alleged error, 20. 
 qualifications of this rule, 31. 
 
 form of exceptions, founded upon the foregoing rule, 33. 
 amendment of bill of exceptions, 35. 
 • limitations of the rule, 3.5. 
 
 other evidence as to the points contained in the bill 
 
 of exceptions, 36. 
 motioai in arrest of judgment, 37. 
 writ of error, 37. 
 
 party must have been injured, 40. 
 erroneous ruling of the court, 42. 
 evidence, 44. 
 jury, 51. 
 surprise, 51. 
 new evidence, &c., 52. 
 limitation of the rule — it must ap-pear that no injury 
 
 has been done, 53. 
 substantial justice done, 57. 
 erroneous rulings, 58. 
 grounds of, substantial justice, 60. 
 
 errors as to evidence, 60. 
 
 verdict against evidence, 61. 
 
 newly-discovered evidence, 62. 
 
 surprise, 62. 
 
 damages, 63. 
 
 limitations of the rule, 63
 
 INDEX. 819 
 
 NEW TRIAL, continued. 
 terms of granting, 65. 
 
 costs, 65. 
 
 other terms — new trial in part — miscellaneous, 
 
 68. 
 form of action, 70. 
 refusal of terms, 70. 
 
 terms imposed upon prevailing party, 70. 
 abandonment of exceptions, 73. 
 nature and effect of the motion for, and the granting of; points of 
 
 practice ; successive new trials, 74. 
 waiver of, 82. 
 
 general rule, 82. 
 
 incompetency, »fec., of jurors, 82. 
 evidence, 88. 
 written evidence, 92. 
 'miscellaneous points of evidence, 95. 
 erroneous rulings, 96. 
 surprise, 99. 
 new evidence, 102. 
 excessive damages, 102. 
 miscellaneous cases, 103. 
 negligence of counsel, 105. 
 waiver in respect to time, 105. 
 in criminal cases, 91. ' 
 
 general rule, 113. 
 bill of exceptions, 114. 
 whether there can be a new trial after acquittal ; 
 
 constitutional provisions, 115. 
 or even after conviction, 116. 
 miscellaneous, 119. 
 NEWLY-DISCOVERED EYIDENCE, 
 new trial for, requires injury, 52. 
 where substantial justice is done, 62. 
 equitable injunction for, 450, 465. 
 new trial for, 491. 
 
 general rule, 491. 
 remarks of courts, 493. 
 diligence must be proved, 495. 
 forgetfulness, 498. 
 documentary evidence, 499. 
 ignorance of counsel, 499. 
 cumulative evidence, 499.
 
 820 INDEX. 
 
 NEWLY-DISCOVERED EVIDENCE, continued. 
 
 cviilciice to impeach, coutradict, or otherwise affect 
 
 a witness, 505. 
 questions of amount, 511. 
 
 of form, 512. 
 to prove a crime, 512. 
 court above, 512. 
 
 form of application, affidavits, statement of evi- 
 dence, hearsay, &c., 514. 
 materiality and credibility, 516. 
 NEWSPAPER, 
 
 reading of, by juror, 219. 
 jury, 251. 
 NOMINAL DAMAGES, 572. 
 
 instructions in case of, 344. 
 NONSUIT, 
 
 •waiver of objection to, 98. 
 refusal of — discretion, 393. 
 surprise by, 549. 
 error in, 027. 
 in case of appeal, 596. 
 NOTICE— 
 
 law and fact, 339. 
 for trial — surprise, 530. 
 want of, writ of error for, 652. 
 of appeaX 703. 
 NUMBER 
 
 of jury, 160. 
 
 of witnesses — verdict against evidence, 464. 
 
 0. 
 OATn OF JURY, 164. 
 OFFICER, 
 
 disqualification of, as to jury, 168. 
 
 communication of, with jury, 214. 
 OMISSION 
 
 of instructions, 257, 377, 385. 
 OPEN AND CLOSE, 
 
 right to— discretion, 390, 404. 
 OPINION 
 
 of juror, 175. 
 
 of judge as to facts, 273, 286, 287, 385. 
 
 instructions as to, 368. 
 
 evidence of, 432.
 
 INDEX. 
 
 821 
 
 ORAL CONTRACT, 
 
 construction of — law and fact. 322. 
 ORDER OF TESTIMONY, 393, 403, 437. 
 
 PAPERS, 
 
 improper use of, by jury, 214, 222. 
 surprise in case of, .546, 558. 
 return of, on appeal, 754. 
 PART 
 
 of case, new trial as to, 69. 
 
 instructions as to, 293. 
 of evidence, incompetent, 420, 423, 436. 
 injunction in, 606. 
 PARTY, 
 
 evidence may come from either, 432. 
 in writ of error, 661. 
 certiorari, 696. 
 PARTIES, 
 
 joint— form of verdict, 139, 145, 146, 147, 151, 152. 
 in case of injunction, 610. 
 PARTIAL NEW TRIAL— 
 
 damages, 576. 
 PARTIALITY OF JUROR, 175, 189. 
 PARTNERSHIP— 
 
 law and fact, 346. 
 PATENT, 
 
 construction of terms of, 328. 
 PAYMENT— 
 
 law and fact, 335. 
 injunction in case of, 605. 
 aud. que., 770. 
 PENAL ACTION, 
 
 verdict against evidence in, 481. 
 PERJURY, 
 
 newly-discovered evidence of, 508. 
 PERVERSE VERDICT, 480. 
 PETITION IN CERTIORARI, 697, 698. 
 PLAINTIFF, 
 
 verdict against, in a clear case, 468. 
 for, in a clear case, 470. 
 PLEADINGS, 
 
 new trial in connection with, 27. 
 form of verdict in reference to, 136.
 
 822 I^'DEX. 
 
 PLEADINGS, continued. 
 
 instructions based upon, 308. 
 
 evidence as connected with, 429. 
 
 verdict against evidence in connection with, 446. 
 
 surprise in connection with, 548. 
 
 in case of injunction, 598, G09. 
 
 writ of error as to, G30, 638. 
 
 in certiorai'i, 697, 698. 
 aucl. que., 772. 
 mandamus, 777. 
 POLL OF JURY, 227. 
 
 right to denaand, 158. 
 PRACTICE, 
 
 new trial for, 2, and n. 
 
 matters of, rulings as to, 38 9*. 
 PREJUDICE OF JUROR, 175, 189- 
 PRELBIINARY 
 
 rcmarlis of judge, 284. 
 
 facts — for the court, 312. 
 PREPONDERANCE 
 
 of evidence, verdict against, 458. 
 PRESUMPTION, 
 
 of correctness of vierdiet, 20. 
 
 instruction as to, 284, 306, 
 
 of paymeut — law and fact, 335- 
 
 on writ of error, 645, 
 PRESUMPTIVE EVIDENCE— 
 
 verdict against evidence, 473. 
 PRIVIES, 
 
 writ of error in case of, G65i. 
 PROBABILITY, 
 
 instructions as to, 371. 
 PROBATE COURT— 
 
 writ of error, 62:3. 
 PROCEDENDO 
 
 and writ of error, C23. 
 PROCEEDINGS, 
 
 error of, 624. 
 
 PEoniBrnoN 
 
 and writ of error, 623. 
 
 and appeal, 704. 
 PROVOCAITLON— 
 
 law and fact, 344. 
 PURCHASER, 
 
 writ of error by, G64»
 
 INDEX. 823 
 
 QUALIFICATIONS 
 
 of juror, 154, 162, 1G6. 
 
 and exemption — distinction, 164. 
 QUASHING OF WRIT OF ERROR, 669. 
 QUESTION, ^ 
 
 incompetent, 417 
 QUIA TIMET— 
 
 aud. que., 767. 
 
 R. 
 
 REASON OF INSTRUCTION, 261. 
 REASONABLE TIME— 
 
 law and fact, 331. 
 REASONABLENESS 
 
 of usage — law and fact, 330. 
 
 law aud fact as to, 331. 
 RECALLING A WITNESS— 
 
 discretion, 401. 
 RECORD, 
 
 use of, by jury, 219. 
 . construction of — law and fact, 323. 
 
 must show error, on writ of error, 640. 
 RECOLLECTION AND DISCOVERY- 
 
 distinction, in reference to new evidence, 498. 
 REFEREE, 
 
 award of, against evidence, 486. 
 REFERENCE, 
 
 error in case of, 654. 
 REFUSAL 
 
 of abstract instruction, 260. 
 
 of comment upon evidence, 291. 
 REHEARING, 
 
 diiferent forms of, 16. 
 RELATIONSHIP 
 
 of juror, 164, 187. 
 
 of officer to juror, 164. 
 RELEASE OF ERRORS, 671. 
 REMANDING, 
 
 on appeal, 745. 
 REMEDIAL, 
 
 writ of error is, 627. 
 REMITTITUR, l'52, 576.
 
 824 INDEX. 
 
 REPORT OF EVIDENCE, 
 
 for new trial, IG n. 
 
 in case of verdict against evidence, 454. 
 RES JUDICATA, 
 
 prevents injunction, G07. 
 RESTITUTION, 
 
 upon writ of error, 679. 
 RETURN UPON CERTIORARI, 692. 
 REVIEW AND NEW TRIAL, 17. 
 RULING, 
 
 erroneous — surprise, 554. 
 RULINGS OR INSTRUCTIONS, 
 
 as ground of new trial, 254. 
 
 general rule, 254. 
 
 omissions, 257. 
 
 immaterial or irrelevant instruction, 260, 
 290, 304. 
 
 ambiguity, 263. 
 
 conflicting instructions, 264. 
 
 misunderstood instructions, 264. 
 
 instructions construed together, 266. 
 
 adoption of language of the court above, 
 270. 
 
 uncertainty, 257. 
 
 law and fact, 272. 
 
 refusal or granting of a nonsuit, 274, 317. 
 
 ruling by which evidence was rendered 
 unnecessary, 277. 
 
 as to sufiSciency or insufficiency of evidence, 
 278. 
 
 conflict of evidence, or the reverse, 279. 
 
 tendency and ejff'ect of the evidence, 283, 
 314, 361. 
 
 instructions as to the law — limitations, 282. 
 
 preliminary remarks, &c., to the jury ; com- 
 ments upon the evidence ; illustrations, 
 284. 
 
 materiality of the remai-ks, 290. 
 
 refusal to comment upon the evidence, 290. 
 
 exceptions to the prevailing rule; erro- 
 neous interference with the facts and 
 evidence, 289. 
 
 instructions as to only part of the case, 293. 
 based on the evidence, 295.
 
 INDEX. 
 
 825 
 
 RULINGS OR INSTRUCTIONS, contiimed. 
 
 as ground of uew trial, abstract instructious, 305. 
 miscellaneous points, 305. 
 presumptions from facts proved, 306 
 instructions as affected by the pleadings, 
 
 308. 
 
 in reference to tlie arguments, 309. 
 
 miscellaneous, 309. 
 
 questions of law and fact, 310. 
 
 undisputed facts ; questions of law, 312. 
 
 weight of evidence, &c., for the jury, 
 314. 
 
 law and fact in criminal cases, 314. 
 
 absence of evidence ; questions of law, non- 
 suit, 317. 
 
 construction of written and oral contracts, 
 
 318. 
 legality of contracts, 323. 
 records, 323. 
 contracts and writings, when questions of 
 
 fact; mixed questions of law and fact, 
 
 324. 
 usage, 330. 
 reasonableness, 330. 
 payment, 335. 
 limitation, 336. 
 usury, 336. 
 notes, &c., 337. 
 miscellaneous contracts, 337. 
 notice, 337. 
 
 questions relating to land, 340. 
 delivery, 344. 
 
 state of mind ; intention, 344. 
 miscellaneous, 346 
 
 mixed questions ; miscellaneous, 347. 
 
 fraud, 349. 
 
 malice, 353. 
 
 libel, &c., 354. 
 
 malicious prosecution, 354. 
 
 negligence, &c., 355. 
 
 nuisance, 359. 
 
 cruelty, 361. 
 
 waiver, 361.
 
 826 INDEX. 
 
 e 
 RULINGS OR INSTRUCTIONS, continued. 
 
 as ground of new trial ; credit of witness, &c., and other points re- 
 lating to testimony; weight of evidence; 
 comparative weight of different kinds of 
 evidence, 361. 
 communications of the judge to ilie jury 
 
 out of the regular course, 371. 
 time of objecting to instructions, 37.5. 
 instructions as to costs and damages, 376. 
 request for instructions, 377. 
 form of instructions, 380. 
 cases of discretion, 389. 
 
 general rule — examples, 389. 
 order of testimony; examination of witnesses; 
 depositions; recalling witness; leuiling (jues- 
 tions, 393. 
 
 S. 
 
 SCIENCE, 
 
 terms of, construction of, 326. 
 SCIRE FACIAS 
 
 and writ of error, 622 n. 
 SEALED VERDICT, 238. 
 SECURITY, 
 
 in case of error, 65.5. 
 appeal, 758. 
 SEDUCTION, 
 
 damages for, 585. 
 SENDING BACK OF JURY, 148, 1.51. 
 SEPARATION OF JURY, 229. 
 SERVICE, 
 
 writ of error in relation to, 652. 
 SET-OFF, 
 
 rejection of, 442. 
 
 injunction in case of, 607. 
 SICKNESS, 
 
 surprise by, 528. 
 SLEEP OF JUROR, 20L 
 
 SPECIAL AND GENERAL VERDICTS, 126 and n. 
 SPIRITS, 
 
 use of, by jurors, 189. 
 STATE. 
 
 new trial in favor of, 101.
 
 INDEX. 
 
 STATE, conlimied. 
 
 — ^jurisdiction, injunction in reference to, 593. 
 appeal by, 751. 
 STATEMENT 
 
 of facts by judge, 286. 
 STATUTE 
 
 of limitations — law and fact, 335. 
 appeal depends on, 708, 709. 
 SUBSTANTIALLY 
 
 correct instructions, 266. 
 SUBSTANTIAL JUSTICE. 
 
 no new trial in case of, 57. 
 SUBSTANCE 
 
 of instructions, 384. 
 writ of error requires, 638. 
 SUCCESSIVE 
 
 new trials, 78. 
 
 verdicts, whether set aside as against evidence, 477. 
 
 new trials, in case of surprise, 523. 
 
 excessive damages, 564. 
 injunctions, 595. 
 writs of error, 680. 
 SUMMONS AND SEVERANCE, 
 
 in case of error, 663. 
 SUMMONING OF JUROR, 168. 
 SUPERSEDEAS 
 
 in case of error, 655. 
 
 certiorari, 690. 
 appeal, 759. 
 SURETY, 
 
 payment by — law and fact, 335. 
 in case of injunction, 612. 
 SURPRISE, 
 
 new trial for, 521. 
 
 general rule, 521. 
 
 in criminal cases, 522. 
 
 second motion for new trial. 523. 
 
 discretion — court above, 523. 
 
 for cause arising after verdict, 523. 
 
 justice done, 524. 
 
 laches, 524. 
 
 terms, 524. 
 
 concurrent with other grounds, 524. 
 
 threats, &c., preventing a defence, 525. 
 
 827
 
 828 INDEX. 
 
 SURPRISE, continued. 
 
 new trial for mistake of law, 525. 
 
 ignorance of fact, 52G. 
 
 sickness, 527. 
 
 absence of party, 528. 
 
 erroneous notice for trial, 530. 
 
 premature trial, 534. 
 
 absence, etc., of witness, 53G. 
 
 testimony given or omitted, 539. 
 
 want of preparation, 542. 
 
 rejection or admission of evidence, 543. 
 
 credibility of witness, 543. 
 
 misconduct of, or tampering with, witness, 544. 
 
 papers, 544. 
 
 pleadings, 548. 
 
 perjury, 549. 
 
 nonsuit, 549, 555. 
 
 absence, &c., of counsel, 549. 
 
 delay, withdrawing juror, 555. 
 
 default, 555. 
 
 waiver, 556. 
 
 depositions, &c., 558, 
 
 affidavits, 559. 
 
 delay in motion, 560. 
 
 party must be injured, 51. 
 waiver in case of, 99. 
 an equitable ground of new trial, 588. 
 injunction for, 588 n. 
 certiorari for, 698. 
 SWEARING OF JURY, 164. 
 
 T. 
 
 TALESMEN, 173. 
 
 TAMPERING WITH JURY, 187. 
 
 TECHNICAL TERM, 
 
 judge must define, 348. 
 TENDENCY 
 
 of evidence, instructions as to, 295, 303. 
 
 and weight of evidence — distinction, 283. 
 TENDER, 
 
 aud. que. in case of, 770. 
 TERMS 
 
 of new trial, 65. 
 
 for surprise, 524.
 
 INDEX. 
 
 TERMS, .contmued. 
 
 of injunction, 593. 
 TESTIMONY, 
 
 order of, 393, 403, 437. 
 surprise as to, 528. 
 THEORETICAL INSTRUCTION TO JURY, 2G0. 
 TIME, 
 
 of admitting evidence, 46, 393, 403, 417, 423, 429, 436. 
 in reference to new trial, 106. 
 of instructions to jury, 371. 
 of objecting to evidence, 423. 
 of trial, surprise as to, 534. 
 in case of injunction, 595. 
 of dismissal, on appeal, 597. 
 TITLE, 
 
 question of — appeal, 706. 
 TOSSING UP. (See Jury.) 
 
 affidavit of, 245. 
 TOWN, 
 
 juror in case of, 190. 
 TRESPASS 
 
 qu. cl., damages for, 584. 
 TRIAL, 
 
 time of, surprise as to, 534. 
 of what, on appeal, 737. 
 TRIFLING CASES— 
 
 verdict against evidence, 482. 
 TRUST, 
 
 in case of injunction, 613. 
 TRUSTEE, 
 
 appeal in case of, 751. 
 
 U. 
 
 UNDERSTANDING 
 
 of instructions by jury, 264. 
 UNFAITHFULNESS, 
 
 law and fact as to, 356. 
 USAGE, 
 
 question of — law and fact, 330. 
 USURY, 
 
 injunction for, 617. 
 
 829
 
 830 INDEX. 
 
 VARIANCE, 
 
 a (juestiou of law, 312. 
 writ of error for, G31. 
 in case of appeal, 741. 
 
 veri)k;t, 
 
 general grounds of new trial as to, 121. 
 
 form of, 133. 
 
 amount of, 148, 151, 152. 
 
 condition in, 152. ' 
 
 against law, 121. 
 
 agreement in. 157. 
 
 grounds of, inquiry as to, 250. 
 
 and judgment, upon writ of error, 624. 
 
 against evidence, new trial for, 444. 
 
 general rule, 444. 
 
 pleadings — variance, 446. 
 
 by court above, 446. 
 
 additional grounds, 448. 
 
 in reference to a particular fact, 
 
 448. 
 limitations of the rule; the case 
 
 must be strong, 449. 
 deficiency of evidence, 452. 
 court above, 453. 
 report of the evidence, 454. 
 preponderance of evidence ; weight 
 of testimony; credibility of wit- 
 nesses; case passed upon by the 
 jury ; improper bias, ifec, 456. 
 absence of evidence, 461. 
 balance of testimony ; credit of 
 
 witnesses, 461. 
 number and relation of witnesses, 
 
 464. 
 misunderstanding of the case, 465. 
 verdict founded upon some evi- 
 dence ; upon vague and suspi- 
 cious evidence, 466. 
 verdict for the defendant without 
 
 evidence, 468. 
 for the plaintiff without evidence, 
 470.
 
 INPEX. 
 
 831 
 
 VERDICT, continued. 
 
 against evidence, new trial for, for the plaintiff against clear evi- 
 dence for the defendant, 471. 
 
 circumstantial evidence, 473. 
 
 evidence by inspection, 476. 
 
 in reference to language, 476. 
 
 successive verdicts, 477. 
 
 demurrer to evidence, 579. 
 
 perverse verdict, 480. 
 
 in what cases, 480. 
 
 criminal cases; penal actions; 
 fraud, 480. 
 
 substantial justice, 367. 
 
 trifling cases, 482. 
 
 no benefit to the party, 483. 
 
 trial by the court ; verdict by con- 
 sent ; award, 484. 
 
 questions of law, 486. 
 
 verdict satisfactory or otherwise to 
 the judge, 487. 
 and for excessive damages— connection, 561 n., 
 
 567. 
 VINDICTIVE DAMAGES, 572. 
 VOID APPEAL, 719. 
 VOLENTI iXON FIT INJURIA— 
 writ of error, 637. 
 
 W. 
 
 WAIVEE. (See Neio Trial, Waiver of.) 
 as to jury, 160, 238. 
 
 misconduct of jury, 218. 
 law and fact as to, 361. 
 
 as to evidence, 442, 556. * 
 
 ill case of excessive damages, 566. 
 of appeal, 721. 
 WEIGHT 
 
 of evidence. (See Verdict.) 
 
 error as to, must ap^Tcar, 29, 32. 
 in connection with instructions, 255. 
 and tendency of evidence — distinction, 283. 
 of evidence, instructions as to, 366.
 
 832 INDEX. 
 
 WITNESS, 
 
 waiver of objection to, 89. 
 ■whether juror may be, 191. 
 credit of, instruction as to, 3G2. 
 discretionary rulings as to, 393. 
 newly-discovered, must be credible, 519. 
 disqualification, absence, &c., of — surprise, 53G, 538. 
 WRIT OF ERROR, 618. 
 
 general remarks ; peculiarities of American law, 619. 
 
 nature of a writ of error, 619. 
 
 ex dehito justitice, C20. 
 
 a new action, 620. 
 
 and motion in arrest of judgment, 620. 
 
 judgment must be according to the course of the common law, 
 
 620. 
 qualifications of this rule, 621. 
 special proceedings — whether eiTor lies, 623. 
 grounds of the writ, 623. 
 mere irregularity, 623. 
 
 whether for acts after judgment ; executions, 623. 
 error oi foundation, proceeding, or judgment, 624. 
 error coram nobis or coram vobis, 625. 
 error oHaio and of fact, 626. 
 a remedial process; construction of statutes, 627. 
 cases of discretion, 628. 
 
 questions of amonnt; ad damnum, interest, costs, &c., 629. 
 defects in the declaration ; variance ; misjoinder, &c., 630. 
 right of appeal, whether a writ of error lies in case of, 631. 
 the judgment must be final, 634. 
 the plaintiff in error must have been injured by the judgment; 
 
 voluntary nonsuit, &c., 40 n., 637. 
 the error must be substantial, not merclj formal ; limitations 
 
 and qualifications of the rule ; judgment in favor of the plain- 
 tiff in error, 638. 
 the error must appear upon the record ; what constitutes the 
 
 record; papers used or filed, parol evidence, &c., 640. 
 the error must appear affirmatively; judgment presumed to be 
 
 correct, 645. 
 when the right to a writ of error is tvaived, 647. 
 error in case of default, 651. 
 for want of, or defect in, service of the writ ; joint defendants, &c., 
 
 652. 
 in case of arbitration, 654.
 
 INDEX. 833 
 
 WRIT OF ERROR, continued. 
 
 effect of a writ of error upon the judgment and the rights of the 
 parties ; supersedeas of execution, &c., 655. 
 
 course of proceeding upon a writ of error; assujnment of errors ; 
 allegations of the writ, &c., 656. 
 
 parties ; must be interested ; joint parties ; in case of death ; pur- 
 chasers, creditors, agents, &c., 661. 
 
 summons and severance, 663. 
 
 misnomer, 668. 
 
 service of writ of error, 668. 
 
 defences ; dismissal ; in nullo est erratum ; release of errors, 669. 
 
 judgment upon a writ of error; reversal in part; remanding of 
 the case, and proceedings of the court below; miscellaneous 
 points, 672. 
 
 successive writs of error, 680. 
 
 error in criminal cases, 681. 
 WRIT 
 
 of inquiry — evidence, 429. 
 
 of right, certiorari is not, 689. 
 error is, 620. 
 WRITTEN 
 
 instructions to jury, 273 n., 374, 386 n. 
 
 53
 
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