Honest mistake of party or counsel.

So, in North Carolina, in Palmer v. Poppleston,(1) where an objection was taken on the trial to a bill of sale, because registered in the wrong county, and on a former trial between the same parties, the bill of sale had been read without objection, the court set aside a non-suit founded on the objection, upon payment of costs, on the ground of surprise, and to promote the justice of the

case.

Upon the same principle, also, in Kentucky, in Boyce v. Yoder, (2) a new trial was granted on the ground of surprise, produced by the rejection of a deed which the party believed, and had a reasonable ground to believe, from the circumstances, was admissible.

So, where counsel suffered a verdict to pass against his client, without a trial, clearly by mistake, and to his prejudice, the Supreme Court of New Hampshire, in Riley v. Emerson,(3) granted a new trial. And in Winn v. Young, (4) in Kentucky, the same principle has been adopted. And it has been held, that where a verdict is not the result of a compromise of doubtful rights, but of the error of the court, or the mistake of the counsel transcending his powers, a new trial will be granted.

But the court will not allow motions grounded on mistake, to prevail against the justice of the case, nor unless the mistake be wholly free from blame. This rule presents the true grounds, blameless mistake, and injury to the party; and if the latter, in seeking relief, do not satisfy the court in both respects, the motion will be denied.

A motion for a new trial, on the ground of mistake, was therefore refused, in Wits v. Polehampton, (5) being con[*186] trary to justice. It was moved for a new trial, because

(1) 1 Hawks. 307.

(2) 2 J. J. Marsh. 515.

(3) 5 New Hampshire Rep. 531.

(4) 1 J. J. Marsh. 52.

Honest mistake of party or counsel.

the defendant having pleaded a composition, had forgot to carry down witnesses to prove the subscribers' hands; and the motion was denied because the debt was honest. And Holt, Ch. J., remembered where debt on a bond was brought against an heir, who pleaded riens per descent, but the verdict went against him, by omitting to bring the settlement to the trial; and the court being moved, refused to grant a new trial, because it was an honest debt.

So, where a defendant, by the mistake of his attorney, pleads a plea which does not cover his defence, and, on trial, a verdict is therefore against him, the Supreme Court will not, for that reason, grant a new trial. McNeish v. Stewart.(1) It was an action on covenant of seisin. Plea non est factum, and verdict for plaintiff. Motion to set the verdict aside on an affidavit, stating that the plea was put in under a mistaken supposition by the attor ney for the defendant, that the plaintiff must prove a breach, and the defendant might show, in his defence, any matter which would go to defeat or diminish the amount of the plaintiff's recovery, and that the plaintiff did not pretend a failure of title, as to all the land conveyed. But, per Curiam.-" We cannot receive this excuse as a ground for the relief sought. Though it appears to be founded in good faith, yet a contrary practice would lead to endless excuses founded in mere pretence. After the defendant has gone to trial upon pleadings which do not cover his defence, and has a verdict against him, it is too late for him to move for an amendment. He must go down to trial prepared."(2)

So, in Gorgerat v. McCarty,(3) held, that the mistake of the party or his counsel, is no ground for a new trial. What the court meant by mistake, is explained in their *opin- [*187] ion, and is reconcilable with the cases cited in support

of the preceding rule. "The plaintiff was non-suited for want of testimony, the ordinary case, not so much of mistake, as the

(1) 7 Cowen, 474.

(2) Et vide 7 Cowen, 369.

(3) 1 Yeates, 253.

Ignorance or inadvertence will not be relieved.

absolute want of evidence."

And, upon this, they say, "We

know of no case in the books, where a non-suit, entered for want of testimony on the part of the plaintiff at the trial, has been taken off; nor do we apprehend the mistake of the party or his counsel, to be a ground for a new trial.”

VI. Ignorance or inadvertence will not be relieved.

But the court will not relieve the party from the consequences of mere ignorance, inadvertence or neglect, by granting a new trial.

Thus, if the party, or his counsel omit to put forward a claim at the trial. So ruled in McDermott v. The United States Insurance Company (1) Action upon a policy, and verdict for the defendants, with points reserved, one of which was, as to whether an award which had been made between the parties was final. The parties had offered evidence on the present claim, and the arbitrators had indorsed upon their submission, that, "having examined all the evidence offered by the parties, they are of opinion, that proof has not been produced, sufficient to establish a claim against the United States Insurance Company, for loss on the policies, Nos. 2,268 and 2,269, dated 6th December, 1809, per schooner Emily, Captain De Weeve." Held, that an award in a suit on a policy of insurance, that proof had not been produced sufficient to establish a claim against the defendant, is as much as saying that the plaintiff had no cause of action, and is final and conclusive, and the court will not grant a new trial on the ground of a claim which the party might have brought forward at the trial, and did not.(2)

[*188]

*So, if the party neglect to apply in time to a court of law for a new trial, it will be refused in equity. In Bateman v. Willoe.(3) The defendant had a verdict. Bateman, conceiv

(1) 3 Serg. & Rawl. 604.

(2) Et vide 6 Monroe, 147.

Ignorance or inadvertence will not be relieved.

ing that he had good grounds to impeach this verdict, directed a motion to be made, and filed an affidavit for the purpose, but, by some mistake, notice of the motion was not given until after the period, within which, by the rules of the Court of Exchequer, it was competent to him to give it, and the court, therefore, on that ground, and without going into the merits of the applica tion, refused to disturb the verdict. Thereupon, the present bill was filed, stating that there were unreasonable charges in the plaintiff's bills. The bill prayed an account and injunction. The Chancellor, Redesdale, dismissed the bill, remarking, among other things: "Whether Willoe had a right to the charges or not, was a matter capable of being laid before a jury, and if Bateman had shown that he ought to have credit for these sums, credit must have been given him, if he took the proper means for that purpose. Then, an application is made to the Exchequer for a new trial, which I understand to have been grounded on the same matters that are made the ground of the present suit, but the notice was too late, and the court refused a new trial. That court has established a rule necessary for the purposes of justice, and being so, it would be contrary to those purposes if I should break through it. I should render that rule nugatory and defeat justice, if, in every case, where the party has neglected to apply in due time to the court of law, he should be at liberty to come into equity for a new trial."

In cases of surprise, the situation of the plaintiff differs from that of the defendant. When he is surprised by the production of unexpected evidence at the trial, he may submit to a nonsuit, and, if he neglects it, he will not be relieved, unless he *was prevented from being non-suited by fraud or ac- [*189] cident. Thus, in an issue, out of Chancery, upon a motion for a new trial, because the defendant had produced evidence, by surprise, which the plaintiff, if prepared, could have answered, one main reason for denying the motion was, that the plaintiff suffered a verdict to be given when he might have been non-suited.(1)

(1) Richards v. Syms, Buller's N. P. 326.

Ignorance or inadvertence will not be relieved.

In Harrison v. Harrison, (1) which was an action for the bal ance of an account for work done, the jury believing the defendant's witnesses, who proved an acknowledgment on the part of the plaintiff, that he had been paid, found for the defendant. Peake, sergeant, obtained a rule to show cause why there should not be a new trial on the ground of surprise, on affidavits stating that the witnesses on the part of the defendant at the trial, who swore that the plaintiff had acknowledged having received money from the defendant, had since been heard to say, that they had been in effect suborned by the defendant, and had sworn what was not true. It was also sworn that the defendant had applied to several persons, endeavoring to induce them to state at the trial, that they had been present at conversations wherein the same acknowledgments had been made. There were other affi davits in which it was stated that the defendant's witnesses had, after the trial, acknowledged that they had been suborned, and had perjured themselves; detailing minutely various conversations wherein they had done so. Affidavits were submitted on the part of the defendant, denying these facts. Wood, Baron."It would be a very bad precedent, if we were to make this rule absolute. The consequence would be, that we should have a vast number of new trials applied for, charging the witnesses of

the succeeding party with perjury. There are besides [*190] other reasons *in this case for discharging the rule. The ground of the application was surprise. I have no doubt that the plaintiff was surprised when the defendant proved his acknowledgment, of having received money from him for which he had not thought proper to account, and was proceeding to recover by this action. If that had not been true, he should have requested to be non-suited, that he might have become better prepared in another action; but he chose, notwithstanding, to go on and take the chance of a verdict, by letting the case go to the jury, in the hope, perhaps, that they would disbelieve the defendant's witnesses. Now suppose we should grant a new trial, the plaintiff might again take the chance of being believed, and if