Excluding legal testimony. In New York, a judgment will be reversed, or a verdict set aside and a new trial granted, if competent testimony be excluded. In Gurney v. Dessies, (1) on the return to the certiorari, the only error assigned was, that the justice had refused to admit the evidence of a free black man, as to facts which took place while he was a slave. The cause was submitted without argument. Per Curiam." A free black man is a competent witness to prove facts which may have happened while he was a slave. The judg ment below must be reversed." of So, in Hewlett v. Cock, (2) in ejectment. The plaintiff offered to read in evidence, a lease more than thirty years old, purporting to bear date in 1722, granting to the lessee, a right to flow lands for the use of a mill, which was found among the title. papers the estate of the lessor, in 1779; and the owner of the mill, in 1810, recognized the right of the land overflowed, in the person to whom the estate of the lessor had been transmitted. The judge refused to permit the lease to be read, until he should prove a possession *under it, and for defect of [*254] proof, directed a non-suit. On motion to set aside the non-suit, and for a new trial, after commenting upon the case at large, Nelson, J., delivering the opinion of the court, concludes— "A new trial must be granted for the reasons that the judge ought to have admitted the lease in evidence, without proof of the execution of the same, on the ground of its being an ancient deed. Its great antiquity, the account given of it, together with the evidence of a corresponding possession, and the other circumstances, were sufficient to authorize its admission." In Massachusetts, the court have carried the rule to the granting of a new trial, where evidence has been rejected by the judge, which was proper to have been received under one count of the declaration; although such count was not relied on, nor read by the plaintiff at the trial, a general verdict having been given for (1) 1 Johns. Rep. 508. (2) 7 Wendell, 371. Excluding legal testimony. the plaintiff on all the counts. Thus, in Middlesex Canal Corporation v. M'Gregore.(1) Case on promises to pay toll, and on two promissory notes. The defendant, at the trial, rested his defence altogether upon the insufficiency of the canal, and offered to prove that, in consequence of an advertisement by the agent of the canal, that it was sufficient for the transportation of lumber, he was induced to enter his rafts in the canal, and gave the notes to secure the toll, when the same should have passed through; and that the canal proved altogether insufficient. The evidence was rejected, and a general verdict for the plaintiff, subject to the opinion of the court, upon the right of the defendant to prove the facts stated as above. If the court should be of opinion, that the evidence was improperly rejected, the verdict to be set aside, and a new trial granted; otherwise, judgment to be ren[*255] dered according to the verdict. Per Curiam." If there is any one count on which the defendant's evidence, which was rejected, would have been proper, the verdict must be set aside. The first count is indebitatus assumpsit for toll, for the transportation of a certain quantity of lumber through the canal. On this count it was necessary for the plaintiffs to prove the quantity of lumber, for the transportation of which they were entitled to demand toll; and it was clearly competent for the defendant to prove, how much lumber he in fact transported, for which he was liable to pay toll. To prove this fact, the evidence which he offered, and which was not admitted, was legal and proper. The verdict, therefore, must be set aside, and a new trial granted."(2) But a new trial will not be granted for the rejection of a witness on a supposed ground of incompetency, when another witness establishes the same fact, and it is not disputed by the other side. In Edwards v. Evans, (3) an action for bribery, and verdict for defendant. A new trial was moved for, because one Bradley (1) 3 Mass. Rep. 124. (2) Et vide 5 Mass. Rep. 391. Excluding legal testimony. was rejected as a witness, on the ground of interest, a similar suit having been commenced against him. It was admitted the fact he was called to prove, had been proved by another witness. The opinion of Le Blanc, J., will best illustrate the rule. "The ground on which new trials are granted, on account of the rejection of a witness who was prepared to give evidence relative to the issue, is, that the court cannot weigh the degree of relevancy, or say what effect any fact that is relevant would have had on the minds of the jury. But 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 *col- [*256] lateral to that fact, there is no ground for the court to interfere by granting a new trial." So, in The King v. Teal and others.(1) Indictment for conspiracy. A witness, called to prove it, swore she had formerly sworn false, at the instigation of the defendant Teal, charging her bastard child to the prosecutor. To discredit her, she was cross-examined to her own profligacy, and answered as to her criminal connection with several. The defendant, further to discredit her, offered to prove her guilty with others. The proof was rejected, and made a point on a motion to set aside the verdict. Upon this, Lord Ellenborough, Ch. J., observes; "The other objection amounted to no more than this, that Hannah Stringer, the witness, having admitted that she had been connected with two or three persons, the learned judge thought it immaterial to examine witnesses tendered on the part of the defendant, to show that she had been also connected, at other times, with several other persons; considering, that, by her own showing, she was a common woman. But it was now urged, that the extent of her prostitution might have shaken her credit in a greater degree. If, however, the evidence had been admitted, it could have made no difference, at least it ought not to (1) 11 East, 307. Excluding legal testimony. have made any difference in the verdict." The rule was therefore discharged. Nor will the verdict be set aside for the rejection of legal testimony under a bad plea. In Meyer v. McLean (1) an action of debt, the defendant pleaded nil debet, and subjoined a written notice, that the defendant would give in evidence under that plea, that an execution had been issued on the judgment, which had been duly levied and ant. paid to the sheriff. On the trial, after the record had [*257] been produced by the plaintiff, the defendant *offered the special matter mentioned in the notice to his plea in evidence, which was objected to by the plaintiff. This point being reserved, the jury on the evidence found a verdict for the defend A motion was now made to set aside the verdict and for a new trial. Per Curiam.-" By going to trial on the plea and notice, the plaintiff admitted the plea to be valid as a general issue. The judge at Nisi Prius is not to decide on the pleadings; and he was right in admitting the evidence. This is an application for a new trial; but why should we award a new trial if the plea be bad? A new trial is never granted for a defect in the pleadings. The plaintiff should have sought a different remedy." Nor where inadmissible evidence was properly rejected, but upon incorrect grounds. As in lessee of Ludlow's heirs v. Parke.(2) The defendant offered in evidence an order, made by a Court of Common Pleas, which was rejected for various reasons; and among others, that the defendant, by a recital in a certain deed, must be precluded from giving in evidence any other order than of a certain date. The counsel for the defendant contended that the case was reserved, not so much for the purpose of determining whether this evidence was properly rejected, as for the purpose of determining whether the opinion thus expressed is consistent with law; and insisted that if it is not, a new trial should be granted. But Per Curiam.-"In the trial of a cause, (1) 1 Johns. Rep. 509. Excluding legal testimony. a particular item of evidence is offered and objected to for a va riety of reasons, one or more of which are sufficient to show that the evidence is improper. The court, in assigning reasons for the rejection of testimony, express an opinion upon some one point which cannot be sustained upon legal principles. It is unreasonable, it is contrary to every day's experience, to suppose that upon a motion for a new trial, the court [*258] will confine themselves to the consideration of the opinion thus expressed. The only proper inquiry in such case is, was the evidence properly rejected, and that, without regard to the particular reasons assigned by the court, when it was rejected. Any other course would lead to manifest injustice. It would be trifling with the rights of the parties."(1) Nor will a new trial be granted where the judge has a discretion to receive or reject evidence; as where the plaintiff has rested, or the testimony is closed on both sides; as in Edwards v. Sherratt.(2) Action against the defendant as a common carrier. The plaintiff's counsel having closed their case, and the counsel for the defendant having begun to address the jury, the learned judge, whose opinion was in favor of the defendant, stopped him by stating that impression, and that in his opinion, the principal question for the jury to decide was, whether the bays were put on board, according to the usual course of dealing with a common carrier. The plaintiff's counsel then, for the first time, stated that the defendant had received some money, which the mob had paid for the corn seized by them, and which it was contended that the plaintiffs were entitled to recover on the money counts. The learned judge, however, was of opinion, that as the plaintiffs had come there to try the question how far the defendant was liable as a common carrier, and that this was only an after thought to carry a verdict and the costs, the evidence ought not to be admitted in that stage of the cause. A rule nisz was obtained. The rejection of the testimony was sustained by all the judges; Le Blanc, J., observing-" A question |