Excluding legal testimony. has been made, whether the judge did right, after a trial on the main question, and the plaintiffs had closed their case, [*259] to refuse to let them into additional evidence *upon a collateral point, which the parties did not come to try, and which was only thought of when the plaintiffs found that the judge's opinion was against them on the main point. I have always conceived that it is a matter of discretion in the judge, after the plaintiff has closed his case, and the defendant's counsel has begun his address to the jury, to permit the former to go into a new case. And I see no ground to complain of the exer cise of that discretion, in the present instance." So in Alexander v. Byron.(1) The defendant moved for a new trial, on the ground of a refusal by the court to permit a witness. offered by the defendant to be examined. The witness appeared in court in the afternoon of the same day, after the testimony on both sides had closed, and the counsel for the defendant declared they had done with the examination of witnesses, and had proceeded in summing up the cause; and was then offered by the defendant. The plaintiff objected to his admission in that stage of the cause, and because his witnesses had left the court. The witness was refused by the judge. Kent, J.-"The question is simply, whether it was the duty of the judge, under the circumstances of the case, to have received the witness at the time he was offered. It can never be claimed by either party, as a matter of strict right, to open the cause to proof, after full opportu nity has been given to each side to be heard, and the testimony has been regularly, and by mutual consent closed. It was therefore properly admitted upon the argument of this motion, that the subsequent admission of testimony must rest upon the discretion of the court, duly exercised, according to the circumstances of the case. I cannot say in the present case, that the judge has not exercised a due discretion; and am of opinion the motion ought to be denied." And by the whole court, motion denied. Excluding legal testimony. *But in Mercer v. Sayre,(1) the court granted a new [*260] trial on the ground that the judge had not exercised his discretion soundly, in rejecting testimony. After the evidence had closed, and the defendant's counsel had summed up, and while the plaintiff's counsel were addressing the jury, the counsel for the defendant informed the judge, that he had just discovered, from the inspection of a paper in the possession of one of the plaintiff's witnesses who had been examined, evidence material to the defendant; and asked permission to give evidence of that fact to the jury; but the judge thought he could not admit the evidence, unless the plaintiff's counsel would consent; which being refused, the evidence was rejected, and the jury found a verdict for the plaintiff. Per Curiam.-"The evidence offered was material, inasmuch as it went to destroy any presumption that the money was actually received by the defendant at the time the action was brought. The judge, under the circumstances of the case, had a discretion to admit the evidence; and it ought in sound discretion to have been received. We think, therefore, that the defendants are entitled to a new trial."(2) (1) 7 Johns. Rep. 306. (2) Vide 7 Greenl. 181. General remarks. *CHAPTER IX. FOR MISDIRECTION OF THE JUDGE. I. General Remarks. II. Misdirection on matters of law. III. Instruction not warranted by the evidence. V. Improperly neglecting to non-suit. VI. Erroneously submitting the issue. VII. Verdict not disturbed, where justice has been done. IX. Expressing opinion on the testimony. I. General remarks. IN the distribution of the merits of a cause, at the trial, the jury are to respond to the truth of the facts, and the judge to the law. However distinct their provinces may be, they unite in one result the verdict. To accomplish this, the judge, after the testimony closes, has an important, and in some instances a difficult, duty to discharge. The facts for and against are to be recapitulated and grouped, and the principles of law applied. To be able to do this on every occasion, whatever the nature or intricacy of the case may be, requires a comprehensive knowledge of law, great powers of discrimination, close attention, and much tact and skill-a degree of judicial excellence, rather to be desired than realized in perfection. It is scarcely possible that the most enlarged and experienced mind should, in every instance be able to lay down the principles of law, with that precision that can bid defiance to the astuteness of counsel, against whose client the principle is intended to apply. Nor is it unfrequently the case, that from some obliquity of intellect, or misapprehension of fact, or indistinct perception of the precise point of law, in the judge, the minds of the jury are carried to illegal results, and justice is defeated. When the merits of the case suffer from an ignorant, confused, or perverse application of the law, courts Misdirection on matters of law. never fail to interpose. Where, on any other grounds, by reason of the unimportant nature of the cause, or the trifling injury resulting to the party, the courts would not interfere, they will on the ground of misdirection. So *universal is the [*262] practice, and with such deep reverence are the principles of law regarded, that perhaps there cannot be found one instance of injustice done, in a clearly ascertained case of misdirection, where a new trial has not been directed. It is a favorite ground of relief, has the ear of the court, is treated with marked respect, has every facility afforded, and, when successful, the relief is uniformly granted without costs. The error of the judge calls for correction as a matter of right, not of discretion, and a motion for a new trial on this ground is an appeal to the well settled principles of law. Hence the va rious modes of relief, branching out into almost endless distinctions, giving to this head of practice a profusion of illustration. II. Misdirection on matters of law. If the judge at the trial misdirect the jury on matters of law, material to the issue, whatever may be the nature of the case, the verdict will be set aside, and a new trial granted. Thus, in an Anonymous case,(1) the court say, it is good cause of new trial, where the judge who tried the cause has denied to admit that for evidence, which was legal evidence, or where he misdirects the jury. Again, new trials shall be granted, if the judge at Nisi Prius misdirect the jury; because those trials are subject to the inspection of court.(2) The error of the judge in his charge to a jury in a matter of law, is well illustrated by How v. Strode, (3) where the jury had given them in charge, as the principal point on which they were. Misdirection on matters of law. to pass, a fact admitted by the pleadings. It was a case in replevin, for taking cattle. The defendant avowed taking them damage feasant. Plea in bar, common of pasture; replication, a custom to inclose; rejoinder de injuria sua propria, [*263] and joinder inde. Upon *the evidence, the judge was, of opinion, and so charged the jury, that he thought the defendant had not proved the custom entirely, and that if they believed the land in question was discharged and free from any person having a right of common thereon, they should find for the defendant; if not, that they should find for the plaintiff. The jury gave a verdict for the plaintiff, and it was moved for a new trial, for the misdirection of the judge; for that the right of common before inclosure made, was for cattle levant and couchant, upon each person's uninclosed lands; and this matter is not at all in issue, but is admitted on the pleadings by both sides. Of this opinion was the whole court, saying that the parties agreed by the pleadings, that while the lands in these open fields are uninclosed, all have a right of common for cattle, levant and couchant. And per totam Curiam.-"The verdict must be set aside for misdirection of the judge."(1) It is essential to the success of the motion for a new trial on the ground of misdirection, that it should materially affect the verdict.(2) When this is the case, the rule becomes of universal application, embracing all kinds of actions, whether of tort or of contract. Even actions, penal in their nature and form, are not excluded, although the defendant may have a verdict. In Wilson v. Rastall, (3) an action strictly penal. It was brought to recover penalties for bribing voters at an election. At the trial, one Handley, an attorney, was sworn a witness, who refused to produce certain papers, or to answer as to their contents, having come to the possession of the papers as the attor (1) Vide, as to Misdirection generally, 6 Com. Dig. 223, Day's edit.; 2 Tidd, 915; Gra. Prac. 514. (2) Vide 10 Johns. Rep. 447; 5 Day, 479; 5 Mass. Rep. 487. |