Verdict not disturbed where justice has been done. defendant an opportunity to obtain, by a verdict, the *costs already accrued, together with the costs of such [*308] new trial. It appears, therefore, to be proper that the motion for a new trial should be granted, with this proviso, that the plaintiff may elect by the first day of the next term to discontinue without costs."(1) So, in a libel case, Dole v. Lyon.(2) The judge charged, among other things, that the defendant had been put on his guard against printing the libel, by the note of the author prefixed, stating that another printer had refused to publish it; and that the jury might presume from this circumstance, that the defendant had been backed by the author or some other persons. The jury found a verdict for the plaintiff. A motion was made to set it aside, and for a new trial, and one of the grounds urged was the misdirec tion of the judge. Upon which, Kent, Ch. J., delivering the opinion of the court, observes-"The charge to the jury has been deemed erroneous, because it was observed, that the jury might presume from the circumstances, that the defendant had been backed by the author or some other person. The circumstance from which this might have been inferred, was the note to the defendant, with which the libel was introduced, which stated the libel had been refused a place in another gazette, putting him on his guard. The court are bound, on this subject, to judge how far the observation was material, as well as erroneous. It was said by Mr. Justice Butler, (3) that though the judge may have made some little mistake in his directions to the jury, yet if justice be done, the court ought not to interfere. The court are always bound, in the exercise of a sound discretion on the subject of new trials, to determine how far the observation of the judge was material, and affected the merits of the case. Otherwise, as this court observed, *in Fleming v. [*309] Gilbert, (4) there would be no end to new trials, and (1) Vide Ibid, 533, in notis. (2) 10 Johns. Rep. 447. (3) Estwick v. Caillaud, 5 Term Rep. 425. (4) 3 Johns. Rep. 528. Verdict not disturbed where justice has been done. the remedy would be worse than the disease." New trial refused. The principle was strongly tested in the recent case of Woodbeck v. Keller.(1) Slander, for accusing the plaintiff of perjury. Plea, general issue and notice of justification. The judge charged the jury, "that the two witnesses for the defendant, being contradicted by four witnesses on the part of the plaintiff, as to what the plaintiff did swear, the former were not to be believed. Also, that to sustain the justification, the defendant must prove the perjury by two witnesses; or by one witness, and circumstances tantamount to another witness. Verdict for the plaintiff; and motion for a new trial for the misdirection of the judge. Suther land, J., who delivered the opinion of the court, sustained the judge upon the part of his charge as to the justification. Upon the other, he observed—" The judge ought to have left it to the jury to decide between the witnesses. But if the jury ought to have come to the same conclusion, the strong charge of the judge in an action of this description, is not sufficient cause for granting a new trial. On the whole, I am of opinion that a new trial should be denied."(2) The same rule applies in Pennsylvania, as in Allen v. Sawyer.(3) Kennedy, J., observed-"It has been long since well settled by numerous authorities, that when the plaintiff has only entitled himself to claim nominal damages, and the jury find a verdict for the defendant, that the court will not set it aside and grant a new trial, unless the question of right or title to property of value should be involved in the suit, and affected by [*310] the verdict. Suits are *not to be encouraged for the purpose of gratifying a mere litigious disposition, but to promote justice, by restoring parties to the enjoyment of those rights of which they have been deprived, and redressing those real injuries which they shall have sustained. It would be even (1) 6 Cowen, 118. (2) Vide Feeder v. Whipple, 8 Johns. Rep. 369; Beers v. Root, 9 Johns. Rep. 264. Giving weight to particular evidence. an injury, or at least attended with a loss to the plaintiff, to grant him a new trial when the jury have found a verdict against him in a case in which, at most, he is only entitled to recover nominal damages." The same principle has also been sanctioned in Vermont, in Bullock v. Beach,(1) and in Kentucky, in Smith v. Surber,(2) and Hunter v. Dickerson.(3) VIII. Giving weight to particular evidence. Whether, and how far, the judges may transcend the limits assigned them, on questions of law, and express their opinions on the truth or weight of the testimony in their charge to the jury, has not been reduced to any fixed rule. It would appear from the practice in England, and in this country, in most, if not all of the states, a large discretion is allowed, and unless abused to the subversion of justice, the courts are disinclined to interfere. In other words, when the judge interposes his opinion strongly on the facts, and it is to be fairly presumed the influence of his opinion has misled the jury, and injustice follows, the verdict will be set aside. The general rule laid down in the English courts, and promulgated in a recent case, is, that the due degree of weight to be given by a judge directing the jury to particular evidence, which has been properly admitted, must be left to his own discretion, and his direction in that respect will not be revised by the court above. The case will best illustrate the rule. *The Attorney General v. Good.(4) Information against *[311] defendant for having customable goods with guilty knowledge. The declaration of the wife, denying the husband to be at home when search was made, and which was untrue, was permitted to be given in evidence; and the chief baron, in his (1) 3 Vermont Rep. 73. (2) 2 Marsh. Kent. Rep. 450. (3) 2 Marsh. Kent. Rep. 546. (4) 1 M'Clell. & Young, 286. Giving weight to particular evidence. address, directed their attention to it as a circumstance tending to prove guilty knowledge. The jury retired to consider of their verdict, and after an absence of nearly two hours, returned, and asked the court whether they were to consider the conversation of the wife, as received in evidence. The learned judge answered in the affirmative, upon which they found a verdict for the crown. On motion for a new trial, it was contended that the judge ought not to have directed the jury to the wife's declaration as a proof of guilty knowledge. But the court unanimously discharged the rule, and per Hullock, B.-"I think that the evidence was admissible, and ought to have been left to the jury. If that be so, and the case was sent down again for trial, it would be again admitted; therefore the only ground remaining is, that too great effect was given to the evidence in the learned judge's direction. I apprehend that that would be a new ground for granting another trial, and would open a door to applications for that purpose to an extent incalculable. I am at a loss to know by what rule, the precise quantum of force, which should be attached by a judge to a particular piece of evidence, on a trial, is to be measured." Rule discharged. But if the judge abuse the discretion reposed in him by the law, and not contented with expressing his opinion, undertakes to dictate to the jury on questions of fact, the verdict will be set aside and a new trial granted; Thus, In The New-York Fire Insurance Company v. Walden,(1) in error, from the Supreme Court. The ground of mis[*312] *direction of the judge at the trial, and the reasons for reversal, are contained in the Chancellor's opinion which prevailed. The Chancellor.-"The question is, whether there was error in the charge which. the learned judge delivered to the jury. This charge was, that the several matters given in evidence on the part of the plaintiffs, were, in his opinion, con. clusive evidence of the barratry of the master of the vessel on the voyage, and that the plaintiffs were not bound to communi. Giving weight to particular evidence. cate or disclose to the defendants, any of the letters, matters or circumstances, which were at the time of the insurance in their possession, relative to the master; and that the matters givea in evidence, on the part of the defendants, were not sufficient to maintain the issue on their part, or to bar the action of the plaintiffs; and that if the jury agreed with him in opinion, they ought to find a verdict for the plaintiffs, and with that charge he left the matter to the jury." After a very learned opinion as to the information that ought to have been disclosed by the answers, and the materiality of such a disclosure, as an important fact in the cause that belonged to the province of the jury, the Chancellor returns to the judge's charge, and having established the position that it must have been regarded as a direction in point of law, he proceeds-" All that I feel it my duty to contend for is, that whenever the judge delivers his opinion to the jury on a matter of fact, it shall be delivered as mere opinion, and not as direction, and that the jury shall be left to understand, clearly, that they are to decide the fact, upon their own view of the evidence, and that the judge interposes his opinion only to aid them in cases of difficulty, or to inspire them with confidence in cases of doubt. It is for this principle that I feel solicitous, and not for anything that may have taken place in this particular cause. The case before us is comparatively of trifling consequence; but the distinction I have suggested goes to the very root and essence of trial by jury, and may, indeed, become of inestimable value, and perhaps, *of perilous [*313] struggle, when the present generation shall have ceased to exist." There was judgment of reversal, on the ground that the jury had been prevented from exercising their judgment on the whole of the question.(1) So in the Utica Insurance Company v. Badger.(2) It was held, that proof of handwriting of the indorser of a note, going no farther than that the witness believed it to be the handwriting of the indorser, founded upon the facts of having seen him write (1) Vide Davies v. Pierce, 2 Term Rep. 53. (2) 3 Wendell, 102. |