Where the action is trifling.

contrary to evidence; for it is possible that the verdict may still be on the side of the real justice and equity of the case. Here the jury have found for the defendant, and the plaintiff must pay the costs before he can have a new trial. I do not think that we ought to interfere, merely to give the plaintiff an oppor tunity of harassing the defendant, at a great expense to himself, where there has been no real damage, and where the injury is so trivial as not to deserve above a half crown compensation."(1)

In Brantingham v. Fay.(2) Where, in an action of debt for a penalty in a special agreement, though the court were of opinion that the plaintiff was entitled to a verdict, but no damages were shown, nor any rule by which the jury could ascertain the damages, they refused to set aside a non-suit and grant a new trial, merely to give the plaintiff an opportunity to recover nominal damages.(3)

[*349]

*And in Feeter v. Whipple.(4) Case against defendant as sheriff for an escape. The plaintiff made out his case, and the judge charged the jury, that the plaintiff was enti tled to recover in damages, as much as he had lost by the escape; and that they would be warranted to find a verdict for the plaintiff for $15, the amount of property sold on the execu tions. The jury found a verdict for the defendant. A motion was made to set aside the verdict, which was submitted to the court without argument. Per Curiam.-"The action is sounding in tort, the sum in controversy small, the value of the prisoner's property uncertain, and the evidence on that point contradictory; it is not a case for a new trial."

So in Hurtin v. Hopkins.(5) Action for a libel, and proof for the plaintiff complete. The judge charged the jury that the publication was libellous, and that the defendant, having wholly

(1) Vide Stevens v. Aldridge, 5 Price, 334.

(2) 1 Johns. Cas. 255; Et vide 3 Johns. Rep. 239.

(3) Vide Roberts v. Karr, 1 Taunt. 495.

(4) 8 Johns. Rep. 369.

Where an important principle is involved.

failed in his justification, the plaintiff was entitled to a verdict. The jury found a verdict for the defendant. A motion was made to set aside the verdict and for a new trial. Per Curiam."The general rule is not to grant a new trial, in actions of this nature, when the verdict is for the defendant, and there is no other ground for the motion than that the jury have misunderstood or disregarded the evidence. The case before us was not that of a very aggravated libel, nor were the cases, in general, of that character to which the rule has been applied. A jury would rarely, in a gross case of defamation, find a verdict against the plaintiff; if they did, it would be pretty good evidence of prejudice, partiality or corruption. The court do not mean to lay down a rule for such extreme cases, but they certainly would not be *justified, by the precedents, to in- [*350] terfere in the present case."(1)

And in Ex parte Baily, (2) on an application for a mandamus, the court having intimated that they would hold the courts below to the discharge of their duty in extreme cases, and would correct their decisions, where their discretion has been abused, say, in conclusion-"Even where a verdict is plainly against law, the court may many times properly deny a new trial; as, if the controversy be very trifling in its nature, or contemptible in amount.”(3)

In Vermont, in Bullock v. Beach, (4) the court adopts these positions, that a new trial will not be granted on the ground of new discovered evidence, if such evidence be merely, cumulative; neither will a new trial be granted, unless the court be of opinion. that injustice has been done by the verdict; nor will a new trial be granted where the amount in controversy is trifling.(5)

V. Where an important principle is involved.

But where an important principle is involved, and the verdict

Where an important principle is involved.

is to be followed by serious consequences to the party against whom it is found, if against law, a new trial will be granted, without regard to the amount, or any other collateral matter.

This rule is sufficiently illustrated in the case of Levi v. Miln,(1) where the jury found for the defendant, although the plaintiff's case was clear. Burrough, J., cites, with approbation, a saying of Justice Buller, that the courts would not permit a jury to find contrary to the facts of the case.

*[351]

*So in Turner v. Lewis.(2) Gurney moved for a new trial, on the ground that the verdict was against evi dence, and the opinion of the learned judge before whom the cause was tried. It was an action of trespass for entering the plaintiff's close, and cutting down trees. Defendant pleaded the general issue, and liberum tenementum, which was denied in the replication. The question upon the trial was, as to the exact line of boundary in a fence between the plaintiff's and the defendant's land, and whether the trees were on the plaintiff's or the defendant's side. The jury, after a view of the locus in quo, found a verdict for the plaintiff, for the value of the trees cut down, and taken away by the defendant. The court, after inquiring what was the amount of the damages found by the jury, and ascertaining that they were under £20, suggested that the smallness of the damages might afford an answer to the application; but, upon Gurney's observing, that as the action was brought for the purpose of trying a right of a permanent nature, and which might become the subject of future litigation, this case was not affected by the general rule, that a new trial is not to be granted where the damages are under £20; the court as sented to that proposition, and granted a rule nisi.

And the court will order a new trial on questions deciding important rights, where the judge expressed an opinion on the trial contrary to the verdict, although he afterwards report, that he was not dissatisfied with the finding of the jury. As in the

(1) 4 Bingham, 195; Supra, p. 123. Et vide Vernon v. Hankey, 2 Term. Rep. 113.

Where an important principle is involved.

Earl of Mountedgecombe v. Symons.(1) The plaintiff had brought an action on the case for diverting a water-course. The jury found a verdict for the plaintiff. The defendant obtained a rule. nisi for a new trial, on the ground that the finding by the jury was adverse to the direction of the judge. The judge reported that on the part of the plaintiff, it was proved [*352] that the ancient bed of the water lay between the two estates. The defendant answered that, by proof that the stream had been diverted since the year 1790, and proved that he had used it to work a lead mine till 1803, when the work ceased; and that as soon as the mine was re-opened, he again employed the water as before. The judge then observed, that during the trial, his inclination was in favor of the defendant, and that had he been on the jury, he should so have found; but he added that he was not dissatisfied with the verdict as it stood. Thompson, Chief Baron, having stated the case.-"This question is, whether the property in this water belongs to one party or the other, and is certainly one of very considerable importance to their interest, as the verdict of the jury will have the effect of conclusively deciding the right on all future occasions; and therefore we think that it ought to go down to another trial."(2) And, although in ordinary cases, the ignorance or neglect of counsel will be visited on their client, as we have seen, yet where the verdict would prove decisive of his rights, to the irreparable injury of the party, the court will interpose, unless the counsel expressly waive the principle of law, which would have protected his client. As,

In the Queen v. Corporation of Helston, (3) the question was, whether, if upon a trial, a point in law be started by the judge, and the counsel do not take it up, but insist upon other facts, which are found against them, whereas, had the counsel insisted upon the matter of law stirred by the judge, the verdict must have passed for them, this is sufficient cause to move for a new

(1) 1 Price, 278.

(2) Vide 11 Price, 736.

(3) 10 Mod. 202.

In penal and hard actions.

trial. Parker, Ch. J.-"The question in this case I take to be this, whether we are so bound down by forms of law, as that, though we see a verdict given contrary to a point of [*353] law, which the judge *himself took notice of, and yet for want of the counsels' doing their duty to their clients, was not insisted upon, we cannot grant a new trial. When a point of law arises, whether the counsel insist or do not insist upon it, the judge is bound to direct the jury accordingly. But yet, if the supporting of this verdict be of no more ill consequence than in point of costs, and the party has another remedy left him, then I am of opinion that the party ought to suffer for the neglect of his counsel. But if the verdict binds and concludes the right of the party, then I think it hard that the party should lose his right by a mistake or slip of the counsel. There must be no new trial, and I so far assent to my brothers, that though a verdict should leave the party remediless, yet if the counsel do not only not insist, but expressly waive it, that then there ought to be no new trial."

VI. In penal and hard actions.

It is a general rule, with but few exceptions, that in penal, and what are denominated hard actions, the court will not set aside the verdict, if for the defendant, although there may have been a departure from strict law, in the finding of the jury.(1) Thus,

In Sparks v. Spicer.(2) One was ordered by the judge of assize to be hanged in chains; the officer hung him in privato solo. The owner brought trespass; and upon not guilty, the jury found for the defendant; and the court would not grant a new trial, it being done for convenience of place, and not to affront the owner.

So in Dunkly v. Wade, (3) in case for negligently keeping his (1) Vide post, "Hard Actions," Chap. XIV.

(2) 2 Salk. 648.