Where the justice and equity of the case are not with the verdict.

that the court having left it to the jury to say whether the trade was direct or not, and they having found that it was not, the court had precluded itself from interfering with their finding; and that jury trials must be done away, if the court shall undertake to set aside their verdict upon the ground that it was given against evidence. But by Washington, J., who delivered the opinion of the court-"I certainly shall always respect the opin ion of the jury, so far as not to set aside their verdict in a doubtful case, because I might have drawn a conclusion different from what they have done. But if the verdict be plainly

against evidence; or if in a case of great consequence, [*370] as *this certainly is, where some doubt might exist, as to the correctness of the conclusion drawn by the jury, it would seem right that the case should be more deliberately argued, and considered by another jury; it is certainly most consistent with the objects of justice to afford such an opportunity. I cannot conceive how the granting of a new trial can impair the benefits of a jury trial. If, by setting aside the verdict, the con sequence would be a judgment contrary to it, the position would be correct; but this is not the case. The cause is merely re-heard before a new jury, when it may be more deliberately considered." New trial awarded.(1)

And in Hutchinson v. Coleman.(2) Action on the case for flowing water back on the plaintiff's mill, and verdict for defendant. Drake, J., after a minute recapitulation of the testimony "This, in some cases, would not be sufficient to disturb a verdict. But in this case the controversy is important; there is much reason to believe that justice has not been done. The evidence is flatly contradictory on points where the truth is ca pable of being shown with certainty, which the parties on a second trial may be able to do, and which, on the first, they have not been prevented from doing by negligence, each having made a reasonable preparation for the trial; but each, no doubt, being disappointed in the adverse testimony, especially upon

(1) Et vide Bowman v. Cox, Peck's Tenn. Rep. 364.

Where the justice and equity of the case are not with the verdict.

several points where the evidence is so contradictory that the witnesses, upon one side or the other, must have grossly mistaken or wilfully misrepresented the facts. Let the rule for a new trial be made absolute."

So in Wallace v. Frazier.(1) Assumpsit on a written warranty of the soundness of a negro. At the trial, the plaintiff's proof was conclusive. The jury found one cent *for the [*371] plaintiff; and on motion for a new trial, on the ground it was a verdict substantially for the defendant, and clearly against evidence: Nott, J., delivered the opinion of the court, concluding "The difference between the value of the negro, if sound, and his value in the situation which he was, became the rule by which the damages ought to have been estimated. The testimony on the point was clear and uncontradicted, and the jury were not authorized to disregard it, and adopt an arbitrary rule of their own, unsupported by any 'testimony. The ver dict was clearly against evidence, and a new trial must be granted."(2)

Even hard actions form no exceptions to this rule, for if the verdict be manifestly against evidence and the justice of the case, the court will set it aside and grant a new trial.

It will be granted in fraud. Thus, in an Anonymous case.(3) The underwriter had sued the defendant for an insurance fraudulently obtained. The cause had been tried, and a verdict found, by a special jury of merchants for the defendant. The question turned principally on when the ship to be insured was to sail, whether it was in port or no at the time of the insurance procured, and whether the defendant knew of the loss when he wrote for an additional insurance. Motion for a new trial. Lord Mansfield "It is very proper that all matters, especially of this nature, should be so conducted, that the party guilty of

(1) 2 Nott & M'Cord, 516.

(2) Et vide Johnson v. Davenport, 3 J. J. Marsh. Rep. 391; Creel v. Bell, 2 Ibid. 310.

(3) Lofft, 212.

Where the justice and equity of the case are not with the verdict.

fraud may see they are not likely to gain by it. It is always by circumstance that fraud is discovered. And it is very remarkable here, that this gentleman insured in London, from Poole to Newcastle, £1,000 only; and that, after the time when the account came to Poole of his ship being lost, he writes for a further insurance. It may be discovered, whether he did not ac[*372] tually read the paper which gives this *account; and when this letter was put into the post, which it was strange a man of business should send when no post went out, and without waiting for what news that or the next should bring, and that on the next day's intelligence, he did not correct his notice. Something too may be collected from any indorsing that may appear to have been made by the office, importing the time on which the letter went out. I remember a case at Poole, which turned on that only. I never have any difficulty in altering my opinion. At first, I thought the matter suspicious; afterwards I doubted; and am now returned to my former opinion." Rule made absolute for a new trial.(1)

So in quo warranto. It was once doubted whether, under any circumstances, a new trial could be granted in a case in the nature of a quo warranto, where the verdict was against evidence. In Rex v. Bennett,(2) upon the trial of an information, in the nature of a quo warranto, for exercising the office of Mayor of Shaftesbury, the jury found a verdict for the defendant; and upon a motion for a new trial, great doubts arose whether, after a verdict for the defendant, there could be any new trial, though the judge should certify (as he did in this case) that it was a verdict against evidence. After the point had been twice spoken to, it was adjourned propter difficultatem, to be argued before all the judges of England. Afterwards, in the King's Bench, Pratt, Ch. J., declared "That they had called in the assistance of the other judges, and that, upon the whole, they were equally divided; so no rule for a new trial could be made."

(1) Vide Harker v. Reaves, N. C. Law Rep. 276; Ante, "Perverse Verdicts,” p.

121.

Where the justice and equity of the case are not with the verdict.

But in The King v. Francis, (1) a verdict having been found for the defendant, in a quo warranto information, to show by what authority he claimed the office of *Al- [*373] derman of Cambridge, a new trial was moved for, on the ground that the verdict had been given against the weight of evidence. It was objected, on showing cause, that no new trial could be granted in an information in the nature of a quo warranto: for which The King v. Bennet was cited. But the court granted a new trial, saying, that of late years a quo warranto information had been considered merely in the nature of a civil proceeding; and that there were several instances, since the case in Strange, in which a new trial had been granted.

And in an aggravated case of assault and battery, where there was a nominal verdict for the plaintiff, but substantially for the defendant, as in Bacot v. Keith, (2) a case of a cruel and unprovoked assault on the part of the defendant, who had fired a gun at the plaintiff, loaded with buckshot, which had nearly taken off an arm; and for this injury the jury had only given him one dollar damages. On a motion for a new trial, the judges were unanimously of opinion, that the jury in this case had behaved shamefully, and deserved the severest reprehension of the court for such glaring partiality and injustice. They observed, that although it was not usual to grant new trials on account of the smallness of damages, yet this was so extraordinary a case, in which every principle of justice had been outraged, that they could not hesitate a moment in ordering a new trial.

And in slander, Johnson v. Scribner. (3) Three witnesses for the plaintiff, in an action of slander, testified explicitly to the speak ing of the words charged, in a ball-room where there was a dancing assembly, with the music of a violin, and where a fracas, with much confusion, took place, at or about the time referred to; and eleven witnesses for the defendant testified that

they were in the room, and heard *no such words as the [*374]

(1) 2 Term. Rep. 484.

(2) 2 Bay, 466

(3) 6 Conn. Rep. 185.

Where the evidence was not fully before the jury.

plaintiff's witnesses had sworn to, and that, in their opinion, they should have heard them if they had been spoken; and a verdict was found for the defendant. A new trial was granted, on the ground that the verdict was clearly against the weight of evidence.(1)

IV. Where the evidence was not fully before the jury.

It is a general rule, that where, in weighing the testimony, on a motion to set aside the verdict as against evidence, they are satisfied the evidence on the side against which the evidence preponderates, was not fully before the jury, they will, for that cause, incline to grant a new trial, that the cause may be disposed of on its merits.

In Norris v. Freeman.(2) Debt on bond. Plea, general release. Replication non est factum, and joinder inde. A verdict was found for the defendant, and a new trial was moved for, upon an affi davit that very strong circumstances of forgery and perjury appeared upon the trial. The release produced by the defendant bore to be executed the 10th of October, 1768. One Albert and one Goth appeared to be subscribing witnesses. Albert was called by the defendant, but Goth was not. Albert swore that he saw the plaintiff seal and deliver the release, which was done about one o'clock that day, at the plaintiff's house, thirty miles distant from Worcester. Two respectable witnesses swore they had often seen the plaintiff write, and that his name subscribed to the release was not of his handwriting, as they believed, and that on the 10th and 11th of October, the plaintiff and the wit nesses were at Worcester all day. A witness swore he heard the defendant say, he would let judgment go by default in this cause, and that he did not then pretend he had a release. In reply, the

defendant called several witnesses, who swore the name [*375] *subscribed to the release to be the plaintiff's handwriting. On cause being shown against a new trial, the

(1) Vide 7 Serg. & Rawle, 457; 2 Hayw. 224.