In cases of misdemeanor.

the provisions of the law, there was no more discretion in the one case than in the other. The discretion of both was a legal discretion; the very same discretion which we are now called upon to exercise in deciding the present motion. Under these views of the rights of the parties, and the power and discretion. of the court, I feel bound to say that an error was committed in compelling the defendants to accept of the offered stipulation; and of course, that a new trial must be granted."(1)

And if the defendant have resorted to trick or fraud to procure his acquittal, the verdict will be set aside. In opposition to this, it has been said, that if the acquittal in an indictment have been procured by a trick or fraud of the defendant, he may be punished for the trick or fraud, but that the court cannot grant a new trial.(2)

But in Bear's case,(3) cited above from Salkeld, it was stated that if trick could be shown, it would avoid the verdict, in a case of perjury. And in a case in Sayer, Rex v. Furzer,(4) a new trial was granted, the cause having been brought on by surprise. And in The Queen v. Coke,(5) the acquittal being by surprise upon the prosecutor, for want of notice, it being brought on by the defendant, it was in Michaelmas term, in the third year of Queen Anne, on an indictment for keeping a common bawdy house, a new trial was granted.(6)

And, in The Queen v. Sir Jacob Banks,(7) who was in. [*523] dicted at the quarter sessions for an assault upon *Mr. Culpepper, which was removed hither by the prosecutor, by certiorari; the prosecutor not carrying it down next as sizes, the defendant carried it down and tried it, and was found

(1) Vide 1 Chit. Cr. Law, 490; Gra. Prac. 246-248; 2 Arch. Prac. 210. (2) 6 Bac. Abr. 675.

(3) 2 Salk. 646.

(4) Sayer, 90.

(5) 12 Mod. 9.

(6) Vide 1 Shower, 336. 1 Levinz, 124.

Where the verdict is for the defendant.

not guilty. It was moved to set aside the trial, there not having been any laches in the prosecutor. Holt, Chief Justice, said it was his opinion, that where a prosecutor removes an indictment, it is very hard the defendant should, nolens volens, carry it down. the next assizes and try it, when, perhaps, the prosecutor cannot be ready with his evidences. Suppose it was for treason or felony, this would put the queen in a worse case than any subject. Powell, Powys and Gould, Justices, agreed to what Holt, Chief Justice, said; and that none of the precedents quoted by the solicitor-general, who was counsel for the defendant, were above five years standing, and those passed sub-silentio. So all were of opinion that a new trial ought to be granted.(1)

IV. Where the verdict is for the defendant.

In hard actions, a new trial will not be granted, especially if the verdict be for the defendant, although against evidence.(2) Nor unless some rule of law be violated. Not in actions ex delicto.

Smith v. Frampton.(3) Case for negligently keeping the defendant's fire, by which plaintiff's house was burnt; and, after verdict for the defendant, plaintiff moved for a new trial, upon a suggestion that the verdict was against evidence; and he argued, that though it was a severe action, yet all actions were grounded upon reason. The court, after having considered this case several days, resolved, that this being a case of hardship, and the jurors being judges of the fact, no new trial should be granted; though Holt, Chief Justice, before [*524] whom it was tried, was dissatisfied with the verdict."(4)

So if fraud is imputable to the plaintiff. De Wutz v. Hendricks.(5) The plaintiff had proposed to raise a loan for the

(1) Vide 2 Ld. Raym. 1082; 2 Leonard, 110; 2 Salk. 652; 3 Burr. 1462.

(2) 2 Tidd, 916; Gra. Prac. 513.

(3) 1 Ld. Raym. 62.

(4) Et vide 2 Salk. 614, 648, 653; 5 Term. Rep. 420; 3 Taunt. 1.

Where the verdict is for the defendant.

Greeks, in arms against the government of the Porte. For this purpose he lodged with the defendant, a stockbroker, an instrument which was alleged to be a power of attorney, signed abroad by the Exarch of Ravenna, but which turned out to have been fabricated in London; and the defendant, at his request, procured to be engraved certain script receipts, bearing a stamp. Suspicions having arisen as to the accuracy of the plaintiff's representations, the project for a loan failed. The plaintiff sued in trover for the papers, and the jury found a verdict for the defendant. The plaintiff moved for a new trial, on the ground that, even if a fraud were contemplated, it did not deprive him of his own papers. Best, Ch. J., who tried the case.-"It appeared that placards had been stuck up in the city, stating that the plaintiff was not authorized by the Greek government to raise any money, and that he had been informed that on account of what was stated in these placards, no money could be raised for him. The power of attorney, which, it was pretended, was sent from Greece, was proved to have been manufactured in this country, but by whom it was executed did not appear. I told the jury that, with respect to the power of attorney, there was no evidence that any instrument of that description had ever come to the hands of the defendant; for, by power of attorney in the declaration, must be understood an instrument duly executed as a power of attorney. I further said, that if the plain

tiff was attempting a fraud on the public, by raising [*525] money, on the false pretence of pledging the *Greek government for its repayment, and, in furtherance of that attempt, delivered these papers to the defendant, he could main tain no action to recover them back. The jury, to my entire satisfaction, found for the defendant." The motion was denied.

So, if a fraudulent defence, and verdict for plaintiff, as in Culver v. Avery.(1) Action on the case for false and fraudulent representations, made by the defendant to the plaintiff in a sale of lands, as to incumbrances. The jury gave a verdict for the

Where the verdict is for the defendant.

plaintiff, which the defendant moved to set aside. Sutherland, J.-" The finding of the jury disposes of the question of fraud. They have pronounced the defendant guilty of the false and fraudulent representations alleged in the declaration, and that they were made with the fraudulent intent to deceive and injure the plaintiff. A verdict must be most clearly and manifestly against evidence to justify the court, in an action like this, in setting it aside. This is not a case of that description. Whatever may be the opinion of the court upon the strict weight of evidence, as it appears on the case, the jury, whose province it was to weigh and pass upon it, and who saw and heard the witnesses, have thought the preponderance against the defendant. I should have been inclined to a different conclusion; but the jury not only had the right, but were more competent, fairly and discreetly, to decide the question than we are. Their decision cannot be disturbed."(1)

Nor in actions for crim. con., fraud, malicious prosecution, slander, seduction, nor trespass, as has been already shown, except there be some rule of law violated.(2) Nor, although there may have been a departure from strict law, if the verdict be for the defendant.(3)

*A very late case in the Supreme Court will furnish the [*526] only additional example illustrative of the general rule, although applicable to one of the classes of hard actions only. Rundell v. Butler.(4) Action for a libel, consisting of some doggerel rhymes, which the plaintiff alleged the defendant had caused to be composed and published, with intent to cause it to be believed, that the plaintiff had been guilty of proposing to his brother Hardy, to unite with him to murder their brother Jehu, who had been murdered accordingly. The defendant pleaded the general issue. After proof of publication, the defendant offered to prove, (1) Vide ante, 288-301.

(2) Vide supra, Verdicts against Law, 326-334; against evidence, 371-374; and for excessive damages, 410-437.

(3) Vide supra, 353.

(4) 10 Wendell, 119.

Where the verdict is for the defendant.

in mitigation of damages, that it was the general report, that the facts contained in the verses declared on, were as therein stated. The plaintiff's counsel consented that such evidence should be given. The jury found a verdict for the defendant, which the plaintiff now moved to set aside, on the grounds that it was against the weight of evidence, and that the judge admitted improper, and rejected proper testimony. By the court, Savage, C. J.-"The publication of the libel was proved, and I am inclined to think the verdict was against the weight of evidence; but I do not deem it necessary to analyse the testimony, as it is not of course that a new trial should be granted in this case, although the verdict be against the weight of testimony. In Jarvis v. Hatheway,(1) it was held by this court, that in penal actions, and actions for libel and defamation, a new trial will not be granted to the plaintiff, unless some rule of law has been violated in the admission or rejection of testimony, or in expounding the law to the jury." The learned judge having noticed the introduction of proof of a general report, that the facts were as contained in the libel, and the acquiescence of the plaintiff's

counsel, proceeds:-" Assuming, therefore, what was con[*527] ceded by the *plaintiff's counsel, that reports were admissible, charging the plaintiff with the crime imputed in the libel, the evidence offered was proper. If a defence of this kind was admissible in mitigation, any reports of the same character were proper, and would mitigate in proportion as they approached a justification. The reports proved, and the facts stated by the witnesses, would not sustain a charge of murder, but they were such as would only have warranted a verdict for nominal damages. There was no error of the judge, therefore, in the admission of testimony, under the law of the case, as agreed by the parties. The cause was fairly submitted to the jury, and the only error they committed, was returning a verdict for the defendant, instead of finding a verdict for the plaintiff, with nominal damages. A new trial ought not to be granted, under such circumstances."(2)

(1) 3 Johns. Rep. 180.