Where the issue is solely of fact.

duced on the part of the plaintiff, we do not think it expedient to disturb the verdict. The rule must be denied."(1)

And, in Fowler v. The Etna Fire Insurance Company.(2) There had been three trials in this case, which was on a policy, arising out of the difficulty occasioned in affixing a meaning to a clause in the policy, the subject of insurance, "a two story frame house filled in with brick." The jury rendered a verdict for the plaintiff in all the trials, which was chiefly relied on in a motion now made to set aside the third verdict, and grant a new trial. The court, by Sutherland, J.-" Two new trials have already been granted in this case; this is the third verdict which the plaintiffs have had in their favor. When the case first came before us,(3) we held that the description in the policy, of the house which contained the goods insured, as a frame house filled in with brick, amounted to a warranty that it was a house answering that description, and that the plaintiff's could not recover, unless the proof strictly sustained the warranty. The evidence, upon the question whether the house was in fact filled in with brick, is not essentially different from what it was on the preceding trial. I still think the verdict on this point is against the weight of evidence, but, after two concurring verdicts, in a case where there were many witnesses and a great deal of testimony on both sides, upon a mere question of fact, supposing there was no misdirection, I should not think it a discreet exercise [*544] *of the power of this court, again to interfere with the finding of the jury."

In Barrett v. Rogers.(4) Case against the defendant as master of the brigantine Governor Sumner, for merchandise conveyed to the plaintiffs. At the first trial the jury were discharged, not agreeing. The case was committed afterwards to two juries, and verdicts for the defendant in both. The plaintiffs now moved

(1) Vide 2 Johns. Rep. 124.

(2) 7 Wendell, 270. Supra, p. 386.

(3) Vide 6 Cowen, 673.

Where the issue is solely of fact.

for a new trial, for the misdirection of the judge, who had charged the jury that the bill of lading, signed by the defendant, was not conclusive evidence that the goods were in good order when received on board. Sedgwick, J.-"That the bill of lading is prima facie evidence, and of the highest nature, there can be no doubt but that it cannot be conclusive in all cases, and among others, in such a case as the one before us, is equally clear. The ground of the result to which the jury came, may not be very intelligible; but, as two juries have concurred in it, we think, on that account, the verdict ought not to be disturbed; and more especially, as no objection is made to it, as being against evidence."

In Clemson v. Davidson,(1) in replevin, for a quantity of flour. There had been two trials, and verdicts in both for the plaintiff, against the inclination of the court. The defendants now moved for a new trial, on the ground that the verdict was against evidence. Two points were made to the jury; whether the flour was actually delivered, and if delivered, whether the contract was afterwards rescinded, by consent of both parties. And, per Tilghman, Ch. J.-" The evidence of a delivery was so strong, that I cannot suppose the jury had any hesitation on that point. As to the rescinding of the contract, it appeared to me that the evidence inclined considerably in favor of the defendants, because Davidson refused to give an order for the *re- [*545] delivery of the flour, and declared that he would do no acts by which any one creditor could obtain a preference. But I cannot say that the conduct of Davidson was altogether consistent, or that there was no evidence which went towards rescinding the contract. The contract might have been rescinded without a written order for redelivery; and, as this is the second verdict in favor of the plaintiffs, on matter of fact, I do not think it proper to order a third trial. But it is not to be concluded that the court have not power to direct a third trial of matters of fact. There is no such rule.

(1) 5 Binn. 892.

a

The court undoubt

Where the issue is solely of fact.

edly possess the power, and cases may occur in which it may be necessary to exercise it. Two verdicts on the same point are entitled to great weight; and unless they are attended with extraordinary circumstances, I have ever thought that they ought not to be disturbed. Where juries persist in violating the law, the case is different. We have several times granted a third trial, and there is no reason why we should stop there."(1)

And in Frost v. Brown.(2) Trespass to try title. There had been two verdicts for the plaintiff. The present was, therefore, a motion for a third trial, when all the grounds which had been taken on the first and second trials, were again urged by the counsel on both sides. On this motion, the only material difference was, the last ground taken on the second trial, that the plaintiff had lost his right of entry, as he had not commenced his action within sixty years. This was a new ground, and the first time it had been taken in the judicial history of this coun try. The court, by Waties, J.-"The doctrine of law, respecting new trials, has been so frequently considered, and the rules on the subject so fully settled and understood, that it appears to

me nothing now remains in the discretion of the judges, [*546] *but to make an application of these rules to any particular case that may come before them. After having exercised my judgment in this manner, I am of opinion that the defendant is not entitled to another trial." After a review of the testimony, the learned judge concludes:-" After all, if the objections to this verdiet had much more weight with me than they have, yet I would not disturb this last verdict, for another reason. A second trial has already been granted, and two special juries have concurred in finding the same facts. I think we have no authority to proceed any further. For, although I would never surrender a plain and certain rule of law to the caprice of a jury, or any number of juries, yet, in a case where the law is complicated with facts, so that the construction and

(1) Vide Walker v. Smith, 4 Dallas, 389.

The court will endeavor to do what is just.

application of it must depend on the finding of fact, two concur rent verdicts, even against the opinion of the judges, ought to be conclusive. As the present case appears to me to be such a one, I think a third trial ought not to be granted."(1)

So in Peay v. Briggs.(2) Assumpsit on a note of hand, given for the consideration of a tract of land. The defence was, a deficiency of land, for which the defendant claimed a deduction. There had been two trials, and verdicts in both for the plaintiff, making a partial deduction. The defendant moved for a third trial, on the ground that the jury ought to have made a further deduction. Nott, J., delivered the opinion of the court. After a brief notice of the facts of the case, favorable to the defendant, the learned judge concludes:-"There are, nevertheless, many reasons in this case, why the verdict should not be set aside. This is the second verdict, equally unfavorable to the claim of the defendant; and it is not probable that he would be more successful, were the case to be sent back. *The [*547] witnesses differed very widely with regard to the value of the land, and, in all probability, the difference, in any event, would not be enough to pay for the trouble and expense of another trial. The plaintiff must always have a verdict for something; and after two concurrent verdicts, there must be manifest. error or injustice to induce the court to grant a second new trial."

IV. The court will endeavor to do what is just.

After two verdicts, whether concurring or contradictory, a new trial will be refused, if the latter verdict appear, upon the whole, to answer the ends of justice; but if against law, and the justice of the case, the motion will be granted.

Montgomery v. The Attorney-General.(3) In this cause, there

(1) Vide Furman v. Gilman, 2 Nott & M'Cord, 189, in notis.

(2) 2 Nott & M'Cord, 184.

(3) 6 Mod. 388.

The court will endeavor to do what is just.

had been one trial at bar, and verdict in the Common Pleas in favor of the will; and a subsequent trial at bar, and verdict be fore the Court of King's Bench against the will, and in favor of the heir at law. Mr. Attorney-General now moved for a new trial, because, this being the case of an inheritance, it is not to be bound by one trial; nor where there are two trials, and verdict against verdict. Hardwicke, Lord Chancellor.-" The judges of the Court of King's Bench, before whom the last trial was, have certified to me that they are not only not dissatisfied, but quite satisfied with the verdict, against which a new trial is now prayed; and as they are so, I have reason to be so too, and cannot take it that anything improper passed at the trial. If there is any ground for a new trial, it must arise from collateral circumstances, and not from such as were submitted in evidence before the last jury It is insisted for the new trial, that here is verdict against verdict. But this is no reason why a [*548] third trial should be granted; *for a trial at bar is a most solemn act, and ought to have more weight than a verdict at Nisi Prius. But it is not singly the difference of the two trials, but the weight of the new evidence appearing in the last trial, which was granted upon fresh evidence. I thought this fresh evidence so very material, that I granted the heir at law an opportunity of having them submitted to the scrutiny of a jury. This evidence, it seems, has had the same weight with the special jury, and the Court of King's Bench, as with me; which gives a further sanctity to this verdict, besides the solemnity of the trial." And new trial refused.(1)

So in Parker v. Ansel.(2) Trespass, to try the right of a fishery in Surrey. When first tried, there was a general verdict for the defendant; but the same was set aside, and a new trial granted, because he had given no evidence in support of two of his pleas, upon which issue was taken. On the second trial, before Lord Mansfield, there was a general verdict for the plaintiff, and, on a motion for a new trial, Lord Mansfield reported the

(1) Vide 2 Atk. 378; 3 Ibid. 542.