are to be raised and inferences drawn, and the jury may be presumed to have fairly exercised their judgment; although, upon the same evidence, the court would have made a contrary decision; more especially, where the burden of proof was upon the losing party. Ibid.

3. A verdict may be set aside as against the weight of evidence, though the evidence was wholly or partly derived from inspection. -Davis v. Jenney, 1 Met. 221.

4. Though the ultimate decision of questions of fact is for the jury, yet the court may and are sometimes bound to set aside a verdict, as against the weight of evidence. — Coffin v. Phenix, &c.

xv. 291.

5. Where there is reason to suppose, that the jury have fallen into error with respect to the law or the nature and effect of evidence, which upon revision they would correct; or where the grounds taken by the parties, or the directions of the court to the jury, are at all indistinct or imperfectly set forth; the court may grant a second and even a third trial. - Ibid.

6. Otherwise, where the judge has fully instructed the jury as to the rules of law applicable to the case, the burden of proof, the presumptions arising from particular facts, and the nature and application of the rules of evidence, and where the question is one of fact, upon which there may be an honest difference of opinion. Ibid.

7. But, where the issue, although one for the jury, depends upon a few facts, clearly proved, not contradicted, and governed by plain and settled rules of law; the court would be bound to set aside any number of successive verdicts, contrary to such law and evidence. Ibid.

D. For the purpose of introducing new evidence.

1. It is no ground for review or new trial, that a party has failed to offer certain evidence, in consequence of omitting to inquire what evidence would be requisite to make out his case. Clark v. Brigham, xxii. 81.

2. As where a defendant, supposing that the question whether he was liable at all would be first settled, and the amount of damages afterwards, neglected to offer evidence upon the latter point. - Ibid.

3. Upon a motion for new trial on the ground of newly dis

covered evidence, the court will hear testimony as to the credibility of the proposed witness. Parker v. Hardy, xxiv. 246.

4. Indictment, for selling spiritous liquor, to be used in the defendant's house," without being duly licensed as an innholder or common victualler." After conviction, he moved for a new trial, in order that he might produce a license to sell fermented liquor, not previously offered, and thereupon object to the form of the indictment. Held, the motion could not be granted. Commonwealth v. Churchill, 2 Met. 118.

E. For unauthorized interference, wrong or defective instruction to the jury, or admission of improper evidence, by the court.

1. Strictly, no exception can be taken to an opinion of the judge upon a question of fact; but, if wrong, and if the party to whom it is adverse submits to, and forbears to argue against it, a new trial may be granted, in the discretion of the court. Curl v.

Lowell, xix. 25.

2. Action upon a policy on "property to a certain amount, to recover for a loss of bank bills. The jury were instructed, that, in the absence of fraud, the amount insured had some slight tendency to prove the amount of bills on board. Held, this was only a remark upon the state of the evidence, and no ground of exception. Whiton v. Old Colony, &c. 2 Met. 1.

3. In a criminal case, the jury came into court without having agreed, and the judge gave them new instructions upon some points in the evidence, although not asked for by the jury. Held, no ground of new trial. Commonwealth v. Snelling, xv. 321.

4. A judge is not bound to instruct the jury that certain evidence is conclusive, unless it go to a fact which would be so, if pleaded and admitted in the pleadings which could neither be confessed and avoided, nor controlled by other evidence. Savage v. Birckhead, xx. 167.

5. A new trial will not be granted for admission in evidence of a copy not properly certified, if a duly certified copy is afterwards produced, corresponding with the former. - Potter v. Tyler, 2 Met. 58.

6. Where evidence has been wrongly received upon a point unconnected with the rest of the case, as to which it could have had no influence upon the jury; a new trial of this point alone may be granted. Robbins v. Townsend, xx. 345.

7. A new trial will not be granted for the admission of irrelevant evidence, which probably could not have improperly influenced the jury; but, if it may have prejudiced their minds, the court may, in its discretion, set aside the verdict.-Ellis v. Short, xxi. 142.

8. Action of trespass vi et armis, for arresting the plaintiff, while intoxicated, and using violence in so doing. The defendant, in excuse for such violence, offered and was allowed to show, that ardent spirits had a specific and peculiar effect upon the plaintiff, increasing his power and making him furious and unmanageable; that, more than a year after the alleged assault, the plaintiff, while intoxicated, threw stones at several persons, resisted the officers who arrested him, and otherwise exerted great power and fury. Held, the evidence was irrelevant, and a new trial was granted for its admission. - Ibid.

9. A new trial will not be granted, on the ground that evidence was admitted, which was offered solely to prove an immaterial fact, and had no tendency to influence the minds of the jury on other points; though such evidence be incompetent. Shearer, xxii. 427.

Buddington v.

F. On the ground of disqualification in the jury.

Action against an insurance company. The sheriff, who had returned a talesman to serve on the jury which tried the case, was a stockholder in the company. This fact was known to the junior counsel for the plaintiff soon after the trial commenced, but no objection was taken till after some progress therein. Held, the exception was waived. Orrok v. Commonwealth, &c. xxi. 457.

Nantucket.

1. By Revised Statutes, c. 81, a case, in which exceptions are alleged to the opinion &c. of a judge of the Supreme Court at the July term in Nantucket, may be first entered in Suffolk, at the ensuing March term. Shaw v. Bunker, 2 Met. 376.

--

2. Although there is no record of the laying out of any highway in Nantucket, yet there is nothing in the tenure of the lands, a large part of which is held by the proprietors of common and undivided lands on the island, to prevent the public from acquiring highways over them by grant or laying out under statute; and highways exist there by virtue of long use and enjoyment. Folger v. Worth, xix. 108.

Notice.

1. The defendant agreed to deliver to the plaintiff 1000 barrels of flour, at $6 per barrel, at any time within six months, and give six days' notice prior to the time of delivery; and the plaintiff agreed to pay that price on delivery. In an action for not delivering the flour within six months; held, the defendant was bound to do the first act, by giving notice that he was ready to deliver it ; but, having a right to give notice six days before the end of the six months, and as, if he had then given notice, he would have had till the last day of the six months to deliver the flour, the contract was broken on that day, and damages must be recovered accordingly. -Quarles v. George, xxiii. 400.

2. The recording of a deed of real and personal property, is not constructive notice of a transfer of the latter. Pitcher v. Barrows, xvii. 361.

3. A. conveys to B., and then to C., B.'s deed not being recorded, but C. having notice of it. C.'s creditors attach the land, without notice of B.'s deed, but, before levying their executions, receive such notice. Held, the levies should prevail over the deed to B.. Coffin v. Ray, 1 Met. 212.

4. Notice to a stockholder in a corporation, is not notice to the company. Housatonic, &c. v. Martin, 1 Met. 294.

5. The principle, which forbids one who stands by and sees another expend money upon property to which the former has some claim, without giving notice thereof, from asserting such claim, applies only against one claiming under some trust, lien, or other right not equally apparent to both parties, and in favor of one who would be misled or deceived by want of notice; and not to an act of encroachment on land, the title to which is alike known or subject to be known by both parties. — Gray v. Bartlett, xx.

186.

6. In an action for unenclosed woodland, evidence that the tenant cut wood and timber thereon is competent, to prove constructive notice to the demandant, that the tenant held an unrecorded deed of the land; but it is very slight evidence, especially if the tenant owns an undivided moiety of the land, and the evidence is offered to prove constructive notice, that he held an unrecorded deed of the other moiety. - Kendall v. Lawrence, xxii. 540.

7. The defendant, who was building a vessel in Maine, agreed with the plaintiff, who purchased the vessel, that she should be "completed and delivered as soon as possible, at F. or B., either of these places, at the option of the purchaser." After complet

ing the vessel, the defendant sold her to a third person, without notifying the plaintiff that she was finished. Held, he was bound to give such notice, in order that the plaintiff might elect where to receive the vessel, and by selling her had subjected himself to an action on the contract. Spooner v. Baxter, xvi. 409.

Nuisance.

Though the proper remedy in case of public nuisance is an indictment, yet, where the immediate suppression of such nuisance is plainly necessary, it seems, Chancery may issue an injunction, till time is given for an indictment. Rowe v. Granite, &c. xxi.

344.

A. Election of officers.

Officer.

B. By what officers process shall be served; coroners. C. Return of an officer.

D. Rights, duties and liabilities of an officer.

A. Election of officers.

A person was chosen collector of taxes "by bidding off said office at vendue," by which "he was to collect the taxes of the town for 5 per cent." Held, a valid election. Otherwise, it seems, if the terms of the vendue had been, that whoever would collect at the lowest rate should have the office, without regard to his qualifications. — Alvord v. Collin, xx. 418.

B. By what officer process shall be served; coroners.

1. A coroner has only a special power to commit on execution. Hence, one asserting the legality of such commitment must show that the coroner has acted within his authority. Commonwealth v. Moore, xix. 339.