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If the judge who presided at the trial of the cause, be satisfied with the verdict, it is not usual to grant a new trial, upon the ground of the verdict being against evidence.'

SECT. V.

MISDIRECTION OR OMISSION OF THE JUDGE, IN SUMMING UP, ADMITTING OR REFUSING TESTIMONY CONTRARY TO LAW.

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A new trial will be granted, for the misdirection, or omission of the judge in summing up; or on account of his admitting or refusing testimony, contrary to law. As where the defendant had brought into court, what she supposed justly due, but it did not prove enough by forty-one cents, and the judge directed the jury, that they might still find for the defendant, if they considered the deficiency a mere trifle, and they found accordingly.*

Where the judge instructed the jury, that the evidence offered by the plaintiff, from which they might have presumed facts, sufficient to justify a verdict for the plaintiffs, was wholly insufficient, a new trial was granted.5

Where evidence was rejected, which ought to have been received on one count, though that count was not relied on, nor even read by the plaintiff, a new trial

1 Bul. N. P. 327.

2 Bailies v. Davis et al. 1 Pick. Rep. 206. Fonsec v. Magnay et al. 6 Taunt. Rep. 231. Abbot v. Sebor, 3 Johns. Cas. 39.

3 Hunt v. Adams, 7 Mass. Rep. 518. Mercer v. Sayre, 7 Johns. Rep. 306.

4 Boyden v. Moore, 5 Mass. Rep. 365.

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Aylwin v. Ulmer, 12 Mass. Rep. 22. Wilkinson v. Scott, 17 Mass.
Wilson v. Rastall, 4 Term. Rep. 753.

Rep. 249.

was granted, there having been a general verdict for the defendant on all the counts.1

If the judge omit to charge the jury, upon the ground that the evidence is clear in favor of one party, and the jury find for the other, a new trial will be granted. So if the judge, after the cause is committed to the jury, give them any directions concerning it, except in open court, a new trial will be granted.3

But it is a matter of discretion with the court, to grant a new trial or not, under all the circumstances of the case; and they will not, therefore, set aside a verdict, for the misdirection of the judge, where it appears that it was not material, and that it has not occasioned injustice; nor for the admission of illegal testimony, where it appears on the motion, that the same fact would be proved, at a subsequent trial, by legal evidence, provided such evidence be incontrovertible in its nature, as a record or the like; and a new trial will not be granted, although a judge err in refusing a nonsuit, if in a subsequent stage of the cause, the facts necessary to the maintenance of the action, be shewn.

Where the cause of action was trifling, and the plaintiff recovered only nominal damages, the court

1 Mid. Canal Co. v. Mc Gregore, 3 Mass. Rep. 124.

2 Page v. Pattee, 6 Mass. Rep. 459.

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Sargent v. Roberts et al. 1 Pick. Rep. 337. Emerton v. Andrews, 4 Mass. Rep. 653. Jones et al. v. Fales, 5 Mass. Rep. 101. Newhall v. Hopkins, 6 Mass. Rep. 350.

4 Dole v. Lyon, 10 Johns. Rep. 447. Fleming v. Gilbert, 3 Johns. Rep.

528.

Goodrich v. Walker, 1 Johns. Cas. 250. Watson et al. v. Delafield, 2 Caines' Rep. 224.

2 Wendell. Rep. 561. Hoyt v. Gilman, 8 Mass. Rep. 336. 17 Mass. Rep. 1.

refused to set aside a verdict for the misdirection of the judge, provided the plaintiff would elect to discontinue without costs; and the court have refused to set aside a verdict, on motion of the defendant, where the recovery was only nominal, or for a very small sum, and the defendant was entitled to costs as the verdict stood. So likewise, a verdict for defendant, or a nonsuit, will not be set aside, where it is evident that the plaintiff can only recover nominal damages. And the court will not hear a motion to set aside a nonsuit at the trial, where the plaintiff has since died, the only effect obviously being merely to unsettle the question of costs.*

Where, after the plaintiff had rested his cause on the trial of a question of fact, the defendant's counsel called a witness on his part, but upon the judge's intimating an opinion in favor of the defendant, forebore to examine the witness, or to introduce any further testimony, although urged to do so by the defendant, and the jury found for the plaintiff, it was holden that the suggestion of the judge, he not having excluded, or refused to hear any testimony, was no ground for a new trial. And so where counsel rose to address the jury, and the judge told him that he should charge against him, and he did not therefore address the jury, it was holden that this was a voluntary relinquishment of the right to address them, and not compulsory

1 Fleming v. Gilbert, 3 Johns. Rep. 528.

2 Hurst v. Barrell, 5 Johns. Rep. 137. Van Slyck v. Hogeboom, 6 Johns. Rep. 270.

3 Hyatt v. Wood, 3 Johns. Rep. 239.

Brantingham v. Fay, 1 Johns.

Cas. 255. But vide Howe et al. v. Austin, 12 Pick. Rep. 270.

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by the decision of the judge, and the court refused for this reason to grant a new trial.'

It seems that where the judge omits to notice material testimony, in his charge to the jury, the court will not grant a new trial, unless the party call his attention to such testimony.2

If the judge, however, omit to instruct the jury, as to a material point or fact in the cause, and their verdict be in favor of the party, who was bound to prove the fact, and without proof of which the verdict would be wrong, a new trial will be granted, although there was evidence to prove the fact.3

A new trial will not be granted, on the ground that improper evidence was admitted, and commented on by the judge, if no objection to its admission were made at the trial, but the objection will be considered as waived.1

If an action be founded on a written instrument, in which no consideration is expressed, and no objection be made at the trial, of the want of consideration, the objection cannot be made after verdict, as the ground of a new trial.5

If a fact capable of proof, be omitted to be proved at the trial, and no objection be then made of the want of such proof, it cannot be made after verdict, as the ground of a new trial.

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The court will not hear a motion for a new trial, on the ground of the misdirection of the judge, unless

1 Jackson d. Woodruff et al. v. Cody, 9 Cowen. Rep. 140.

2 Ex parte Baily, 2 Cowen. Rep. 479.

3 Truesdell v. Wallis, 4 Pick. Rep. 63.

* Wait v. Maxwell, 5 Pick. Rep. 217. but vide Rich et al. v. Penfield, 1 Wendell. Rep. 380. contra.

Arms v. Ashley, 4 Pick. Rep. 71.

• Maynard v. Hunt, 5 Pick. Rep. 240.

the directions given appear, by exceptions allowed by the judge, or by his report; except in cases where the judge unreasonably refuses to allow the exceptions, or to make the report.1

SECT. VI. UNAVOIDABLE ABSENCE OR MISTAKE OF WITNESSES.

The court will sometimes grant a new trial, on account of the unavoidable absence of witnesses.2 But this must be where the party was so situated, that a continuance could not be had; for if a party, knowing his witnesses to be absent, choose to risk a trial without their testimony, he ought to abide by the result; and a new trial is never granted for the neglect of party, in not coming prepared with evidence, which he knew to exist, and might have produced at the former trial, or for not going into the examination of that evidence. But if the attendance of a material witness on one side, be prevented by the fraud or misconduct of the other party, a new trial will be granted.5

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If the judge stop the party from producing all his evidence, upon the ground that sufficient has been given in, and the verdict be against such party, a new trial will be granted.

Where the plaintiff had examined a witness, and delivered him over to the defendant for cross-examina

1 Bond v. Cutler, 7 Mass. Rep. 205. Reg. Gen. S. J. C. 48. Appendix A.

22 Salk. 645. 6 Mod. Rep. 22.

3 Mercer v. Sayre, 7 Johns. Rep. 306.

42 Salk. 647, 653. Stra. Rep. 691. 1 Wils. Rep. 98. Black. Rep. 802. Gist v. Mason et al. 1 Term. Rep. 84. Vernon et al. v. Hankey et al. 2 Term. Rep. 113.

11 Mod. Rep. 52, 141.

• Dunham et al v. Baxter, 4 Mass. Rep. 79.

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