notice of the time and place of trial, and the want of it, unless it has been waived by an appearance and making defence, will in general be sufficient to entitle the defendant to a new trial. But the insufficiency of the notice must have been calculated reasonably to mislead the defendant.

3276. The selection of a jury should be fairly made. If there should be any fraud by any of the officers to whom this service has been confided by law; as, if a clerk in calling the names of the jurors, instead of calling the name of the person drawn should substitute that of a friend of one of the parties in the cause; or, if no unfairness of this kind should occur, a person not qualified, as an infant or an alien, should be put on the jury; or if a person not regularly summoned and returned should personate another and serve on the jury; or if a juror who was on a first trial is put on a second trial, and the fact is not known to the party until the second verdict is rendered; all these are sufficient for granting a new trial.

But a person exempted from service on a jury is not incompetent, and a new trial will not be granted because he serves.8

Disqualifications of jurors, whether arising from relationship, bias, or improper influence exerted before trial, must in general be put forward before the jury is impanelled, or they will be waived. If the objection is not made till after trial, some excuse must be shown for the delay."

3277. When, in the hurry of a jury trial, the judge through inadvertence or mistake admits improper evidence, or rejects that which is legal, the court will, on a motion for a new trial, grant it, and set aside a verdict which has been obtained through this mistake, and the complaining party will not be sent to a court of error for redress.

The improper admission or exclusion of evidence is as we have seen one of the grounds for a bill of exceptions; 10 and the party may in some cases elect between these two remedies. It may be said in general that any improper evidence which is sufficient for a new trial is ground for exceptions, but the converse is not true. While exceptions lie to the admission of any improper material evidence to the prejudice of the party which is properly objected to, a motion for a new trial is addressed to the discretion of the court, and will not be granted, even though the evidence was objected to at the time, if the court can see plainly from the whole evidence, such as preponderance in favor of the verdict, that a contrary verdict would have been set aside as against evidence."1 But if the evidence is objected to at the time and is so material as to be likely to affect the verdict, the court will grant a new trial instead of forcing the party to carry up the case on exceptions.12

4 Buller, Nisi P. 327; Attorney General v. Stevens, 3 Price, Exch. 72; 3 Dougl. 402; 1 Wend. N. Y. 22. See Jamieson v. Pomeroy, 9 Penn. St. 230.

5 Stainton v. Beadle, 4 Term, 473; Lane v. Goodwin, 47 Me. 593.

Norman v. Beaumont, Willes, 484; Barnes, 453. Ín Pennsylvania, by going on to trial the effect will be cured in both criminal and civil cases. But in Massachusetts a new trial will not be granted, because one of the jurors had not been drawn and returned according to law, if the objection be not made till after verdict, nor in a capital case, because the juror belonged to another county. Armstead v. Hadley, 1 Pick. Mass. 38. A new trial will not be granted in Kentucky because a juror was an alien, though it was unknown to the party and his counsel till after verdict. Presbury v. State, 9 Dan. Ky. 203. Nor in Tennessee, on the ground of the incompetency of the juror. Booby v. State, 4 Yerg. Tenn. 111. And if known at the time of trial, it is no valid objection in Missouri. Lisle v. State, 6 Mo. 426.

Herndon v. Bradshaw, 4 Bibb, Ky. 45; Craig v. Elliot, 4 Bibb, Ky. 272.

8 State v. Forshner, 43 N. H. 89.

Cannon v. Bullock, 26 Ga. 431; Boetge v. Landa, 22 Tex. 105; Lafayette Co. v. New Albany R. R., 13 Ind. 90. Before, 3232.

10

12

"Thorndike v. Boston, 1 Metc. Mass. 242; Robbins v. Lincoln, 12 Wisc. 1. Eddy v. Baldwin, 32 Mo. 369; Lynd v. Picket, 7 Minn. 184.

But to support the motion the objections must be made at the trial, and a new trial will not be granted for the admission of improper evidence, if the party allowed it without objection.13

3278. A new trial will be granted for any misdirection of the judge, when such misdirection has caused or is likely to cause injustice and an injury to the party against whom the verdict has been rendered; for when no injustice has been done, and a new trial would be likely to produce the same result, it will not be granted. Such misdirection relates either to matter of law or to matter of fact.

14

3279. When the judge at the trial misdirects the jury on matter of law material to the issue, whatever may be the nature of the case, the verdict will be set aside, and a new trial granted, if such misdirection or instruction may have influenced their verdict. But an erroneous opinion upon an abstract question of law expressed by the judge in charging the jury, which is not involved in the decision of the case, is not a ground for reversing the judgment or for granting a new trial; 15 nor will a new trial be granted for misdirection where entire justice has been done.16

A new trial will be granted if it appear that the charge of the presiding judge took from the jury a matter of fact in controversy between the parties; 17 or where the opening and closing of the argument before the jury, which belongs to the defendant and was claimed by him, was assigned to the plaintiff. 18

If the judge refuse or neglect to charge the jury upon a material point when requested by the counsel against whom a verdict has been rendered, if the verdict was so rendered for want of such instruction, a new trial will be granted; 19 but a new trial will not be granted where the judge simply neglected to charge the jury upon a point when his attention was not drawn to it.20

When the issue consists of a mixed question of law and fact and there is a conceded state of facts, the rest is a question of law for the court, and a misdirection in respect to such an issue will avoid the verdict.21

3280. Misdirection of facts will in some cases be sufficient to vitiate the proceedings. If, for example, the judge should undertake to dictate to the jury." When the judge delivers his opinion to the jury on a matter of fact, it should be delivered as mere opinion which they are at liberty to disregard, and not as instructions binding on them.23

It may be observed as a general rule that a new trial will not be granted on account of a misdirection either as to law or fact, when injustice has not been done and the verdict has not prejudiced the complaining party.24

13 Hinton v. State, 24 Tex. 454; Dozier v. Jernan, 30 Mo. 216; United States v. Flowery, 1 Sprague, Dist. Ct. 109.

Lane v. Crombie, 12 Pick. Mass. 177; Hoyt v. Dimon, 5 Day, Conn. 479; Doe v. Paine, 4 Hawks, No. C. 64; West v. Anderson, 9 Conn. 107.

15 Reed v. McGrew, 5 Ohio, 375; Jordan v. James, 5 Ohio, 88; Sherman v. Champlain Co., 31 Vt. 162; Moffitt v. Cressler, 8 Iowa, 122.

16 Johnson v. Blackman, 11 Conn. 342; Simpson v. Norton, 45 Me. 281.

17 United States v. Tillotson, 12 Wheat. 180.

18 Davis v. Mason, 4 Pick. Mass. 156.

19 Den v. Sinnickson, 4 Halst. N. J. 149; Coleman v. Roberts, 1 Mo. 97. But the court may refuse to instruct upon a point upon which no evidence was adduced. Freeman v. Edmunds, 3 Hawks, No. C. 5.

20 Alsop v. Swathel, 7 Conn. 500; Goodrich v. Eastern R. R., 38 N. H. 390.

21 Diover v. Gunton, 2 Wend. N. Y. 596.

22 See Hine v. Robbins, 8 Conn. 342.

23 Trotter v. Saunder, 7 J. J. Marsh. Ky. 321; Dallam v. Handley, 2 A. K. Marsh. Ky. 418; 12 Johns. N. Y. 513.

24 Mansfield v. Wheeler, 23 Wend. N. Y. 79; Price v. Evans, 4 B. Monr. Ky. 386; Selleck v. Turnpike Co., 13 Conn. 453.

If the judge gives any instructions to the jury out of court without the presence of the parties, or visits the jury in their room, the verdict will be set aside.25

3281. If the prevailing party, his agent, or attorney has been guilty of any act of impropriety by which the jury have been induced to give a verdict against the other party, this will be sufficient ground for granting a new trial, and in many cases evils arise and injury is sustained by the losing party when it might be very difficult to prove the injury; the courts, therefore, look with jealous eyes over such acts. Still, it is not easy to say what acts will be sufficient to authorize the court to grant a new trial. The following of many examples will suffice to show the nature of these wrongful acts; as, when a paper not before submitted to the court is surreptitiously handed to the jury, being material on the point in issue,26 unless it appears that they have not looked into it. So if he have labored the jury, or used improper influence with them, or procured another to do so to induce them to give a verdict in his favor, a new trial will be granted.28 And even when handbills reflecting upon the plaintiff's character were distributed in court and shown to the jury on the day of trial, a verdict against him was set aside upon application and a new trial granted, although the defendant by his affidavit denied all knowledge of the handbills. But if the other party is aware of such attempts, it is his duty to apply for their correction, and his neglect so to do when in his power will deprive him of the equity he had to claim a new trial; he must be supposed to have acquiesced in them. When indirect measures have been resorted to in order to prejudice the jury, or tricks practiced, or unlawful attempts to suppress or stifle evidence, or thwart the proceedings, or to obtain an unconscionable advantage, or to mislead the court and jury, they will be defeated by granting a new trial.31

30

32

31

3282. The jury are sworn well and truly to try the issue between the parties, and a true verdict give according to the evidence. Any misconduct in violation of their oaths is a sufficient ground for granting a new trial; as, where they found a verdict by a lottery; but where each of the jurors set down a sum in a case of tort and the whole were added up together, and to ascertain the average the product was divided by twelve, for which amount the jury found their verdict, it was held there was nothing illegal in this mode of arriving at a verdict, because in torts and other cases where there is no ascertained demand it can seldom happen that jurymen will at once agree upon a precise sum to be given in damages; there will necessarily arise a variety of opinions, and mutual concessions must be expected; a middle sum may in many cases be a good rule; and though it is possible this mode may sometimes be abused by a designing juryman fixing upon an extravagantly high or low sum, yet, unless such abuse appears, the fraudulent design will not be presumed. It does not appear

25 Hoberg v. State, 3 Minn. 262.

26

33

Coke, Litt. 227, b. The mere fact that an improper paper was sent to the jury without the knowledge of the adverse party is not ground for new trial. Maynard v. Fellows, 43 N. H. 255; Shields v. Guffey, 9 Iowa, 322.

27 Hakley v. Hastie, 3 Johns. N. Y. 252.

28

169.

Knight v. Freeport, 13 Mass. 218; Blaine's Lessee v. Chambers, 1 Serg. & R. Penn.

31 Graham, New Tr. 56; 4 Chitty, Gen. Pr. 59; Barron v. Jackson, 40 N. H. 365. 32 Hale v. Cove, Strange, 642; Mitchell v. Ehele, 10 Wend. N. Y. 595.

3 Cowperthwait v. Jones, 2 Dall. 56; Grinnell v. Phillips, 1 Mass. 542; Johnson v. Perry, 2 Humphr. Tenn. 569; Harvey v. Jones, 3 Humphr. Tenn. 157; Harrison v. McGehee, 24 Ga. 530; St. Martin v. Desnoyer, 1 Minn. 156. But where, beforehand, the jury agreed that the result, whatever it might be, should be the amount of their verdict, a new trial was granted. Ellege v. Todd, 1 Humphr. Tenn. 43; Manix v. Malony, 7 Iowa, 81.

whether the jury agreed beforehand to be bound by the result; it seems they took this method simply to ascertain whether they could arrive at something like an agreement. Indeed, it would seem from what the presiding judge said, that this method was employed by the jury to "collect the sense of its members."

1934

If remarks of a character to influence the verdict are addressed to the jury before they have rendered their verdict by third parties, a new trial will be ordered; 35 but this will not be done unless there is reason to suppose that the remarks may have some effect.36

The misconduct of the jury cannot be shown by the evidence of any of their number.37

3283. When a verdict is found directly opposite to the direction or instruction of the judge on a matter of law, it must of necessity be set aside, or the jury, and not the court, would determine the law, which would be destroying the very constitution of a trial by jury, that the judges are to decide the law, and the jury ascertain the facts. But a new trial will not be granted where, in the opinion of the court, substantial justice has been done between the parties, although the law arising from the evidence would have justified a different result.39

Where one part of the verdict is inconsistent with another, it is a nullity, and will be set aside.40

3284. A new trial will be granted when injustice has been done and the verdict is clearly against evidence; but not where justice has been done, although the verdict be against the weight of evidence, that is, that the proof on the side of the losing party, in such case, is greater than that on the other.42 A verdict may be set aside because it is against the weight of the evidence, but in such cases the evidence is not to be weighed in golden scales. In considering such cases, the general rule is that the verdict once found shall stand; the setting aside is an exception, and it ought to be an exception of rare and almost singular occurrence.43 This is especially the case when two juries have determined the same way.'

44

The courts are reluctant to grant a new trial for this cause, as there is danger of usurping the province of the jury to decide questions of fact. A new trial will of course be granted where there is absolutely no evidence to support the

34 Cowperthwait v. Jones, 2 Dall. 56.

35 Cole v. Swan, 4 Greene, Iowa, 32; Thrift v. Redman, 13 Iowa, 25; State v. Andrews, 29 Conn. 100.

36

People v. Boggs, 20 Cal. 432; People v. Brannigan, 21 Cal. 337.

37 Duhon v. Landry, 15 La. Ann. 557; Pratte v. Coffman, 33 Mo. 71; McCray v. Stewart, 16 Ind. 377; Butt v. Tuthill, 10 Iowa, 585; Brown v. State, 28 Ga. 199. In Iowa, under the code, 1810, the jurors may show the manner of making up the verdict. Ruble v. McDonald, 7 Iowa, 81.

38 Caffrey v. Groome, 10 Iowa, 548.

39 Smith v. Shultz, 2 Ill. 490. See Marr v. Johnson, 9 Yerg. Tenn. 1.

40 Mitchell v. Printup, 27 Ga. 469.

Corsies v. Little, 2 Green, N. J. 373; Brugh v. Shanks, 5 Leigh, Va. 598; Yale v. Yale, 13 Conn. 185; Wells v. Waterhouse, 22 Me. 131; Hudson v. Williamson, 3 Brev. So. C. 342; Jenkins v. Whitehead, 9 Miss. 157; Waite v. White, 5 Ark. 640; Scott v. Brookway, 7 Mo. 61; Cassels v. The State, 4 Yerg. Tenn. 149; Wait v. McNeil, 7 Mass. 261; Zaleer v. Geiger, 2 Yeates, Penn. 522; Emmet v. Robinson, 2 Yeates, Penn. 514; Lloyd v. Newell, 3 Halst. N. J. 296; United States v. Duval, Gilp. Dist. Ct. 356.

42 Yarborough v. Abernathy, 1 Meigs, Tenn. 483; Pettitt v. Pettitt, 4 Humphr. Tenn. 19; Todd v. Boone County, 8 Mo. 431; Bank v. King, 2 Green, N. J. 45; Stanley v. Whipple, 2 McLean, C. C. 35; Harbour v. Reyburn, 7 Yerg. Tenn. 432; Kellogg v. Budlong, 8 Miss.

340.

43 Hammond v. Wadhams, 5 Mass. 353.

Coffin v. Newburyport Mar. Ins. Co., 9 Mass. 436; Fowler v. Etna Ins. Co., 7 Wend. N. Y. 270; Dorsey v. Dougherty, 1 A. K. Marsh. Ky. 182.

46

45

verdict, in which case a demurrer might have been taken to the evidence.15 In some cases the courts have declined to grant a new trial, where the evidence of the prevailing party by itself was sufficient to support the verdict. But this rule is too narrow, and in fact it is impossible to lay down any general rule. If the jury in making their verdict have clearly rejected evidence which is competent, uncontradicted, and unimpeached, a new trial will be granted." But if the questions of fact are left doubtful, and specially where the evidence is circumstantial, the court will decline to interfere with the verdict.48

The decision of the jury as to the credibility of a witness cannot be reviewed on a motion for a new trial if the evidence was at all conflicting."9

3285. A new trial may be granted for newly discovered evidence, and we will examine successively the nature of this evidence, and the circumstances of its discovery.

51

3286. When evidence has been discovered since the trial which might have been produced before the jury, it must be such, to entitle the party to a new trial, as would have been material,50 and not merely cumulative, and such as would have changed the verdict if produced, and which induces a belief that injustice has been done. It must appear that such newly discovered evidence is material to the issue, going to the merits; and evidence merely to impeach the character of a witness is not of this nature; 52 and if the witness who is now offered as newly discovered was incompetent at the time of the trial, and has since become competent, this will not be considered as newly discovered evidence.5

If matters might have been offered in evidence, but were not, this is not the kind of newly discovered evidence which is ground for a new trial.54

It must be made to appear by competent affidavits that in truth the matters offered as new evidence are, in fact, material.56

The affidavit of the party on information and belief that certain witnesses will give certain testimony is not sufficient; 56 or his affidavit as to what the new witness swore to at another trial.57 If the new evidence will not alter the result, or if taking the whole there is enough to support the verdict, a new trial will be refused.58

3287. The evidence must not only be material, but it must have been discovered since the trial, and the party must also have used due diligence and every reasonable exertion in his power to procure it; for if by using proper means he could have procured it so as to produce it on trial, it will not be considered

45 Cummins v. Scott, 20 Cal. 83; Howard v. Coshow, 33 Mo. 118; Laville v. Lucas, 13 Wisc. 617; Spicely v. True, 14 Ind. 437.

46 Rogers v. Lewis, 19 Ind. 405; Hall v. Hunter, 4 Greene, Iowa, 539.

47 Robertson v. Dodge, 28 Ill. 161.

48 Pulliam v. Ogle, 27 Ill. 189; Greenfield Bank v. Crafts, 4 All. Mass. 447; Dixon v. Merritt, 6 Minn. 160; Cross v. Carey, 25 Ill. 562.

49 Reboul v. Chalker, 27 Conn. 114; Wilson v. Horne, 37 Miss. 477; Cummins v. Rice, 19 Tex. 225; Bradley v. Geiselman, 22 Ill. 494.

50 Watts v. Howard, 7 Metc. Mass. 478; Kirby v. Waterford, 14 Vt. 414.

61 Mechanics' Fire Ins. Co. v. Nichols, 1 Harr. Del. 410; Alsop v. Ins. Co. 1 Sumn. C. C. 451; Den v. Geiger, 4 Halst. N. J. 228; Pike v. Evans, 15 Johns. N. Y. 210; Gardner v. Mitchel, 6 Pick. Mass. 114; Reed v. McGrew, 5 Ohio, 375.

52 McIntire v. Young, 6 Blackf. Ind. 496; Harbour v. Rayburn, 7 Yerg. Tenn 432; Martin v. Ehrenfels, 24 Ill. 187.

53 Sawyer v. Merrill, 10 Pick. Mass. 16.

54 Reed v. Moore, 3 Ired. No. C. 310.

55 Hinds v. Terry, 1 Miss. 80; Parker v. Hardy, 24 Pick. Mass. 246.

56 Keough v. McNitt, 6 Minn. 513.

57 Eddy v. Caldwell, 7 Minn. 225.

58 Mead v. Constans, 5 Minn. 171.