evidence with out an alternative*, or omitted to tell the jury a presumption of law. An affidavit by The Court said, that was not such misdirection as to induce them to vary the rule as to costs on a new trial granted, as upon a verdict against evidence. GODMANCHESTER v. PHILLIPS, M. T. 1835. K. B. 4 Ad. & AN inclosure act directed that commissioners should award to a corporation, who were owners of the soil of certain commons, a twentieth part of the commons by way of compensation. In an action of trespass by the corporation, the plaintiffs having given evidence of acts of ownership in the locus in quo, the defendants to shew that their right to it had been compensated for by allotments made by commissioners, gave evidence that these allotments amounted to a twentieth part of the commons. In contradiction to this evidence, plaintiffs proved that a part of the land, which they alleged to be the common, consisted of a strip of uncultivated land between the cultivated parts of the common and the lands of private proprietors, called walks; and plaintiffs gave some evidence of property in these walks. The Judge having left the question of property in the locus in quo generally to the jury, who found for the plaintiffs The Court held, that it was not a ground for a new trial, that the Judge did not tell the jury that, in presumption of law, the walks belonged to the owners of the adjacent land, unless the contrary were proved. (g) CONCERNING THE JURY. SAVILLE v. LORD FARNHAM, E. T. 1828. K. B. 2 M. & Ry. 216. THE Judge being of opinion that the plaintiff had made out no title, directed a verdict for the defendant, and the jury being present, and no objection made at the time of entering the verdict The Court refused an application for a new trial, on the affidavit of a juror that he had not concurred in the verdict. * Where the question is one of mere fact, it seems that no expressions of the Judge, however strong or erroneous, will amount to misdirection, provided the question be upon the whole fairly presented to the jury. (Foster v. Sleete, H. T. 1837, C. P., 5 Scott, 28). Semble, where a number of facts, which singly may be ambiguous, amount collectively to an unequivocal proof of a fact, e. g. the surrender of a term, a Judge is not bound to submit them formally to the jury, unless the counsel expressly desires it. (Reeve v. Bird, 1 C., M. & R. 31; 4 Tyrw. 612). It is no ground for a new trial for misdirection that the Judge expresses a strong opinion upon the facts either way; the whole being left to the discretion of the jury, when the question is one peculiarly for their consideration. (Belcher v. Prittie, 4 M. & Scott, 295; 10 Bing. 408). Where a jury had not acted according to a misdirection, but had given damages, the Court refused to grant a new trial on the ground of misdirection. (Twigg v. Potts, T. T. 1834, Ex., 1 C., M. & R. 89). + So, on a motion for a new trial the Court will not receive an affidavit by the attorney of an admission made to him by one of the jurymen that the verdict was decided by lot. (Straker v. Graham, H. T. 1839, Ex., 4 M. & W. 721). But, where a jury have misconducted themselves in their demeanour during the trial in such a way as to lead to the presumption that justice has not been properly administered, the Court will grant a new trial. (Hughes v. Budd, H. T. 1840, B. C., 8 D. P. C. 315). So, the Court would grant a new trial in a case where a juror had, before being sworn, declared his determination as to the verdict he should give. (Ramadge v. Ryan, M. T. 1832, C. P., 9 Bing. 333; S. C. 2 M. & (h) CONCERNING NEGLIGENCE OR CONDUCT OF THE ATTORNEY. (1) CONCERNING PARTICULARS OF DEMAND. Negligence of attorney no ground*. granted to amend particularst. BRECKON v. SMITH, M. T. 1830. K. B. 1 Ad. & E. 488. ON a declaration for goods sold, and a particular "for a beast New trial sold, 137. 108.;” the only evidence was an admission by the defendant to a third person that he owed the plaintiff 137. 10s. The Court held, there was no evidence of an account stated, nor on the count for goods, as applying to the particular; but a new trial granted on payment of costs, with leave to amend the particulars. CONCERNING Perjury. PROCTOR v. SIMMONS, M. T. 1824. C. P. 9 Moore, 581. ON motion for a new trial Perjury no The Court held, that suggestion of perjury in the witnesses is not ground; Scott, 421). And, where two issues were raised by the pleadings, and the jury found upon both, but the Judge before whom the cause was tried discharged the jury upon the second issue, under misapprehension that the verdict upon one issue rendered the other issues immaterial. The Court held, that the proper course was not to move for a new trial, but to apply to a Judge to have the verdict corrected according to his notes. (Iles v. Turner, M. T. 1834, Ex., 3 D. P. C. 211). The Judge at Nisi Prius told the jury, that, in case of their believing a fact, the verdict must be for the plaintiff; the jury afterwards returned into court and told the associate, who alone was there, that they found the fact; the associate then informed them that this was a verdict for the plaintiff, and entered it so, but the jury expressed to him their dissent, and said that they were not agreed to find for the plaintiff. The Court discharged a rule nisi obtained on affidavit of these facts for setting aside the verdict and having a new trial, upon the ground (only) of the jury not having agreed to find for the plaintiff. (Doe d. Lewis v. Baster, H. T. 1836, K. B., 5 Ad. & E. 129). * The fact of the person acting as deputy for the sheriff being the attorney for the defendant, is not a ground for obtaining a new trial. (Briggs v. Sowton, M. T. 1840, B. C., 9 D. P. C. 105). † So, where the particular of demand is so framed as to be calculated to mislead the defendant, the Court granted a new trial on payment of costs. (Stevens v. Willingale, M. T. 1836, C. P., 4 Scott, 235; S. C. 7 C. & P.702). But, where particulars of demand stated that the action was brought to recover the deposit paid on the sale of an estate, to which the defendant was unable to make a good title, a summons was taken out for better particulars, which was dismissed upon the plaintiff's attorney stating that the objections were matter of law only. Subsequently a notice was delivered to the defendant's attorney that the objections were set forth in the plaintiff's answer to defendant's bill in Chancery. At the trial it appeared that the only objection was matter of fact. The Court refused a new trial; the defendant's attorney declining to make affidavit that he had been misled. (Correll v. Castle, E. T. 1837, B. C., 5 D. P. C. 598). or that a witness has been indicted for perjury. a sufficient ground for a new trial on an action for an assault, where the defendant does not swear that he was taken by surprise at the trial. SEELEY V. MAYHEW, M. T. 1827. C. P. 4 Bing. 561. MOTION for a new trial, on the ground that a witness on the trial had been indicted for perjury— But the Court refused the rule. Eight days' instead of fourteen days' notice of trial, is no ground for a new trial*. (k) CONCERNING TRIAL, NOTIce of. LENEHAM v. Goold, M. T. 1835. Ex. 4 D. P. C. 371; S. C. 1 T. & G. 228.-S. P. KERRY v. Reynolds, T. T. 1835. B. C. 4 D. P. C. 234. THE ground of an application for a new trial was, that the defendant's residence was and for some time had been in Ireland, and that he ought to have had fourteen instead of eight days' notice of trial. The Court refused the rule; it not appearing that, whilst resident in London, he was not permanently resident there. A cause being tried as undefended through inattention of defendant's attorney no ground, especially where the verdict only 71.† (1) CONCERNING CAUSES BEING TRIED AS UNDEFENDED, BY MISTAKE. BREACH v. CASTERTON, E. T. 1831. C. P. 7 Bing. 224; S. C. 4 M. & P. 867. ON motion for a new trial, it appeared that the attorney had permitted the cause through inattention to be called on, and tried as an undefended cause. The Court refused to grant a new trial, although it was sworn that there was a good defence upon the merits. WATSON v. REEVE, M. T. 1838. C. P. 7 D. P. C. 127; S. C. 5 Bing. N. S. 112; S. C. 6 Scott, 783. ON motion for a new trial, it appeared that one of the defendants was in court when the cause was called on in its turn and tried as an undefended cause, being eighth on the list, no briefs having been delivered and the verdict being for 71. The Court refused a new trial on any terms. *But, where a verdict was obtained in the absence of the defendant on account of no notice of trial being given, the Court set aside the verdict though the defendant did not swear positively to a good defence on the merits. (Williams v. Williams, H. T. 1834, Èx., 2 D. P. C. 350). † And the Court refused a new trial on any terms, where the defendant had not appeared and no briefs had been delivered by his attorney. (Gwilt v. Crawley, M. T. 1831, C. P., 8 Bing. 144; S. C. 1 M. & Scott, 229). But, after verdict for the plaintiff in debt on bond, (the defendant not appearing at the trial), the Court granted a new trial, on the ground that in the issue delivered the pleas were not dated pursuant to the rule of Hilary Term, 4 Will. 4. (Worthington v. Wigley, T. T. 1837, C. P., 3 Scott, 555; sed qu., see tit. Issue). So, where a cause which stood thirty off was taken out of its turn as undefended in the absence of the defendant's attorney, who was casually absent, no notice having been (m) CONCERNING VERDICT BY SUPPOSED CONSEnt. WRIGHT v. SORESBY, E. T. 1834. Ex. 2 C. & M. 671; S. C. 4 Tyrw. 434. A VERDICT by consent was taken against a defendant who was present in Court, against his express instructions and directions given privately in Court to his counsel, but he did not openly dissent or communicate his refusal to the other side— The Court refused to interfere. Verdict by supposed consent no ground. III. RELATIVE TO TRIALS BEFORE THE SHERIFF. TAYLER v. HELPS, M. T. 1833. K. B. 5 B. & Ad. 1068.- The Court held, that the general rule of not granting new trials The rule as to in cases under 201. does not apply to trials before sheriffs. PACKHAM ". NEWMAN, M. T. 1834. Ex. 1 C., M. & R. 585; ON motion for a new trial The Court said, in the case of a writ of trial, no new trial will be granted, on the ground of the verdict being against evidence, when the verdict is for less than 5l. given that it would be taken as an undefended cause, the Court set the verdict aside and granted a new trial, the costs to abide the event. (Aust v. Fenwick, M. T. 1833, Ex., 2 D. P. C. 246). So, where a cause, in which counsel had been instructed for defendant, having been called on out of its turn, upon an allegation of plaintiff's counsel that it was undefended, a verdict was taken for plaintiff before defendant's counsel arrived, the Court granted a new trial; the costs of the application to abide the event of the cause. (Darrien v. Howell, H. T. 1840, C. P., 8 D. P. C. 277; S. C. 6 Bing. N. S. 245; S. C. 8 Scott, 508). And where a plaintiff gave notice that he should take the cause down to trial as an undefended cause, and when it was called on the defendant's counsel said it was defended, whereupon it was not tried, but the plaintiff again took the record and got the cause tried as undefended, without any new notice or setting it down in the paper, the Court granted a new trial without payment of costs. (Sprigge v. Rutherford, M. T. 1833, B. C., 2 D. P. C. 429). * In another case it was said that the rule as to not granting new trials where the verdict is under 207. applies to cases tried before the sheriff. (Hemming v. Parnel, T. T. 1832, C. P., 3 M. & Scott, 318). Upon a trial under the Writ of Trial Act, in an action on a promissory note, semble, that the note should be produced; but if the objection was not taken at the time, the non-production of the note is no ground afterwards for a new trial. (Henn v. Neck, M. T. 1834, Ex., 3 D. P. C. 163). A declaration on a bill of exchange alleged the acceptance to be payable at a certain place, and "not elewhere;" on application to the sheriff to amend the declaration by striking out the words "not elsewhere," he refused. The Court granted a new trial. (Higgins v. Nichols, H. T. 1839, B. C., 7 D. P. C. 551). + Where, on the trial before the sheriff of an action on a note under 57., the requisites of the 17 Geo. 3, c. 30, not having been complied with, the undersheriff directed the jury to find for the defendant; but they found that the money verdict for 207. does not apply to trials before sheriff*, but the verdict must not be less than 51.† The sheriff's notes should be produced on moving*, and an affidavit The motion must be made within four days. HALL V. MIDDLETON, H. T. 1835. K. B. 4 N. & M. 368; S. C. 4 Ad. & E. 107.-S. P. MANSFIELD v. BREAREY, T. T. 1830. K. B. 1 Ad. & E. 347.-S. P. BURNEY v. MANSON, T. T. 1830. K. B. 1 Ad. & E. 348, n. UPON application for a new trial before the sheriff-— The Court requires that he should have been applied to for his notes, which, if furnished, should be produced; but if not, that such refusal and the facts of the case be laid before the Court upon affidavit. JOHNSON v. WELLS, H. T. 1834. Ex. 2 C. & M. 428; S. C. 2 D. P. C. 352; S. P. MANSFIELD v. BREAREY, T. T. 1830. K. B. 1 A. & E. 347; S. P. GRAINGE v. SHOPPEE, E. T. 1834. Ex. 2 D. P. C. 644; S. C. 4 Tyrw. 1000. ON a motion for a new trial, where the cause had been tried before the sheriff The Court held, that it should be made on an affidavit, verifying the under-sheriff's notes; and where certified under his seal only, it was insufficient. 4 D. P. C. 235.4 D. P. C. 190. WHEELER v. WHITMORE, T. T. 1835. Ex. "is due, but that there is an informality in the note:"-Held to be a perverse verdict, and a new trial granted. (Ówen v. Pugh, H. T. 1836, Ex., 1 T. & G. 26). * In another case it was said, on a motion for a rule nisi to set aside the verdict found on a trial before the sheriff on a writ of trial, the Court will not require the production of the sheriff's notes, if the motion be made by counsel engaged at the trial. (Barnett v. Glossop, E. T. 1835, C. P., 3 D. P. C. 625). If a sheriff, before whom a trial takes place under 3 & 4 Will. 4, c. 42, s. 17, does not, after promising to do so, send his notes of the trial within the time proper for moving for a new trial, the Court will enlarge the time for moving, and permit the facts proved at the trial to be laid before it on affidavit. (Thomas v. Edwards, T. T. 1834, Ex., 1 C., M. & R. 382; S. C. 2 D. P. C. 664; S. C. 4 Tyrw. 825). Upon trials before the sheriff, neither party is entitled to the sheriff's original notes for the purpose of making a motion for a new trial. (Vakers v. Cocks, H. T. 1835, Ex., 3 D. P. C. 492). If an under-sheriff refuses to transmit his notes taken on the trial of an issue, the Court will compel him to pay the costs consequent on his refusal. (Metcalf v. Parry, T. T. 1834, B. C., 2 D. P. C. 589); but he is not answerable for his agent's conduct in withholding_them, unless it is shewn that the latter acted under his direction. (Metcalf v. Parry, M. T. 1824, B. C., 3 D. P. C. 93). A new trial having been moved for upon an affidavit verifying the undersheriff's notes:-Held, that an affidavit might be filed on the other side containing statements of evidence given at the trial, but not reported in the notes of the undersheriff. (Lilley v. Johnson, E. T. 1837, Ex., 5 Ď. P. C. 606; S. C. 2 M. &W. 386). Where a rule for a new trial is moved for on the under-sheriff's notes, on the ground of the absence of evidence to warrant the verdict of the jury, it is not competent for the other party to use affidavits. (Jones v. Howell, T. T. 1835, Ex., 4 D. P. C. 176). On moving to set aside a verdict on a trial before the under-sheriff, on an objection founded upon the pleadings, it is not necessary to have an affidavit of the pleadings, as the postea is supposed to be in Court. (Milligan v. Thomas, M. T. 1835, Ex., 2 ̊C., M. & R. 756; S. C. 4 D. P. C. 373; S. C. 1 T. & G. 134). |