A PRACTICAL ABRIDGMENT OF THE REPORTS OF CASES ARGUED AND DETERMINED IN THE COURTS OF Queen's Bench, Common Pleas, & Exchequer, FROM MICH. TERM, 4 GEO. 4, TO MICH. TERM, 3 VICT., AND OF THE RULES OF COURT, STATUTES, &c. &c. &c. New Assignment. See tits. Assault and Battery-Payment-Replevin-Trespass— HALL V. MIDDLETON, M. T. 1835. K. B. 5 N. & M. 410. IN assumpsit, and plea, payment of £ in satisfaction; replication, new assigning a different debt, and plea to the new assignment, non assumpsit The Court held, that the only question for the jury was, whether there were two debts; and that, upon proof by the plaintiff of one debt, and by the defendant of a payment of that amount, without distinctly identifying the debt proved with the payment made, the jury ought to have been directed to say whether there were two debts; and a new trial granted. In actions ex contractu, under a new assignment in assumpsit, the question is, whether there were two dehts, Newspaper*. See tit. Libel. * The proprietor of a newspaper cannot recover for the non-performance of a contract for printing such newspaper, before filing the affidavit required by the 38 Geo. 3, c. 78. (Houstoun v. Mills, H. T. 1835, N. P., 1 M. & Rob. 325). New Trial. I. RELATIVE TO THE DEFENDANT'S ELECTION BETWEEN MOTION FOR, AND APPLICATION IN ARREST OF, JUDGMENT, p. 3. II. RELATIVE TO THE GROUNDS FOR. (a) IN GENERAL, p. 3. (6) CONCERNINGg right to begin, p. 3. (c) CONCERNING DAMAGES. 1. Too large, p. 4. 2. Too small, p. 4. 3. Mistake as to, p. 6. (d) CONCERNING ENTRY OF CAUSE IN WRONG LIST, (e) CONCERNING Evidence and WITNESSES, p. 6. (g) CONCERNING THE JURY, p. 10. (h) CONCERNING NEGLIGENCE OR CONDUCT OF THE ATTORNEY, p. 11. (1) CONCERNING PARTICULARS OF DEMAND, p. 11. (j) CONCERNING PERJURY, p. 11. (k) CONCERNING TRIAL, NOTICE OF, p. 12. (1) CONCERNING CAUSES BEING TRIED AS UNDEFENDED, BY MISTAKE, p. 12. (m) CONCERNING VERDICT BY SUPPOSED CONSENT, p. 13. III. RELATIVE TO TRIALS BEFORE THE SHERIFF, p. 13. IV. RELATIVE TO TRIAL IN INFERIOR COURTS, p. 15. V. RELATIVE TO THE COURT TO WHICH APPLICATION IS TO BE MADE, p. 15. VI. RELATIVE TO THE TIME WITHIN WHICH APPLICATION MUST BE MADE, p. 15. VII. RELATIVE TO THE MOTION AND RULE FOR, AND NOTICE OF, p. 16. VIII. RELATIVE TO THE NOTES OF COUNSEL, p. 16. IX. RELATIVE TO IMPOSING TERMS, AND IN CASES OF DEATH AFTER RULE FOR, p. 16. X. RELATIVE TO A TERM'S NOTICE, p. 17. XI. RELATIVE TO THE CHANGE OF THE ATTORNEY, p. 17. XII. RELATIVE TO AMENDMENTS AFTER, p. 17. XIII. RELATIVE TO THE COSTS, p. 17. XIV. RELATIVE TO JUDGMENT, p. 19. XV. RELATIVE TO A THIRD TRIAL, p. 20. I. RELATIVE TO DEFENDANT'S ELECTION BETWEEN PHILPOT v. PAGE, E. T. 1825. K. B. 4 B. & C. 160. A MOTION in arrest of judgment having been refused, application A defendant was made for a new trial. Per Cur.-We are of opinion that the application for a new trial, being after a motion in arrest of judgment, was too late; and it is important to keep the various steps in causes distinct. When a motion is made in arrest of judgment, it is admitted that there is a verdict to which no objection can be made. The usual and proper course is where a rule for a new trial is granted to apply at the same time for leave to move in arrest of judgment, if there be any objection apparent on the record. must elect between motion in arrest of judgment, or for a new trial. II. RELATIVE TO THE GROUNDS FOR. (a) IN GENERAL *. (b) CONCERNINg right to begin. BIRD. HIGGINSON, M. T. 1834. K. B. 2 Ad. & E. 160. ON motion for a new trial, the Court refused the new trial on the ground that the judge had erroneously decided on the trial as to the right to begin. * 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 issue 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 circumstance of the sheriff upon a writ of trial, or a judge of the superior courts, having refused to certify for stay of proceedings, under 3 & 4 Will. 4, c. 42, s. 8, does not preclude a party from applying for a new trial within the time limited. On such application the Court will judicially notice the record. (Angell v. Iler, M. T. 1839, Ex., 7 D. P. C. 846). An erroneous decision as to the right to begin, no ground for a new trial; but the doc trine is questionable. Excessive damages no ground in an action for breach of promise of marriage*, or false imprisonment †. HUCKMAN v. FERNIE, M. T. 1837. Ex. 3 M. & W. 505. ON motion for a new trial upon a question, whether the plaintiff or defendant had a right to begin, the Judge at Nisi Prius having decided clearly and manifestly wrong— The Court granted a new trial. (c) CONCERNING DAMAGES. 1. Too large. WOOD v. HURD, H. T. 1835. C. P. 2 Bing, N. S. 166. THE Court refused a new trial, on the ground of excessive damages in an action for breach of promise of marriage, it appearing that the defendant, though not in possession, was entitled to considerable property in reversion. EDGELL V. FRANCIS, T. T. 1840. C. P. 1 M. & G. 222. 1 Scott, 118; S. C. In an action for false imprisonment, where a verdict, with 2007. damages, was given for one night's confinement in a prison, evidence of a trespass by the defendant on the goods of the plaintiff, arising out of the same transaction, committed on the following day, was admitted, for the purpose of shewing that the defendant was actuated by malice. The Court held, there was no ground for granting a new trial. No new trial where damages under 201., unless jury's conduct outrage oust; 2. Too Small. MANNING v. UNDERWOOD, E. T. 1825. Ex. 1 M. & Y. 266. In an action for goods sold, the jury found a verdict for 157. On a rule to shew cause why the verdict should not be set aside, and a new trial granted, on the ground that the verdict had been contrary to evidence Garrow, B.-I have always understood, that unless the conduct * So, where the jury did not appear to have been actuated by undue motives, nor the result of gross error or misconception, the Court refused a new trial, in an action of crim. con., on the ground of the damages being large. (Gough v. Farr, T. T. 1827, Ex., 1 Y. & J. 477). Upon an application to set aside a verdict on the ground of excessive damages, the Court will not receive the affidavits of the defendant's witnesses, either to explain or to add to evidence given by them at the trial. (Phillips v. Hatfield, M. T. 1840, Ex., 8 D. P. C. 882). The practice of not granting a new trial, on the ground that the verdict was against evidence, if the amount claimed fall short of 201., applies to motions made by plaintiff, as well as motions made by defendant. But, where the ground is misdirection, the amount is not regarded; and where the judge had misdirected the jury, by submitting for their consideration a fact not proved, nor deducible from the evidence, the Court granted a new trial, though the amount in question was less than 11. (Haine v. Davey, T. T. 1836, K. B, 4 A. & E. 892). Where a verdict is for a sum less than 207., unless practice or fraud on the part of the plaintiff is shewn, the Court will not disturb the verdict on the ground of surprise. (Bransdon v. Didsbury, M. T. 1840, B. C., 9 D. P. C. 199). The rule in the superior courts as to not granting new trials where the verdict is under 207., though against evidence, extends equally to cases tried at the great sessions in Wales. |