relation to trials investigating the title to lands in our military tract, founded upon considerations peculiar to that class of cases.1 But with that exception, the rule is believed to be universal.2 It ought to appear that the testimony has been discovered since the last trial, or that no laches is imputable to the party, and that the testimony is material. If the party had knowledge of the existence of the testimony, but could not procure it in time, he ought to have applied to postpone the former trial.3 The party applying for a new trial, on the ground of newly discovered evidence, must lay before the court the facts newly discovered, or show some good reason for the omission.* And it is competent for the adverse party to show, by affidavit, that the witness whose testimony is stated to be material, and newly discovered, is wholly unworthy of credit.5 The party moving should produce the affidavit of the witness of the fact, or proof that it cannot be obtained." And on the motion counter affidavits may be read, without having been served on the party moving.? Newly discovered evidence, which goes merely to impeach the credit of a witness examined on the trial, is not ground for granting a new trial.8 NOTE. For cases bearing upon this subject, vide 10 Wend., 285; 1 Cow., 359; 18 John., 489; 2 Cai., 67-155; 15 John., 293; 2 Park., 673; 10 How., 261; 8 Abb., 310; 7 Barb., 271; 3 John. Cases, 596; 6 How., 293; 3 Cai., 307; 3 John., 170; 4 Wend., 579; 4 John, 425; 2 Hall, 391; 1 Sandf., 195; 3 Duer., 366; 8 John., 84; 15 Id., 210; 1 Cai., 24; 8 Abb., 310; 2 Hilt., 285-290; 30 Barb., 655; 24 How., 58. 1 14 John., 186; 5 Cow., 207. The People v. The Superior Court of the State of New York, 5 Wend., 120. Vide 1 Caine, 24; 3 John., 255; 5 John., 248; 14 John., 186; 4 Mass., 399; 5 Mass., 261-353; 8 John. 65; 15 John., 210; 9 Cow., 266. Vanderwort v. Smith, 2 Cai. 155; 3 Id., 307-313; Jackson v. Malin, 15 293. John., • Williams v. Baldwin, 18 John., 489; Fleming v. Hallenbeck, 7 Barb., 271; 2 Cai., 260; Col. & C. Cases, 408. Brown v. Hoyt, 3 John., 255; Shumway v. Fowler, 4 Id., 425; Harrington v. Bigelow, 2 Den., 109; Meakim v. Anderson, 11 Barb., 215; Beach v. Tooker, (b) On the Ground of Surprise.-Where the party alleges surprise as a ground of his application for relief, he should show that some act prejudicial to him has been done, which, with a proper inquiry into the case, he could not have anticipated, and against which he could not, with due vigilance, have protected himself.1 In moving for a new trial on the ground of surprise, by the testimony of his own witness, the party must produce the affidavits of other persons, showing that he can make out a different case by them.2 The motion, when made upon the grounds of irregularity, cannot he entertained by reviewing erroneous decisions of the judge. They can only be corrected by exceptions.3 Many of the grounds of surprise which occur upon the trial of civil actions, such as misapprehension of the notice of trial, want of notice of trial, the cause being tried out of its order upon the calendar, the absence of the party, and the like, do not occur upon criminal trials. It is not a good ground for a new trial, that there was a difference of opinion between the party and his counsel as to the best mode of defence.1 A new trial will not be granted even in a criminal case, because the district attorney, by mistake, withholds in his hands testimony important to the defendant, unless the latter uses due diligence to obtain it." The court, in its discretion, may grant a new trial on the ground of surprise; and perturbation of counsel, arising from sudden and dangerous sickness occurring in his family, and coming to his knowledge during the trial, where such perturbation detered the counsel from making an important claim on behalf of his client, which he had a right to make." As a general rule, it cannot be alleged as a ground of surprise, that testimony has been unexpectedly ruled out on the trial." 1 Where testimony is offered at the trial, which could not have Craig v. Fanning, 6 How., 336. 2 Phenix v. Baldwin, 14 Wend., 62. 7 Craig v. Fanning, 6 How., 336. Cone v. Beresch, Thach. Cr. Cases, 684. Peo. v. Vermilyea, 7 Cow., 368. 6 3 G. & W. on New Trials, 930. Id., 945, et seq. Where see Exceptions to the Rule. been anticipated, and consequently, no provision has been made to explain or rebut it, and the result is thereby disastrous, a new trial will be granted.1 Where it is discovered, after verdict, that a material witness had been convicted of felony, and was, therefore, incompetent, a new trial cannot be demanded as a matter of right.2 But the court will, however, in such cases, in its discretion, grant a new trial whenever it seems advisable in the furtherance of justice.3 Where a material witness was subpoenaed by defendant, and attended, but shortly before the cause was called on, absented himself, and his absence was not discoverd by defendant until after the jury were sworn, by which means a verdict passed against the defendant, it was held that a new trial should be granted.1 A new trial will not be granted on the ground of surprise, which surprise arose from the production of an unexpected witness to certain facts, to impeach whom no preparation had been made, and the omission to call an anticipated witness whose impeachment had been prepared for." In an action for seduction, the female having sworn that she became pregnant by the defendant on a particular day, affidavits showing an alibi and surprise, were held good ground for a new trial. The new trial will not be granted where the party becomes suprised after the rendering of the verdict." It is very questionable whether surprise, founded on a mistake in law, can be made a ground for a new trial. It cannot, when it arose solely from the negligence of the moving party; thus, where the defendant had been convicted of keeping a disorderly house, and on motion for a new trial, it appeared from his affidavits that the conviction was had solely upon evidence that his tenant of the basement kept that part of the house in a disorderly manner; that he, the defendant, occupied the floor above, and supposed that he was only required to defend, as he did, the character of the part occupied by himself; and the affidavits did not show that he had, but left the inference that he had not disclosed all the facts to his counsel, and did not show that he had discovered any material evidence not before known to him, and within his reach, it was held that he was not entitled to a new trial.1 (c) Irregularity in summoning and drawing jurors.· Great strictness was formerly required in the names of the jurors, both christian and surname, and a variance in this respect has been held fatal, and a new trial ordered. But in this State such defects are cured by verdict, and may be supplied and amended by the court.2 Where the officer summoning the jury is interested in the event, it is in general good ground of challenge to the array, and, if the challenge was overruled, sufficient cause for a new trial. Where, by the course of practice in returning the jurors, it is utterly out of the power of the officer to select an improper jury; it has been held that his interest is not a ground of challenge.1 Mistakes or omissions of officers in empanneling jurors, where such mistakes and omissions have no tendency to affect the verdict injuriously to the accused, will not be a ground for a new trial.5 But when the irregularity deprives the party complaining of a substantial right, it will be fatal. Where a juror has been challenged and set aside, if he afterwards sit upon the jury as a talesman, the party at the time being ignorant of the fact, it is sufficient ground for a new trial." So where the sheriff is the only person to whom is committed the power of selecting and returning jurors, any interference by a party is illegal, and vitiates the return.8 So, also, is an improper interference by the court, as if the court arbitrarily discharge a juror after he is sworn without any sufficient reason for so doing." 1 Peo. v. O'Brien, 4 Park., 203. * 2 R. S., 425. • Id., 185. Peo. v. Griffin, 2 Barb., 427; 12 Pick., 496; 2 Sumner, 19; 4 Barn. & Ald., 430; Peo. v. Ransom, 7 Wend., 417; 4 N. H., 352; 5 Mass., 435; 4 Iredell, 96; 5 Id., 58; 2 Mason, 91. 2 Gra. & Wat., 159, et seq. 2 Gra. & Wat., 173, et seq. 9 • 2 Mason, 91; 8 Humph., 597. 2 Gra. & Wat., 191, 192. It must appear affirmatively on the record that the jury were sworn, or it will be an error. The oath must not only be administered, but it must be in the form prescribed by law.1 The statute, as to the mode in which jurors are to be drawn, is directory, and a neglect to conform to its provisions is not in itself a sufficient ground for setting aside a verdict where the prisoner has not been prejudiced.2 (d) Bias, or Hostility of Jurors.-This may consist of prejudice amounting to ill will; thus, where the foreman of the jury, on the morning of the day of trial, declared that he had come from home to hang every damned counterfeiting rascal, and that he was determined to hang the prisoner at all events, or words to that effect, this was held to be ground for a new trial; and where a juror, before the trial, declared that, if the testimony did not hang the prisoner, there was no use of laws, it was held that he was totally disqualified to act as a juror.4 A settled preconceived opinion will disqualify a juror, although the bias do not involve a degree of prejudice which amounts to malice or ill will.5 And where the juror's mind is pre-occupied with an opinion upon the issues to be tried, which it would require evidence to remove, it incapacitates him as a juror. 6 The fact that a person has made himself conversant with what are related in a newspaper as the facts of the case, does not necessarily disqualify him to sit in that case as a juror.? In testing the qualification of jurors, a distinction has sometimes been drawn between an opinion formed and expressed from mere rumor and from a reliable source, 'but such a distinction is unfounded and opposed to the subject of authority.8 The fact that a juror has formed an unfavorable opinion of the character of the accused, will not of itself disqualify the juror.9 11 Arch. Cr. Pr., 178, note. 2 Peo. v. Ferris, 1 Abb. P. (N. S.), 193; 7 Cow., 164; 7 Wend., 427. ⚫ 19 Ohio, 198. 10 Humph., 456; 11 Id., 232. Cancemi v. Peo., 2 Smith (16 N. Y.), 501. Peo. v. Honeyman, 3 Den., 121; 379; State v. Porter, 18 Conn., 186. Peo. v. Mather, 4 Wend., 229. • Com. v. Buzzell, 16 Pick., 153. Peo. v. Lohman, 2 Barb., 216; Id., 1 Com., |