lish practice, a new trial cannot be granted in any criminal case, where the offence is above a misdemeanor; the remedy in such case, is by a recommendation of the prisoner to mercy. In criminal cases, where several defendants are tried at the same time, and some are acquitted, and others not, the court may grant a new trial as to those who are convicted, if the conviction be improper.1 It is a general rule, that a party shall not move for a new trial, after a motion in arrest of judgment.2 But if the facts, which are made the ground of the motion, or petition for a new trial, are unknown when the motion in arrest is made, this rule will not apply.3 In the Court of Common Pleas, it is not usual to grant new trials, where an appeal can be taken to the Supreme Court; but where there has been a mistrial in the Common Pleas, this rule does not apply; as where the jury took out several depositions, which were not read in court, a new trial was granted, though an appeal lay. A new trial will not be granted, on account of any order or determination of the judge, who tries the cause, in relation to any matter within his discretion.1 The principal grounds for setting aside a verdict, and granting a new trial are, 1. Misbehavior of the prevailing party. 2. Misconduct, or mistake of the jury, or for want of a proper jury. 3. Excessive, or too small damages. 4. Verdict against law, or evidence. 1 King v Mawbey et al. 6 Term. Rep. 619. Pierce v. Thompson, 6 Pick. Rep. 193. 5. Misdirection, or omission of the judge in summing up; admitting or refusing testimony contrary to law. 6. Unavoidable absence, or mistake of witnesses. 7. Discovery of new and material evidence. SECT. I. MISBEHAVIOR OF THE PARTY PREVAIL ING. If a party be guilty of any improper conduct towards the witnesses, as by threatening or persuading them, or by influencing them upon the stand, as by making signs how the witness shall answer, a new trial will be granted; so, if a party produce, and cause to be sworn a witness, whom he knows to be interested, without disclosing the circumstance.2 If any new evidence be furnished to the jury, after they leave the bar, by the party prevailing, a new trial will be granted. By Stat. 1807. ch. 140. s. 17. it is provided, that if any person obtaining a verdict in his favor, in any court in this commonwealth, shall, during the session of the court, in which the verdict shall be obtained, give to any of the jurors in the cause, knowing them to be such, any victuals, drink, or entertainment, or other article by way of treat, or gratuity, whether before or after verdict, on due proof thereof, it shall be a sufficient reason, at the discretion of the court, to set aside the verdict, at the election of the adverse party, and to award a new trial of the cause. 1 Grovenor v. Fenwick, 7 Mod. Rep. 156. 2 Niles v. Brackett, 15 Mass. Rep. 378. Where, before the verdict, the son-in-law of the plaintiff, who was also a witness, said to one of the jurors who tried the cause, that it was of great consequence to him, and that he should have to pay the costs, if it went against the plaintiff, and that the defence was a spiteful thing on the part of the defendant, the court granted a new trial, there having been a verdict for the plaintiff.1 If a party obtaining a verdict, have taken any unfair advantage, contrary to justice and good conscience, to procure a verdict in his favor, a new trial will be granted. Thus in an action brought against a party for goods sold, and as indorser of a note, which had been given for the goods, but upon which time had been given to the maker, so as to discharge the indorser, the plaintiff proved the sale of the goods, and then refused to produce the note, which the defendant came prepared to meet; no notice having been served upon the plaintiff to produce the note, the defendant was not allowed to give evidence of its contents; under the circumstances, the court on motion granted a new trial.2 If papers, furnishing material evidence in favor of the party prevailing, which are not read on the trial, be delivered to the jury, when they retire to agree upon their verdict,3 a new trial will be granted. But if they have not looked at them, or been influenced by them, this is no ground for setting aside the verdict.* 1 Knight v. Freeport, 13 Mass. Rep. 218. 2 Anderson v. George, 1 Burr. Rep. 353. In our practice, in a similar case, the court would grant a continuance, so as to give the party time to serve notice, &c. 3 Whitney v. Whitman, 5 Mass. Rep. 405. A new trial would be granted in such case, whether the papers were delivered by mistake, or the "oblique conduct" of either party. See case last cited. 4 Hackley v. Hastie et al. 3 Johns. Rep. 252. and see cases cited in 1 Paine & Duer. Prac. 551. Any practice by the attorney of the party, who has obtained a verdict, has the same effect as if done by the party himself; as where an attorney wrote letters to some of the jurors, stating the hardship of his client's case, and a verdict was rendered in his favor, a new trial was granted.' Merely requesting a juror to appear at the court, is no cause for granting a new trial.2 Where it was sworn, that handbills, reflecting on the plaintiff's character, had been distributed in court, and shewn to the jury on the day of trial, the court granted a new trial, and would not receive from the jury affidavits, offered to prove that they had not seen them, and though the defendant denied all knowledge of the handbills.s SECT. II. MISCONDUCT OR MISTAKE OF THE JURY, OR FOR WANT OF A PROPER JURY. New trials are often granted on account of the misconduct or mistake of the jury; as where a jury determined their verdict by casting lots; but where each juror named a sum, and the whole being added together was divided by twelve, and the jury took the quotient for their verdict, a new trial was refused." If it be made to appear, that a juror acted under the influence of improper motives, a new trial will be granted. 1 2 Vent. 173. 21 Stra. Rep. 643. 3 Coster v. Merest, 3 Brod. & B. Rep. 272. 4 Vaise v. Delaval, 1 Term. Rep. 11. Barnes. Rep. 441. 1 Stra. Rep. 642. Grinnell v. Philips, 1 Mass. Rep. 530, 543. * Jeffries et al. v. Randail, 14 Mass. Rep. 205. On a motion for a new trial, the court will not inquire into the consequences of a verdict, as it affects costs, for these follow, and are regulated by the verdict, and not the verdict by them.' Where, therefore, the jury gave less than twenty dollars, in an action commenced in the Court of Common Pleas, but awarded in their verdict full costs, the court refused to grant a new trial, to enable the jury to give such a sum, as would entitle the plaintiff to full costs, the verdict, so far as it related to costs, being inoperative.2 The misconduct on the part of jurors, is not, in all cases, a sufficient ground for setting aside a verdict, and granting a new trial; and although their misconduct may subject them to punishment, yet if there do not appear to have been any abuse, the verdict will not be set aside. Thus, though after a jury have retired to deliberate on their verdict, it is irregular for them to separate, yet this circumstance alone is not suf cient to invalidate their verdict. But if there be a probability, or even the slightest suspicion of abuse, the verdict will be set aside. Where the jury procured their separation, by pretending to the constable, that they had agreed upon a sealed verdict, when in truth they had not, and conversations out of doors were afterwards carried on, in presence of some of them, relative to the suit, by persons not on the jury, and on assembling, they were sent out again, though objected to by the plaintiff, and they then returned. with a verdict for the defendant, -it was set aside; Ex parte Hill, 3 Cowen. Rep. 355. Horton v. Hill, 2 Cowen. Rep. 589. Burrill v. Phillips, 1 Gal. Rep. 360. Ibid. Oliver v. Trustees, &c. 5 Cowen. Rep. 283. |