and the court remarked, that here was not only suspicion of abuse, but that the circumstances of the case, in themselves, amounted to positive abuse.'

But a verdict will not be set aside for irregularity or misconduct, where the jury have separated, after having agreed to a sealed verdict, and on coming into court, one of the jurors dissents from it, who subsequently, on the jury being sent out again, agrees to the verdict as originally rendered; there being no evidence or suspicion of abuse."

Where a jury examined a witness, after retiring from the court, though he was examined before them in court, and his testimony was the same, a new trial was granted.s

It is not a sufficient cause for setting aside a verdict, and granting a new trial, that one of the jurors, as to whose personal qualifications no objection exists, had not been drawn and returned according to law, if the objection be not made until after verdict. So, if a person be returned as a juror de talibus circumstantibus, for the trial of one cause, and be afterwards empaneled on the trial of another, without being specially returned therefor, unless the objection be made before verdict, it will furnish no ground for a new trial.5

If a juror be objected to at the time of trial, and the fact on which the objection is founded, be inquired into, according to the course directed by the statute, and he be thereupon adjudged to stand indifferent in

1

Seymour v. Deyo, 5 Cowen. Rep. 283. 1 Paine. & D. Pract. 550.

2 Ibid. Douglass v. Tousey, 2 Wendell. Rep. 352.

37 Bac. Abr. Verdict II. Cro. E. 411. Pleader S. 45.

Bul. N. P. 308. Com. Dig.

* Amherst v. Hadley, 1 Pick. Rep. 38. Dovey v. Hobson, 6 Taunt. Rep. 460.

the cause, the same objection cannot be afterwards made to the verdict, as a cause for a new trial, especially if it appear, that justice has been done between the parties.'

Nor will a new trial be granted, on the ground that a juror sat in the trial, as to whom there existed a good cause of challenge, but of which the party neglected to avail himself, when the jury was empaneled.2 But if the party objecting, had examined the juror upon the voir dire, and failed to discover the fact, which would have disqualified him, a new trial might be granted, if it were afterwards discovered that he did not stand indifferent in the cause."

The affidavits of jurors themselves, will never be received, to prove or rebut the presumption of any impropriety or misconduct on their part, relating to the trial or verdict.*

So, if a juror, through a mistake of his duty, agree to a verdict contrary to his own opinion, because he believes that the opinion of the majority must govern, his affidavit to prove the fact, will not be received.5

SECT. III.

EXCESSIVE, OR TOO SMALL DAMAGES.

A new trial may be granted, for excessive or too small damages, where the law has fixed some settled

4 Vaise v. Delaval, 1 Term. Rep. 11. Coster v. Merest, 3 Brod. & B. Grinnell v. Phillips, 1 Mass. Rep. 542. Claggage v. Swan,

Rep. 272.

4 Bin. Rep. 150.

1 Stra. Rep. 643.

2 Dall. Rep. 55.

Brooke v. White, 4 Bos. & Pul. Rep. 330. Vide Say. 100. Smith v. Cheetham, 3 Caines' Rep. 57. Burr. Rep. 1696, 2686.

Commonwealth v. Drew et al. 4 Mass. Rep. 391.

rate, by which the jury are to be governed in assessing them; and for excessive damages likewise, where they are so exorbitant, that though they depend upon opinion merely, the court may reasonably presume that the jury, in assessing them, did not exercise a sound discretion, but were influenced by passion, prejudice, partiality, or corruption, causes which naturally produce error and injustice.

The damages, however, must be clearly excessive, and such as every body would cry out against, and not merely a sum larger than the judge, who presided at the trial, would have given.'

In the case of Hewlett v. Cruchley,2 Mansfield C. J. says, "as to that, it is extremely difficult to estimate damages; you may take twenty juries, and every one of them will differ, from two thousand down to two hundred pounds. I always have felt, that it is extremely difficult to interfere, and say when damages are too large. Nevertheless, it is now well acknowledged, in all the courts of Westminster Hall, that, whether in actions for criminal conversation, malicious prosecutions, words, or any other matter, if the damages are clearly too large, the courts will send the inquiry to another jury. There are some damages so large, that it is impossible but that every man must acknowledge that they are too large. But in every case, where courts interfere, they always go into all

1 Vide Stra. Rep. 692. Burr. Rep. 609, 1846. 2 Wils. Rep. 160, 205, 244, 248, 252, 405. 3 Wils. Rep. 18, 62. Gilbert v. Burtenshaw, Cowp. Rep. 230. Ducker v. Wood, 1 Term. Rep. 277. Duberley v. Gunning, 4 Term. Rep. 651. Jones v. Sparrow, 5 Term. Rep. 257. Pleydell v. Dorchester, 7 Term. Rep. 529. Dunham et al. v. Baxter, 4 Mass. Rep. 79. Clark v. Binney, 2 Pick. Rep. 113. Bodwell v. Osgood, 3 Pick. Rep. 379. Shute v. Barrett, 7 Pick. Rep. 82.

25 Taunt. Rep. 277.

the circumstances of the plaintiff and defendant, and put themselves in their situation, and enter into all their conduct."

New trials are but seldom granted in such cases, on account of the smallness of the damages, although it is sometimes done, when the case can be brought within the spirit of either of the rules before laid down.1

SECT. IV. VERDICTS AGAINST LAW OR EVIDENCE.

3

A new trial will be granted, where the verdict is against the law,2- against the evidence, or manifestly against the weight of evidence.

But a new trial will not be granted, where there is much conflicting testimony on both sides, which cannot be reconciled, unless it appear that the testimony was not duly weighed by the jury, in giving their verdict. A difference of opinion between the court and jury, as to the conclusions to be drawn from the evidence, or as to the credit due to the witnesses, is not a sufficient ground for granting a new trial. And in all cases where the evidence is doubtful, or in equilibrio, regard should be paid by the court, to the finding of the jury, for it is their province, to find a verdict upon the testimony. The decision ought perhaps to be so manifestly wrong, as to satisfy the court, that the jury could not have understood the case rightly, - or considered it

1

1 2 Salk. 647. Stra. Rep. 940, 1051.

2 Dillingham v. Snow et al. 5 Mass. Rep. 547. 3 Hammond v. Wadhams, 5 Mass. Rep. 353. Rep. 261. Hoyt v. Gilman, 8 Mass. Rep. 336. 13 Mass. Rep. 507.

4

* Bright v. Eynon, 1 Burr. Rep. 390.

Wait v. McNeil, 7 Mass.

Curtis et al. v. Jackson,

properly, -or that they were under the influence of improper motives, before they should set aside the verdict, as being against the evidence.'

A new trial will not be granted, on the ground that the verdict is against evidence, although it be given against the positive testimony of a witness unimpeached, if there be circumstances discrediting such testimony, growing out of the facts in the case, or in the connexion of the witness with the cause or the parties;— nor where there is an entire absence of direct proof, and presumptions alone are relied on to establish the necessary facts; -nor in a penal action, unless some rule of law has been violated;-nor in a hard or trifling case, after a verdict for the defendant."

A new trial will not be granted, after a verdict for the plaintiff, where the defence is unconscionable, and the verdict is according to the justice and honesty of the case, though it may be against the weight of evidence.5

If a second jury return a verdict similar to the first, a third trial will not often be granted, because the verdict is against the evidence.

1 Danielson v. Andrews, Worcester June T. C. C. P. 1822. and vide Swain v. Hall, 3 Wils. Rep. 45. Ward v. Center, 3 Johns. Rep. 271. Bright v. Eynon, 1 Burr. Rep. 390.

Bates v. Graves, 2 Ves. jr. 288.

2 Wait v. McNeil, 7 Mass. Rep. 261. Hall et al. v. Huse, 10 Mass. Rep. 39.

3 Blanchard v. Colburn et ux. 16 Mass. Rep. 345.

4 Jervois .. t. v. Hall, 1 Wils. Rep. 17. Fonereau v.

3

Wils. Rep. 59. Wilson v. Rastall, 4 Term. Rep. 753. Jarvis v. Hatheway, 3 Johns. Rep. 180. Hurtin v. Hopkins, 9 Johns. Rep. 36. Boyden v. Moore, 5 Mass. Rep. 365.

Wilkinson v. Payne, 4 Term. Rep. 468. Edmonson v. Machell, 2 Term. Rep. 4.

6 For the rule and its exceptions, vide Goodwin v. Rep. 2108. 1 Lev. 97. Salk. 649. 6 Mod. Rep. 22. Johns. Cas. 336.

Gibbons, 4 Burr.

Silva v. Low, 1