No. 3274. Book 4, tit. 8, chap. 12, sec. 1, § 1, art. 1, 2. No. 3276. These reasons may be classed as follows: 1, matters which arose before or in the course of the trial; 2, the acts of the prevailing party; 3, the misconduct of the jury; 4, cases where the verdict is improper, because it is either against law, or against evidence; 5, the discovery of new evidence; 6, because the losing party has been taken by surprise; 7, because the damages are excessive; 8, because the damages are inadequate; 9, because the witness has since been convicted of perjury. §1.-For matters which arose before, or in the course of the trial.] 3274. These are, 1, want of notice; 2, the irregular impanelling of the jury; 3, the admission of illegal, or the rejection of legal evidence; 4, the misdirection of the judge. Art. 1.-Of want of notice. 3275. The most obvious principles of justice require that a man should have a right to defend himself, when attacked; that he should be allowed to explain his conduct when it is alleged he has violated the law, either by not fulfilling his legal engagements, or because he has committed a wrong, tort, or injury to another. Justice, therefore, requires that the defendant should have a sufficient notice of the time and place of trial; and the want of it, unless it has been waived by an appearance and making defence, will, in general, be sufficient to entitle the defendant to a new trial.(a) But the insufficiency of the notice must have been calculated reasonably to mislead the defendant. Art. 2.-Of the irregular impanelling of the jury. 3276. The selection of a jury should be fairly made. (a) Bull. N. P. 327; Attorney General v. Stevens & Prall, 3 Price, 72; 3 Dougl. 402; 1 Wend, 22. See Jamieson v. Pomeroy, 9 Penn. St. Rep. No. 3277. Book 4, tit. 8, chap. 12, sec. 1, § 1, art. 3. No. 3277. If there should be any fraud, by any of the officers to whom this service has been confided by law; as if a clerk in calling the names of the jurors, instead of calling the name of the person drawn, should substitute that of a friend of one of the parties in the cause; or, if no unfairness of this kind should occur, a person not qualified, as an infant or alien, should be put on the jury;(a) or if a person not regularly summoned and returned, should personate another, and serve on the jury;(b) or if a juror who was on a first trial is put on a second trial, and the fact is not known to the party until the second verdict is rendered; (c) all these are sufficient for granting a new trial. Art. 3.-Of the admission of illegal and the rejection of legal evidence. 3277. When, in the hurry of a jury trial, the judge through inadvertence or mistake admits improper evidence, or rejects that which is legal, the court will, on a motion for a new trial, grant it, and set aside a verdict which has been obtained through this mistake, and the complaining party will not be sent to a court of error for redress. But a new trial will not be granted for the rejection of a witness on the supposed ground of incompetency, when another witness establishes the same fact, and it is not disputed on the other side.(d) (a) Stainton v. Beadle, 4 T. R. 473. (b) Norman v. Beaumont, Willes, 484; S. C. Barnes, 453. In Pennsylvania, by going on to trial the defect will be cured in both criminal and civil cases. But in Massachusetts, a new trial will not be granted because one of the jurors had not been drawn and returned according to law, if the objection be not made till after verdict; nor, in a capital case, because the juror belonged to another county. Armstead v. Hadley, 1 Pick. 38. A new trial will not be granted in Kentucky because a juror was an alien, though it was unknown to the party and his counsel till after verdict. Presbury v. The State, 9 Dana, 203; nor, in Tennessee, on the ground of the incompetency of the juror. Booby v. The State, 4 Yerg. 111. And if known at the time of trial, it is no valid objection in Missouri. Lisle v. The State, 6 Mis. 426. (c) Herndon v. Bradshaw, 4 Bibb. 45; Craig v. Elliot, 4 Bibb. 272. (d) 2 East, R. 451. No. 3278. Book 4, tit. 8, chap. 12, sec. 1, § 1, art. 4. Art. 4.-Of the misdirection of the judge. No. 3279. 3278. A new trial will be granted for any misdirection of the judge, when such misdirection has caused, or is likely to cause injustice and an injury to the party against whom the verdict has been rendered; for when no injustice has been done, and a new trial would be likely to produce the same result, it will not be granted. Such misdirection relates either to matter of law, or to matter of fact. 3279.-1. When the judge at the trial misdirects the jury on matter of law, material to the issue, whatever may be the nature of the case, the verdict will be set aside and a new trial granted, if such misdirection or instruction may have influenced their verdict, (a) But an erroneous opinion upon an abstract question of law, expressed by the judge in charging the jury, which is not involved in the decision of the case, is not a ground for reversing the judgment, or for granting a new trial; (b) nor will a new trial be granted for misdirection, where entire justice has been done.(c) A new trial will be granted, if it appear that the charge of the presiding judge took from the jury a matter of fact in controversy between the parties; (d) or where the opening and closing of the argument before the jury, which belonged to the defendant and was claimed by him, was assigned to the plaintiff.(e) If the judge refuse or neglect to charge the jury, upon a material point, when requested by the counsel against whom a verdict has been rendered, if the verdict was so rendered for want of such instruction, (a) Lane v. Crombie, 12 Pick. 177; Hoyt v. Dimon, 5 Day 479; Doe v. Paine, 4 Hawkes, 64; West v. Anderson, 9 Conn. 107. (b) Reed v. McGrew, 5 Ham. 375; Jordan v. James, 5 Ham. 88. (c) Johnson v. Blackman, 11 Conn. 342. (d) United States v. Tillotson, 12 Wheat. 180. (e) Davis v. Mason, 4 Pick. 156. No. 3280. Book 4, tit 8, chap. 12, sec. 1, § 2. No. 3281. a new trial will be granted ; (a) but a new trial will not be granted where the judge simply neglected to charge the jury upon a point, when his attention was not drawn to it.(b) When the issue consists of a mixed question of law and fact, and there is a conceded state of facts, the rest is a question of law for the court; and a misdirection in respect to such an issue will avoid the verdict.(c) 3280.-2. Misdirection of facts will, in some cases, be sufficient to vitiate the proceedings. If, for example, the judge should undertake to dictate to the jury.(d) When the judge delivers his opinion to the jury on a matter of fact, it should be delivered as mere opinion which they are at liberty to disregard, and not as instructions binding on them, (e) It may be observed as a general rule, that a new trial will not be granted on account of a misdirection, either as to law or fact, when injustice has not been done, and the verdict has not prejudiced the complaining party.(f) § 2. When a new trial will be granted in consequence of the wrongful acts of the successful party. 3281. If the prevailing party, his agent, or attorney, has been guilty of any act of impropriety, by which the jury have been induced to give a verdict against the other party, this will be sufficient ground for granting a new trial; and in many cases evils arise (a) Den v. Sinnickson, 4 Halst. 149; Coleman v. Roberts, 1 Mis. 97. But the court may refuse to instruct upon a point upon which no evidence was adduced. Freeman v. Edmunds, 3 Hawke, 5. (b) Alsop v. Swathel, 7 Conn. 500. (c) Diover v. Gunton, 2 Wend. 596. (e) Trotter v. Saunders, 7 J. J. Marsh, 321; Dallam v. Handley, 2 A. K. Marsh, 418; 12 John. 513. (f) Mansfield v. Wheeler, 23 Wend. 79; Price v. Evans, 4 B. Munroe, 386; Selleck v. Turnpike Co., 13 Conn. 453. No. 3281. Book 4, tit. 8, chap. 12, sec. 1, § 2. No. 3281. and injury is sustained by the losing party, when it might be very difficult to prove the injury; the courts, therefore, look with jealous eyes over such acts. Still, it is not easy to say what acts will be sufficient to authorize the court to grant a new trial. The following, of many examples, will suffice to show the nature of these wrongful acts; as when a paper, not before submitted to the court, is surreptitiously handed to the jury, being material on the point in issue,(a) unless it appears that they have not looked into it.(b) So, if he have labored the jury, or used improper influence with them, or procured another to do so, to induce them to give a verdict in his favor, a new trial will be granted. (c) And even when handbills reflecting upon the plaintiff's character were distributed in court and shown to the jury on the day of trial, a verdict against him was set aside, upon application, and a new trial granted, although the defendant, by his affidavit, denied all knowledge of the handbills.(d) But if the other party is aware of such attempts, it is his duty to apply for their correction, and his neglect so to do, when in his power, will deprive him of the equity he had to claim a new trial; he must be supposed to have acquiesced in them. When indirect measures have been resorted to, in order to prejudice the jury,(e) or tricks practised,(f) or unlawful attempts to suppress or stifle evidence, or thwart the proceedings, or to obtain an unconscionable advantage, or to mislead the court and jury, they will be defeated by granting a new trial.(g) (a) Co. Litt. 227 b. (b) Hakley v. Hastie, 3 John. 252. (c) Knight v. Freeport, 13 Mass. 218; Blaine's Lessee v. Chambers, 1 S. & R. 169. (d) Coster v. Merest, 3 Br. & Bing. 272. (e) 3 Br. & Bing. 272. (f) 11 Mod. 141. (g) Grah. N. T. 56; 4 Chit. Gen. Pr. 59. |