cted, the iwas discred evidence of the said John's infidelity was not known to the demandant until after the trial. nohrt will not grant a Per Cur. ew trial on covered fur ther evi dence of his dit. Parsons, C. J. The judge, before whom the cause he ground was tried, has reported the evidence, and his direction to the juthat the par ty has since ry. It appears from his report, that Fanning was a witness for the trial dis the tenant, and that he was discredited, as far as a witness could be by proof, of his having an extremely bad character. It is want of ere not suggested by the demandant, that he was surprised by Fanning's testimony. On the contrary, he came prepared to discredit him, which he effectually did in the opinion of the judge. To grant a new trial, to give further opportunity to discredit a witness, whose testimony was not unexpected, and who had in fact been discredited, would be unprecedented, and productive of mischievious consequences. We cannot, therefore, grant a new trial on the second ground on which it is moved. Where evi dence which may impro perly influ VII. FOR THE ADMISSION OF IMPROPER TESTI MONY. 1. STRONG AND MANNING V. WHITEHEAD, May T. 1834, 12 Wendell's N. Y. Rep. 64. Whitehead sued Strong and Manning for false imprisonment. On the trial, the attorney of Whitehead testified, that he actence the ver ed as the attorney and counsel of Whitehead, and that he condict, is al lowed to be sidered his services, upon that occasion, worth $130. This evidence was objected to, because no special damage was alleged in the declaration, but the presiding judge admitted the evidence, and the defendants excepted. given, a new trial will be granted. But a new trial will ed for the Per Cur. Savage, C. J. It is wrong to permit any evidence to be given to a jury, but such as may properly influence their verdict. The admission of that objected to, in this case, was an infringement of this rule. Judgment reversed, and venire de novo. 2. HAMBLETT V. HAMBLETT, Dec. T. 1833, 6 N. Hamp. Rep. p. 333, 342. Per Cur. Parker, J. It is well settled, that the admission not be grant of immaterial evidence furnishes no ground for a new trial; Jewett v. Stevens, 6 New Hamp. Rep. 80; 4 ib 69, Wiggin v. of immateri Damrell; 9 Pick. 176, Prince v. Shepherd; 6 Cow. 445, Norris al evidence. admission v. Badger. 3. A new trial will not be granted on the ground mented on sion was WAIT V. MAXWELL, Sept. T. 1827, 5 Pick. Mass. Rep. 217. Per Cur. Parker, C. J. A new trial is not necessarily to be granted, because evidence has been introduced into a cause, which, if liable to objection, ought upon motion to have been that improp rejected, not even if such evidence is commented upon by the was admit judge; for it sometimes happens, that evidence, which would be ted and com inadmissible if objected to, is admitted by consent; and if the by the judge is not called upon to decide on its competency, it ought to judge, if no objection to be considered as tacitly assented to. If this were not the rule, its admis it would be in the power of parties to put the adversary to ex- made at the pense and delay, by trying the chance of a verdict in their fa- trial. vor, and if they fail, of obtaining a new trial; which would be injurious to the rights of the party gaining the verdict. Besides, if the evidence offered is objected to, it may be supplied by other evidence, or the party who offers it, may abandon his cause in that stage of the proceedings, without incurring additional expense. It should be understood, therefore, that unless the court is moved for the rejection of the evidence, it must be considered that all objections are waived, and that no relief can be had after the verdict, on the ground of the incompetency or informality of the evidence. And the same rule will be observed, in relation to the charge of the judge respecting such evidence, if he is not specially asked to consider it as not belonging to the case, on account of inadvertency in the counsel in suffering it to pass without objection. 4. HIX V. DRURY, Oct. T. 1827, 5 Pick. Mass. Rep. 296, 301. S. delivered to Motion for a new trial, because depositions containing material Ifa paper evidence, which were not used on trial, were delivered to the ju- the jury by ry, by the plaintiff's counsel. accident is not read by nishes no Per Cur. It appears that the two depositions went to the jury them, it fur by accident. It likewise appears by the answers of eleven of the jurors, who were questioned in court, that the depositions new trial. were not read by them, and the remaining juror has made affidavit, that they were not read by him, nor by any other juror in his presence. We think it is sufficiently proved, that they were not read, and that although the eleven jurors were not sworn to testify, yet that by their oath, to give a true verdict, they were as much bound to make true answers in court touching their verdict, as if they had been sworn specifically for that purpose. These papers, then, having gone to the jury by accident, and not having been read by them, the question is, whether there shall be a new trial. We are all of opinion, that if a paper not in evidence is delivered to the jury by design, by the party in whose favor the verdict is returned, the verdict shall be set aside, even if the paper is immaterial; and this as a proper punishment for the party's misconduct. But that is not the present case. So, where a paper, which is capable of influencing the jury on the side of the prevailing party, goes to the jury by accident, and is read by them, the verdict will be set aside, although the jury may think that they were not influenced by such paper; for it is impossible for them to say what effect it may have had on their minds. But where a paper, which might influence the jury, is not read, it is the same thing as if it had not been delivered to them. The verdict, therefore, is not liable to objection on this ground. But where a material read in evi 5. WHITNEY V. WHITMAN, Sept. T. 1809, 5 Mass. Rep. 405. In this action, after the parties were heard, and the judge had paper not summed up the evidence, and given the jury the necessary didence, had rections in matters of law, when the papers were delivered to been given to the jury the jury, a material paper, not read in evidence, was delivered by mistake, to them by mistake, which was not discovered, until the jury was grant had returned into court, and delivered their verdict. The party against whom the verdict was found, now moved the court for a new trial for this cause. a new trial'. ed. On examining the paper it appeared to the court to furnish material evidence in favor of the party prevailing; but he moved the court to examine some of the jurors, to prove they were not influenced by it in finding their verdict. The other party had also summoned other jurors to prove the influence. The court refused to examine any of the jurors, and observ. ed, that the court must be governed by the tendency of the paper apparent from the face of it; that it was not pretended that the jury had not read it, and it would be difficult for jurors, where, as in this case, there was much evidence of different kinds, clearly to decide in what manner their minds were influenced in forming their verdict. As it was received by the jury among other written evidence, and read by them, it must be presumed that they considered it as evidence, and gave due weight to it. The verdict was, therefore, set aside, and a new trial granted; but without costs, as the delivery of the paper to the : jury, appeared to have been accidental, and not owing to the oblique conduct of either party. VII. FOR THE MISDIRECTION OF THE JUDGE. 1. HOLLISTER V. JOHNSON, May T. 1838, 4 Wend. N. Y. Rep. 639. Sutherland, J. delivering the opinion of the court in this case, decided, that it is erroneous in a judge to instruct a jury, that they may indulge a presumption not warranted by the evidence disclosed in the case; and granted a new trial. 2. A new tria will be gran ted if a judge in struct a ju ry that they may in dulge a pro sumption not warrant JACKSON EX DEM. SKINNER V. PACKARD, Jan. T. 1831, 6 Wend. ed by the N. Y. Rep. 415. evidence in the case. this A new trial One of the grounds on which a motion for a new trial in case, was founded, was, because the judge remarked to the jury that the different relations given of a transaction by a witness, and the discrepancy between his testimony and former statements, seemed naturally enough accounted for. will not be granted be cause a judge ex presses an opinion in his charge crepancy be Per Cur. Sutherland, J. The observation of the judge, that to the jury, the discrepancy between the testimony of Baker, and his former that a dis statement, seemed naturally enough accounted for, can hardly tween the testimony be considered a misdirection. It was nothing more than the ex- of a witness pression of the opinion of the judge, upon that point; but it in and his for no respect assumed to take from the jury the right to judge for ments scem themselves upon this matter. New trial denied. mer state ed natural ly enough accounted for. 3. Carolina REEL V. REEL, June T. 1822, 2 Hawk's N. Ca. Rep. 85. Per Cur. Taylor, C. J. This is a motion for a new trial, on In North the ground, that the court intimated its opinion to the jury, of the judge is the matter in issue. The act of assembly, relative to the duty of restrained by legisla a judge in charging, forbids him to give an opinion whether a tive enact fact is fully, or sufficiently proved, such matter being the true of intimating fice and province of a jury. It is not for this court to discuss to the jury his opinion the wisdom or expediency of this law, or to pervert its true con- on the evi struction, under a belief that no mischief can be produced there- dence. by, or even that justice can be more substantially administered. New trial awarded. ment from In an action on the case 4. MORTON V. FAIRBANKS, Sept. T. 1831, 11 Pick. Mass. Rep. P. 368. This was an action on the case for a fraud, in the performfor fraud in ance of a special contract, for the manufacture of a certain quanmaking tity of shingles. shingles, a parcel of the shing les were to court, and the judge hav ing decided, on inspec tion, that they were Among other evidence introduced by the plaintiff, to show a fraud in the manufacture and 'packing of the shingles, a brought in trunk full of what was alleged by the defendant to be shingles, was brought into court, and exhibited to the court and jury. These were proved to have been taken out of the bunches of shingles made by the defendant for the plaintiff. Upon inspection of them, the court considered that they could in no sense be not shingles deemed shingles; that no prudent person would ever think of chips,a new using them as shingles, upon any building; that they were mere trial grant chips. The defendant contended, that it was the province of this was a the jury and not of the court, to determine the nature of the fact which things brought into court in the trunk, and whether they were should have or were not to be considered as shingles. But the judge ruled, the jury to that as it was apparent by inspection that they were not shingles, determine. and there was no doubt about it, it was proper that the court should decide the question. but mere ed, because question of been left to Where the charge of a judge has a Verdict for the plaintiff, and motion for a new trial. Per Cur. The second exception relates to the decision of the judge, that the articles brought into court, were not shingles. The defendant contended, that whether they were shingles or not, was a question of fact for the jury, and that his rights were not to be affected by the circumstance of the evidence being more or less strong on that question; but it was ruled, that as the point was clear upon inspection, it was to be decided by the court. As the jury would have the whole case before them, this may seem to be a speculative objection; but we think that in strictness, the point thus decided was a question of fact, and the jury may have been unduly influenced, for they may have considered themselves not at liberty to find contrary to the decision of the court. New trial granted. 5. BENHAM V. CARY, Oct. T. 1833, 11 Wend. N. Y. Rep. 83. tendency to Per Cur. Sutherland, J. The charge of the judge also was make an er calculated to make an erroneous impression upon the jury, and pression up to mislead them in their views of the case. roneous im on a jury. Judgment reversed, and venire de novo. |