11. Irregularity and Form.

When the meaning of the jury can be clearly collected from the verdict, it ought not to be set aside for irregularity or for want of form. But where the verdict is so irregular and vague as not to show the intention of the jury clearly it should be set aside and a new trial granted. ejectment cases, where the jury find for the plaintiff, it is essential that the verdict should describe the land, which the plaintiff claims, with sufficient certainty to enable possession to be delivered. Lewis v. Childers, 13 W. Va. 1.

In

M. EXCESSIVE OR INADEQUATE DAMAGES.

new trial. The appellate court can not grant a new trial without such motion in the inferior court. Riddle v. Core, 21 W. Va. 530.

A new trial for errors committed during the former trial can only be had after motion made in the trial court and overruled, as the supreme court will not ex mero motu grant a new trial. State v. Hall, 26 W. Va. 236, 237. 2. When Mction Unnecessary.

An executor having sold certain slaves which were specifically bequeathed by his testatrix, having become the purchaser himself; and, afterwards, recovered damages in an action of trespass against the sheriff

N. STATEMENT OF FACTS ON WHICH OPINION GRANTING IS BASED.

Although, in general, the inferior court need not state the facts on which they ground their opinion in granting a new trial, yet where they grant it against an established rule of practice, they ought to disclose the circumstances which induced them to depart from the rule. Boswell v. Jones, 1 Wash. 323. See also, Lomax v. Hord, 3 Hen. & M. 272, 277; Claiborne v. Henderson, 3 Hen. & M. 322, 376.

IV. The Application.

See ante, "Grounds of Motion," III. A. NECESSITY. 1. General Rule.

A new trial can only be had upon motion; as the court i not bound ex mero motu, to grant a new trial. The appellate court can not grant a new trial, without such motion in the inferior court. Humphreys v. West, 3

Rand. 516.

A new trial after a joinder in demurrer to the evidence, because the verdict is excessive, can as in other cases only be had upon motion, as the court is not bound ex mero motu to grant a

property of the specific legatee, in whose possession they were found; a court of equity will require an account of his administration, to ascertain whether the sale, at which he was himself the purchaser, was necessary for

the payment of debts, or not; and, even if the sale and purchase by himself be justified by the result of the investigation, will grant a new trial of the issue in the action of trespass; though no motion to that effect was made at law. Anderson v. Fox, 2 Hen. & M. 245.

Error in Pleadings-No Motion Necessary. Where there is error in the declaration, pleadings, or judgment, committed against the protest, or over the demurrer or other objection, of a party, the same may be reviewed and corrected in the appellate court, although no motion has been made for a new trial in the court below, and no exception was reserved by bill of exception or otherwise. Spence v. Robinson, 35 W. Va. 313, 13 S. E. 1004. B. TO WHOM APPLICATION MADE.

1. Former Doctrine.

"A motion for a new trial upon the ground of misdirection of the judge at nisi prius is never made to the same judge, but to the court of Kings Bench. To make the motion to the same judge

who gave the direction is certainly irregular, and improper. The exception ought to have been stated to the direction itself." Johnson v. Macon, 1 Wash. 4.

In Newberry v. Williams, 89 Va. 298, 299, 15 S. E. 865, it is said: In Johnson v. Macon, 1 Wash. 4, Pendleton, P., expressed the opinion that a motion for a new trial, on the ground of misdirection, is never made to the trial court, but always to a higher court; and that it was certaintly irregular and improper to make the motion to the same judge who gave the direction. This view, however, was disapproved in Guerrant v. Tinder, Gilmer 36, as being altogether too narrow.

2. Motion in Trial Court.

It was never necessary for a motion for a new trial to be made in the trial court in order to have a judgment on a demurrer to evidence reviewed in the appellate court. Norfolk, etc., R. Co. v. Dunnaway, 93 Va. 29, 24 S. E. 698; Green v. Judith, 5 Rand. 1; Briggs. Hall, 4 Leigh 484; Western Union Tel. Co. v. Virginia Paper Co., 87 Va. 418, 12 S. E. 755; Humphreys v. West, 3 Rand. 516. The case of Richmond, etc., R. Co. v. Scott, 1 Va. Dec. 871, holding the contrary, is overruled in Norfolk, etc., R. Co. v. Dunnaway, 93 Va. 29, 24 S. E. 698, and in Fidelity, etc., Co. v. Chambers, 93 Va. 138, 24 S. E. 896.

But in all other cases the Virginia courts formerly held, and the West Virginia courts still hold, that unless the record show that a motion was made for a new trial in the court below and was overruled, and that such action of the court was excepted to, the appellate court can not review the judgment complained of. Newberry v. Williams, 89 Va. 298, 15 S. E. 865; State Phares, 24 W. Va. 657; Brown 7. Brown, 29 W. Va. 777, 2 S. E. 808; Danks v. Rodeheaver, 26 W. Va. 274; Sammons v. Hawvers, 25 W. Va. 678; Bridgewater v. Allemong, 93 Va. 542, 25 S. E. 595.

The power of the trial court to grant a new trial is now, and since the year 1850 has been, settled in Virginia by statute. Va. Code, 1887, § 3392. And, before the decision in Guerrant v. Tin

der, Judge Pendleton himself seems to have abandoned the position taken in Johnson v. Macon, 1 Wash. 4, in his opinion in Power v. Finnie, 4 Call 411. It is competent for a subsequent judge to hear and determine a motion to set aside a verdict of a jury and grant a new trial, where such motion was made before a preceding judge and left undetermined, but in doing so, he must act upon the evidence upon which What that the verdict was founded. evidence was before the jury may be ascertained by the notes of the judge who presided at the trial, by his affidavit thereof, by a re-examination of the witnesses, by the affidavits of counsel in the cause, or of others, who heard and remembered it, or by any other mode that may be lawful as in the proof of any other fact. Ott v. McHenry, 2 W. Va. 73.

By Acts of Virginia 1897-98, p. 704 (Pollard's Suppl., § 3385a), the doctrine of Newberry v. Williams, 89 Va. 298, 15 S. E. 865, is abrogated, it being declared: "The failure to make a motion for a new trial in any case in which an appeal, writ of error, or supersedeas lies to a higher court shall not be deemed a waiver of any objection made during the trial, if such objection be properly made a part of the record."

It is unnecessary to make a motion. for a new trial in the trial court in order to have the judgment reviewed on appeal, where the whole matter of law and fact is submitted to and determined by the trial court without the intervention of a jury. Citizens' Nat. Bank v. Walton, 96 Va. 435, 31 S. E. 890.

Motion for First Time on Appeal Because of Irregularity in Swearing.— Where the record states that the jury was sworn according to law and the

Ross, 100 Va. 275, 40 S. E. 922. D. DISCRETION OF COURT.

12 W. Va. 502. C. FORM.

Motion Must Specify Grounds.-A motion to set aside the verdict and grant a new trial must specify grounds. Where the record states that it is because improper evidence was admitted, it is too general. Hughes v. Frum, 41 W. Va. 445, 23 S. E. 604.

A motion for a new trial should indicate, in a way sufficient to call the attention of the court to them, the grounds for such new trial, unless the point has been made the subject of a bill of exceptions. Where it is claimed that evidence is improperly admitted, and an exception noted, but no bill of exceptions taken, and the record states that the motion for a new trial was based on certain specific grounds, not naming the admission of such evidence, that exception will not be considered in the appellate court, but will be treated as waived. Gregory v. Ohio River R. Co., 37 W. Va. 606, 16 S. E.

819.

But when a motion is made before a court to set aside a verdict and grant a new trial, and the counsel puts his motion on a particular ground, the court is not confined to the ground upon which the motion is based, but if it sets the verdict aside for any sufficient reason, there is no error in so doing. Shrewsbury v. Miller, 10 W. Va. 115.

A motion to set aside a verdict because contrary to the evidence should be granted where the damages allowed by the verdict are substantially in excess of the amount warranted by the evidence although the motion does not in terms ask that the verdict be set aside because the damages allowed are

Motion Is Addressed to Discretion of Court.-A motion for a new trial is always addressed to the discretion of the court. This is not an arbitrary but

a sound and rational discretion which must be exercised in a prudent and reasonable manner. What constitutes a prudent exercise of this discretion it is often very difficult to determine, and each case must be decided with reference to its own particular facts. The rule which exacts from litigants a reasonable degree of diligence and promptness is the better one and is founded in obvious reason and policy. Tefft v. Marsh, 1 W. Va. 38; Maupin v. Ins. Co., 53 W. Va. 557, 569, 45 S. E. 1003; Nicholas v. Com., 91 Va. 741, 21 S. E. 364

E. TIME OF MAKING APPLICATION.

If the defendant's counsel means to move for a new trial, because the finding of the jury is contrary to the evidence, he is not bound to do it at the time the verdict is rendered, but may postpone it to another day of the term. And if one of the justices who tried the cause does not attend on the day of the motion, so that a quorum can not be had to decide upon it, that will be ground for relief in a court of equity. Foushee v. Lea, 4 Call 279.

A new trial ought not to be granted (at a term subsequent to that, at which a special verdict was rendered), on the ground of an affidavit of a witness, who had been examined before the jury, stating that they had not found certain facts conformably to the testimony which he gave, or that their verdict was in other respects contrary to evidence. Kinney v. Beverley, 2 Hen. &

M. 318.

F. WHO MAY MAKE APPLICATION.

Citizens and Taxpayers Not Parties to Action.-There is no right in citizens

Motion by One of Several Defendants. Where, upon an indictment against two, one is found guilty and the other acquitted, a new trial can not be awarded as to both parties upon a motion of the convicted defendant, as this would be putting the other defendant twice in jeopardy for the same of fence. Boswell v. Jones, 1 Wash. 323. It is well settled, however, that in such case a new trial may be granted on the otion of the party convicted as to him only. Kemp v. Com., 18 Gratt. 969; Guerrant v. Tinder, Gilmer 36; Tracy . Cloyd, 10 W. Va. 19.

In trespass against two, if one be found guilty, and the other be acquitted, a new trial can not be awarded on the motion of the convicted defendant. Boswell v. Jones, 1 Wash. 323.

Motion by Both Defendants.—In an action of trover and conversion against two, where the defendants appear and ile a plea of not guilty upon which issue is joined, the jury may acquit one and find the other guilty. And if the jury find both of them guilty, by a joint verdict, and a motion is made by the defendants to set aside such verdict and grant a new trial, it is competent and proper for the court to grant the motion, if it is clearly of the opinion that there was no evidence against one of the defendants. Cloyd, 10 W. Va. 19.

Tracy

a new trial is made and overruled. Hooker v. Com., 13 Gratt. 763. But if in his absence a motion for a new trial is made and overruled, and afterwards during the same term, in his presence, the overruling is withdrawn, and he is invited to renew the motion, which invitation is refused, the irregularity is thereby cured. Boswell v. Com., 20 Gratt. 860, 865; Bond v. Com., 83 Va. 581, 3 S. E. 149.

If the record shows that a prisoner was present in court when a motion for a new trial was made, the presumption is that he remained until the court adjourned for the day, unless the contrary is made to appear either directly or by necessary inference. When once shown to have been present, it is not necessary to show that he was remanded to jail at the conclusion of the proceedings for the day, though it usually so appears. Williams v. Com., 93 Va. 769, 25 S. E. 659.

H. EVIDENCE TO SUPPORT MOTION.

Motion Should Rest on Evidence Ac

tually Given in at Trial.-A motion for a new trial on the ground that the verdict is contrary to the evidence, ought to rest on the evidence actually given in at the trial, exclusive of all other. Affidavits taken ex parte should not be heard on such motion. Street v. St. Clair, 6 Munf. 457, 467.

Irrelevant Evidence.-Upon a motion for a new trial in a condemnation case, as in any other case, evidence that is not revelant to any issue before the jury will not be considered by the court. Baltimore, etc., R. Co. v. Pitts

E.

14 Gratt. 613; Howard v. McCall, 21 Gratt. 212; Read v. Com., 22 Gratt. 949; Danville Bank v. Waddill, 31 Gratt. 483; Moses v. Cromwell, 78 Va. 676; Taylor v. Com., 90 Va. 117, 17 S. E. 812; Vanmeter v. Kitzmiller, 5 W. Va. 380; State v. Cartright, 20 W. Va. 43; Probst v. Braeunlich, 24 W. Va. 359; Elam Commercial Bank, 86 Va. 92, 9 S. 498; State v. Cobbs, 40 W. Va. 718, 22 S. E. 310; Chesapeake, etc., R. Co. v. Patton, 9 W. Va. 648; Lewis v. McMullin, 5 W. Va. 582; Thomas v. Jones, 28 Gratt. 383; Steptoe v. Flood, 31 Gratt. 323; Thompson V. Com., 8 Gratt. 641; Read v. Com., 22 Gratt. 947; Shobe v. Bell, 1 Rand. 39; State v. Robinson, 20 W. Va. 713; Reynolds v. Tompkins, 23 W. Va. 229; State v. Cartright, 20 W. Va. 33; Street 2. Broaddus, 96 Va. 823, 32 S. E. 466; Price v. Warren, 1 Hen. & M. 386; Bartlett v. Patton, 33 W. Va. 71, 10 S. E. 21; Graham V. Citizens' Nat. Bank, 45 W. Va. 701, 32 S. E. 245; Cochran v. Street, 1 Wash. 79.

Buchanan v. Reynolds, 4 W. Va. 681, was a case in which there was no error in overruling a motion for a new trial based upon the affidavits of three of the jurors, as the grounds alleged in the affidavits were insufficient; they related to the view the jury had taken of the evidence in the case.

But in Hague v. Stratton, 4 Call 84, a new trial was granted, because one of the jurors declared he had misunderstood the testimony, and its appli cation to the law.

A verdict will not be set aside and a new trial awarded, on the affidavit of one of the jury made after the verdict was rendered, that he did not consent to it. Thomas v. Jones, 28 Gratt.

383.

It is not good grounds for the setting aside of a verdict on the affidavit of a juror, that the jury would have found a different verdict if they had believed that at the time certain declarations were made to witnesses, by

10 Va-30

an old man, as to the location of a corner, that the old man was of sane mind and reasonable judgment. Lewis v. McMullin, 5 W. Va. 582.

In Steptoe v. Flood, 31 Gratt. 323, the court would not set aside the verdict of the jury on the certificate or affidavit of two of the jurors, that they thought the receipt proved and ought to be considered; but the other members of the jury insisted that the receipt had nothing to do with the case, and they were persuaded against their judgment to consent to the verdict, and that it was now against their judg

ment.

It is the general rule in ordinary trials that a verdict will not be disturbed upon the affidavits of jurors; and this is so in the case of an issue out of chancery especially. Steptoe v. Flood, 31 Gratt. 323. See generally, the title ISSUES TO THE JURY, vol. 8, p. 43.

Testimony of Jurors Is Admissible to Sustain Verdict. The testimony of jurors may be received to disprove or explain a separation, misconduct, or irregularity, but their testimony will not be received to show the motive by which they were actuated, or that any admitted fact, misconduct, or irregularity had no influence or effect upon their minds in producing the verdict. And in all cases, even when such testimony is proper, it should be received with great caution. State v. Harrison, 36 W. Va. 729, 15 S. E. 982. Graham v. Citizens' Nat. Bank, 45 W. Va. 701, 32 S. E. 245.

Affidavits of Newly-Discovered Evidence-Counter Affidavits. Application for new trials are addressed to the sound discretion of the court, and are based on the ground that there has not been a fair trial on the merits. Where the application is based on the ground of newly-discovered evidence, supported by affidavits, counter affidavits may be received to show that the alleged ground for the new trial does not