yet the defendant had it reversed in the district court, from which the plaintiff, in his turn, appealed. The court of appeals reversed the judgment of the district court, and affirmed the judgment below, although it was admitted, improper testimony had been offered to the jury, by the defendant below, but being for his benefit, they would not, for that reason, disturb it.

The principle of the above cases has not been recognised in the state of New-York, in express terms; although from the language of the court, in The Supervisors of Chenango, v. Birdsall,(1) it might be inferred. In that case Randall, one of the sureties of the treasurer, and a co-defendant, was called as a witness on the part of the plaintiffs. The other defendants objected to his being sworn as a witness, but the objection was overruled. In the progress of the trial, the same facts testified to by him were testified to by other witnesses, or appeared by the admissions of the defendants. A motion was made by the defendants for a new trial, on the ground of his admission. Marcy, J., delivering the opinion of the court on this point, observes" It is contended by the plaintiffs, that if Randall was improperly admitted as a witness, a new trial ought not to be granted; because the facts to which he testified were abundantly made out by other evidence in the cause." And in the sequel of his opinion, the learned judge seems to admit the force of this argument, by proceeding to show that the facts proved by Randall were in some respects material, and confined to his statement. And upon that ground, he being an incompetent witness, a new trial was awarded. But however strong the inference from the ground taken in this case might be, it would go to show merely that the rule was not fully settled, but would not overrule the express adjudication of the court in Mar

(1) 4 Wendell, 453.

quand v. Webb, and of Osgood v. The Manhattan Company.(1)

But in a recent case, Stiles v. Tilford, (2) the court seems to have adopted the principle, with little, if any, perceptible distinction, unless the one alluded to by the court, that the class of cases to which it belongs are of an anomalous character, and not reducible to the strictness of ordinary rules. It was a case of seduction. The evidence of expenses incurred, subsequent to the commencement of the suit, was received by the judge, though objected to by the defendant. The jury found a verdict for the plaintiff, for $800 damages. The defendant made a case, and also tendered a bill of exceptions, and moved for a new trial. And, per Sutherland, J., delivering the opinion of the court." The cause of action was abundantly made out, independently of the testimony objected to. The daughter says expressly that she returned to her father's house, because she was incapable of working as usual, and that after her return, she was unable to earn her subsistence as formerly. Here is express loss of service, and all this was before she arrived at the age of twenty-one. The testimony objected to was merely in aggravation of damages. The action is altogether anomalous in its character, and the ordinary rules of evidence cannot, in all their strictness, be applied to it, without defeating its essential object. No separate action could ever be maintained for the expenses and loss of service, incurred after the commencement of this suit; the objection therefore does not lie, that the defendant may be made to pay twice for the same damages. According to the strict rules of evidence, perhaps the testimony objected to was inadmissible; but I am inclined to think, we should be justified in saying, that from the nature of the action, it is to be intended that the evidence had little or

(1) Supra, p. 239.

(2) 10 Wendell, 338.

no influence on the verdict of the jury; and that a new trial ought not therefore to be granted."

2. If the judge, at the trial, exclude legal testimony on the matter in issue, the verdict will be set aside, and a new trial granted.

Thus, in Bignall v. Devnish,(1) it was held that it is a good cause of new trial, where the judge who tried the cause, has denied to admit that for evidence which was legal evidence.

In Gravenor v. Woodhouse, Thomas and wife.(2) Action in replevin, and avowries, first by W. and T. for rent due to W. and T. from plaintiff, as tenant to W. and T.: secondly, by W. and T. and his wife, in right of his wife, for rent due to W. and T. and his wife, in right of his wife, from plaintiff, as tenant to W. and T. and his wife, in right of his wife, were holden to be supported by evidence of an attornment from plaintiff to W. and T. and his wife. The avowants proved an attornment made by the plaintiff, after ejectment brought against him seven years before the commencement of the replevin suit, during which seven years it did not appear that rent had been demanded. The plaintiff offered to prove a feoffment to himself by the person under whom the avowants claimed, and certain letters from that person containing expressions adverse to the avowant's claim; which evidence having been rejected, on the ground that the plaintiff could not be permitted to dispute his tenancy after an attornment, the court granted a new trial.

In Freeman v. Arkell,(3) an action for maliciously, and without probable cause, charging the plaintiff with an assault, before a magistrate. The magistrate proved, that

(1) 6 Mod. 242.

(3) 2 Barn. & Cress. 494.

(2) 1 Bingham, 38.

the depositions taken before him were reduced to writing, and that he delivered them at the court of quarter sessions to the clerk of the peace, or his deputy. The clerk of the peace stated, that a bill of indictment for the assault was preferred, and that the grand jury returned ignoramus, and that it was usual in such case to throw away, or destroy the depositions, and that he had searched among his papers and could not find them. The judge ruled out the depositions, thinking their loss not sufficiently proved, as they had been traced to the deputy of the magistrate's clerk. Bayley, J., the other judges concurring, was of opinion, that in this case the plaintiff did enough to let in the secondary evidence, and that under these circumstances, there ought to be a new trial.

In New-York, a judgment will be reversed, or a verdict set aside and a new trial granted, if competent testimony be excluded.

In Gurnee v. Dessies,(1) on the return to the certiorari, the only error assigned was, that the justice had refused to admit the evidence of a free black man, as to facts which took place while he was a slave. The cause was submitted without argument. Per Curiam." A free black man is a competent witness to prove facts which may have happened while he was a slave. The judgment below must be reversed."

So, in Hewlett v. Cock,(2) in ejectment. The plaintiff offered to read in evidence, a lease more than thirty years old, purporting to bear date in 1722, granting to the lessee, a right to flow lands for the use of a mill, which was found among the title papers of the estate of the lessor, in 1779; and the owner of the mill, in 1810, recognised the right of the land overflowed, in the person to whom the estate of the lessor had been transmitted. The judge refused to permit the lease to be read, until he should prove a posses

(1) 1 Johns. Rep. 508.

(2) 7 Wendell, 371.

sion under it, and for defect of proof, directed a nonsuit. On motion to set aside the nonsuit, and for a new trial, after commenting upon the case at large, Nelson, J., delivering the opinion of the court, concludes" A new trial must be granted for the reasons that the judge ought to have admitted the lease in evidence, without proof of the execution of the same, on the ground of its being an ancient deed. Its great antiquity, the account given of it, together with the evidence of a corresponding possession, and the other circumstances, were sufficient to authorize its admission."

In Massachusetts, the court have carried the rule to the granting of a new trial, where evidence has been rejected by the judge, which was proper to have been received under one count of the declaration; although such count was not relied on, nor read by the plaintiff at the trial, a general verdict having been given for the plaintiff on all the counts. Thus, in Middlesex Canal Corporation v. M'Gregore.(1) Case on promises to pay toll, and on two promissory notes. The defendant, at the trial, rested his defence altogether upon the insufficiency of the canal, and offered to prove that, in consequence of an advertisement by the agent of the canal, that it was sufficient for the transportation of lumber, he was induced to enter his rafts in the canal, and gave the notes to secure the toll, when the same should have passed through; and that the canal proved altogether insufficient. The evidence was rejected, and a general verdict for the plaintiff, subject to the opinion of the court, upon the right of the defendant to prove the facts stated as above. If the court should be of opinion, that the evidence was improperly rejected, the verdict to be set aside, and a new trial granted; otherwise, judgment to be rendered according to the verdict. Per

(1) 3 Mass. Rep. 124.