the exceptions drawn up by themselves, and as these contain no evidence of malice, we must suppose there was no such evidence in the case. Had there been competent evidence of malice, although in the opinion of the judge, not of much weight, so that the declaration that there was no evidence might be construed into an opinion of the effect of such as was offered, this might be incorrect. But even upon that supposition, if the evidence should now appear to us to be slight, a new trial, in a cause of this nature, would not be granted for that reason alone; for it would be idle to send a cause to a new trial upon evidence which, if received, would not be sufficient to support a verdict."(1)

And in Alsop v. Magill.(2) Assumpsit for money had and received. Plea, general issue. The defendants became entitled to the proceeds of a certain brig and cargo, awarded to them by commissioners, under the treaty with Great Britain, as to prizes. The defendants had been allowed by the commissioners $257.16, for the board and expenses of the plaintiff, as their agent, but which they had disallowed on his own account. The judge directed the jury, that the verdict ought to be in favour of the defendants, unless the jury should find that the sum claimed had been particularly awarded to the plaintiff by the commissioners, and received by the defendants. The jury found a verdict for the defendants, and the plaintiff moved for a new trial, which motion was reserved for the consideration of the nine judges. By the Court, after recapitulating the facts"Whether the charge of the court was perfectly correct in point of law, it is unnecessary to determine. Justice is done, and a new trial ought not to be granted."

So, also, when the sole effect of correcting the misdirection would be to settle the question of costs, as in State of Connecticut v. Tudor.(3) Information in the nature of

(1) Et vide, Ibid. 145.

(2) 4 Day, 42.

(3) 5 Day, 329.

quo warranto, against the defendant. It appeared on the trial, that the term of office of the defendant had expired, and a new election had taken place. By the Court, Ingersoll, J.-"Though my opinion is, that the charge, in the present case, was incorrect, and the verdict wrong, yet I would not advise a new trial of the cause.

The relator is not now kept out of any office, nor does the defendant now hold the office of first director, to deprive him of which the prosecution was commenced. A new annual election of officers has taken place, and it is but a matter of costs between the litigating parties, that a new trial would settle. This object is not of sufficient magnitude to demand a new trial."

In Hoyt v. Dimon.(1) Action of disseisin. Plea, general issue. The defendant claimed by both a mortgage and an absolute deed, from one Nichols, against whom the plaintiff had issued an execution. The judge instructed the jury, that the only material fact for them to find was, whether the mortgage deed from Nichols to one Norton was fraudulent. Verdict for the defendant. The plaintiff moved for a new trial, on the ground of a misdirection. Baldwin, J., after recapitulating the evidence and applying the law, concludes" If this reasoning is correct, the plaintiff has no reason to complain, that the only question submitted to the jury, was, the validity of the mortgage deed; for, having established that, their verdict must have been for the defendant, whether the absolute deed was fraudulent or not." And new trial refused.

The same rule has been held to apply in all cases of a frivolous or litigious character, and where it is manifest the parties contend from motives of pride or vindictiveness, rather than of justice. Thus in Hyatt v. Wood.(2) Action of assault and battery. The plaintiff and the defend

(1) 5 Day, 479.

(2) 3 Johns. Rep. 239.

ant were in a meadow, which each claimed as his own, and each ordered the other to go out, when the defendant struck the plaintiff with a stick, and a scuffle ensued. The judge charged the jury, that if, at the time of the assault and battery, the defendant had not only the right of possession, but the actual possession of the lot, on which the assault was committed, the defendant was justified in using as much force as was necessary to prevent the plaintiff from trespassing upon him, and if the force or violence used was no more than was necessary for that purpose, they ought to find a verdict for the defendant. Verdict for the defendant, and motion to set it aside, on the ground of misdirection. Per Curiam-"It has frequently been decided in this court, that in cases where the damages are trifling, a new trial will not be granted, after a verdict for the defendant, merely to give the plaintiff an opportunity to recover nominal damages, and when no end of justice is to be attained by it, though there may have been a misdirection of the judge. The principle stated by the judge in this case was incorrect, but the action is of too little importance to grant a new trial for that reason.”(1)

And in Fleming v. Gilbert.(2) Debt on bond. Plea, general issue and notice of special matter. The jury, under the direction of the judge, found a verdict for the plaintiff of six cents. The judge had ruled out evidence, as a defence, but suffered it to go to the jury, in mitigation of damages. By the Court-"There was a misdirection at the trial, in overruling the testimony offered as a defence to the suit, but as the recovery is but nominal, and the only contest is now respecting the costs of the suit, it cannot be advisable, that there should be a new trial, merely to give the defendant an opportunity to obtain, by a verdict, the

(1) Vide 1 Johns. Cas. 250. 5 Johns. Rep. 137. (2) 3 Johns. Rep. 528.

costs already accrued, together with the costs of such new trial. It appears, therefore, to be proper that the motion for a new trial should be granted, with this proviso, that the plaintiff may elect by the first day of the next term to discontinue without costs."(1)

So, in a libel case, Dole v. Lyon.(2) The judge charged, among other things, that the defendant had been put on his guard against printing the libel, by the note of the author prefixed, stating that another printer had refused to publish it; and that the jury might presume from this circumstance, that the defendant had been backed by the author or some other persons. The jury found a verdict for the plaintiff. A motion was made to set it aside, and for a new trial, and one of the grounds urged was the misdirection of the judge. Upon which, Kent, Ch. J., delivering the opinion of the court, observes-"The charge to the jury has been deemed erroneous, because it was observed, that the jury might presume from the circumstances, that the defendant had been backed by the author or some other person. The circumstance from which this might have been inferred, was the note to the defendant, with which the libel was introduced, which stated the libel had been refused a place in another gazette, putting him on his guard. The court are bound, on this subject, to judge how far the observation was material, as well as erroneous. It was said by Mr. Justice Butler, (3) that though the judge may have made some little mistake in his directions to the jury, yet if 'justice be done, the court ought not to interfere. The court are always bound in the exercise of a sound discretion on the subject of new trials, to determine how far the observation of the judge was material, and affected the merits of the case. Otherwise, as this court observed,

(1) Vide Ibid. 533, in notis. (2) 10 Johns. Rep. 447. (3) Estwick v. Caillaud, 5 Term Rep. 425.

in Fleming v. Gilbert, (1) there would be no end to new trials, and the remedy would be worse than the disease." New trial refused.

The principle was strongly tested in the recent case of Woodbeck v. Keller. (2) Slander, for accusing the plaintiff of perjury. Plea, general issue, and notice of justification. The judge charged the jury, "that the two witnesses for the defendant, being contradicted by four witnesses on the part of the plaintiff, as to what the plaintiff did swear, the former were not to be believed. Also, that to sustain the justification, the defendant must prove the perjury by two witnesses; or by one witness, and circumstances tantamount to another witness. Verdict for the plaintiff, and motion for a new trial for the misdirection of the judge. Sutherland, J., who delivered the opinion of the court, sustained the judge upon the part of his charge as to the justification. Upon the other, he observed-" The judge ought to have left it to the jury to decide between the witnesses. But if the jury ought to have come to the same conclusion, the strong charge of the judge in an action of this description, is not sufficient cause for granting a new trial. On the whole, I am of opinion that a new trial should be denied."(3)

The same rule applies in Pennsylvania, as in Allen v. Sawyer.(4) Kennedy, J., observed" It has been long since well settled by numerous authorities, that when the plaintiff has only entitled himself to claim nominal damages, and the jury find a verdict for the defendant, that the court will not set it aside and grant a new trial, unless the question of right or title to property of value should be involved in the suit, and affected by the verdict. Suits are

(1) 3 Johns. 528.

(2) 6 Cowen, 118.

(3) Vide Feeter v. Whipple, 8 Johns. Rep. 369. Beers v. Root, 9 Johns. Rep. 264. (4) 2 Penn. Rep. 325.