So, in Train v. Collins.(1) Assumpsit on a promissory note, made by one Hyde, to Samuel Learned, and by him endorsed to the plaintiff. One ground of defence was, that the note was for a usurious consideration. One of the jury, when about retiring with the cause, having asked what would become of the notes passed to Hyde, in case they should avoid the note in suit, the judge answered that they would remain the property of Learned, or of his assignee of this note. The verdict being for the defendant, the plaintiff moved the court to grant a new trial. The remark of the judge to the juror as above, was principally urged as a misdirection, in support of the motion. Commenting upon this, the Court observe-" No doubt many things are said by a judge in the course of a trial, which will not bear scrutiny, and which pass wholly without notice. It would be a bad practice to allow these matters to be brought up some days after the cause is decided, as the ground of a new trial. Even when the jury returned their verdict, stating the ground upon which it was given, had there been any previous intimation that stress was laid upon this incident, the jury might, and probably would, have been sent out again with the mistake corrected. We think it would be going too far, in a case where legal and equitable justice appears to be done by the verdict, to grant a new trial on account of a mistake, which did not probably, although it might possibly, have operated upon the minds of some of the jury."(2)

So, in a libel case, if the judge should state to the jury, that there was no evidence of express malice, when there was slight evidence of it, but not sufficient to sustain a verdict, this would not be a sufficient reason for granting a new trial. So ruled in Remington v. Congdon.(3)

(1) 2 Pick. 145.

(2) Vide 1 S. C. Con. Rep. 216. 5 Mass. Rep. 101. 6 Mass. Rep. 350. (3) 2 Pick. 310.

Nor is it a misdirection for which the verdict will be set aside, if the judge refer the jury to their own knowledge of any particular facts which have been proved, as matter of illustration only, and not as matter of evidence. As was held in The King v. Sutton.(1)

Nor will the court disturb the verdict for a misdirection upon a collateral matter, or upon an abstract question out of the case, or but slightly connected with it. Thus, in Depeyster v. The Columbian Insurance Company.(2) Action on a policy. A verdict was given for the defendants, to set aside which, the court was now applied to, on the ground of a misdirection of the judge, stated in the decision denying the motion. By the Court-"It is said the jury were misdirected on a point of law. In calculating the cost of repairs, they were told that if they believed any were necessary on account of injuries received from worms prior to the vessel's sailing, the expense of such repairs should not be included in the estimate. This direction is supposed to be incorrect, inasmuch as it prescribes a rule difficult if not impracticable to follow. But admitting a mistake in the judge's charge, a new trial ought not always to be the necessary consequence. It is not for every misdirection in point of law, that the parties should be put to the expense of further litigation. If the result from the testimony would probably have been the same, whether a particular direction had been given or not, it can be no reason for granting a new trial. Here, if the jury had taken into the estimate the expense of all repairs, without any deduction for old or former injuries, their verdict must have been the same. If, then, there be good reason to think the plaintiffs have not been injured by the judge's mistake, they ought not to be indulged with a new trial."(3)

(1) 4 Maule & Selw. 532, supra, p. 67. (2) 2 Caines, 85. (3) Et vide, 9 Cowen, 674. Finch v. Elliott, 4 Hawks, 61.

Nor is it a ground for a new trial, that the judge, after having summed up the cause, instructed the jury, on motion of counsel, upon a point arising out of the facts in the case, but not previously suggested, such course of proceeding being a matter within the discretion of the judge. As in Sawyer v. Merrill.(1) Action of trespass. After the judge had ended his charge, the defendant's counsel moved to have the jury instructed, that if they were satisfied the articles claimed by the plaintiff were so intermingled with other property liable to attachment, that the defendants could not distinguish what had been attached, and if the plaintiff made a general claim of the whole, without designating the articles which he had attached, so that the defendants could have no means of knowing which had been attached, and which not, then that the defendants were justified in attaching the whole. This motion was objected to by the plaintiff's counsel, because this point had not been stated during the trial, and he had no opportunity to comment upon it. The judge so instructed the jury, and a verdict was returned for the defendants. Per Curiam "The instruction to the jury was in itself correct. The objection is, however, rather to the time than to the matter of the instruction. It is said the plaintiff had not an opportunity to comment on the point made by the defendants, and to produce counteracting evidence. But the judge may think of some point which the counsel did not, or vice versa; and if it is based on the facts in the case, stating it to the jury will not be a ground for a new trial; and as no injustice appears to have been done, a new trial cannot be granted."(2)

So, in Morris v. Brickley, (3) it was held, where a plaintiff offers no testimony to the jury, or such as is so slight

(1) 6 Pick. 478.

(3) 1 Har. & Gill, 107.

(2) Et Vide 4 Day, 403.

and inconclusive that a rational mind cannot draw the conclusions sought to be deduced from it, it is the right of the court, and their duty when applied to for that purpose, to instruct the jury that the plaintiff is not entitled to recover. But a positive and absolute direction to the jury will not be sanctioned, if it obliges them to discredit a witness; to do that, the intervention of a jury is peculiarly necessary.(1)

(1) Vide Reel v. Reel, 2 Hawks, 63.

CHAPTER X.

VERDICT AGAINST LAW.

AFTER all reasonable precaution and care on the part of the counsel and the court, and the best intentions on the part of the jury, they may err in their finding. Through ignorance or misapprehension of the law, they may agree upon a verdict subversive of law. With a view to promote what they may conceive to be the justice of the case, and swayed more by their own views of equity than the unyielding principles of law, or hurried away by their own feelings, they are apt to overlook the principles of justice applicable to the case, and thus give rise to a new class of applications to the court, on the ground of verdicts against law.

It might appear at first sight gratuitous labour to illustrate this head of practice; as it is to be presumed the rule would be, invariably to set aside verdicts against law. But however this may be as a general rule, it is far from being universal. This renders it proper to treat of it, as the preceding causes for new trials have been treated, giving the general rules, with their exceptions and modifications, and adducing examples illustrative of each."(1)

1. It is a general rule, that if the finding of the jury be clearly against law, the verdict will be set aside and a new trial granted. Thus,

In Hyckman v. Shotbolt.(2) One William Shotbolt was

(1) Vide "Perverse Verdicts," supra, p. 121–126. (2) Dyer, 279.