frame house filled in with brick," had, by the custom or usage of insurers and insured, acquired a particular technical meaning, different from that which the words might be generally understood to import.-But the difficulty in this case is, that the evidence to establish such usage is entirely defective, while the charge of the judge was perhaps calculated to make an impression upon the jury, that there was competent and sufficient evidence of such usage.-I still think the verdict on this point is against the weight of evidence; but after two concurring verdicts, in a case where there were many witnesses, and a great deal of testimony on both sides, upon a mere question of fact, (supposing there was no misdirection,) I should not think it a discreet exercise of the power of this court, again to interfere with the finding of the jury."(1)

So, in Hammond v. Wadhams.(2) Writ of entry. General issue. Joinder, and verdict for the tenant. The demandant moved for a new trial, on the ground that the verdict was against evidence. By the Court, after noticing the evidence-"In this view of the subject, we do not feel ourselves authorized to deprive the tenant of his verdict, and to send the cause to another jury for trial. There was evidence on both sides; the credit of the witnesses can be weighed only by a jury. It must be presumed that they gave due weight to their testimony. We may, and we ought, to grant a new trial, when the verdict is against the evidence, or when it is manifestly against the weight of the evidence. In such cases, the facts ought to be inquired into by another jury. Whatever may be the inclination of our opinions, as to the conclusions the jury have made from the testimony, it is their province, and not ours, to make those conclusions; and we cannot say that

(1) Vide Reid v. Landford, 3 J. J. Marsh. 421. (2) 5 Mass. Rep. 353.

this verdict was given against evidence, or against the weight of evidence. It must therefore stand."

And in Baker v. Briggs.(1) Assumpsit on a promissory note. One of the counts was against him as maker. The defendant had endorsed it, but not as payee. The question was, whether he was held by his endorsement, as an original promiser or maker, and being in the nature of a surety, he was not entitled to all the rights, by way of defence, of the acknowledged maker of the note. The jury having found a verdict for the defendant, the plaintiff moved for a new trial on account of misdirection, and because the verdict was against evidence. Parker, Ch. J., delivered the opinion of the court-"It is moved to set aside this verdict on the ground that it is against evidence, notwithstanding there was a great deal of evidence on both sides so contradictory, that on a former trial the jury could not agree, and on this trial it was the subject of elaborate argument, and scrupulous comparison of testimony. under these circumstances, a verdict can be set aside as against evidence, no action can be tried which may not be brought in review before the court upon the facts, and the trial by jury will be virtually superseded. Perhaps no cause, which really has two sides to it, can be determined without a serious belief in the party losing, and perhaps in his counsel, that the verdict was wrong, and against the weight of evidence." New trial refused.(2)

If,

5. A rule closely allied to the preceding, is, that a new trial will not be granted on technical or doubtful grounds, especially in unimportant cases, if there be sufficient evidence on the merits to support the finding of the jury, who are in all such cases the sole constitutional judges.

(1) 8 Pick. 122.

(2) Et vide 3 Call, 276.

Thus, in an Anonymous case, (1) on the warranty of a horse. The court did not choose to grant a new trial, though the judge who had presided at the trial expressed himself rather inclined to the side of the plaintiff, and the jury had found for the defendant. Lord Mansfield said, the courts were usually enough troubled at the first trial in such matters; that it was neither clear enough, nor important enough, to answer a second trial." It does not follow in every case, where the weight of evidence may seem rather against the verdict, that a new trial should be ordered. The plaintiff asks, that he may be at the expense of £20, at least, for the chance of twenty, which is the whole value of the horse. Uncertain justice by a verdict is much better than certain injustice; which latter, I think, would follow by granting a new trial."

And in another Anonymous case.(2) On a motion for a new trial, upon the ground that the jury found expressly against evidence. It was an action of trespass, breaking into the plaintiff's shop, where his goods were at auction, damaging his goods and obstructing the sale. No damages were proved. Lord Mansfield said he left it to the jury upon the damages on the trial. They found for the defendant. He declared himself not dissatisfied, and said he thought they ought to waive their motion; for if they went to it again, they might probably recover sixpence, which would be all they could deserve.

In another case,(3) where a verdict had been found against evidence, but according to the merits. The court said they would not grant a new trial, where the jury have found according to the justice of the case, though they may have found against the form, and may have been wrong in so doing." When the substantial justice appears to have been answered, the court will not suffer the chance

(1) Lofft, 146.

(2) Ibid. 391.

(3) Ibid. 521.

of its being defeated, nor the parties to be turned round to a second trial, when the merits have been decided."

And in Smith v. Huggins, (1) the same rule as in Ashley v. Ashley(2) was laid down, that the jury are the proper judges, which scale preponderates; and a new trial was denied, though there was but weak evidence for the plaintiff, and the chief justice had summed it up strongly for the defendant.

In Smith v. Parkhurst,(3) upon a trial at bar in ejectment, the parties agreed to a special verdict, as to a point of law arising upon a family settlement. But there being a question of fact, in which they did not agree, that was left to the jury, who found it for the plaintiff, against the weight of the evidence. The defendant moved for a new trial, and several objections were made, which were disregarded by the court. But the main point on which the new trial was denied, was because the evidence was doubtful.

So in Francis v. Baker.(4) Pratt, Ch. J., before whom the cause was tried, after reporting the evidence specially, said, that if he had been upon the jury, and had known no more of the witnesses than he did when this cause was tried, he should have thought the verdict ought to have been for the defendant; but where there was a contrariety of evidence as to the principal matter in issue, and the characters of the witnesses on both sides stood unimpeached, the weight of evidence did not depend altogether upon the number of witnesses; for it was the province of the jury, who might know them all, to determine which witness they would give credit to, and no judge had a right to blame a jury for exercising their power of determining in such a case. Clive, J." The granting of a new trial in this case, would be taking away that power, which is by

(1) 2 Str. 1142. (3) 2 Str. 1105.

(2) Supra p. 380.
(4) 6 Bacon Ab. 664.

the constitution vested in the jury." Bathurst, J.-" As there was, in this case, strong evidence for the plaintiff, a new trial ought not to be granted: although the weight of evidence was, in my lord chief justice's opinion, with the defendant." And, per Gould, J.-" It is difficult to draw a line as to the granting of a new trial; and perhaps the granting or not granting of it, must always depend upon the circumstances of the case." And Per totam Curiam-rule discharged.(1)

Palmer v. Hyde.(2) Action in assumpsit. The defendant claimed that he had paid the sum of seventy dollars. The plaintiff admitted that the defendant had paid him that sum, but denied that it was paid or received on the contract in question. Witnesses were introduced by both the parties, in support of their respective claims, and on their testimony, the jury gave a verdict for the plaintiff, disallowing the payment claimed by the defendant. The judge, thinking the preponderance of evidence to be the other way, returned the jury to a second and third consideration, but they adhered to their verdict. On motion of the defendant, the judge then stated the evidence upon the point in question, expressing his opinion thereon in opposition to the verdict. Hosmer, Ch. J.-"The granting of a new trial, merely because, in the opinion of the court, the verdict is rather against the weight of evidence, would reduce the trial by jury to an expensive and useless form, and take away the power vested in the jurors by the constitution. The verdict ought to be manifestly and palpably against the weight of evidence, to authorize a venire facias de novo, and this is the law of Westminster Hall." The other judges concurred, and a new trial was refused.(3)

(1) Vide Dixon v. Parmelee, 2 Verm. Rep. 185. Starkweather v. Loomis, Ibid. 573. (2) 4 Conn. Rep. 426. (3) Vide Snyder v. Finley, 1 Coxe, 298. Et vide, Ibid. 78. 424.