Defendant Anonymous case.(1) Action in covenant. replied non fregit conventionem. The question turned upon repairs; and it appearing in evidence, that there were thirty-eight years to run on premises, out of a term of forty, the jury thought the injury was rather to the possession than to the landlord. They found for the defendant, whereupon the plaintiff moved for a new trial. At the trial it appeared notice had been given to the tenant to repair. And it further appeared, lead had been stolen off the house, and the tiles to come at it. But the damage had been repaired in a great measure; and the jury said they believed there was not above a shilling damages, upon what was left unrepaired. Mr. Justice Aston said, upon so small an occasion they would not, and the court never was used, to grant a new trial.(2) So in Roberts v. Karr.(3) Action of trespass, for breaking and entering the plaintiff's close, destroying his fence and two plants of ivy there growing, and for an injury done to a wall, by inserting rafters into it. The defendant pleaded several pleas, including a right of way. Lord Ellenborough, Ch. J., who presided at the trial, directed the jury that the plaintiff was entitled to a verdict upon the last count of the declaration, upon the evidence given by one witness, who gave his opinion that the wall was damaged to the amount of four or five pounds. The jury found for the plaintiff on some issues, and for the defendant on others. Both moved for a new trial, on the ground of issues found being against the weight of evidence. Mansfield, Ch. J.-"The judge who tried the cause has intimated an opinion, though not very strongly, in favour of the plaintiff, but he rested it chiefly on the other issue, on which there was evidence of the plaintiff's wall having been damaged (1) Lofft, 529. (2) Et vide 2 Blacks. 851. to the amount of five pounds. But as to that issue the court will not grant a new trial for so trifling a sum as five pounds. And in Brown v. Ray.(1) Action of replevin for taking the plaintiff's cattle. The defendant avowed they were in his close unlawfully, and that he took them under a distress, damage feasant. Plea in bar, that they escaped into the defendant's close, through a defect of a fence, which the defendant ought to have repaired. The jury found a verdict for the plaintiff. Damages, four guineas. A rule nisi was applied for, on the ground that the verdict was against the weight of evidence. Lord Chief Justice Best.-"If we were to grant a new trial, it is quite clear, it must be on the terms of the payment of costs by the defendant, and he might eventually be put to the expense of £50, to get rid of the trifling sum of four guineas, for which the plaintiff has obtained a verdict. Although the rule that the court will not grant a new trial, on account of trifling damages, may not extend to an action of replevin, still it appears to me to be so far salutary, as not to be entrenched on in the present instance, or induce us to disturb the verdict."(2) So in Hunt v. Burrel, and others.(3) Action in trespass, quare clausum fregit. The defendants justified at the trial, by virtue of an execution against the plaintiff. One of them acted as the deputy of the under-sheriff, and upon offering the deputation in proof, it was overruled by the judge as a justification, but permitted in mitigation. The jury found a verdict for the plaintiff of $5 damages. The question, whether the deputation ought to have been received, was submitted without argument. The court (1) 9 Moore, 583. (2) Vide 2 Verm. Rep. 185. Brayton's Verm. Rep. 170. (3) 5 Johns. Rep. 137. held that it was competent testimony, but denied a new trial, concluding thus:-" But, though the evidence ought to have been received, this case will not justify a new trial. As the plaintiff recovered but five dollars, he must pay full costs to the defendants, as no certificate of the judge has been given, and as the title did not in any wise come in question. It certainly, then, would not be fit to award a new trial, and create all that additional expense, merely to save five dollars to the defendants, and on that ground only the motion is denied."(1) Nor, on the contrary, are value and importance of themselves sufficient to procure a new trial, unless coupled with some departure from law, or a finding against the evidence, as in Vernon v. Hankey,(2) Action for money had and received. Plea, general issue, and verdict for plaintiff, £16,930. The court granted a rule to show cause why there should not be a new trial. The judge reported that one Tyler had committed a clear act of bankruptcy, on the night of the second of May, 1785, which was well known to the defendants, who were her bankers; and it appeared by their books, that so much as the verdict was taken for, had been received by them on account of the bankrupt after that time. On a motion for a new trial, the case was elaborately argued, and much stress was laid on its importance, by reason of the amount of the verdict. The judges delivered their opinions seriatim, and discharged the rule. Buller, J., best illustrates the rule: “The grounds which have been mentioned by the defendants' counsel, have frequently been allowed, and ought always to govern the court in granting rules to show cause why there should not be a new trial. But there is a wide difference between the reasons which ought to induce the court to grant such rules, and those which are sufficient to (1) Vide 3 Johnз. Rep. 237. (2) 2 Term Rep. 113. grant new trials. It is well known that in this court a rule to show cause why there should not be a new trial, is granted for little more than asking, if any plausible doubt can be stated; but if this were to be followed up by making the rule absolute on the same grounds, it would be great injustice to the parties, and would tend to multiply litigation to an enormous degree. Value alone is not a ground for granting a new trial, although it frequently weighs in granting a rule to show cause."(1) 8. When the judge who tries the case expresses himself satisfied with the verdict, although against the weight of evidence, the court will seldom set it aside and grant a new trial on the contrary, when he is dissatisfied it is almost of course to grant it. The rule is thus laid down by Judge Buller--" Upon a motion for a new trial, the way is to grant a rule to show cause, and then the puisne judge of the court speaks to the judge who tried the cause (if it be not one of the same court) and obtains a report from him of the trial, and also a signification of what his sentiments are upon it. If the judge declare himself satisfied with the verdict, it hath been usual not to grant a new trial, on account of its being a verdict against evidence. On the other hand, if he declared himself dissatisfied with the verdict, it is pretty much of course to grant it."(2) In one case, Wheeler v. Pitt,(3) the verdict was for the plaintiff, but on the report of Willes, Ch. J., before whom the cause was tried, that the weight of evidence was, in his opinion, with the defendant, a new trial was granted. In Berks v. Mason,(4) Ryder, Ch. J., before whom the case was tried, reported that there was evidence on both (1) Vide Infra "Small Damages," Chap. XII. (2) Bull N. P., 327. (3) 6 Bac. Ab. 663. (4) Sayer, 264. sides; but that the evidence for the party in whose favour the verdict was, was so very slight that the jury ought not, in his opinion, to have regarded it, and that the evidence for the other party was very strong, and he added that he was dissatified with the verdict. A new trial was granted. In Rands v. Tripp.(1) The plaintiff was a tobacconist, and lived near Guildhall, London. He married the daughter of the defendant, who was an alderman in Hull, and had four hundred pounds portion with her. After the marriage the defendant spoke merrily before three witnesses, "That if his son-in-law would procure himself to be knighted, so that his daughter might be a lady, he would then give him two thousand pounds more, and would pay one thousand pounds, part thereof presently, upon such knighthood, and the other one thousand pounds, within a year after. The son-in-law, without acquainting the defendant, did, about nine months afterwards, procure himself to be knighted and brought an assumpsit for the two thousand pounds, which was tried before North, Ch. J., at Guildhall, and the jury gave £1,500 damages. The chief justice thought it was a hard verdict, for he was not clearly satisfied that the agreement was good, it being only for words which were spoken by the old man when he had but a weak memory. And thereupon a new trial was granted, because the chief justice thought it was fit so to be.(2) So, in Letgoe v. Pitt,(3) in ejectment, and verdict for lessor of plaintiff. The chief justice certified, that the premises in question were copyhold, and both parties claimed under one George Cromwell, who had made two several surrenders. The question upon the trial was, whether Cromwell was compos mentis at the time of the (1) 2 Mod. 199. (3) Barnes, 439. (2) Vide 3 Younge & Jervis, 264. |