1d. damages, which was now set aside; the court saying, that the rule of not setting aside verdicts for the smallness of the damages did not extend to this case, where the jury mistook in point of law; and the chief justice said, he knew no reason why the court should not interpose in the other

case.

So, in Markham v. Middleton.(1) The defendant owed the plaintiff £333 for an apothecary's bill, and suffered judgment to go by default; and the plaintiff's attorney, on executing the writ of inquiry, produced the foreman, who had told him he could prove the bill; but when the jury was sworn, he declined giving any evidence; upon which the sheriff was desired to adjourn, which he thought he could not do, and the jury thereupon found one penny damages only. The court thought it hard the plaintiff should be paid so large a debt with one penny, as he would be if this verdict stood, or that his case should be worse for the defendant's letting judgment go by default; for, had he pleaded, the plaintiff could have suffered a nonsuit. And, therefore, they set aside this, and ordered a new writ of inquiry.

And in Taunton Manufacturing Company v. Smith.(2) Case for a breach of a special contract, in which the defendant undertook to bleach cotton cloths for the plaintiffs. At the trial, the superintendant of the company's works testified, that the defendant omitted some of the processes requisite for good bleaching, and estimated the damage sustained by the company, in regard to one species of goods, at $1652. His testimony was corroborated by that of other witnesses on the part of the plaintiffs. The defendant offered no evidence. The jury returned a verdict for the plaintiffs for $337. The plaintiff moved for a new trial, on the ground that the damages were too small. Parker,

(1) 2 Str. 1259.

(2) 9 Pick. 11.

Ch. J., delivered the opinion of the court.-"We think there is great reason to believe, that the jury laboured under some mistake in the estimation of damages, having given not more than one quarter part of what, according to all the evidence, the plaintiffs sustained. It is objected, however, that verdicts cannot be set aside on account of the damages being too small; but we are satisfied that this is a mistake. It is a power rarely exercised, especially in actions for personal wrongs, such as slanders, batteries, and the like. But where the foundation of the action is a breach of contract, and the damages are capable of estimation, if there is a glaring deficiency, justice requires that the case shall be revised; and judging from the evidence reported, this appears to be a case of the kind." And new trial granted.(1)

(1) Et vide Birkbeck v. Burrows, 2 Hall's Rep. 51. Green, 3 Monroe, 157.

White v.

CHAPTER XIII.

.

FOR NEWLY DISCOVERED EVIDENCE.

IT sometimes happens that after the utmost vigilance, and the best directed efforts of the party and his counsel, the true merits of the case have not been submitted, by reason of the absence of facts, which, had they been known and introduced, would have given a different complexion to the case. Or it may be that facts may have occurred subsequently to the trial, which tend to present the point at issue differently, and show that the verdict, if suffered to remain, would operate unjustly. When such a case happens, and the court becomes satisfied that, to promote the ends of justice, an opportunity ought to be allowed for the introduction of the new testimony, they will furnish an opportunity by setting aside the verdict, and directing a new trial. But to prevent abuse, practising with the witnesses, careless preparation in the first instance, and harrassing the court with unfounded applications, the party moving on the ground of newly discovered evidence is required to conform himself to very strict regulations. The negligent are to expect no indulgence, and applications, founded on light circumstances, will be promptly denied. Nothing but a clear case of injustice, occasioned by means beyond the control of the party, and the certainty of correcting it, by those means since brought to light, and placed within the reach of the applicant, will answer the purpose. There is, therefore, no grounds on which motions for new trials rest, better ascertained or more clearly defined, so as to guard against practise and imposition, than that of newly

discovered evidence. By a series of well digested decisions, it is settled that the evidence, which would warrant the court to set aside the verdict, must be new, material, and not cumulative, and that the party applying has used reasonable diligence. The essential requisites are laid down with brevity and perspicuity in Porter v. Talcott,(1) by Mr. Justice Woodworth.-"The application for a new trial," says he, "ought to be granted, on the ground that there has been reasonable diligence, that the new evidence is material, that it has been discovered since the trial, and is not cumulative."(2)

1. The evidence that will induce the court to set aside the verdict, and grant a new trial, must be new, that is, not used on the former trial, but discovered newly, or subsequently to the trial, and must be material to the point at issue, so as probably to produce a different result, and the application must be accompanied with sufficient evidence of previous diligence.(3) The newness and the materiality, although perfectly distinct, are so intimately connected as to require to be considered together, for the better illustration of the rule. But first, as illustrative of the rule generally.

In Ewing v. Price,(4) on motion for a new trial, on the ground of newly discovered evidence, it was held necessary to show four things:-The names of the witnesses that had been discovered; that the applicant has been diligent in preparing his case for trial; that the new facts were discovered after the trial, and will be important; and that the evidence discovered will tend to prove facts

(1) 1 Cowen, 359.

(2) Vide 2 Arch. Prac. 226. Gra. Prac. 511. (3) 2 Salk. 653. 2 Mod. 245. 6 Ibid. 22. 222. 9 Ibid. 328. 12

Ibid. 584.

(4) 3 J. J. Marsh. 521.

which were not directly in issue on the trial, or were not then known or investigated by proof.(1)

And in Moore v. The Philadelphia Bank.(2) Action for a reward offered to apprehend a robber of the bank, and verdict for the plaintiff. A new trial was moved for, on the ground of material evidence discovered since the trial; upon which the court observes-" Motions of this kind are to be received with great caution, because there are few cases tried, in which something new may not be hunted up; and because it tends very much to the introduction of perjury, to admit new evidence, after the party, who has lost the verdict, has had an opportunity of discovering the points both of his adversary's strength and his own weakness. It is therefore incumbent on him who asks for a new trial on this ground, to satisfy the court, 1st, that the evidence has come to his knowledge since the trial; 2d, that it was not owing to want of due diligence, that it did not come sooner; and 3d, that it would probably produce a different verdict, if a new trial was granted." And upon a review of the facts at the trial, and the new evidence as submitted on the motion, the court became satisfied that the defendants failed to bring their case within the above rules, and a new trial was refused.

In Warren v. Hope,(3) the court laid down the following rules, to govern them in applications of this kind"The petitioner will not be permitted to offer testimony, as to any newly discovered evidence, except that which may be stated in the petition. No new trial or review will be granted, on account of newly discovered evidence, which is merely of a cumulative nature. But the following kinds of proof may be considered as exceptions to the general rule, and furnish ground for a new trial or review. 1. That

(1) Et vide Daniel v. Daniel, 2 J. J. Marsh. 52. (2) 5 Serg. & Rawle, 41.

(3) 6 Greenl. 479.