Year: 1860

~. VI. ~.


tiOn for a Trial.


Counsel for the defendant in this cause moves
the Court upon affidavit, to grant him new trial
upon the following grounds, viz:


1st. On the ground of newly discovered eyi-
dence;


2nd. That the verdict of the jury, as be verify
believes, was arrived at by compromise, and not
by fair induction from the testimony;


Sd. That the verdict is excessive, through
mistake of some of the jurors, to the amount Of
fifty dollars.


The argument of defendants counsel, that this
is motion addressed to the discretion of the Court
is perfectly sound; but that discretion should not
be exercised arbitrarily, or capriciously, but
cording to well understood principles of practice.
Although the Judge who presides at the trial of a
cause may be of the opinion that the verdict of
the jury has not done exact justice between the
parties, that, of ITSELF is not sufficient reason to
sway the discretion of the Court on an application
for new trial.


The second of the grounds put forward IN this
case has repeatedly been urged in this Court on
applications for new trial, but has always been
oyeruled. Defendants affidavit does not alege
fraud or corrupt misconduct on the part of the
Jury but merely that the verdict appears, from
its particular amount, to have been got at by a
compromise ,and not by any calculation which could
be fairly based upon the evidence. In our opinion
this is not sufficient. In large majority of civil
cases it is probably true that the verdict of the
jury is arrived at, and rightly so by what may be
termed a compromise, or mutual adjustment and
modification of ideas and views among the jurors,
with due reference the law and the facts of the
case, and the substantial rights of the parties.
Were 1t not so, trial by jury must soon be abandon
ed, an inconvenient, if not impraciicable, mode
Of settling private controversies. See Dorr rs.
Fenno, II Pick. Rep $50, and cases there cited


The third ground, viz mistake, is equally OBJ
,ooK, .faxa L.,
warrant the granting of new trial. should be
pure mistake apparent upon the face of the record.
mistake which involves the idea of carelessness
inattention the part of some of the Jurors in
the discharge of their duty, and which is to be
shown by the statements of any member of the
jury, or other proof extraneous to the record, is
not the kind of mistake which can be alleged or
proven in support of this motion. Upon principle,
well as upon precedent, we would regard the
admission of the statements of members of the
jury who tried the cause for this purpose as unwise
and unsafe. See Howland us. Jacobs April term
1859 Hannum us. Belchertown, l9 Pick Rep,
81; 2 Greenleaf on Evidence, Section 252 and
cases there referred to-


The only good ground suggested in support Of
the motion is that of newly discovered evidence.
This ground alone, if made out within the recog-
nzed rules of practice, would be sufficient But
in order to that result it should appear not only
that the proposed testimony is newly discovered,
that 1T would be material to the ISSUE and that it
would not be merely cumulative but that the de-
fendant did not lose the opportunity TO lay it before
the jury, by his own laches For when it appears
to the Court that the party might, by the exercise
of due diligence, have discovered and obtained the
proposed new testimony at or before the time Of
trial. trial will not be granted, unless there
in the particular case some peculiar circum-
stances, of such a character as are entitled TO
weight in the mind of the Court in deciding upon
motion addressed to its discretion.
In the present case the new testimony is said to
be in the possession of certain persons who have
already given evidence for the defendant. Both
of these witnesses reside in Honolulu; the cause
not hurried to trial without sufficient time be-
ing allowed the defendant for preparation; there
is no allegation of surprise the new testimony is
of nature which the defendant, had he exercised
reasonable diligence, could not have failed to dis
cover in time, as such testimony, if in existence,
would naturally be looked for in the breasts Of
parties, who, like Hughes, Neville and Thompson,
had the opportunity from their peculiar relation 70
the subject matter of the suit, of knowing such
facts and if the defendant failed to ascertain the
extent of their knowledge on the subject We can
not avoid the conclusion, under the circumstances,
that it was his own fault. Were it not that we
think the defendants motion is clearly open to this
objection, and that we feel the necessity of adher-
ing to line of practice which we believe to be on
the whole conducive to the furtherance of Justice
the apparent materiality of the proposed new tes-
tlmony would be strong inducement for granting
the indulgence asked for.


The motion is refused but without costs.
October %, 1860.