Swift, Ch. J.
The question in this case is, whether the superior court have a legal power to grant a new trial where the verdict is against evidence.
To all courts acting on the principles of the common law, the power is incidental to grant new trials for various causes, among which one is, that the verdict was against evidence. This has ever been done in England, as well as in sundry states in the union. Courts in this state, then, acting according to the common law, have this power, unless prohibited by positive law. The statute respecting this subject authorizes courts to grant new trials, “ for mispleading, discovery of new evidence, or other reasonable cause, according to the common and usual rules and methods in such cases.” This is so far from being a prohibition, it may be considered as conferring a power to grant new trials where the verdict is against evidence ; for this comes clearly within the expression, “ for reasonable cause, according to the common rules.” It would then seem clear, both by the common and statute law, our courts possess this power.
It has been supposed from the power of the court to return the jury to a second and third consideration, the necessary implication is, that they shall have no further controul of the verdict; and that in those countries where new trials are granted on the ground that the verdict is against evidence, the courts hare no such power. But there is no [481]*481inconsistency or impropriety in the exercise of both these powers ; and it may often happen, that a new trial is rendered unnecessary by returning the jury to a further consideration where the verdict is wrong. Though the courts in this state have the peculiar power of returning the jury to a further consideration, yet they elsewhere exercise as great or even greater authority over the jury. They, in the first instance, give them their opinion on the sufficiency of the evidence, which is much more likely to affect the verdict than an opinion given after they have agreed. It would seem, then, that the exercise of this power can furnish no reason why the courts in this state should not grant a new trial where the verdict is against evidence.
No objection can arise from the danger that this power may be abused. It is in criminal cases that juries are considered to be the guardians of the rights of the people against the tyranny and oppression of the government; but in such cases the power is not claimed to grant new trials.
It is said, that this power has never been exercised ; and that it has always been understood that courts did not possess it. It is true, there has been a peculiar practice in this state with respect to trials by jury. An idea seems to have been entertained, at an early period of our government, probably originating from the power of returning juries to a further consideration, that courts had no other controul over them. The usage was to state to them the testimony and the law, as claimed by each party, avoiding, with the utmost caution, any hint of their opinion with respect to either. When the verdict was brought in, if the court dissented, they returned them to a further consideration, giving them their opinion both as to the law and the evidence. If the jury adhered to their verdict on the third consideration, the court were obliged to submit, let the verdict be ever so clearly against law or evidence. Though for a long time this right of the jury was deemed so sacred that our courts did not venture to change the practice, yet when they assumed their constitutional authority to direct the jury in questions of law, so palpable was the propriety of it, that it met with universal approbation. Precisely the same objection lies against the innovation of directing the jury in matters of law, and granting a new trial if the verdict is against it, as there does against granting a sew trial if the verdict is con[482]*482trary to evidence. If an objection of this kind is to prevail, there can be no improvement in jurisprudence. The science of the law would become stationary. We ought not to be influenced by such narrow views. We ought to adopt every improvement calculated to promote the cause of truth and justice. It is essential to the due administration of justice that such power should be lodged in courts. What can be more preposterous than to say, that the verdict of a jury, often composed of men unaccustomed to weigh testimony, and peculiarly liable to local and personal prejudices and partialities, should never be re-examined and corrected, though opposed to the clearest evidence ?
It may be said, that judges are liable to the same influence and partialities. But they do not decide the question of fact ; they only furnish the means for a fair investigation of the truth, and an impartial trial of the cause; and from their situation, they act under a responsibility for the rectitude of their conduct, which cannot be supposed to operate on the minds of jurors.
I think a discreet and prudent exercise of this power can be attended with no inconvenience or danger ; that it is necessary to adopt it to complete the fabric of jurisprudence, and to give to courts all the powers essential to a due execution of the law. It should be exercised only in clear cases, which will rarely occur. It will leave to juries an important and valuable power in the trial of civil causes ; and when it is understood that an erroneous verdict can be corrected, the public confidence in the trial by jury will be increased, instead of being impaired.
I think, therefore, that the motion ought to be sustained.
In this opinion Trumbull, Smith, Brainard, Baldwin, Goudard and Hosmer, Js. concurred.
Edmond, J.
I did not expect to be called upon, at this time, to give my opinion, and assign the reasons which have governed me in the decision of the questions which in this case are presented to the court, and am not very well prepared to do it. I regret this the more, as the opinion I have formed differs from that of my brethren whose opinions I highly respect. It is, however, my opinion, which I am bound to express ; and from the consideration I have given [483]*483the subject, I cannot persuade myself that the superior court have a right by law, to exercise the power, which they are called upon to exercise, as claimed by the motion ; or, in other words, to grant a new trial after the jury have been returned to a third consideration upon an issue joined on any matter of fact, and have returned a verdict, which, in the opinion of the court, is against, or not warranted by, the evidence in the case.
In actions cognizable by the superior and county courts in this state, the right to have questions of fact tried by a jury, has, from a very early period, been considered as a privilege of primary importance ; and the power and duty of the court in relation to verdicts of the jury found upon issues in fact, has been repeatedly the subject of legislative contemplation, and regulated by statute. A slight attention to the various acts which have been passed, will evince that the possibility of a question like the present has not escaped without due consideration.
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Swift, Ch. J.
The question in this case is, whether the superior court have a legal power to grant a new trial where the verdict is against evidence.
To all courts acting on the principles of the common law, the power is incidental to grant new trials for various causes, among which one is, that the verdict was against evidence. This has ever been done in England, as well as in sundry states in the union. Courts in this state, then, acting according to the common law, have this power, unless prohibited by positive law. The statute respecting this subject authorizes courts to grant new trials, “ for mispleading, discovery of new evidence, or other reasonable cause, according to the common and usual rules and methods in such cases.” This is so far from being a prohibition, it may be considered as conferring a power to grant new trials where the verdict is against evidence ; for this comes clearly within the expression, “ for reasonable cause, according to the common rules.” It would then seem clear, both by the common and statute law, our courts possess this power.
It has been supposed from the power of the court to return the jury to a second and third consideration, the necessary implication is, that they shall have no further controul of the verdict; and that in those countries where new trials are granted on the ground that the verdict is against evidence, the courts hare no such power. But there is no [481]*481inconsistency or impropriety in the exercise of both these powers ; and it may often happen, that a new trial is rendered unnecessary by returning the jury to a further consideration where the verdict is wrong. Though the courts in this state have the peculiar power of returning the jury to a further consideration, yet they elsewhere exercise as great or even greater authority over the jury. They, in the first instance, give them their opinion on the sufficiency of the evidence, which is much more likely to affect the verdict than an opinion given after they have agreed. It would seem, then, that the exercise of this power can furnish no reason why the courts in this state should not grant a new trial where the verdict is against evidence.
No objection can arise from the danger that this power may be abused. It is in criminal cases that juries are considered to be the guardians of the rights of the people against the tyranny and oppression of the government; but in such cases the power is not claimed to grant new trials.
It is said, that this power has never been exercised ; and that it has always been understood that courts did not possess it. It is true, there has been a peculiar practice in this state with respect to trials by jury. An idea seems to have been entertained, at an early period of our government, probably originating from the power of returning juries to a further consideration, that courts had no other controul over them. The usage was to state to them the testimony and the law, as claimed by each party, avoiding, with the utmost caution, any hint of their opinion with respect to either. When the verdict was brought in, if the court dissented, they returned them to a further consideration, giving them their opinion both as to the law and the evidence. If the jury adhered to their verdict on the third consideration, the court were obliged to submit, let the verdict be ever so clearly against law or evidence. Though for a long time this right of the jury was deemed so sacred that our courts did not venture to change the practice, yet when they assumed their constitutional authority to direct the jury in questions of law, so palpable was the propriety of it, that it met with universal approbation. Precisely the same objection lies against the innovation of directing the jury in matters of law, and granting a new trial if the verdict is against it, as there does against granting a sew trial if the verdict is con[482]*482trary to evidence. If an objection of this kind is to prevail, there can be no improvement in jurisprudence. The science of the law would become stationary. We ought not to be influenced by such narrow views. We ought to adopt every improvement calculated to promote the cause of truth and justice. It is essential to the due administration of justice that such power should be lodged in courts. What can be more preposterous than to say, that the verdict of a jury, often composed of men unaccustomed to weigh testimony, and peculiarly liable to local and personal prejudices and partialities, should never be re-examined and corrected, though opposed to the clearest evidence ?
It may be said, that judges are liable to the same influence and partialities. But they do not decide the question of fact ; they only furnish the means for a fair investigation of the truth, and an impartial trial of the cause; and from their situation, they act under a responsibility for the rectitude of their conduct, which cannot be supposed to operate on the minds of jurors.
I think a discreet and prudent exercise of this power can be attended with no inconvenience or danger ; that it is necessary to adopt it to complete the fabric of jurisprudence, and to give to courts all the powers essential to a due execution of the law. It should be exercised only in clear cases, which will rarely occur. It will leave to juries an important and valuable power in the trial of civil causes ; and when it is understood that an erroneous verdict can be corrected, the public confidence in the trial by jury will be increased, instead of being impaired.
I think, therefore, that the motion ought to be sustained.
In this opinion Trumbull, Smith, Brainard, Baldwin, Goudard and Hosmer, Js. concurred.
Edmond, J.
I did not expect to be called upon, at this time, to give my opinion, and assign the reasons which have governed me in the decision of the questions which in this case are presented to the court, and am not very well prepared to do it. I regret this the more, as the opinion I have formed differs from that of my brethren whose opinions I highly respect. It is, however, my opinion, which I am bound to express ; and from the consideration I have given [483]*483the subject, I cannot persuade myself that the superior court have a right by law, to exercise the power, which they are called upon to exercise, as claimed by the motion ; or, in other words, to grant a new trial after the jury have been returned to a third consideration upon an issue joined on any matter of fact, and have returned a verdict, which, in the opinion of the court, is against, or not warranted by, the evidence in the case.
In actions cognizable by the superior and county courts in this state, the right to have questions of fact tried by a jury, has, from a very early period, been considered as a privilege of primary importance ; and the power and duty of the court in relation to verdicts of the jury found upon issues in fact, has been repeatedly the subject of legislative contemplation, and regulated by statute. A slight attention to the various acts which have been passed, will evince that the possibility of a question like the present has not escaped without due consideration. By an act passed in 1644, the court were empowered to return the jury to a second consideration, when in their opinion the verdict was not according to the evidence, and if the jury adhered to their verdict, to discharge them and cause another jury to be impannelled for the trial of the issue, a power every way equivalent in effect to the power of granting a new trial for the same cause after judgment rendered. In 1694, so much of this act as gave to courts the power of rejecting the verdict and impannelling a new jury, was repealed ; by which it appears, that an experiment of fifty years had proved to the satisfaction of the legislature, the inexpediency of vesting the courts with a power, which, in its exercise, might render the privilege of a jury to try issues in fact merely nominal. After this repeal, the only power remaining with the court, in cases where they were of opinion that the verdict of the jury was not warranted by the evidence, was to send them to a second consideration of the case. Within a short period after the repeal mentioned, as appears by our statutes as revised in 1702, it was enacted “ That the judges of the court shall have liberty, if they judge the jury have not attended to the evidence given in, and the true issue of the case in their verdict, to cause them to return to a second consideration of the case ; and shall, for like reason, have power to return them to a third consideration, and no more.” [484]*484(Tit. 6. c. 1. s. 11.) This is the extent of power which the legislature thought it expedient at that time to grant to the court. Accordingly we find in the same act (s. 8.) it is enacted, “ That all actions that shall be tried before the superior or county courts, when issue is joined on any matter of fact, shall be tried by a jury of twelve men of the neighbourhood, qualified, impannelled and sworn according to law ; who shall find the matter in issue, with the debt or damages, according to law and their evidence ; and the judges shall make up and declare the sentence thereon.” To this section there is indeed a proviso, that the parties by agreement may put issues in fact to the court; but that does not affect the present question. In these several acts of the legislature, previous and up to 1702, we have the power and the duty of the court, when there happened to be a difference of opinion on the facts put in issue between the jury and the court, clearly stated and defined ; and since 1702 these acts have not been varied. With the common law power of courts, or their practice, either in England or the neighbouring states, in relation to the subject of granting new trials in cases like the one now under consideration, our courts had nothing to do. The common law of England could give to our courts no authority on a subject contemplated by our own legislature, and expressly provided for by positive law ; or if it could, which I cannot admit, it is to be remembered that the sole and exclusive power of granting new trials was retained by the Assembly, and remained in the general court, or assistants’ court, (so called) from 1644 to 1762, except so far as that power may be said to have been delegated by the act of 1644 repealed in 1694, as already mentioned. Antecedent to 1762, applications for new trials were by petition to the Assembly ; and it is worthy of observation, that from 1694, when the power of the court to discharge the jury and impannel another was taken away, or even from 1644 up to 1762, not a precedent has been shewn, and I presume there is none to be found, where a new trial has been granted by the Assembly, or any court in this state, on the ground now claimed. The law, plain and explicit, had put the question at rest. In 1762, it was enacted, “ That the superior and county courts in this state, shall and may, from time to time, as occasion shall require, and as shall by item be judged reasonable and proper, grant new trials of [485]*485causes that shall come before them, for mispleading, or discovery of new evidence, or for other reasonable cause uppearing, according to the common and usual rules and methods in such cases." (Tit. 6. c. 1. s. 13.) From this statute is derived all the power in relation to the subject of granting new trials, which the courts have a right to claim. Does this statute convey the authority contended for ? The motion is not founded on mispleading, or the discovery of new evidence. Is it embraced in the words " for other reasonable cause appearing ?” Can that be considered as a reasonable cause for granting a new trial, which has been considered by the legislature, and provided for, in another way, by a statute defining and restricting the powers of the court in relation to it ? Certainly not.
Should it be said, by the words “ common and usual rules and methods in such cases," reference is had to the English rules and methods, and that new trials are there granted, when, in the opinion of the judge, the verdict is against evidence, or the weight of evidence given in the case ; I answer, the reference, if to the English practice at all, can only be to like cases, presented under like circumstances. They have no statutes similar to ours on the subject in question. Their example, therefore, on this point, can furnish neither precedent nor authority.
If the words " common and usual rules and methods," &c. refer to those rules which had been common and usual in this state, it would be absurd to suppose the statute confers the power claimed ; for not a solitary instance has been produced to prove the existence of such a rule, or a claim that the court by virtue of this or any other statute might exercise such a power, although the English practice must have been well understood. Adopt the construction contended for, and the result is, you give to a statute of more than fifty years standing a construction it has never before received, a meaning not obvious or necessary to render it intelligible ; and invest the courts with an extraordinary power, which, in point of expediency, it may be doubtful whether it is best they should possess, and which, if possessed, it is admitted, should be exercised with extreme caution. Let me remark here, that power should be arrogated with caution, and on clear authority, in the exercise of which extreme caution is required.
[486]*486Further, admit the principle, and by necessary consequence, you repeal, as to their beneficial effect, all those statutes which secure to the parties, the right to have issues in fact decided by a jury of twelve men of the neighbourhood ; for of very little consequence is that right, if after all, the court may grant new trials without limitation as to number, and until a jury can be found to decide the issue correctly in the opinion of the court. I say, without limitation as to number, for so long as the same cause remains for which the new trial was first granted, so long the process of granting a new trial (if the court act consistently) must be repeated.
In respect to any imagined failure of justice in case of an obstinate jury, if the courts are not permitted to exercise such a power, this may be a proper subject for the consideration of the legislature, but furnishes no proof that such a power exists. If, however, it was admissible as an argument, might it not be said, that questions of fact must be ultimately decided somewhere ; that the decision may as safely be entrusted to twelve disinterested jurymen of the neighbourhood, as to the judges of the several courts ; and that a possible failure of justice may be apprehended in either case.
I will only add, to grant a new trial on the ground stated in the motion, either on a motion in court after verdict, or on a petition brought for that purpose, would be, in my opinion, an innovation on our system of jurisprudence ; an assumption of power not warranted by the laws of the state ; an invasion of the right given to parties to have issues in fact decided by a jury ; a measure unsupported by any precedent of our own ; not contemplated in, or adapted to, the organization of the superior court ; and wholly unnecessary, not to say an impediment, to the due and speedy administration of justice.
Gould, J. gave no opinion, having been of counsel in the cause.
New trial to be granted.