Silva v. Low

1 Johns. Cas. 336

Opinion

Per Curiam.

The jury, in, finding this verdict, must have intended to disregard the determination of this court on the questions of law previously settled, and their verdict " must therefore be considered as against law■ It [*337] *cou!d not have been found in conformity to the opin1 ion of the court as formerly delivered, unless we suppose the jury to have been governed by conjectures'or circumstances too trivial to be mentioned. We therefore think that the verdict ought to be set aside; and the cos.ts to abide the event of the suit.

(a)

Lansing, Ch. J. and.Lewis, L dissented.

New trial awarded.

“ If tfie jury at the second trial find for'the party against whom the former verdict was given, the court, if the case'he doubtful or.the second verdict do not accord with the justice of the case, may be induced, under circumstances, to grant a third trial. It is entirely in the discretion of the court, however, to do so or not; for the losing party, in such a cáse, is riot entitled to it by any rule or practice of the court.: and it has accordingly been refused, where the second verdict was satisfactory. 2 W. Bl. 963. It is also in the discretion of the court, to grant a third trial, after two concurring verdicts. 4 Burr. 2108. ' But this is seldom done: and the court have refused to grant it after a new trial for excessive damages, and the same damages given by the second verdict; 2 Salic. 649 ; 2 Str. 692; and the same where the two concurring verdicts were for the defendant, even although the judge before whom the second trial was had, expressed himself dissatisfied with the verdict; 3 Taunt. 232 ; and even where the court themselves considered the verdict as against the weight of evidence. 7 Wend. 275. But where in such a case the action was brought for a matter savoring of the realty, and the plaintiff would have been concluded by the verdict, the court, under circumstances, set aside the last verdict, and ordered a nonsuit to be entered leaving the plaintiff to contest the matter a third time, if he would. 2 D. & R. 198; see Graham on New Trials, 541-556.” Gra. Prac 2d ed. 635, 636.