Lanning v. London , 4 Wash. C. C. 332 ( 1822 )

WASHINGTON, Circuit Justice,

was of opinion that a new trial ought to be granted for the first reason only; but he adhered to the opinion given at the trial in respect to the rejected testimony.

PETERS, District Judge.

I have great reluctance at all times, and seldom indeed have I had occasion to differ with the presiding judge; but in this case, I was so well satisfied with his charge to the jury, and still so remain, that I cannot join in the opinion that a new trial should be granted. True, there was a geographical mistake in point of fact I perceived this circumstance after the chaise, but not immediately; and I did not then, nor do I now believe, it had the alleged influence on the jury, who heard a full description of the general principles of the case. I thought the law of 1786 inapplicable on other grounds. I did not think that the defendant was included in that law; nor did I conceive the original settler one within the description of settlers meant by that act of assembly. Nor was the testimony, take it all together, satisfactory in point of credit or principle. I therefore deemed the verdict, as I now do, perfectly legal and just.

A new trial is subject to the sound discretion of the court, or of a judge composing part of it. I cannot, therefore, reconcile my mind to granting a new trial.

The court being divided in opinion, the* counsel for the defendant at first insisted that, this being a rule to show cause, the decision was to be considered favourable'to the defendant, or at all events, that the rule was not discharged. But the court was of opinion, that this was, in effect, a motion for a new trial, the rule always being granted, according to the practice of the court, as of course, and without argument; and consequently, that by the division of the court, the motion, if it bad that form, would fall, and consequently that the rule is discharged.

The counsel then moved the court to certify the grounds of the disagreement to the supreme court.

The plaintiff’s counsel, to prove that this was not one of the cases which could be certified under the act of congress, cited U. S. v. Daniel, 6 Wheat. [19 U. S.] 542, in point; also [M’Millan v. M’Neill] 4 Wheat. [17 U. S.] 213; [Henderson v. Moore] 5 Cranch [9 U. S.] 11; [Marine Ins. Co. of Alexandria v. Young] Id. 187.

The court refused, upon the authority of U. S. v. Daniel [supra], to grant a certificate.

Rule discharged.

[For other ejectment cases brought by the ■same plaintiff against other defendants, see ■Cases Nos. 8,072 and 8,073.]