Spears v. Smith ( 1849 )

By the Court. —

Warner, J.

delivering the opinion.

[1.] Three objections were urged against thejudgment ofthe Court below, granting a new trial in this cause. First, That a brief of the testimony agreed on by the counsel in the cause, had not been entered on the minutes of the Court. The 61st rule of practice does not require it should be entered on the minutes of the Court; that rule only declares that a brief of the testimony in the cause shall be filed. Hotchkiss, 951.

[2.] The second objection is, that the Court had no authority to grant a new trial from the first verdict rendered in. the cause. The Constitution nor the 55th section of the Judiciary Act of 1799, does not restrict the power of the Superior Courts to grant new trials from the first verdict. The power conferred on the Superior Courts is a general one, and we have no authority to restrict it to trials on the appeal. Indeed, such a rule of practice might, in some cases, operate very oppressively, when a party could not give security to enter an appeal, nor swear he was unable to do so, on account of his poverty.

[3.] The third objection is, that notwithstanding the defendant’s pleas of set-off were stricken out, the whole amount thereof was allowed him by the Jury. According to the calculation 'which we have made, deducting the credits on the note, the full amount of the sets-off pleaded were not allowed; or if they were, the verdict of the Jury was for too much. Whether the full amount of the sets-off pleaded, is allowed by the Jury-or not, is at least a doubtful question in our minds, and therefore we will not control the discretion of the Court, in granting the new trial.

Let the judgment of the Court below be affirmed.