Fulton v. Phelps ( 1824 )

Sup: Court. sept term a d. 1824

James Fulton vs Phelps & Colburn

In this Case the PlfiF. moves the court here that the finding of the jury in this Case, may be set aside and a new trial awarded — & for cause assigns the following reasons, — to wit.

1. That the finding of the jury in this Case contrary to Evidence

2d That the finding of the jury in this Case is Contrary to Law.

3d That the said jurors of the jury aforesaid were not legally ballotted for, empannelld nor selected.

4. That a Deposition which was very Material and important to the Plff’s cause, & which was taken, as was understood & believed by Counsel, by Consent with agreement to be read at the trial was, not allowed to be read on the trial; being objected to by the Defts Counsel, On ground that there was no written agreement on file, & that this testimony, can be obtained on a new trial.

5. That, important and Material testimony to the Plff taken under a Commission, in New York, was not allowed to be read on the trial on account of Objections merely technical, whereby most important and material to the plff’s Cause, And on which he had relied, for the trial, was lost. And that the Plff: will be able to procure the testimony of Said Witness on a new trial.

6. That a Witness whose testimony was very important and Material, And who was Subpoenaed And was during the first week of the sitting of the Court, in Attendance on the Court but was absent and at a great distance from the Court, and could not be got in season before the trial was over. — And he expects & has no doubt he shall be able to obtain the Attendance of the sd Witness at the next term.

7. that — there was great irregularity and misbehavior in the jury in sep-erating — leaving the jury Room without consent of parties or leave of the Court — and talking with divers persons, before they were agreed upon their Verdict— Whitney for Plff.