of them-the Clerk being absent-and request him to give it to the Clerk, which is done; and after the meeting of the Court the following morning, the verdict is opened, in the presence of the jury, and read by the Clerk without exception: Held, that this is not an error sufficient to warrant a new trial. The possession by such officer left the verdict as much in the possession of the Court itself as if it had been directly delivered to the Clerk. Paige v. O'Neal, 12 Cal. 483. 48. Under any circumstances, the withdrawal of a juror and the continuance of a case thereby is no ground for reversing a judgment subsequently obtained. Benedict v. Cozzens, 4 Cal. 382. 49. After a jury have once retired, it is error to allow them to come into Court and receive instructions in the absence of the parties or their counsel. Redman v. Gulnac, 5 Cal. 148. 50. Unless the irregularity complained of in the formation of the jury goes to the merits of the trial, or leads to the inference of improper influence upon their conduct, their verdict should not be disturbed. Thrall v. Smiley, 9 Cal. 538. 51. Where the facts show that the action of the Court below approached nearly to an arbitrary exercise of its discretion, that action will not be reviewed, unless there has been a motion for a new trial. Pilot Rock Creek Canal Co. v. Chapman, 11 Cal. 162. 52. Questions of discretion of the Judge below cannot be reviewed in the Supreme Court, except in cases of gross abuse to the injury of the party. Smith v. Billett, 15 Cal. 26. 53. Lower Courts have an enlarged discretion in the conduct of the business before them; and with this discretion the appellate Court will not interfere, unless it affirmatively appear that injustice has been done. Broadus v. Nelson, 16 Cal. 80. 54. Two defendants filed a joint plea of the Statute of Limitations, and the plea being held bad as to one defendant, the Court, on the trial, permitted the other defendant to file a separate plea of the statute: Held, that this was no such gross abuse of discretion as to enable the Supreme Court to revise it. Robinson v. Smith, 14 Cal. 254. 55. The allowance of an amendment to pleadings is a matter of discretion, for the abuse of which only can the appellate Court interfere. Gillan v. Hutchinson, 16 Cal. 156. 56. The allowance to file an answer after demurrer overruled vests in the discretion of the Court below, subject to review, of course, in case of its arbitrary or unreasonable exercise. Thornton v. Borland, 12 Cal. 439. 57. The discretion of the Probate Court in certifying an issue of fact joined therein for trial to the District Court, is subject to review by the Supreme Court; and, in case of gross abuse, would be corrected. Keller v. Franklin, 4 Cal. 434. 58. In a chancery case, it is doubtful whether a refusal to give instructions to the jury, even conceding them to be correct, can be assigned as error. Branger v. Chevalier, 9 Cal. 360. 59. The limits to be set to the scope of remarks of counsel to the jury are in the discretion of the Judge who presides at the trial; and a verdict will not be disturbed by the general term, upon exception to his refusal to stop counsel in a questionable line of remark, unless it clearly appears that the adverse party was actually and unjustly prejudiced before the jury by such remarks. Fry v. Bennett, 9 Abb. Pr. R. 45. 60. A judgment entered when no answer is put in, giving the plaintiff relief which was not specifically asked by the complaint-e. g., a judgment in foreclosure for deficiency, where the complaint merely asked for a sale-should be vacated on motion. Simonson v. Blake, 12 Abb. Pr. R. 331. 61. The verdict of a jury will not be set aside simply because the Constable in charge has sought to interfere with their deliberations, and urged them to give the verdict which they finally rendered. (2 How. Pr. 23;) Baker v. Simmons, 29 Barb. 198. 62. A party who means to avail himself of an irregularity in the progress of a cause, must make his objection in due season, and before the other side has compromised itself by his silence; and a person upon whom the law has cast an interest in an estate, which is the subject of a suit in the Courts for a sale and partition, must abstain from becoming an actor in the proceedings, if he designs at some future time to assert his title upon the ground that he was not made a party, and therefore not included by the judgment or decree. Regna v. Holmes, 19 How. Pr 430. 63. Second subdivision.-Where the jurors agree each one to mark down the sum he thinks proper to find as damages, and then to divide the total amount of these sums by the number of persons composing the jury, which result should be their verdict, a verdict thus formed is irregular, and will be set aside. v. Berryman, 5 Cal. 44. Wilson 64. But if such means be adopted merely to arrive at a proper result, for the purpose of determining what the verdict shall be, without any being bound thereby, and afterward the jury agree upon such sum as their verdict, the Court will not disturb it. Id. 65. Such verdicts are regarded in the same light as gambling verdicts. Id. 66. The remark of a juror, during a recess of the trial, that there was no use in taking up time in trying to humbug the jury, and that the lawyer who made the shortest speech would win the case, was not such misconduct as will vitiate the verdict. Taylor v. California Stage Co., 6 Cal. 228. 67. Where a slip from a newspaper was handed by a Deputy Sheriff to the jury, during the progress of the trial, containing matters relating to the trial, but not in evidence, and was perused by them, and the Court subsequently, upon discovery of the fact, instructed the jury that the slip was not in evidence, and that it should be wholly disregarded by them, and it appeared that the perusal could not, from the character of the matter contained in the slip, have prejudiced the losing party: Held, not to be a ground for a new trial. Thrall v. Smiley, 9 Cal. 529. 68. Although a verdict will not generally be set aside merely because the jury have been approached, if it clearly appear that no injustice has been done, and the interference did not affect the result, yet if it appears that they have been approached in such a manner as might have influenced their verdict, it should be set aside without reference to the source or the motive of the interference. Nesmith v. The Clinton Fire Ins. Co., 8 Abb. Pr. R. 141. 69. During the trial of an action turning upon much conflicting testimony, a juror listened to the statements of a third party, attacking the credibility of the defendant's witnesses: Held, that a verdict for the plaintiff must be set aside. Id. 70. Separation of the jury is not, in the absence of any appearance of prejudice to the party complaining of it, a ground for a new trial. (1 Cow. 221; 3 Id. 355, 26, 28; 5 Id. 283; 2 Wend. 52; 3 Johns, 252; 7 Id. 32; 4 Barn. & A. 430;) Anthony v. Smith, 4 Bosw. 503. 71. Third subdivision.-Surprise is not of itself ground for a new trial or a reduction of damages. To authorize a new trial or reduction of damages, the surprise alleged must be such that ordinary prudence could not have guarded against it, and the proceeding which creates it must have prevented the presentation of the case upon its merits. With the allegation of surprise, the party must show that he has been injured by it. Patterson v. Ely, 19 Cal. 28. 72. Mere surprise at the evidence given by the witnesses of the defendant is not sufficient ground for granting the plaintiff a new trial. He should submit to a nonsuit, and not take his chances for a verdict. Live Yankee Co. v. Oregon Co., 7 Cal. 40. 73. A new trial will not be granted on affidavit by a witness of mistake in his testimony on the trial, unless there be a clear showing of mistake; and further, that it was injurious to the party, and that he had no means or had used due diligence to counteract the mistake or to correct it. Howe v. Briggs, 17 Cal. 385. 74. Where a slight degree of prudence would guard against surprise, it is not sufficient ground to allege for a new trial. Brooks v. Lyon, 3 Cal. 113. 75. Surprise at the ruling of the Court on the trial, as to the admission of testimony, is not ground for a new trial. Fuller v. Hutchings, 10 Cal. 523. 76. Where plaintiffs were permitted to prove and recover on a title other than the one so set up, it was error in the Court below to refuse a new trial, the motion for which was based on affidavit of defendant that he was taken by surprise, arising out of the frame of the pleadings, and that he could have rebutted plaintiff's case but for this surprise. Eagan v. Delaney, 16 Cal. 85. 77. Where a motion for a new trial is made on the ground that the party was taken by surprise at the trial by the nonattendance of witnesses, it should appear that the party had used reasonable diligence in endeavoring to procure the attendance of his witnesses at the first trial. Rogers v. Huie, 1 Cal. 429. 78. Surprise at the testimony of a witness called by the adverse party, is no ground for a new trial, it not appearing that the party against whom the testimony was given had been misled by previous statements of the witness as to what he would testify. Taylor v. California Stage Co., 6 Cal. 228. 79. Plaintiff herein having rested his case upon proving his note, and defendant not introducing any proof of his discharge in insolvency, the Court below instructed the jury to find for plaintiff, and afterwards set aside the verdict and granted a new trial: Held, that this Court will not revise the discretion of the Court below in granting a new trial; that defendant might well have been taken by surprise, and supposed it unnecessary to introduce proof of his discharge. Smith v. Richmond, 15 Cal. 501. 80. A party who is unprepared for trial at the time of the calling of the case, should move for a continuance, and if he fail to do this, he waives his want of preparation, and cannot afterwards, when judgment has gone against him, move for a new trial on this ground. Turner v. Morrison, 11 Cal. 21. 81. It is not sufficient for a new trial to aver that the party thus represented was ignorant at the time of the trial of the facts. He must show that he could not, with the use of due diligence, unmixed with any negligence on his part, have made himself acquainted with or ascertained the existence of the facts. Williams v. Price, 11 Cal. 213. 82. The mistake of counsel as to the competency of a witness is no ground for granting a new trial. Packer v. Heaton, 9 Cal. 571. 83. Where one party to an action is misled by the act of the other, justice demands that a new trial should be granted. Pinkham v. McFarland, 5 Cal. 137. 84. In order to move for a new trial upon the ground of surprise, it must be shown not only a surprise, but one that ordinary prudence could not guard against; and to show that he has been injured by it; to show that upon a new hearing he can make out such a title as would probably be not only a legal but an equitable defense of the action. And he must also show what the title is. Patterson v. Ely, 19 Cal. 28. 85. If a mistake of law by a party can ever be made the means of obtaining a new trial on the ground of surprise, it certainly cannot when it was caused by the negligence of such party. People v. O'Brien, 4 Park. Cr. 203. 86. Fourth subdivision.-On a motion for a new trial on the ground of newly discovered evidence, the newly discovered evidence should be fully set forth or the motion must be overruled. Perry v. Cochran, 1 Cal. 180. 87. An application for a new trial, on the ground of newly discovered evidence, must show affirmatively that the evidence is new, material and not cumulative; that the applicant has used due diligence in preparing his case for trial; and that the new evidence was discovered after the trial, and will be important, and tend to prove facts which were not distinctly in issue on the trial, or even then known or investigated by proof. Bartlett v. Hogdon, 3 Cal. 57; Brooks v. Lyon, Id. 114; Burrett v. Gibson, Id. 399; Live Yankee Co. v. Oregon Co., 7 Id. 42. 88. It is not good ground for a new trial, that the defendant discovered material testimony at too late a period to produce the same at the trial. It would, however, be good ground on which to base a motion for continuance. Berry v. Metzler, 7 Cal. 418. 89. In cases of conflicting testimony, newly discovered evidence, merely cumulative, is no ground for a new trial. Taylor v. California Stage Co., 6 Cal. 228. 90. A new trial on the ground of newly discovered evidence, should not be granted where such evidence is merely cumulative, and is that of a witness whose deposition was used on the trial, and particularly where the verdict shows that the jury disbelieved his first statement. Gaven v. Dapman, 5 Cal. 342. 91. A party ought not to rely upon his own single unsupported statement, on a motion for a new trial, of the newly discovered evidence, but should, if possible, procure the affidavits of the persons whose testimony he deems material, so that the Court may be satisfied as to what facts he will testify. Rogers v. Huie, 1 Cal. 433. If the affidavits of such persons cannot be obtained in time, additional time should be applied for. Jenny Lind Co. v. Bowers, 11 Cal. 194. 92. Motions for new trial, on the ground of newly discovered evidence, are regarded with distrust and disfavor, and the strictest showing of diligence and all other facts necessary is required. This is especially true when the new testimony is to impeach a witness on the trial, or is merely cumulative. The party must show by his own affidavit that he did not know of this evidence, and could not by due diligence have obtained it; the affidavit of a witness is not sufficient. (In this case the party himself was present.) Baker v. Joseph, 16 Cal. 180. 93. Where it did not appear that the defendant had made any efforts to have his witnesses subpoenaed or to procure their attendance, until the morning of the day for which the cause was set down for trial, and on which it actually was tried: Held, that the party had not used proper diligence; and that the decision of the District Court, refusing a new trial, was correct. Rogers v. Huie, 1 Cal. 429. 94. A new trial will not be granted, on the ground of newly discovered evidence, which is alleged to be a deed, recorded in the County Recorder's office a year be fore the trial, and the record of a judgment in the same Court in which the cause was tried. Weiner v. Lowery, 11 Cal. 104. 95. Where the report of a referee disclosed some hesitation and doubt in arriving at the conclusions of fact, and after the report had been made up, but before it was filed, the defendant applied to the referee for leave to introduce newly discov ered evidence, which was refused, from a doubt as to his powers-he at the same time intimating to the Court, in a supplemental report, that if such newly discov ered evidence had been adduced on the trial, the result would probably have been different: Held, under the circumstances, it was error in the Court below to refuse a new trial. Hoyt v. Saunders, 4 Cal. 345. 96. The rules governing motions for new trials, on the ground of newly discovered evidence, should be strictly applied where the parties have been examined as witnesses on the trial. Leavy v. Roberts, 8 Abb. Pr. R. 310. 97. If newly discovered evidence relates to any fact proved or controverted, whether bearing upon the issue directly or collaterally, it is cumulative, and not ground of new trial. Id. 98. It is only when a party was wholly free from negligence in preparing for the trial, that he is entitled to a new trial on the ground of newly discovered evidence. Id. 99. New trial granted on the ground of discovery of error in account-books produced on the trial. Butterworth v. Warth, 4 Bosw. 623. 100. Fifth subdivision.-The Court will set aside a verdict, where the damages given are unjustifiable. McDaniels v. Baca, 2 Cal. 326. 101. It is a proper exercise of power in a Court to grant a new trial, on the ground of excessive damages, where the verdict is grossly inconsistent in its relation to the facts. Potter v. Seale, Cal 410. 102. The rules by which Courts are governed in setting aside the verdicts of juries, on the ground of excessiveness of damages, considered. Payne v. The Pacific M. S. S. Co., 1 Cal. 33. 103. In an affidavit for a new trial, the allegations of the affiant, that "as he is informed and believes, the damages assessed were excessive, and more than could be recovered on a fair trial of the action," is insufficient as a statement of a meritorious defense upon which to justify any disturbance of the verdict. The facts should be stated from which the Court can perceive whether the damages are excessive, and whether on another trial there would be any probability of a verdict for a less amount, or that there is any defense to the claim. Patterson v. Ely, 19 Cal. 28. 104. It is not error in the Court below to refuse a new trial, provided the successsful party will consent to a reduction of his judgment. Chapin v. Bourne, 8 Cal. 294. 105. An ejectment case tried by the Court found that plaintiff was entitled to the possession of the premises, and that the damages were $1,566, and gave judgment accordingly. It appears from the evidence that plaintiff was only entitied to onehalf, he being a tenant in common with another not a party to the suit, and, on a motion made for the purpose, the Court set aside the judgment and ordered a new trial. The plaintiff concedes that the judgment should have been for one-half, but insists that he should have been offered to remit the excess, and only on his refusal to grant the new trial: Held, that the new trial was properly granted, it being discretionary with the Court; if the judgment had been that plaintiff was entitled to the possession of one-half of the premises as tenant in common with another, this Court might have corrected the judgment as to damages, and made it conformable to the findings. But in this case both correspond. Clarke v. Huber, 20 Cal. 106. Where damages are laid at a certain sum in a declaration, the judgment will be reversed if the jury render a verdict for a greater sum. Palmer v. Reynolds, 3 Cal. 396. But the excess may be remitted and the judgment stand. Pierce v. Ryan, 14 Cal. 420. 107. The plaintiff recovered judgment against the defendant for $1,000, that sum being the amount of damages awarded by a jury before whom the cause was tried. On motion for a new trial, the Judge of First Instance ordered that the judgment should be set aside, and a new trial granted, unless he would consent to remit four hundred dollars of the judgment which had been rendered in his favor. On appeal from this order: Held, that this Court had jurisdiction of the appeal, and the order was reversed and set aside. Payne v. The Pacific M. S. S. Co., 1 Cal. 33. 108. It seems that a verdict for $3,000, in a suit on an attachment bond, where no property has been levied on under the writ of attachment except real estate, in the possession of which the debtor has not been disturbed, will be deemed excessive and reversed on that ground. Heath v. Lent, 1 Cal. 410. 109. In an action for a malicious prosecution, wherein an attachment was issued, the jury gave $15,000, and where no misconduct was shown on the part of the jury, and it was not charged that the verdict was given under the influence of passion or prejudice, the Court could not disturb the verdict, unless it clearly appear that injustice has been done. Weaver v. Page, 6 Cal. 685. 110. The Code does not permit a party who has recovered a verdict to move for a new trial on the Judge's minutes, on the ground that the damages awarded him are too small. It authorizes this mode of reviewing the proceeding at the trial only in three cases: upon exceptions, for insufficient evidence, and for excessive damages. By insufficient evidence is intended a case where the verdict is contrary to the evidence-not where the jury have found a verdict on evidence. A verdict for excessive damages is, in one sense, a verdict upon insufficient evidence, but its enumeration in the statute shows that it was not supposed to fall, necessarily or properly, within that class of cases. A verdict upon insufficient evidence, means a verdict for a party upon evidence insufficient to establish his right to recover, and which, therefore, ought not to stand. Moore v. Wood, 19 How. Pr. 405. 111. Sixth subdivision.-Where the verdict of the jury is clearly against the evidence, a new trial will be awarded. Bagley v. Eaton, 8 Cal. 159. 112. Where there are several separate defenses, each of which is sufficient to defeat the action, and these defenses are submitted to the jury, with evidence in support of each, and the verdict is general for the defendants, it cannot be set aside, if it be right as to any one issue, through wrong as to all the others. Kidd v. Laird, 15 Cal. 161. 113. The verdict of a jury should not be disturbed, and a new trial granted, when rendered upon a question of fact, where the evidence is conflicting, and where no rule of law appears to have been violated. Johnson v. Pendleton, 1 Cal. 133; Scannell v. Strahl, 9 Id. 177; Weddle v. Stark, 10 Id. 303; Bensley v. Atwill, 12 Id. 240; Ritter v. Stock, 12 Id. 402; Mc Garrity v. Byington, 12 Id. 432; Visher v. Webster, 13 Id. 60; Stevens v. Irwin, 15 Id. 504. 114. Unless the illegal evidence could have no influence upon the verdict, the presumption is that it did have some weight with the jury, and a new trial should be ordered. Santillan v. Moses, 1 Cal. 93. 115. Where the law declares certain facts conclusive evidence of fraud, a verdict against such conclusion will be set aside; but where the facts are declared merely presumptive evidence of fraud, the jury may find against such presumption. Billings v. Billings, 2 Cal. 107. 116. But when the alleged error consists in the final conclusion of law or fact drawn from the testimony, and the evidence is certified to the Court by the referee, the proper course is to move to set aside the report and for a new trial. Branger and Driard v. Chevalier, 9 Cal. 353. 117. The appellate Court will decline to review the facts of the case, unless an assignment of errors shows that the Court below refused an application for a new trial, made on the ground that the verdict was contrary to evidence, and that only as an appeal from the refusal to grant a new trial. Smith v. Phelps, 2 Cal. 121 ̊; Griswold v. Sharpe, 2 Id. 23; Whitman v. Sutter, 3 Id. 179. 118. On a question of fact, the plaintiff testified one way, and the defendant directly the contrary, and the defendant introduced a letter of the plaintiff in evi |