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dence, written before the commencement of the action, flatly contradicting his testimony: Held, that on this evidence a verdict for the plaintiff must be set aside.

The jury were bound to disregard plaintiff's oath when thus contradicted. Boyd v. Colt, 20 How. Pr. 384.

119. Though a verdict upon conflicting testimony should not be set aside for being against evidence, unless it is very clearly so, yet since, in such cases, very slight considerations may influence the jury to accept the testimony of one witness in preference to that of another, the admission of irrelevant evidence, calculated in any respect to prejudice a party, is ground for setting aside a verdict. Whiting v. Otis, 1 Bosw. 420.

120. Where, on the trial of a cause, the jury are instructed in respect to the rule of law which they are to apply, as requested by the defendants, and a verdict passes against them, and they move for a new trial on the ground that the verdict is contrary to evidence, the defendants have a right, for all the purposes of such motion, to insist that such instruction is correct. If on a fair application of the charge, the verdict is contrary to evidence, it will be set aside and a new trial granted. In such a case, it is erroneous to refuse a new trial on the ground that the plaintiff has some equity, disclosed by the evidence, which entitles him to retain the verdict, especially when the pleading neither intimates its nature or existence, nor an intention to assert and enforce it. Bunten v. Orient Mut. Ins. Co., 4 Bosw. 254.

121. Seventh subdivision.-For error of law excepted to, an appeal lies without motion for new trial. Rice v. Gashirie, 13 Cal. 55.

122. The granting a nonsuit on the facts is a question of law, and if the proper exception be taken, may be reviewed on appeal without motion for new trial. Cravens v. Dewey, 13 Cal. 42; Darst v. Rush, 14 Id. 83.

123. A verdict obtained upon incompetent evidence, may be set aside; but this cannot be done if the evidence were admitted without objection; nor can it be done upon the ground that effect was given to the evidence by the jury, even if objected to. McCloud v. O'Neall, 16 Cal. 392.

124. On motion for new trial, on the sole ground that the verdict is not sustained by the evidence, the Court below, in passing on the motion, cannot disregard any portion of the evidence before the jury. The question as to the competency of the evidence cannot be raised on such motion. Id.

125. In such cases, that which vitiates the verdict is the error of the Court in admitting the evidence; and if the party seeking to set aside the verdict be not in position to take advantage of this error, he cannot object that the evidence was improperly admitted. l.

126. Where improper evidence is submitted to the jury, under objection, a new trial will be granted on appeal, unless the Court can see that such evidence could not possibly have had an effect upon the jury prejudicial to the appellant. Innis v. Steamer Senator, 1 Cal. 462. “And the presumption is that it was prejudicial. Id. 93.

127. In a suit to recover goods on the ground of fraud in the vendee, the admission of evidence that he was insolvent two months after the purchase is not sufficient to reverse the judgment, unless it is clearly shown that the evidence was irrelevant, and injurious to the party objecting. Coghill v. Boring, 15 Cal. 213.

128. Where competent evidence was given, which might have had an influence on the mind of the jury in determining whether certain premises in dispute were included within that portion of the Mission Dolores which was claimed to be confiscated, or that portion which was said to have been reserved : Held, that a new trial should be granted on the ground of the admission of improper testimony. Santillan v. Moses, 1 Cal. 92.

129. Whether driving piles in Front street, in the city of San Francisco, (the street being laid out over the waters of the bay) is an obstruction to the free use of the street by the public, is a question of fact for the jury; and when that question was not so submitted, a new trial was granted. T'he City of San Francisco v. Clark, i Cal. 386.

130. Although the Supreme Court may be satisfied that the verdict of a jury is reasonable in amount, a new trial will be granted where an erroneous instruction has been given by the District Judge, which may have influenced the verdict. Yonge v. Pacific Mail S. S. Co., 1 Cal. 354.

131. The whole charge of a District Judge to the jury should be taken together,

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146. The Court may require a remittitur of a portion of an excessive judgment, or grant a motion for a new trial. Benedict v. Coyen, 4 Cal. 382.

147. When a new trial was to be had on payment of costs : Held, that the acceptance of costs did not waive the right to appeal from the order granting a new trial. Tyson v. Wells, 1 Cal. 378.

148. It is not error in the Court below to refuse a new trial, provided the successful party will consent to a reduction of his judgment. Chapin v. Bourne, 8 Cal. 296.

$ 194. When application for new trial to be made upon affidavit or statement.

When the application is made for a cause mentioned in the first, second, third and fourth subdivisions of the last section, it shall be made upon affidavit; for any other cause, it shall be made upon a statement prepared as provided in the next section.

1. Where a motion for a new trial is made on the ground of surprise, the affi. davits on which the motion is founded should set forth particularly and distinctly the facts which the party expects to be able to prove by his witnesses on a new trial : Held, where the affidavits did not set forth the facts to which the party expected his witnesses would testify, that a new trial was properly refused. Rogers v. Huie, 1 Cal. 429.

2. The affidavits of the witnesses themselves should also, if practicable, be procured, setting forth the facts, within their knowledge, to which they can testify in case a new trial should be granted. Id.

3. A notice of motion for new trial, unaccompanied by the affidavit required by statute, will not entitle the statement of the grounds of the motion to be considered on appeal. Adams v. City of Oakland, 8 Cal. 513.

$ 195. Notice of motion for new trial; when and how statements or affidavits to be made and filed.

[1861.] The party intending to move for a new trial shall give notice of the same, as follows : When the action has been tried with a jury, within five days after the rendition of the verdict; and when the action has been tried by the Court or a referee, within ten days after receiving written notice of the filing of the findings of the Judge, or the report of the referee; and he shall within five days after giving such notice, or within such further time, not exceeding twenty days, as the Court, or the Judge thereof, may by order grant, prepare and file with the Clerk the affidavit required by the last section, or a statement of the grounds upon which he intends to rely. If no affidavit or statement be filed within five days after the notice, or within such further time as the parties may agree upon, or the Court or Judge thereof may by order grant, the right to move for a new trial shall be deemed waived. The grounds of the motion shall be specifically set forth, and the statement shall contain so much of the evidence, or reference thereto, as may be

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and when considered in this way, if it appear that the jury could not have been misled by it, a new trial will not be granted, although some of the instructions may in slight respects be repugnant to each other. Carrington v. Pacific Muil S. S. Co., 1 Cal. 478.

132. Instructions of the Court to the jury must all be taken together, and where thus viewed, the case appears to have been fairly presented to the jury, the verdict will not be disturbed. Dwinelle v. llenriquez, 1 Cal. 390.

133. An erroneous instruction will be disregarded, if the jury came to the proper understanding, and rendered a correct judgment. Haskell v. Ilc Henry, 4 Cal. 411.

134. Though instructions may not be technically correct, yet if the questions upon which the case turns seem to have been fairly put to the jury, and the verdict sustained by the testimony, the Supreme Court will not interfere. Smith v. Harper, 5 Cal. 331.

135. The Supreme Court will not disturb the instructions of the District Court to the jury, on the ground there was no evidence upon which to base them, when there was some evidence, although it may have been slight. Perlberg v. Gorhan, 10 Cal. 125.

136. In considering whether a single proposition contained in a charge neous, it is to be construed in connection with the context. The whole charge, or so much of it as is connected with and tends to modify or explain the part claimed to be objectionable, is to be considered in determining whether an error has been committed. Admitting that the part of the charge excepted to, when isolated from the coutext, is erroneous, yet a new trial is not to be granted for that cause, when it appears that the jury could not have been misled thereby. Sperry v. Mil. ler, 16 N. Y. (2 E. P. Smith's) R. 407.

137. It is not ground of setting aside a verdict that evidence was rejected at one stage of the trial, the material points of which were afterwards admitted. Morgan v. Reid, 7 Abb. Pr. R. 215.

138. A new trial will be ordered on the ground of the improper exclusion of a witness, although it does not appear probable that his testimony could affect the result. Brown v. Richardson, 20 N. Y. (6 Smith) 472, 476.

139. It seems that a new trial will not be granted on account of an expressior in the charge which could not, under the circumstances, have misled the jury. ( C. B. (N. S.] 740); Johnson v. Hudson R. R. Co., 20 N. Y. (6 Smith) 65, 74.

140. In an action on an indorsement by a corporation of negotiable paper, th questions whether the indorsement was for accommodation of a third party or fi the benefit of the corporation, and if an accommodation indorsement, whether tl plaintiff took the note on representations of the officers of the corporation that was otherwise, are questions for the jury. If the Judge decides these points an*** new trial should be granted. Bridgeport City Bank v.

Empire Stone Dressing

Cat 30 Barb. 421.

141. In an action to recover damages, under the statute, for the death of caused by the wrongful act or neglect of the defendant, notwithstanding the sta makes the jury the judges of the measure of damages, it is the duty of the (*22*. consideration in estimating the pecuniary loss; and if explicit instructions are refused, when asked to be given, or erroneous instructions are given, it is cause for a new trial. Green v. El udson River R. R. Co., 32 Barb. 25.

142. On the trial of an action upon a written contract, questions arose as to its construction, as to the admissibility of evidence, as to whether the acts of the parties did not amount to an abandonment of it, and as to the rule of damages, if a recovery were allowed ; and a motion to dismiss the complaint was made and denied. Exceptions were taken upon either side to the rulings of the Court upon these points. The Court directed a verdict for the plaintiff for the amount claimed, subject to the opinion of the Court at general term: Held, a mis-trial; and that a new trial must be had. Huvemeyer v. Cunningham, 8 Abb. Pr. R. 1.

143. The Court may impose terms.-The Court may impose terms upon granting a new trial. Battelle v. Conner, 6 Cal. 140.

144. Where a party complies with the terms imposed, and avails himself of the advantage of the order, he cannot afterward question its correctness. Id.

145. The terms of new trials are peculiarly within the discretion of the Court, with the exercise of which the appellate Court will not interfere, except on a clear showing of abuse or grossly unreasonable terms, Rice v. Gashirie, 13 Cal. 54.

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On the argument, reference may also be made to the leadings, depositions, and documentary evidence on file, and to the mimtes of the Court. If the application be made upon affidavits filed, the adverse party may tise counter affidavits on the hearing. Iny counter affidavits shall be filed with the Clerk one day at least previous to the hearing. The affidavits and counter affidavits, or the statement thus used in connection with such pleadings, depositions, and minutes of the Court, as are read or referred to on the hearius, shall constitute, without further statement, the papers to be used on appeal from the order granting or refusing the new trial. To identify the affidavits, it shall be sufficient for the Juge or Clerk to indorse them at the time, as having been read or referred to ou the hearing. To identify any depositions or minutes of the Court read or referred to on the hearing, it shall be sufficient that the Judge designate them in his certificate as having

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