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evidence of the same kind or degree as that previously given and upon the same points.'

An exception to the general rule: In ejectment for military bounty lands, where the principal question in the litigation is the identity of the soldier, new trials have been granted on newly discovered evidence which is merely cumulative, or for the purpose of admitting evidence to impeach a principal witness. Such cases are, however, deemed exceptional and the general rule does not apply. Jackson v. Hooker, 5 Cow. (N. Y.) 207; Jackson v. Crosby, 12 Johns. (N. Y.) 354; Jackson v. Kinney, 14 Johns. (N. Y.) 186.

(6) It must be such as ought to produce on another trial, an opposite result upon the merits of the case."

§ 13. Surprise.--Any unexpected injurious situations in which one of the parties litigant may be placed without any fault of his own. Any unforeseen disappointment in some reasonable expectation, against which ordinary prudence would not have afforded protection. But the surprise must have occurred in reference to some matter material to the issue on trial and injury has resulted therefrom, without any negligence or want of skill in the complaining party."

§ 14. When a New Trial Will Be Granted for Surprise.The granting of a new trial on the ground of surprise rests

'Parshall v. Klinck, 43 Barb. (N. Y.) 203; Cole v. Cole, 50 How. Pr. 59. Jackson v. Kinney, 14 Johns. (N. Y.) 186; Moore v. Philadelphia Bk., 5 S. & R. (Pa.) 41; Bond v. Cutler, 7 Mass. 205; Evan v. Rogers, 2 N. & M. (S. C.) 503; Stone v. Clifford, 5 La. 11; Knox v. Work, 2 Binn. (Pa.) 582; Schlencker v. Risley, 3 Scam. (Ill.) 487; Geneva, etc., R. Co., v. Sage, 35 Hun (N. Y.), 95; White v. State, 17 Ark. 404; Arnold v. Skaggs, 35 Calif. 684; Moore v. Ulm, 34 Ga. 565; State v. Clark, 16 Ind. 97: Richards v. Nuckalls, 19 Iowa, 555; Goff v. Mulholland, 33 Mo. 209; Howard v. Winters, 3 Nev. 539; Smith v. Matthews, 6 Mo. 600; Crozier v. Cooper, 14 Ill. 139; Crafts v. Union, etc., Ins. Co., 36 N. H. 44: Winfield v. Rhea, 77 Ga. 84: Town of Kirby v. Waterford, 14 Vt. 414; Martin v. Garver, 40 Ind. 381; Hupp v. McInturf, 4 Ill. App. 449.

3 Platt v. Monroe, 34 Barb. (N. Y.) 291; Dewey v. Frank, 62 Calif. 343; Peers v. Davis, 29 Mo. 184; Fretwell v. Laffoon, 77 Mo. 26; Halfield v. Macey, 25 How. Pr. (N. Y.) 193; Oakley v. Sears, 7 Robt. (N. Y.) 111.

4 Merrick v. Britton, 26 Ark. 496: Hober v. Lane, 45 Miss. 608; Todd v. State, 25 Ind. 212; Holley v. Christopher, 3 Mon. (Ky.) 14; Orthing v. Gunderscheimer, 12 Fla. 640; Jackson v. Warford, 7 Wend. (N. Y.) 62; Holliday v. Holliday, 72 Tex. 581: Beadle v. Graham, 66 Ala. 102; Brooks v. Douglass, 32 Cal. 208; Blake v. How, 1 Aik. (Vt.) 306; Chicago, etc., R. Co. v. Vosburg, 45 Ill. 311.

5 Walker v. Kretsinger, 48 Ill. 502; O'Conner v. Duff, 30 Mo. 595; Burt v. Palmer, 32 Vt. 244; Dodge v. Strong, 2 Johns. Ch. (N. Y.) 228; Carrell v. McCullough, 63 N. H. 95; Stewart, etc., Co. v. Coulter, 3 Utah, 174.

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in the discretion of the court,' and no uniform rule can be stated to show under what circumstances the discretion will be exercised in favor of the complaining party. The irregular calling of the trial docket; misleading statements of the trial judge; inability to reach court occasioned by high water;' sickness of a party or his own family; an erroneous supposition that the plaintiff's death abated the suit; and other like matters have been held to furnish sufficient cause for a new trial on the ground of surprise.

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15. When It Will Not Be Granted. When the complaining party has been guilty of some negligence or carelessness, as where he relied upon his counsel's telling him that the counsel for the opposing party would take no advantage of his absence; or where he resided in another county and mistook the time of trial; or because he relied upon his attorney to be present; or where he assumed that his cause would not be reached and absented himself;" negligence of counsel employed;" or his inexcusable absence;" and in other like cases, the application for a new trial has been denied.

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§ 16. Mistake.-The result of ignorance of law or of fact which has misled a person to commit that which, if he had not been in error, he would not have done." A failure to make a defense to an action through the mistake of a party, arising from a misleading remark or ruling of the court, will be a sufficient cause for the granting of a new trial." And so also a mistake of counsel in certain cases where the mistake is

'Williams v. Montgomery, 60 N. Y. 648; Hill v. Dueslinger, 61 Iowa, 240; Evans v. Rugee, 63 Wis. 31; Coker v. State, 20 Ark. 53; Board etc., v. Linscott, 30 Kan. 240.

"White v. Ryan, 31 Ala. 400; Brock

v. Southern, etc., R. Co., 65 Ala. 79. Mayer v. Duke, 72 Tex. 445.

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9 Ferrill v. Marks, 76 Ga. 21; Brown v. Warren, 17 Nev. 417; Gei

* Donnallen v. Lenox, 6 Dana ger v. Burke, 3 S. & M. (Miss.) 439; but (Ky.), 89.

3 Edsall v. Ayers, 15 Ind. Clark v. Jarett, 58 Tenn. 467.

see Sturgeon v. Hitchens, 22 Ind. 286; 107; Triplet v. Scott, 5 Bush (Ky.), 81.

4 Vannerson v. Pendleton, 8 S. & M. (Miss.) 452. In this case the party was his own counsel.

5 White v. Martin, 63 Ga. 659; Whitworth v. Murphy, 29 Iowa, 470; Sherrard v. Olden, 6 N. J. L. 344.

6 Broas v. Mersereau, 18 Wend. (N. Y.) 653.

16 Gelton v. Hawkins, 2 J. J. Marsh. (Ky.) 1.

11 Yates v. Monroe, 13 Ill. 212.
12 Blacketer v. House, 67 Ind. 414;
Beal v. Codding, 32 Kan. 107.

133 Jeremy's Equitable Jus., 2358.
14 Parks v. Nichols, 20 Ill. App. 143.

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inexcusable,' or where a witness makes a mistake in giving material testimony which probably affected the verdict."

V. THE APPLICATION FOR A NEW TRIAL.

17. By Motion in Courts of Law.-As a general rule the application for a new trial is made by a motion in writing, stating the grounds upon which it is based and supporting the same by affidavits or other proofs where the causes relied upon are matters outside of the record. It must in general be made in the court where the trial is had and usually at the term at which the verdict or decision is rendered, though the practice is not uniform in all the States.'

§ 18. New Trials in Equity.-It is of the common jurisdiction of courts of equity to relieve against mistakes in matters of fact, and to set aside judgments at law and allow new trials on the ground of newly discovered testimony, surprise or mistake. Story, in his work on Equitable Jurisprudence,' in speaking of mistakes, says: "This is sometimes the result of accident, in its large sense, but, as distinguished from it, it is some unintentional act or omission, error arising from ignorance, surprise, imposition or misplaced confidence." In the note thereto it is remarked: "Mr. Jeremy defines mistake, in the sense of a court of equity, to be 'that result of ignorance of law or of fact which has misled a person to commit that which, if he had not been in error, he would not have done.'"* And in speaking of the relief granted by courts of equity from the effect of a judgment at law, the author first named says: "So if a party has, bona fide, entirely forgotten the facts, he will be entitled to relief, because, under such circumstances, he acts under like mistake of the facts as if he had never known them." A party sued at law, having a defense of which he does not know, or of which he can not avail himself at law,

1 Symons v. Bunnell, 80 Calif. 330; Prince v. McIlvain, 3 Brev. (S. C.) 419; McCune v. Northern, etc., R. Co., 18 Fed. Rep. 875; but see Birdwell v. Cox, 18 Tex. 535.

2 Hewey v. Nourse, 54 Me. 256; Coddington v. Hunt, 6 Hill (N. Y.) 595; Wilson v. Brandon, 8 Ga. 136; Huson v. Egan, 6 N. Y. Supp. 661.

Davis v. Menasha, 21 Wis. 491;

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either for the reason that it is purely equitable in its nature, or because, by the rules of law, he can not avail himself of it, may enjoin the judgment by bill or petition in equity.'

§ 19. The Subject Continued.-Courts of equity are invested with jurisdiction to decree new trials in actions of ejectment, when the judgment has been obtained by accident, mistake or fraud. But it is contrary to all rules of proceeding, where the distinction between equity and law exists, to try an ejectment suit in a court of equity. In all cases in which the title is legal, and not equitable, the remedy is ample and complete at law and no necessity can exist for requiring a court of equity to assume jurisdiction. When the question of accident, mistake or fraud has been found to exist and the new trial granted, the impediment to proceedings at law is removed; the jurisdiction is at an end. But as the parties have no right to receive or retain any benefits of the accident, mistake or fraud producing the judgment, the court may decree the possession of the premises to be restored to abide the event of a trial of the title in the ejectment suit. A party who obtains an unjust advantage has no right to retain it."

§ 20. What is Necessary to Maintain the Bill or Petition. -Before a bill or petition can be maintained to set aside a judgment to which there was a good defense at law, known to the defendant at the time it was rendered, it must clearly appear that the enforcement of the judgment would be unjust and against conscience, and moreover, that the defendant was prevented from making his defense to the action in which the judgment was obtained by fraud, mistake, accident or surprise, without laches, negligence, or default on his part or those representing him.'

VI. NEW TRIALS UNDER STATUTES.

21. Traditions of the Common Law.-A title to real estate has, under the traditions of the common law, been held, in all the States where that law prevailed, to be too important, we might almost say, too sacred, to be concluded forever by the result of

1 Vennum v. Davis, 35 Ill. 568; C. 8 Mulkey, J., in Clark v. Ewing, 93 & E. I. R. R. Co. v. Hay, 119 Ill. 493 Ill. 574 (1879). (1886).

? Walker, J., in How v. Mortell, 28 Ill. 478 (1862).

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one action between the contesting parties. II nce those States which, by abolishing the fictions of the action of the common law, and substituting a direct suit between the parties actually claiming under conflicting titles, which according to the nature of this new proceeding would end in a judgment concluding both parties, have found it necessary to provide for new trials to such extent as each State Legislature has thought sound policy to require. These provisions for new trials in actions of ejectment are not the same in all the States, but it is believed that almost all of them which have abolished the common law action have made provisions for one or more new trials as a matter of right.'

§ 22. New Trials Under Statutes.-In many States new trials in ejectment are allowed under statutory provisions. As an illustration we quote the statute of Illinois:

NEW TRIAL-The court in which such judgment shall be rendered, at any time within one year thereafter, upon the application of the party against whom the same was rendered, his heirs or assigns, and upon the payment of all costs and damages recovered thereby, shall vacate such judgment, and grant a new trial in such cause; and the court upon subsequent application, made within one year after the rendering of the second judgment in said cause, if satisfied that justice will thereby be promoted, and the rights of the parties more satisfactorily ascertained and established, may vacate the judgment and grant another new trial; but no more than two new trials shall be granted under this section.

By the former part of this statute, the unsuccessful party if he makes the application and pays the costs and damages within one year after the rendition of the first judgment, is entitled to another trial as a matter of right without showing cause. In the action of ejectment as in other civil cases, the party against whom a verdict is returned is also entitled to a new trial, if sufficient legal excuse exists, such as a misdirection on the part of the court, or a finding of the jury unsupported by the evidence. The decisions of trial courts refusing new trials in such cases, may be reviewed on error or appeal. But the application allowed by the latter part of the statute stands on a different footing. The court is authorized, within one year from the rendition of the second judgment, to vacate such judgment and award a new trial, if satisfied that justice will be promoted, and the rights of the parties more satisfactorily

Farmers Loan & Trust Co. v. Waterman, 106 U. S. (16 Otto) 114 (1881).

R. S. Ill., Gross' Ed., 1868, 247: R. S. 1845, 208, § 30; R. S. Ill., 1889, 599, § 35; Starr & Curtis' Statutes (Ill.) 989.

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