33 F. 825 | U.S. Circuit Court for the Southern District of Georgia | 1888
Before the argument of these motions, plaintiff proffered the annexed stipulation, which defendant declined to accept. Motions are now made for new trials, on the ground that no proof was given upon the trials that the protest to the entry by the Challenger, of August, 1857, was signed by the plaintiff’s firm, or by any member thereof, or by any authorized agent, as required by the protest act of 1845. Contrary to the impression formed at the argument, 1 am of the opinion that both motions must be granted. Upon re-examining the testimony of Mr. Stanwood in the action first tried, there does not seem to bo such a variance between it and his later evidence as to warrant a different disposition of the two motions. The legal propositions advanced by the plaintiff are undoubtedly sound; but the facts as disclosed on the record are not sufficient to warrant such ail application of them as will .sustain the verdict. The protest required by the act of 1845 must be
In the smaller action, the missing evidence only affects the Challenger entry, and a new trial will not be ordered if plaintiff stipulates to reduce the verdict by the amount of that entry.
Upon the new trial the missing protest was found, and verdict was directed for plaintiff.