Davis v. Jenney
42 Mass. 221
Mass.
1840
Check Treatment
Shaw, C. J.

We have no doubt that the verdict, in this case, is open to the inquiry, whether it was against the weight of evidence, and liable to be set aside on that ground. The authority cf the court to set aside a verdict does not depend upon *223the nature and quality of the evidence, upon which the jury have found it; though it often happens, that the character of the evidence is such as to afford the jury much better means of judging of it, than the court can have of reviewing it; as where much depends upon localities, and the jury have a view ; or upon minute circumstances, and there is conflicting testimony ; or upon the credit of a witness, who is strongly impeached by one set of witnesses, and supported by another. In all such cases, the consideration, that the jury had means of judging of facts, which cannot afterwards be laid before the court, in their complete strength and fulness, will always have a prevailing and often a decisive influence upon the judgment of the court, in support of the verdict. The case of Morton v. Fairbanks, 11 Pick. 368, decides nothing against the power of the court to set aside the verdict, where the evidence, in whole or in part, was derived from inspection. It held, that on a trial, the question of fact must be decided by the jury. But in setting aside a verdict as against evidence, on a motion for a new trial, the court do not find any fact, or decide definitively any question of fact; they merely inquire and decide, whether it is expedient and consonant with the purposes of justice, that the evidence should be submitted to another jury.

The verdict being for the plaintiff, the motion to set it aside, as against evidence, and on account of misdirection, is made by the defendant. It was argued, that there was an inconsistency in the directions of the judge, in telling the jury, that the question was to be decided oh inspection of the bill, and afterwards indicating other circumstances. But we think this was given in reference to the evidence as it then stood. The report states, that no evidence was offered but the bill itself. The case was to be decided upon inspection, taken in reference to the relations in which the parties stood to each other, and the admissions made by them, respectively, before the jury. Had the judge stated, that it must be decided by inspection only, without regard to any other considerations, we do not see how it could have been supported. The question, as the evidence stood, was to be determined by inspection ; but the inspection was to be made *224by the jury, with eyes and understandings qualified and prepared to make it by a knowledge of the subject matter, the nature, purposes, and effect of such acts, and the relations of the parties to each other.

Another exception was taken to the comments of the judge upon the evidence ; but it is well settled, that the comment of a judge upon evidence, not involving any opinion or direction in matter of law, is not a proper ground of exception.

We think that the directions of the judge were sufficiently favorable for the defendant, and were correct, to wit, that a material alteration after the indorsement wrould discharge the indorser ; that an extension of the time was a material alteration, and that the burden of proof was upon the defendant, to show the alteration; or, perhaps, to state this last proposition with a little more precision, the proof or admission of the signature of a party to an instrument is prima facie evidence, that the instrument written over it, is the act of the party ; and this prima facie evidence will stand as binding proof, unless the defendant can rebut it by showing, from the appearance of the instrument itself, or otherwise, that it has been altered.

In regard to the last instruction to the jury, namely, that if they were satisfied that there had been an alteration in the bill, the presumption would be, in the absence of other evidence, that it was done after the signature of the instrument; the court consider it a question of very great importance, which it is not necessary to decide in the present case, and on which they give no opinion. It was wholly in favor of the defendant, and he cannot except to it. Suppose it to have been followed and actea upon by the jury, as regularly we must, it follows that according to the finding of the jury, no alteration had been made in the bill, at any time.

We see no ground to set aside the verdict as against the weight of evidence.

Judgment on the verdict.