3 Johns. 239 | N.Y. Sup. Ct. | 1808
If this had been an action quare clausum •fregit, in which the right to the freehold came in the ques
Rule refused.
Goodrich v. Walker, January term, 1800. Brantingham v. Fay, April term, 1800. Malin v. Brown, January term, 1803.
See 2 Tidd, K. B. Prac. (2d ed. 812.) In Wilson v. Rastall, (4 Term, 753.) Lord Kenyon said, “ There is not a single instance where a new trial has been refused in a case where the verdict has proceeded on the mistake of the judge. Where, indeed, the jury have formed an opinion upon the whole case, no new trial in a penal action has been granted, though the jury have drawn a wrong conclusion : So, too, in ordinary, where the damages are small, and the question too inconsiderable to be re-tried, the court have frequently refused to send the case back to another jury.. But wherever a mistake of the judge has- crept in, and swayed the opinion of the jury, I do not recollect a single case in which the court have ever refused to grants new trial.”