10 Wend. 285 | N.Y. Sup. Ct. | 1833
By the Court,
An alternative mandamus having been heretofore granted in this cause, 5 Wendell, 114, the defendants have made a return. To that return there is a demurrer and joinder. The facts are not varied from what they were when the alternative was granted. The points presented are the same formerly discussed. In the opinion delivered by Mr. Justice Sutherland, the whole case is fully examined, and the cases which are applicable, elaborately reviewed. Several principles are there sustained, both by argument and authority, and I shall accordingly consider as settled, 1. That a writ of mandamus lies where a party has a legal right, and no other appropriate remedy; 2. That it does not lie to an inferior tribunal, in cases where such tribu- - nal has the right of exercising its discretion ; 3. That the discretion which this court cannot control, is one governed by no fixed legal principles; 4. That in all cases where an inferior
In the decision which we are to make, we are to be governed solely by legal principles; we have no discretion to exercise ; and should we be mistaken in the law applicable to the case, our decision is subject to review.
New trials are asked for on various grounds. The most common are, 1. An error of the court in the decision of some question of law upon the trial; 2. An error of the jury in finding a verdict against evidence, or the weight of evidence; 3. On the ground of newly discovered evidence. There are many others, but they need not be here mentioned. When the trial takes, place in a court of common pleas, and the court itself commits an error, that is to be corrected by a bill of exceptions and writ of error, not by mandamus. Should the jury err, and return a verdict against evidence, that error must be corrected in the same court where the trial is had, by motion for a new trial. In determining whether the verdict is against evidence or not, the court must necessarily exercise a discretion; there is no principle of law, strictly speaking, applicable. The question is whether certain evidence proves certain facts. If on this question the court draw different conclusions from those drawn by the jury, a new trial should be granted; and where a court has exercised its discretion in such a case, this court will not interfere. There must be something in the case taking from the court its discretion, to authorize the interference of this court, as in the case put by Mr. Justice Sutherland, where the testimony was clear and explicit, and uncontradicted, and yet a verdict against it, and a refusal to set aside such verdict. In such case there would be no discretion ; every verdict must be supported by evidence; where it is not, the law gives to the party injured a legal right to have it set aside and a new trial ordered. Should any court possessing the power refuse to exercise it in such a case, it would be our duty to correct the error by mandamus. In such a case, where there is no dispute about facts, there is no
With respect to granting new trials on the ground of newly discovered testimony, there are certain principles which must be
What appears to my mind an insurmountable objection to the granting a new trial in this case, is that the evidence of Russell is merely cumulative. The court below was of opinion that the testimony of Russell was not liable to that obtion. In the opinion of the court, which has been shown to ns, it is assumed, that the question whether evidence is merely cumulative, depends principally upon the materiality of the facts or matters which that evidence is to disclose as respects the point in issue. The learned judge who wrote the opinion, says : “ In my view of this objection, therefore, the true enquiry in this case is whether the newly discovered evidence establishes facts which bear directly upon the issue and were not in proof before, and which are in themselves so material to the question of the delivery and receipt of the bill at the bank, before or after twelve o’clock of the day on which it was deposited, as to afford a reasonable ground of belief that they might vary the result, or whether this further evidence merely superadds circumstances tending to confirm the for