18 Tenn. 499 | Tenn. | 1837
delivered the opinion of the court.
In this case a trial was had at the May term, 1836, of the Warren circuit court, and a verdict was had for the defend
The. counsel for the defendants in error insist, as there has already been two new trials in the cause, the court is forbidden by the act of 1801, c 6, § 59, to grant another. The act says “that not more than two new trials shall be granted to the same party.” This means, that where the facts of the case have been fairly left to the jury upon a proper charge of the court, and they have twice found a verdict for the same party, each of which having been set aside by the court; if the same party obtain another verdict in like manner, it shall not be disturbed-. But this act did not intend to prevent the court granting new trials for error in the charge of the court to the jury, for error in the admission of, or rejection of testimony, for misconduct of the jury, and the like.
This we should consider the proper construction of the act, if we were now for the first time called upon to expound it; but such having been the uniform practice of the courts since its passage, we are the better satisfied with this view of it. Taking the interpretation of the act here given to be the true one, and it will be seen its provisions are not in the way of this court granting the new trial now asked for. There have been but two new trials heretofore granted to the same party in this cause, and one of them having been awarded by this court for the misdirection of the jury by the circuit court, we would be at liberty to grant a new trial again in the same cause.
2. But defendants in error insist that there is no evidence ¡0 this record that all the proof is set out in the bill, of excep-
Judgment affirmed.