26th April, 1870.
Before Sir E. Horwoy, Chief Judge and ©. W. Goopwrx, Esq., Assistant Judge.
Vox Gusacu v.R. Harr, to show cause why a new trial should not be granted.
Mr. Bird for plaintiff.
Mr. Hannen for defendant.
This was the hearing of a rule to shew cause why the verdict, obtained by the Plain-tiffin the recent trial before Assistant Judge Goodwin and a Jury should not be set aside, anda verdict entered for the Defendant instead, or a non-suit entered, or a new trial fEamued Judge and of being contrary to ited on the grounds of misdirection by the evidence.
Mr. Burp for Pysintiff argued as to the ground of privilege, which Mr. Hannen contended the Judge should have directed the Jury to find, there was no such plea on the recon. Privilege must be special pleaded if it is intended to be set up as a defence, unless there is the general issue; but here the Defendant has specifically denied all the allegations in the petition and has not pleaded not guilty." As tothe 2nd point, that the Judge did not leave it to the Jury to say when ther the representations were wilfully false it not ni for him to do 80, The word reilful apy on_ the face of the pleadings, and the Judge having simply pat the issues before them as developed in the petition there was no necessity for his specially directing their attention to it. Non-direction will not is ly against evidence. judge is not amount to misdirection unless the verdict todo to golovor al the potato in egy cane 5 it is enough if the Jury have had the substantial istness fairly brought before them. Then as to the point of the verdict being conto evidence he maintained that no one the evidence could deny that at least there were two sides to the question. The Plaintiff and Defendant gave diferent accounts of several of the transactions between them, and it was for the Jury to say which they believed; moreover, the Jury had all the advantage of seeing and hearing the parties giving their evidence, a thing that one merely reading 'a.newspaper report had not; and the manner of giving evidence was often a material point. The general question he would leave with the Court, merely remarking that it has never been considered a sufficient ground for granting a new trial that the balance of evidence was rather more on one side than the other. aust greatly preponderate, and here there was no such preponderance. Another rule which guides Courts in granting a new trial is that it must be the opinion of the Judge who heard the case that substantial justice has not been done. Ifhe is of opinion that there is no great mi of justice the Court will not disturb a verdict. He would apply that the rule be dismissed with costs.
Mr. Hass, on rising, wished to know if the Court would entertain the question of privilege, as if not he would not occupy the time of the Court in arguing the point. He referred to rule 48, where it is stated that the answer of a defendant shall not debar him at the hearing from giving evidence in support of a defence not expressly set up in the answer. This question of privilege had been the great Point during the trial, and one he had always insisted upon. It was true it had got struck out of the pleadings in form, but he maintained it was raised by him at the trial, and ought to have been specially pointed out to the Jury. though he had not inserted these very words, Practically his answer wasa pieaof not gully, and he thought that for a mere tornal ornis: sion the Court would not deprive him of this substantial defence.
The Court intimated an opinion that the Bunt would aig eh lou not fail oung out of the pleadings as they stand, and could not be entertained.
Mr. Haxxex then proceeded to argue that the verdict was against the evidence. The Jury had found on the 2nd count, how, with respect to this 2nd count, the petition only alleged mi tations on two occasions: These were Ins Hart's letters to the Trung
Text read from the printed page and cleaned; old type leaves the occasional error.