one of the jurors to inform the court that he ground for doubt on the evidence which way did not assent to it. Ib. the fact is, the verdict is conclusive. North

27. The jury had settled their minds as to field Bank v. Brown, cited in Hill v. New the rights of the parties, but, being in doubt Haven, 37 Vt. 512.

as to the proper mode of making a computa- 36. To warrant the setting aside of a vertion of what was due upon an execution, called dict as against evidence or the weight of evithe county clerk into the jury room, and, upon dence, it is not sufficient that the verdict is their inquiry how the computation should be merely against a preponderance of the testimade, he told them, and told correctly. Held, mony, but it should appear to be manifestly that this was an irregularity, but, being with- and palpably wrong. Weeks v. Barron, 38 Vt. out the fault of the parties and no error or 420. injury having resulted, it furnished no sufficient cause for a new trial. 35 Vt. 39.

28. Contrary to law. When the verdict is manifestly contrary to law, a new trial will be granted. Hall v. Downs, Brayt. 168.

66

37. Outside interference. Under G. S. Dennison v. Powers, c. 37, s. 16, providing that if a party obtaining a verdict in his favor" shall give to a juror any victuals or drink 'by way of treat," this shall be a sufficient reason to set aside the verdict;-Held, on a motion to set aside a verdict 29. Law or charge misunderstood. A obtained by a town, (1), that the mere furnishing new trial will not be granted on the ground of food or drink to a juror, when confined that the jury mistook the law when both mat- within the limits of ordinary hospitality, and ters of law and of fact were submitted, where not furnished for any improper purpose, and they applied the law correctly, if they found where it had no improper influence upon the certain facts. Smith v. Hubbard, 1 Tyl, 142 verdict, does not fall within the statute; (2) 30. A new trial is somtimes granted when that merely a ratable inhabitant of the town is there is reason to apprehend that the jury may not such a "party;" and that the furnishing have mistaken the purport of the instruction, referred to must be at the expense of the town, and thus have been misled in an important or must be the act of some one of its authorparticular materially affecting the merits; but ized agents. Carlisle v. Sheldon, 38 Vt. 440. held otherwise, where it was merely conjectural 38. The verdict of a jury may be properly whether there was any misapprehension in the set aside and a new trial granted, where, during minds of the jury, and where the matter was the trial, conversations were had with and in indifferent, or of slight importance. Sherman the presence of the jury by the friends of the v. Champlain Transportation Co., 31 Vt. 162. prevailing party, which were calculated and 31. It is not the legal duty of the county intended to influence them to render the verdict court to set aside a verdict, because the jury they did, though it is not shown that the vermisunderstood the charge of the court, as to dict was in fact influenced thereby, and damages. Wheatley v. Waldo, 36 Vt. 238. although such conversations were had without 32. Nor, because some of them were the procurement or knowledge of the prevailinduced to agree to a verdict, through the ing party, and were listened to by the jurors erroneous belief that the cause was reviewable. without understanding that they were guilty of Newton v. Booth, 13 Vt. 320. misconduct in so doing. McDaniels v. McDan

33. Nor, because misinformed by the fore-iels, 40 Vt. 363. man that full costs would follow a verdict for a particular sum in damages. Cutler v. Cutler, 43 Vt. 660.

39. It is not, as matter of law, necessary in such case, that the moving party should either allege in his motion, or prove, that he had not

34. The setting aside of verdicts for such knowledge of such misconduct;-such case is like causes, discountenanced. 13 Vt. 320. 36 distinguishable from cases where the objection Vt. 238. 43 Vt. 660. Sheldon v. Perkins, 37 to the juror is some matter that existed before Vt. 557. the trial. Ib.

35. Verdict against evidence. The 40. In order to justify the granting of a supreme court has power, under the statute, to new trial because a paper not used on the trial grant new trials of cases tried in the county went to the jury with the other papers in the court, for the cause that the verdict was con- case, without design, the paper should be such trary to and unsupported by the evidence; but as to convey some information which might, by this court will not set aside a verdict as being some reasonable intendment, have influenced against the weight of evidence, except where it the verdict. Peacham v. Carter, 21 Vt. 515. is clear that the verdict is wrong, and not Winslow v. Campbell, 46 Vt. 746. warranted by any fair construction of the evidence, and where there is no room for difference of opinion, in fair judgment, as to which way the verdict should be. If there is 41. It is no ground for a petition for a new any conflict of evidence, and any reasonable trial, that the court below refused a continu

3. Error of court.

ance; or committed an error in law not set that such ruling was affirmed by the supreme forth in a bill of exceptions. Durkee v. Fessen-court, can never form the basis of a petition for den, Brayt. 167. a new trial, on the ground of surprise. Morgan

42. A petition for a new trial was dismissed v. Houston, 25 Vt. 570; and see Pettes v. Bank without hearing on the merits, where the only of Whitehall, 17 Vt. 435.

cause alleged was that the court were mistaken 53. As the ground of an application for a in the law. Purdy v. Walker, Brayt. 73. new trial, surprise is scarcely ever tenable. Such objection must be raised upon a bill of That a witness for the party was rejected exceptions allowed. Durkee v. Fessenden. as incompetent by reason of interest, is not a Nixon v. Phelps, 29 Vt. 198.

sufficient reason for a new trial, as for a surprise; nor that the county court refused, on the argument to the jury, to treat certain papers

the party supposed to be in evidence, though not formally offered and admitted. Haskins v. Smith, 17 Vt. 263.

43. It is cause for granting a new trial that the judge at the fact term refused to allow and sign exceptions, provided the cause designated as in evidence to be commented upon, which in the exceptions, if allowed and signed, would have been sufficient to induce the court to set aside the verdict. Fisk v. Steel, Brayt. 168. 44. Where a party had good reason to 54. It must be a strong case which would believe that two material witnesses would be induce the court to grant a new trial on the present at the trial and he commenced the trial ground of surprise on the trial below. where without moving for a continuance, and the the party neglected, at the proper time, to move witnesses were prevented from attending, one for a continuance. Bennett, J., in Briggs v. by being taken suddenly sick and the other by Gleason. 27 Vt. 114. breaking his leg, a new trial was granted on terms. Barrett v. Barrett, Brayt. 170.

4. Surprise on trial.

45. New trial granted for surprise and mistake of counsel on trial. Dow v. Hinesburgh, 1 Aik. 35.

5. Newly discovered evidence.

55. General rules. Courts will not in all cases refuse a new trial, where the cause stated is the discovery of new and important evidence, although it is to a point litigated at the trial. The case, however, must be a strong one to 46. New trial granted for mistake, over-induce the court to interfere. Hurd v. Barber, sight, or surprise on the trial, where the real Brayt. 170. State v. Cox. Ib. 171. merits failed of being tried. Stanton v. Bannister, 2 Vt. 464.

47. New trial granted in a criminal case, on the ground that the respondent was advised by his counsel that certain testimony against him would not be admitted, and hence he omitted to procure rebutting evidence; and that the admission of such testimony was a surprise to him and his counsel. State v. Williams, 27 Vt. 724.

56. Contradictory evidence by the same witness at different trials, to a point material, is cause for a new trial, provided that fact could not be shown at the trial. Durkee v. Fessenden, Brayt. 167.

57. To entitle a party to a new trial on the ground of newly discovered evidence, it must appear that the evidence has been discovered since the trial; that no laches are imputable to him; and that it is material. Myers v. Brownell, 2 Aik. 407.

48. A new trial will not be granted on the ground of surprise, because a witness was intro- 58. A petition for a new trial will not be duced directly to prove what was directly put sustained, which is founded upon facts which in issue; nor because such witness was inter- should have been presented to the county court ested, where his interest appeared on the as a reason for rejecting a report of referees. record, and no objection was taken. Dodge v. Fuller v. Wright, 10 Vt. 512. Kendall, 4 Vt. 31.

a

49. The surprise which affords ground for new trial must be one which is not the petitioner's own fault. Burr v. Palmer, 23 Vt. 244.

50. Surprise of party, diligence, materiality of evidence, &c., on petition for new trial, considered. Shepherd v. Hayes, 16 Vt. 486.

51. The non-production of a witness on the final trial who had testified on a former trial, is not cause for a new trial on the ground of surprise. Ib.

59. After judgment by default in an action upon a note given for a patent right, a new trial was granted, upon terms, on the ground that further use of the machine had proved the invention to be of no value, or of much less value than represented, where this ground of defense was too little known when the action was defaulted to afford any prospect of defense. Burnham v. Brewster, 1 Vt. 87. Burnham v. Hubbard, 1 Vt. 91.

60. A petition for a new trial was refused, where a judgment in the county court had ... 52. That the county court ruled the law been rendered for the defendant on demurrer different from what the party expected, and to a replication to a plea of the statute of limi

tations, the grounds of the petition being newly discovered evidence would be to relieve newly discovered evidence, and a new promise the party from the consequences of his own to pay a part after the judgment. Ferris v. neglect; and the petition was denied. Morgan Barlow, 10 Vt. 133. v. Houston, 25 Vt. 570.

61. Cumulative evidence. A new trial 69. Conclusiveness. A petition for a new will not be granted for newly discovered evi- trial on the ground of newly discovered evidence, where it is merely cumulative, and dence, was refused, because of want of due dilileaves the question still doubtful, not making gence, and because not conclusive, or decisive in a clear case. Dodge v. Kendall, 4 Vt. 31. character. Stearns v. Allen, 18 Vt. 119. Bullock v. Beach, 3 Vt. 73. Lindsey v. Danville, 45 Vt. 72.

62. Cumulative testimony, under the rule 70. A new trial will not be granted on the relating to new trials, is to the same fact liti-grounds of newly discovered evidence, where gated at a former trial and upon which testi- the verdict was general, so that it does not apmony was then given. Kirby v. Waterford, 14 pear how the jury found the fact to which the Vt. 414. new evidence applies. Briggs v. Gleason, 27 Vt. 114.

66

63. Cumulative evidence" is additional evidence of the same kind, to the same point. Bradish v. State, 35 Vt. 452.

6. Statute provisions.

64. On a petition for a new trial, on the ground of newly discovered evidence, the court 71. Chancery cause. Under the authority should regard the state of the case as it stood given to the supreme court, by statute, to grant upon the evidence on the trial. If the evidence new trials, (G. S. c. 38);—Held, that that court produced fairly and reasonably entitled the could not grant a new trial or rehearing of a party to a verdict, it could hardly be said that case determined in the court of chancery. he was lacking in reasonable diligence in not Slason v. Cannon, 19 Vt. 219. inquiring for more, though such inquiry would 72. Case "tried"-"determined." The have resulted in his finding it, and even the statute authorizing the supreme court to grant very evidence newly discovered, and perhaps new trials in cases "tried before any county decisive. Gilman v. Nichols, 42 Vt. 313. court," (Stat. 1825 s. 17,) or "determined by such court," (G. S. c. 38, s. 2,) applies only to those cases where a trial has been had, and does not reach the case of a default. Adams v. Howard, 14 Vt. 158. S. C., 14 Vt. 560; and see Scott v. Stewart, 5 Vt. 57. Hyde v. Haskill, 10 Vt. 427. Foster v. Austin, 33 Vt. 615.

65. The rule as to cumulative evidence does not exclude evidence of the same facts testified to on the trial, if these facts are material, and would, with reasonable certainty, be controlling, if established. Ib. Myers v. Brownell, 2 Aik. 407. Barker v. French, 18 Vt. 460.

66. If cumulative, it must, at least, be of Goddard v. Fullam, 38 Vt. 75; nor the case such a character as, prima facie, to raise a strong probability that it will be decisive of the case. Redfield, J., in Burr v. Palmer, 23. Vt.

246.

of a non-suit. Montgomery v. Vinton, 37 Vt. 514;-nor the case where the party failed by accident to enter bail for a review. Beckwith v. Middlesex, 20 Vt. 593.

67. Newly discovered. In trover for the 73. “Fraud, accident or mistake." conversion of certain tallow of the plaintiff sold Where a party suffers a judgment by default to the defendant by one S, the main question before a justice through his own, or his attorlitigated was whether S was authorized to make ney's, or any agent's forgetfulness of the day of the sale. Verdict for the plaintiff. S was then trial, this is not such a case of being "unjustly in the State prison upon a conviction, procured deprived of his day in court by fraud, accident by the plaintiff's testimony, for having stolen or mistake," under G. S. c. 38, s. 7, as to warthe same tallow from the plaintiff. S having ant the setting aside of the judgment on petiserved out his term and been pardoned, the de- tion. Babcock v. Brown, 25 Vt. 550. Davison fendant brought his petition for a new trial, v. Heffron, 31 Vt. 687. Denison v. True, 22 Vt. assigning as newly discovered the testimony of 42.

S, that he had authority from the plaintiff to 74. Appeal refused. In a justice writ the sell the tallow. Held, that the case was not ad damnum was laid at $10, but the copy within the recognized rules in granting new served set it at $40. The defendant appeared trials; that such testimony was rather new and judgment passed against him, he supposing created than new discovered; that to admit it the case to be appealable. The justice refused would be of bad precedent. Petition denied. an appeal. On the defendant's petition to the Waters v. Langdon, 16 Vt. 570.

county court to set aside the judgment (G. S. 68. Where testimony, claimed to be newly c. 38, s. 7,) the court dismissed the petition. discovered, was all of record in the court and Held, (1). that the case was not appealable; might have been found on reasonable search ;- (2), that the case was not one for a petition Held, that to grant a new trial on the ground of within the statute, and the court had no power

independent of the statute; (3), that if decided, 83. Affidavits in defense. In petitions as matter of "discretion," no exception lay; for new trials, and like proceedings, affidavits (4), and, if so decided, it was rightly decided. in defense should, in strictness, be taken upon Downs v. Reed, 32 Vt. 785.

II. PROCEEDINGS AND PRACTICE.

notice; if not so done, the testimony should at least be filed a sufficient length of time to enable the opposite party to prepare to meet it before the trial. Wing v. Bates, 16 Vt. 148. 75. Petition. Where a case passes to the 84. Citation-Recognizance. A petition supreme court on exceptions, a motion for a to the supreme court for a new trial in the new trial will not be entertained. The cause county court, with a citation annexed, is not for a new trial can be presented only by a "a writ of summons," requiring a recognizance petition, according to the statute. Minkler v. for costs. Minkler, 14 Vt. 558. Blodgett v. Royalton, 16 Vt. 497.

76. Consecutive motions and petitions for a new trial, pending at the same time, seem not to be warranted by precedent, or practice. Shepherd v. Hayes, 16 Vt. 486. So held in Mann v. Fairlee, 44 Vt. 672.

Vt. 560.

Durkee v. Marshall, 14 Vt. 559. 27

85. Where the recognizance was defective, which was taken on a petition for a new trial, under the statute, where judgment had been rendered by a justice on default ;-Held, that the petition should not for this cause be dismissed, but be retained and further security 77. The supreme court has no jurisdiction ordered, -the court distinguishing between to grant a new trial in the county court for such case and the case of original writs, where matters not appearing upon the record, except the statute prescribes the effect of an omission upon petition under the statute, although the of a recognizance, to wit, that the writ shall case in the supreme court is pending upon abate. Houghton v. Slack, 10 Vt. 520. exceptions. So. Royalton Bank v. Colt, 37 Vt. 415.

86. Service. Under the statute requiring notice of the petition for a new trial to be 78. Its form and verification-Affida- served upon the adverse party;-Held, that vits. In petitions for a new trial for newly service upon the party's attorney of record was discovered evidence, the petition must set forth sufficient, where such party resided out of the the history of the former trial fully enough to State. Wellington v. Aiken; cited in Bradish show the applicability and effect of the newly v. State, 35 Vt. 453. Mann v. Fairlee, 44 Vt. discovered evidence, and a statement of such 672.

new trial in a State case, is upon the State's attorney; but service upon the attorney of record would seem to be sufficient. Bradish v. State.

newly discovered evidence. To this must be 87. The proper service of a petition for a attached the affidavit of the party that the evidence is newly discovered, and also the affidavits of the witnesses from whom the new evidence is expected, of what they will testify. (Rule of 1851, 22 Vt. 670.) Bradish v. State, 35 Vt. 452. Cardell v. Lawton, 16 Vt. 606.

88. Evidence. On petition for a new trial, the court refused to receive the affidavit of an 79. The verification of a petition for a new auditor, to show what he intended by certain trial by the oath of the party really in interest terms and expressions in his report made to the was held sufficient, where the party of record, county court, upon which judgment had been in whose name the petition was necessarily rendered. McConnell v. Strong, 11 Vt. 280. brought, was out of the State. Bradish v.

State.

NOTICE.

80. A new trial will not be granted for newly discovered evidence, simply on the oath of the party interested; the motion must be accompanied with the affidavits of the newly 1. What is notice, and its effect. If one discovered witnesses. Webber v. Ives, 1 Tyl. 441. has knowledge of distinct facts affecting the 81. Judge's Minutes. On the hearing of title of property which he is about to purchase, a petition for a new trial, the minutes of the he is not at liberty to close his eyes and then judge who tried the case in the county court, screen himself under a plea of ignorance of or a copy of them, must be produced. Only in other facts connected with those facts already case they cannot be obtained will the affidavits known to him; but he is bound, in good faith, of the attorneys as to what passed at the trial to make reasonable inquiry, and will be prebe received, instead. Durkee v. Marshall, 14 sumed to have done so, and will be affected Vt. 559.

82. The judge's minutes need not be made a part of the petition. (See Rule 9, 1 Aik. 399.) Cardell v. Lawton, 16 Vt. 606. Bradish v. State, 35 Vt. 452.

with notice of all such facts as he might have learned by such inquiry. Redfield, J., in Blaisdell v. Stearns, 16 Vt. 179.

2. Whatever is sufficient to put a party upon inquiry, is sufficient to affect him with

Jotice of all those facts which he might be presumed to have learned upon reasonable inquiry. Stafford v. Ballou, 17 Vt. 329.

4. In chancery. The court of chancery has authority to grant injunctions to restrain parties from the use of their own lands and 3. Where one is put upon inquiry, and has buildings for trades and purposes in themselves the means of obtaining knowledge of all the lawful, but necessarily so noxious, unhealthy, facts, this is equivalent to notice, and he will dangerous, or unwholesome to the occupants of be charged with the consequences of actual neighboring buildings, as to destroy, or seriKnowledge. McDaniels v. Flower Brook Mfg. ously and substantially to impair, their value Co., 22 Vt. 274. 26 Vt. 684. 22 Vt. 372. for the purposes for which they were designed. Curtis v. Winslow, 38 Vt. 690.

4. Notice of an outstanding claim or defense given to a purchaser, such as to put upon him 5. An injunction against the completing the risk of payment to the vendor, must be not and using of a horse-barn, claimed to be a nuionly such as to alarm him and put him upon sance to the orator's premises, was refused, inquiry, but must be sufficient to enable him to although inconvenient, yet not so manifestly conduct that inquiry, in the usual course of and seriously injurious as to come within the such business, to a successful termination. class of cases in which such relief is granted. Adams v. Soule, 33 Vt. 538. Ib.

5. A purchaser from one having no notice 6. Where the orator bought land of the affecting his title, may stand upon the title of defendant with notice that the defendant the vendor, and such title is not affected by intended to build a horse-barn near by on any notice which the purchaser may himself his land adjoining, and the defendant afterhave. Powers v. Dennison, 30 Vt. 752. wards erected the barn at the place designated;-Held, on a bill brought to enjoin As to Notice in particular matters, see BILLS the completion and occupation of the barn, AND NOTES; DEED; GUARANTY; MORTGAGE; that after the purchase, under such circumNUISANCE, &c.

NUISANCE.

stances, the orator could not at equity abridge the exercise of the defendant's lawful right in the use of his own land. Ib.

7. Indictment. In an indictment for a nuisance, it is not indispensable that it should

1. Action for, at law. An action on the be alleged that it was "unlawfully" maincase lies against one who maintains a nuisance, tained; the words "injuriously and wrongin favor of one who sustains special damage fully," are sufficient. State v. Vt. Central R. therefrom, though it be a public nuisance. Co., 27 Vt. 103.

Abbott v. Mills, 3 Vt. 521.

2. But only in case of such special damage. Hatch v. Vt. Central R. Co., 28 Vt. 142.

8. Upon trial of an indictment for a nuisance, the act complained of was the taking and appropriating to private use of property 3. An action cannot be maintained for con- dedicated to the use of the public, so as wholly tinuing an obstruction-as, an obstruction to to exclude the public from the enjoyment of it. a way-which was erected by the defendant's Held, that this was in law a nuisance, and that grantor, without previous notice to the defend- the law did not require this question to be ant to remove it. Dodge v. Stacy, 39 Vt. 558. submitted to the jury. State v. Woodward, Same law as to the use of a mill-dam, or of the 23 Vt. 92. (But see State v. Croteau, 23 Vt. water thereof. Howe Scale Co. v. Terry, 47 14.)

Vt. 109. Pettibone v. Burton, 20 Vt. 302.

1. As to third persons. Where third writ of execution for a fine, being regular in