
    JAMES DONALDSON, Respondent, v. JOHN M. NEVILLE et al., Appellants.
    No. 4160;
    May 6, 1864.
    New Trial. — A Verdict Found upon a Substantial Conflict of evidence is not to be disturbed.
    New Trial. — Surprise is No Ground for a New Trial when based on testimony which, although disconcerting to the applicant, was that of a notoriously adverse witness well known as such before the trial, and when the precise point upon whieh such testimony bore was distinctly raised by the pleadings.
    APPEAL from Seventh Judicial District, Solano County.
    J. H. Thompson and John Currey for respondent; M. A. Wheaton for appellants.
   SHAFTER, J.

This is an action brought to recover damages for the conversion of a span of mules. The real point of the defense was, that the mules were not in fact the plaintiff’s property but the property of one Marshal. Counsel for the appellants admit that the evidence on this question of title was in conflict, and it folloivs that we cannot grant a new trial on the ground that the jury mistook the relative weight of the opposing proofs.

Surprise is also assigned as a ground upon which a new trial should be granted. Miner was an adversary witness, and the precise point upon which his testimony bore was distinctly raised in the pleadings. The testimony of the witness may have been unexpected to the defendants, and it may have greatly disconcerted them; but in view of the state of the pleadings, and of the fact that the defendants had not been misled by previous statements of the witness, they could not have been “surprised” by his testimony to a legal intent: Taylor v. California Stage Co., 6 Cal. 230.

Judgment affirmed.

We concur: Sawyer, J.; Sanderson, C. J.; Rhodes, J.

Mr. Justice Currey, having been of counsel, did not sit on the trial of this case.  