
    Street v. St. Clair.
    Decided, Jan. 13th, 1820.
    s. Mew Trial — Verdict Contrary to Evidence. — A motion for a new trial, on the ground (hat the verdict is contrary to evidence, ought to rest on the evidence actually given in at the trial, exclusive oi allother: especially, affidavits taken ex parte, ought not to be heard on such motions.
    
      
       See monographic note on “New Trials” appended to Roswell v. Jones, 1 Wash. 322.
    
   The circumstances of this case are sufficiently stated in the following Opinion o£ the Court delivered by

JUDGE ROANE,

after argument by Leigh for the appellant, and Gilmer for the appellee.

This was an action on the case brought by the appellee against the appellant in the Superior Court. A verdict was rendered for the appellee. A motion was made by the appellant for a new trial; the rule for which was continued by the Judge to the next term. At that term, the bill of exceptions states, that several affidavits, taken ex parte and without notice, of persons who had not given evidence at the trial, were offered in evidence in discharge of the rule; and that a motion by the appellant to reject the same was overruled by the Court. Whereupon, (the reco'rd states,) the said rule was discharged, the motion for a new trial overruled, and judgment rendered for the appellee on the verdict. On the next day, it was entered of record, by consent of the parlies, that on the trial various witnesses were introduced on both sides; that there was a contrariety of evidence; that the motion for a new trial was made on the ground that the verdict was against the weight of evidence; and that a new trial would have been awarded by the Court, but for the impression made upon it by the a.ffidavits aforesaid. *This addition to the record, being-entered on the order book, received the sanction of the Court, and establishes the important fact, that the decision on the rule was varied by the affidavits in question.

While the Court is not fond of encouraging the practice of enlarging, to a subsequent term, rules for new trials, made on the ground of the verdict being contrary to evidence, on account of the inconveniences which would ensue from a change in the idenlity of the Judges, it has no hesitation to say, that amotion like the one before us must rest on the evidence actually given in at the trial, exclusive of all other. The objection that the verdict is contrary to evidence, must necessarily have some limit. It is pointed to, and bounded by, the evidence used on the trial. A new trial comes in place of an attaint of the Jury ; and it would have been highly unjust to have punished the Jury on account of evidence which was not before them. Besides; it would relieve a party against the effect of his own laches, and lay the foundation of increasing motions for new trials to infinity. This ulterior testimony was therefore utterly inadmissible. The objection to it is increased, in the case before us, by the affidavits being taken ex parte, and without notice. Whatever liberality may be extended to affidavits, in this particular, in other cases, we ought not to overlook the objection in the case in question. We ought not to control evidence duly taken, and as to which the adverse party had the liberty to cross examine, by testimony in regard to which he was deprived of this important privilege.

We are therefore of opinion to reverse the judgment, arid award a new trial.  