
    Turner vs. Ross.
    The act of 1801, ch. 6, see. 59, was not intended to prevent the court from granting new trials for error iri the charge of the court to the jury, for error in the admission or rejection of testimony, or for the misconduct of the jury, and the like.
    if a party has obtained two new trials, and seeks to set aside the third vei^ diet obtained against him, the record must show that one or both of the previous verdicts have been set aside from error in the charge of the court, or in the admission or rejection of testimony, or for the misconduct óf the jury, os' the like.
    On the 8th day of December, 1828, Turner instituted an action of ejectment in the circuit court of Franklin county, against Wiley J. Hines, the tenant in possession, for the recovery of the possession of one hundred and fifty acres of land lying in the second district in Franklin county „■ The cause was continued till the January term, 1829, at which time Frederick A. Ross, by leave of the court, was made defendant and pleaded not guilty. Issue was joined, and the cause was continued until the January term, 1832, at which time it was tried,' and a verdict rendered in favor of Turner. A motion was made at the same term to set aside the verdict rendered, which was done, and a new trial awarded to the defendant Ross. The record is silent-as to tire grounds upon which this verdict was set aside.. The cause was continued until the July term, 1832. It was then tried again, and a verdict returned for the lessee of Turner. A motion was made to set aside this verdict, and overruled. An appeal in the nature of a writ of error was taken to the supreme"court at Sparta, held on the 1st Mom-day in August, 1832. The-judgment was reversed, and the cause remanded to the circuit court for further proceedings.' The decision of the supreme court at Sparta is reported in 5th Yerger’s Reports, 338.
    It was continued in the circuit court until the July term, 1836. It was then tried, and a verdict returned that “the-defendant is guilty of the trespass and ejectment, as the' plaintiff against him hath complained, for all the land lying north of Ross’ northern boundary when run from the north? west comer according to the needle.” On the 30th July, du- ,, “ , . ,. ._ . ring the same term, this verdict was set aside, and a trial awarded on the motion of the defendant. The record does not show the grounds upon which the court acted in setting aside this verdict. The cause was then continued from time to time, by reason of the incompetency of the court and other causes, until the May term, 1839, at which term the cause was again tried, and the jury returned a verdict against the defendant, and declared that the “plaintiff has the better title to all the land in controversy which lies north of the line on the plat made out by George Gray, which they make a part of their verdict, running from the north-west corner of Ross’ fifteen hundred and fifty acre survey due east by the needle.”
    On motion of the defendant, this verdict was'set aside and a new trial awarded; to which the plaintiff objected, and his objection being overruled, he tendered his bill of exceptions, which was signed, sealed and made a part of the record, in the following words:
    “Be it remembered, that on Saturday, the 6th day of the term, the defendant, by his attorney, moved the court to set aside the verdict and judgment in this case and grant him a. new trial, on the ground that said verdict was contrary to law, to the evidence and to the justice of the case; to which the plaintiff objected, because two new trials had been heretofore granted by the court to the said defendant. To obviate the effect of which, the defendant produced and read to the court the following affidavit of 11. L. Turney, Esq. to wit:
    
      “Turner vs. Ross. In this cause Hopkins L. Turney makes oath that at the January term of the circuit court of Franklin county, 1832, this cause was tried and resulted in a verdict and judgment for the plaintiff; that the cause was; by the instruction of the court to the jury, made to turn on the mode or manner of surveying the northern boundary line of Ross’ fifteen hundred and fifty acre grant,- that is, whether the line should be run to the needle or to the true meridian. The court instructed the jury that the line should run to the needle, and the jury found accordingly. On the motion for the new trial, the same question was before the _court, that is, whether the northern boundary of Ross’ fifteen jlun(jre(j an¿ flfty acre tract should be run to the needle or to the true meridian. The court granted the new trial because the court was not satisfied with the correctness of his instructions to the jury and their finding in accordance therewith, and ordered .a survey to be made and a plat to be returned to the then next term,-and appointed T-W. Holder to make the same; that the question of estoppel or of re-mark-* ing was not made nor decided by the court at this trial of the cause. Affiant, as one of the defendant’s counsel, attended to the cause at the trial alluded to in this affidavit.”
    The court overruled the objections of the plaintiff, and ordered the verdict and judgment to be set aside and a new trial to be awarded; to which opinion of the court the plaintiff, by his counsel, excepts, and prays that this, his bill of exceptions, may be signed, sealed; and. enrolled, which is done accordingly.
    Edmund Dillaiiunty, [Seal.-}”'
    The cause was continued- until the September term, 1839. It was then tried, and the jury returned a verdict of not guilty, and a judgment was rendered in accordance therewith. An appeal in the nature of a writ of error was obtained to the supreme court.
    The following entry appears of record, as made at the September term, 1839:
    “It is agreed between the parties that if the supreme court shall be ■ of the opinion that the judgment of this court at the last term, awarding anew trial, was erroneous, then final judgment shall be entered for the plaintiffs; but if the opinion of the supreme court should be in favor of the defendant on that point, and the judgment should be affirmed, then this judgment shall be set aside and for nothing held, and the cause remanded for a new trifit to be had thereupon, without prejudice to either party.”'
    
      Campbell, for plaintiff in error.
    
      Taul, for defendant in error.
   Reese, J.

delivered the opinion of the court.

This cause was tried at May term, 1839, of the circuit court for Franklin county, and a verdict was rendered for the lessor of the plaintiff, being the fourth verdict which he had obtained. On a motion being made by the defendant to set aside the verdict and grant him a new trial, an affidavit was made by defendant’s counsel to show that the judge who presided at the time the first new trial was given, in 1832, set aside the verdict because he was not satisfied with the legal correctness of the charge which he had given to the jury; upon which the court granted a new trial. At the succeeding term a verdict was rendered against the lessor of the plaintiff and a judgment thereon; to reverse which, and to have a judgment rendered in his favor upon the verdict of May, 1839, he prosecuted this writ of error.

Upon the grounds or reasons which induced the court to .grant two of the new trials previous to that of May, 1839 the record is wholly silent. The act of 1801, ch. 6, sec. 59, provides “that not more than two new trials shall he granted to the same party.” The construction given to the act by this court in the case of Trott vs. West, Moss & Co. 10 Yerg. Reports, 500, is, “that it means that where the facts of the case have been fairly left to the jury upon a correct charge of the court, and they have twice found a verdict for •the same party, each of which has been set aside by the .court, if the same party obtain another verdict, in like manner, it shall not be disturbed. But the act did not intend to prevent the court from granting new trials for error in the charge of the court to the jury, for error in the admission or rejection of testimony, for th.e misconduct of the jury, and the like.”

In the case before us, in reference to two of the trials the record is silent as to the grounds of action oí the court in setting aside the verdicts. We think that in order to give any operation whatever to the act of assembly, this court must certainly hold that he who insists that the two new trials (which are supposed to constitute an obstacle to the granting of a third new trial) were in fact granted upon any 0f the legal grounds set forth in the case of Trott vs. West, Moss & Co. or grounds similar, must make it so to appear; and the only question, therefore, is, whether these grounds shall be made to appear by the record, or may be shown aliunde. ' We are satisfied that the grounds of action of the court should be set forth by the court itself in the record made at the time of granting the new trial. Any evidence other than that or less than that would certainly be wrong in practice. As to the legal grounds moving the conscience and prompting the action of the court, the court itself,,, through its records, must spqak. But it is said that it is not usual to state upon the record the grounds on ■which a new trial has been granted. It would be very easy to do so; and if it shall often happen that the -juries of the country, contrary to a most grave and solemn duty, shall turn a deaf ear to the law of the case, as expounded by the court in its charge, and the legislature shall choose to continue the limitation upon the legal discretion of the judge, contained in the act of 1801, it may become very proper for him to adopt a mode of entry upon the record in cases of new trials, which, showing always the ground of his action, shall place the res-, ponsibility, if the law must be defeated and injustice be done, where it ought properly to rest.

We are óf opinion, therefore, that the, last verdict and judgment must be set aside, and also the judgment of the, court at May term, 1839, granting a new trial, and that judgment be pronounced upon the verdict given at said May term, 1839, for the lessor of the plaintiff.  