
    Angier vers. Jackson.
    1763.
    
      It seems, that a new Trial may be granted where the Verdict is against Law and Evidence, but not where there is Evidence on both Sides.
    Motion was made for a new Trial. This Cause was from Middlesex. It seems the Jury gave a Verdict for Damages in Favour, of Jackson, original Plaintiff, contrary to the Mind, of the Court.
    
      Trowbridge.
    
    When the Jury give a Verdict against Evidence, the Court may grant a new Trial. That Jury are not absolute Judges of Evidence and Damages, see Holt’s Rep. 701, 702, Ash vs. Lady Ash; Jurys are to try Causes with the Assistance of Judges. Lucas’s Cases of L. & Eq. 202.() Mistake of Judge or Jury good Cause for new Trial. Strange, 1105. Ibid. 584. Evidence doubtfull no new Trial should be granted, but here ’twas against direct Evidence. New Trial granted after Trial at Bar, is conceded. This Case is not like Ejectment—he may have a new Ejectment; not so here.
    
      Auchmuty.
    
    If ever any Case was excepted from new Trials, this is. Trial at Bar is more favoured than Trial otherwise, because of its Solemnity, I confess I with for a Power in the Court to set aside Verdicts, but not for an unlimited one. This Case was not against Evidence. I allow there was Evidence against Evidence; and two Verdicts, though no Rule of Controul, is yet of some Weight. () Strange, 1105. Evidence doubtfull. Ibid. 1142. Salk. 648, Sparks vs. Spicer. The Court is not to be Judge of the Law and Fact too absolutely; if it should be, it takes away all Verdicts but such as are agreeable to the Mind of the Court. It would be opening a Door to great Inconveniences to the Subject, even if Attaints did not lie; but here Attaint lies. ()
    
      Ch. Justice.
    
    Are you not agreed, that, were it evidently against Law and Evidence, there the Court may grant a new Trial, but not where there is Evidence on both Sides. ()
    
      Trowbridge.
    
    It can never be supposed that a Verdict will be given against direct Evidence, without Shadow of Evidence to support it. This differs from the Case of Fuller & Clark at Cambridge — there was plainly Evidence against Evidence. I hold, this Court always have Right to grant new Trials when they think Injustice like to be done.
    
      
      (1) 10 Mod. 202, The Queen v. Helston.
      
    
    
      
      (2) S. P. 7 Mass. 301. 9 Mats. 450. 18 Pick. 15. 8 Gray, 46.
    
    
      
      (3) It seems however that attaints had long been obsolete. See 3 Bl. Com. 390 — “ The attaint is now as obsolete as the trial by battel which it succeeded, and we shall probably see the revival of one as soon as the revival of the other.” But in Ashford v. Thornton, 1 B. & Ald. 460, wager of battel was sustained by the Court in 1818,
    
    
      
      (4) See 20 Pick. 289, Shaw, C. F. — “ For a long time it was considered that a new trial could only regularly be granted, where the verdict was without evidence or against the whole evidence. It has however been extended to cases, where the verdict is clearly against the weight of evidence, although evidence was given on both sides.”
    
   Justices Oliver, Cushing, Russell & Lynde

against a new Trial, because the Court were not clear in the former Trial.  