
    Lessee of Fehl against Good and another.
    
      Lancaster, Saturday, June 2.
    THIS ejectment was tried before Mr. Justice Teates at a Circuit Court for Lancaster County in May 1806, when a verdict was found for the plaintiff. In May 1808, the late Judge Smith, who rode that circuit, ordered a new upon the inspection of Judge Teates1 s notes; and from this decision the plaintiff appealed. '
    Though a ver^ict ^ against the judge wlw hpon the credit of witnesses, a new trial will exceptfn^xtni“’dinary cases,
    The case turned upon the accuracy of a line and boundary claimed by the plaintiff for his survey. One witness, whose general credit was not impeached, swore in support of the plaintiff’s claim. Six witnesses swore the other way. The judge was of opinion that the cause depended very much upon the credit of the plaintiff’s witness, and that the weight of evidence was with the defendants; but the jury who had had a view, concurred with the single witness, against the charge of his Honour.
    
      Montgomery and C. Smith for the plaintiff
    contended that where the evidence was contradictory, and depended upon the credit of witnesses, a new trial ought not to be granted, although the verdict was against the opinion of the judge; particularly where the case turned upon such a fact as was in controversy here, and the jury had viewed the premises. They cited Ashley v. Ashley 
      
      , Smith v. Huggins 
      , Swain v. Hall 
      , Hankey v. Trotman 
      
      , Francis v. Baker 
      , and an anonymous case from 11 Mod. 1. In Francis v. Baker, Pratt Ch. J. says, that where.there is a contrariety of evidence as to the principal matter in issue, and the character of witnesses on both sides stands unimpeached, the weight of evidence does not depend altogether upon the number of witnesses; for it is the province of the jury who may know them all, to determine which witness they will give credit to, and 'o judge has a right to blame a jury for exercising their power of determining in such a case.
    . Bowie and Hopkins contra,
    answered, that new trials were so completely subject to the discretion of the Court, and so little dependent upon precise rules, that every case must be governed by its own circumstances. That there was however one fundamental rule upon this subject, a rule founded in reason and injustice, that where the verdict was strongly against the weight of evidence, a new trial ought to take,, place; 6 Bac. Abr. 663, 4.; and that in the present case, there was not only the preponderance of six witnesses over one, but the opinion of the judge who tried the cause, arid of the judge who granted the new trial, that the weight of evidence was clearly against the verdict. They also contended that the merits were with the defendants.
    
      
       2 Stra. 1142.
    
    
      
      
         2 Stra. 1142.
    
    
      
       3 Wits. 47.
      
    
    
      
       1 W. Black. 1.
    
    
      
       6 Bac. Ab. 664. Trial L. 4.
    
   Tilghman C. J.

delivered the Court’s opinion.

In this cause a verdict was found for the plaintiff, and the question is, whether a new trial shall be granted.

The charge of the judge inclined in favour of the defendants, but the cause turned upon matters of fact, and it was submitted to the jury as resting very much upon the credibility of one of the plaintiff’s witnesses. The character of witnesses, and the credit which is due to them, are subjects peculiarly within the province of the jury; and where the verdict has depended on these points, the Court has always refused to interfere, except in extraordinary cases. For this reason, without expressing any opinion upon the merits of the cause, we think it proper that the verdict should stand. The judgment of the Circuit Court is therefore to be reversed, and judgment entered for the plaintiff.

New trial refused, and Judgment for plaintiff.  