
    Samuel Page versus Samuel Pattee.
    Where, upon a trial, the judge, thinking the evidence clear for one of the parties, omits to sum it up to the jury, and they find their verdict for the other party, a new trial is granted of course.
    This was an action of the case, for the defendant’s not accounting to the plaintiff for a quantity of ash barrel heading, which the defendant was to merchandise as the plaintiff’s bailiff, and for which he promised to account.
    A trial was had on the general issue before Sedgwick, J., at the last October term in this county, and a verdict being found for the defendant, the plaintiff moved for a new trial, alleging that the verdict was given against evidence, which is reported by the judge who sat in the trial. It is agreed by the parties, that, after the evidence on each side was given to the jury, the counsel for neither party summed up his evidence, but left it to the judge to sum up, and to give to the jury the necessary instructions. The judge reports that the evidence to support the plaintiff’s demand [#460] was' contained *in certain depositions, which accompany the report, which were unimpeached, uncontradicted, and unexplained, and were sufficient, in the opinion of the judge, if believed by the jury, to support the plaintiff’s declaration so clearly, that he apprehended no instructions were necessary; and accordingly none were given, but such as related to the allowing of interest to the plaintiff.
    
      Wilde and Bond for the plaintiff.
    
      Warren for the defendant.
   By the Court.

It is our opinion that either party can lawfully claim, from a judge trying his cause, the benefit of his instructions to the jury; and when such instructions are not given, on the ground that the case is too clear for one of the parties to render them useful, and the jury find for the other party, a new trial ought to be granted, that the jury may be assisted by the direction of the Court.

Whether the verdict is, or is not, against the weight of evidence, we do not inquire ; as it is our intention to send the cause to another jury, without any prejudice to the evidence given before on either side.

A new trial granted. 
      
       If the verdict was supported by the evidence, and there was no misdirection of the judge, upon what principle could a new trial he granted ? — Ed.]
     