1 Haw. 34 (Haw.Super. 1849), Walker v. Grimes

Citation:1 Haw. 34
Opinion Judge:LEE, CHIEF JUSTICE
Party Name:WILLIAM WALKER v. ELIAB AND HIRAM GRIMES.
Case Date:January 30, 1849
Court:Superior Court of Hawai'i
 
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Page 34

1 Haw. 34 (Haw.Super. 1849)

WILLIAM WALKER

v.

ELIAB AND HIRAM GRIMES.

Superior Court of Hawai'i.

January 30, 1849

October 23, 1848.

Syllabus by the Court

New trial granted on the ground of surprise, and the discovery of new and material evidence.

DECISION

LEE, CHIEF JUSTICE

This is a motion for a new trial, based upon the following grounds:

1. The verdict is contrary to the law and the evidence.

2. On the ground of surprise, and the discovery of new evidence.

New trials are never granted upon the first ground urged in favor of this motion, unless the verdict is clearly and manifestly against the evidence or the law; and especially in cases like the present, where the verdict is against the party having the burden of proof. It ought only to be done on such a ground, in extraordinary cases, where it is manifest that the jury have mistaken or abused their trust. In this case the evidence was in a great measure derived from an inspection of the books, accounts and other papers of the parties which was freely submitted to the jury by both parties, and after a full investigation and consideration of all the verbal and written testimony, they returned their verdict in favor of the defendants.

In the opinion of the Court this verdict is in accordance with the law, and the counsel for the motion do not pretend to point out a single point in which it runs counter to the law. So far as we are able to judge, it is also in accordance with the evidence, and hence we cannot grant the motion upon the first ground stated by the plaintiff.

Upon the second ground urged in favor of this motion, it is said, that before the case was brought on for trial, the plaintiff's counsel made an application to the Chief Justice for a commission to take the testimony, de bene esse, of a very important and material witness, one Samuel Mason, who was then lying on a bed of extreme sickness, and who in all probability would not be able to attend and give his evidence on the trial. That on the hearing of the application, the commission was not granted, on account of an agreement entered into by the counsel for the defendants, that the evidence of James Van Burgen, another of plaintiff's witnesses, who could testify to the same facts as Mason, should be taken upon the trial for as much as Van Burgen's and Mason's testimony together. That upon the...

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