Hill v. Wilkins

• Decision Date: 30 June 1835
• Parties: HILL v. WILKINS.
• Court: Missouri Supreme Court

4 Mo. 86

HILL

v.WILKINS.

Supreme Court of Missouri.

June Term, 1835.

MOTION FOR A MANDAMUS TO ST. LOUIS CIRCUIT COURT.

WASH, J.

Wilkins brought an action of assumpsit on a promissory note against Hill in the Circuit Court, in which action a verdict was rendered for Hill at the March term, 1833; a motion was then made for a new trial which was kept under advisement until the November term, 1833, and was then granted; on the second trial of the cause at the March term, 1834, a verdict was again rendered for Hill and a new trial was again moved for and granted. Whereupon the defendant Hill moved the court to set aside the award of a new trial and enter up judgment in accordance with the verdict for the following reasons. 1st, because the court could not set aside the verdict for any of the reasons assigned, this being a second application for a new trial by the plaintiff. 2nd, because the plaintiff has not assigned as a reason for a new trial that the jury erred on a question of law, and the court cannot lawfully set aside a verdict and award a new trial for any cause assigned by the plaintiff. The reasons assigned by the plaintiff on his application for a second new trial are, 1st, that the said verdict of the jury was contrary to law and evidence, 2nd, that the jury found against the instruction of the court, 3rd, that the verdict was against the weight of evidence. In the return made to the conditional mandamus it is insisted that the jury must have committed an error in law, because from the evidence in the cause no error as to mere fact could have been committed; or that it was the right and duty of the court in the exercise of its discretionary power over the subject so to decide, if in the opinion of the judge who tried the cause, the verdict would have been otherwise but for some error in the law applied to the facts by the jury. It is also further insisted in said return, that the court erred in instructing the jury ‘that they must be satisfied that money and not property was paid by the plaintiff to the use of the defendant and at his request, and that if the jury should be of opinion that no money was paid as aforesaid by the plaintiff to the Bank of the United States at Pittsburgh, he could not recover” &c. Whereas the jury ought to have been instructed “that if they were satisfied that money or its equivalent was paid or given at the request implied or expressed of the defendant by the plaintiff to the Bank, and accepted as money by the Bank in...