majority">Judge Eobertson

delivered the decision of the Court as follows:

This is an action of assumpsit, in which the plaintiff claimed from the defendant the sum of §250 for labor and services done anS performed for tbe defendant, on bis farm at Kailua, on tbis island. Tbe jury rendered a verdict in favor of tbe plaintiff for $107 75.

Tbe defendant now moves tbe Court to grant a new trial, on the following grounds, viz :

1. That tbe verdict is contrary to tbe evidence and tbe law.

2. That tbe jury in rendering tbeir verdict were influenced by suppositions and inductions, not derivable from tbe evidence ■and contrary to fact; and,

3. That since tbe trial of tbe cause, defendant has discovered new and material evidence.

We will dispose of tbe second of these grounds before we consider tbe others. Tbe verdict in favor of tbe plaintiff was found by nine out of tbe twelve jurors, the other three dissenting ; and now tbe defendant presents, in support of tbe second ground on which bis motion is based, tbe affidavit of one of tbe dissenting jurors, to tbe effect that some of tbe jurors who agreed in finding tbe verdict, gave as a reason for so doing, that they believed tbe defendant bad been engaged in distilling spirits from tbe hi root, of wbicb there was no proof, and bad employed tbe plaintiff in working at that business, in addition to tbe other work expressly proven. In corroboration of tbis affidavit, tbe defendant’s counsel presents his own affidavit to tbe same effect, based upon tbe statements of some of tbe jurors made to him after tbe trial. We are of tbe opinion, as is contended on tbe part of tbe plaintiff, that these affidavits are inadmissible ; first, as being excluded by tbe general rule, wbicb forbids tbe reception of tbe affidavits or declarations of jurors, to show misconduct in making up tbeir verdict; and, secondly, because neither of these affidavits specifies tbe name of any particular'juror, as having declared that his mind was influenced by extraneous considerations. These objections are well taken. In the United States, and in England, ever since tbe case of Yaise vs. Delaval, (1 Durnford & East, p. 11,) in wbicb judgment was given by Lord Mansfield, tbe uniform ruling of tbe *157Courts, with scarcely an exception, has been to exclude the declarations of jurors from being received for the purpose of impeaching a verdict by showing misconduct on the part of the jury ; and although there may seem to be force in the consideration urged in this case, that the juror whose affidavit is presented in support of the motion, was not a party to the verdict, *yet the principal reason of the rule remains applicable. The jury make up and deliver their verdict under the solemnity of an oath, and no declarations of theirs can be received to controvert its truth, by showing misconduct on their part. Such is the general rule, and we think its soundness unquestionable. And if in any exceptional case we should feel constrained to admit affidavits of the character now offered, we should certainly require the names of any jurors whose misconduct was relied on, to be specified, in order that the other party might have an opportunity to avail himself of the right to file counter affidavits.

In regard to another of the reasons urged for the granting of a new trial, namely, that the verdict is against the weight of evidence, we would remark that it has been repeatedly ruled in this Court, in conformity, we believe, with the vast preponderance of authority on the subject, that a new trial will not be granted on the ground here assigned, unless the verdict is so manifestly against evidence as to render it clear that a mistake has been committed, or that injustice has been done through an abuse of power on the part of the jury. In the present case, evidence proper to be weighed by the jury was adduced on both sides, and, even if the finding of the jury did seem to us against the preponderance of evidence, yet we would not feel justified in setting aside the verdict on that account. It is the province of the jury to respond to the facts, while the Court responds to the law; and while the Court, in the exercise of its supervisory control, will take care to prevent any party from suffering injustice through an abuse of power on the part of the jury, it will at the same time carefully abstain from anything like a usurpation to itself of the proper functions of the jury.

The last ground assigned in favor of the motion is, that since the trial of this cause the defendant has discovered new and important evidence. He states in his affidavit that, since the *158trial, lie has been informed by one George Crane that he had a conversation with the plaintiff, in the month of January last, in which the plaintiff made certain statements and admissions respecting his relations with the defendant, of such a nature as would materially affect the decision of this cause. The defendant presents the affidavit of Crane himself, who deposes to his having had a conversation with the plaintiff in the month of# January of the present year, when the plaintiff made the statements in relation to his dealings with the defendant, which are now brought forward as newly discovered evidence for the defense. °

It is objected to the granting of a new trial on this ground, that the defendant might, by the exercise of due diligence, have obtained the testimony of Crane before; and that the newly discovered evidence is merely cumulative. We see nothing in the circumstances of the case, which shows such a want of diligence on the part of the defendant, in not procuring this testimony before, as ought to lead us to refuse his motion for that cause. And, while we regard some portions of Crane’s proposed testimony as clearly cumulative, and therefore of no value in this proceeding, there are other parts of it to which we think that objection does not fairly apply.

There is an apparent want of uniformity among the authorities, in regard to the question of what evidence shall be considered cumulative, and what shall not. This arises, in a great, measure perhaps, from a want of precision in the use of language, and from the great diversity of facts presented by different cases. Eor instance, in one case it is said, “ Newly discovered evidence, to be a ground for a new trial, should respect a matter that has come to light since the trial, and on which the party has never been heard.” (U. S. Digest, vol. 5, p. 439, sec. 206.) In another case it is said, “ In Mississippi, a new trial will be awarded on the ground of newly discovered testimony; and it seems that, although the newly discovered evidence is intimately connected with some parts of the testimony at the trial, yet if it be specifically distinct, and bear upon the issue, a new trial will be granted.” (Ibid, p. 439, sec. 221.) And in another case it is said, “ Cumulative evidence is evidence which speaks to facts in relation to which there was evidence on the *159trial.” (Ibid, p. MO, sec. 233.) In tbe case of Warren vs. Hope, (6 Greenleaf’s Rep., p. 415,) the Court, in' specifying certain kinds of proof which would furnish ground for a new trial or i’eview, used the following language: “ When the newly discovered evidence relates to confessions or declarations of the other party as to some influential fact, unknown to the petitioner at the time of trial, and inconsistent with the proofs adduced and urged by such party.” In the case of Sawyer vs. Merrill, (10 Pickering’s Rep., p. 18,) the Court said, “After a trial, it is generally easy to find some additional or cumulative evidence; but the rule is, that there shall not be a new trial unless it is newly discovered evidence, and to some new point or ground of action or defense, to which the evidence given on the former trial did not apply.” In some decisions it would seem to have been ruled that the newly discovered evidence should be evidence of a distinct kind, or species, from that given at the former trial. But this, we think, is not in strict conformity with the general tenor of authority. In the case of The People vs. Superior Court of New York, (10 Wendell’s Rep., p. 294,) Savage, Ch. J., cited the meaning of the word cumulative, given in Webster’s Dictionary, as follows: “ That augments by addition; that is added to something else. In law, that augments as evidence, facts or arguments of the same kind.” But that learned Judge added, “ according to my understanding of cumulative evidence, it means additional evidence to support the same point, and which is of the same character with evidence already produced. For instance, the defendants in the Court below proved by the third teller that the bill in question was not delivered until after twelve, o’clock; all subsequent witnesses who prove the same fact are cumulative; their testimony is added to or heaped upon that of the first witness.”

It is, perhaps, less difficult to decide, in most cases, as to what evidence would clearly be considered cumulative, than it is to say what would not be so; and hence we have been led to examine this point with some care, with the view of arriving at a definition which may serve, in some measure, to guide us in future. Throughout the general current of the numerous cases which we have examined, the leading principle of decision seems to be almost the same in effect, although enunciated in *160diverse forms of expression. When the defense is general, as in this case, and evidence was given at the trial of certain specific facts, tending as a whole to establish the general ground of defense, further evidence upon either of those specific facts would be cumulative. But the rule cannot be held to exclude, as cumulative, evidence of some new specific fact, having a bearing upon the main fact put in issue by the defense; for with such a construction of the rule, it would seem impossible that a new trial for new evidence could ever be obtained, in a case like the present. In this view of the rule we are fully sustained by the able decision of Woodbury; J., in the case of Aiken vs. Bemis (3 Woodbury & Minot’s Rep., p. 858.)

May 3d, 1859.J. D. Blair, for the plaintiff.O. C. Harris, for the defendant.

Testimony was given at the trial, tending to prove by the plaintiff’s own declarations, that in the month of May, 1858, after he had been living at the defendant’s place for seven months or more, the defendant owed him nothing ; but that he was at that time indebted to the defendant thirty or forty dollars. Plaintiff had ceased to live with the defendant by the end of August, 1858. Crane states in his affidavit, that in the conversation he had with the plaintiff, in January last, plaintiff told him that “he was still owing Mr. Jacobs,” and “that the defendant had done everything that was honorable to him, the plaintiff.” Proof of such declarations made by the plaintiff, after he had ceased to live with defendant, and within two months of the time this action was commenced, is proof of a new, distinct, and material fact, of which no evidence was given at the former trial; and we feel constrained to say, that, upon this showing, the defendant should have the opportunity of again submitting this case to a jury.

The motion for a new trial is granted, upon condition that the defendant pays one-half the costs accrued, the other half to abide the result of the new trial.

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