Practice Reports in the Supreme Court and Court of Appeals, 1858, Vol. 8 (Classic Reprint)
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Excerpt from Practice Reports in the Supreme Court and Court of Appeals, 1858, Vol. 8 The plaintiff claimed the costs of several circuits preceding that at which the cause was tried; also the extra allowance of $100; also the costs of the hearing at the special term and the appeal to the general term from the order granting a new trial. Upon affidavits showing these facts, the defendant´s attorneys gave notice of a motion to be made at the next general term to modify the order granting a new trial, so as to determine the amount of costs which the defendant is required to pay, or to designate some officer to tax or adjust such costs. Application having been made to Mr. Justice Harris for an order staying proceedings until the motion could be made, it was agreed by the counsel for the parties that the motion should be heard and decided by him, with the same effect as if the motion had been made at general term. J. Holmes, for Plaintiff. S. Stevens, for Defendant. Harris, Justice. - The granting of a new trial, on the ground that the verdict is against evidence, or because the damages are excessive, has always been regarded as a matter of favor rather than of right. The trial having been fairly conducted, amhhere being no error of law, or misconduct of the jury, it is very much in the discretion of the court whether the case shall be submitted to another jury. Hence it is, that the practice has obtained, when a new trial awarded under such circumstances, of imposing, as a condition, the payment of costs (Jackson vs. Thurston, 3 Cow. 342). In such cases, the costs which the court has required the party obtaining the new trial to pay, as a condition of the favor granted, are the costs of the former trial and of the motion. There is no reason why the costs of the circuit, preceding that at which the trial was had, should be paid, any more than the other costs in the cause. The true rule is, to charge the party obtaining the favor of a new trial with the costs of such proceedings as are vacated for that purpose. The next question is, whether the extra allowance should be included as a part of the costs which the defendant is required to pay. About the Publisher Forgotten Books publishes hundreds of thousands of rare and classic books. Find more at www.forgottenbooks.com This book is a reproduction of an important historical work. Forgotten Books uses state-of-the-art technology to digitally reconstruct the work, preserving the original format whilst repairing imperfections present in the aged copy. In rare cases, an imperfection in the original, such as a blemish or missing page, may be replicated in our edition. We do, however, repair the vast majority of imperfections successfully; any imperfections that remain are intentionally left to preserve the state of such historical works.
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