Gardner v. Picket

In respect to these points, the following opinion was de livered : By the Court, Cowen, J. The 'judge’s charge that there was not sufficient proof to show an assignment of the judgment to Wood was a mere expression of- opinion on the fact, which he still left to the jury. He had a right to give such an opinion, especially with such a qualification. Solarte v. Melville, 1 Mann. & Ryl. 198, is in point. 7 Barn. & Cres. 430, S. C. As to the suggestion alleged to have been not pertinent, and calculated to mislead the jury: The judge should have been called upon to say it was not pertinent. Certainly a new trial ought not to be granted, merely because the judge’s charge, though true in' law and fact, may possibly have misled by going to a matter not in dispute. Such a consequence is not to be intended. Several similar objections were made to other branches of the charge, which may be answered in the same way. Impertinence or obscurity cannot be objected to a charge as sufficient ground for a new trial, unless the judge’s attention was called to it at the time, and he refused to explain. Indeed, mere impertinence, or the expression of an opinion on an abstract point out of the case, ought not, in any view which I can think of, to be received as ground for a new trial. Clark v. Dutcher, 9 Cowen, 674, 680. Norton v. Doe, 1 Dana, 14, [188] 15, 16. Profit v. Williams, 1 Yerg. 89, 90. Deal v. McCormick, S Serg. & Rawle, 343, 345, per Gibson, 3. Wailer v. Keyes, 6 Verm. R. 257, 263. Gibson, 3. in Deal v. McCormick, lays down the true rule as it will be found established by the cases cited; he says, "error in stating an abstract principle not arising out of the evidencQ, and no wise relating to th~ cause, shall not be taken advantage of by either party ; for it would be impossible for such an error to have an effect on the event of the cause." In relation to the objectio~ of the verdict being against evidence, the judge expressed the opinion that the verdict was warranted by the evidence. New trial denied.