9. New trials on account of after-discovered testimony are granted but rarely, and with great caution. The court, in order to set aside the verdict on this ground, must be satisfied that the evidence has come to the applicant's knowledge since the trial, 3 Stor. C. C. 1 ; 21 N. H. 166 ; that it is not owing to the want of diligence that it did not come sooner, 6 Johns. Ch. N. Y. 479 ; 1 Blackf. Ind. 367 ; that it is so mater*-1,1 that it will probably produce a different result, I Dudl. Ga. 85 ; and that it is not cumulative. 3 Woodb. & M. C. C. 348. Nor must the sole object of the newly-discovered evidence be to impeach wit nesses examined on the former trial. 7 Barb. N. Y. 271 ; 11 id. 216; 8 Gratt. Va. 637. The moving party must state what the evidence is, and what diligence he has used in the preps ration of his case ; and his application must be accompanied by the affidavits of the n ewly discovered witnesses, unless some cause be shown why they cannot be produced. 5 Heist. N. J. 250 ; 1 Tyl. Vt. 441 ; 22 Me. 246.
Excessive damages may be good cause for granting a new trial : first, where the mea, sure of damages is governed by fixed mks and principles, as in actions on contracts, er for torts to property the value of which may be ascertained by evidence ; second, in suits for personal injuries where, although there is no fixed criterion for assessing the damages, yet it is clear that the jury acted from passion, partiality, or corruption. 10 Ga. 37. In ac tions for personal torts, a new trial will not, in general, be granted on account of ths smallness of the damages, unless the verdict is the result of contrivance by the defendant, or surprise on the plaintiff, or of partiality or misconduct of the jury, or unless the find ing is entirely disproportioned to the injury. Where the verdict is for an amount exceeding the damages laid in the writ, it will be set aside unless the plaintiff will release the ex cess. 7 Wend. N. Y. 330.
10. When the verdict is clearly against lawo it will be set aside notwithsiianding the jury had power to decide both the law and the fact, or the issue was one exclusively of fact *Id there have been concurrent verdicts by two successive juries. Dudl. Ga. 213 ; 4 Ga. 193. lf, however, substantial justice has been done, a new trial will not be granted though the lavr arising on the evidence would have Justified a different result. 1 Burr. 54 ; 4 Term, 468; 3 Graham & W. New Tr. 1176-1202.
Courts are at all times reluctant to grant a new trial on the ground that the verdict is against evidence ; and where the jury have passed upon a mere question of fact, they will only do so when the verdict is palpably against the evidence : injustice must have been done by the verdict, and there must be a probability that justice will be done on re trial. 21 Conn. 245 ; 5 Ohio, 509 ; 3 Strobh. So. C. 358. Where the verdict is founded on circumstantial evidence, the court will rarely, if ever, interfere with it. 16 Mass. 345 ; 11 111. 36. On the other hand, when the issue approximates to a purely legal question, courts are somewhat more liberal in grant ing new trials. 2 M'Mull. So. C. 44. The ver dict will be set aside where the witnesses upon whose testimony it was obtained have since the trial been convicted of perjury, 3 Dougl. 24 ; so where the testimony on which the verdict is founded derives its credit from circumstances, and those circumstances ars afterwards clearly falsified by affidavit. 1 Bos. & P. 427 ; 3 Graham & W. New Tr. 1203-1374.
The verdict may be void for obscurity or un certainty. 1 Serg. & R. Penn. 367. It will be
set aside where it is not responsive to the issue, or does not comprehend all of the issues unless the finding of one or more of the issues will be decisive of the cause. 2 Ala. N. s. 359 ; 11 Pick. Mass. 45. That it was not recorded in open court, or was re ceived in the absence of the plaintiff, or was altered after it was recorded and the jury dis missed, will be ground for a new trial. 1 111. 109 ; 1 Wend. N. Y. 36 ; 16 Serg. & R. Penn. 414. If rendered on Sunday, it will, in gene ral, be void ; but there are many instances in which verdicts have been sustained though rendered on that day. 1 South. N. J. 156 ; 15 Johns. N. Y. 119 ; 3 Watts, Penn. 56 ; 13 Ohio, 490.
11. Courts of equity have always proceeded with groat caution in awarding new trials at law. At the present day they are but seldom applied to for this purpose, as courts of law are liberal in exercising the same jurisdic tion, and it has been held to be unconscion able and vexatious to bring into courts of equity a discussion which might have been had at law. 1 Schoales & L. Ch. Ir. 201. But, in general, when it would have been proper for a court of law to have granted a new trial if the application had been made while that court had the power, it is. equally proper for a court of equity to do so if' the application be made on grounds arising after the court of law can no longer act. 1 A. K. Marsh. Ky. 237. A court of _equity will not grant a new trial at law to enable a party to impeach a witness, or because the verdict is against evidence. 1 Johns. Ch. N. Y. 432. It will only interpose in cases of newly-discovered evidence, surprise, fraud, or the like, where the party is deprived of the means of defence by circumstances beyond his control. 1 Litt. Ky. 140 ; 2 Bibb, Ky. 241 ; 2 Hawks, No. C. 605 ; Willard, Eq. Jur. 357 ; 3 Graham & W. New Tr. 1455-1580.
12. A court of equity will often grant a second, and sometimes a third, fourth, and even fifth trial of a feigned issue, in cases where a court of law would not disturb a first verdict. 1 Edw. Ch. N. Y. 96. This arises from the consideration that the re sponsibility of the decision rests upon the judge in equity. 3 Graham & W. New Tr. 1570, 1571.
New trials may be granted in criminal as well as in civil cases, at the solicitation of the defendant, when he is convicted even of the highest offences. But a person once lawfully convicted on a sufficient indictment can never after, against his consent, be a second time put in peril for the same offence, unless the former conviction was instituted by the fraudulent procurement of the defendant with a view to shield himself from adequate punishment. 2 Graham & W. New Tr. 61-84. Where the accused has been acquitted, and his acquittal has not been procured by his own fraud or evil practice, the law, mingling justice with mercy in favorent vitce et libertatis, does not permit a new trial. 16 Conn. 54. In civil ac tions for the recovery of penalties, and in some cases where the form of proceeding is criminal, if the object be only to establish a civil right, as in cases of quo warrant° and the like, new trials may be granted even after acquittal. But, in such cases, when the verdict is for the defendant it will not, in general, be disturbed unless some rule of law be violated in the admission or rejection of evidence or in the charge of the court to the jury. 4 Term, 753 ; 2 Cow. N. Y. 811 ; 2 Graham & W. New Tr. 61.