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H. W. TAYLOR, Respondent, v. JAMES McKINLEY, ALEXANDER GARRIOCH and G. W. MOWBRAY, Appellants

         The affidavit of surprise is not a ground for a new trial, after verdict. It is no ground for a new trial that a party is not prepared. (5 Dana, 34; 8 Johns. 842; 15 Johns. 210; 4 Caines, 118.) Or that, upon a new trial, he could contradict a witness. (3 Greenleaf, 77.)

         JUDGES: Mr. Justice Heydenfeldt delivered the opinion of the Court. Mr. Ch. J. Murrayconcurred.

         OPINION

          HEYDENFELDT, Judge

         This Court has always refused to interfere with the verdict of a jury, where the evidence is dubious or conflicting. Nor, in such case, will we revise the discretion of the Court below, in granting or refusing a new trial.

         The assignments of error made in this case are too unsubstantial to require consideration or argument.

         Let the judgment be affirmed, with ten per cent. damages.

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Taylor v. Mckinley
(Jan 1, 1854)