Warren County MsArchives Court.....Green, Thomas 1839
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Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Green v. Robinson.

pages 105-121

The record certified by the judge of the court below is the only evidence, to 
the appellate court, of the history of the proceedings in the cause, and the 
appellate court will not examine any question unless regularly presented by 
the record.

If a motion ore tenus is overruled upon the trial, the party objecting must 
except at the time or it will be too late. An affidavit stating that such 
motion was made and overruled, and a certificate by the court below, that the 
affidavit was presented, will not authorise tho appellate court to review the 
correctness of the judgment of the court below, in as much as the proceedings 
on the motion cannot thus be made a part of the record.

The allowance or disallowance of amendments is a matter within the sound 
discretion of the court, and not, therefore, ground for error.

Courts of justice have constantly refused to disturb judgments, by granting 
new trials, where the alleged injustice of the judgment is the result of the 
palpable inattention nnd negligence of the party or his counsel.

A motion to amend the pleadings will not be entertained after the case has 
been submitted to the jury. It is not a ground of surprise, that the cause is 
regularly reached on the docket and disposed of. The counsel must know the 
progress of the court and be in attendance.

Under the statute of this state, in actions on promissory notes, the party by 
pleading in chief, admits the execution of the note.

Where the defendant, by the mistake of his attorney, files a wrong plea and 
one that did not cover his defence, and the attorney, although present, did 
not observe that the cause was on trial until after it had been submitted to 
the jury; but learning the papers in the cause were handed to the jury, moved 
to arrest the trial, but the motion being denied, moved again to draw the 
plea, and for leave to amend pleadings, which was also refused: Held, the 
proceedings did not constitute good grounds for granting a new trial.

IN error to the circuit court of Warren county.

This was an action of assumpsit upon a promissory note, to recover of the 
plaintiff in error and others, the sum of 14,500 dollars. The plea of non-
assumpsit was filed by all the defendants. There was a verdict and judgment 
for the defendant in error. A motion was afterwards made for a new trial, on 
the facts stated in the the affidavits of Thomas M. Green and his counsel N. 
D. Coleman, Esq. The affidavit of Green states, that his partner, Glidwell, 
signed his name to the note as surety, without any authority, and against an 
express stipulation in the articles of co-partnership, and that he is not 
bound to pay the debt. That he employed Mr. Coleman to manage his defence, and 
that by some inadvertence, the attention of his lawyer was not called to the 
case until after it had been submitted to the jury, and recites the history of 
the progress and trial of the cause as it is furnished by Mr. Coleman in his 
affidavit. Coleman states, that when retained as counsel, Green communicated 
to him the ground of his defence. That Messrs. Webster and Smith, who were 
engaged as attorneys for the other defendants in the suit, filed general issue 
in the usual form, for all the defendants, and that upon an inspection of the 
plea, he approved and adopted it. There was no affidavit of the truth of the 
plea. He took no further step in the suit until the meeting of the court. He 
did not mark his name to the plea, nor on the calendar, nor by any other means 
inform the court or opposite counsel that he was employed. The cause was 
regularly called up for trial, and submitted to the jury, on the issue which 
had been filed. After the papers were handed to the jury, and the court had 
called the next cause, Mr. Coleman ascertained from a bystander who was next 
him, that his case was on trial. He then made an application to arrest the 
trial; but the court held it was too late. He also asked to withdraw the plea 
and to amend, which was refused; but no exception to the opinion of the court 
at that time. The motion was suhsequently made for a new trial, which was 
denied, and exceptions taken to the opinion of the court.

The plaintiff in error assigned the following causes for reversing the 
judgment.

1. The court, it was said, erred in refusing leave to withdraw the plea.

2. In refusing to allow the plea to be amended.

3. In refusing a new trial. It was also insisted that the verdict and judgment 
was for too much.

Mayes, for plaintiff in error.

The calculations made and filed, will show that the verdict and judgment is 
for too much, and for that cause the court should reverse. To avoid this, it 
is expected the defendant’s counsel will attempt or offer to enter in this 
court a remittitur. It is contended on the part of the plaintiff in error,

1. That a remittitur cannot be entered in this court. This court has, by the 
constitution, "no jurisdiction but such as properly belonging to a court of 
errors and appeals." The jurisdiction properly belonging to a court of errors 
and appeals, is of only two classes. 1st. To revise the decisions and 
judgments of inferior courts. 2d. Such incidental powers as are necessary to 
the full exorcise of this principal power of revision; for example, to award a 
mandamus, to compel the inferior judge to sign a bill of exceptions. Receiving 
a remittitur, is of neither class. The judgment is of the inferior court; on 
that execution issues. The statute, Rev. Code, p. 125, 126, sect. 96, 97, 98, 
is not against, but supports me.

2. That if a remittitur can be entered in this court, it is matter if sound 
and equitable discretion, to admit or refuse leave to enter it, and that, 
under the circumstances of the case, this court will not permit the remittitur 
to be entered, or if it should be permitted to be entered, it will only be on 
equitable terms, which terms will be, that the defendants in error will agree, 
that if the fact that the note was executed as stated in the affidavit of 
Green, would constitute a good defence at law, this court shall order a new 
trial. If the defence is a valid legal defence, the plaintiff below can only 
cut Green off from making that defence by a legal advantage which he has 
obtained over Green, against the merits of the case.

But the damages being excessive, if the case stands as it does on the record, 
it will be reversed, and thus we here have a legal advantage over him, by 
which we can get at the justice of the case. The court will not consent to his 
taking from us, or aid him in depriving us of this legal advantage, and leave 
him to the enjoyment of his legal advantage, thereby defeating us in our 
effort to get at a fair trial on the merits. This is according to human reason 
and human laws. Neither a court of law, nor a court of equity, will deprive a 
party of a legal advantage, unless it be against justice. Then is the defence 
we set up a good defence? Surely it is so in conscience, and is so in law. Ex 
parte Peale, 6 Ves. Jun. 604; Breckenride v. Shaine, 4 Dana, 375; Rogers v. 
Batchelor, 12 Peters’s Rep. 229; Winship & Co. v. The Bank of the United 
States, 5 Peters’s Rep. 561; 4 M’Cord, 519; 4 American Jurist, 371. A partner 
cannot bind by guaranty without authority. Wagnon v. Clay, 1 Marshall, 257; 
Gow on Partnership, 74. Authority may be inferred. Gow on Partnership, 74; 
Bank of Kentucky v. Brooking, 2 Litell's Rep. 41, pl. 5.

Could it have been made under the pleadings as they were made up? It could. 
See the statute requiring non assumpsit to be pleaded, and anthorising all 
defences under it. Laws of Mississippi, 718—19.

To swear to the plea was not necessary to let in the defence. The omission to 
swear to it only admits the signature as made. Any special defence might be 
given in evidence, such as coverture, &c. If it could not be given in evidence 
under the pleadings, should not the court have granted a new trial, that the 
pleadings might be reformed and justice done? It is respectfully so considered 
by the counsel. The counsel desired to act; he was cut off by some (here) 
unknown rule of practice. Time should have been allowed to swear to the plea, 
and if the rule of practice was against it, it was so hard a rule, and its 
operation so unjust and oppressive, that it ought, under the circumstances, to 
have been relaxed, or if not, the verdict should have been set aside in favor 
of justice.

Were the causes for a new trial sufficient to require of the court, in the 
exercise of a sound discretion, that it should grant a new trial? Such must be 
the case. "Next to doing right, the great object, in the administration of 
public justice, should be to give satisfactin. If the verdict be liable to 
many objections and doubts in the opinion of his counsel, or even in the 
opinion of bystanders, no party would go away satisfied," &c.; "such doubts 
would be with him decisive, he would arraign the determination as manifestly 
unjust, and abhor a tribunal which had done him an injury, without the 
possibility of redress." 3 Black. Com. ch. 24: 3 Tomlin, Trial III, p. 676, 
677.

"It (a new trial) is not granted in cases of strict right, or sum—mum jus, 
where the rigorous exactions of extreme legal justice are hardly reconcilable 
to conscience," Ibid. If not granted in favor of a party who asks for extreme 
legal justice, hardly reconcilable to conscience, how readily would that same 
liberal and enlightened jurisprudence decide, that it should be granted in 
favor of a party who asks for legal justice, founded in the purest and best 
conscience, who has done all he could to obtain a fair hearing of his cause, 
and who had been accidentally defeated by the attention of his counsel having 
been, for a transitory moment, withdrawn from the calling of the docket, to 
attend to professional duties which devolved on him at the moment, and who 
asked to be heard before the jury retired, but was repulsed by the judge, the 
high priest on the sacred altar of justice, on the ground that some rule of 
court, in such a case, cut off justice; how readily would it decide that he, 
who seeks by "extreme and rigorous rules of practice," to strangle justice, 
and put down right, should not prevail, but that his unconscionable advantage 
should be wrested from him, and justice and right done, according to law and 
conscience. If not, would not only the party, but every honest man and lover 
of justice, to use the language of Blackstone, arraign the determination as 
manifestly unjust; and abhor a tribunal which he imagined, nay knew, had done 
him an injury, without a possibility of redress."

There is a material and obvious distinction in the grounds, which will require 
a reversal of the judgment, overruling, and one granting a new trial. By 
granting a new trial, the cause is only kept open for another trial on the 
merits; and in that trial, each party has an equal chance for justice; but by 
overruling a motion for a new trial, the unsuccessful party is concluded, and 
may be subjected to irretrievable loss, and irreparable injustice. Therefore, 
this court will be more inclined to sustain a judgment granting a new trial, 
than one overruling the motion. Ewing v. Price, 3 J. J. Marshall, 523.

Of late years, courts of law have gone more liberally into the granting of new 
trials according to the circumstances of the respective cases; and the rule 
laid down by Lord Parker in the case of The Queen v. The Corporation of 
Helston, &c., 12 Ann. B. R. seems to be the best general rule that can be laid 
down upon this subject, viz: "Doing justice to the party," or in other 
words, "attaining the justice of the case." Lord Mansfield in Bright's Ex’r. 
v. Enyon, 1 Burr. 395.

De Roufigny v. Peale, 3 Taunt. 484. "This cause had stood first in the cause 
paper for trial at a sittings in term. When the cause was called on, the 
defendant's attorney had delivered no brief to his counsel, although he had 
had a consultation with him the night before, and the cause, being thus 
undefended, a verdict passed for plaintiff. Soon after the verdict had been 
recorded, the defendant’s attorney came into court with the brief, to instruct 
his counsel to defend his cause. The court granted a new trial at attorney's 
cost." Graham on New Trials, ch. 6, p. 178.

"But notwithstanding the disinclination of the courts to relieve against 
surprise occasioned by negligence, yet when justice demands, it will be done: 
and if the negligence be really attributable to the attorney, he will be 
directed to pay the costs." Martyn v. Podger, 5 Burr. 2631.

Action on a surety bond, a verdict at the sittings was found for plaintiff, 
the cause being undefended at the trial. The affidavit stated, that the cause 
was a long way off, and was called on, and the attorney not attending, it was 
undefended; that the defendant had a good defence. Ellenborough, C. J. granted 
a new trial at defendant’s cost." Greatwood v. Sims, 2 Chit. Rep. 269.

"The object of granting new trials is, that justice may be done between the 
parties; and where the court clearly sees that a case has not been fairly 
tried upon the merits, and that without fault of the party, justice and reason 
require that a new trial should be granted." Daniel v. Rose, 1 Nott & M'Cord, 
33.

"Where counsel suffered a verdict to pass against his client, without a trial, 
clearly by mistake, and to his prejudice, a new trial will be granted." Riley 
v. Emmerson, 5 N. Hamp. Rep. 531.

"Where no notice at all, or too short notice is given, or where it does not 
sufficiently apprise the party, either of the cause, or the time or place at 
which it is intended to be tried, the verdict will be set aside." Graham’s 
Practice, ch. 16, p. 508.

"The court will, under certain circumstances, grant a new trial where a 
verdict has been obtained against a party, on account of the absence of his 
counsel." 2 Salk. 645.

"Where a cause was called on, and tried as an undefended cause, in consequence 
of defendant's attorney neglecting to file his briefs, the court granted a new 
trial at attorney’s cost." 3 Taunt. 484.

"So where a cause in the calendar of the day, was tried out of its order, as 
an undefended cause in the absence of defendant’s attorney, the court of 
king’s bench granted a new trial." 3 B. & A. 328.

A new trial will seldom be granted, where a verdict has been given against a 
party for want of evidence which might have been introduced at trial, unless 
the verdict be manifestly against the justice and equity of the case. 5 Burr. 
2631.

Holt and Harrison, contra.

To the first assignment of errors, it may be answered, that there is no 
legitimate evidence, before this court, that leave to withdraw the plea was 
ever asked or denied. The bill of exceptions does not state it, but simply 
recites that in support of a motion for a new trial, an affidavit was read, in 
which affidavit, it is said, this leave was asked and refused. The judge does 
not pretend to certify to the verity of this affidavit, in this or in any 
other respect. The refusal of the court, to allow a withdrawal of the plea, 
was not a matter in pais, but a judicial act, of the existence of which this 
court cannot be informed, through the affidavit of counsel or client. The law 
has established a more solemn and less fallible channel of communication, 
between the supreme and inferior court, in a bill of exceptions, in which the 
inferior court certifies its actings in the premises to the appellate tribunal.

At the time when leave to withdraw the plea was denied, the defendant (Green) 
took no exception to the opinion of the court, and that was an acquiescence. 
Some days after, when he made his motion for a new trial, he urged among other 
reasons, why the motion should be sustained, the refusal of the court to 
permit a withdrawal of his plea. After the motion had been overruled, he 
excepted to the opinion of the court overruling it. He never has at any time 
excepted to the opinion of the court, which refused him the privilege of 
withdrawing his plea. Yet the statute and the repeated decisions of this 
court, require a party to tender his bill of exceptions at the moment the 
obnoxious opinion is givon; or he can never assign the same for error.

To the second error assigned, it may be answered, as to the first, that it 
does not legitimately appear that leave to amend was asked for.

Under the statute, Revised Code, 126, sect. 90, "the courts of law have full 
power and authority to order and allow amendments to be made in all 
proceedings whatsoever, before verdict, so as to bring the merits of the 
question between the parties fairly to trial." Before the court can be called 
upon to examine this power, it must be made to appear by the party asking the 
amendment, that such amendment is necessary to bring the merits the 
controversy fairly to trial. In the case at bar, the permission to amend was 
refused, because the attorney who asked pressly stated, that he did not know 
what amendment wished to make, and desired that his client might be sent for 
in order that he might consult him upon the subject! No defect in the 
pleadings was pointed out—no defence suggested to the court—which, of course, 
could not determine that the amendment sought for was essential to the 
purposes of justice.

The power of the circuit courts to allow or disallow amendments, the 
withdrawal of pleas, and filing new ones, are regulated by their sound 
discretion; and, although they may err in the exercise of this power, such 
error cannot be corrected in this court.

"The allowance or disallowance of amendments, is not matter for which error 
lies." 11 Wheat. 280; Coxe's Dig. 281, s. 77; Denn ex dem. Walden v. Craig, 9 
Wheat. 576; Coxe's Dig. 277, s. 32.

"The refusal of the court below to allow a plea to be amended, or a new plea 
to be filed, or to grant a new trial, or to continue a cause, cannot be 
assigned as error." Marine Ins. Co. of Alexandria v. Hodgson, 6 Cranch, 206; 
Coxe’s Dig. 277, s. 32.

The same doctrine has been repeatedly recognised in this court, except as to 
new trials, in regard to which, the statute of Mississippi has changed the 
role adverted to.

To the opinion of the court refusing the leave to amend, no exception was 
taken at the time; for which additional reason, that opinion cannot be 
assigned for error here.

In response to the third error assigned, we insist that the court acted 
properly in overruling the motion for a new trial.

1. Because, as already shown, no error had been committed by the court in the 
progress of the case, which it was desirable to correct upon a second trial.

2. Because the state of the pleadings would not have admitted the defence, 
which Green proposed to make. The plea filed by Webster and Smith, and adopted 
by Coleman as the plea of Green, was non assumpsit. It was not sworn to, nor 
was any special plea filed, with or without affidavit, putting in issue the 
execution of the note, on the part of Green. Under the statutes of 1824 and 
1836, the pleadings as made up, fully admitted the note sued on to be the note 
of all the parties sued. Green, then, either from his own negligence, or that 
of his counsel, was not in a condition to make his defence available, and the 
court will never, under such circumstances of unexplained laches, grant him a 
new trial merely to enable him to remodel his pleading. 2 Term Rep. 119, 120; 
9 Johns. Rep. 78. In M’Neil v. Stewart, 7 Cowen, 474, it was held that, "where 
a defendant by the mistake of his attorney, pleads a plea which does not cover 
his defence, and on trial a verdict is therefore had against him, the supreme 
court will not for that reason, grant a new trial;" the judge remarking 
that "a contrary practice would lead to endless excuses founded, in mere 
pretense."

"The inadvertence of counsel in the management of a cause, is no ground for 
granting a new trial." Meeke et al. v. Wilson, 1 Gallis. 419; Coxe’s Dig. 502; 
Vernon v. Hawkey, 2 Black. Rep. 802; 2 Term Rep. 120.

"The act of a counsel in a cause, is to be considered as the act or the 
client, and consequently, if a counsel waive a thing which would have been in 
favor of his client, it is the same thing as if the client himself waive it. 
The mistake of the judge or jury is a good cause for granting a new trial, but 
the mistake of a counsel is not." Reg. v. The Corporation of Helston, 12 Mod. 
202—3.

3. Because there is no sufficient reason shown, why the defence now urged, was 
not made upon the first trial. There was the grossest laches in client and 
counsel, against the consequences of which the court will never relieve by a 
new trial. 2 Bibb, 18.

"A new trial ought not to be granted on account of the neglect of the agent or 
attorney of the party who applied for it. The neglect of the attorney or 
agent, is the neglect of the principal." Patterson v. Mathews and Wife, 3 
Bibb, 80; Legrand v. Baker, &c., 6 Monroe, 248; Barrow v. Jones, 1 J. J. 
Marshall, 470. "For injuries resulting to clients from negligence or 
inattention on the part of the attorney, courts cannot give redress against 
the other party to the suit, as by granting a new trial." 1 J. J. Marshall, 
471.

In Breach v. Castuton, 20 Eng. Com. Law Reps., it was held that, "the court 
will not grant a new trial where a defendant or his attorney, having an 
opportunity of trying, permits a verdict to be taken as in an undefended 
cause." Vide, also, 21 Ibid. 252.

The negligence of the attorney in this case, is probably without a parallel in 
the history of the profession. Though retained in the defence long before the 
meeting of the court, and though distinctly apprised by his client, of the 
nature of the defence which he was to urge, yet he files no plea, general or 
special, putting in issue the execution of the note sued on, by his client, he 
does not procure any affidavit to be made, but on the contrary adopts a plea, 
which expressly admitted the note to be the note of Green. He did not mark his 
name to the case, or in any manner indicate to the opposing counsel or to the 
court, his connection with it. Absorbed in other business, to him more 
attractive, he does not watch the progress of the court, but permits the case 
to be called and tried in his presence, without exciting his attention, and 
when aroused upon the subject, he starts to his feet, crying out "surprise!" 
asks to amend, but cannot inform the court what amendment he desires to make, 
and wholly refrains from even intimating to the court the character of the 
defence, which by his client he had been instructed to make. The laches of the 
client was equally flagrant. Though in town, engaged in his ordinary 
avocations, he was not in attendance upon the court, no witnesses were present 
at the bar, nor had any been summoned to support his defence. The articles of 
copartnership, now relied on, though in his possession, were not produced or 
exhibited. Such gross and culpable supineness, the law abhors, and will never 
countenance it in those who seek the aid of courts of justice.

Green's affidavit is, at best, but an affidavit of merits, and as such is no 
ground for a new trial. 1 Caines’s Rep. 154.

A new trial will never be granted where the application rests upon the 
negligence of the party; 3 Serg. & Rawle, 604; nor because evidence which 
might have been produced, was not produced. 1 Wilson, 98; Strange, 691; 13 
Johns. Rep. 489; 2 Binney, 582. In the last edition of Bacon’s Abr. 783, it is 
stated that, "in a modern case, a new trial being moved for, on account of the 
defendant’s attorney having neglected to attend the trial, it was referred, 
and per curiam, "as the plaintiff has not been guilty of any misbehavior or 
fault, there ought not to be a new trial, which, as his witnesses may die, or 
be out of the way, may be very inconvenient to him, nor is it necessary to 
grant one; for the defendant who is bound by the verdict, has a remedy against 
his attorney. M. R. Clifton v. Grey. Mich. 31 G. 2, in B. B.

"Upon a motion for a new trial on the ground of surprise, the affidavit of the 
applicant should state particulars of the defence, he is to set up, and that 
should be stated by indifferent testimony. 3 Haywood, 145.

4. The bill of exceptions does not profess to set out the whole evidence which 
was before the court on the motion for a new trial, but only that which was 
offered by Green. For aught that appears, the affidavit of Green, as to his 
meritorious defence, was overthrown by counter affidavits. The production of 
the articles of partnership may have impeached and destroyed the force of his 
oath. The presumption of the law is universally in favor of the action of the 
court below. 1 Bibh, 303; 3 Littell, 169; 5 Littell, 221; 6 Wheat. 542; 1 
Marshall, 314; Monroe, 196; 1 J. J. Marshall, 318. He who complains of it as 
erroneous, assumes upon himself the onus of pointing out the error, clearly 
and distinctly; it is not to be made out by inference. Where the judgment of 
the court is assailed as unwarranted by the affidavits, or other evidence 
before it, all that evidence must be embodied in the bill of exceptions, and 
unless the bill of exceptions profess upon its face so to embody it, the 
presumption referred to will prevail, and the appellate court will intend that 
there were facts before the court below, which justifled its judgment. 5 
Littell, 217-18-19; 10 Yerger, 499; Cassel v. Franklin, 2 Tenn. Rep. 201.

5. The exception to the opinion of the court overruling the motion for a new 
trial, does not appear to have been taken at the time the opinion was 
pronounced.

It is a time-honored maxim of the law "that they shall lose most who trust 
most." Green made Glidwell his partner, entrusted him with the management of 
his fortune, and presented him to the world covered with the badge of his 
confidence. He proved faithless. Who should suffer from such infidelity? In a 
contest between Green (who has thus rashly confided) and Robinson, who trusted 
because Green had pronounced Glidweli worthy of all trust, there can be no 
question but that Green should be the sufferer. It has been for years, in the 
common course of business in Mississippi, for partners to use the 
copartnership name in endorsements, and suretyships. There was nothing in the 
conduct of Glidwell in thus pledging the partnership name to excite the 
suspicions of Robinson, or to shake the confidence in him, which the fact of 
copartneship inspired.

Mr. Justice TROTTER, after stating the case, proceeded as fol1ows:

When the motion was made to withdraw the plea, the cause bad been submitted to 
the jury, and the defendant took no exception at the time to the action of the 
court in overruling it. Motions of this sort are generally made ore tenus, at 
the bar of the court, and the record is silent, both as to the motions and the 
decision of the judge. Such was the case here. The record says nothing of this 
motion, and we are only informed of it by the affidavit of the attorney in 
support of the motion for a new trial, in which he details the previous 
history of the cause, and in which this motion to withdraw the plea is stated. 
The only bill of exceptions in the record is that which was drawn up after the 
question of a new trial was disposed of. This contains the affidavit of 
Coleman reciting the previous motion, but the judge has not certified to us 
that the motion was made; nor could he properly do so. The law has established 
a certain method of communication between an appellate court and the inferior 
tribunals. The record certitied by the judge of the court below is the only 
legal evidence of the history of the proceedings in the cause, and if that is 
silent we cannot look to other sources. And the party who excepts to the 
conduct of the court must take care to make the matter of exception a part of 
the record, either by bill of exceptions taken at the time, or in some other 
mode pointed out by law. The only evidence before us of the motion to withdraw 
the plea is the affidavit of the attorney, and the bill of exceptions does 
nothing more than to certify that the affidavit was presented. It does not 
aver its truth. We are constrained, therefore, to disregard this assignment of 
error. It has been held by repeated decisions of this court, that the party 
who excepts to the opinion of the judge must tender his bill of exceptions at 
the time, or it is too late. The defendant below did not except; he is, 
therefore, deemed to have acquiesced in the decision. And so, in truth, he 
appears to have done, for he immediately applied to the court for leave to 
amend the plea, which was equivalent to a waiver of the first application. The 
court refused to allow the amendment. Whether the court acted properly or not 
in refusing this application, is not for us to decide. It was a matter resting 
in the sound discretion of the judge, and his decision is not open to review 
in this court. The allowance or disallowance of amendments is not ground for 
error. 11 Wheaton, 280. But a conclusive answer to this assignment of error is 
the fact stated by the attorney himself, that he could not, when the 
application was made by him, "point out or specify the defects and amendments 
wished to be made." How, then, could the judge determine whether an amendment 
was necessary to reach the merits of the cause?

The only question left for the determination of this court is, whether the 
judge below was right in refusing a new trial. This was a question which 
addressed itself to the sound discretion of the court, regulated as that 
discretion must be by such rules as have been adopted to prevent injustice and 
guard against abuse. It is the cherished policy of the law to suppress 
litigation and secure repose to society. Hence it has become a settled rule 
that when the matter of controversy has been determined by a competent court 
it shall not be again agitated, except when manifest injustice has been done, 
by the mistakes of the judge or the jury, or the improper and fraudulent 
conduct of the party. To vacate a judgment obtained by any of these means is 
the province of the judge who presides at the trial; or, by our act of 
assembly, it may be done on error to the appellate court. And to exert this 
power in such a case, is a duty required no less by the settled rules of law 
than the essential principles of justice. In such case it is the proud and 
boasted privilege of an independent and upright judge to interpose and set 
aside the determination. When, however, the diligent suitor has obtained his 
judgment fairly, and by the regular modes of proceeding and of proof, he must 
be permitted to enjoy its benefit, he is not to be again turned into a 
litigant, or otherwise prejudiced, for no bettor reason than that his 
adversary, through neglect or ignorance, omitted in proper time to come 
forward and contest his right. Therefore courts of justice have constantly 
refused to disturb judgments when the alleged injustice of them is the result 
of the palpable inattention and supineness of the party himself; or, when he 
had a full opportunity to oppose it, but by carelessness omitted to do so. The 
cases in which new trials have been granted, when the attorney neglected to 
attend to the cause, will be found to be those where glaring injustice has 
been done. The case of Martyn v. Padger and Others, 5 Burrow, 26, 32, which 
has been so much relied on by the counsel of the plaintiff in error was of 
this description. The action was trespass against the sheriff and his baliff 
for seizing certain goods alleged to be the property of the plaintiff. The 
defendants produced in evidence upon the trial an execution against Wm. 
Martyn, the son of the plaintiff, but showed no copy of the judgment. The 
plaintiff produced a bill of sale from the son embracing the property in 
question. There was a verdict for the plaintiff for want of the judgment. A 
new trial was granted, but it was done because the court was satisfied that 
the recovery was manifestly contrary to reason and justice—the bill of sale 
being fraudulent. The judges say it would be shameful that the plaintiff 
should reap an advantage from so gross an act of fraud. They put the case upon 
the palpable fraud of the plaintiff; and this was so clear that Lord Mansfield 
himse1f advised the motion for a new trial, and very properly determined that 
the inadvertence of the attorney in not producing a copy of the judgment 
should not be the means of consummating and perpetuating what he terms a most 
shameful fraud. That case was decided upon the fixed maxim that fraud vitiates 
every thing, and that on no account shall a man be suffered to reap a benefit 
from it. The case of Bright v. Enyon, 1 Burrow, 395, was likewise urged with 
much warmth as authority to control the present question, and particularly 
what is there said by the judges upon the subject of new trials. There is 
nothing said in the case in regard to what sort of negligence will be relieved 
against. That case, like the other, was placed upon the palpable injustice of 
the verdict. The defendant recovered upon a written discharge of the debt on 
which he was sued. The facts were laid before the jury, and Lord Mansfield 
said, in giving his reasons for a new trial, "what I go upon is the apparent 
manifest fraud and imposition in obtaining this discharge from the testatrix 
if she really signed it. And again, he says, "the writing upon the face of it 
speaks fraud and imposition." The defendant, upon his own case stated by 
himself, and the evidence on both sides, showed that he had obtained the hand 
of the plaintiff to the writing fraudulently, and therefore he was not 
permitted to avail himself of it. That case was fully warranted by the general 
rule laid down by the judge, that is, that a new trial should be granted in 
all cases where it may be necessary to do justice to the party, or to attain 
the justice of the case. But what proof have we that justice has not been done 
in the present case? Upon what evidence are we at liberty to say, in the 
emphatic language used by the judge in the cases referred to, that this 
verdict is manifestly contrary to reason and justice? Upon what part of this 
record is it made apparent that the verdict was obtained by the manifest fraud 
of the plaintiff? It is true there is the ex parte affidavit of Green that his 
name was signed to the note by his partner, without his consent; and this is 
unsupported by any proof on the trial or the record. But this is not pretended 
to have been brought about by any improper conduct of Robinson; and though the 
affidavit states that there was a stipulation in the articles of 
copartnership, that neither partner should be at liberty to bind the firm as 
surety for others, yet it is not insinuated that Robinson knew this, and 
indeed the affidavit is not even fortified by the production of the agreement. 
It is not shown to the court. Why he chose not to do so we have not been 
informed. This affidavit is no more than an affidavit of merits, and as such 
is no ground for a new trial, 1 Caines’s Rep. 154; and this rule is founded in 
wisdom and sound policy. It cannot be endured that a party to a suit in court, 
with full notice of its pendency, shall sit by and make no defence, and after 
a verdict against him have it set aside upon an affidavit of merits. That 
would be to pervert the maxim that the law was made to subserve the vigilant 
and not the negligent. But it is urged that the counsel of the defendant was 
taken by surprise, and was prevented from making the defence disclosed in the 
affidavit. This is not that sort of surprise which is sometimes considered 
sufficient to authorise a new trial. The attorney could not be surprised that 
the cause was reached on the docket, and submitted to the jury. He should have 
noticed the progress of the court, and been in attendance. He was in 
attendance, and stood in the court room and suffered the cause to be called 
and placed with the jury before he let the court or the opposite counsel know 
that he was employed. But he has made it manifest, that if he had appeared on 
the trial he had precluded himself from insisting on the only defence his 
client had. By pleading in chief he had admitted the execution of the note. Of 
what avail would it then have been if the court had arrested the cause and 
allowed him to offer proof? It is then, for the first time, he becomes 
sensible that his plea will not cover the defence of his client; and, at that 
moment, when the papers have gone to the jury, he asks permission to amend. It 
is not surprising that it should have been refused. The amendment is not 
sought upon newly discovered matter of defence. The only ground of his defence 
had been communicated to him by his client before the meeting of the court. 
And notwithstanding this, he had, as he tells the court, deliberately adopted 
the plea which excluded it. And what is still more strange, when the amendment 
is asked for, it is coupled with a request that his client might be sent for 
to point out and specify what amendments were necessary. Surely these facts do 
betray a degree of negligence and inattention so gross that it would be a 
violation of the most obvious rules to interpose. He had made no preparation. 
And is the plaintiff to be prejudiced by this remissness? The law says he 
shall not. In the case of M’Neil v. Stewart, 7 Cowen, 474, it was held that 
where a defendant, by the mistake of his attorney, files a plea which does not 
cover his defence, and there is a verdict against him, the court will not for 
that reason grant a new trial. And the judge remarks that a contrary practice 
would lead to endless excuses founded in mere practice. The inadvertence of 
counsel in the management of a cause is no ground for granting a new trial. 
Coxe’s Dig. 502; 2 Tenn. Rep. 120. And the books are full of this doctrine. 
The verdict must therefore stand. But, as the judgment is for a sum larger 
than that demanded by the suit, it must for that reason be reversed. The 
release which has been entered of record for the excess, however, will 
authorise this court to render the proper judgment, which will accordingly be 
done.

Judgment reversed, and rendered for the sum actually due, with damages.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

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