due consideration a new trial was awarded, at the cost of the defendant.
The plaintiff then moved that a venire facias de novo issue returnable to the present term, and that the cause be tried at the present term, but this motion was overruled by an equal division in the court, and the case was continued, with leave to the parties to take depositions.
At the next term, July 22, 1830, the cause came on for trial before Benjamin Johnson, James W. Bates, Edward Cross, and Thomas P. Eskridge, judges, and a jury was formed of the following persons, namely: Edward Shurlds, Dudley D. Mason, Nathan W. Maynor, John McLain, Cornelius W. Ennis, Jordan Stewart, Christian Brumback, Lewis Young, Burk Johnson, David Davidson, Ransalear Munson, and John H. Lenox, who, after hearing the evidence and arguments of counsel, retired to consult of their verdict, and returned into court with the following, namely: "We, of the jury, find the defendant, Eli J. Lewis, guilty in manner and form as charged in the plaintiff's declaration, and aver the plaintiff's damages by reason of the premises set forth in said declaration, to the sum of seven thousand, seven hundred and thirteen dollars. Burk Johnson, foreman."
And judgment was rendered for the plaintiff for the damages so averred, and for costs.
Before the jury retired, the plaintiff asked and obtained leave to enter a nolle prosequi as to Peter Edwards, codefendant, which was done accordingly, and he was discharged.
On the next day, July 23d, 1830, the defendant Lewis moved for a new trial, for divers reasons set out in his motion, and on the 2d August, 1830, the same judges presiding, the motion was sustained, and a new trial awarded, on which occasion the unanimous opinion of the court was delivered as follows, namely:—
ESKRIDGE, J.—This is an action of trespass. There was a verdict during the present term for the plaintiff, for seven thousand, seven hundred and thirteen dollars, and the case is now before the court on a motion for a new trial. The material grounds assigned for a new trial are: First, that the damages are exces-
