44 ,FEDERAL~ REPORTER. ,
From the legal views of thef defendants’ counsel, so clearly and confi-
dently expressed in their brief, I suppose that they did not advert to the
distinction, so well settled, between a civil action in our state courts, in
which legal and equitable rights and remedies may be adjusted and de-
termined in the same trial, and an action atlaw in the federal courts, in
which the principles, forms, and remedies of law and equity cannot be
blended. Van Norden v. Morton, 99 U. S. 378.
` The third cause assigned for a new trial is newly-discovered and nia-
_ terial evidence, which by due diligence could not beprocured on the
trial,. and, if a new trial is granted, will certainly change the result.
The counsel for defendants strenuously insists that new trials ought to be
liberally granted, " in furtherance of justice." V
~ In criminal cases, when‘the_ life or liberty of the citizen is involved,
a judge may properly exercise a liberal discretionin allowing a person
convicted to have another opportunity of explanation and defense, when
there isreasonable doubt as to guilt, or fairness in .the first trial. But
in civilcases, when the rights of the parties have once been determined
after .full»investigation, by an impartial. jury, the discretion _of the judge
should be a legal discretion, controlled by the principles and usages of
~ law. ~ The statute conferring. jurisdiction upon, the federal courtsto
grant new trials expressly provides that such power should ·be exercised
$‘ for reasons for which new trials have been usually granted, in courts .of
law." This provision applies onlyito jury trials, and is directory to the
courts, to be governed by the rules and principles of the common law.
The courts of the common law have usually granted new trials when the
verdict is against the weight of the evidence, or contrary to law, or when
excessive or manifestly insuflicient damages have been awarded; for the
admission of illegal evidence, or the rejection of competent evidence;
or when a party has been deprived of evidence by accident, and without
fault on his part, or is taken by surprise in a matter that he could not
reasonablyanticipate; for misdirection of the court upon material ques-
. tions of law, ·or for serious irregularity in the trial; or misconduct of the
jury; or unfairconduct of the prevailing party; or rrianifestinjustice
hasbeendone. Courts of law have also granted new trials when the
losing party. has discovered material evidence since the trial, and satis-
` ned the court that he had used due diligence in preparinghis case for
trial; thatthe newly—discovered evidence will tend to prove a material
fact which was not directly in issue on the trial, or was not then known
and investigated by proof, and will probably produce a different result.
A losing party cannot properly be allowed a new trial for newly-discov-
ered evidence which presents no new fact, but is merely cumulative in its
nature, or when he has notexercised previous diligence in procuring it,
when the means were within his power. Steph. P1. 95. A
I have read, and carefully considered, the allegations and statements
of matters of fact set forth in the aiiidavits of the defendants, and of N.
W. Girdwood. The statements of Mr. Girdwood refer only to the horse-
, power capacity of the engine, and are merely cumulative expert evidence_
upon one of the main questions involved in the issues that were before