stated the case, and the general outlines of the evidence, as detailed by the chief justice. He then added :

I do not descend to a more minute detail of the evidence, as the title of the actual settler does not depend on the extent of his improvements, but on his improvement animo residendi, and continued from time to time under existing circumstances.

It has been pronounced from this bench during the present term, that this court on an appeal, are bound to do what the judge ought to have done in the Circuit Court. And if such a case has been made as requires the exercise of the controuling powers of this court by settled law, we are as much compelled to discharge our duty in this particular, as in any other of the branches of our official duties. It is an application to the sound legal discretion of the court, bottomed on the immutable principles of justice. To suceeed in a motion for a new trial, the party applying must have merits.

It is a dispute between two persons claiming as actual settlers, under the act of 3d April 1792, without warrants. The jury were told by the chief justice on the trial, that the question between the parties turned on a single point, whether the actual *537settlement of the defendant was kept up till that part of 1801, which would make five years from the commencement of the improvement. An unmarried man in particular is not obliged to remain always on his land: he may make visits to other places ; and especially, if his father lives near him, he would naturally spend a good deal of his time with him, without being supposed to abandon his settlement. A man cannot be an actual settler on two tracts of land; but if he has children of sufficient age to reside on and cultivate the lands, those children might obtain a tract of land by settlement; and where a settlement has been fairly commenced, and valuable improvements made, great *allowances should be made in point of resi- „ dence, unless it appears, that it was done with a fraudu- ^ ^3 lent intention of effecting two residences, in order to hold two tracts. To the truth of these remarks every honest man will subscribe. I deplore the unfortunate error which has prevailed among actual settlers, that where one of them has left his habitation for temporary purposes, though he has given the most unequivocal proof of his intention to return speedily, another may invade his cabin and hold the land in opposition to him. Such conduct cannot be justified by religion, morality, or the act of 3d April 1792. The legislature never intended that an actual settler should be confined to the lines of his survey, as within the four walls of a prison. Their views as to them were much more beneficent.

This case was submitted fairly to the jury, that if they should be clearly of opinion, that the residence had' been relinquished, the plaintiff’s title was good. But if they had any doubts on that point, they ought to find for the defendant; because it was a very hard attempt on the part of the plaintiff to reap the fruits of another’s labours.

The jury by their verdict have negatived the abandonment of the residence. They were the exclusive judges of the credit of the witnesses. Few persons will say, that the defendant’s marriage in February 1802, was not a tolerable excuse for quitting his old cabin. The judge, who tried the cause, has declared his satisfaction with the verdict, and thinks it a good one. His op portunities of information of the witnesses, are much superior to those who were not present at it, and his opinion of the evi dence will always have great weight in this court. On the fullest consideration, I cannot say that the verdict which has been given, is either against law or the weight of the evidence; and therefore I am of opinion, that the judgment of the Circuit Court should be affirmed.

I have been led to consider a little the origin and nature of granting new trials. It succeeded the writ of *538attaint. This writ was grounded on an allegation of perjury;* *and this allegation was founded on express proof, or on a presumption of corruption in the jury by the party. Plence at common law, where the writ must be against the whole jury, the defendants could not have been fewer than thirteen. This appears from the recital in the stat. 15 Hen. 6.

The presumption of corruption in the jury by the party, where it was matter of presumption, and not of express proof, must have been drawn from the glaring injustice of the verdict. That it must have been a case of manifest wrong, will appear from the greatness of the punishment on conviction. This wrong could more easily appeal", when the matter in issue to the jury, was simple, as at an early period it was in all cases. As questions became more complicated, the wrong could not always so manifestly appear; and hence the presumption of corruption did not so necessarily arise. The punishment of course became dis-proportioned to the evidence ; conviction did not follow, and the attaint ceased to be a remedy. It was'attempted to be helped out by statute reducing the punishment; yet reciting in all cases, the reason and ground of the writ, to be that of corruption by the party, and perjury in the jurors. But the questions submit*540ted *to a jury becoming every day still more complicated in evidence, and intricate in law, from the removal of restraints in the alienation of real estate, or from the relations and transactions of a more improved state of society, the unreasonableness continued more and more to be felt, of considering that as a crime, which might be no more than a mistake. The writ of attaint, with all the softening of statutes in the penal consequences of conviction, ceased to be a remedy; for no conviction would follow. The feelings of the heart and the reason of mankind revolted against it. It is now a mere name; and the inference of perjury has ceased to be drawn even in a case of glaring injustice; because defect of intellect or of attention in the course of a long examination, or preconceived and imperceptible bias may be sufficient to account for it: and I take notice of this early mode of questioning the verdict of the jury, only with a view to shew, that originally it could not be questioned upon slight grounds.

In- place of the writ of attaint, which was now disused, recourse would seem to have been had in extreme cases, to the Court of Chancery; where under a consideration of the circum stances of the case, new trials were directed.

This led to the courts of law themselves entertaining motions for new trials. Motions of this nature had always been entertained on the ground of misbehaviour of the jurors or parties, or irregularity in the finding, or delivery of the verdict; and the reason why we do not hear more of these motions, at an early period, is, because “the old report books do not give any ac~ “counts of the determinations, made by the court upon mo“tion.” 1 Burr. 394.

In Slade’s case, Style 138, which is our first case on the subject of granting new trials, it was moved, that judgment be stayed upon a certificate of the judge, that the verdict had passed against his opinion, and that there might be a new trial; for that it had been done theretofore in like cases. But Rolle, C. J. of B. R. said, “ that it ought not to be stayed, though it had “ been done in the Common Pleas ; for that it was too arbitrary “for them to do it.”

Nevertheless, (though at first with great strictness) the practice of Common Pleas would seem to have prevailed : and of late years, says Lord MANSFIELD (i Burr. 395) the courts of law have gone more liberally into the granting new trials ; and not only after trials at Nisi Prius, but also after trials at bar, as readily as after trials at Nisi Prius; or indeed rather more so, as the latter must be done upon what could have actually and personally appeared to a single judge only ; whereas the former is grounded upon what must have manifestly and fully appeared to the whole court. As a reason for granting new trials, he further observes, that as most general verdicts include legal consequences, as well as propositions of fact, in drawing these *541^consequences, the jury may mistake, and infer directly contrarj to law.

This was the beginning of his doctrine, which led to the making propositions of fact in some cases legal consequences; and finally, to the exclusion of the jury in some instances, from the province of drawing legal consequences at all. I impute it to his introduction, that in subsequent practice, more liberty hath been taken with verdicts of juries, than it would seem to me, principle would warrant. It became fashionable to alledge, and indeed tracts (as Eunomus, &c.) have been written to prove, that the juries were in no case judges of the law; that if they did determine the law, it was because on a general issue, it was incidental to the finding the fact, and' involved with it, that the courts had not only discretionary power, but were bound to controul the juries in their verdicts ; that if the juries were to give an hundred verdicts against what the judges took to be law, new trials should be granted; for juries ought not to be' considered as having a concurrent right to judge of law, but as directed by the court; and that the direction of the court was the only evidence they could have of law, the only speculum through which they could look at it.

On this I observe, that in every general verdict two things must be involved ; the fact and the conclusion from the fact; hence it cannot but be, that the jury are judges of the law. Whence then the maxim adquestionemperis See. ? * The maxim *means, that where the conclusion can be separated from the fact, it shall be drawn by the court. This can be *542done only by the pleadings, in the course of which the facts are admitted, and the conclusion alone remains to be drawn.

In drawing the conclusion, the mind thinks of some general principle under which the fact may come; and in this operation of the mind, the court must necessarily travel into the fact, from which the conclusion is drawn. They cannot, but in the first instance, make an inference from the evidence, of what the fact in the case is. It does not follow therefore, that it is only matter of law of which the courts judge in granting a new trial. In every case on a general verdict, they must judge of the fact first.* Hence the imperfection of their judgment, in judging of the justice of their verdict; and it follows, that they are not bound and cannot be justified in granting new trials, against the sense of successive verdicts.

Where a mind has the faculty of reasoning, and that faculty is strengthened by the exercise of reasoning, as is presumed to be the case with a judge, great power is acquired in separating and comparing ideas ; and where a knowledge of general rules enable to determine under what rule the facts of a case come, we approach the nearer to something like certainty; yet such is the diversity of transactions, that the application of a general rule in all cases would work injustice.† How then can a judge know or undertake to say with certainty, that when a jury departs from what he could call a general rule, there is not something in the nature of an exception in the case, which attaches the feelings of the heart and forces a verdict contrary to the direction of the *court, who apply the general rule. For this reason, the p¡. verdict of a jury ought not lightly to be questioned, even though it has gone against the opinion of a judge.

It is with less confidence, that a court ought to advance, in granting a new trial, on the ground of a verdict being against evidence. And one reason for this (which can never be answered) is, that the judge cannot fully know upon what evidence, for they may have other evidence than what is shewed in court, Tri. Per Pais. 274. The impressions of a jury of what they themselves know of the parties or witnesses, or what is collected from the manner in which the testimony is given, cannot be communicated, and makes no part of the evidence before the judge. To say therefore, in the language of Judge Foster, (i Burr. 395,) “that the evidence greatly preponderates against the ver- “ diet, ” is a matter, which in no common case can be done. I am therefore not disposed to think that in every case, “ where *543there is a reasonable doubt,” (which is the expression of Lord Mansfield) we are justifiable in setting aside a verdict.

The granting a new trial must involve the Idea, that the court so exercising the power, have the evidence all before them, from which the fact was inferred by the jury. Unless therefore in the case of a judge, before whom the evidence was given, there cannot be the same evidence that was given to the jury. For though the whole be taken down by the notes of the judge, lite-ratim as to written evidence, and verbatim as to oral testimony, yet the impression cannot be communicated. For as much may be frequently collected from the manner in which the evidence is delivered, as from the matter of it. 3 Black. 375.

The law’s delay is proverbial; it is enumerated by the poet amongst the evils of life. It furnishes an argument against turning the successful party round to another trial. Nor is it him that it delays only, but other suitors. There is greater delay in this state from granting new trials, than under the judiciary system of that country from whence we derive the 'practice. There the four terms occur every year, to which the motion for a new trial can be made ; and the cause may go to trial at the sittings after term, or at a Nisi Prius court, allowing only reasonable time for the commission to issue and the jury to be summoned, and the new verdict may be had in three months. Here, so far as respects the Nisi Prius, the delay of a new trial ordered at March term, must be until December, and in all the Circuit Courts it cannot be less than a year; so that the delay of judgment and execution, independent of the merits, is of itself an objection for a motion for a new trial. Hence it is, that in the Circuit Courts, the motion for a new trial, where the verdict is for the plaintiff, is a thing of course, an appeal being given * 1 *from the judge refusing a new trial, and the delay of 544J course obtained. It being thus a thing contemplated by the judge before whom the cause comes to be tried, that a motion for a new trial will be made, he is led to delay the trial by taking down the written evidence at great length, and “ to chroni- “ cle the small beer ” of the testimony, endeavouring to reach the whole body of the evidence, so that the time allotted for the circuit is sometimes taken up with little more than a single cause; and when a new trial is granted, the judge who comes the next year has the same cause to occupy his chirography, and prepare for the motion that is to be made again. This may be said to be in some degree the fault of the system ; but the court must take the system as it is, and in matters of practice must look to it; and the reason ab inconvenienti must weigh with them in all that is within the province of discretion. Our legal discretion must have respect to the rights of other parties, who are waiting on the country for the hearing of their claims. And at a time when the cry of delay is loud against the administration of justice, it would seem to me, that it is our duty to consult dispatch in the trials, and to refuse, unless in extreme cases, the throw*544ing the matter- back upon another jury. The public sentiment, as far as I can collect it, is with the juries ; and we hear less of the injustice of verdicts than of the delay of trials. ' If a more sparing interference of the courts should not be exercised, it may come to be felt by the people, and lead to a reform in a system which does not give time for those revisions of verdicts which the constitution and holding of the English courts admit. Is it a time for the courts of this country to be stretching to the utmost extent the controul of verdicts, when the struggle is, whether there shall be law judges at all ? Rules of law are to be regarded as much as the principles of any other science; but a great part of these rules which we call law are but the dictates of natural feeling, or moral reason applied to the case before us; principles of equity and justice, resulting from the relations or contracts of men. The judge, in the plenitude of his pride, is apt to arrogate to himself, as having alone th.e capacity to judge of these, or to apply them, which is but the exercise of reason. A consideration of these particulars ought to give respect for the deductions of even uneducated men, sc as not lightly to set aside what they have thought the justice of the case. «

A knowledge of rules is the result of reading or of hearing, but the application of them requires a different faculty, and which we denominate common sense. Now it is allowed on all hands, that a man may have at least the reputation of a great judge, and yet be deficient in the knowledge of human nature *and in natural understanding. It is the province of a court to assist with the knowledge of rules, and of a jury ^45 to assist in the application of them. This gives a jury a wider field than the mere finding of a fact, even supposing them excluded from determining what the law is. The sense of a jury in the application of law to the fact is a great help to the court, and a great support. Consilittm simul atque auctoritas adsunt.* Tacit, de Mor. Germ. A passage, which expresses the use, and perhaps the origin of juries.

I never find the verdict in agreement .with my way of thinking as to the justice of the case, but I draw from it strong confirmation of my opinion; nor ever find it against it, but I go a great way in taking it for granted that I was wrong. And with good reason; for it has been rare, that I have not observed in the jury all due deference to the judgment of the court; and it must be a strong sense of right and wrong that will lead them to dissent. It is this experience, and this course of thought, that has given me some resistancy to applications for new trials.

It has been perhaps increased by the time taken up in arguing them, and the making them in the Circuit Court mere matters of course ; so that every cause must be tried with a view to a new trial; and the judge is more concerned to get the evidence *545forward to the hearing in term, than to infer from it in the first instance.

So much with respect to the province of the jury in determining the law, and the province of the court in controuling their conclusions in matter of law by setting aside a verdict. But in matter of fact, the conclusion of a jury is still more to be respected. I will not say, that it is exclusively their province, but it is peculiarly their province, and not lightly to be invaded. It must be a strong case, such as to shock the mind, that would make me easy in throwing the parties upon the country for a new trial, where there has been no surprise, a full hearing, the advantage of learned advocates, &c. but where the motion is made merely on the ground that the verdict is against evidence. But where the judge who had tried the cause, and before whom the verdict was taken, has sanctioned it with his judgment, and now declares himself satisfied with it, as at present advised, I am nearly prepared to say, that to interfere, is a power which I will not undertake to exercise. At least, I am prepared to express a wish, that the legislature will interfere and take away the appeal in such cases from the Circuit Court altogether, to prevent delay that must be done, orfhe system must be changed.

# .q * Having made these summary observations, I shall 54 -* now consider in a few words, the case before the court. It may be said to involve a question of law, for that an „actual settlement is necessary to support the claim of the plaintiff, or to protect the defendant, is matter of law; and it may be, that what shall be construed an actual settlement, may be considered as matter of law. But this consideration, in the nature of the thing, is so involved with the conclusion to be drawn from the facts, that it amounts to the same thing; for the question will be, whether the facts of the case constitute an actual settlement. The legal conclusions/and the conclusions from the evidence cannot be separated. The verdict can therefore be considered only on the ground of being against evidence. Here then was the conclusion of a jury, and the sanction of the judge before whom the cause was tried ; and what weighs still more with me, that judge after reflection, and a lapse of time, declaring himself satisfied with the verdict. I shall therefore not be disposed to disturb it; but to concur in refusing a new trial.

Judgment of the Circuit Court affirmed.