Smith vs. The Pacific Mail Steamship Co., 1 Cal. 445

By the Court, Bennett, J. No error appears on the record in this case, for which the judgment ought to be reversed. This cause being an appeal from a judgment of the court of First Instance, we should feel authorized, under the statute of Fell. 28th, 1850, to reverse it, if it had been shown clearly by the affidavits that injustice had been done upon the merits. The court during the progress of the trial discharged some of the jury, and continued the trial before the others.

The record does not show that any objection was made by the defendants to this proceeding, but the defendants now come in, and say, by affidavits, that an objection was made, and ask that the judgment may be reversed for that reason. But they do not show that the facts of the case made out by the evidence do not fully warrant the verdict of the jury and the judgment of the court. Before we should feel called upon to reverse a judgment, when the case is presented to us upon affidavits, as in this instance, we must be satisfied that some real injustice has been done to the appellants.

I think the judgment should be affirmed.