OPINION ON THE COURT BY
HARTWELL, .1.The first instruction prayed for was correctly refused. We see no mode by which the former verdict could be used to abridge the work of the subsequent jury, inasmuch as the evidence that the appellant was the intestate’s foster child could not be excluded from evidence that she was a foster child adopted as an heir. And besides, the early verdict had not ripened into judgment, by which alone does it operate to work an estoppel. Hawks vs. Truesdale, 99 Mass., 557; Burlen vs. Shannon, Ib., 203.
The second and third instructions prayed for are sufficiently and substantially included in the instructions given.
The instructions excepted to were correctly given. The Act of 1843 invalidates subsequent adoptions unless made in writing. The ancient oral mode of adoption has no force unless complete before this Act went into operation. The adoptive act, call it contract or will, must be defined and complete under the ancient mode, or the statute, in order to be valid.
The record shows that Puhalahua adopted the appellant, if at all, before he married Nakuapa, but that he died testate, devising his property to his widow, Nakuapa. Whether this adoption be called a will, or contract revocable by the adopter, this disposition of his property may be regarded as annulling his adoptive act, which in no aspect became an ante-nuptial contract binding on the widow, unless expressly disaffirmed- by her. The widow’s mere silence would not suffice to show her revival of the original adoption.
The admission of the "written statement of His Majesty presents the only question of difficulty. That statement was *403not verified by affidavit, nor had the other side notice that it would be taken, in order that they might present cross interrogatories. True, it was optional with His Majesty to testify, and it was not a case for a sub-p oma ad testificandum. But notice can always be given that the parties intend to take such evidence, and each side has a right to file interrogatories and cross interrogatories, if the request be granted. The failure to give such notice would invalidate a deposition had one been made, and the failure to verify by affidavit precludes the admission of this statement as evidence.
The case of Whittit vs. Miller is relied on as authority for refusing a new trial for the admission of incompetent evidence when the verdict rests on legal evidence. That was a case of crim. con., tried at Lahaina, in which a marriage certificate was admitted as evidence with the testimony of the witnesses of the marriage. A motion for a new trial was heard by Chief Justice Lee, at Chambers, who held that the admission of this incompetent evidence was no cause for a new trial. The Chief Justice remarked, that “it is a well settled principle of law that a new trial will not be granted unless there is probable cause to believe that injustice has been done by the admission of such testimony, or provided there be sufficient evidence without it to authorize the finding of the jury.” Whittit vs. Miller, 1 Haw. Rep., 83. The above decision is not that of a majority of this Court, and therefore is not binding as a precedent; but the question is important, and as it has not since been presented for adjudication, it deserves full consideration. First, it may be observed that no objection to the certificate appears to have been made at the trial, nor does there seem to have been any conflicting evidence. These were good and sufficient reasons for denying the motion for new trial. But although the right decision was given, it may, with deference to the late learned Chief Justice, be doubted whether the statement of the law made in that case was precise and accurate. A *404new trial is never granted without probable cause to believe that injustice has been done, meaning by injustice any failure to give the losing party his full legal rights; but it may be impossible to show that the verdict vías based on illegal evidence, if there was legal evidence also.
That a new trial is not granted for the admission of incompetent evidence so long as competent evidence remains on which to base the verdict, is not, as it seems to us, the rule of law as fixed by English or American decisions. In the English courts, discretionary power is exercised in declining to grant new trials when 'in the opinion of the Court the evidence was immaterial to such extent that the jury were not likely to be influenced thereby, and when the Court is satisfied that a new trial would result in the same verdict. In many of the courts of the United States, a similar course seems to be adopted ; such, if we may rely on Digests and Text books, is the current of decisions in Wisconsin, Florida, Texas, Illinois, Missouri, Minnesota, Rhode Island, California, Georgia, New Jersey, Arkansas, Mississippi, Indiana and Maine. Hilliards’ New Trials, ch. 8 and 13, U. S. Dig. passim. The difficulty with this view of the law, if it be correctly stated, is in keeping distinct the functions of the jury in weighing evidence and of the Court in deciding its legality. The Court must also find difficulty in ascertaining whether the jury decided on the bad or the good evidence. The New York decisions accordingly go to the length of granting new trials whenever the illegal evidence bears in the least degree on the issue, even if it be merely cumulative, although distinction is made between such error presented by a bill of exceptions and by a full statement of the case. Osgood vs. Manhattan Co., 3 Cow., 621; Worral vs. Parmelee, 1 N. Y., 521; Myers vs. Malcolm, 6 Hill, 296.
New Hampshire Courts appear unwilling to disturb verdicts when evidence merely irrelevant was admitted. Adams vs. Blodgett, 47 N. H., 223; Rollins vs. Chester, 46 Ib., 415; *405especially if they cannot see wherein it was likely to prejudice the jury. Blodgett vs. Farmer, 41 Ib., 405; but otherwise, if the evidence was “very likely to prejudice the mind of the jury.” Center vs. Center, 88 Ib., 322. Earlier decisions in that state seemed to require the Court to be satisfied that the evidence actually produced the verdict. Hamblett vs. Hamblett, 6 Ib., 342; Cook vs. Brown, 34 Ib., 470. Perhaps the following case presents with due precision the New Hampshire law on the subject: “It is only in those cases where the testimony is immaterial in the broad sense of the term of having no bearing, proper or improper, that the Court can perceive, that they refuse to set aside a verdict on account of its illegal admission.” Winkley vs. Foye, 28 Ib., 519; and 33 Ib., 176.
Massachusetts Courts prefer to restrict their refusal of new trials to cases where there “ can be no reason to apprehend that it could have had any improper influence on the jury.” Ellis vs. Short, 21 Pick., 145. In the following cases in that state, irrelevant or immaterial evidence was held not to invalidate the verdicts. Barry vs. Bennett, 7 Met., 362; Culver vs. Dwight, 6 Gray, 445; Doane vs. Baker, 6 Allen, 261; Sibley vs. Leffingwell, 8 Ib., 586; Packard vs. New Bedford, 9 Ib., 202. The rule is thus expressed by Chief Justice Shaw, viz.: “ Such motion will not be granted if the Court can see plainly from the whole evidence, that independently of the evidence received, the evidence in support of the verdict so decidedly preponderates, that a verdict the other way would be set aside as against evidence. Thorndike vs. Boston, 1 Met., 249. This we regard as the correct and safe rule to adopt.
Our law is well settled in regard to setting aside verdicts for insufficient evidence; but the present exceptions fail to show whether there was or was not such evidence for the appellant, that a verdict in her favor would have rested thereon. The loose practice of referring to all the records as *406part of the exceptions is reprehensible, but counsel cannot safely omit in their exceptions anything which goes to make out their case. These exceptions might easily have averred that there was evidence tending to support the appellant’s claims, or might have set forth the evidence if the averment would not have been allowed. But in this instance we prefer not to decide on this ground. The admission that the appellant laid no claim as foster child ought not to have injured •her present claim; it rather shows her good sense in anticipating the view of this Court on that subject. But her admission that she claimed no right in the estate is against her interest and calculated to prejudice her case. It is alone enough to sustain a verdict against her.
W. C. Jones for the motion. A. 3?. Judd and S. B¡ Dole, contra.The delay of another trial is to be regretted, since evidence in this class of cases daily becomes more difficult to find, as aged witnesses die. But by the law as we understand it, the appellant is entitled to a new trial on account of the admission of the written statement, and it is granted accordingly.