not actionable in itself, or not made with sufficient precision and accuracy, the party may supersede it by arresting or staying the judgment. 1. Causes of suspending the judgment, by granting a new trial, (1) are at present wholly extrinsic, arising from the matter foreign to, or dehors the record. Of this sort are want of notice of trial; or any flagrant misbehaviour of the party prevailing towards the jury, which may have influenced their verdict; or any gross misbehaviour of the jury among themselves: also if it appears by the judge's report, certified to the court, that the jury have brought in a verdict without or contrary to evidence, so that he is reasonably dissatisfied therewith; (b) or if they have given exorbitant damages; (c) or if the judge himself has misdirected the jury, so that they found an unjustifiable verdict: for these, and other reasons of the like kind, it is the practice of the court to award a new, or second trial. But if two juries agree in the same or a similar verdict, a third trial is seldom awarded: (d) for the law will not readily suppose, that the verdict of any one subsequent jury can countervail the oaths of the two preceding ones. The exertion of these superintendent powers of the king's courts, in setting aside the verdict of a jury and granting a new trial, on account of misbehaviour in the jurors, is of a date extremely ancient. There are instances in the year (b) Law of Nisi Prius. 303, 304. (c) Comb. 357. (d) 6 Mod. 22. Salk. 649. (1) [As to new trials in general, see Tidd, 8th ed. 934 to 949. When there are two contrary verdicts, it is not of course, but in the discretion of the court, to graut a new trial. 2 Bla. R. 963. The principle grounds for setting aside a verdict or nonsuit, and granting a new trial, besides those mentioned in the text, are-1st. The discovery of new and material evidence since the trial. 2 Bla. Rep. 955. 2dly. If the witnesses on whose testimony the verdict was obtained, have been since convicted of perjury in giving their evidence: M. 22 Geo. III, K. B; or if probable ground be laid to induce the court to believe that the witnesses are perjured, they will stay the proceedings on the finding of a bill of indictment against them for perjury till the indictment is tried: id.; but the circumstance of an indictment for perjury having been found against a witness, is no ground of motion for new trial. 4 M. and S. 140; 8 Taunt. 182. 3dly. For excessive damages, indicating passion or partiality in the jury. 1 Stra. 692; 1 Burr. 609; 3 Wils. 18; 2 Bl. Rep. 929; Cowp. 230; 5 T. R. 257; 7 id. 529; 11 East. 23. It is not usual to grant a new trial for smallness of damages; 2 Salk. 647; 2 Stra. 940; Doug. 509; Barnes, 455, 456; in which latter case it is said, if the demand is certain, as on a promissory note, the court will set aside a verdict for too small damages, but not where the damages are uncertain. Lastly, it is a general rule not to grant a new trial except for the misdirection of the judge: 4 T. R. 753; 5 id. 19; 6 East, 316 (b); 1 Marsh. 555; or where a point has been saved at the trial: 1 B. and P. 333: in a penal (2 Stra. 899; 10 East, 268; 4 M. and S. 333; 2 Chitty R. 273), hard or trifling action: 2 Salk. 653; 3 Burr. 1303; and an action is considered triffing in this respect, when the sum to be recovered is under 20l. : 5 Taunt. 537; 1 Chitty R. 265 (a); unless the trial is to settle a right of a permanent nature. Id. In all these cases, if the verdict be agreeable to equity and justice, the court will not grant a new trial, though there may have been an error in the admission or rejection of evidence, or in the direction of the judge, if it appear to the court on the whole matter disclosed by the report, that the verdict ought to be confirmed. 4 T. R. 468. 47. A new trial cannot be granted in civil cases at the instance of one of several defendants: 12 Mod. 275; 2 Stra. 814; nor for a part only of the cause of action. 2 Burr. 1224; 3 Wils. But there may be cases in which the new trial is restricted to a particular part of the record, as if the judge give leave to move on one part or point only, on a stipulation that counsel shall not move for any thing else; or if the court think injustice may be done by setting the whole matter at large again, they may restrict the second trial to certain particular points. 4 Taunt. 556. In criminal cases no new trial can be granted where the defendant has been acquitted; 6 East, 315; 4 M. and S. 337; 1 B. and A. 64. Where several defendants are tried at the same time for a misdemeanor, and some are acquitted, and others convicted, the court may grant a new trial to those convicted, if they think the conviction improper. 6 East, 619. See further on this subject, Tidd, 8th ed. 934. In civil cases a motion for a new trial cannot be made after an unsuccessful motion in arrest of judgment. 4 Bar. and Cres. 160. The granting of a new trial is either without or upon payment of the costs of the former trial; or such costs are directed to abide the event of the suit. The general rule seems to be, that if the new trial be granted for the misbehavior of the jury, or the misdirection of the judge, the costs are not required to be paid by the party applying for a new trial; but where the mere error of the jury, or the discovery of fresh evidence is the ground, the costs must be paid by the party moving to set aside the former verdict. See Tidd, 8th ed. 945.] As to new trials, see, in general, Graham and Waterman on New Trials, passim. VOL. II.-31. 241 books of the reigns of Edward III, (e) Henry IV, (ƒ) and Henry VII, (g) of judgments being stayed (even after a trial at bar) and *new venires awarded, [*388] because the jury had eat and drank without consent of the judge, and because the plaintiff had privately given a paper to a juryman before he was sworn. And upon these the chief-justice Glynn in 1655, grounded the first precedent that is reported in our books (h) for granting a new trial upon account of excessive damages given by the jury; apprehending, with reason, that notorious partiality in the jurors was a principal species of misbehaviour. A few years before, a practice took rise in the common pleas, (i) of granting new trials upon the mere certificate of the judge (unfortified by any report of the evidence), that the verdict had passed against his opinion; though Chief-justice Rolle (who allowed of new trials in case of misbehaviour, surprise, or fraud, or if the verdict was notoriously contrary to evidence) (k) refused to adopt that practice in the court of king's bench. And at that time it was clearly held for law, (1) that whatever matter was of force to avoid a verdict, ought to be returned upon the postea, and not merely surmised by the court; lest posterity should wonder why a new venire was awarded, without any sufficient reason appearing upon the record. But very early in the reign of Charles the Second new trials were granted upon affidavits; (m) and the former strictness of the courts of law, in respect of new trials, having driven many parties into courts of equity to be relieved from oppressive verdicts, they are now more liberal in granting them: the maxim at present adopted being this, that (in all cases of moment) where justice is not done upon one trial, the injured party is entitled to another. (n) Formerly the principal remedy, for reversal of a verdict unduly given, was by writ of attaint; of which we shall speak in the next chapter, and which is at least as old as the institution of the grand assize by Henry II, (o) in lieu of the Norman trial by battle. Such a sanction was probably thought *neces[*389] sary, when, instead of appealing to Providence for the decision of a dubious right, it was referred to the oath of fallible or perhaps corrupted men. Our ancestors saw that a jury might give an erroneous verdict; and if they did, that it ought not finally to conclude the question in the first instance: but the remedy, which they provided, shows the ignorance and ferocity of the times, and the simplicity of the points then usually litigated in the courts of justice. They supposed that the law being told to the jury by the judge, the proof of fact must be always so clear, that, if they found a wrong verdict, they must be wilfully and corruptly perjured. Whereas a juror may find a just verdict from unrighteous motives, which can only be known to the great searcher of hearts: and he may, on the contrary, find a verdict very manifestly wrong, without any bad motive at all; from inexperience in business, incapacity, misapprehension, inattention to circumstances, and a thousand other innocent causes. But such a remedy as this laid the injured party under an insuperable hardship, by making a conviction of the jurors for perjury the condition of his redress. The judges saw this; and therefore very early, even upon writs of assize, they devised a great variety of distinctions; by which an attaint might be avoided, and the verdict set to rights in a more temperate and dispassionate method. (p) Thus, if excessive damages were given, they were moderated by the discretion of the justices. (q) And if, either in that, or in any other instance, justice was not completely done, through the error of either the judge or the recognitors, it was remedied by certificate of assize, which was neither more nor less than a second trial of the same cause by the same jury. (r) And, in mixed or personal actions, as trespass and the like (wherein no attaint originally lay), if the jury gave a wrong verdict, the judges did not think themselves warranted thereby to pronounce an iniquitous judgment; but amended it, if possible, by subse (e) 24 Edw. III. 24. Bro. Abr. tit. verdite, 17. (f) 11 Hen. IV, 18. Bro. Ahr. tit. enquest, 3. (7) Cro. Eliz. 616. Palm. 325. 1 Brownl. 207. regali institutioni eleganter inserta. Glanv. i. 2, c. 19. (r) Ibid. l. 4, tr. 5, c. 6, § 2. F. N. B. 181. 2 Inst 415. quent inquiries of their own; and, if that *could not be they referred it to another examination. (s) When afterwards attaints, by several [*390] statutes were more universally extended, the judges frequently, even for the misbehaviour of jurymen, instead of prosecuting the writ of attaint, awarded a second trial: and subsequent resolutions, for more than a century past, have so amplified the benefit of this remedy, that the attaint is now as obsolete as the trial by battle which it succeeded; and we shall probably see the revival of the one as soon as the revival of the other. And here I cannot but again admire(†) the wisdom of suffering time to bring to perfection new remedies, more easy and beneficial to the subject; which, by degrees, from the experience and approbation of the people, supersede the necessity or desire of using or continuing the old. If every verdict was final in the first instance, it would tend to destroy this valuable method of trial, and would drive away all causes of consequence to be decided according to the forms of the imperial law, upon the depositions in writing; which might be reviewed in a course of appeal. Causes of great importance, titles to land, and large questions of commercial property, come often to be tried by a jury, merely upon the general issue: where the facts are complicated and intricate, the evidence of great length and variety, and sometimes contradicting each other; and where the nature of the dispute very frequently introduces nice questions and subtilties of law. Either party may be surprised by a piece of evidence which (had he known of its production) he could have explained or answered: or may be puzzled by a legal doubt, which a little recollection would have solved. In the hurry of a trial the ablest judge may mistake the law, and misdirect the jury: he may not be able so to state and range the evidence as to lay it clearly before them, nor to take off the artful impressions which have been made on their minds by learned and experienced advocates. The jury are to give their opinion instanter; that is, before they separate, eat, or drink. And under these circumstances the most intelligent and best intentioned [*391] men may bring in a verdict, which they themselves upon cool deliberation would wish to reverse. Next to doing right, the great object in the administration of public justice should be to give public satisfaction. If the verdict be liable to many objections and doubts in the opinion of his counsel, or even in the opinion of bystanders, no party would go away satisfied unless he had a prospect of reviewing it. Such doubts would with him be decisive: he would arraign the determination as manifestly unjust; and abhor a tribunal which he imagined had done him an injury without a possibility of redress. Granting a new trial, under proper regulations, cures all these inconveniences, and at the same time preserves entire and renders perfect that most excellent method of decision, which is the glory of the English law. A new trial is a rehearing of the cause before another jury; but with as little prejudice to either party, as if it had never been heard before. No advantage is taken of the former verdict on the one side, or the rule f court for awarding such second trial on the other: and the subsequent verdict, though contrary to the first, imports no tittle of blame upon the former jury; who, had they possessed the same lights and advantages, would probably have altered their own opinion. The parties come better informed, the counsel better prepared, the law is more fully understood, the judge is more master of the subject; and nothing is now tried but the real merits of the case. A sufficient ground must however be laid before the court, to satisfy them that it is necessary to justice that the cause should be farther considered. If the matter be such, as did not or could not appear to the judge who presided at nisi prius, it is disclosed to the court by affidavit: if it arises from what passed at the trial, it is taken from the judge's information; who usually makes a (8) Si juratores erraverint, et justiciarii secundum corum dictum judicium pronuntiaverint, falsam faciunt pronuntiationem; et ideo sequi non debent eorum dictum, sed illud emendare tenentur per diligentem examinationem. Si autem di judicare nesciant, recurrendum erit ad majus judicium. Bract. l. 4, tr. 5, c. 4, § 2. (t) See page 263. special and minute report of the evidence. Counsel are heard on both sides to [*392] impeach or establish the verdict, and the court give their reasons at large why a new examination ought or ought not to be allowed. The true import of the evidence is duly weighed, false colours are taken off, and all points of law which arose at the trial are upon full deliberation clearly explained and settled. Nor do the courts lend too easy an ear to every application for a review of the former verdict. They must be satisfied that there are strong probable grounds to suppose that the merits have not been fairly and fully discussed, and that the decision is not agreeable to the justice and truth of the case. A new trial is not granted, where the value is too inconsiderable to merit a second examination. It is not granted upon nice and formal objections, which do not go to the real merits It is not granted in cases of strict right, or summum jus, where the rigorous exaction of extreme legal justice is hardly reconcilable to conscience. Nor is it granted where the scales of evidence hang nearly equal: that which leans against the former verdict ought always very strongly to prepon derate. In granting such farther trial (which is matter of sound discretion) the court has also an opportunity which it seldom fails to improve, of supplying those defects in this mode of trial which are stated in the preceding chapter; by laying the party applying under all such equitable terms as his antagonist shall desire and mutually offer to comply with: such as the discovery of some facts upon oath; the admission of others not intended to be litigated; the production of deeds, books, and papers; the examination of witnesses, infirm, or going beyond sea; and the like. And the delay and expense of this proceeding are so small and trifling, that it seldom can be moved for to gain time or to gratify humour. The motion must be made within the first four days of the next succeeding term, within which term it is usually heard and decided. And it is worthy observation how infinitely superior to all others the trial by jury approves itself, even in the very mode of its revision. In every other country of Europe, and in those [ *393] of our own tribunals which conform themselves to the *process of the civil law, the parties are at liberty, whenever they please, to appeal from day to day and from court to court upon questions merely of fact; which is a perpetual source of obstinate chicane, delay, and expensive litigation. (u) With us no new trial is allowed, unless there be a manifest mistake, and the subjectmatter be worthy of interposition. The party who thinks himself aggrieved, may still, if he pleases, have recourse to his writ of attaint (2) after judgment: in the course of the trial he may demur to the evidence, or tender a bill of excep tions. And, if the first is totally laid aside, and the other two very seldom put in practice, it is because long experience has shown, that a motion for a second trial is the shortest, cheapest, and most effectual cure for all imperfections in the verdict; whether they arise from the mistakes of the parties themselves, of their counsel or attorneys, or even of the judge or jury. 2. Arrests of judgment (3) arise from intrinsic causes, appearing upon the face of the record. Of this kind are, first, where the declaration varies totally (u) Not many years ago an appeal was brought to the house of lords from the court of session in Scotland, in a cause between Napier and Macfarlane. It was instituted in March, 1745. and (after many interlocutory or ders and sentences below, appealed from and reheard as far as the course of proceeding would admit) was finally determined in April, 1719-the question being only on the property in an ox, adjudged to be of the value of three guineas. No pique or spirit could have made such a cause in the court of king's bench or common pleas, have lasted a tenth of that time. or have cost a twentieth part of the expense. (2) Since abolished. (3) [The parties cannot more in arrest of judgment for anything that is aided after verdict at common law, or by the statute of amendments, or cured, as matter of form, by the statute of jeofails. See I Saund. 228, n. (1) It is a general rule that a verdict will aid a title imperfectly set out, but not an imperfect title. 2 Burr. 1159; 3 Wils. 275; 4 T. R. 472. The defendant cannot move in arrest of judgnient for any thing which he might have pleaded in abatement. 2 Bla. R. 1120. Surplusage will not vitiate after verdict, as in trover stating the possession of the goods in plaintiff on the 3d of March, and the conversion by defendant from the original writ; as where the writ is in debt or detinue, and the plaintiff declares in an action on the case for an assumpsit: for the original writ out of chancery being the foundation and warrant of the whole proceedings in the common pleas, if the declaration does not pursue the nature of the writ, the court's authority totally fails. (4) Also, secondly, where the verdict materially differs from the pleadings and issue thereon; as if, in an action for words, it is laid in the declaration that the defendant said, "the plaintiff is a bankrupt;" and the verdict find specially that he said, "the plaintiff will be a bankrupt." Or, thirdly, if the case laid in the declaration is not sufficient in point of law to found an action upon. And this is an invariable *rule with regard to arrests of judgment upon matters of law, "that whatever is alleged in [*394] arrest of judgment must be such matter as would upon demurrer have been sufficient to overturn the action or plea." As if, on an action for slander in calling the plaintiff a Jew, the defendant denies the words, and issue is joined thereon; now if a verdict be found for the plaintiff, that the words were actually spoken, whereby the fact is established, still the defendant may move in arrest of judgment, that to call a man a Jew is not actionable: and, if the court be of that opinion, the judgment shall be arrested, and never entered for the plaintiff. But the rule will not hold e converso, "that every thing that may be alleged as cause of demurrer will be good in arrest of judgment;" for if a declaration or plea omits to state some particular circumstance, without proving of which, at the trial, it is impossible to support the action or defence, this omission shall be aided by a verdict. As if, in an action of trespass, the declaration doth not allege that the trespass was committed on any certain day; (w) or if the defendant justifies, by prescribing for a right of common for his cattle, and does not plead that his cattle were levant and couchant on the land; (x) (5) though either of these defects might be good cause to demur to the declaration or plea, yet if the adverse party omit to take advantage of such omission in due time, but takes issue, and has a verdict against him, these exceptions cannot, after verdict, be moved in arrest of judgment. For the verdict ascertains those facts, which before from the inaccuracy of the pleadings might be dubious; since the law will not suppose that a jury, under the inspection of a judge, would find a verdict for the plaintiff or defendant, unless he had proved those circumstances, without which his general allegation is defective. (y) Exceptions, therefore, that are moved in arrest of judgment, must be much more material and glaring than such as will maintain a demurrer: or, in other words, many inaccuracies and omissions, which would be fatal, if early observed, are cured by a subsequent verdict; and not suffered, in the last stage of a cause, to unravel the whole proceedings. But if the thing omitted be essential to the action or defence, as if the plaintiff does not merely state his title in a defective manner, [*395] but sets forth a title that is totally defective in itself, (2) or if to an action of debt the defendant pleads not guilty instead of nil debet, (a) these cannot be cured by a verdict for the plaintiff in the first case, or for the defendant in the second. (w) Carth. 389. (2) Cro. Jac. 44. (y) 1 Mod. 292. (z) Salk. 365. (a) Cro. Eliz. 778. "afterwards, to wit, on the 1st of March," it was held that "afterward" might stand, and the other words be treated as surplusage. Cro. C. 428. If the judgment be arrested in consequence of mistake in the form of action, or otherwise, the plaintiff is at liberty to proceed de novo in a fresh action. 1 Mod. 207; Vin. Ab. tit. Judgment, Q. 4; Bla. R. 831. Each party pays his own costs upon the judgment being arrested. Cowp. 407.] The rule as to the defects that shall be cured by verdict is thus stated in 2 Saund. Rep. 228, n. (1) "When there is any defect, imperfection, or omission in any pleading, whether in substance or form, which would have been a fatal objection on demurrer, yet if the issue joined be such as necessarily required, on the trial proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection or omission, is cured by the verdict at the common law." See, also, Gould Pl. Ch. 10, § 13; 1 Chit. Pl. 673. (4) [Now no form of action is stated in the writ. Com. Law Prac. Act, 1853, s. 3.] (5) [See, however, 1 Saund. 228, note 1.] |