CH. XXVII. trial will be granted without costs, where it is a matter of right by $4. reason of the misdirection or other mistake of the Judge, or the like.1 Where the new trial is granted for the misconduct of the jury, as where the verdict is perverse, or the like, the costs are usually directed to abide the event of the second trial. If a party has obtained a verdict by trick, the Court will grant a new trial without costs, or perhaps, in a very gross case, will oblige him, and sometimes his attorney, to pay the costs. Where the plaintiff had a material witness for the defendant concealed in his house, and prevented him from being served with a subpoena, it was granted without costs. If granted on the ground of surprise not fraudulent, it seems to be on payment of costs. Where a new trial is granted on the ground that the verdict is against evidence, the costs of the first trial abide the event, unless the Court otherwise orders. Where the costs are ordered to abide the event of the second trial, if the same party succeed on both trials, he will be allowed the costs of the first as well as the second; but, otherwise, the costs of the first will not be allowed.9 Where verdict was against evidence. Where costs ordered to abide event. What costs are included. 8 Where a rule for a new trial has been obtained on payment of costs, there is a broad distinction between these costs and costs in the cause. The former costs do not include the costs of the pleadings, or of obtaining admission of documents, or of giving notice to produce, or of the briefs: in some cases, however, something may be allowed for amending the briefs.10 Where there have been two trials, and the successful party is entitled to the costs of the second trial only, the Master, in taxing costs, may allow fees on the second trial with reference to those given at the first." Where a party who succeeded on the second trial was not entitled to the costs of the first trial, it was held, that the Master was right in allowing the successful party all such costs of the first trial as were available for the second; 12 and, therefore, that he was right in allowing the costs of the briefs, subpoenas, and copies on the first 1 Vale v. Bayle, Cowp. 297; Harris v. Butterley, 2 id. 485; Jackson v. Duchaire, 3 T. R. 553; Goodright v. Saul, 4 id. 359; see Doe Gilbert v. Ross, 7 M. & W. 102; Edwards v. Scott, 2 Sc. N. R. 266; Lord v. Wardle, 3 Bing. N. C. 680; Earl of Macclesfield v. Bradley, 7 M. & W. 570; ante, p. 1126. 2 Ante, p. 1129. 3 Hale v. Cove, 1 Str. 642; Hodgson v. Barvis, 2 Chit. 268; Shillitoe v. Claridge, ib. 425; see Brown v. Clarke, 12 M. & W. 25; 7 Jur. 1043, Ex. 4 Anderson v. George, 1 Burr 352; Trubody v. Brain, 9 Pri. 76; see Hullock, 391; and ante, p. 1132. 5 Bull. N. P. 322; see Turquand v. Dawson, 1 C. M. & R. 709; ante, p. 1132. 6 Greatwood v. Sims, 2 Chit. 269. 7 17 & 18 Vic. c. 125, § 44; see Meule v. Goddard, 5 B. & A. 766; Evans v. Robinson, 24 L. J. Ex. 212. As to the meaning of "abide the event," see Chitty's Arch. 1530. 8 Trelawney v. Thomas, 1 H. Bl. 641; Canham v. Fisk, 2 C. & J. 126; ib. 158, n.; Sherlock v. Barned, 1 Bing. 21; but see Hudson v. Majoribanks, 8 Moore, 440; 1 Bing. 393. 9 Austen v. Gibbs, 8 T. R. 619; Chapman v. Partridge, 2 B. & P. N. R. 382; Bird v. Appleton, 1 East, 111; Dodd v. Neal, 2 C. & M. 225; Evans v. Robinson, ubi sup. 10 Lord v. Wardle, 6 Dowl. 174. 11 Wilkinson v. Malin, 2 Dowl. 65; Lord v. Wardle, ubi sup. 12 Lambert v. Lyddon, 4 D. & L. 400. trial, but not the fees on the briefs, or the consultation fees, or the CH. XXVII. costs of serving the subpoenas for the first trial. 1 At Common Law, unless the new trial is a matter of right, as in the case of a misdirection of the Judge, it may be directed upon terms: such as, that witnesses infirm, or going beyond sea, may be examined upon interrogatories, or that their evidence may be read from the Judge's notes of the first trial; 2 that certain documents may be produced at the trial; that certain facts, not intended to be litigated, may be admitted; or that the party may make discovery of certain facts upon oath. The costs of the application for a new trial will, in general, be directed to follow the costs of the new trial. If the application is refused, the costs are not costs in the cause, and cannot be recovered by the successful party: unless the motion is expressed to be dismissed with costs." The form of an issue cannot be changed upon a motion for a new trial. If the party is desirous to question the form of the issue, he must do so by presenting a petition for a rehearing of the decree or order directing it. Where a new trial is directed, it is not usual or necessary formally to set aside the previous verdict: as no subsequent proceedings can be based upon it; and it should not be given in evidence at the subsequent trial.7 10 Orders granting or refusing applications for new trials of issues may be reheard, and appealed from, like other orders; and where the trial has been had by a jury before the Court itself, there is the same right of appeal from any order made by the Court, on an application for a new trial, as from any other order of the Court; and it is presumed that where the trial has taken place before the Court without a jury, an appeal will lie from an order of the Judge before whom the trial was had, granting or refusing the motion for a new trial." 1 See Haw ayne v. Bourne, 8 M. & W. 265, n; Earl Harborough v Shardlow, ibid.; Mahoney v. Frasi, 1 C. & M. 325; 1 Dowl. 70; De Bernardy v. Harding, 22 L. J. Ex. 340. 2 Anon., 2 Chit. 425; Doe Gilbert v. Ross, 7 M. & W. 102; Anon, 7 Jur. 1038; 1 D. & L. 725. 3 See Thwaites v. Sainsbury, 7 Bing. 437. 4 Duncan v. Varty, 2 Phil. 696, 700; and see White v. Lisle, 3 Swanst. 356; Beames on Costs, 157, n.; Locke v. Colman, 2 M. & C. 42. 48. 5 White v. Lisle, 4 Mad. 214, 226; and see Devie . Lord Brownlow, 2 Dick. 796. White v. Lisle, 3 Swanst. 351, n. (a); 1 C. P. Coop. t. Cott. 361; see also Legard 7 O'Connor v. Malone, 6 Cl. & F. 572, 8 White v. Lisle, 3 Swanst. 342. 9 M'Gregor v. Topham, 4 Hare, 162; 3 H. L. Ca. 132. 10 21 & 22 Vic. c. 27, § 3; see post, Chap. XXXII., Rehearings and Appeals. 11 21 & 22 Vic. c. 27, § 5; Curtis v. Platt, 1 W. N. 311, H. of L. In New Jersev, after a verdict, the question of a new trial rests entirely in the discretion of the Chancellor, and his action is not appealable. Black v. Lamb, 1 Beasley (N. J.), 108. § 4. Terms on which new trial granted at Law. CH. XXVII. SECTION V.-Assessments of damages at Nisi Prius, or at the § 5. Assizes, or before the Sheriff. Writ of inquiry: how sued out. Form of writ. Teste and return. How prepared and issued. When the amount of damages is directed to be assessed by a jury before any Judge of one of the Superior Courts of Common Law at Nisi Prius, or at the Assizes, or before the sheriff of any county or city, the person to whom such damages have been awarded may sue out, at the office of the Clerks of Records and Writs, a writ of inquiry of damages.2 If the writ is to be executed before a Judge of Assize, it is directed to both the sheriff and the Justices of Assize; and after reciting the order awarding damages, commands the sheriff to summon a common or special jury before the Justices of Assize, to inquire and assess the damages; and commands the Justices to certify the inquisition into the Court of Chancery, on the day named in the writ. Where the inquiry is to be had before the sheriff, the writ commands him, by a common or special jury, to inquire what damages have been sustained, and to return the inquisition taken thereupon into the Court of Chancery, together with the writ, on the day therein named. If the inquiry is to be executed in a county palatine, the writ is addressed to the Chancellor thereof or his deputy, commanding him to command the sheriff to execute the writ." The writ is tested on the day on which it is issued; and by analogy to the practice at Law, may be made returnable, and be returned, on any day certain in term or vacation, to be named in the writ. The return day is usually the day after that on which it is intended to execute the writ; and it must not be before that day. The writ is prepared by the solicitor of the party entitled to sue it out, or by such party himself, where he acts in person; it is engrossed on parchment, and must be indorsed with the name and place of business of such solicitor, and of his agent, if any, or with the name and place of residence of the party so acting in person, 47, and Sched. N., No. 14. For form of writ, see ibid.; and Vol. III. 5 21 & 22 Vic. c. 27, § 6; Ord. XLI. 47, and Sched. N., No. 11. For form of writ, see ibid.; and Vol. III. 6 See Ord. XLI. 47, and Sched. N., No. 12. For form of writ, see ibid.; and Vol. III. 7 1 Will. IV. c. 7, § 1; Chitty's Arch. 986. 8 lbid. ASSESSMENT AT NISI PRIUS, ASSIZES, OR BEFORE SHERIFF. 1141 § 5. and, in either case, with the address for service, if any. The writ CH. XXVII. should also be indorsed with a memorandum of the day on which it is to be executed.2 cuted. If the writ is to be executed before the sheriff, it must be left at How exethe sheriff's or deputy sheriff's office, at least two days before the day on which it is to be executed, if it is to be executed in the country, and at least one day (but usually two days), if it is to be executed in London or Middlesex; and the sheriff will thereupon summon a jury for the execution of it. Where the writ is to be executed before a Judge at Nisi Prius or at the Assizes, it would seem that, besides leaving the writ at the sheriff's or deputysheriff's office, the cause must be entered in the same manner as if it were a record." Notice of inquiry. The rules in force in the Courts of Common Law, relative to notices of inquiry, are applicable to notices of inquiry under any writ of inquiry so issued. The return to the writ of inquiry, Return of of the verdict or inquisition, is engrossed on parchment, and writ. signed and sealed in the name of the sheriff, and of the jurors." The inquisition and return will be delivered at or after the expiration of four days from the return day of the inquiry, on application 10 and return. at the office of the sheriff or under-sheriff. The writ of inquiry, Filing writ with the return thereto, must be filed, within ten days after the return, at the office of the Clerks of Records and Writs." The Court has power to set aside the verdict or inquisition on Setting aside inquisition. any such inquiry, and to direct a new inquiry, in such manner, and on such terms as the Court shall think fit. The application for that purpose must be made within ten days after the filing of the verdict or inquisition, exclusive of any days on which the Court to which such application ought to be made is not sitting." The application is made by motion; 12 and in dealing with applications of this nature, it is presumed the Court will be guided by the practice at Law in like cases; 13 and that where the inquiry has been had before a Judge of a Court of Common Law, the practice will be the same as in the case of new trials of issues directed to be tried at Law.14 At Common Law, an application to set aside Practice at plication to quisition. Law, on ap set aside in CH. XXVII. § 6. Costs of first inquiry. Questions of Foreign Law are questions of fact, determinable by evidence. Statutory facilities for ascertaining foreign law: c. 63. an inquisition, and have a new inquiry, is looked upon as being of the same nature as an application for a new trial.1 Upon an application for a new trial upon the ground that the damages are excessive or not sufficient, it is in general sufficient to produce the under-sheriff's notes, verified by affidavit.2 If a misdirection by the sheriff is relied on, the Court can hear from counsel in the cause a atatement of what passed at the trial. A motion to set aside an inquiry for excess of damages will not be granted, unless a strong case be made out. Where the Court, upon application, ordered a new inquiry on the ground that, as to part of the damages found, there was no evidence to warrant the finding of the jury, and the defendant, in order to save the expense of a second inquiry, paid the plaintiff the whole of his demand, it was held, notwithstanding, that he was not bound to pay the plaintiff the costs of the first inquiry.5 SECTION VI.Ascertainment of Foreign Law. We have seen that questions of foreign law are questions of fact: which must be determined in each case on the evidence adduced in it." In order to afford facilities for more certainly ascertaining the law administered in one part of her Majesty's dominions, when pleaded in the Courts of another part thereof, it has been enacted that if, in any action depending in any Court within her Majesty's 22 & 23 Vic. dominions, it shall be the opinion of such Court that it is necessary or expedient, for the proper disposal of such action, to ascertain the law applicable to the facts of the case as administered in any other part thereof, on any point on which the law of such other part is different from that in which the Court is situate, the Court may direct a case to be prepared, setting forth the facts, as these may be ascertained by verdict of a jury or other competent mode, or may be agreed upon by the parties, or settled by such person or persons as may have been appointed by the Court for that purpose in the event of the parties not agreeing; and upon such case being approved of by such Court or a Judge thereof, they are to settle the questions of law arising out of the same on which they desire to have the opinion of another Court, and pronounce Courts in one part of her Majesty's dominions, may remit a case for the opinion of a Court in any other part thereof, on a point of law. |