Misbehavior of Jurors. The setting aside of the verdict of a jury, and granting a new trial on account of the misbehavior of the jurors, is of ancient date. Judgments have been stayed, and new venires awarded, because the jurymen ate and drank without the consent of the judge, or because the plaintiff had privately given a juryman a paper, even before he was sworn. The first reported case of a new trial, granted on account of excessive damages awarded by a jury, was in 1655, and this act of the jurors was termed misbehavior, inasmuch as they evinced a notorious partiality.

Verdict against the Charge of the Court. In early times, a practice took rise in the common pleas, 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 such practice was not adopted in the court of king's bench, which allowed new trials for misbehavior, surprise or fraud, or if the verdict was notoriously contrary to the evidence. At that time, it was held, that whatever matter could avoid a verdict ought to be returned on the postea, and not merely surmised by the court, lest posterity should wonder why a new trial was granted, without sufficient reason appearing upon the record.

New Trials More Easily Obtained Now. In the reign of Charles II. new trials were granted upon affidavits, 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, on the principle, that where justice is not done upon one trial, the injured party is entitled to another.

Verdict Formerly Reversed by writ of Attaint. Formerly, the principal remedy for the reversal of an unjust verdict, was by writ of attaint. Instead of appealing to Providence for a decision, as in the trial by battle, it was referred to the oath of fallible or perhaps corrupted men.

Erroneous Verdict. Remedy. Our ancestors knew that a jury might give an erroneous verdict, which ought not to conclude the question in the first instance, but the remedy, which they provided, shows the ignorance of the times and the simplicity of the points, then usually litigated in the courts of justice. They supposed, that the judge having announced the law, the

proof of facts must be always so clear, that if they found a wrong verdict they must be corruptly perjured. Whereas a juror may find a just verdict from unrighteous motives, or give a verdict manifestly wrong, without any bad motive, as from inexperience in business, incapacity, misapprehension, inattention to circumstances, and many 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.

Verdict Corrected. Ancient Mode. The judges saw this, and therefore very early, even upon writs of assize, they devised a variety of distinctions, by which an attaint might be avoided, and the verdict corrected in a more temperate method. Thus, if excessive damages were given, they were moderated by the discretion of the judges. And if either in that or any other case, justice was not completely done, it was remedied by certificate of assize, which was in fact a second trial of the same cause by the same jury.

Amended Verdict. And in mixed or personal actions, as trespass, wherein no attaint originally lay, if the jury gave a wrong verdict, the judges did not deem themselves warranted in pronouncing an iniquitous judgment, but amended it, if possible, by subsequent inquiries of their own, or referred it to another examination.

Attaints, Obsolete. Second Trial. After attaints had become more general, the judges frequently, even for the misbehavior of jurymen, instead of prosecuting the writ of attaint, awarded a second trial. This proved so expedient, that attaints became obsolete. Time brings new remedies more beneficial to the subject, the result of experience and public approbation.

Verdict not Final. If every verdict was final in the first instance, it would tend to destroy this valuable method of trial, and would compel, in causes of consequence, a resort to the form of the imperial law, upon written depositions, which might be reviewed in the course of appeal.

Trial on the General Issue Only. 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, the evidence of great length and variety, and sometimes contradictory, and where the nature of the dispute frequently introduces nice questions and subtleties of law.

Surprised by Evidence. Either party may be surprised by a piece of evidence, which had he known would be produced, he could have explained or answered; or may be puzzled by a legal doubt, which a little recollection would have solved.

The Judge's Errors. In the hurry of trial, a judge may mistake the law and misdirect the jury, or he may not be able to make the evidence clear to them, nor remove the erroneous impressions instilled by able advocates.

The Jury may Err. The jury are to give their opinion instanter, that is before they separate or take food. Under these circumstances, the most intelligent and best intentiened men may bring in a verdict, which on cool deliberation, they would wish to reverse.

Views of the Losing Party. Next to doing right, the great object in administering justice is to give public satisfaction. If the verdict was against the opinion of his counsel, or even the belief of bystanders, no party would be satisfied, unless he had an opportunity to review it. His doubts would be decisive; he would deem the verdict unjust and abhor a tribunaí, which he imagined had done him an injury, which he could not redress.

New Trials. Advantages. Granting a new trial under proper regulations cures all these inconveniences, and yet preserves entire, and perfects the most excellent method of decision, the glory of the English law, a trial by jury. A new trial is a re-hearing of the cause before another jury, as if it had never been heard before. No advantage is taken of the former verdict on the one side, or the rule of court, awarding a second trial on the other, and the subsequent verdict, even though it differ from the first, imports no censure or reflection on the other jury, who, had they possessed the same information, 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.

The Argument. Sufficient grounds must be shown to satisfy them, that it is necessary to justice that the cause should be further considered. If the matter be new, and was not presented before the judge 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 has retained his notes of

the evidence. Counsel are heard on both sides, to impeach or establish the verdict, and the court gives its reasons at large, why a new trial should not be had. The true import of the evidence is duly weighed, false coloring is removed, and all points of law, which arose at the trial, are explained and settled.

When not Granted. 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 slight to warrant 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, 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 preponderate.

Granted on Conditions. In granting such further trial, which is a matter of sound discretion, the court may usually, and does supply these defects in this mode of trial, which we have stated, by laying the party applying under such equitable terms, as his opponent may 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. The delay and expense of this proceeding are so trifling, that it is seldom moved for in order to gain time or to gratify humor.

When Motion Made. The motion must be made within the first four days of the next succeeding term, within which term it is usually heard and decided.1

Civil Law Tribunals. In tribunals which conform to the process of the civil law, and in every other country of Europe, the parties may appeal from day to day, and from court to court, upon questions merely of fact, which is a perpetual source of obstinate delay and expensive litigation.

New Trials, the best Mode of Correcting Errors. With

1 The rules of different courts are not in accord, as to when a motion for a new trial must be filed.

us, no new trial is allowed, unless there be a manifest mistake, and the subject matter is worthy of interposition. The aggrieved party may still have recourse to his writ of attaint after judgment; in the course of the trial he may demur to the evidence, or tender a bill of exceptions. And if the first is totally laid aside, and the other two very seldom put in practice, it is because experience has shown, that a motion for a second trial is the shortest, cheapest and most effectual cure for imperfections in the verdict, whether they arise from the mistakes of the parties themselves, of their counsel, or even of the judge or jury.

ARRESTS OF JUDGMENT.

How They Arise. These arise from intrinsic causes, appearing upon the face of the record. Of this kind are:

Variance between Declaration and Writ. Where the declaration varies totally from the original writ. Thus, where the writ is in debt or detinue, and the plaintiff declares in an action on the case, for an assumpsit. 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.

Variance between Verdict and Pleadings. Where the verdict materially differs from the pleadings and issue thereon. Thus, in an action for words, where it is laid in the declaration, that the defendant said, "the plaintiff is a bankrupt," and the verdict finds specially, that he said, "the plaintiff will be a bankrupt."

Insufficient Declaration. This is where the case laid in the declaration is not sufficient in point of law to found an action upon. Whatever is alleged in arrest of judgment upon matter of law must be such, as would, upon demurrer, have sufficed to overturn the action or plea.

E Converso. But the rule will not hold e converso, that everything 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 which at the trial, it is impossible to support the action or defence, this omission shall be aided by a verdict.

Examples. Action of Trespass. As if, in an action of trespass, the declaration does not allege, that the trespass was committed on a certain day, or if the defendant justifies, by