is foreign to our present inquiries. It has long been introduced and esta blished in our courts of equity, not to mention the civil law courts: and it seems the height of judicial absurdity, that in the same cause between the same parties, in the examination of the same facts, a discovery by the oath of the parties should be permitted on one side of Westminster. hall, and denied on the other or that the judges of one and the same court should be bound by law to reject such a species of evidence, if attempted on a trial at bar, but, when sitting the next day as a court of equity, should be obliged to hear such examination read, and to found their de. crees upon it. In short, within the same country, governed by the same laws, such a mode of inquiry should be universally admitted, or else uni versally rejected. 2. A second defect is of a nature somewhat similar to the first : the want of a compulsive power for the production of books and papers belonging to the parties. In the hands of third persons they can generally be obtained by rule of court, or by adding a clause of requisition to the writ of sub. poena, which is then called a subpoena duces tecum. But, in mercantile transactions especially, the sight of the party's own books is frequently decisive; as the day-book of a trader, where the transaction was recently entered as really understood at the time; though subsequent events may tempt him to give it a different colour. And, as this evidence may be finally obtained, and produced on a trial at law, by the circuitous course of filing a bill in equity, the want of an original power for the same purposes in the courts of law is liable to the same observations as were made on the preceding article." 3. Another want is that of powers to examine witnesses abroad, and to receive their depositions in writing, where the witnesses reside, and espe. cially when the cause of action arises in a foreign country. To which may be added the power of examining witnesses that are aged, [383] or going abroad, upon interrogatories de bene esse: to be read in evidence if the trial should be deferred till after their death or departure, but otherwise to be totally suppressed. Both these are now very frequently effected by mutual consent, if the parties are open and candid; and they may also be done indirectly at any time, through the channel of a court of equity; but such a practice has never yet been directly adopted (y) as the rule of a court of law.42 Yet where the cause of action arises in India, and a suit is brought thereupon in any of the king's courts at Westminster, the court may issue a commission to examine witnesses upon the spot, and transmit the depositions to England. (z) 4. The administration of justice should not only be chaste, but should not even be suspected. A jury coming from the neighbourhood has in some respects a great advantage; but is often liable to strong objections; especially in small jurisdictions, as in cities which are counties of them y See page 75. z Stat. 13 Geo. III. c. 65. (41) Where one party is in possession of papers or any species of written evidence materia! to the other, if notice is given him to produce them at the trial, upon bis refusal copies of them will be admitted; or if no copy has been made, parol evidence of their contents will be received. The court and jury presume in favour of such evidence; because, if it were not agreeable to the strict truth, it would be corrected by the production of the originals. There is no difference with respect to this species of evidence between criminal and civil cases. 2 T. R 201. Archbold & Christian's notes. (42) A court can, in effect, compel the plaintiff to consent to have a witness going abroad examined upon interrogatories, or to have an absent witness examined under a commission, by the power the judges have of potting off the triat. Christian. selves, and such where assises are but seldom holden; or where the ques tion in dispute has an extensive local tendency; where a cry has been raised, and the passions of the multitude been inflamed; or where one of the parties is popular, and the other a stranger or obnoxious. It is true that, if a whole county is interested in the question to be tried, the trial by the rule of law (a) must be in same adjoining county; but, as there may be a strict interest so minute as not to occasion any bias, so there may be the strongest bias without any pecuniary interest. In all these cases, to summon a jury, labouring under local prejudices, is laying a snare for their consciences and, though they should have virtue and vigour of mind sufficient to keep them upright, the parties will grow suspicious, and resort under various pretences to another mode of trial. The courts of law will therefore in transitory actions very often change the venue, or county wherein the cause is to be tried: (b) but in local actions, though [384] they sometimes do it indirectly and by mutual consent, yet to effect it directly and absolutely, the parties are driven to a court of equity; where, upon making out a proper case, it is done upon the ground of being necessary to a fair, impartial and satisfactory trial. (c) 43 The locality of trial required by the common law seems a consequence of the ancien locality of jurisdiction. All over the world, actions transitory follow the person of the defendant, territorial suits must be discussed in the territorial tribunal. I may sue a Frenchman here for a debt contracted abroad; but lands lying in France must be sued for there, and English lands must be sued for in the kingdom of England. Formerly they were usually demanded only in the court-baron of the manor, where the steward could summon no jurors but such as were the tenants of the lord. When the cause was removed to the hundred court (as seems to have been the course in the Saxon times), (d) the lord of the hundred had a farther power, to convoke the inhabitants of different vills to form a jury: observing probably always to intermix among them a stated number of tenants of that manor wherein the dispute arose. When afterwards it came to the county-court, the great tribunal of Saxon justice, the sheriff had wider authority, and could impanel a jury from the men of his county at large but was obliged (as a mark of the original locality of the cause) to return a competent number of hundredors; omitting the inferior distinction, if indeed it ever existed. And when at length, after the conquest, the king's justiciars drew the cognizance of the cause from the county-court, though they could have summoned a jury from any part of the kingdom, yet they chose to take the cause as they found it, with all its local appendages; triable by a stated number of hundredors, mixed with other freeholders of the county. `The restriction as to hundredors hath gradually worn away, and at length [385] entirely vanished; (e) that of counties still remains, for may beneficial purposes: but as the king's courts have a jurisdiction coextensive with the kingdom, there surely can be no impropriety in sometimes departing from the general rule, when the great ends of justice warrant and require an exception. I have ventured to mark these defects, that the just panegyric, which I have given on the trial by jury, might appear to be the result of sober re a Stra. 177. b See page 294. o This, among a number of other instances, was the case of the issues directed by the house of lords in the cause between the duke of Devonshire and the miners of the county of Derby, A. D. 1762. d LL. Edw. Conf. c. 32. Wilk, 203. e See page 360. (45) This may now be done in a court of law. Tidd, 8 ed. 655. flection, and not of enthusiasm or prejudice. But should they, after all, continue unremedied and unsupplied, still (with all its imperfections) I trust that this mode of decision will be found the best criterion, for investigating the truth of facts, that was ever established in any country. CHAP. XXIV. OF JUDGMENT AND ITS INCIDENTS. In the present chapter we are to consider the transactions in a cause, next immediately subsequent to arguing the demurrer, or trial of the issue. If the issue be an issue of fact; and, upon trial by any of the methods mentioned in the two preceding chapters, it be found for either the plaintiff or defendant, or specially or if the plaintiff makes default, or is nonsuit ; or whatever, in short, is done subsequent to the joining of issue and awarding the trial, it is entered on record, and is called a postea. (a)1 The sub. stance of which is, that postea, afterwards, the said plaintiff and defendant appeared by their attornies at the place of trial; and a jury, being sworn, found such a verdict; or, that the plaintiff, after the jury sworn, made default, and did not prosecute his suit; or, as the case may happen. This is added to the roll, which is now returned to the court from which it was sent; and the history of the cause, from the time it was carried out, is thus continued by the postea. Next follows, sixthly, the judgment of the court upon what has previous. a Append. No. II. § 6. (1) As to the postea in general, see Tidd, 8th ed 931 to 934. The verdict is entered on the back of the record of nisi prius, which entry, from the Latin word it began with, is called the postea. When the cause is tried in the king's bench in London or Middlesex, the record is delivered to the attorney of the successful party; and he afterwards indorses the postea from the associate's minute on the panel; but in country causes the associate keeps the record till the next term, and then delivers it with the postea indorsed to the party obtaining the verdict. The practice is in some respects different in the common pleas, where in town causes also, the record remains with the associate till the quarto die post of the return of the habeas corpora juratorum, who indorses the postea upon the record; but by a recent order it is not to be delivered till the morning of the fifth day of the term. See 1 Brod. & B. 298. S Moore, 643. If the postea be lost, a new one may, in some cases, be made out from the record above and the associate's notes, 2 Stra. 1264.; if wrong, it may be amended by the plea roll, 1 Ld. Raym. 133.; by the memory or notes of the judge, Cro. Car. 338. Bul. N. P. 520. 2 Stra. 1197. 6 T. R. 694. 1 Bar. & Ald. 161. 2 Cha. R. 352.; or the notes of the associate or clerk of assize, 2 Chitty R. 352. 1 Bos. & Pul. 329. The application to amend by the judge's notes must be made to the judge who tried the cause. 1 Chitty R. 283. The court will not alter a verdict, unless it appear on the face of it that the alteration would be according to the intention of the jury, 1 H. Bla. 78.; but not after a considerable lapse of time, to increase damages, although the jury join in an affidavit stating their intention to have been to give the increased sum, and thought they had in effect done so, 2 T. R. 281. sed vide 1 Burr. 383. where a verdict was rectified, which had been mistakenly delivered by the foreman. Where the jury having found the treble value in an action of debt on the statute for not setting out tithes, on a writ of inquiry, the inquisition was amended by the insertion of nominal damages. 1 Bing. R. 182. In an action by one defendant in assumpsit against a co-defendant for contribution, the postea is evidence to prove the amount of the damages. 2 Stark. R. 364.; see 9 Price 359. Tidd, 8 ed. 932, 3. The production of the postea is not sufficient evidence of a judgment; a copy of the judgment founded thereon must also be produced. Bul. N. P. 234. Willes, 367. But the nisi prius record, with the postea indorsed, is sufficient to prove that the cause came on to be tried, 1 Stra. 162. Willes, 368.; or the day of trial. 6 Esp. R. 80. 83. ; see 9 Price, 359. Tidd, 8th ed. 977. Chitty (2) See the divisions of the subject, ante 272. VOL. II. 39 ly passed; both the matter of law and matter of fact being now fully weighed and adjusted. Judgment may however for certain causes be [387] suspended, or finally arrested for it cannot be entered till the next term after trial had, and that upon notice to the other party. So that if any defect of justice happened at the trial, by suprise, inadvertence, or misconduct, the party may have relief in the court above, by obtaining a new trial; or if, notwithstanding the issue of fact be regularly decided, it appears that the complaint was either 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, are at (3) 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 grant a new trial. 2 Bla. R. 963. In an inter or court it is said a new trial cannot be had, upon the merits, but only for irregularity, 1 Salk. 201 2 Salk 650. 1 Stra. 113. 499. 1 Burr. 572. Doug. 580. 2 Chitty's R. 250; but it may set aside a regular interlocutory judgment to let in a trial of the merits. 1 Burr. 571. The principal grounds for setting aside a verdict or nonsuit, and granting a new trial, are-1st. The want of due notice of trial, (unless the defendant appear and make defence.) Bul. N. P 327. 3 Price, 72. 2 Salk. 646. 2dly. A variance between the issue delivered, and the nisi prius record, material to the point in issue. Barnes, 464. 2 Stra. 1131.; and see 8 Taunt. 634. 2 B. & A. 472. 3dly. Where the jury have not been properly returned, 4 T. R. 473; but it is not ground for a new trial, that the attorney for the defendant was the undersheriff, who had the summoning of the jury. I Smith R. 304. 4thly. Misbehaviour of the prevailing party to the jury or witnesses, 7 Mod. 156. distribution of handbills in court on the day of trial, and shewn to the jury, reflecting on plaintiff's character. 3 Bro. & Bing. 272. 5thly. Unavoidable absence of the attornies, 3 Taunt. 484 1 Price, 201.; or witnesses, 2 Salk. 645. 6 Mod. 22 1 Price, 1.; or the discovery of new and material evidence since the trial, 2 Bla. Rep. 955.; or where upon the facts an inference of law arises on a statute, of which the parties were not then aware, 7 Taunt. 309: in all these latter cases the court will sometimes, though rarely, grant a new trial. 6thly. If the witnesses, on whose testimony the verdict was obtained, have Ceen since convicted of perjury in giving their evidence, M 22. Geo. 3. 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, ib; but the circumstance of an indictment for perjury having been found against a wit ness, is no ground of motion for new trial. 4 M. & S 140. 8 Taunt. 182. 7thly. Misdirection of the judge, 4 M & S 140. 2 Price, 3. 2 Moore, 80. 8 Taunt 182; or his admitting or receiving evidence contrary to law 6 Mod. 242 8tly. If the jury find their verdict without, or contrary to evidence, 2 Burr 936. 3 B & A 692; but it is not usual where there is evidence on both sides, 2 Stra 1106 1 Wils. 22. 3 Taunt 1. 2 Price, 282. unless the judge declare himself dissatisfied with the verdict. Say. Rep. 264. see 3 Wils. 38. Chitty R. 271. 6 Price, 146. 9thly. The misbehaviour of the jury in casting lots for their verdict, 2 Salk. 645. Bul. N. P. 236.; but imputed partiality or misbehaviour of the jury, is listened to with great caution for this purpose. See 2 B. & A. 462. 7 Price, 203. 8 Taunt. 26. 3 Brod. & Bing. 272. 5 Burr. 2667. 2 T. R. 281 10thly For excessive damages, indicating passion or partiality in the jury. 1 Stra. 692 1 Burr. 609 S Wils. 18 2 Bl. Rep. 929. Cowp. 250. 5 T. R. 257. 7 ib. 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, 6; 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 ib 19. 6 East, 316 (b). 1 Marsh. 555.; or where a point has been saved at the trial, 1 B. & P. 338. ; in a penal, 2 Stra. 899. 10 East, 268 4 M. & S. 338. 2 Chitty R. 273; bard or trifling action, 2 Salk. 653. 3 Burr. 1306. and an action is considered trifling 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. Ib. 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. 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. 47. 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. 815. 4 M. & S. 357. 1 B. & A. 64. Where several defendants are tried at the same time present wholly extrinsic, arising from matter foreign to, or dehors the re. cord. 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 by 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 dama. ges; (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-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 venire's awarded, because the jury had eat [388] and drank without consent of the judge, and because the plaintiff had privately given a paper to a jury man before he was sworn. And upon these the chief justice, Glynn, in 165, 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, (7) 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 b Law of nisi prius, 303, 304. 1 Cro. El. 616. c Comb. 357. e 24 Edw III. 24. Bro. Abr. t. verdite. 17. g 14 Hen. VII. 1 Bro. Abr.t. verdite. 18. k 1 Sid. 235 Styl. pract. Reg. 310 311. edit. 1657. Palm. 325. 1. Brownl, 207. 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. The motion must be inade within the first four days of the term; or if from the state of the business that is impracticable, the name of the case must be given in to the officer of the court to be moved on a following day, and no affidavits are permitted to be used, which have not been sworn within the first four days of the term. If the trial has taken place at the sittings in term, then the motion must be made within four days after the return of the distringas 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 misbehaviour 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, Chitty. |