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Cannot be entered until

when: so that,

tice on accounts

specified, party

or finally arrested for it cannot be entered till the next term after trial had, and that upon notice to the other in defect of jus- 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.

may have relief by new trial or by arrest of judgment.

1. Causes of suspending the

the record, specified upon

which.

1. Causes of suspending the judgment by granting a judgment, ex- new trial, are at present wholly extrinsic, arising from trinsic or dehors 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 trial is awarded. 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 (1).

A new or

second, but not often a third,

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the reasons.

The exertion of these superintendent powers of the This power of king's courts, in setting aside the verdict of a jury and the king's court extremely angranting a new trial, on account of misbehaviour in the cient. jurors, is of a date extremely antient. There are in- Instances and stances, 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 venires awarded, because the jury had eat and drank without consent of [*388 ] the judge, and because the plaintiff had privately given a paper to a juryman before he was sworn. And upon Where for the these the Chief Justice Glynn, in 1655, grounded the first first time new trial granted for precedent that is reported in our books (h) for granting a excessive danew trial upon account of excessive damages given by the mages. 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 Previous asPleas (), 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

(e) 24 Edw. III. 24. Bro. Abr. tit. Verdite, 17.

(f) 11 Hen. IV. 18. Bro. Abr. tit. Enquest, 75.

ground to grant a new trial. 5 T. R. 257.

The court will grant any number of new trials in the same action, if the jury find verdicts contrary to the established law.

A new trial may be granted on account of the misconduct of the jury, as if they have referred to chance to determine the party for whom the verdict was given. But the courts will not hear any affidavit of such conduct from the jury themselves. 1 T. R. 11. It is generally said, that there cannot be a

(g) 14 Hen. VII. 1 Bro. Abr. tit. Verdite, 18.

(h) Styl. 466.
(i) Ibid. 138.

new trial in penal actions and criminal
prosecutions, when there is a verdict
for the defendant. The principle of
this being the great favour which the
law shews to the liberty of the subject.
But the rule does not extend to infor-
mations in the nature of quo warranto;
as the object of these is now in general
to try a right and not to punish an
offence. 2 T. R. 484. Nor does it
extend to an action upon a penal sta-
tute, in which a verdict is given for the
defendant in consequence of the misdi-
rection of the judge. 4T. R. 753.-CH.

sumption of the

C. P.

But rejected K. notoriously contrary to evidence) (k) refused to adopt that practice in the court of King's Bench.

B.

What held for

law should ap

pear upon the

postea.

Farly in the

reign of King Charles II. new trials granted

upon affidavits,

and now new trials more liberally granted.

Of the writ of

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 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 attaint, for re- 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 assise by Henry II. (0), in lieu of the Norman trial by battel. Such a sanction was pro[*389] bably thought necessary, 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, shews 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.

versal of verdict.

A remedy

showing the ig

norance and

ferocity of the

times.

*

(k) 1 Sid. 235. Styl. Pract. Reg. 310, 311. Edit. 1657.

(1) Cro. Eliz. 616. Palm. 315. 1 Brownl. 207.

(m) 1 Sid. 235. 2 Lev. 140.
(n) 4 Burr. 395.

(0) Ipsi regali institutioni eleganter inserta. (Glanv. 1. 2, c. 19.)

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.

such writ.

Some of them

specified.

The judges saw this; and therefore very early, even Devices of the upon writs of assise, they devised a great variety of dis- judges to avoid tinctions; 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 (9). 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 assise, 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 subsequent inquiries of their own; and, if that *could not be, they referred it to another examination (s). When afterwards attaints, by several statutes, were more universally extended, the judges frequently, even for the misbehaviour of jurymen, instead of prosecuting the writ of the writ, attaint, awarded a second trial: and subsequent resolu- awarded a

(p) Bract. 1. 4, tr. 5, c. 4.

(q) Ibid. tr. 1, c. 19, § 8.

tiationem; et ideo sequi non debent eorum
dictum, sed illud emendare tenentur per

(r) Ibid. tr. 5, c. 6, § 2. F. N. B. diligentem examinationem. Si autem di

181. 2 Inst. 415.

(s) Si juratores erraverint, et justiciarii secundum eorum dictum judicium pronuntiaverint, falsum faciunt pronun

judicare nesciant, recurrendum erit ad
majus judicium. Bract. I. 4, tr. 5, c. 4,
§ 2.

[*390 ] When attaint

became extended, the

judges instead of prosecuting

second trial.

The benefit of this remedy,

and attaint now obsolete.

tions, 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 battel 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 (t) 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 (2).

(t) See page 268.

(2) This observation shows that the deep study of his country's laws, their foundations and origin, had not depressed the philosophical feeling which probably first prompted the Commentator to begin his researches.

the work of reformation of the law has gone on from reign to reign, from period to period, with intervals more or less limited, with efforts more or less extended, and yet that much remains to be done, almost as much as if little The Commentator pays an involun- or nothing had been previously done, no tary homage to the supremacy, may I man who looks at the existing frameadd, to the majesty, of the people; in- work of the law can reasonably doubt vesting them with the wisdom which is or deny. Convulsion and subversion the result of experience, to approve or to are as necessary for the healthy welldisapprove the continuance of old reme- being of legal economy as they apdies and to bring to perfection new ones. pear to be salutary to the physical And yet it would be a curious, and existence of mere material things. But perhaps useful, inquiry, whether any convulsion and subversion take milder and what expression of the wishes of and more appropriate terms, alteration the people had preceded the great and and amendment. Thus we have just fundamental alterations which have, seen the horrible writ of attaint subfrom time to time, been effected in the verted, and its rubbish finally removed administration of our laws. Perhaps by the more adequate rule for the new it would be found that, independently of trial; and in our own time we have some few master minds, prompting the seen particular laws scattered over many expression of their will, or perhaps their pages, nay volumes, of the statute-book, own sense of present wrong, the people arranged and condensed under one had ever done little towards the accom- comparatively concise chapter; all the plishment of the great ends of social ancient roots which pervaded the legal aggregation, the well administration of soil, plucked up and cast aside as so justice. From Glanville, the great in- much trash, or perhaps pruned and renovator, who had promoted the grand imbedded in the soil. assise as an alternative remedy for the trial by battel, down to the present time,

It has often struck me that the government is, in general, in advance

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