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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(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.

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 (s) Si juratores erraverint, et justiciarii secundum eorum dictum judicium pronuntiaverint. falsam faciunt pronuntiationem; et ideo sequi non debent eorum dictum, sed illud emendare tenentur per diligentem examinalionem. 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 impeach or establish the verdict, and the court give their reasons at

[ *392] 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


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 of our own tribunals which conform themselves to the process of the

[*393] 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 1 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 judgment 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 [*394] arrests of judgment upon matters of law, "that whatever is alleged in 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, [ *395] as if the plaintiff does not merely state his title in a defective manner, but sets forth a title that is totally defective in itself, (z) 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.


(2) Carth. 389.

(x) 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. Judg ment, 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 substanco 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.]

If, by the misconduct or inadvertence of the pleaders, the issue be joined on a fact totally immaterial, or insufficient to determine the right, so that the court upon the finding cannot know for whom judgment ought to be given; as if, in an action on the case in assumpsit against an executor, he pleads that he himself (instead of the testator) made no such promise: (b) or if, in an action of debt on bond conditioned to pay money on or before a certain day, the defendant pleads payment on the day: (c) (which issue, if found for the plaintiff, would be inconclusive, as the money might have been paid before;) in these cases the court will after verdict award a repleader quod parties replacitent; unless it appears from the whole record that nothing material can possibly be pleaded in any shape whatsoever, and then a repleader would be fruitless. (d) And, whenever a repleader is granted, the pleadings must begin de novo at that stage of them, whether it be the plea, replication, or rejoinder, &c., wherein there appears to have been the first defect, or deviation from the regular course. (e)

If judgment is not by some of these means arrested within the first four days of the next term after the trial, it is then to be entered on the roll or record. Judgments are the sentence of the law, pronounced by the court upon the matter contained in the record; and are of four sorts. First, where the facts are confessed by the parties, and the law determined by the court; as in case of judgment upon demurrer: secondly, where the law is admitted by the parties, and the facts disputed; as in case of judgment on a verdict: thirdly, where [*396] *both the fact and the law arising thereon are admitted by the defendant; which is the case of judgments by confession or default: or, lastly, where the plaintiff is convinced that either fact, or law, or both, are insufficient to support his action, and therefore abandons or withdraws his prosecution: which is the case in judgments upon a nonsuit or retraxit.

The judgment, though pronounced or awarded by the judges, is not their determination or sentence, but the determination and sentence of the law. It is the conclusion that naturally and regularly follows from the premises of law and fact, which stand thus: against him who hath rode over my corn, I may recover damages by law: but A hath rode over my corn; therefore I shall recover damages against A. If the major proposition be denied, this is a demurrer in law: if the minor, it is then an issue of fact; but if both be confessed (or determined) to be right, the conclusion or judgment of the court cannot but follow. Which judgment or conclusion depends not, therefore, on the arbitrary caprice of the judge, but on the settled and invariable principles of justice. The judgment in short, is the remedy prescribed by law for the redress of injuries; and the suit or action is the vehicle or means of administering it. What that remedy may be, is, indeed, the result of deliberation and study to point out, and therefore the style of the judgment is, not that it is decreed or resolved by the court, for then the judgment might appear to be their own; but "it is considered," consideratum est per curiam, that the plaintiff do recover his damages, his debt, his possession, and the like: which implies that the judgment is none of their own; but the act of law, pronounced and declared by the court, after due deliberation and inquiry. All these species of judgments are either interlocutory or final. Interlocutory judgments are such as are given in the middle of a cause, upon some plea, proceeding, or default, which is only intermediate, and does not finally determine or complete the suit. Of this nature are all judgments for the plaintiff upon pleas in abatement of the suit or action: in *which it is considered by [*397] the court that the defendant do answer over, respondeat ouster; that is, put in a more substantial plea. (f) It is easy to observe, that the judgment here given is not final, but merely interlocutory; for there are afterwards farther proceedings to be had, when the defendant hath put in a better answer.

But the interlocutory judgments most usually spoken of are those incomplete judgments, whereby the right of the plaintiff is indeed established, but the quantum of damages sustained by him is not ascertained: which is a matter that can

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not be done without the intervention of a jury. As by the old Gothic constitution the cause was not completely finished till the nembda or jurors were called in "ad executionem decretorum judicii, ad æstimationem pretii, damni, lucri,” c. (g) This can only happen where the plaintiff recovers; for, when judgment is given for the defendant, it is always complete as well as final. And this happens, in the first place, where the defendant suffers judgment to go against him by default, or nihil dicit; as if he puts in no plea at all to the plaintiff's declaration: by confession or cognovit actionem, where he acknowledges the plaintiff's demand to be just: or by non sum informatus, when the defendant's attorney declares he has no instruction to say any thing in answer to the plaintiff, or in defence of his client; which is a species of judgment by default. If these, or any of them, happen in actions where the specific thing sued for is recovered, as in actions of debt for a sum certain, the judgment is absolutely complete. And therefore it is very usual, in order to strengthen a creditor's security, for the debtor to execute a warrant of attorney to some attorney named by the creditor, empowering him to confess a judgment by either of the ways just now mentioned (by nihil dicit, cognovit actionem, or non sum informatus) in an action of debt to be brought by the creditor against the debtor for the specific sum due: which judgment, when confessed, is absolutely complete and binding; provided the same (as is also required in all other judgments) be regularly docquetted, that is, abstracted and entered in a book, according to the directions of statute 4 and 5 W. and M. c. 20. But where damages are to be recovered, a jury [*398] must be called in to assess them; unless the defendant, to save charges, will confess the whole damages laid in the declaration: otherwise the entry of the judgment is, "that the plaintiff ought to recover his damages (indefinitely), but because the court know not what damages the said plaintiff hath sustained, therefore the sheriff is commanded, that by the oaths of twelve honest and lawful men he inquire into the said damages, and return such inquisition into court." This process is called a writ of inquiry; in the execution of which the sheriff sits as judge, and tries by a jury, subject to nearly the same laws and conditions as the trial by jury at nisi prius, what damages the plaintiff hath really sustained: and when their verdict is given, which must assess some damages, the sheriff returns the inquisition, which is entered upon the roll in manner of a postea; and thereupon it is considered that the plaintiff do recover the exact sum of the damages so assessed. In like manner, when a demurrer is determined for the plaintiff upon an action wherein damages are recovered, the judgment is also incomplete, without the aid of a writ of inquiry. (6)

Final judgments are such as at once put an end to the action, by declaring that the plaintiff has either entitled himself, or has not, to recover the remedy he sues for. In which case, if the judgment be for the plaintiff, it is also considered that the defendant be either amerced, for his wilful delay of justice in not immediately obeying the king's writ by rendering the plaintiff his due; (h) or be taken up, capiatur, till he pays a fine to the king for the public misdemeanor which is coupled with the private injury, in all cases of force, (i) of falsehood in denying his own deed, () or unjustly claiming property in replevin, or of contempt by disobeying the command of the king's writ or the express

(g) Stiernhook, de jure Goth. l. 1. c. 4.

(h) 8 Rep. 40. 61.

(i) 8 Rep. 59. 11 Rep. 43. 5 Mod. 285. See Append. No. II, § 4. (k) F. N. B. 121. Co. Litt. 131. 8 Rep. 60.

1 Roll. Abr. 219. Lill. Entr. 379, C. B. Hil. 4 Ann, rot. 430.

(6) [It has been said, by C. J. Wilmot, that "this is an inquest of office to inform the cou science of the court, who, if they please, may themselves assess the damages." 3 Wils. 62 Hence a practice is now established in the courts of king's bench and common pleas, in actions where judgment is recovered by default upon a bill of exchange or promissory note, to refer it to the master or prothonotary to ascertain what is due for principal, interest, and costs, whose report supercedes the necessity of a writ of inquiry. 4 T. R. 275; 1 H. Bl. 541. And this practice is now adopted by the court of exchequer. 4 Price, 134; see further, Tidd, 8th ed. 817,819. In cases of difficulty and importance, the court will give leave to have the writ oʻ injury executed before a judge at sittings or nisi prius; and then the judge acts only as an assist ant to the sheriff.

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