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. 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. The judges saw this; and therefore very early, even upon writs of assise, they devised a great variety of distinctions; 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, [*390] 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 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 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 (p) Bract. l. 4, tr. 5, c. 4. (g) Ibid. tr. 1, c. 19, ◊ 8. (r) Ibid. 1. 4, tr. 5, c. 6, § 2. F. N. B. 181. 2 Inst. 415. (s) Si juratores erraverint, et justiciarii secundum eorum dictum judicium pronuntiaverint, falsam VOL. II. 41 faciunt pronuntiationem; et ideo sequi non debent : 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 learn[391] ed 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 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 by-standers, 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 of court for awarding such second trial on the other: and the subsequent verdict, though contrary to the first, imports no title 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 informa tion; who usually makes a special and minute report of the [*392] evidence. Counsel are heard on both sides to impeach *or esta blish the verdict, and the court give their reasons at 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 reconcileable 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. 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 were 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 (3), 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 civil law, the parties are at [*393] 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 subject-matter be worthy of interposition. The party who thinks himself aggrieved, may still, if he pleases, 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 long experience has shewn, 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 (4) arise from intrinsic causes, appearing upon the (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 orders and sentences below, appealed from and reheard as far as the course of proceedings would admit) was finally determined (3) In New-York, the motion, if founded on irregularity, must be made at the next term af ter the trial, or the delay be excused: if the motion be founded on the merits, it would be an enumerated motion and heard in its regular or der on the calendar. Rules Sup. Court, 47, &c. (4) The parties cannot move in arrest of Judgment for any thing 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 ar in April 1749; 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. rest 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 "afterwards to wit on the 1st of March," it was held that afterwards might stand, and the other words be treated as sur. plusage. Cro. C. 428. The motion in arrest of judgment, &c. may be made in the king's bench at any time before judgment is given, 5 T. R. 445. 2 Stra. 845. though a new trial has been previously moved for. Doug. 745, 6. In the common pleas, the motion must be made before or on the appearance day of the return † Contra, 1 Chitty's Pl. 32, 33. (80) See Hov. n. (80) at the end of the Vol. B. III. face of the record. Of this kind are, first, where the declaration varies totally 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. 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 finds 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 [*394] upon. And this is an invariable rule with regard to arrests of judgment upon matter 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 omits 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 judg ment, 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 [395] proceedings. But if the thing omitted be essential to the action or defence, as if the plaintiff does not merely state his title in a de (w) Carth. 389. (z) Cro. Jac. 44. of the habeas corpora juratorum. Barnes, 445. In the exchequer, the motion must be made within the first four days of the next term after the trial, and it may be made after an unsuccessful motion for a new trial. See Manning's Ex. Prac. 353. Tidd, 960, 1; but see 7 Price, 566. If the judgment be arrested in consequence (y) 1 Mod. 292. of mistake of 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 arrest ed. Cowp. 407. (5) See, however, 1 Saund. 228, note 1. fective 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),81 these cannot be cured by a verdict for the plaintiff in the first case, or for the defendant in the second. If, by the misconduct or inadvertence of the pleaders (6), 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 partes replacitent; unless it appears from the whole record that nothing material can possibly be pleaded in any shape whatsoever, and then are pleader 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 (7). 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 both the fact and [*396] 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.82 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 stands thus: against him, who hath rode over my corn, I may recover damages by law: but A hath rode over my (z) Salk. 305. (a) Cro. Eliz. 778. (6) 2 Ventr. 190. (6) The following rules have been laid down on this subject: A repleader ought never to be allowed till trial, because the fault of the issue may be helped after the verdict by the statute of jeofails. 2dly. If a repleader be denied, where it should be granted, or granted where it should be denied, it is error. 3dly. The judgment of repleader is general, and the parties must begin again at the first fault which occasioned the immaterial issue. Lord Raym. 169. Thus if the declaration be ill, and the bar and replication are also ill, the parties must begin de novo: but if the bar be good and the replication ill, at the replication. 3 Keb. 664. 4thly. No costs are allowed on either side. 6 T. R. 131. 2 B. & P. 376. 1 (c) Stra. 994 (d) 4 Burr. 301, 302. (e) Raym. 458. Salk. 579. 5thly. That a repleader cannot be awarded after a default at nisi prius; to which may be added, that it can never be awarded after a demurrer or writ of error, but only after issue joined. 3 Salk. 306. Nor where the court can give judgment on the whole record, Willes, 532; and it is not grantable in favour of the person who made the first fault in pleading. Doug. 396; see 2 Saund. 319. b. (7) If a verdict is taken generally, with entire damages, judgment may be arrested if any one count in the declaration is bad; but if there is a general verdict of guilty upon an indictment consisting of several counts, and any one count is good, that is held to be sufficient. Doug. 730. (81) See Hov. n. (81) at end of the Vol. B. III. (82) Ib. (82) B. III. |