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ones.

And upon

the party prevailing towards the jury, which may have influenced then 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 (6); 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 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

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 reigus of Edward III. (c), Henry IV. (f),

and Henry VII. (g), of judgments being stayed (even after a trial (*388] at bar) and *new venire's awarded, because the jury had eat and

drank without consent of the judge, and because the plaintiff had privately given a paper to a juryman before he was sworn. these the chief justice, Glynn, in 1655, 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 ; thougb 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 ai that time it was clearly held for law (?), that whatever matter was of forco 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 unduly given, was by writ of attaint;79 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. (o), in lieu of the Norman trial by battle. Such a sanction (*389] was probably thought *necessary, when instead of appealing to

Providence for the decision of a dubious right, it was referred to (6) Law of nisi prius, 303, 304.

(k) i Sid. 235. Styl. pract. Reg. 310, 311. edit. (c) Cornb. 357.

1657. (d) 6 Mod. 22. Salk. 649.

(1) Cro. El. 616. Palm 325. 1 Brownl 207. (el 24 Edw. II. 24. Bro. Abr. t. verdite, 17. (m) 1 Sid. 235. 2 Lev. 140. ( 11 Hen. IV. 18. Bro. Abr. t. enquest, 75. in) 4 Burr. 395. (8) 14 Hen. VII. 1 Bro. Abr. 1. verdite, 18. (o) Ipsi regali institutioni eleganter inomna (a) Styl. 466.

(Glanv. 1. 2, c. 19.) (0) Ibid. 238.

(79) See Hov. n. (79) at the end of the Vol. B. JIL

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 nok 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 theinselves 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 conse quence to be decided according to the forms of the imperial law, upon de positions 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. 1. 4, tr. 5, c. 4.

faciunt pronuntiationem; et ideo sequi non debent (9) Ibid. tr. 1, c. 19, 68.

eorum dictum, sed illud emendare tenentur per dili (tj Ibid. 1. 4, tr. 5, c. 6,6 2. F. N. B. 181. 2 inst. gentem eraminationem. Si autem dijudicare nesci

ant, recurrendum erit ad majus judicium. Bract (s) Si juratores erraverint, et justiciarii secun. 4, Ir. 5, 6. 4,6 2. dum eorum dictum judicium pronuntiaverint, falsam (1) See page 268. VOL. II.

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and subtilties of law. Either party may be surprised by a piece of evi dence, which (had he known of its production) he could have explained or answered : or may be puzzled by a legal doubt, which a litle 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

artsul impressions which have been made on their minds by learn[*39!) ed and experienced advocates. The jury are to give their *opi

nion 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 counse 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 10 merit a second examination. It is not granted upon nice and formal objoctions which do not go to the real merits. It is not granted in cases of striệt right or summum jus, where the rigorous exaction of extreme legis 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 supplyang 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, 10 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 writof attaintso 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 in April 1749; the question being only on the proto the house of lords from the court of session in perty in an ox, adjudged to be of the value of three Scotland, in a cause between Napier and Macfar- guineas. No pique or spirit could have made such lane. It was instituted in March 1745; and (after a cause, in the court of king's bench or common many interlocutory orders and sentences below, pleas, have lasted a tenth of that time, or hare appealed from and reheard as far as the course of cost a twentieth part of the expense. proceedings would admit) was finally determined

(3) In New-York, the motion, if founded on rest of judgment for any thing which he nigha irregularity, must be made at the next term af have pleaded in abatement. 2 Bla. R. 1120 ter the trial, or the delay be excused: if the Surplusage will not vitiate after verdict, as in motion he founded on the merits, it would be an trover stating the possession of the goods in enumerated motion and heard in its regular or- plaintiff on the 3d of March, and the conver. der on the calendar. Rules Sup. Court, 47, &c. sion by defendant "afterwards to wit on the la

(4) The parties cannot move in arrest of of March,” it was held that afterwards might mdgment for any thing that is aided after ver stand, and the other words be treated as sur. a.ct at common law, or by the statute of plusage. Cro. C. 428. The motion in arrest amendments, or cured, as matter of form by or judgment, &c. may be made in the king's the statule of jeofails. See 1 Saund. 228. n. bench at any time before judgment is given, 5 1)It is a general rule that a verdict will aid T. R. 445. 2 Stra. 845. though a new tria. title imperfectly set out, but not an imper- has been previously moved for. Doug. 745, 6. lect title. 2 Burr. 1159.3 Wils. 275. ÅT. In the comicon pleas, the motion must be made R. 472. The defendant cannot move in ar. before or on the appearance day of the return

+ Contra, 1 Chitty's Pl. 32, 33.
(80) See Hov, R. (80) u 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 : lor, 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 faid 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 par. ticular 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.

an of pass 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 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 (*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

(y) i Mod. 292.

[graphic]

(6) Carth. 389.
(2) Cro. Jac. 44.

of the babeas corpora juratorum. Barnes, 445. of mistake of the form of action, or otherwise, In the exchequer, the motion must be made the plaintiff is at liberty to proceed de novo in within the first four days of the next ferm a fresh action. I Mod. 207. Vin. Ab. tit. Judg after the trial, and it may be made after an un- ment, Q. 4. Bla. R. 831. Each party pays successful motion for a new trial. See Man. his own costs upon the judgment being arrest ning's Ex. Prac. 353. Tidd, 960, 1; but see 7 ed. Cowp. 407. Price, 566.

(5) See, however, 1 Saund. 228, note I. If the judgment be arrested in consequence

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