CHAPTER XV.

REPORT OF THE JUDGE.

Another, and usual mode, in the Supreme Court, of reserving questions of law, for argument and decision, is upon a report of the case, by the judge.

If any questions arise in the course of the trial, in relation to which any doubts are entertained, by the judge who presides in the case, or with the judge's opinion upon which, either party is dissatisfied, the questions may be saved, and the trial proceed and a verdict be taken, subject to the opinion of the full court, upon a report by the judge.

A statement or report of the case is then drawn up by the judge, stating the points saved, and the manner in which he ruled them at the trial; and the case is continued to the next law term. The case is then, in its order, heard upon the report, and judgment rendered on the verdict, or the verdict amended, or set aside, and judgment entered for the other party, or a new trial ordered, according to the nature of the

case.

This report, however, is frequently directed by the judge, to be made up by the counsel, who save the questions; and when so made up, it is submitted to the judge, who, if it be correct, signs the same, as if prepared by himself.

CHAPTER XVI.

AGREED STATEMENT OF FACTS.

Another mode of presenting questions, for determination by the full court, is by an agreed statement of facts.

If there be no dispute between the parties as to the facts in the case, and the only question be, as to the legal rights, arising from them, the parties, instead of submitting the case to the jury, may enter into an agreement of the facts.

The facts, as they are agreed, must be stated in writing, and signed by the respective parties, or their counsel. The fact of such an agreement is then minuted upon the docket, and at the next law term, the case is heard and determined by the court, upon the agreed statement.

63

CHAPTER XVII.

NEW TRIAL.

Formerly, the principal remedy for the reversal of a verdict unduly given, was by writ of attaint.' But attaints upon untrue verdicts are not known in our practice, and are virtually or distinctly abolished elsewhere; and it has for a long time been the practice, in case of a defect of judgment, arising from matter dehors the record, to apply to the court for a new trial, which is a rehearing of the cause before another jury.3

If every verdict were final in the first instance, it would in some degree destroy the present valuable method of trial by jury, and would, where it became possible, drive away all causes of consequence from courts of common law, to those where a different mode of trial is adopted. Causes of great importance are often brought before juries upon the general issue, where the facts are complicated, and the evidence is intricate, of great length, and sometimes contradictory, and when questions of great nicety and difficulty are involved in the discussion. Either party may be surprised by a piece of evidence, which at another time, he could have explained or answered, or he may be perplexed by a legal doubt, which a little recollection would have solved. In the hurry of a trial,

from a want of previous knowledge of the facts, the ablest judge may mistake the law, or misdirect the jury; he may not be able to state the facts and lay them before the jury, so as to enable them clearly to understand the case. The jury are to agree upon their verdict without dispersing, and under these circumstances, the most intelligent men, with the best intentions, may bring in a verdict, which they themselves might afterwards wish to reverse.

So desirous were our ancestors to prevent surprise, and to do justice in every case, that until a few years past, any party, against whom no more than one verdict had been given, might review his cause, and submit it again, as a matter of right, to the decision of another jury.1

This right is now, in most cases, taken away, but the power of granting new trials, belongs to each of the courts respectively, which, when properly exercised, goes far towards rendering perfect, this excellent mode of trial.

Although the courts feel disposed to exercise their power very liberally, yet it must be made to appear to them, that it is necessary for the sake of justice, that the cause should be further heard and considered.

A new trial will not, in general, be granted, where the amount in dispute is too inconsiderable to merit a second examination. In the application of this rule, however, reference is to be had to the habits of our people, and to the difference of expense of litigation, here and in England. Nor will a new trial be granted, upon mere nice and formal objections, which do not

1 Stat. 1786. ch. 66. repealed. Stat. 1788. ch. 11.

go to the merits, nor in cases of strict right, nor where the evidence is at all doubtful, nor for defect in form, if it do not appear that injustice has been done.1 In criminal cases, no new trial is ever granted, where the verdict is one of acquittal, but if the verdict be against the accused, a new trial may be had, if justice require it.

It is difficult to fix, in all cases, absolute rules upon this subject; the granting or refusing a new trial, must depend in a great measure upon the legal discretion of the court, guided by the nature and circumstances of the case, and directed with a view to the attainment of justice.2

The most ample powers are given by statute, to both of our courts, to grant new trials, in cases where justice and equity require it, provided the application to the Supreme Court be made within three years from the rendition of judgment, and in the Common Pleas within one year. Justices of the peace have no power with us to grant new trials.

A new trial cannot be granted in a civil action, at the instance of one of several defendants; nor for a part only of the cause of action.*

5

In general a new trial will not be granted against a defendant in a criminal case, though they are frequently granted in his favor. If, however, the verdict in his favor be obtained by fraud on his part, perhaps a new trial would be granted, even against a defendant who had been acquitted. But according to the Eng

Stat. 1791. ch. 17. s. 2. Stat. 1820. ch. 79. s. 7.

4 3 Salk. 362.

5

King v. Mawbey et al. 6 Term. Rep. 619. King v. Gibbs, 1 East. Rep. 173. 5 Burr. Rep. 2669.

6 2 Stra. Rep. 1238. 2 Salk. 646. Ld. Ray. Rep. 63.