petition, before issuing an order of notice. The mode of proving the facts is strictly within the discretion of the Court. In some cases, affidavits may be necessary, in others, the witnesses should be produced and examined. It is the duty of the Judge to whom the petition is presented, to intimate his opinion to the petitioner, derived from the character of the petition and the nature of the facts to be proved, as to the manner in which the testimony should be given, whether by affidavits, depositions or oral examination.

At the hearing, the petitioner offers his evidence to prove the facts upon which he relies. His own affidavit is evidence only of facts which, from their nature, can be known only to himself. The depositions of other persons must be taken with the usual forms, (Coffin v. Abbot, 7 M. R. 252,) or the witnesses may be produced in Court. The opposite party may introduce evidence to control or rebut the evidence of the petitioner. A party applying for a review, on the ground that he had no notice of the suit, may contradict the officer's return, (Brewer v. Holmes, 1 Met. 288,) or though some one entered his appearance for him, may show that it was without his authority or knowledge. Ib.

The judgment in review is such as the merits of the case require, although it should be more advantageous than the original judgment was to the original plaintiff'; in like manner as if both parties had brought their several writs of review. Rev. Stat. c. 99, § 10. If the original plaintiff recovered debt or damages in the original suit, and the amount is reduced on the writ of review, the plaintiff in review recovers judgment for the difference, with his costs, and may collect the amount on execution; but if the first judgment has

been satisfied, the two judgments are set off, and an execution issues for the balance only, § 13. The two judgments are compared, and any error is thus corrected by rendering the proper judgment on the review. Swett v. Sullivan, 7 M. R. 342.

In the case of Carrique v. Bristol Print Works, (8 Met. 444,) the Court say, that in review the Court are limited to no form of judgment, but will render such special judgment as the just and legal rights of the parties require. Such part of the former judgment as may be found right may be affirmed, especially if it have been executed, and if an erroneous part has been executed, judgment will be given in favor of the party aggrieved, that he be restored to what he has lost thereby. In this case, the trustees were discharged by mistake, and they took out an execution for costs, which was satisfied. A review was granted, and the trustees were charged and judgment was entered against the trustees to recover back what was paid to them, and also the judgment between the original parties that should have been originally entered and against the trustees. The Court refused, on the trial of the writ of review, to permit certain persons, claiming to be assignees of the fund, to come and establish their claim.

CHAPTER XXX.

NEW TRIALS.

THE Court of Common Pleas may, at any time before judgment in any civil action, set aside the verdict, and order a new trial, for any cause for which by law a new trial may or ought to be granted. Rev. Stat. c. 82, § 19. They may also grant new trials in any proceeding for flowage by the erection of mills, (c. 116, § 29,) or the assessment of damages by laying out highways, by a jury, c. 24, § 34. This power is usually exercised by a single Judge, especially if the case have been tried before himself, unless he choose to reserve the matter for a hearing or conference before his associates, at their semi-annual meetings.

The Supreme Court is also authorized to grant new trials, (Rev. Stat. c. 81, § 13,) but with a peculiar limitation, viz: that all motions for new trials shall be heard and determined exclusively in the full Court.

The exercise of the high power of setting aside the verdict of a jury, though it has been expressly conferred upon these Courts by the laws of the Commonwealth, has been much complained of. But if every verdict were final, in the first instance, it is obvious that, in many cases, great injustice would be done. A case may be so complicated or so difficult to be understood, or in the hurry of a trial the counsel may have committed some essential error, that from these, and a variety of causes, the most intelligent men, with the best intentions, may bring in a verdict, which they

themselves might afterwards wish to reverse.

The

power is, however, very charily exercised, and it has become, of late years, the less necessary to exercise it, because of the patient, thorough and elaborate manner in which cases are tried before a jury. So sensible were the early lawgivers of the Commonwealth of the imperfectness of this institution in civil cases, and so desirous were they to do justice in every case, that by the Statute of 1786, c. 66, 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.

Justices of the Peace have no power to grant new trials. Howe, Prac. 510.

Nothing is more common, after the verdict of a jury against a party, than for him to move for a new trial. It is here proposed to state the general principles which govern the Courts in the determination of these questions, and to cite but a very small number out of the vast amount of cases, to which those principles have been applied.

1. The first ground for setting aside a verdict and granting a new trial, which we shall consider is, the misbehavior of the prevailing party or agents employed by him. If either party, during the term in which a case is tried, either before or after the trial, give to any of the jurors who shall try the cause, anything by way of treat or gratuity, the Court may grant a new trial. Rev. Stat. c. 95, § 31. So any improper influence exerted over a witness, by bribery or intimidation, or by introducing a witness whom he knows to be interested, without disclosing the fact. Niles v. Brackett, 15 M. R. 378. So where a son-in-law of a party made representations to a juror respecting the case,

out of Court. Knight v. Freeport, 13 Ib. 218. Generally, it may be stated, that though a party may endeavor, by all legitimate means, to obtain his cause, without at all endangering the verdict which he may obtain, yet if he have resorted to fraud, artifice, or any sinister and underhand measures, which have been instrumental in thwarting the due administration of justice, and such conduct be discovered, exposed and proved, a new trial will and should be granted. If the law in such case, from a regard to human infirmity, does not require "uberrima fides,” it requires, at least, "fides." The cases to be found in the English and American books show a pretty stringent application of the principle, and the Courts can seldom err, in such cases, on the side of too great severity. It has recently been determined in two cases in England, (reported in the Law Reporter for August, 1847, Boston,) that where one of the attorneys in the cause was a witness, a new trial should be granted, and this is but an extreme illustration of the principle that the misconduct of a party's agent shall be a cause for a new trial. It was long ago determined there, that where a party refused to produce a paper, which he had not been duly notified to produce, and the trial proceeded and he obtained a verdict, that it should be set aside. Anderson v. George, 1 Burr. Rep. 353. Unless the principle be rigidly enforced, it is obvious to be seen, that in the administration of justice, integrity, honor and fairness would be placed at disadvantage with trickery, falsehood and knavery.

2. Another ground may be the misbehavior or mistake of jurors. This subject has been already considered in the chapter on Juries, to which the reader is referred. It seems only necessary to add, that it seems