CHAPTER III.

OF MOTIONS AND PROCEEDINGS FOR NEW TRIALS. (a)

CHAP. III.

MOTIONS, &c.
FOR NEW
TRIALS.

fined.

A new trial may be defined to be "a re-investigation of the facts and legal rights of the parties upon disputed facts," and either upon the same, or different, or additional evidence be

1. New trial de- fore a new jury, and probably, but not necessarily, before a different judge, and which it is in general in the power and discretion of the Courts to grant or refuse, according to the exigency of each particular case, and generally upon principles of substantial justice and equity. The practice of moving the Court for a new trial has in a great measure superseded the use of the ancient modes of proceeding by bill of exceptions or demurrer to evidence, which we considered in a preceding chapter. (b)

2. Origin and utility of granting a new trial.

It was formerly supposed that a motion for a new trial was an application purely to the discretion of the Court, and that it should not be granted in any case unless it were clear that substantial justice would not otherwise be administered; and that doctrine was contended for in a recent case. (c) But it is now settled, that when the judge has improperly received or rejected any material evidence, or incorrectly directed the jury upon the law applicable to the facts, and the counsel, whose client might thereby be prejudiced, has in due time objected to the same, and the verdict was against such counsel, a new trial is then claimable as of right, (d) unless it clearly appear that the misdirection or rejected evidence could not have had any effect on the jury, or did not influence the verdict, when, it seems, a new trial would not be granted. (e)

2. Origin and utility of a New Trial.

The antiquity of the practice of granting new trials, and the

(b) Ante, 1 to 17; and see 1 Stark. Ev. 468; and per Tenterden, J. in Bernasconi v. Farebrother, 3 Bar. & Adol. 372.

(c) Doe dem. Tatham v. Wright, 6 Nev & Man. 142.

(d) Doe dem. Tatham v. Wright, 6

Nev. & Man. 151.

(e) Newcastle v. Broxtowe, 4 Bar. & Adol. 273; 1 Nev. & M. 598, S. C.; Harr. Index, tit. New Trial, 1524. The result of the decisions seems to be, that when it is or must be doubtful whether the improper admission or rejection of the

necessity for affording that remedy against an improper verdict, have been very frequently investigated and developed, but in no elementary treatise, ancient or modern, more ably than in Blackstone's Commentaries. (f) It was there observed, " that if every verdict were 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 and subtleties 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 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

(f) 3 Bla. Com. 587 to 394; Tidd,

evidence or comments of the judge had.
not some undue effect with the jury, it 906, 918.
seems due to justice to grant a new trial.

CHAP. III.
MOTIONS, &c.

FOR NEW
TRIALS.

CHAP. II. MOTIONS, &c. FOR NEW

TRIALS.

new trial is a re-hearing 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 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.

And it is worthy of 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 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. With us no new trial is allowed unless there be a manifest mistake, and the subject-matter be worthy of interposition.

In a preceding chapter we attempted to observe upon the great excitement sometimes occasioned by the trial of a disputed action, especially in cases where perhaps both the parties had expected to succeed, and was wholly unprepared to expect a nonsuit or an unfavourable verdict, deeply affecting his character, or at all events his pecuniary interests. (g) In this state the hopes of obtaining a new trial are anxiously indulged, and most clients, regardless of expense, eagerly insist that they will have a new trial. We will now concisely inquire under what circumstances and in what cases that redress can be obtained and on what terms.

Chief Justice Tindal, in the case of Melin v. Taylor, (h) made the following observations with respect to new trials. "I cannot conceive how the benefit of trial by jury can be in

66

any way impaired by a cautious and prudent application of "the corrective which is now applied for; on the contrary, I "think that without some power of this nature residing in the "breast of the Court, the trial by jury would in particular cases "be productive of injustice, and the institution itself would "suffer in the opinion of the public." Best, C. J. in speaking

(g) Ante, vol. iii. 867, &c.

(h) Melin v. Taylor, 2 Hodges' Rep. 126, 127; 3 Bing. New Cases, 109, S. C.

of new trials, observed, "It is one of the most beautiful parts "of our constitution, that when any thing occurs in one tribu"nal which appears to be wrong, it may be afterwards cor"rected by another, so that the interests of a party cannot be "prejudiced by a hasty decision; otherwise the trial by jury " instead of being a blessing would become a source of evil. If "the jury were to be made judges of the law as well as of fact, parties would be always liable to suffer from an arbitrary de"cision." (i)

3. Admission of Improper Evidence.

CHAP. III. MOTIONS, &c. FOR NEW

TRIALS.

neral a new trial

The principal grounds on which to support a motion for a 3. When in genew trial are, the judge's admission of improper evidence, or his improper rejection of admissible evidence, or his incorrect comments on the law, or evidence, or on the particular evidence that has been given.

A sufficient ground must always be laid before the Court to satisfy them that it is essential to justice that the cause should be further 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 in banc by affidavit; if it arise from what passed at the trial it is taken from the judge's information, who usually makes a special and minute report of the evidence. Counsel are heard on both sides to impeach or establish the verdict, and the Court, after granting a rule nisi and hearing the statements and arguments of the respective counsel, 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 at law which arose at the trial are upon full deliberation clearly explained and settled. (k) The Courts, however, do not 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 considered by the jury, and that their decision has not been agreeable to the justice and truth of the case. (1) Nor is a new trial granted where the value is too inconsiderable to justify the expense of a second examination; nor 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;

may be obtained on the ground that the judge admitted impro

per evidence.