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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 antient. There are instances, in the year books of the reigns of Edward III“, Henry IV', and Henry VIIS, of judgments being stayed (even after a trial at bar) and new venire's awarded, because the jury had eat and drank with. [ 388 ] outconsent of the judge, and because the plaintiff had privately given a paper to a juryman before he was sworn. And upon these the chief justice, Glynn, in 1655, grounded the first precedent that is reported in our booksh for granting a new țrial 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', of granting new trials upon the mere certificate of the judge, (un

€ 24 Edw. III. 24. Bro. Atr. t. ver. 814 Hin. VII. 1 Bro. Abr. 1. verdite. 17.

dite 18. f 11 Hen. IV. 18. Bro. Abr. 8. ene Styl. 466. .queft. 75.

i Ibid. 138.

action for adultery, are a sufficient ground to grant a new trial. ST.R. 257

The court will grant any number of new trials in the same action, if the jury find verdicts contrary to the established law.

A new trial may be granted on account of the misconduct of the jury, as if they have referred to chance to determine the party for whom the verdict was given. But the courts will not hear any affidavit of such conduct from the jury themselves. T. R. 11. It is generálly said, that there cannot be a new trial in penal actions and criminal prosecutions, when there is a verdiet for the defendant. The principle of this being the great favour which the law thews to the liberty of the subject. But the rule does not extend to informations in the nature of quo warranto ; as the object of these is now in general to try a right and not to punish an offence. 2 T. R. 484. Nor does it extend to an action upon a penal statute, in which a verdict is given for the defendant in consequence of the misdirection of the judge. 4 T.R. 753.


fortified by any report of the evidence) that the verdict had passed against his opinion ; though chief justice Rolle (who allowed of new trials in case of misbehaviour, surprize, 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 at that time it was clearly held for law', that whatever matter was of force to avoid a verdict, ought to be returned upon the pofiea, and not merely surmised by the court; left posterity should wonder why a new venire was awarded, with. out 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 in, jured party is entitled to another",

FORMERLY the principal remedy, for reversal of a verdict unduly given, was by writ of attaint; of which we shall speak in the next chapter, and which is at least as old as the institution of the grand ailise by Henry II", in lieu of the Nor

man trial by battel. Such a sanction was probably thought 1 280 y necessary, when, instead of appealing to providence for the

decision of a dubious right, it was referred to the oath of fallible or perhaps corrupted men. Our ancestors faw, 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 fimplicity 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

ky Sid. 235. Styi. pra&t. Reg. 310, mSid. 233. 2 Lev. 140. 311. edit. 1657.

04 Burr. 395. I Cro. Eliz. 616. Palm. 325. Ipfi regali ixftirutioni eleganter inBrownl. 207.

Jer12. (Gianv. h. 2. 6. 19.)

a wrong

a wrong verdict, they must be wilfully and corruptly pero
jured. Whereas a juror may find a just verdict from un-
righteous motives, which can only be known to the great
searcher of hearts : and he may, on the contrary, find a ver-
dict 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 un.
der an insuperable hardship, by making a conviction of the
jurors for perjury the condition of his redress.

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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 ?. 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 afle, which was neither more nor less than a
second trial of the same cause by the same jury'. And, in
mixed or personal actions, as trespass and the like, (wherein
no attaint originally lay) if the jury gave a wrong verdiet,
the judges did not think themselves warranted thereby to
pronounce an iniquitous judgment; but amended it, if pos-
fible, by subsequent inquiries of their own; and, if that
could not be, they referred it to another examination.
When afterwards attaints, by several statutes, were more
universally extended, the judges frequently, even for the mis-
behaviour of jurymen, instead of prosecuting the writ of at-
taint, 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
P Bra&. 1. 4. 87.5. 6. 4.

siaverirt, falfam faciunt pronuntiationem;
4 Ibid. 18. 1.6.19. § 8.

et ideo fequi non debent corum di&tum, fed * Ibid. tr. 5. 6.6. 82. F. N. B.585. illud emendare tenentur per diligentem exa. 2 Init. 419.

minationem. Si autem dijudicare nesciuni, Si juratorus erraverint, et justiciarii recurrer.dum erit ad majus judicium. fecundum earum di&tum judicium pronun. Bract. 1.4. 19. 5. 6.4 $ 2.



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battel which it succeeded : and we shall probably fee the revival of the one as soon as the revival of the other. And here I cannot but again admire' 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 neces. sity 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 write ing; 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 subtilties of law. Either party may be surprized by a piece of evidence, which (had he known of it's 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 ableft 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 [ 391 ] opinion instanter ; that is, before they separate, cat, 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 satisfa&ion. If the verdict be liable to many objections and doubts in the

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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: hé 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 poffefied 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 neceísary 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 nifi 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 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 give their reasons at ( 392 ) 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.


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