Book III. NOR do the courts lend too eafy an ear to every application for a review of the former verdict. They must be fatisfied, that there are strong probable grounds to fuppofe that the merits have not been fairly and fully difcuffed, and that the decifion is not agreeable to the justice and truth of the cafe. A new trial is not granted, where the value is too inconfiderable to merit a fecond examination. It is not granted upon nice and formal objections, which do not go to the real merits. It is not granted in cases of strict right or fummum jus, where the rigorous exaction of extreme legal justice is hardly reconcileable to confcience. 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 fuch farther trial (which is matter of found difcretion) the court has alfo an opportunity, which it feldom fails to improve, of fupplying thofe defects in this mode of trial which were ftated in the preceding chapter; by laying the party applying under all fuch equitable terms, as his antagonist shall defire and mutually offer to comply with: fuch as the discovery of fome facts upon oath; the admiffion of others, not intended to be litigated; the production of deeds, books, and papers; the examination of witneffes, infirm or going beyond fea; and the like. And the delay and expenfe 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 fucceeding term, within which term it is usually heard and decided. And it is worthy obfervation, how infinitely fuperior to all others the trial by jury approves itself, even in the very mode of it's revifion. In every other country of Europe, and in those of our own tribunals which conform themselves to the [393] procefs of the civil law, the parties are at liberty, whenever they pleafe, to appeal from day to day and from court to court upon queftions merely of fact; which is a perpetual fource of obftinate chicane, delay, and expenfive litigation". u Not many years ago an appeal was brought to the houfe of lords from the court of feffion in Scotland, in a caufe between Napier and Macfarlane. It was With us no new trial is allowed, unless there be a manifeft mistake, and the fubject matter be worthy of interpofition. The party who thinks himself aggrieved, may ftill, if he pleases, have recourfe to his writ of attaint after judgment; in the courfe of the trial he may demur to the evidence, or tender a bill of exceptions. And, if the first is totally laid afide, and the other two very seldom put in practice, it is because long experience has fhewn, that a motion for a fecond trial is the fhorteft, cheapeft, and moft effectual cure for all imperfections in the verdict: whether they arise from the mistakes of the parties themselves, of their counsel or attornies, or even of the judge or jury. 2. ARRESTS of judgment arise from intrinfic causes, appearing upon the face of the record. Of this kind are, firft, 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 cafe for an affumpfit: for, 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. Alfo, fecondly, where the verdict materially differs from the pleadings and iflue thereon; as if, in an action for words, it is laid in the declaration that the defendant faid, "the plaintiff is a bankrupt ;" and the verdict finds specially that he faid, " the plaintiff will be a bankrupt.” Or, thirdly, if the cafe laid in the declaration is not fufficient in point of law to found an action upon. And this is an invariable rule with regard to arrests of judgment upon matter of [ 394 ] law, "that whatever is alleged in arrest of judgment must be "fuch matter, as would upon demurrer have been fufficient ❝to overturn the action or plea." As if, on an action for flander in calling the plaintiff a Jew, the defendant denies was inftituted in March 1745; and, (after many interlocutory orders and fen tences below, appealed from and reheard as far as the courfe of proceedings would admit) was finally determined in Apti! 1749: the question being ealy on the VOL. III. property in an ox, adjudged to be of the value of three guineas. No pique or fpirit could have made fuch a caufe, in the court of king's bench or common pleas, have lafted a tenth of the time, or have coft a twentieth part of the expense. Ff the 기 ( 395 ] the words, and iffue 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 arreft 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 converfo," that every thing that may be "alleged as cause of demurrer will be good in arrest of judg"ment:" for if a declaration or plea omits to state some particular circumstance, without proving of which, at the trial, it is impoflible to fupport the action or defence, this omiffion fhall be aided by a verdict. As if, in an action of trespass, the declaration doth not allege that the trespass was committed on any certain day; or if the defendant juftifies, by prescribing for a right of common for his cattle, and does not plead that his cattle were levant and couchant on the land; though either of thefe defects might be good caufe to demur to the declaration or plea, yet if the adverfe party omits to take advantage of fuch omiffion in due time, but takes iffue, and has a verdict against him, thefe exceptions cannot after verdict be moved in arreft of judgment. For the verdict ascertains thofe facts, which before from the inaccuracy of the pleadings might be dubious; fince 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 thofe circumftances, without which his general allegation is defective. Exceptions therefore, that are moved in arreft of judgment, must be much more material and glaring than fuch as will maintain a demurrer: or, in other words, many inaccuracies and omiffions, which would be fatal, if early obferved, are cured by a subsequent verdict ; and not suffered, in the laft ftage of a caufe, to unravel the whole proceedings. But if the thing omitted be effential to the action or defence, as if the plaintiff does not merely ftate his title in a defective manner, but fets forth a title that is totally defective in itself, or if to an action of debt the defendant pleads 395 not guilty instead of nil debet, these cannot be cured by a verdict for the plaintiff in the first case, or for the defendant in the fecond. IF, by the misconduct or inadvertence of the pleaders, the iffue be joined on a fact totally immaterial, or infufficient to determine the right, fo that the court upon the finding cannot know for whom judgment ought to be given; as if, in an action on the cafe in affumpfit against an executor, he pleads that he himself (instead of the teftator) made no fuch promife: or if, in an action of debt on bond conditioned to pay money on or before a certain day, the defendant pleads payment on the day; (which iffue, if found for the plaintiff, would be inconclufive, as the money might have been paid before) in thefe cafes the court will after verdict award a repleader, quod partes replacitent: unless it appears from the whole record that nothing material can poffibly be pleaded in any shape whatsoever, and then a repleader would be fruitlefs". And, whenever a repleader is granted, the pleadings must begin de novo at that stage of them, whether it be the plea, replication, or rejoinder, &c. wherein there appears to have been the first defect, or deviation from the regular courfe". IF judgment is not by fome of these means arrested within the first four days of the next term after the trial, it is then to be entered on the roll or record (2). Judgments are the fentence of the law, pronounced by the court upon the matter a Cro. Eliz. 778. b 2 Ventr. 196. e Stra. 994. d 4 Bur. 301, 302. (2) A motion in arreft of judgment may be made at any time before judgment is actually entered up. Doug. 746. Where judgment is arrested each party pays his own cofts. Corp. 407. If a verdict is taken generally with entire damages, judgment may be arrested if any one count in the declaration is bad; but if there is a general verdict of guilty upon an indictment confifting of several counts, and any one count is good, that is held to be fufficient. Doug, 730. Ff 2 contained contained in the record; and are of four forts. First, where the facts are confessed by the parties, and the law determined by the court; as in cafe of judgment upon demurrer : fecondly, where the law is admitted by the parties, and the facts disputed; as in case of judgment on a verdict: thirdly, where [396] both the fact and the law arifing thereon are admitted by the defendant; which is the case of judgments by confeffion or default: or, laftly, where the plaintiff is convinced that either fact or law, or both, are infufficient to fupport his action, and therefore abandons or withdraws his profecution; which is the cafe in judgments upon a nonfuit or retraxit. THE judgment, though pronounced or awarded by the judges, is not their determination or fentence, but the determination and fentence of the law. It is the conclufion that naturally and regularly follows from the premises of law and fact, which stand thus: against him, who hath rode over my corn, I may recover damages by law; but A hath - rode over my corn; therefore I fhall recover damages againft A. If the major propofition be denied, this is a demurrer in law: if the minor, it is then an iffue of fact: but if both be confeffed (or determined) to be right, the conclusion of judgment of the court cannot but follow. Which judgment or conclufion depends not therefore on the arbitrary caprice of the judge, but on the fettled and invariable principles of juftice. The judgment, in fhort, is the remedy prescribed by law for the redrefs of injuries; and the fuit or action is the vehicle or means of administering it. What that remedy may be, is indeed the refult of deliberation and study to point out, and therefore the ftile of the judgment is, not that it is decreed or refolved by the court, for then the judgment might appear to be their own; but, "it is confidered," confideratum eft per curiam, that the plaintiff do recover his damages, his debt, his poffeffion, and the like: which implies that the judgment is none of their own; but the act of law, pronounced and declared by the court, after due deliberation and inquiry. ALL |