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Nor do the courts 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 that the decision is not agreeable to the justice and truth of the case. A new trial is not granted, where the value is too inconsiderable to merit a second 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 summum jus, where the rigorous exaction of extreme legal justice is hardly reconcileable to conscience. 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 such farther trial (which is matter of found discretion) the court has also an opportunity, which it fel. dom fails to improve, of supplying those defects in this mode of trial which were stated in the preceding chapter ; by laying the party applying under all such equitable terms, as his antagonist shall desire and mutually offer to comply with : such as the discovery of some facts upon oath; the admission of others, not intended to be litigated ; the production of deeds, books, and papers ; the examination of witnesses, infirm or going beyond sea; and the like. And the delay and expense 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 succeeding term, within which term it is usually heard and decided. And it is worthy observation, how infinitely superior to all others the trial by jury approves itself, even in the very mode of it's revision. In every other country of Europe, and in

those of our own tribunals which conform themselves to the ( 393 ) 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'.

u Not many years ago an appeal was court of reffion in Scotland, in a cause brought to the house of lords from the between Napier and MacFarlane. It


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

The party who thinks himself aggrieved, may still, if he pleases, have recourse to his writ of attaint after judgment; in the course 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 shewn, that a motion for a fecond trial is the shortest, cheapest, and most 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 intrinsic causes, appearing upon the face of the record. Of this kind are, first, 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 case for an assumpsit : 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. Also, secondly, where the verdict materially differs from the pleadings and issue thereon; as if, in an action for words, it is laid in the declaration that the defendant said, “ the plaintiff is a bankrupt;" and the verdict finds specially that he said, “ the plaintiff will be a bankrupt.” Or, thirdly, if the cafe laid in the declaration is not sufficient 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 mut be “ such matter, as would upon demurrer have been sufficient “ to overturn the action or plea.” As if, on an action for Qander in calling the plaintiff a Jew, the defendant denies

was instituted in March 1745 ; and, (after many interlocutory orders and sen iences below, appealed from and reheard as far as the course of proceedings would admit) was finally determined in April 1749: the question being only on the


property in an ox, adjudged to be of the
value of three guineas. No p'que or
fpirit could have maje such a cause, in
the court of king's bench or cominn
pleas, have lafied a tenth of the time, or
have cost a cwentieth part of be expense.


the words, and issue 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 arrest of judgment, that to call a man a Jew is not actionable : and, if the court be of that opinion, the judgment thall be arrested, and never entered for the plaintiff. But the rule will not hold e converso, “ 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 support the action or defence, this omission shall 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 W; or if the defendant justifies, 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 these defects might be good cause to demur to the declaration or plea, yet if the adverse party omits to take advantage of such omission in due time, but takes issue, and has a verdict against him, these exceptions cannot after verdict be moved in arrest of judgment. For the verdict ascertains those facts, which before from the inaccuracy of the pleadings might be dubious; since the law will not suppose, that a jury under the inspection of a judge would find a verdiet for the plaintiff or defendant, unless he had proved thofe circumstances, without which his general allegation is defectiver. Exceptions therefore, that are moved in arrest of judgment, mult be much more material and glaring than fuch as will maintain a demurrer : or, in other words, many inaccuracies and omissions, which would be fatal, if early observed, are cured by a subsequent verdiat ; and not suffered,

in the last stage of a cause, to unravel the whole proceedings. os 7 But if the thing omitted be essential to the action or de.

fence, as if the plaintiff does not merely state his title in a defective manner, but sets forth a title that is totally defective in itself?, or if to an action of debt the defendant pleads

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w Carth. 339.
* Cro. Jac. 44.

Y 1 Mod. 292.
% Salk. 365


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 second.

afe in allumpfit ne teftator) made nioned to pay

If, by the misconduct or inadvertence of the pleaders, the issue be joined on a fact totally immaterial, or insufficient to determine the right, so that the court upon the finding cannot know for whom judgment ought to be given; as if, in an action on the case in asumpsit against an executor, he pleads that he himself (instead of the testator) made no such promise b: or if, in an action of debt on bond conditioned to pay money on or before a certain day, the defendant pleads pay. ment on the day";(which issue, if found for the plaintiff, would be inconclusive, as the money might have been paid before ) in these cases the court will after verdict award a repleader, quod partes replacitent : unless it appears from the whole record that nothing material can possibly be pleaded in any shape whatsoever, and then a repleader would be fruitless". 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 course .

· If judgment is not by some 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 sentence of the law, pronounced by the court upon the matter

a Cro. Eliz. 778. 1 2 Ventr. 196.

Stra. 994•

d 4 Bur. 301, 302.
e Raym. 458. Salk. 579.

(2) A motion in arrest 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 costs. Cowp. 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 verdiet of guilty upon an indictment consisting of several counts, and any one count is good, that is held to be fufficient. Doug. 730.

Ff 2


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 case of judgment upon demurrer : secondly, 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 arising thereon are admitted by the

defendant; which is the case of judgments by confeffion or default : or, lastly, where the plaintiff is convinced that either fact or law, or both, are insufficient to support his action and therefore abandons or withdraws his prosecution; which is the case in judgments upon a nonfuit or retraxit.

The judgment, though pronounced or awarded by the judges, is not their determination or sentence, but the de termination and sentence of the law. It is the conclusion 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 shall recover damages againft

A. If the major proposition be denied, this is a demurrer in law: if the minor, it is then an issue of fact : but if both be confessed (or determined) to be right, the conclusion of judgment of the court cannot but follow. Which judgment or conclusion depends not therefore on the arbitrary caprice of the judge, but on the settled and invariable principles of justice. The judgment, in fhort, is the remedy prescribed by law for the redress of injuries; and the suit or action is the vehicle or means of administering it. What that remedy may be, is indeed the result of deliberation and study to point out, and therefore the stile of the judgment is, not that it is decreed or resolved 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 possession, 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.


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