Venire de novo when may be granted. How motions were intro duced. NEW TRIAL. NEW trials were granted before 1655. Sty. 462. 466.(a) A venire de novo is the ancient proceeding of the common law, a new trial is only a new invention: the first is as ancient as the law, when attaints were in use; but motions for new trials were introduced in this manfor new trials ner; the judgment in attaint was very severe, and the punishment excessively hard, and therefore to avoid that severity, it was thought better to proceed in a milder. way, and so motions for new trials were introduced; they likewise differ in this respect, that new trials are generally granted where a general verdict is found; a venire facias de novo upon a special verdict; but the most material difference between them is this, that a venire facias de novo must be granted upon matter appearing upon the record, but a new trial may be granted upon things out of it, if the record be never so right. If the verdict appear contrary to the evidence given, or the judge has given wrong directions, a new trial will be granted; but it is otherwise as to a venire Ven. fac. de facias de novo, which can only be granted in these two cases: 1st, If it appear upon the face of the verdict, that the verdict is so imperfect, that no judgment can be given upon it. 2d, Where it appears that the jury ought to have found other facts differently; and it cannot be granted in any other case. Ld. C. J. Willes. LeyWhen a new bourn v. Lewis, 1 Wils. 55. It is a general rule, that the party shall not move for a new trial, after he has moved in arrest of judgment. 1 Burr. 334. 2 Salk. 647. novo. trial cannot be moved. As to a general verdict. A general verdict can only be set right by a new trial, 1 Burr. 393. Most general verdicts include legal consequences as well as propositions of fact: in drawing these consequences, the jury may mistake and infer directly contrary to law: the parties may be surprised by a case falsely made at the trial, which they had no reason to expect, and therefore could not come prepared to answer. It is absolutely necessary to justice, that there should, upon many occasions, be opportunities of (a) In a civil case granted in the time of Ed. 3. 6 Term Rep. 623, 3. reconsidering the cause, by a new trial: and it is done in a way very favourable to the parties for whom the wrong Costs. (a) verdict is given; it is upon payment of costs: whereas in other cases where a wrong judgment is reversed, costs are paid as if the right judgment had been given in the first instance. Lord Mansfield, Bright v. Eynon, 1 Burr. 393. The reasons for granting a new trial must be collected from the whole evidence, and from the nature of the case considered under all its circumstances. Of late years, they have been granted after trials at bar. Ibid, 395. It must depend upon the legal discretion of the court, Discretionary. guided by the nature and circumstances of the particular case, and directed with a view to the attainment of justice. Ibid, 397. Trials by jury in civil causes, could not subsist now, without a power somewhere to grant new trials. 1 Burr. 390. to be a sound Though a motion for a new trial is an application to The discretion the discretion of the court, it must be remembered, that of the court the discretion to be exercised on such an occasion, is not one, a wild but a sound discretion, and to be confined within those limits which an honest man, competent to discharge the duties of his office, ought to confine himself. And that discretion will be best exercised by not deviating from the rules laid down by our predecessors; for the practice of the court forms the law of the court. Kenyon, Wilson v. Rastall, 4 Term Rep. 757. Where parties have agreed to abide by the verdict Many actions in one action, (where several are depending,) it means to abide the such a verdict as the court thinks ought to stand as a final determination, and this therefore, does not prevent a motion for a new trial. Hodgson v. Richardson, 3 Burr. 1477. Lord It may be had in an information on a quo warranto. Rex v. Francis, 2 Term Rep. 284. event of one. On a quo warrantɔ. So after a nonsuit, if improperly directed. 4 Burr. Nonsuit. 1986. Sadler v. Evans, 5 Burr. 2612. Rich v. Shute. If a nonsuit be set aside upon payment of costs, such If a nonsuit be set aside on payment of costs, such costs must be (a) As to the costs after a venire de novo, awarded upon paid before the an imperfect special verdict, and new trial granted, see next trial, Bird v. Appleton, 1 East, 111. If there be a third trial the party succeeding is only entitled to the costs of that trial. Ibid, 114. See 8 Term Rep. 619. Austen v. Gibbs. New trial, what. Sufficient ground must be laid before court. In criminal cases when moved for. If judge dies. payment must be made, before the plaintiff can proceed again to the trial, being a condition precedent; and if the plaintiff go to trial and leave the costs unpaid, although he obtains a verdict, it will be set aside with costs. Nicholas v. Bozen, 13 East, 185. A new trial is retrying 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 in 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 possessed the same lights and advantages, would probably have altered their own opinion. 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 necessary to justice, that the cause should be further considered, 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. If the defendant do not move for a new trial in a criminal case within the four days, he cannot be heard at all on the subject of a new trial; all that he can do is, to move in arrest of judgment, which may be done at any time before judgment is pronounced, or address himself to the court in mitigation of the punishnent; and if, in the course of that address, it incidentally appear that justice has not been done, the court will interpose of themselves. Rex v. Holt, 5 Term Rep. 445. And it seems if a judge dies between the circuit and the following term, motions for new trials are to be made upon affidavit. Ibid. 439. Lord Kenyon. In assault and In assault and battery, the evidence was, that plaintiff, battery, who was a servant to the defendant, after having received a slight blow from his master for impertinent behaviour, violently beat him.-Verdict 401. The court granted a new trial as being excessive. Jones v. Sparrow, 5 Term Rep. 257. For want of due notice, The want of due notice of trial, makes a defence, is a good ground contrary if he appears and defends. 2 Salk. 646. unless the defendant for a new trial; but Thermolin v. Cole, It is not sufficient that the cause is of value or import- As to value. ance, but it must involve in it a doubt. The suitors frequently derive great benefit from having their causes thoroughly investigated on such motions; for it often happens by some accident, that complete justice is not done at nisi prius. Per Grose, J. 2 Term Rep. 120. It may be granted a second time, if the reasons for When it may be granted a granting it be sufficient. 4 Burr. 2108. Goodwin v. Gib- second time. bons. time, So a third trial if verdict be against law. 1 Term Rep. When a third 167. So if against evidence. Wilson v. Brough, E. 24 Geo. 3. Salk. 50. So in ejectment and after a trial at bar. 4 Burr. 2224. So in ejectStr. 1105. Smith v. Parkhurst. ment and after trial at bar. So if a jury toss up for the verdict, and that can be made If jury toss appear by a third person seeing them. 1 Term Rep. 11. up. Str. 642. see 2 Black. 1293. So if an under-sheriff be attorney in the cause, and Under-sheriff. return the panel of the jurors. Cowp. 112. Baylis v. Lucas. If a verdict arise from a slip or inadvertence, as the If verdict be want of producing the office copy of a judgment, and from a slip or where the plaintiff has no merits, such recovery is ma- inadvertence. nifestly contrary to reason and justice, and new trial granted. Martin v. Podger, et al. 5 Burr. 2631. If a witness be concealed in plaintiff's house, to avoid If witness be being served with a subpoena, though plaintiff has a concealed. verdict, court will grant a new trial. Montpesson v. Randall, Bull. N. P. 328. In Ducker v. Wood, Lord Mansfield said, that there Court have was no doubt, but that the court had the power of taking power to grant, &c. the opinion of a second jury, in any case where the da- where excesmages were excessive; but these questions depended on sive damages. their own circumstances, on which the court would exercise their own discretion. 2 Term Rep. 277. See 2 Wils. 405. 4 Wils. 62. In an action for diverting a watercourse, and 30001. For excessive damages, court granted a new trial, being excessive. damages. 7 Term Rep. 529. Pleydell v. Lord Dorchester. But the former verdict was ordered to stand as security Former verin the mean time, for the damages which might be given; dict to stand and the court said, "it was fit to be enforced, not only as a security, upon this, but on all future occasions of this kind." See to be enforSty. Rep. 466. Wood v. Gunston, M. 1655. It seems ced. to be the ancient rule. and the rule After error brought, All the de fendants must be present when moved for, Felony. Three issues and two found, If against evi See 1 B. & P. 149. a. where a new trial was granted after error brought on the first day of the term, and held to be no objection, as a point of importance was depending, which would have been shut out in the court of errors. Hammet et al. v. Hea, Bar. C. P. The presence of all the defendants convicted of an indictment for a conspiracy is necessary, in order to move for a new trial on behalf of any of them. Rex v. Askew and others, 3 Maule and Selw. 9. The bare circumstance of a witness being discovered to be incompetent after the trial, is not sufficient ground for a new trial. 1 T. R. 719. When not granted. In case of felony no new trial can be granted. 6 Term Rep. 638. But for a misdemeanor it may, ib. 5 Term Rep. 619. If out of three issues two are found against evidence, yet if the material issue be agreeable to evidence, no new trial. Dexter v. Barrowby, Bull. 326. Vide Rex v. Pool, ib. So if a verdict is against evidence, yet if the action dence, and ac- was frivolous and vexatious, and the real damage small. tion frivolous, 1 Burr. 11. Mackrow v. Hull. will not grant it, Nor for excessive damages, when they depend on cirWhen not for cumstances solely under the cognizance of the jury, and fit for their decision; as for crim. con. 1 Burr. 699. Wilford v. Berkeley, 4 Term Rep. 657. Duberley v. Gunning. excessive damages. Nice or formal objec tions. No instances of new trial Nor on nice or formal objections, which do not go to the real merits. There has been no instance of this court's granting a new trial on an allegation that some of the witnesses exaon account of mined were interested. There never yet has been a case witnesses be in which the party has been permitted after trial to avail ing interested; himself of any objection, which was not made at the time of the examination. Where it appears that one or more material witnesses who were examined on a trial were interested, it may afterwards weigh with the court as a circumstance for granting a new trial, provided the merits of the case are doubtful; but as a substantive objection, it ought not to be allowed. Per Buller, J. Turner v. Pearie, 1 Term Rep. 720. unless the merits are doubtful, |