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honour will include the Rt. Hon. Wiscount Haldane, Lord High Chancellor of Great Britain; W. H. Taft, former President of the United States, and Maitre Labori, Batonnier of the Bar of Paris, France, famed for his defence of Captain Dreyfus and Emile Zola. Lord Haldane will arrive in Montreal on Sunday, August 31st, and will dine privately that evening with Frank B. Kellogg. The first session of the convention will be held at 10 a.m., on Monday, September 1st, in the Assembly Hall of the Royal Victoria College, when Mr. Kellogg will deliver the opening address. At 3 o'clock the same afternoon Lord Haldane will deliver the annual address before the Association at the Princess Theatre, being introduced by the Hon. Edward Douglas White, Chief Justice of the Supreme Court of the United States, who will preside. In the evening Lord Haldane will dine with the Hon. C. J. Doherty at the RitzCarlton Hotel, and later the Minister of Justice will, on behalf of the Dominion Government and the Bench and Bar of Canada, tender a reception to the Lord Chancellor and the President and members of the Association at the Art Association Galleries. On Tuesday morning the Session will be devoted to the reports of standing and special committees, which will be distributed in advance of the meeting. On Tuesday evening there will be a symposium on “The Struggle for the Simplification of Legal Procedure,” discussed under three subtopics, as follows: “Some Causes,” by Hon. W. C. Cook, Judge of the Federal Circuit Court of Appeals, Kansas; “Legal Procedure and Social Unrest,” by the Hon. Charles Burke, Judge of the Maryland Court of Appeals; “The Goal and Its Attainment,” by the Hon. Wm. A. Blount, of Florida. On Wednesday morning Mr. Taft will present a paper on a topic to be announced later. The Tuesday and Wednesday Sessions will be held at Royal Victoria College. The annual banquet will be given on Wednesday evening at the Windsor Hotel, the Hon. Elihu Root, Senator from New York, will preside, and Maitre Labori will respond to one of the toasts. The headquarters of the convention will be at the Windsor Hotel. In connection with the convention, the following meetings of committees or affiliated bodies will be held: Committee on Uniform Judicial Procedure, 8 p.m., Saturday, August 30th, Windsor Hotel.
Executive Committee, 8 p.m., Saturday, August 30th, Mr. Kellogg's private reception room, Ritz-Carlton Hotel.
Commissioners on Uniform State Laws, 10 a.m., Tuesday, August 26th, Windsor Hotel.
Association of American Law Schools, 3 p.m., September 2nd, Windsor Hotel.
Comparative Law Bureau, 3 p.m., Tuesday, September 2nd, Windsor Hotel.
American Institute of Criminal Law and Criminology, 2.30 p.m., Wednesday, September 3rd, Windsor Hotel.
The programmes for the meetings of the Section of Legal Education and the Section of Patent Law will be announced later.
THE HISTORY AND DEVELOPMENT OF THE
The motion for new trial and in arrest of judgment are so closely allied in the practice in the Courts to-day that a discussion of both is necessary where either is considered, and they will both be discussed herein, but in different parts. The first part will be devoted to a consideration of the practice of suspending judgments, which is accomplished by the motion for new trial; and the second part will be devoted to the matter of arresting judgments, which is accomplished by the motion in arrest of judgment.
MOTION FOR NEW TRIAL.
A new trial is defined to be “a re-examination of an issue of fact before a Court and a jury, which had been tried at least once before the same Court." Another authority has defined it as “a rehearing of the legal rights of the parties upon disputed facts, before another jury, granted by the Court on motion of the party dissatisfied with the result of the previous trial, upon a proper case being presented for the purpose.” “
1 Hill. N. Tr. 1: Bouvier L. Dict. : Wharton's L. Dict. • Chitty Gen. Pr. 30; Grah. & W. N. Tr. 32.
The origin of the practice of the motion for a new trial is extremely ancient and is so obscure that it is described by many writers as “concealed in the night of time.” “ It is an open question as to just when the practice did arise, and a question upon which the writers of legal history disagree. Chief Justice Willes in 1744 * attempted to draw a distinction between a venire facias de novo and a venire de novo. He said, The venire facias de novo is as old as the common law when attaints were in use; the venire de novo is only a new invention.” Whether there was such a distinction between them then we cannot tell, but certain it is that no such distinction exists at the present time. The terms “venire facias de novo” and “venire de novo” are now used interchangeably to denote a new trial. It may be that Justice Willes was mistaken in his distinction and that what he thought was a “new invention * was only an evolution in the method of procuring a new trial. It is certain that the practice could not have sprung into existence fully developed like Minerva from the brain of Jupiter. It was a radical change in the system of procedure in the Courts in which the decisions were based upon precedents, and in which no custom became law until it had been used for such a length of time that “the memory of man runneth not to the contrary.” Justice Willes goes on to say: “The venire facias de novo was granted for only two matters and they must appear upon the record. They were: first, if it appear upon the fact of the verdict, that the verdict is so imperfect that no judgment can be rendered upon it; second, where it appears that the jury ought to have found other facts differently.” " It is now well established that a new trial will be granted on either of the two grounds: (a) verdict so imperfect that no judgment can be rendered upon it;" (b) where it appears other facts ought to have been found differently." If Justice Willes was right in his technical distinction between venire facias de novo and venire de novo when he said in the year 1744 that the new trial, or venire de novo as he put it, was a “new invention,” then it must appear that the grounds for which a venire facias de novo would issue were the same for which a new trial will be granted to-day. If wrong in his technical distinction, then it must appear that the venire de novo, or new trial, he spoke of as a “new invention,” was the result of an evolution in the original methods, and was of more ancient origin than he thought. It is evident that Justice Willes made a distinction without a difference and that the venire de novo was merely an offshoot from the venire facias de novo. The known facts—meagre as they are—stand out clearly contra to the opinion of Willes that the new trial was “new” at that time, because as early as the year 1351, in the reign of Edward III., we find an instance of judgment being stayed and a renire de novo being awarded (after trial at bar) for misbehaviour of the jury.” In the year 1410, in the reign of Henry IV., is another instance of the Court awarding a renire de novo (after trial at bar), on account of the prevailing party tampering with the jury." A period of about two hundred and fifty years follows during which the records of the Courts of England are devoid of any mention of the practice of the Court with respect to granting new trials. The first reported case where a new trial was granted upon its merits, was in a case of slander after trial at bar, in 1655,” when Chief Justice Glynn grounded the first precedent for granting a new trial on account of excessive damages given by the jury; “apprehending with reason, that notorious partiality in the jurors was a principal species of misbehaviour.” It would seem then that the history of the practice of granting new trials upon the merits is traceable to the beginning of the seventeenth century, if we are to rely on that case. But Lord Mansfield, one of the most learned men of the legal profession in all the history of the common law, was of the opinion that new trials had been granted for matters extrinsic, or dehors, the record long prior to 1655. In the year 1757, in handing down an opinion and in commenting on the view that the first new trial was granted in 1655, he said: “It is not true that new trials were not granted before 1655. The reason why this matter cannot be traced further back is that the old report books do not give any accounts of determinations made by the Court upon motions.” Lord Mansfield’s view seems to be the correct one and Justice Willes’ view the wrong one since we have the few instances of the granting of new trials, reported in the Year Books of Edward III., Henry IV. and Henry VII. Another point which will strengthen Lord Mansfield's contention is the statement by Chief Justice Rolle in 1648 " that a practice had grown up and had been in use for several years in the Court of Common Pleas of granting new trials upon the mere certificate of the Judge that the verdict had passed against his opinion, unfortified by any report of the evidence. In commenting upon the action of Rolle, C.J., in refusing to grant the new trial under the circumstances, Blackstone says: “Though Chief Justice Rolle (who allowed of new trials in case of misbehaviour, surprise, or fraud, or if the verdict was notoriously contrary to the evidence) refused to adopt that practice in the Court of King's Bench.” And further commenting upon this case decided in 1648, he says: “And at that time it was clearly held for law, that whatever was of force to avoid the verdict, ought to be returned upon the postea, and not merely surmised to the Court.”14 This would indicate that in 1648 the practice of granting new trials was pretty firmly engrafted onto the body of the common law. If the practice was so firmly engrafted that “it was clearly held for law,” then the conclusion inevitably follows that in 1648 the new trial was by no means a new thing, for it was not the custom of the Courts of common law to seize upon some new idea and by one decision firmly settle it as law. Rather they were slow to use new things, and then only when necessity demanded it. Before any practice could be said to have been “clearly held for law” it must have been used so long that living memory could not reach back to its beginning.” If the record was regular on its face, it is clear that before the origin of the practice of granting new trials the losing party could not get a new trial; no matter how irregular the trial was, or how much error was committed, or how
* Bouvier's Law Dictionary. * Witham v. Lewis, 1 Wils. 48. * Witham v. Lewis, 1 Wils. 48. "Abbott v. Roach, 113 Ga. 511. * Clark V. Jenkins, 162 Mass. 397.