16 much the jury misbehaved-the losing party was bound by the trial. The only thing he could do was to sue the jury for bringing in a false verdict, and in certain actions he was even deprived of the right to sue the jury. This action against the jury was called the writ of attaint, and consisted of a jury of twenty-four men trying the jury of twelve. The only way in which the losing party could get redress was to get a conviction of the jury of twelve men by the jury of twenty-four. It was pretty difficult to get a reversal of the verdict handed down by the jury of twelve men, and if the plaintiff, or losing party, did succeed in his writ of attaint and got a conviction of the twelve-man jury the penalty imposed upon them was extremely severe. Their goods and lands were forfeited, and they and their families were driven from their homes and outlawed.18 The Judges saw that great injustice was often done, for as long as a man was compelled to convict the jury which tried his case, it was certain that he would very often fail to get justice done to him, for the jury of twenty-four were very loath to convict the jury of twelve. In most cases there would be a greater hardship worked in allowing the plaintiff to recover in his writ of attaint, than in affirming the verdict of the first jury and thus letting the hardship fall upon the plaintiff. Finally, the Judges hit upon the plan of granting a new, or second trial.19 This was a reasonable and natural way to secure justice, for the parties could now watch their errors; the Judge or jury were better informed, and justice would more probably be done than in the first trial.20 At first the Courts were very strict about granting new trials and the matter sufficient to avoid the verdict had to appear upon the postea.21 Then, early in the reign of Charles the Second, new trials were granted upon affidavits;22 and the former strictness of the Courts of law, with respect to granting new trials, compelled many parties to go into the Courts of equity to get relief from oppressive verdicts.23 The law Courts then became more liberal 16 Witham v. Lewis, 1 Wils. 48. 173 Bl. Com. 403. 18 3 Bl. Com. 403. 19 Witham v. Lewis, 1 Wils, 48. 20 Bl. Com. (Chases) S05. "Slades Case, Style 138. 22 Goodman v. Cotherington, 1 Sid. 235 (1676). 23 Bright v. Eynon, 1 Bur. 390. in granting new trials, with a view to secure justice to the parties.2 The maxim of the Courts of law in the time of Blackstone was: "Where justice is not done upon one trial, the injured party is entitled to another." 25 When the Courts of law first began to develop the practice of granting new trials upon motion, they would not grant new trials after a non suit, or trial at bar, or two concurring verdicts, or in a suit in ejectment, or in a suit for slander or libel, or for perjury, nor would a new trial be granted in an inferior Court.26 Later, these distinctions were done away with and a new trial can be had in those, as well as in other cases, where it will best secure the ends of justice.27 28 It was settled as early as the year 1757 that the power to grant new trials was lodged in the discretion of the Court to grant or refuse it as the exigencies of each particular case should demand.28 The Courts at the present time adhere to the rule that the power is discretionary,2 and this discretion is generally not reviewable by the appellate Court,30 unless it appears on appeal that the trial Court abused its discretionary power in an arbitrary and wrongful manner.31 32 It was also settled at an early period that the object of granting new trials was to do substantial justice, and where justice had been done in the trial the Court would refuse to grant a new trial.33 In the year 177334 we find Lord Mansfield refusing to grant a new trial where it appeared that the jury had found against the evidence, but as in this particular case the damages would have been only a few pence it would be absurd to send the case back for a new trial. He was merely carrying out his dicta in the earlier case35" that the discretion must be exercised so as to secure substantial justice." That is law at the present time and a new trial will not be 392. "Bright v. Eynon, 1 Bur. 390. 253 Bl. Com. 388. 25 Com. Dig. Pleader R. 17. 272 Tidds Pr. 905. 29 Bright v. Eynon, 1 Bur. 390. 29 McLanahan v. Ins. Co., 26 U. S. 170. 20 Farrar v. Electric R. Co., 63 S. W. (Mo.) 115. 21 Cook v. Ry. Co., 56 Mo. 380; Rodon v. Transit Co., 207 Mo. 32 Bright v. Tynon, 1 Bur. 390: Platt v. Munroe, 34 Barb. 292. 33 Marsh v. Bower, 2 W. Bl. 851. Marsh v. Bower, 2 W. Bl. 851. 35 Bright v. Eynon, 1 Bur. 390. 36 granted where justice has been done by the verdict. And this is so even if the correctness of rulings of law be doubtful.87 The power of granting new trials is inherent in all Courts of common law jurisdiction,38 and statutory limitations only regulate, they are not a grant of the power but limitations upon the existing power.39 In the United States, in the majority of the states, the practice pertaining to the motion for a new trial is generally regulated by statute,40 but the statutory enumeration of cases in which a new trial shall be granted does not exclude all other cases, or deprive the Court of its common law power, in order to secure substantial justice, to grant new trials for other good and sufficient reasons, though falling short of statutory grounds.11 The motion for new trial is governed by the same rules in both criminal and civil cases, but generally the Courts appear more lenient in the former class of cases. 44 45 The motion for new trial is connected directly with the judgment and is not a collateral motion. The office of the motion is to direct the attention of the trial Court to the specific errors committed on the trial, in order to make such irregularities, which would not otherwise appear, a part of the record.46 Where no motion for a new trial is made in the trial Court to correct such errors, the weight of decisions hold that they are deemed to have been waived and the appellate Courts will refuse to review them. At common law a motion for new trial was never necessary in order to get appellate review. A writ of error brought up the exceptions. Thus, the use of the motion to preserve 47 Green v. Cock, 39 Ga. 339; Haber v. Lane, 45 Miss. 608; Ford v. U. S. 18, C. Ct. 62. 37 Breckenridge v. Anderson, 26 Ky. 710. 38 Zaleski v. Cook, 45 Conn. 401. Bartley v. Jamison, 44 Mo. 141; McNamara v. R. R., 12 Minn. 388. 40 In Mo. see Sec. 2202, et seq., R. S. Mo. 1909. 41 Fine v. Rogers, 15 Mo. 215; Brenzinger v. Bank, 19 Ohio Cir. Ct. R. 36. 114. 42 Grayson v. Conn., 6 Gratt. 712, 723; Hill. N. Tr. (2 ed.) 43 R. R. v. Doane, 105 Ind. 92. "Rohrer v. Brockhage, 15 Mo. App. 16. 45 McAllister v. Ins. Co., 78 Ky. 531. 46 Werner v. State, 44 Ark. 127. 47 McClurkern v. Ewing. 42 Ill. 283: McGee v. Robbins, 58 Ind. 463; State v. Fargo, 151 Mo. 280; Sikes v. Norman, 122 Ga. 387. exceptions has been the principal development of the motion for new trial. The motion in arrest of judgment cannot take the place of nor perform the offices of the motion for new trial,48 and although there is a conflict of authority as to whether moving in arrest before moving for new trial waives the latter," the weight of authority seems to be that it does waive the right to the motion for a new trial.50 Blackstone enumerates the grounds for granting new trials, arising from matter extrinsic the record, as: "Want of notice of trial; flagrant misbehavior of the prevailing party towards the jury, which may have influenced the verdict; gross misbehavior of the jury among themselves; verdict contrary to evidence or without evidence; exorbitant damages; misdirection of the jury, so that they have found an unjustifiable verdict; for these, and other reasons of the like kind, it is the practice of the Court to award a second, or new, trial."51 New trials are granted for matter arising extrinsic, or dehors, the record;52 but here it might well be mentioned that if the error is harmless the Court will not grant the motion.53 The grounds for granting new trials are, generally speaking, errors of Judge in matters of law, and errors of the jury in matters of fact. The more specific grounds for which the Courts have entertained and granted the motion for new trial are: Admission of improper evidence;55 exclusion of proper evidence:56 improper nonsuit or dismissal of action;57 giving improper instructions;58 refusing proper instructions;5o misconduct of parties and counsel;" and the misconduct of the prevailing party as ground for a new trial is not confined to something occurring at the 48 McClerkin v. State, 20 Fla. 879. 50 Freeman v. R. R., 107 Tenn. 340; Eckert v. Brinkley, 134. Ind. 614 McReynolds v. Anderson, 56 Mo. App. 398. 13 Bl. Com. 387. 62 Bowie v. State, 19 Ga. 1. 63 Brazier v. Clapp, 5 Mass. 10; Hill. N. Tr. 32. 54 Hill. N. Tr. 15. Bush v. Sprague, 51 Mich 41. 56 Moreland v. McDermot, 10 Mo. 605. 57 Beals v. Cleveland, 153 Fed. 211. trial;61 misconduct of witnesses; 62 misconduct of jurors; irregularities and defects in verdicts and findings; verdict or decision contrary to law,65 or contrary to instructions; verdict contrary to, or not sustained by evidence;7 excessive damages; inadequate damages;" surprise by want of notice of trial;70 absence of a material witness where party is free from fault;71 newly discovered evidence, which could not have been found by the use of reasonable diligence. It is also laid down that when the jury have misunderstood or disregarded the evidence or instructions, or have neglected to consider the facts properly, or have overlooked prominent and essential points in them, and have failed to do substantial justice, the verdict must be set aside and a new trial granted." 73 72 The grounds for granting new trials are not limited to these alone, but whenever it appears to the Court that it is necessary in order to secure justice to the party, of which otherwise he might be deprived by reason of some error not appearing on the face of the record, but which occurred in the trial of the case, the Court will grant a new trial. In order to avail himself of any of these grounds the party must object at the time the error is made." At common law there was no absolute rule as to the number of new trials that might be granted in a case.75 Where this is not regulated by statute more than one new trial may still be granted. The reason for granting more than one new trial, in such a case, should rest in the discretion of the trial Court. There are two general grounds for which 63 Rogers v. R. R., 67 Cal. 607: Baker v. Jacobs, 64 Vt. 197. 64 Hitchcock v. Haight, 7 Ill. 604; Guerin v. Smith, 62 Mich. 369. 387. 363. 65 Bryant v. Ins. Co., 13 Pick. 543. 6 Peterson v. Patrick, 126 Mass. 395. 07 Clark v. Jenkins, 162 Mass. 397; Turner v. Turner, 85 Tenn. as Black v. Drake, 2 Colo. 330; Morrell v. Lawrence, 203 Mo. Go Benton v. Collins, 125 N. C. 83. 70 Galvin v. Dailey, 109 Iowa 332. 1 Sherrod V. Olden, 6 N. J. L. 344. 72 Moore v. Coates, 35 Ohio St. 177. 73 Higgins v. Lee, 16 Ill. 495; Hill, N. Tr. 99. 74 Wait v. Maxwell, 22 Mass. 217; Russell v. Ins. Co., Fed. Cases No. 12, 147; Jackson v. Jackson, 5 Cow. (N. Y.) 173. 15 Taylor v. R. R., 79 Ga, 330; Clark v. Jenkins, 162 Mass. 397. re Harwell v. Foster, 97 Ga. 264. |