BOOK IV. PART I. Mistake of Incompetency of Witness. Discovery of &c., after the Trial. convicted (m), or some other satisfactory proof must be offered to the court of the perjury. Even where the witnesses were indicted, we have seen that the court refused to stay execution until the indictment should be tried (n). It is no ground for a new trial that a witness who described himself as a christian, and by a wrong name, and was sworn on the New Testament, was really a Jew, unless objected to at the trial, for he may be indicted for perjury (o). Also, it seems to be no ground for a new trial that new witnesses have been discovered who can contradict the witnesses at the former trial (p). Where a witness made a mistake in his evidence, by reason of which a verdict was given against the party who called him, the court refused a new trial, although the mistake was explained to them by the affidavit of the witness himself (q); but in a more recent case, under similar circumstances, the Court of Common Pleas granted a new trial (r). An objection to the competency of witnesses, discovered after the trial, is not of itself a sufficient ground for a new trial; although it may have some weight with the court, where the party applying appears to have merits (s); nor is it a sufficient ground that a witness was admitted at the trial on the opposite attorney's undertaking to have him released, which, since the trial, he has refused to do (t). Discovery of new Evidence, &c., after the Trial.] A new trial new Evidence, will seldom be granted, where a verdict has been given against a party, or a plaintiff has been nonsuited, for want of evidence which might have been produced at the trial, because it would tend to introduce perjury (u). Even although the evidence is briefed, and his counsel think fit not to produce it (#), unless the verdict be manifestly against the justice and equity of the case(). And where a verdict passed against the defendant, and a material witness for him arrived on the following day, the Court of Common Pleas refused him a new trial, because he had not moved to put off the first trial on account of the absence of the witness (a). But if new evidence have been discovered after the trial, the court will grant a new trial upon payment of costs, if it be necessary, in order to do justice between the parties. Where the defendant was sued as executor, and was absent from the kingdom at the time the action was brought, the Court of Common Pleas granted a new trial, upon the discovery of evidence after verdict for the plaintiff, although such evidence was in the possession of the defendant's attorney at the time of the trial, but not known by him to be so (b). The discovery of witnesses who can contradict those produced on the former trial, seems to be no ground for a new trial (c). (m) Beerfield v. Petrie, 2 Tidd, 938: Seeley v. Mayhew, 4 Bing. 561. (n) Ante, 995: Warwick v. Bruce, 4 M. (0) Sells v. Hoare, 3 B. & B. 232. (r) Richardson v. Fisher, 7 Moore, 546; (8) Turner v. Pearte, 1 T. R. 717. (t) Hemming v. English, 3 Dowl 155. (u) Cooke v. Berry, 1 Wils. 98: King v. Alberton, 3 Salk. 361: see Wits v. Polehampton, 2 Salk. 647: Spong v. Hogg, 2 W. Bl. 802. (y) Spong v. Hogg, 2 W. Bl. 802: Hall v. Stothard, 2 Chit. 267. (2) Martyn v. Podger, 5 Burr. 2631. (a) Elmslie v. Wildman, 8 Taunt. 236. (b) Broadhead v. Marshall, 2 W. BL 955: and see Weak v. Calloway, 7 Price, 677: Thurtell v. Beaumont 1 Bing. 39. (e) Dickinson v. Blake, 7 Bro. P C 177. The court will not grant a new trial, to let the party into a CHAP. XXVII. defence of which he was apprized at the first trial (d.) But Defence not where, in an action for a nuisance, which was defended by the set up at Trial. defendant's landlord, the defendant not attending at the trial in consequence of his being told that he need not do so, the attorney employed by the landlord entered into a consent-rule to abate the nuisance, without the consent and against the directions of the defendant; the court, upon strong affidavits shewing that the grievance complained of was not a nuisance, set aside an attachment which had issued on the consent-rule, and granted a new trial (e). Variance, &c. Error in Pleadings, Variance, &c.] Where a new trial was Error in applied for, on account of a variance between the issue deli- Pleadings, vered and the Nisi Prius record, the court refused it (ƒ). But in an action on a replevin-bond, where the plaintiff was nonsuit because of a variance between the replevin-bond and the record, the court gave leave to amend, upon payment of costs, and ordered a new trial (g). In a recent case, after verdict for the plaintiff in debt on bond, (the defendant not appearing at the trial), the court granted a new trial, on the ground that in the issue delivered the pleas were not dated on the day of delivery (h). But it seems that such an error cannot be taken advantage of by a defendant who appears at the trial, for, if objected to there, the judge might amend it according to the fact (i). As to what errors, in a writ of trial before the sheriff, afford a ground for a new trial, see Vol. I. 294. Where the plaintiff went to trial without adding the similiter to a plea, concluding to the country, and obtained a verdict, the court held that after verdict, the "&c.," at the end of the plea, was equivalent to a similiter, and refused a new trial(k). A new trial has been refused to the defendant, where his object was to plead specially, and rely upon a defence which he was not permitted to give in evidence under the general issue (7). Also, where the defendant's object was to amend a plea of right of way in which the way had been incorrectly described (m). And in the last-mentioned case, the court intimated that there was no case in which the defendant would be entitled to a new trial, where the verdict was clearly right, though the pleadings were wrong. An error which may be taken advantage of on motion in arrest of judgment or writ of error, &c., is not a ground for a new trial (n). And where a Welsh cause was tried in Monmouthshire instead of Hereford, the court refused to set aside the verdict on that account, as the notice of the trial was for Monmouthshire, and the defendant did not object to it; besides, the objection appeared upon the record, and therefore, if well founded, the party had another remedy (o). When a verdict is taken, subject to the opinion of the court Defect in Spe (d) Vernon v. Hankey, 2 T. R. 113: see Burton v. Mardin, 1 T. R. 84: Ritchie v. Bowsfield, 7 Taunt. 309: Pickering v. Dawson, 4 Taunt. 779. (e) Bodington v. Harris, 1 Ring. 187. (f) Mather v. Brinker, 2 Wils. 243: Doe Coterill v. Wylde, 2 B. & Ald. 472: Jones v. Tatham, 8 Taunt. 634. (g) Halhead v. Abrahams, 3 Taunt. 81: Williams v. Pratt, 5 B. & Ald. 896, S. P.: but see Brown v. Knill, 4 Nev. & M. 348. (h) Worthington v. Wigley, 3 Scott, 355. (m) Edwards v. Broxton, 2 C. & J. 18. cial Case. Book IV. Where one of several Issues, &c., has been wrongly decided. Where the fence is tri tious. on a special case, and the special case turns out to be so defectively stated that the court cannot give judgment upon it, a new trial will be granted (p). Where one of several Issues, &c., has been wrongly decided.] Where there are several issues, and a verdict on one of them is found against evidence, the court cannot grant a new trial as to that issue only, but must grant it as to all the issues, if they grant it at all (7). And the issue thus found against evidence must be a material issue, to induce the court to grant the new trial (r). A jury having assessed damages upon an erroneous principle, the court, in granting a new trial, refused to limit the inquiry to the question of damages (s). The parties on the second trial, whether under special issues or the general issue, will be confined to the same issues raised on the first trial (t). Where two issues were raised by the pleadings, and the jury found upon both, but the judge before whom the cause was tried discharged the jury upon the second issue, upon misapprehension that the verdict upon one issue rendered the other issue immaterial, the court held that the proper course was not to move for a new trial, but to apply to a judge to have the verdict corrected according to his notes (u). We shall presently see, that although one of the defendants only be aggrieved, all must in general join in the application for a new trial (₹). Where the Action or Defence is trifling or rexatious.] The Action or De- court will not, in general, grant a new trial, where the value of fling or vexa- the matter in dispute, or the amount of damages to which the plaintiff would be fairly entitled, is too inconsiderable to merit a second examination (y). The value or amount must be twenty pounds, at least, to induce the court to interfere (2); unless on trials before the sheriff(a), (in which the limited sum is five pounds(b)), or the verdict involve some particular right independent of the damages (c), and this whether the verdict be for plaintiff or defendant (d). The court will, however, sometimes grant a new trial on the ground of a misdirection of the judge, though the verdict be under twenty pounds (e); and in a recent case it was granted for a misdirec tion, though the amount in question was less than 17.(ƒ). The rule, as to refusing a new trial in these cases, applies to motions made by plaintiff as well as motions made by defendant (g). Also, if the defendant succeed in a hard or vexatious action, the court will, in general, refuse a new trial (h), unless, per (p) Darild v. Herring, 1 Str. 300: and see Hankey v.Smith, 3 T.R. 507, n.: Vol. I. 320. (g) Bul. N. P. 326: Bernasconi v. Farebrother, 3 B. & Ald. 372: but see Hutchinson v. Piper, 4 Taunt. 555: see as to a renire de novo, Davies v. Lowndes, 4 Bing. N. C. 478. (r) Bull. N. P. 326. (8) Mahoney v. Frasi, 1 C. & M. 325. (u) les v. Turner, 3 Dowl. 211. (y) Marsh v. Bower, 2 W. Bl. 851: Ma- (2) Sowell v. Champion, 2 Nev. & P. 627. (a) Taylor v. Helps, 5 B. & Ad. 1068: Edwards v. Dignum, 2 Dowl. 642: d vide Henning v. Samuel, Id. 767; 3 Moo. & Scott, 818, S. C., contra; sed quære? (b) Packham v. Newman, 1 C., M. & R. 585: Williams v. Evans, 2 M. & Wels 220: Lyddon v. Coombes, 5 Dowl. 560 : Fleetwood v. Taylor, 6 Dowl, 796. (c) See Dyball v. Duffield, Tidd, 9th ed. 910; 1 Chit. Rep. 265; 1 Y. & J. 402: Bevan v. Jones, 2 Y. & J. 264. (d) Young v. Harris, 2 C. & J. 14. (e) Anon., v. Phillips, 1 C.. & M. 96: Twigg v. Potts, 1 C., M. & R. 93. (f) Haine v. Davey, 4 Ad. & EL 802. (g) Tidd, 9th ed. 913. (h) Macrow v. Hull, 1 Burr, 11: Penprase v. Johns, 2 Nev, & Man. 376: Johnson v. Piper, Id. 672. haps, where the verdict is contrary to the direction of the CHAP. XXVII. judge (i). And in many cases the court has refused to disturb a verdict according to the justice of the case, though there has been a misdirection (k). ment, or De On the other hand, if, on a plea in abatement, the jury find Plea in Abateagainst the defendant, the court will not grant a new trial, fence not on even on payment of costs(). Nor will they grant a new the Merits. trial, to let in a defence not on the merits (m). Nor will the court grant it in any other cases of strict right or summum jus, where the rigorous exaction of extreme legal justice would be hardly reconcileable to conscience. Where a man recovered a sum composed of several items, some of which he was not in strict law entitled to recover under the declaration in that action, but which he would clearly be entitled to recover in a different form of action, the court refused to grant a new trial, or reduce the damages (n). previous new Where there has been a previous new Trial.] If the jury at Where there the second trial find for the party against whom the former has been a verdict was given, the court, if the case be doubtful, or the Trial. second verdict do not accord with the justice of the case, may be induced, under circumstances, to grant a third trial. It is entirely in the discretion of the court, however, to do so or not; for the losing party, in such a case, is not entitled to it by any rule or practice of the court(); and they have accordingly refused it where the second verdict was satisfactory (o). It is also in the discretion of the court to grant a third trial after two concurring verdicts (p). But this is seldom done (q), and the court have refused to grant it, after a new trial for excessive damages, and the same damages given by the second verdict (r); and the same where the two concurring verdicts were for the defendant, even although the judge, before whom the second trial was had, expressed himself dissatisfied with the verdict (s). But where, in such a case, the action was brought for a matter savouring of the realty, and the plaintiff would have been concluded by the verdict, the court, under circumstances, set aside the last verdict, and ordered a nonsuit to be entered, leaving the plaintiff to contest the matter a third time, if he would (†). served to enter Where Leave has been reserved to enter a Nonsuit or Verdict.] Where Leave If the judge at the trial, when there is a doubt whether the has been reaction will lie, allow the plaintiff to take a verdict, with a Nonsuit or liberty for the defendant to move to set aside the verdict, and Verdict. enter a nonsuit, the defendant may move accordingly, and so obtain the opinion of the court upon the subject; but without such leave, he cannot move to enter a nonsuit (u). And on this motion, it seems, the court will consider not merely the (i) See Farrant v. Olmius, 3 B. & Ald. 692. (k) See Edmonson v. Machall, 2 T. R. 4: Wilkinson v. Payn, 4 T. R. 468: Cox v, Kitchen, 1 B. & P. 338. (D) Shaw v. Hislop, 4 D. & R. 241. (n Mayfield v. Wadsley, 3 R. & C. 357. (9) See Foster v. Steele, 3 Bing. N. C. 892. (r) Clerk v. Udall, 2 Salk. 649: Chambers v. Robinson, 2 Str. 692. (*) Swinnerton v. Marquis of Stafford, 3 Taunt. 232. (t) Lee v. Shore, 2 D. & R. 198; 1 B. & C. 94, S. C. (u) Vol I. 314: Minchin v. Clement, 1 B. & Ald. 252: Watkins v. Towers, 2 T. R. 275 to 281. BOOK IV. After Writ of Trial or Inquiry before the Sheriff. In Penal Actions. In Ejectment. In Replevin. 2. Mode of In what point reserved, but the whole case (x). So, where a plaintiff has been nonsuited, the court may order the nonsuit to be set aside, and a verdict entered for him, if the judge at Nisi Prius gave him leave to move to that effect (y); but not otherwise. And on either of these motions it seems that the court, instead of allowing a nonsuit or verdict to be entered, may re-model the rule; and send down the case for a new trial, if that course be more in accordance with the justice of the case (z). After Writ of Trial or Inquiry before the Sheriff.] The execution of a writ of inquiry may be set aside, and a new writ awarded for the same causes as a verdict: as to this, see ante, 719. The execution of a writ of trial may also be set aside, and a new trial granted thereon, for similar causes: as to which see ante, Vol. I. 297. And as to when a new trial will be granted for a defect in the writ of trial or issue, see ante, Vol. I. 294. In Penal Actions.] In penal actions, if there be a verdict for plaintiff, the court will grant a new trial in the like cases as in other actions; but if the jury have found a verdict for the defendant, a new trial is never granted (a), unless for a mistake of law (b), or misdirection of the judge (c). But it is otherwise in penal actions by parties aggrieved (d). The rule in such cases is the same as in other actions. In Ejectment.] In ejectment, where the verdict is for the defendant, the court will seldom grant a new trial, because the plaintiff may, if he will, bring a new action; but otherwise if found for the plaintiff, and the circumstances of the case in other respects warrant them in granting it (e). In Replevin. In replevin, where the verdict is for the plaintiff, the court will be more cautious in granting a new trial than in other actions, and will not grant it unless upon very clear grounds; for the landlord has other remedies for his rent, and a new trial would renew the liability of the sureties, and the plaintiff's risk of paying double costs (ƒ). 2. Mode of obtaining a new Trial. In what Court.] The motion for a rule to shew cause why a verdict should not be set aside, and a new trial granted, is made in the court from which the venire issued, even in cases where the action is brought under the Lord Chancellor's orders (g); but in the case of an issue out of Chancery, the motion, we have seen, (Vol. I. 647), must in general be made in the court (b) Gregory v. Tuffs, 2 Dowl 711; 1 C., M. & R. 310, S. C. (c) Ante, 1087. (d) Lord Selsea v. Powell, 6 Taunt. 297. (e) Goodtitle d. Alexander v. Clayton, 4 Burr. 2224: Wright d. Clymer v. Littier, 2 Id. 1244; 1 W. BL. 348, S. C.: see Smith d. Dormer v. Parkhurst, 2 Str. 1105. (f) Parry v. Duncan, 7 Bing. 243; 5 Moo. & P. 19, S. C. (g) Carstairs v. Stein, 4 M. & Sel. 192, Tidd, 913. |