PART I. BOOK IV. Sequi (d). And where, to a declaration in assumpsit for money had and received, the defendant pleaded as to all except 31. 55. non assumpsit, as to all except 37. 58. a set-off, and as to 37. 58. payment of that sum into court; the plaintiff, by his replication, admitted the set-off, and replied that he would not further prosecute his suit except as to the 31. 5s., and took that sum out of court; it was held that the defendant was entitled to his costs of the two first issues (e). Retraxit. Where a nolle prosequi is entered as to one of several defendants, the defendant as to whom it is entered is and always was generally entitled to costs (f). But he was not so if it was entered as to him on a plea of his personal discharge, as of his bankruptcy and certificate (g). Now, however, by the statute 3 & 4 W. 4, c. 42, s. 32, he would be entitled to them; that act enacting, "that where several persons shall be made defendants in any personal action, and any one or more of them shall have a nolle prosequi entered as to him or them, every such person shall have judgment for, and recover, his reasonable costs. Retraxit.] A retraxit is very similar to a nolle prosequi to the whole declaration, excepting that the former is a bar to any future action for the same cause; the latter is not, unless made after judgment (h): the former is also made in person, in open court, when the trial is called on; the latter is made by a mere entry on the roll out of court. As a retraxit is very unusual in practice, it is unnecessary to consider it further in this place (¿). (d) Williams v. Sharwood, 3 Bing. N. C. 331; 5 Dowl. 371, S C. In that case it was considered that after a nol. pros, the court will not inquire as to the propriety of the pleas. (e) Goodee v. Goldsmith, 2 M. & Wels. 202: 5 Dowl. 283, S. C. (f) Jackson v. Chambers, 8 Taunt. 643; 2 Moore, 718, S. C. (g) Booth v. Middelcoat, 6 Bing. 445; 4 Moo. & P. 182, S. C.: Harewood v. Mat thews, 2 Tidd, 9th ed. 981. (h) 1 Saund. 207, n.: Bowden v. Horne, 7 Bing. 716; 5 Moo, & P. 756, S. C. (i) See the form of the entry on the roll, 2 Sellon, 338. CHAPTER XXVI. REMITTITUR DAMNA. CHAP. XXVI. IN ejectment, if the plaintiff have judgment by confession or In Ejectment. default, it is usual for him to remit the damages, and to pray the writ of possession merely (a). In replevin of a distress for "rent, customs, services, or In Replevin. damage feasant," where the defendant signs judgment of nonpros for want of a plea in bar (b), he usually remits the damages, sooner than be at the expense of a writ of inquiry, and takes his judgment for a return merely (c). manded or recoverable. Where the jury give greater damages than the plaintiff has Where the declared for, it may be rectified by entering a remittitur for Damages dethe excess (d); or, if the plaintiff have signed judgment for found are too the greater sum, the court will give him leave to amend it, by large or not entering a remittitur for the excess, even in a subsequent term, and after error brought (e). And the same, where the jury give damages where they ought not, as in a penal action (ƒ). If the plaintiff, however, demand in his declaration more than by his own shewing is due, and there be a special demurrer for this cause, he cannot rectify the mistake by entering a remittitur for the surplus (g); but, if the declaration be not demurred to, it seems he may (h), unless the sum demanded depend upon some deed or other instrument, where the debt or duty to be recovered appears certain and entire upon the face of it, as in debt or covenant to pay 207.; in which case a demand of more than appears due is bad, and cannot be aided by the entry of a remittitur (i). But, if the sum to be recovered may be more or less, by matter extrinsic, as in debt or avowry for rent, if more be demanded than is due, the excess may be remitted (k); so, where the debt or duty is composed of several parcels, a demand of more than is due may be aided by a remittitur (1). ral. In an action against several defendants, if the jury sever In Action the damages by mistake, the plaintiff, by entering a remittitur against seveas to the lesser damages, may have judgment for the greater damages against all the defendants (m). (a) See form of judgment for plaintiff by nil dicit in ejectment, with a remittitur damna, Chit. Forms, 367. (b) See ante, 804. (c) See the form, Chit. Forms, 440. (d) Perseval v. Spencer, Yelv. 45: Wray v. Lister, 2 Str. 1110: Coy v. Hymas, Id. 1171: Vol. I. 323, 327. (e) MS., M. 1814: Usher v. Dansey, 4 M. & Sel. 94: see Wray v. Lister, 2 Str. 1110: Pickwood v. Wright, 1 H. Bl. 643: Mills v. Funnell, 4 D. & R. 561; 2 B. & C. 899, S. C. (f) Hardy v. Cathcart, 1 Marsh. 180. (g) 1 Saund. 285, n. (5). (h) 1 Ro. Abr. 784, R. pl. 2; 785, S. pl. 1: Com. Dig. Pleader, C. 48. (i) 1 Saund. 285 a: see Coy v. Hymas, 2 Str. 1171. (k) Inglede v. Cripps, 2 Salk. 659; 7 Mod. 87; 2 Ld. Raym. 814, S. C.: Morris v. Geleter, Id. 317; Carth. 437, S. C. (1) Pemberton v. Shelton, Cro. Jac. 499: Ingledew v. Cripps, 2 Ld. Raym. 815; 7 Mod. 88, S. C. (m) Vol. I. 323, 324. See form of the entry of a remittitur of the damages generally, Chit. Forms, 621; of damages in replevin by defendant, Id. 440; of part of the debt demanded, Id. 321-331; upon some of several counts, Id. 343. BOOK IV. PART I. What and per Remedy. CHAPTER XXVII. NEW TRIAL. IF any error in the proceedings appear upon the face of the when the pro- record, the party injured by it has his remedy by demurrer, motion in arrest of judgment, or writ of error, according to circumstances; and, therefore, in such cases a new trial will not be granted (a). But if any defect of judgment happen from causes wholly extrinsic, arising from matter foreign to or dehors the record, the only remedy the party injured by it has, (if we except the writ of error coram nobis or coram vobis in some few cases), is by application to the court for a new trial. This application for a new trial was substituted for a bill of exceptions (b). The court 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, before they will grant a new trial (c). The law and decisions on the subject will now be stated under the following heads : Mistake, &c., of the Judge. 1. Cases in which a new Trial will 1. Cases in which a New Trial will be granted or not. be granted or not-con The Motion and Rule, id. The New Trial, 1103. 4. The Costs, 1106. 5. Venire de Novo, 1106. 1. Cases in which a new Trial will be granted or not. Mistake, &c., of the Judge.] If the judge misdirect the (a) Law v. Crockett, 7 Price, 566: see Tidd, 9th ed. 913. (b) See Bernasconi v. Farebrother, 3 B. & Ad. 372. (c) 3 Bl. Com, 392: see Rer v. Mauchey, 6 T. R. 638: Edge v. Frost, 4 D. & B 243. jury (d), even in a penal action (e), it is, in general, a good CHAP. XXVII. ground for a new trial; unless the court be satisfied that justice has been done between the parties, notwithstanding the misdirection (f); for instance, if the jury paid no attention to it (g). So, if the sheriff or his deputy misdirect Misdirection. the inquest, the court, upon application, will set aside the execution of the writ of inquiry (h), unless it appear that substantial justice has been done between the parties (i). Where a jury gave a general verdict for the defendant on three issues, having been misdirected on one, the court granted a new trial on payment of costs (k). Where the plaintiff's counsel acquiesced in the judge's ruling at the trial, and the defendant took a verdict, without going into his case, the court refused a new trial, on the ground of misdirection (7). Jury. In trespass quare clausum fregit, issues were joined on three Improper pleas:-1. Of a public carriage-way; 2. Of a public bridle- Discharge of way; 3. Of a public foot-way: the jury found a verdict for the plaintiff on the first issue, and for the defendant on the third; and the judge, without the plaintiff's consent, discharged the jury from giving a verdict on the second issue; the court granted a new trial, although the plaintiff, at the beginning of the trial, had agreed that the damages, if any, should be merely nominal (m). Where, however, there were two issues, and the jury found upon both, but the judge, under a misapprehension that the finding upon the first issue rendered the second useless, discharged the jury upon the second issue, it was held, that the proper course was to apply to the judge to have the verdict entered according to his notes, and not to move for a new trial (n). So, if a judge improperly nonsuit the plaintiff, a new trial Wrong Nonwill, in general, be granted (o); and this, though the counsel suit. submitted to the nonsuit in deference to the opinion of the judge, such opinion being incorrect (p). But it would be otherwise if such opinion were correct (q). And where the plaintiff had elected to be nonsuit because the judge directed the jury to give only nominal damages, the Court of Common Pleas refused to grant a new trial (r). And, where the judge, on summing up a case, directed the jury, if they came to a certain conclusion, to give their verdict for the plaintiff, but, if they came to either of two other conclusions, which he pointed out, to find for the defendant, and state on which ground their judgment was formed; and the plaintiff then submitted to be nonsuited in deference to the opinion of the (d) Anon., 2 Salk. 649: How v. Strode, 2 Wils. 269, 273. (c) Wilson v. Rastall, 4 T. R. 753: Brooke v. Middleton, 1 Camp. 450: Calcraft v. Gibbs, 5 T. R. 19: and this, although the ground for it be not a misdirection. (Gregory v. Taverner, 1 C., M. & R. 310). (f) Edmonson v. Machell, 2 T. R. 4: see Coz v. Kitchin, 1 B. & P. 338: Calcraft v. Gibbs, 5 T. R. 20: Robinson v. Cook, 6 Taunt. 636: Wickes v. Clutterbuck, 2 Bing, 483: 10 Moore, 63, S. C. (g) Twigg v. Potts, 1 C., M. & R. 89: Duke of Newcastle v. Inhabitants of Broxtowe, 1 Nev. & M. 598. (h) Markham v. Middleton, 2 Str. 1259. Jurist, 982. (k) Lord v. Wardle, 3 Bing. N. C. 680 ; 4 Scott, 402, S. C. (1) Robinson v. Cook, 6 Taunt. 336: see (m) Tinkler v. Rowland, 4 Ad. & El. 868. (0) Rice v. Shute, 5 Burr. 2612: Sadler (p) Alexander v. Barker, 2 C. & J. 133: Law v. Wilkins, 1 Nev. & P. 697. (q) Kindred v. Bagg, 1 Taunt. 10: see Pickering v. Dowson, 4 Taunt. 779: Robinson v. Cook, 6 Id. 336: Elsworthy v. Bird, M'Clel. 69. (r) Butler v. Dorant, 3 Taunt. 229: Simpson v. Clayton, 2 Bing. N. C. 467. PART I. BOOK IV. judge: it was held that he was not entitled to a new trial, on account of misdirection, if either of the two latter points was rightly put to the jury (s). Wrong Admis tion of Evi dence. Also, if a judge at the trial, or a sheriff upon the execution sion or Rejec- of a writ of inquiry, admit improper evidence (t), or reject evidence which ought to be admitted (u), by which means the result of the trial or inquiry has been different from what it otherwise would have been, the court will, in general, grant a new trial, or set aside the execution of the writ of inquiry (x). And, in a case in the Court of Exchequer, it was holden, that a new trial should be granted, unless, with the addition of the rejected evidence, a verdict given for the party offering it would be clearly and manifestly against the weight of evidence (y). In some cases, however, the court may refuse a new trial though a witness has been improperly rejected, as where the fact which such evidence was to establish was proved by another witness, and not disputed (~); or where, assuming the rejected evidence to have been received, a verdict in favour of the party for whom it was offered would have been clearly and manifestly against the weight of evidence, and certainly set aside on application to the court as an improper verdict (a). Where evidence is tendered for a purpose for which it is not admissible, and rejected, a new trial will not be granted merely because such evidence was admissible for another purpose, not stated at the trial (b). Where the been waived The court will grant a new trial where improper evidence is received and a verdict found for the party adducing it, although there be other evidence to the same point in favour of the same party, unless they see clearly that the improper evidence could not have weighed with the jury, or that the verdict, if given the other way, would have been set aside as against evidence (c); the Court of Common Pleas, however, refused a new trial for the improper admission of evidence, where there appeared to be sufficient evidence to support the verdict, independently of the evidence so admitted (d). If the evidence be not objected to at Nisi Prius, the court will not grant a new trial for its admission (e). The court refused to grant a new trial in the sheriff's court, upon the ground that the under-sheriff refused to allow the defendant's attorney to cross-examine some of the plaintiff's witnesses, it appearing that the cross-examination was not necessary (f). Where an objection is waived at Nisi Prius, even though Objection has the objection be that evidence required by law was not produced, a new trial will not be granted upon that objection (@). In an ejectment by a devisee, it was objected at Nisi Prius or not raised at Nisi Prius. (s) Vacher v. Cocks, 1 B. & Ad. 145. (y) Crease v. Barrett, 1 C., M. & R. 919. (a) Per Parke, B., 1 C., M. & R. 933. (b) Rer v. Grant, 3 Nev. & M. 106. (c) Baron De Rutzen v. Farr, 4 Ad. & El. 53; 5 Nev. & M. 617, S. C.: Doe Tatham v. Wright, 1 H. & W. 799. (d) Horford v. Wilson, 1 Taunt. 12: and see Doe Teynham v. Tyler, 6 Bing. 561; 4 Moo. & P. 377, S. C. (e) Melin v. Taylor, 2 Hodg. 3. (f) Power v. Horton, 3 Hodges, 14. (g) Shirley v. Matthews, 1 Jurist, 57: Melin v. Taylor, 2 Hodg. 3. |