which directed the issue. A motion for a new trial, in an CHAP. XXVII. action brought in the Common Pleas at Lancaster, must be made in the court in which the judge sits who presided at the trial (i). By whom Applied for.] The motion may, in general, be By whom apmade by the party who has been aggrieved by the first trial; plied for. but when the action is against several defendants, the application should be made on the behalf of all of them; and, therefore, when one defendant was found guilty and the other acquitted, it was holden that the former could not have a new trial (k). So, in trespass against several, where the verdict was contrary to evidence as to one of them, a new trial was refused (1). But in an action on the case against seventeen defendants, two suffered judgment by default; fifteen pleaded the general issue: plaintiff entered a nolle prosequi against one of the two, obtained upon a writ of inquiry a verdict for 9007. against the other, and the jury found their verdict in favour of the fifteen. The verdict as to five of the fifteen being unwarranted, the Court of Common Pleas granted a new trial against them, leaving the verdict against the others, and against the defendant, who suffered judgment by default, undisturbed (m). At what Time The Motion and Rule for.] The motion for the rule nisi must The Motion be made within four days after the distringas is returnable, if the and Rule for. cause be tried in term; or if the cause be tried in vacation, then to be made. within the first four days of the term next after the trial (n); unless under particular circumstances (o), in which case the court may, in their discretion, allow a new trial to be moved for at any time before judgment has been actually signed (p). The four days are reckoned inclusive of the first and last day, but Sunday, though not the last, is not reckoned one (g), nor is any other day on which the court do not sit (r). `If the cause be tried at the sittings in term, a new trial may be moved for any time within four days after the return of the distringas, although more than four days have elapsed since the trial (s). If there be not so many as four days in the term after the return of the distringas, then it would seem that the motion must be made on or before the last day of the term (t). This rule, as to the moving within the four days after the distringas is returnable, is rigidly adhered to; and although, when counsel cannot be heard on all the motions within the first four days, it is now of course on the fourth day of Michaelmas and Easter terms, at the rising of the court, to allow those that cannot be heard within the time to be inserted in the list, and to be heard within the fifth and (i) Foster v. Jolly, 1 C., M. & R. 703. (k) Parker v. Godin, 2 Str. 814: Bond v. Sparke, 12 Mod. 275: but see Rer v. Mabey, 6 T. R. 638: and see Cooper v. South, 4 Taunt. 802. (1) Sir Charles Berrington's case, 3 Salk. 362. (n) Kirkham v. Marter, 2 B. & Ald. 613; 1 Chit. Rep. 382: Mason v. Clarke, 1 C. & J. 411: 1 Dowl. 288, S. C.: Birt v. Barlow, 1 Doug. 171: Rer v. Holt, 5 T. R. 436: Lee v. Carlton, 3 Id. 642. (0) Birt v. Barlow, 1 Doug. 171. In Thomas v. Edwards, (2 Dowl. 664; 1 C., (p) Rex v. Gough, 2 Doug. 797: and see (9) Tidd, 9th ed. 912: Kirkham v. Marter, 1 Chit. Rep. 382; 2 B. & Ald. 613, S. C. (r) Bromley v. Foster, 1 Chit. Rep. 562. (8) Mason v. Clarke, 1 Dowl. 288; 1 C, & J. 411, S. C. (t) See Kirkham v. Marter, 2 B. & Ald. 613; 1 Chit. Rep. 382, S. C. BOOK IV. PART I. Not after Mo successive days (u); yet the court censure any delay in moving for a new trial even to the last of the four days, and have expressed a wish that the motions, when practicable, should be made on the first and second days. And in Hilary term, 1828, Lord Tenterden, C. J., said, that the Court of King's Bench wished it to be understood, that for the future, in Hilary and Trinity terms, the court would not hear any motion for a new trial unless such motion were actually made within the first four days of the term; and that even if counsel were instructed within the first four days, and there should not be time to hear them on the fourth day, the court would not hear them afterwards; and in such cases the parties could only blame themselves for not instructing their counsel sufficiently early (x). In the Common Pleas there is also a rule of Easter term, 2 G. 4, that "in Hilary and Trinity terms, no motion for a new trial shall be heard, unless such motion be actually made within the first four days of each of the said terms." And, in general, the motion for a new trial must be made in that court within the first four days of the term, if the cause be tried in vacation; and cannot be received after the four days, unless where the foundation for the motion is a fact not disclosed to the party till after that time (y). In the Exchequer there is also a rule, that motions for new trials must be made within the first four days of term (~). The motion cannot be made after the four days, even though the parties consent thereto (a). Where a rule for a new trial having been moved for by mistake in the Queen's Bench instead of the Exchequer, and the mistake not having been discovered until after the first four days of the term had elapsed, the Court of Exchequer, under the circumstances, allowed the motion to stand good as of that court (b). Where a motion for a new trial is by accident delayed beyond the four days, notice ought to be given to the other side, otherwise the expense of intermediate proceedings will fall on the party delaying to move(c). And where a notice for a new trial is made after the first four days of the term, by leave of the court, granted in consequence of the press of business, notice should be given to the opposite party, otherwise it would be regular to sign judgment on the fifth day (d). As to motions for new trials, in trials before the sheriff, see ante, Vol. I. 298. A new trial cannot in general be moved for, after a motion tion in Arrest in arrest of judgment (e); and the usual and proper course is, of Judgment. in cases where there may be a ground for moving in arrest of judgment, to move, at the time of moving for a new trial, in arrest of judgment also (e). It should seem, indeed, that the practice requiring the motion for a new trial to be made before that in arrest of judgment, extends only to cases where the party has knowledge of the fact at the time of moving in arrest of judgment, and therefore a new trial was granted after (u) 3 C. & P. 111 a: Tidd's Sup. 159: 382: Rex v. Holt, 5 T. R. 436. Chit. Sum. Prac. 189. (a) 3 Carr. & P. 111 a. (V) Willis v. Bennett, Barnes, 443: Reynolds v. Simonds, Id. 446; Pr. Reg. 410, S. C. (2) See 3 Leg. Obs. 43: Tidd's New Pract. 542. (a) Kirkham v. Marter, 1 Chit. Rep. (b) Piggott v. Kemp, 2 Dowl. 20. (c) Lester v. Lazarus, 4 Dowl. 444. (d) Doe Duncan v. Edwards, 7 Dowl 547. (e) Philpot v. Page, 4 B. & C. 160; 6 D. & R. 281, S. C.. Tubervil v. Stamp, 2 Salk. 647. such motion, on an affidavit that the jury drew lots for Chap. XXVII. their verdict (ƒ). The motion for a new trial cannot be made after error Nor after brought. brought by the party making the application (g). Nor after Error, &c., a bill of exceptions has been tendered on the same point of law, unless the party consent to waive the bill of exceptions (h). cate for im We have seen (ante, Vol. I. 331) that by the 1 W. 4, c. 7, After Certifis. 2, the judge who tried the cause has power to certify that, mediate Exein his opinion, execution ought to issue forthwith, or on cution. some day to be named in such certificate, though before the next term; but that the 4th section still leaves the party affected by such certificate the right to apply to the court to set aside the judgment and execution, or stay the same, and to arrest the judgment, or grant a new trial. You should, in a case of this nature, make an affidavit, fully stating the facts, and move the court as soon as possible (i). tion on fresh After a rule nisi for a new trial has been granted on cer- Second Motain points, it is irregular to make another motion upon points. another point, respecting the same cause, to come on at the same time (j). Any affidavits to be made use of in moving for it must also Affidavits in be sworn within the four days above mentioned, unless the Support of. special permission of the court to the contrary be obtained (k). It should also be observed, that the affidavits must in all cases be made before obtaining the rule nisi; and this rule is strictly adhered to. We have already seen, that the court will not receive the affidavit of a juror impugning the verdict(); nor will they receive affidavits as to the admissions of jurymen to the same effect (m). new Trial Rule. Inasmuch as the granting of the rule nisi for a new trial When put in suspends the judgment and execution, and occasions an accu- papers; or mulation of the heavier description of business, the court merely as a (unless the judge who tried the cause has expressed a strong opinion in favour of the application) will in the first instance invariably examine the grounds of the motion, and refuse it, unless there is a probable ground to expect that the rule will ultimately be made absolute. If the ground of the application is an irregularity in the proceeding, or on account of surprise, or the absence of counsel or attorney, or other mere practical point, the court will direct that the rule nisi shall not be placed in the new trial paper, but come on for discussion as a common rule. But where the case requires the report of the judge who tried the cause to be read, then the rule nisi will come on in the new trial paper, on particular days set apart for discussion of that description of business (n). Rule Nisi, how drawn up and brought When the court have granted the rule nisi, draw it up with one of the masters (0); and serve a copy of it upon the attorney or agent of the opposite party. A rule nisi for a new on for Argutrial obtained and served by an attorney, different from the ment, &c. (f) Bull. N. P. 326: Tidd, 913. n., contra. (h) Ante, 1089. (i) Chit. Sum. Prac. 193. Robertson v. Barker, 2 Dowl. 39: see as to amending the rule nisi, Lopez v. De Tastet, 8 Taunt. 712. (k) R. T., 5 G. 4: 4 D. & R. 836: 3 B. & C. 176. (b) R. v. Wooller, 6 M. & Sel. 366: Bridgwood v. Wynn, 1 H. & W. 574: ante, 1091. (m) Davis v. Taylor, 2 Chit. Rep. 268: Straker v. Graham, 7 Dowl. 223; 4 M. & W. S. C. ante, 1091. (n) Chit. Sum. Pract. 192. (0) See a form of rule nisi, stating the grounds of motion, Chit. Forms, 622. BOOK IV. The Argument, &c. What Terms imposed. attorney on record, without an order to change, cannot be considered as a nullity (p). Then, before the time of shewing cause, if the action were tried in London or Middlesex, deliver a note in writing (q) at the house or chambers of the Lord Chief Justice, "specifying the name of the cause, and the time and place where the same was tried, together with the nature of the motion" (R. M., 40, G. 3); and if tried by any of the puisne judges, some intimation should be given to his clerk, of the rule nisi having been granted, at least the evening before the case is to be argued. If the cause were tried in any other county, by a judge of this court, mention to his clerk that the rule nisi has been granted, and the judge will take care to have his notes and minutes of evidence in court when the case is called on; if tried by a judge of another court, serve a copy of the rule nisi on his clerk, who will thereupon deliver the judge's report of the trial to the junior puisne judge of the court in which the action is pending. If the cause was tried before the sheriff, &c., under the 3 & 4 W. 4, c. 42, see the mode of application pointed out ante Vol. I. 298. Deliver to your counsel one of the briefs in the orignal cause, together with such further instructions and observations as you may think fit; you may learn from the paper of causes at the office of the masters the day the case will be argued. When the case is called on, the judge who tried the cause, or, if it were tried by a judge of another court, the junior puisne judge, will read his report of the trial; after which the counsel on the opposite side shew cause against the rule; the counsel for the party who moved for the rule nisi speak in support of it, and the court then state their opinion, and either discharge the rule, or make it absolute. The court will look only to the judge's report for the evidence given at the trial, and the manner in which the judge summed up the case, (if that be stated in it), and will not attend to any contrary statement of them by counsel, or even by affidavit (r). The Court of Queen's Bench may look at the record in discussing a motion for a new trial, although the rule is not drawn up on reading it; in the Common Pleas the rule is drawn up on reading the record (s). It may be added, that though the motion be for a nonsuit, yet the court may remodel the rule, and grant a new trial instead of allowing a nonsuit to be entered (†). If the court make the rule absolute, they may do so upon terms, if necessary; such as, that witnesses infirm or going beyond sea may be examined upon interrogatories, or that their evidence may be read from the judge's notes of the first trial (u); that certain deeds, books, papers, &c., may be produced at the trial; that certain facts, not intended to be litigated, may be admitted (v); or that the party may make discovery of certain facts upon oath, in order to prevent the necessity of having recourse to a court of equity for it. Where an action was carried on by a bankrupt for the benefit of his creditors, the court refused to grant a new trial, (p) Doe Bloomer v. Branson, 6 Dowl. (g) See form, Chit. Forms, 623. (s) Sherry v. Oke, 3 Dowl. 349; 1 H. & & Wels. 391. (t) Higgins v. Nichols, 7 Dowl. 551, (u) Anon., 2 Chit. 425. (v) See Thwaites v. Sainsbury, 7 Bing. 437: but this cannot be done where the new trial is a matter of right. (Mahong v. Frasi, 1 Cr. & M. 325; 1 Ďowl. 70, S. C.) unless the assignees would consent to be bound by the event CHAP. XXVII. of the action, and to be responsible for the costs (x). Where the plaintiff has died after verdict, the court may grant a new trial, on the application of the defendant, on the same grounds on which a new trial may be granted in other cases, and will, in such case, impose terms on him to prevent his taking advantage of the plaintiff's death (y). Where a rule nisi for a new trial is granted on the terms of bringing the amount of the verdict into court, the money must be brought in before the rule nisi is drawn up (2). It is the practice to allow amendments to be made, on Amendment terms, after the trial, where the justice of the case requires after Trial. it (a). (See post, Chap. 30). on Rule abso lute. If made absolute, draw up the rule with one of the masters (b), Proceedings and serve a copy on the plaintiff's attorney or agent; or, if made absolute upon payment of costs, get an appointment on the rule from the master, and serve a copy of the rule and appointment. Get the costs taxed, and pay them without delay; otherwise the opposite party may move to discharge the rule for a new trial, and that he may be at liberty to sign judgment. Where a plaintiff, after setting aside a nonsuit upon payment of costs, proceeded to a second trial without paying these costs, and obtained a verdict, the court set aside the verdict, and gave the defendant leave to sign his judgment in the original action, unless the costs should be paid within ten days (c). If the rule be discharged, sign judgment and tax your costs, On Rule disas in ordinary cases. 3. The new Trial. charged. The party obtaining the rule is not bound to proceed to 3. The New the new trial in any limited time (d). Trial. The former Nisi Prius record will answer, unless the postea Nisi Prius have been indorsed upon it, in which case you must make Record, &c. out a new Nisi Prius record: if you use the former record, the jurata must be altered in the same manner as when the cause is made a remanet (e). Give notice of trial, sue out jury process, and enter your cause for trial, as in ordinary cases. cord after. The second verdict alone appears upon the postea. Also, Entry on Reupon the judgment roll, no notice is taken of the first verdict, but the record proceeds as if the second verdict was the only one that was given (ƒ). viso. If the plaintiff do not proceed to the second trial, the de- Trial by Profendant may carry down the record by proviso; but he cannot do so until after the next term or assizes from that in which the new trial was granted (g). And in case the plaintiff neglects to try the cause after a new trial has been granted, (x) Noble v. Adams, 7 Taunt. 59. (y) Griffiths v. Williams, 1 C. & J. 47; and a case in Q. B. there cited. (z) Clare v. Frestal, 2 Dowl. 617. (a) Tomlinson v. Blacksmith, 7 T. R. 132: Wilder v. Handy, 2 Str. 1151: Marshall v. Riggs, Id. 1162: Dennis v. Edwards, Comb. 4. When not, see Price v. Severn, 7 Bing. 402; 5 Moo. & P. 250; 1 Dowl. 215, S. C. (b) See Lopez v. De Tastet, 8 Taunt., 712; 7 Moore, 120, S. C. (c) Nicholls v. Bozon, 13 East, 185; see Hullock, 401. (d) Buckley v. Hollis, T. T. 1815; Tidd, 9th ed. 917, S. C. (e) See Vol. I. 260: and see Harper v. Dary, 1 Ld. Raym. 510; Carth. 498, S. C. (f) 2 Saund. 253 a, n. (8). (g) Staffordshire and Worcestershire Canal Company v. The Trent and Mersey Canal Company, 5 Taunt. 577. |