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CHAPTER THE TWENTY-FOURTH.

OF JUDGMENT, AND IT'S INCIDENTS.

In the present 5 chapter we are to consider the transactions in a cause, next immediately subsequent to arguing the demurrer, or trial of the issue.

If the issue be an issue of fact; and, upon trial by any of the methods mentioned in the two preceding chapters, it be found for either the plaintiff or defendant, or specially; or if the plaintiff makes default, or is nonsuit; or whatever, in short, is done subsequent to the joining of issue and awarding the trial, it is entered on record, and is called a postea. The substance of which is, that postea, afterwards, the said plaintiff and defendant appeared by their attorneys at the place of trial; and a jury, being sworn, found such a verdict; or, that the plaintiff after the jury sworn made default, and did not prosecute his suit; or, as the case may happen. This is added to the roll, which is now returned to the court from which it was sent ;* and the history of the cause, from the time it was carried out, is thus continued by the postea.

Next follows, sixthly, the judgment of the court upon what has previously passed; both the matter of law and matter of fact being now fully weighed and adjusted. Judgment [387] may however for certain causes be suspended, or finally arrested: for it cannot be entered till the next term after trial had, and that upon notice to the other party. So that if any defect of justice happened at the trial, by surprize, inadvertence, or misconduct, the party may have relief in the court above, by obtaining a new trial; or if, notwithstanding the issue of fact be regularly decided, it appears that the 5 Previously, "following." † Cited, 23 Ga, 497; 2 N. H. 328. *Cited, 23 Ga. 497.

complaint was either not actionable in itself, or not made with sufficient precision and accuracy, the party may supersede it, by arresting or staying the judgment.*

1. Causes of suspending the judgment by granting a new trial,† are at present wholly extrinsic, arising from matter foreign to or dehors the record. Of this sort

are want of notice of trial; or any flagrant misbehaviour of the party prevailing towards the jury, which may have influenced their verdict; or any gross misbehaviour of the jury among themselves: also if it appears by the judge's report, certified to the court, that the jury have brought in a verdict without or contrary to evidence, so that he is reasonably dissatisfied therewith; or if they have given exorbitant damnages; or if the judge himself has misdirected the jury, so that they found an unjustifiable verdict; for these, and other reasons of the likę kind, it is the practice of the court to award a new, or second trial. But if two juries agree in the same or a similar verdict, a third trial is seldom awarded: for the law will not readily suppose, that the verdict of any one subsequent jury can countervail the oaths of the two preceding ones.

The exertion of these superintendent powers of the king's courts, in setting aside the verdict of a jury and granting a new trial, on account of misbehaviour in the jurors, is of a date extremely antient. There are instances, in the year books of the reigns of Edward III., Henry IV.,' and Henry VII.,s of judgments being stayed

b Law of nisi prius. 303, 4.

c Comb. 357.

d 6 Mod. 22. Salk. 649.

Bro. Abr. t. verdite. 17.
Bro. Abr. t. enquest. 75.
Bro. Abr. t. verdite. 18.

e 24 Edw. III. 24.
f 11 Hen. IV. 18.
g 14 Hen. VII. 1.
*-* Quoted, 2 Minn. 282.
+ Cited. 7 Conn. 439, 448.
2-2 Quoted, 19 Ga. 6.
| Cited, 19 Conn. 88.

3 BLACKST.-44.

(even after a trial at bar) and [388] new venire's awarded, because the jury had eat and drank without consent of the judge, and because the plaintiff had privately given a paper to a juryman before he was sworn. And upon these the chief justice, Glynn, in 1655, grounded the first precedent that is reported in our books for granting a new trial upon account of excessive damages given by the jury: apprehending with reason, that notorious partiality in the jurors was a principal species of misbehaviour. A few years before, a practice took rise in the common pleas, of granting new trials upon the mere certificate of the judge (unfortified by any report of the evidence), that the verdict had passed against his opinion; though chief justice Rolle (who allowed of new trials in case of misbehaviour, surprize, or fraud, or if the verdict was notoriously contrary to evidence*) refused to adopt that practice in the court of king's bench. And at that time it was clearly held for law,' that whatever matter was of force to avoid a verdict, ought to be returned upon the postea, and not merely surmised to the court; flest posterity should wonder why a new venire was awarded,† without any sufficient reason appearing upon the record. But very early in the reign of Charles the second new trials were granted upon affidavits; and the former strictness of the courts of law, in respect of new trials, having driven many parties into courts of equity to be relieved from oppressive verdicts, they are now more liberal in granting them: the maxim at present adopted being this, that (in all cases of moment) where justice is not

h Styl. 466.

i Ibid. 138.

m

k 1 Sid. 235. Styl. pract. Reg. 310, 311. edit. 1657.

1 Cro. Eliz. 616. Palm. 325, 1 Brownl. 207.

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done upon one trial, the injured party is entitled to another."*

Formerly the principal remedy, for reversal of a verdict unduly given, was by writ of attaint; of which we shall speak in the next chapter, and which is at least as old as the institution of the grand assise by Henry II.,o , in lieu of the Norman trial by battel. Such a sanction was probably thought [389] necessary, when, instead of appealing to providence for the decision of a dubious right, it was referred to the oath of fallible or perhaps corrupted men. Our ancestors saw, that a jury might give an erroneous verdict; and, if they did, that it ought not finally to conclude the question in the first instance: but the remedy, which they provided, shews the ignorance and ferocity of the times, and the simplicity of the points then usually litigated in the courts of justice. They supposed that, the law being told to the jury by the judge, the proof of fact must be always so clear, that, if they found a wrong verdict, they must be wilfully and corruptly perjured. Whereas a juror may find a just verdict from unrighteous motives, which can only be known to the great searcher of hearts and he may, on the contrary, find a verdict very manifestly wrong, without any bad motive at all; from inexperience in business, incapacity, misapprehension, inattention to circumstances, and a thousand other innocent causes. But such a remedy as this laid the injured party under an insuperable hardship, by making a conviction of the jurors for perjury the condition of his redress.

The judges saw this; and 'therefore very early, even upon writs of assise, they devised a great variety of distinctions; by which an attaint might be avoided,

n 4 Burr. 395.

o Ipsi regali institutimi eleganter inserta. (Glanv. 1. 2 c. 19.)

7 Previously, “only."

- Quoted, 2 Pen. (N. J.) 579: 4 Am. Dec. 390; 49 N. H. 589. Cited paragraph on history of new trial, 79 Me. 217.

'and the verdict set to rights in a more temperate and dispassionate method.p* Thus if excessive damages 'were given, they were moderated by the discretion of the justices. And, if either in that, or in any other instance, justice was not completely done, through the error of either the judge or the recognitors, it was remedied by certificate of assise, which was neither more nor less than a second trial of the same cause by the same jury. And, in mixed or personal actions, as trespass and the like (wherein no attaint originally lay), if the jury gave a wrong verdict, the judges did not think themselves warranted thereby to pronounce an iniquitous judgment; but amended it, if possible, by subsequent inquiries of their own: and, if that [350] could not be, they referred it to another examination. When afterwards attaints, by several statutes, were more universally extended, the judges frequently,' even for the misbehaviour of jury men, instead of prosecuting the writ of attaint, awarded a second trial: and subsequent resolutions, for more than a century past, have so amplified the benefit of this remedy, that the attaint is now as obsolete as the trial by battel which it succeeded and we shall probably see the revival of the one as soon as the revival of the other. And here

I cannot but admiret the wisdom of suffering time to bring to perfection new remedies, more easy and beneficial to the subject; which, by degrees, from the ex

p Bracton. l. 4. tr. 5. c. 4.

q Ibid. tr. 1. c. 19. 8.

r Ibid. tr. 5. c. 6. 2. F. N. B. 181. 2 Inst. 415.

s Si juratores erraverint, et justiciarii secundum eorum dictum judicium prountiaverint, falsam faciunt pronuntiationem; et ideo sequi non debent eorum dictum, sed illud emendare tenentur per diligentem era minationem. Si autem dijudicare nesciant recurrendum erit ad majus judicium. Bract. l. 4. tr. 5. c. 4. ¿ 2.

t See pag. 268.

7 Previously, "extended." From the second line of the para graph down to the word "frequently" was first added in the seventh edition..

t-*Quoted, 49 N. H. 589.

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