A treatise on the law of new trials in cases civil and criminal

Front matter

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Cornell University Library KF9002.G731855 •■' A treatise on the law of new trials in c

The original of tliis book is in tlie Cornell University Library.

Preface

The principal object of this work is, to aid tlie junior members of the profession in a branch of practice of daily occurrence. It was thought that, to supply the place of experience to this most interesting portion of the bar, and prepare them with ready materials for almost every emergency, by collecting, arranging and exemplifying the rules regulating new trials, an acceptable service would be rendered to the profession.

It is a singular fact, that while other legal topics, of much less interest to the practitioner; are exhausted by elaborate treatises and digests, without end, the subject of new trials, so intimately connected with the progress of the great mass of causes, should have been, in a great measure, overlooked. The only attempts, devoted professedly to this subject, that have met the author's eye, are Grrant's "Summary," and Morgan's "^Essay ;" the former, a mere syllabus, intermingling brief discussions with occasional examples, confined to a few rules, and to the leading cases in England ; the latter, a mass of precedents without arrangement, Set out in extenso, as found in the reports.

These works, together with the digests on this title of practice, have been carefully examined, but without reference. The examples, being common property, are taken directly from the

Vol I. 1 vi PREFACE.

reports into this work, after having condensed the narratives, and, in many instances, abbreviated the decisions, that nothing extraneous might appear, to embarrass or confound the illustration.

One great object of the work, throughout, has been simplicity. With this view, such rules, only, as have been definitely marked with a sufficiently palpable line of discrimination, have been introduced, carefully avoiding subtle distinctions, the bane of all elementary works. For a similar reason, exceptions have not been multiplied, nor any notice taken of obscure decisions, nor of the dicta, nor obiter opinions of judges, however eminent, nor of their excursive flights of speculation upon ideal cases. However these things might have amused by their novelty, or supplied materials for plausible argument, it was believed they could contribute nothing of real value to the profession.

Following out the idea of simplicity, the plan most likely to accomplish it, appeared to be, to take up the causes for new trials in the natural order in which they arise previous to, upon and after, th'e first trial ; and in order to illustrate each, to state the rule, to. adduce leading cases as examples, from the English^ courts and courts of highest character in this country, in a condensed -form, and to superadd parallel cases, in the same, or in other courts, by way of reference, — not merely to illustrate the rule, but to supply the practitioner with such a profusion of materials, such an imposing mass of authority, as might repel every doubt, and carry conviction into' the breasts of the judges.

Although the work has been executed with special reference to the state of New York, it is hoped it may be found of general utility. The rules it professes to illustrate, the reasons of. those rules, and examples adduced, acknowledge no locality. They

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sTe not to be circumscribed within territorial limits; but were selected without discrimination or preference as to country. The object was, to collect decisions, combining clear argument with high authority, around every succeeding rule. Where both could not be found uniting, and intelligent opinions have ap- |)eared in the reports of courts comparatively obscure, they have ■not for that reason been overlooked.'

It will be perceived that, in some instances, the same cases are introduced more than OHce. In a great proportion of them, more than one point, and -in many instances, several are adjudi- -eated. When re-introduced, -they illustrate, in each instance, a •distinct principle, and are noticed in relation to that principle ^lone, referring for the general narrative of the case to its first introduction.

It may be thought, the author ought to have pledged his own •opinions in doubtful cases, or at least have attempted to reconcile apparently conflicting decisions. This has been studiously avoided, from a conviction that little is to be gained to the profession by the opinions of a writer, where the judges disagree; and that he best discharges his duty to the profession, by confin> ing himself to well established rules. , It might be gratifying to the writer, it is true, to indulge in- metaphysical discussions, upon abstract principles of doubtful operation ; but it is an indulgence at the expense of the understanding of his reader, a mere parade ■of words without power, an arrogant attempt to cut, instead of untwisting, the nodus judice dignus. In the presence of the great oracles of the law, giving out their contradictory or ambiguous responses, a writer probably best consults his own reputation, by silence and submission.

The subject itself is of unbounded extent. It travels into the undiscovered bourne of judicial discretion, whose extent is as un-

Vlll PREFACE.

definable, as the principles by which it professes to be governed are immutable. As far as judicial decisions, in given cases, have been adjudicated, so far it is Reasonably to be expected a work of this kind ought to classify them under their appropriate rules. Beyond this, it is the terra incognita of the profession, where the judge may answer every question as he of Byzantum did the spirited interrogation of the young advocate, " what have the laws ordered in such a case ?" " What I please," was the laconic reply.

To aid in guiding and limiting this discretion, is all the ensuing work contemplates, and upon this, its sole pretensions to merit, if it have any, entirely rest. To what extent it ought to be appreciated, will appear by reflecting that whatever, in the administration of justice, is surrendered to judicial discretion, is conceded to be without law. And what is the substitute ? Let Lord Camden answer. " The discretion of a judge is the law of tyrants ; it is always unknown ; it is different in different men ; it is casual, and depends upon constitution, temper, passion. In the best, it is oftentimes caprice ; in the worst, it is every vice, folly and passion to which human nature is liable."

GOKTEl^TS.

Chapter I. Waitt Op Dub Notice 01 Trial

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1. Justice requires, if Jihere be no notice," or if it be insufficient, there having

been in truth no trial, that the verdict be set aside, unless the defendant have appeared and made his defence, which will be construed into a waiver, ........ 11

2. So, where there are two or more actions depending between the same par-

ties, should the notice of trial be for one case only, and the defendant thereby disconcerted iu preparing his defence, and the plaintiff take a verdict, a new trial will be granted, ..... 14

3. But upon a motion for a new trial, on account of the insufficiency of the no-

tice, the court will inquire whether the defendant could reasonably be misled, and will grant or refuse the motion in their discretion, . . 16

4. Should injustice be done, however, by retaining the verdict, the inquest will

be set aside, and a new trial granted, .... IT

CHAPTER II. FOB IREBGUliABITT IN EMPANNBLma THE JORT

1. The verdict has been set aside where some of the jurors have been noto-

riously deficient in property, or the personal qualifications required by law,

or when personated by others, . ' . . . . 19

2. But, if the juror be qualified in other respects, the verdict will not be set

aside upon the ground of his personating another through misapprehension, wben no injustice has been done, .... 24

3. A variance in the name of one of the jurors, and that whether Christian or

surname, has been held fatal, and a new trial ordered, . . 27

4. And it has been held, that if one of the regular panel be challenged and set

aside, and afterwards be sworn upon the jury as a talesman, especially If the party were ignorant of the fact, a new trial will be granted, . 33

X

CONTENTS'.

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5. It is a' general rule to refuse a new trial for the mistakes or omissions of officers charged with the summoning and erapanneling of the jury where no fraud or collusion is intended, or injury to the parties ensues, . 35

6i The objection to a grand juror, by reason of partiality and dislike, or want of the qualification of property, must.be taken before indictment found, otherwise it would not avail to quash the prooeedmga, much less to set aside the verdict, . . . ... . . 4*

Chapter III

FOR MISCONDUCT Or THE PEBTAILINO PAETT, HIS ASBNTS OB COUNSEL, Oil THE TRIAL.

1. If papers, not previously submitted, be surreptitiously handed to the 'jury,

bearing materially on the point at issue, it will avoid the verdict,. . 45

2. If the party, or any. one on his behalf, directly approach a juror on the sub-

ject of the trial, a new trial will be granted, ... 48

3. But if insidious attempts of this kind be known to, and it be in th« power

of, the other party to have it corrected, and he neglect, the objection will not avail to set aside the verdict, ..... 5^'

4. If indirect measures are resorted to, to prejudice the jury, although the party

may disclaim all knowledge and participation, a new trial will be granted, 54 6. It is a general rule, that all disingenuous attempts to stifle or suppress evidence, or to thwart the proceedings, or to obtain an unconscionable advantage, or to mislead the court and jury, will be defeated, by setting aside the verdict, ......... 5ft

Chapter IV

rOR MISCONDUCT (W THE JUET.

1. If at any time intermediate the opening of the cause and their rendering of

the verdict, the jurors suffer themselves to be approachei ai<i labored by the parties or their agents, and find for that party, their verdict will be set aside, ......... 6$

2. If the jurors receive papers not submitted, or partially submitted in evidence,

the verdict will be set aside, if found for the party committing the irregularity, ......... 66

3. It would appear to follow, bs a necessary inference, that if the jury tako ottt

papers by mistake, but do not read them, and to that they m.-iy be examined, the verdict would not be disturbed, . .... '13.

4. But, however irregular it may be in the jury to carry away papers, without

consent of counsel, under the direction of the court, yet if not furnished by

CONTENTS. Xi

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the prevailing party, and wholly immaterial to the issue, it will not avoid

a verdict, in other respects regular, . . . . . 76

5. It was formerly held, that if the jury separated, after being charged with the

case, and before they rendered their verdict, except by permission of the court and consent of parties, or from, necessity, it avoided their verdict; but the modern rule is "different, . . . . . . 80

6. Upon this poinf the practice in this country appears to have resolved itself

into the exercise of a judicial discretion, confining the motion for a new trial to the questions of abuse, and invariably denying the .application where no injury has ensued, ...... 85

I. But if the jury, before agreeing, have dispersed, whether with or without

leave or consent, and abuse the liberty thus taken or allowed, their ver-- diet will be set aside, and a new trial granted, ... 95

8. Indeed, any act of jurors, who have separated from, or, while in consultation

with their fellows, clearly indicative of a destitution of moral principle, and the absence of a due considersttiou of the solemnity of iheir oath, will avoid the verdict, . . . . . . ' . 100

9. If the jurors, unable to agree, resort to the determination of chance, it will

avoid the verdict. Thus, it has been held to oast or draw lots, to shufSe half-pence in a hat, or play cross and pile, to find a verdict, will avoid it, . . ' . . . . . ... 104

10. But the practice appears to be now generally settled>both in England and this country, to reject the affidavits of jurors inculpating themselves, . Ill

II. But for the purpose of explaining, correcting and enforcing their verdict,

the affidavits of jurors will be received, on motion for a new trial, . 116

12. When the jury render a perverse verdict, or one manifestly the result of prejudice or passion, and especially if they refuse to give their reasons,

the verdict will be set aside, . . . . . 121

13. But the court will not permit affidavits to be received, imputing improper motives to the jury, or tending to impeach their integrity, . . 126

CHAPTER '.v.

BY EBASOW OP A VOrO TEEDICT.

1. If the jury find contrary to the record, the verdict is void, . . 132

2. If the verdict find a matter entirely out of the issue, it is void, . . 135

3. If the jury find only part of the issue, judgment cannot be entered on the

verdict. It is void for the whole, .and a vmire de novo will be awarded, 140

4. If the verdict be defective or imperfect, so that no judgment can be entered

on it, it will be set aside, ...... 145

5. If the jury find a verdict in the alternative, or in terms so imperfect and un-

certain that judgment cannot be entered upon it, the verdict will be set aside, ........ 150

6. An argumentative verdict is void, and will be set aside on motion and a new

trial gran'ed, . . , . . , . -Ibl xii CONTENTS.

CHAPTER VI. NEW TEIALS, OOOASIONBD BY ABSENCE, SUEPEIgE, OE MISTAKE

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1. "When the party or his counsel are absent, through misapprehension or ne-

cessity, and the cause goes to the jury undefended, and there are merits, the court jwiH relieve by setting aside the verdict, . . 162

2. "Where a party or his counsel are taken by surprise, whether Vy fraud or ac-

cident, on a material point or circumstance, "Which could not reasonably have been anticipated, and when want of skill, care, or attention, cannot .be justly imputed, and injustice has been done, a new trial will be granted, ........ 168

3. But, to entitle the party to relief there must be merits, and the surprise

must be such as care and prudence could not provide against. The slightest negligence will defeat the application, or occasion the imposition of rigorous terms, ....... 1'74

4. When, in the progress of the trial, the cause suffers injustice from the honest

mistake of the party or his counsel, relief will be extended by granting a new trial, ........ 180

5. But the court will not relieve the party from the consequences of mere igno-

rance, inadvertence or neglect, by granting a new trial, . . 18?

6. If evidence be not objected to when offered, it will be considered as waived,

and cannot sustain a motion for a new trial, under the pretext of surprise or mistake, ........ 199

Chapter VII. New Trials Oooasioned By The Witnesses

1. The non-attendance of a material witness, or the absence of a material piece

of testimony, contrary to reasonable expectation, and satisfactorily accounted for, will induce the court to set aside the verdict and grant a new triali • • . . . . . .209

2. The sudden indisposition, and the mistake and surprise of witnesses, have

been held grounds for granting or refusing a new trial, according to the circumstances of the ease, ...... 214

3. Neither a direct impeachment of the veracity of the witnesses, nor aflSda-

vils of perjury, nor even an indictment for conspiracy or perjury, unless the case is so gross as to make it probable the verdict was obtained by perjury, or that the false testimony occasioned a surprise upon the party, will be sufficient cause to set aside a verdict and grant a new tri.il, 221

4. Intimately connected with the preceding rule is this, that a new trial will not

be granted, to furnish an opportunity to impeach a witness, upon a subsequent discovery of his interest or turpitude, or general bad character, 228

CONTENTS. xiii

CHAPTER YIII.

KB"W" TRIALS, rOE THE ADMISSION AND REJECTION OF TESTIMONT.

Page.

1. If the judge at the trial decide to admit illegal testimony on the merits,

the verdict will be set aside and a new trial granted, . . 23t

2. If the judge, at the trial, exclude legal testimony on the matter in issue,

the verdict will be set aside, and a new trial granted, . . 252

CHAPTER IX. NEW TRIALS FOR MISDmECTION OP THE JUDGE

1. If the judge at the trial misdirect the jury ■on matters of law, material to the . issue, whatever may be the nature of the case, the verdict will be set

aside and a new trial granted, ..... 262

2. "With a like scrupulous attention to the rules of law that ought to govern

the coarg«, it has been held to be erroneous in a judge to instruct a jury, that they may indulge a presumption not warranted by the evidence disclosed, ........ 211

3. The omission of the judge to charge the jury on questions of law, though

not of itself a reason for granting a new trial ; yet if, in the absence of proper instructions, the jury should err, the verdict will be ,set aside, and a new trial granted, ...... 213

i. If the judge send the case to the jury when he ought to have non-suited,

the verdict will be set aside, ..... 278

5. If the judge give in charge to the jury questions of law, or if, where the

issue consists of a mixed question of law and fact, the judge submits the whole issue to the jury, a new trial will be granted, . . 288

6. In ordinary oases, notwithstandinga misdirection, if the court see that jus-

tice has been done, and that a new trial ought to produce the same result,

a new trial will not be granted, . . . . . 301

1. When the judge interposes his opinion strongly on the facts, and it is to be fairly presumed the influence of his opinion has misled the jury, and injustice follows, the verdict will be set aside, .... 310

8. Where the judge instructs correctly on points of law, a verdict will not be , set aside on the ground of misdirection, although he may casually express his opinion on the evidence, as he proceeds in his charge, . . 311

Chapter X. Verdict Against Law

1, It is a general rule, that if the finding of the jury be clearly against law, the verdict will be set aside and a new trial granted, . . . 326 xiv CONTENTS.

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2. But if justice has been done, the court will not, against the equity of the

case, disturb a verdict upon the ground of a technical objection, . 341

3. Nor will the court set aside the verdict in trifling actions, although the jury-

may have found against law, ..... 347

4. But where an important principle is involved, and the verdict is to be fol-

lowed by serious consequences to the party against whom it is found, if against law, a new trial will be granted, without regard to the amount or any other collateral inatter, . / . . . . . 350

5. It is a general rule, with but few exceptions, that in penal, and what are

denominated hard actions, the court will not set aside the verdict, if for the defendant, although there may -have been a departure from strict law, in the finding of the jury, ...... 353

6. When the plaintiff would be entitled to the benefit of the verdict in another

form of action, the court will not turn him round, by setting aside the verdict upon the ground that he hasr not framed his action with technical precision, ........ 351

CHAPTER XI. VERDICT AUAINST BVrDBNOB

1. Where the case has never, been fully submitted on its merits, or the verdict

is bottomed upon a partial view of the testimony, and, therefore, clearly unjust, it will be set aside, and a new trial granted, . . 362

2. If the verdict be against the weight of evidence, especially if the justice and

equity of the case is not with the verdict, it will be set aside, . 368

3. It is a general rule, that where in weighing the testimony, on a motion to

set aside the verdict as against evidence, they are satisfied the evidence on the side against which the evidence preponderates, was not fully before the jury, they will, for that cause, incline to grant a new trial, that the , cause may be disposed of on its merits, .... 3H

4. But the verdict wiU not be set aside as against evidence, where there has

been evidence on both sides, and no rule of law violated, nor manifest injustice done, although there may appear to have been a pr^onderance of evidence against the verdict, ..... 380

5. A rule closely allied to the preceding, is, that a new trial will not be granted .

on technical or doubtful grounds, especially in unimportant oases, if there be sufficient evidence on the merits to support the finding .of the jury, who are in all such cases the sole constitutional judges, . . . 388

6. In disposing of motions to set aside verdicts and grant new trials, on the

ground of the verdict's being against the weight of evidence, the court will look into the merits, and will not grant the motion, against the equity of the case, . .^ ..... . 398

7. If the case be frivolous in itself, and attended with unimportant results, the.

CONTENTS. XV

Page verdict, although contrary to the weight of evidence, and even to the charge of the judge, will not be set aside, and a new trial granted, . 401

8. When the judge who tries the case expresses himself satisfied with the verdict, although against the weight of evidence, the court will seldom set it aside, and grant a new trial ; on the contrary, when he is dissatisfied, it is almost of course to grant it, . . . . . . 405

Chapter XII. Bt Reason Op The Damaoes

1. In personal torts and actions, generally sounding in damages, it being witbiu

the strict province of the jury to estimate the injury, unless there be a manifest abuse, the court will not interfere, . . . , . 410

2. But even in personal torts, where the jury find outrageous damages, clearly

evincing partiality, prejudice and passion, the court will interfere for the relief of the defendant, and order a new trial, . . . 442

3. In personal torts, and actions sounding la damages, the court will refuse

new trials for smaVness of damages, for the same reasons that prevail on questions of excessive damages. To entitle the application to suoceedj the jury must have clearly manifested an abuse of their powe(r, . 448

4. But in actions where, by reason of the agreement of the parties, or from

other causes, a rea3ona,bly certain measure of damages is afforded, no such latitude is allowed the jury, and the court will look into the circumstances, and grant or refuse a new trial, or correct the verdict themselves,- according to the justice of the case, ..... 453

CHAPTER SIII.

rOK NEWLY DISCOVERED EVIDENOE.

1. The evidence that will induce thi court to set aside the verdict, and grant a new trial, must be new, that is, not" used on the former trial, but discovered newly, or subsequently to the trial, and must be material to the point at issue, so as probably to produce a different result, and the application must be accompanied with sufficient evidence of previous diligence, 463

3. The party applying, on the ground of newly discovered evidence, must make his vigilance apparent ; for if it is left even doubtful that he knew of the evidence, or that he might, but for negligence, have known and produced it, he will not succeed in his application, .... 4T3

3. On motions for new trials on newly discovered evidence, it is a well settled

rule not to grant them, if the evidence is merely cumulative, or in corroboration of testimony, to a point presented at the former trial, . 485

4. Closely allied to the preceding rule, is another, that if tha alleged newly dig-

Xvi CONTENTS.

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covered evidence consists in an attempt to discredit witnesses who testified at the former trial, a new trial will not be granted, . . 496

CHAPTER XIT.

IN HARD ACTIONS.

1. In convictions for felonies, on the gro'ind of irregularity, the court will inter-

fere and grant or refuse a new trial, as may best subserve the ends of justice, . . . . . . . ' . 507

2. In misdemeanors, the court has the aolcnowledged right to grant new trials,

on the merits, as well as for irregularities; but it is held, as a principle of almost universal application, that a verdict for the defendant will not be disturbed, ........ 616

3. In hard actions, a new trial will not be granted, especially if the verdict be

for the defendant, although against evidence. Nor unless some rule of law be violated. Not in actions ex delicto, .... 523

4. In penal actions, unless there be some palpable violation of law, the verdict

will not be set aside, if for the defendant, .... 528

6. The same rule extends to cases in their nature penal, whether the forms of

proceedings be by action or indictment, .... 631

6. But in penal, and oven criminal actions, if the conviction be against law, or

the direction of the judge, being conformable to law, a new trial will be

CHAPTER XV.

AFTER TWO TEIAiS, AND TRIALS AT BAR.

1. It was formerly held, that after a trial at bar, a new trial would not be

granted; but the modern practice knows no distinction, in this particular, between trials at bar and at Msi Prius. They will, in either case, be granted or refused a second time, for the same reasons, . . 538

2. After two concurring verdicts, the court will not grant a neyv trial, if the

question to be tried wholly depend upon matters of fact, and no rule of law violated, although the verdict be against the weight of evidence, 641

3. After two verdicts, whether concurring or contradictory, a new trial will be

refused, if the latter verdict appear, upon the whole, to answer the ends of justice; but if against law, and the justice of the case, the motion will be granted, ........ 6i1

4. But the courts have held, that there is no limit to their discretion in this

respect; and that after two or more trials, whether .concurring or contradictory, they will grant another, and toiies quoties, so long as any settled rule of law is violated, or justice defeated, by the finding of the jury, . . 648

CONTENTS. xvii

CHAPTER XTI.

IN BQUITT, AFTEE TERDICTS ON FEIGNED ISSUES, AND ISSUES AT LAW.

Page

1. Applications to a court of equity, to set aside verdicts at law, or open cases, will be denied, when the party applying fails or omits to present a case of diligence : a rule which will equally apply to feigned issues, . . 560

i. But when the plaintiff iu equity makes a clear ease of fraud and surprise, or subsequent discovery of evidence, or of any cause affecting the merits of which it was not possible he could have availed himself at the trial below, the court has granted a new trial, ..... 573

S. The object of issues, directed out of Chancery, being to inform the conscience of the court, if the-verdiot of the jury prove satisfactory, although the rules of strict law, in the admission or rejection of evidence, or directions to the jury, may not have been complied with, a new trial will be refused, . . . . . . . . . .619

4. If the verdict on the feigned issue be decidedly unsatisfactory to the

judge who tried the cause, or the court who directed the issue, it is a matter of course to order a new trial, and toties quoties, although no rule of law may have been violated, nor the flndingof the jury against the weight of testimony, ......... 589

5. When the feigned issue is directed out of Chancery, the application for a new

trial must be made to that court. It is intended to inform and to satisfy the court, and of this no other court can be the judge, . . i . 694