An Essay on New Trials

in fact immaterial, whatever may be the opinion of the witness, though it be false, it is not perjury. The charge was erroneous, and a new trial must be granted."(1)

tent.

In Pennsylvania the rule prevails, and to the same exWalker v. Smith.(2) Rule nisi for a new trial. The court at the trial had laid down, as the rule for estimating the damages, the loss which the plaintiff had sustained by the misconduct of the defendant, in violating his orders. The jury had given only the principal sum due, without interest; and in this and other respects had, as was alleged, disregarded the charge of the court. And, although the motion on this ground was refused, the principle is thus laid down by Washington, J.-" If, indeed, the verdict were against the charge, we would not hesitate to do it, and would continue to do so, as often as such a verdict should be given. For, whilst we always respect and secure to the jury the privileges to which they are entitled, which is to decide upon the facts, we will take care that the rights of the court to decide the law shall never be impaired by the jury; and new trials will be granted so long as the verdicts are against law."(3)

In The Commissioners of Berks v. Ross,(4) on appeal. The action was for debt on bond. There was no dispute about facts, and the charge of the court was in favour of the plaintiffs. But the jury, as another jury had done before, found for the defendants; and Judge Brackenridge, although the verdict was decidedly against his opinion, overruled a motion for a new trial, that it might be heard in bank upon appeal. Tilghman, Ch. J.-"Here is no dispute about facts. There was no discordance or difficulty in the evidence, but two juries have differed from

(1) Vide Olmsted v. Miller, 1 Wendell, 506. Harris v. Wilson, Ibid. 511.

(2) 1 Wash. C. C. Rep. 202.

(3) Et vide, 4 Wash. C. C. Rep. 32.

(4) 3 Binney, 520.

the court in the law resulting from the facts. It is said by all the court, in the case of Goodwin v. Gibbons,(1) that there is no rule of law against granting a new trial after two verdicts. If there was such a rule, there would no longer be any certainty in the law. Principles the most firmly established might be overturned because a second jury were obstinate and rash enough to persevere in the errors of the first, in a matter confessed by all to be properly within the jurisdiction of the court; I mean, the construction of the law arising from undisputed facts. This is a state of things which no man would wish to see. I believe, that in this instance the two juries have erred from a principle of humanity. On one side, they saw a rich county, to whom the object of dispute, though in itself considerable, was not of much moment. other a few unfortunate individuals exposed to ruin. But, when it is reflected that a precedent is about to be set, which may have a pernicious effect on those regulations on which the peace and security of the country depend, I feel it a duty incumbent on the court, to submit the matter to the deliberate consideration of another jury."(2)

On the

So, in Massachusetts. Pierce v. Woodward.(3) Action upon a parol contract not to set up the business of a grocer, within a certain limited distance in the city of Boston. There was much evidence tending to prove, that a principal inducement for the plaintiff to purchase, was the suc ceeding to the business which had been carried on in the same store, and it was proved to the satisfaction of the jury, that in order to induce the plaintiff to purchase, the defendant agreed not to engage in the same business. The jury found for the plaintiff with $100 damages. And on inquiry upon what principle they proceeded, the foreman

(1) 4 Burr. 2108. (3) 6 Pick. 206.

(2) Et vide, 4 Binney, 180.

proven against but one, and a verdict found against both, a new trial was directed, unless the plaintiff discontinued as to the defendant, against whom no conversion was proved.

So, also, in Dinkins v. Debruhl,(1) in an action for an assault and battery, where an actual battery was proven, and there was a verdict for the defendant, it was set aside, the court holding, that the jury could not be permitted to find manifestly against law.

Upon another occasion, the same court recognised the rule in its utmost latitude, saying "It is the province of the court to determine the law, and if juries will take it on themselves, and decide differently from the court, a new trial will be granted, toties quoties.”(2)

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.

In Deerly v. The Dutchess of Mazarine.(3) Upon non assumpsit pleaded, the jury found for the plaintiff, though the dutchess gave evidence of coverture. But the court would not grant a new trial, because there was no reason why the dutchess who lived here as a feme sole, should set up coverture to avoid the payment of her just debts.

So in Sampson v. Appleyard.(4) Trespass quare clausum fregit. The defendant pleaded not guilty, and prescribed for a certain way leading from a common highway, into, through, and over the plaintiff's closes, in which, &c. The plaintiff by his replication traversed the prescription, whereupon issue was joined. At the trial of this cause, the counsel for the defendant having admitted the trespass,

(1) 2 Nott & M'Cord, 85.

(2) 1 S. C. Con. Rep. 328, et vide, 2 Ibid. 103. 169.
(4) 3 Wilson, 272.

(3) 2 Salk. 646.

there can be no certainty in the principles of the law. In cases sounding in damages, which properly come within the province of a jury, the court will seldom or never grant a third trial; or in matters where law and facts are, in a great measure, blended together. But wherever the principles of law are outraged by these verdicts, we ought uniformly to grant a new trial, so as to give the party a chance for justice." A new trial was granted.(1)

So, in Peay ad. Picket.(2) This was an application for dower. The declaration, as usual, stated the marriage and seisin of the husband; issue was joined, and the jury found a verdict for $200 for the plaintiff. A motion was now made to set aside the verdict. Colcock, J., delivered the opinion of the court-"The jury had no power to find such a verdict. The issue submitted to them was whether the demandant was married, and whether her husband was legally seised. The verdict is therefore irregular, and must be set aside. If the jury had found the issue for the plaintiff, a writ of dower would then have been issued to commissioners, whose duty it would have been to have admeasured dower, or assessed a sum of money in lieu thereof, and then it may be made a question, whether she is to be endowed according to the improved value, or according to the value at the time of alienation; but in the proceedings had in this case, the question could not be involved."

And in The State v. Hayward,(3) where there had been a conviction for perjury, and the words stated in the indictment did not, from the face of the indictment, appear to be material, by averment, or by the context of the indictment, or by their own import, judgment was arrested.

And in Bates v. McCarty,(4) in an action of trover against two defendants, where a conversion had been

(1) Et vide, 2 Bay, 23. 133, and 2 Nott & M'Cord, 184.

(2) 1 Nott & M'Cord, 16.

(3) 1 Nott & M'Cord, 546.

(4) 2 Nott & M'Cord, 84.