information of seizure of Jesuit's bark, on the statute for fraudulent exportation of Jesuit's bark, two casks out of six being dust. There was a verdict for the defendant, and now a motion was made for a new trial. But, Per totam Curiam, it was denied; however, it seemed to be admitted in a case of this nature, a new trial might be granted, if the fact would have admitted of it, and the counsel for the plaintiff were prepared with precedents, if they had been called for, to that purpose.(1)

In Fonereau v. Bennett, (2) an action upon the statute against bribery, there was a verdict for the defendant. Forster moved for a new trial, as being against evidence. But, Per totam Curiam.-" We never grant new trials in actions on penal laws, and it has been so held for more than fifty years past."(3)

So, in Ranston v. Etteridge,(4) where the verdict was for the defendant, in an action against a postmaster, for penalties. Raine moved to set aside the verdict, and have a new trial. He admitted the general rule, that where the defendant has obtained a verdict in a penal action, a new trial will not be granted; but this case was attended with particular circumstances. The conduct of the jury may be more outrageous and mischievous than the judge's misdirection; and it is not laid down generally and exclusively, that a new trial will be granted in no case, except for a misdirection. The court had never said that a new trial should not be granted, for such an error as that of which the jury had been guilty. He was about to enter upon the facts, but Abbott, Ch. J., said that there was a preliminary objection, which should be disposed of first. He referred to Brook v. Middleton,(5) and observed, that the doctrine

(1) Vide supra, 334.
(3) Et vide 10 East, 268.
(5) 1 Campb. 450.

(2) 3 Wils. 59.

(4) 2 Chitty's Rep. 273.

held in that case had not been adopted without consideration. Without saying that the hands of the court are in all cases tied down, his lordship added, that the court will not interfere, without express proof of misconduct in the jury.

In Comfort v. Thompson, (1) the rule was recognised in an action for a penalty before a justice. It was held, that where a verdict is found, and judgment given for the defendant, the court will not reverse the judgment, because the verdict was clearly against evidence, there being no irregularity alleged.

So in Steel, qui tam, v. Roach.(2) Information filed on the revenue laws, and verdict for the defendant. A motion was afterwards made for a new trial; but the court, after full argument, discharged the rule, upon the ground of this being a qui tam, or penal action, in which the court will seldom grant a new trial, as this kind of penal actions was considered hard and rigorous.

5. The same rule extends to cases in their nature penal, whether the forms of proceedings be by action or indictment, as in the case of not repairing a highway.

Rex v. Parish of Silverton.(3) Indictment for not repairing the highway, and a verdict for the parish. It was now moved for a new trial, for misdirection, or overruling evidence at the trial, by reason whereof the parish were unduly acquitted. Per Curiam.-"This is a criminal case; and new trials are never allowed, where the defendant is acquitted, in a criminal case. So, also, it is in qui tam's, and informations in nature of quo warranto's."

So in Rex v. Edwards.(4) A motion, in a criminal case, was put off, till the validity of a rate should be tried

(1) 10 Johns. Rep. 101. Supra, p. 397. (3) 1 Wils. 298.

(2) 1 Bay, 63.

(4) 4 Burr. 2257.

in a feigned issue, "whether it was an equal or partial one." A verdict having passed for the defendant upon the issue, Dunning moved for a new trial, the verdict having been given contrary to evidence. But the court were clear against granting the motion, because it was within the same reason as if it had been in a criminal prosecution; for, as this issue was directed in order to know whether this was an illegal and partial rate; if it had been found to be partial, the consequence would have been, either an attachment or an information. It was just the same thing as if it had been a verdict found for the defendant, upon an information; and if it had been upon an information, the court would not have set aside the verdict, and granted a new trial, although the acquittal had been contrary to the weight of the evidence.

So, a new trial was refused in The King v. Reynell.(1) This was an indictment for the non-repair of the fences of a church-yard, which it was alleged that the vicar had been immemorially bound to repair; by means of which, swine and other cattle broke in and rooted up the tombstones, and dirtied the porch of the church and the paths leading to it, to the nuisance of the inhabitants of the parish. At the trial, there was a verdict for the defendant, which Marryat moved to set aside, and to have a new trial, upon the ground that the verdict was against all the evidence. He admitted, however, that he had not been able to find any precedent, where the court had granted a new trial in case of a misdemeanor, where the verdict was for the defendant; but he contended, that this was in effect only a trial of a civil right, namely, the liability to repair, though in the form of an indictment, there being no other mode of trying the right in a case of this sort. But, per Lord Ellenborough, Ch. J.-"It is very clear, that you may indict the defend

(1) 6 East, 315.

ant again, if the fences have continued out of repair since the last indictment; and that is much better than for us, in a case of such minor consequence, to make a precedent of so much importance, which may affect other cases of misdemeanors."

And in Rex v. Mann,(1) a new trial was refused, after verdict for defendant, upon not guilty to an indictment for a nuisance to a highway. And, per Lord Ellenborough, Ch. J.-"Unless you can point out some distinction between the case of nuisance and other criminal cases, the general rule is, that we do not grant a new trial upon an indictment for a misdemeanor, where a verdict has passed for the defendant upon the merits. This is, to be sure, in the nature of a remedy for a civil right; yet it is, in form, a criminal proceeding, and may subject the defendant to be punished criminally." And his lordship referred to Rex v. Reynell.(2)

In cases of quo warranto, it was at one time doubted, whether the court could interfere, and in The King v. Bennett,(3) argued before all the judges of England, they stood equally divided on that question.

The case of Rex v. Bell,(4) went off upon another point. It was an information, in nature of a quo warranto, brought against the defendant, to show by what authority he claimed to be a common-council-man of Marlborough; and there was a verdict for the defendant. The prosecutor moved for a new trial, as being a verdict against evidence, and referred to the report of the judge, and insisted he was not too late, there being no judgment yet signed. But the court would not suffer the merits of the motion to be gone into, on account of the length of time since the verdict, it

(1) 4 Maule & Sel. 337. (3) 1 Str. 101.

(2) 6 East, 315.

(4) 2 Str. 995.

being possible that many men's rights might depend on the validity of this man's vote, which the corporation was bound to admit, after a verdict establishing his right; and it would be much less mischief to let this verdict stand, supposing it to be wrong, than introduce a general incon

venience.

But in Rex v. Francis,(1) a verdict having been found for the defendant, in a quo warranto information, to show by what authority he claimed the office of alderman of Cambridge, a new trial was moved for, on the ground that the verdict had been given against the weight of evidence. The court granted a new trial, saying, that of late years a quo warranto information had been considered merely in the nature of a civil proceeding, and that there were several instances since the case in Strange, in which a new trial had been granted.(2)

Another exception to the rule in England, is illustrated in Lord Selsea v. Powell,(3) being an action of debt on the statute, for not setting out tithes, on the ground that, although prosecuted as a penal action, it is founded on an act intended to be remedial.

6. But in penal, and even criminal actions, if the conviction be against law, or the direction of the judge, being conformable to law, a new trial will be granted. (4) Thus,

In Wilson v. Rastall.(5) An action on the bribery act, and verdict for defendant. Upon an application for a new trial, it was at first doubted by the court whether there was any instance of a new trial having been granted on a penal action, where the defendant had a verdict. But after a

(1) 2 Term Rep. 484.

(3) 6 Taunt. 297.

(5) 4 Term Rep. 753.

(2) Et vide 1 Term Rep. 575. (4) Vide supra, 334.

Supra, 263. 396.