An Essay on New Trials - David Graham (Jr.) - Google 도서

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It will be perceived that, in some instances, the same cases are introduced more than once. In a great proportion of them, more than one point, and in many instances, several are adjudicated. When re-introduced, they illustrate, in each instance, a distinct principle, and are noticed in relation to that principle alone, 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 confining 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 sub

mission.

The work, it is to be feared, abounds with defects. An original production, comparatively free from blemish, would have required an uninterrupted devotion to the subject, altogether incompatible with the active duties of an arduous profession. This, however, is not the only reason. The subject itself is of unbounded extent. It travels into the undiscovered bourne of judicial discretion, whose extent is as undefinable, 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 Byzantium 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."

CONTENTS.

WANT OF DUE NOTICE OF TRIAL.

1. Justice requires, if there 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,

2. So, where there are two or more actions depending between

the same parties, should the notice of trial be for one case

only, and the defendant thereby disconcerted in preparing

his defence, and the plaintiff take a verdict, a new trial

will be granted,

3. But upon a motion for a new trial, on account of the insuffi-

ciency of the notice, the court will inquire whether the

defendant could reasonably be misled, and will grant or

refuse the motion in their discretion,

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

the inquest will be set aside, and a new trial granted,

FOR IRREGULARITY IN EMPANNELING THE JURY.

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

have been notoriously 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, when no injustice has

B

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

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 igno-

rant of the fact, a new trial will be granted, .

5. It is a general rule to refuse a new trial for the mistakes or

omissions of officers charged with the summoning and em-

paneling of the jury where no fraud or collusion is intend-

ed, or injury to the parties ensues,

6. 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 proceedings, much less to set aside the

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333

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FOR MISCONDUCT OF THE PREVAILING PARTY, HIS AGENTS OR

COUNSEL, ON THE TRIAL.

1. If papers, not previously submitted, be surreptitiously hand-

ed to the jury, bearing materially on the point at issue, it

will avoid the verdict, .

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

juror on the subject 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 the power of, the other party to have it corrected, and

he neglect, the objection will not avail to set aside the

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

although the party may disclaim all knowledge and par-

ticipation, a new trial will be granted,

5. 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,

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FOR MISCONDUCT OF THE JURY.

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

their rendering of the verdict, the jurors suffer themselves

to be approached and laboured by the parties or their agents,

and find for that party, their verdict will be set aside,

2. If the jurors receive papers not submitted, or partially sub-

mitted in evidence, the verdict will be set aside, if found

for the party committing the irregularity,

3. It would appear to follow, as a necessary inference, that if

the jury take out papers by mistake, but do not read them,

and to that they may be examined, the verdict would not

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 the prevailing party, and

wholly immaterial to the issue, it will not avoid a verdict,

in other respects regular,

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

charged with the case, and before they rendered their ver-

dict, except by permission of the court and consent of par-

ties, or from necessity, it avoided their verdict; but the

modern rule is different,

6. Upon this point 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 question of abuse,

and invariably denying the application where no injury

7. But if the jury, before agreeing, have dispersed, whether

with or without leave or consent, and abuse the liberty thus

taken or allowed, their verdict will be set aside, and a new

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

consideration of the solemnity of their oath, will avoid the

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

chance, it will avoid the verdict. Thus, it has been held

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