evidence of a witness to be given by affidavit is made, when the party objecting bonâ fide desires the production of the witness for cross-examination; and even where evidence has been given by affidavit, the attendance of the witness may still be obtained for cross-examination at the trial.

CHAPTER XV.

OF JUDGMENT AND ITS INCIDENTS.

UPON the argument of the demurrer, or the finding of the issues of fact, follows the judgment of the court; which, upon a demurrer, is usually then and there given, unless time be taken to consider what judgment shall be given. After a trial, the judge either gives judgment simply for the party who appears entitled to it; or else adjourns the case for further consideration;-or he abstains from giving judgment, so as to leave the party who considers himself entitled to it to apply for the proper judgment. And what may thus be done by a judge, either when trying a cause alone, or with the assistance of a jury, may be done, in the case of a trial, by a referee.

If, however, any defect of justice happen at a trial by surprise, inadvertence, or misconduct, the party may have relief, by obtaining a new trial; or if, notwithstanding the issues of fact be regularly decided, it appears that the complaint was not actionable in itself, the defendant may apply to have judgment entered for him.

A new trial may be obtained for causes wholly extrinsic, arising from matter foreign to, or dehors the record. Of this sort are want of notice of trial; or any misbehaviour of the prevailing party towards the jury, which influenced their verdict: or any misbehaviour of the jury among themselves: also if the jury have brought in a verdict without or contrary to evidence; or have given exorbitant damages; or if the judge has misdirected the jury, so that they found an unjustifiable verdict; for these, and other reasons of the like kind, it is the practice to award a new, or second, trial.

The exertion of these superintendent powers, in setting aside the verdict of a jury and granting a new trial, is of a date. extremely ancient; and no rule is now better understood than the maxim on which the courts act, that where justice is not done upon one trial, the injured party is entitled to another. A new trial is a re-hearing of the cause before another jury; but with as little prejudice to either party as if it had never been heard before. No advantage is taken of the former verdict on the one side, or the order of the court awarding such second trial on the other: and the subsequent verdict, though contrary to the first, imports no blame upon the former jury; who, had they possessed the same lights and advantages, would probably have altered their own opinion. The parties come better informed, the counsel better prepared, the law is more fully understood, the judge is more master of the subject; and nothing is now tried but the real merits of the case.

A sufficient ground must however be stated to. satisfy the court that it is necessary to justice that the cause should be further considered. If the matter be such as did not or could not appear to the judge who presided at the trial, it is disclosed by affidavit: if it arises from what passed at the trial, it is taken from the judge's information. Counsel are heard on both sides to impeach or establish the verdict, and the court gives its reasons at large why a new examination ought or ought not to be allowed. The true import of the evidence is duly weighed, false colours are taken off, and all points of law which arose at the trial are upon full deliberation clearly explained and settled.

Nor do the courts lend too easy an ear to every application for a review of the former verdict. They must be satisfied that there are strong probable grounds to suppose that the merits have not been fairly and fully discussed, and that the decision is not agreeable to the justice of the case. For new trial is not granted upon nice and formal objections, which do not go to the real merits. It is not granted in cases of strict right or summum jus, where the rigorous exaction of extreme legal justice is hardly reconcilable to conscience. Nor is it granted where the scales of evidence hang nearly equal: that which leans against the former verdict ought always to preponderate.

And in granting such further trial, which is matter of sound

discretion, the court has an opportunity of laying the party applying under such equitable terms, as his antagonist shall desire and mutually offer to comply with: such as the admission of facts not intended to be litigated; the production of deeds, books, and papers; the examination of witnesses, infirm or going beyond sea; and the like. A new trial has accordingly become the shortest, cheapest, and most effectual cure for all imperfections in a verdict, whether they arise from the mistakes of the parties, of their counsel, of their solicitors, of the jury, or even of the judge.

A mistake, however, on the part of the judge does not necessarily entitle the party who conceives himself injured to a new trial. For although granted as of right when there has been a misdirection to the jury, or the improper admission or rejection of evidence in the course of the trial, it is not granted unless some substantial wrong or miscarriage has been thereby occasioned..

Nor will a mistake on the part of the judge in the giving of judgment involve a new trial, if the error admits of remedy. For if the judge has directed a judgment to be entered which the party thereby affected considers wrong, he may apply to set it aside and have what he contends the proper judgment entered. Thus if, in an action for slander in calling the plaintiff a Jew, the defendant denies the words, and issue is joined thereon; now if a verdict be found for the plaintiff, that the words were actually spoken, whereby the fact is established, and the court thereupon directs a judgment for the plaintiff to be entered, the defendant may apply to have this judgment set aside on the ground that to call a man a Jew is not actionable: and if the court be of that opinion, the judgment must be set aside without any new trial, no facts being in dispute. For in every case, whether upon an application for judgment or for a new trial, the court, if satisfied that it has before it all the materials necessary for finally determining the questions in dispute, or any of them, or for awarding any relief sought, is bound to give judgment accordingly. If it has not sufficient materials, as if there be any fact still undetermined, it may direct the application to stand over, and order such questions to be tried or such inquiries made as it thinks fit, so as to obtain such materials and give final judgment thereon.

Applications for a new trial have generally been in common law actions; because these were usually tried by a jury, and the issues raised frequently depended on very complicated questions, as well of fact as of law. In the other matters now within the cognizance of the High Court, new trials have been rare, probably because the issues raised were comparatively simple. For instance, in determining who is entitled to probate or administration, the fact to be decided is generally the execution of a will merely, or the sanity of a testator. And in a suit for divorce, the question whether or not the defendant has committed adultery, though provable by perhaps numerous witnesses, is in itself a single and determinate issue. A new trial was unknown in the High Court of Admiralty, whose procedure was founded on the civil law; the remedy there was an appeal. In the Court of Chancery the trial was, as a rule, not by a jury, nor even by the examination of witnesses in court, but ordinarily upon affidavits verifying the allegations of the several parties to the suit upon which the decree was made; and there was here, consequently, no new trial; but a proceeding somewhat of the same nature, viz., a rehearing; which had the same effect, of suspending the judgment of the court.

For if the judgment be not suspended, it is next entered or enrolled at the office of the court. Judgments are the sentence of the law, upon the matter contained in the record, and are of four sorts. Firstly, where the facts are confessed by the parties, and the law determined by the court, as in case of judgment upon demurrer: secondly, where the law is admitted by the parties, and the facts disputed, as in case of judgment on the verdict of a jury, or the findings in fact of a judge or referee: thirdly, where both the fact and the law arising thereon are admitted by the defendant, which is the case of judgments by confession or default: or, lastly, where the plaintiff is convinced that either fact, or law, or both, are insufficient to support his action, and therefore discontinues or withdraws his claim.

This judgment, though pronounced or awarded by the court, is not the determination or sentence of the judges, but the determination and sentence of the law. It is the conclusion that naturally and regularly follows from the premises of law and fact, which stands thus: against him who has rode over my corn,

I may recover damages by law: but A. has rode over my corn; therefore I shall recover damages against A. If the major proposition be denied, this is a demurrer in law: if the minor, it is then an issue of fact; but if both be confessed, or determined, to be right, the conclusion or judgment of the court cannot but follow. Which judgment or conclusion depends not therefore on the arbitrary caprice of the judge, but on the settled and invariable principles of justice. The judgment, in short, is the remedy prescribed by law for the redress of injuries; and the action is the vehicle or means of administering it.

Judgments again are either interlocutory or final. By an interlocutory judgment the right of the plaintiff is generally established, but the quantum of damages sustained by him, or the full relief to which he is entitled, remain to be ascertained. A final judgment disposes of the action, and leaves nothing to be done. An interlocutory judgment happens as a rule where the plaintiff recovers. When judgment is given for the defendant it is generally complete as well as final. Thus the judgment is final where the defendant suffers judgment to go against him by default, by non-appearance, or by nihil dicit, as if he puts in no defence to the plaintiff's claim: or by confession, cognovit actionem, where he acknowledges the plaintiff's demand to be just. If these, or any of them, happen in an action where the specific thing sued for is recovered, as in an action for a sum certain, the judgment is also complete as well as final. And therefore it is very usual, in order to strengthen a creditor's security, for a debtor to execute a warrant of attorney to some solicitor named by his creditor, empowering him to confess a judgment by either of the ways just mentioned, in an action to be brought by the creditor against the debtor for the specific sum due; which judgment, when confessed, is absolutely complete and binding.

Where, however, the plaintiff's claim is for damages properly so called, that is, damages which are not simply a matter of computation, a jury must generally be called in to assess them, The judgment in such cases is interlocutory," that the plaintiff ought to recover his damages, but because the court know not “what damages the said plaintiff has sustained, therefore the "sheriff is commanded, that by the oaths of twelve honest and “ lawful men he inquire into the said damages, and return such

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