justice must be understood as using the term discretionary as equivalent to arbitrary, and intending to recommend the exercise of a sound judicial discretion. Indeed, it is impossible to resist the conviction, upon a close examination of the cases, that in deciding upon motions for new trials, courts of law are compelled to assume a power approximating to that of equity jurisdiction, and not unfrequently to put themselves in the place of the legislator, the more effectually to defeat injustice. To not a few instances of this exercise of discretion, the observations of the profoundest philosopher of antiquity will apply: "It is equity supplying the defects of strict legal justice, and deciding as the legislator himself would have done, had the whole subject been in his contemplation; for many particulars escape the notice of the legislator, and occasion the enactment of unjust laws, much against his will: even with his will and consent, laws good in general are enacted, but which, because they are general, may be found unjust in particular cases; and it is altogether impossi ble to comprehend all that indefinite variety of circumstances and conditions which, in each particular application, would render law conformable to the dictates of substantial justice."(1) But notwithstanding the difficulty of reducing the exercise of discretion to rules, and the utter impossibility of doing it in every case, this department of the practice is not deficient in this respect. Strongly marked cases have sprung up in succession, admitting the application of some well defined principle, and furnishing a precedent for all cases reducible to that class; and in branches practice, attempts have been made to classify the cases, and present each class with its appropriate rules and illustrations. In conclusion, whatever tends to detract from the true merits of a case, or to impair the rights of a party, so far tends to promote injustice. To correct this injurious result is the object of (1) Arist. Rhet. by Gillies, pp. 235, 236. new trials. The causes contributing to it occur at every stage of the proceedings, and in every instance the wrong complained of, properly presented to the court, will receive attention, and if well founded, obtain relief. The injurious verdict will be set aside, for want of notice of trial-irregularity in empanneling the jury -misconduct of the prevailing party-misbehavior of the jury -a void verdict-absence, surprise, and mistake of partiesabsence, surprise, and infamy of witnesses-improper admission and rejection of testimony-misdirection of the jury verdicts against law against evidence-excessive or reduced damages— newly discovered evidence-for erroneous verdicts in hard actions after two trials-and in feigned issues. In all these cases new trials will be granted or refused, in accordance with the dictates of justice. To illustrate the principles governing the courts in their decisions on applications of this kind, is the object of the following work. That this may be accomplished with greater perspicuity, the various causes of new trials will occupy each a distinct chapter, and be taken up in the order above mentioned. OF NEW TRIALS. CHAPTER I. WANT OF DUE NOTICE OF TRIAL. I. Where there is either no notice, or the notice is insufficient. only. III. The court will inquire whether it is probable the defendant has been misled. IV. If injustice should be done by retaining the verdict, it will be set aside. Ir is a principle pervading our free institutions, that no one is to be condemned unheard. Wherever justice is fully and impartially administered, it must be a fundamental rule, that the party impleaded shall have due notice of when, and where, and against what, he is to defend himself. What constitutes a sufficient notice, depends upon the rules of the different courts, which are, in some degree, arbitrary, but, when once adopted, become the law of the court.(1) I. Where there is either no notice, or the notice is insufficient. 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. (1) Vide as to notice, 1 Chitty's Arch. 223-226; Gra. Prac. 225, 226. Where there is either no notice, or the notice is insufficient. Want of due notice, therefore, has been held to be a proper ground for a motion for a new trial; but the defendant is precluded if he appear at the assizes and make defence.(1) So ruled in Thermolin v. Cole. (2) In Rex v. Bear, upon an indictment for a libel, the defendant was acquitted, and upon mo. [*12] tion for a new trial, it was held, *that in cases of that description, new trials were never allowed, unless the defendant's acquittal were procured by fraud or mal-practice. "In indictments of perjury," say the court, "we never do it, because the verdict is against evidence; but if you prove a trick, as no notice, &c., it is otherwise.”(3) The effect of this irregularity is illustrated in a late case in the Exchequer; The Attorney-General v. Stevens and Prall.(4) The defendant's counsel had obtained a rule, calling on the attorney-general to show cause why the verdict should not be set aside, and a new trial granted under these circumstances. The affidavit of Prall stated that the defendants were in partnership, in the trade of wine merchants: that Stevens was very old and infirm, and left the entire management of the business to Prall, and that a joint information was filed against them, on a charge of mixing Cape with other wine, and for smuggling brandy: that they were both served with subpoenas, to which they appeared and pleaded, each by a different solicitor, and clerk, in court that he had instructed his solicitor to prepare his defence that the information had been tried, and the crown had recovered a verdict for £400 for the said offence, although neither the deponent, nor his said attorney, had received notice of trial that he was prepared for his defence, and that Stevens, relying on him, had taken no steps in the cause; that he had never heard from any one that notice of trial of the information had been given to Stevens, and that, for want of notice being given to deponent, no steps were taken for his defence, or for that of Stevens. Prall's attorney deposed, that after having pro (1) Bull. N. P. 327. (2) 2 Salk. 646. (3) 2 Salk. 646. Where there is either no notice, or the notice is insufficient. cured a copy of the information, he never had notice of any further proceedings being had in the cause, till the day before the trial, when he heard from the agent *of the [*13] attorney of Stevens, that the cause was to be tried the next day. That neither he, nor his clerk in court, had received notice of trial; that he never had any communication with Stevens on the subject of the information, or with his attorney or agent, till the day before the trial; and that if he had received due notice of trial, he should have been prepared for the defence of Prall, which would have been also the defence of Stevens, who, he believed, had a good defence. The attorney for Stevens deposed, that he was employed to appear and plead for his client only, but that, having understood that Prall's solicitor was preparing for his defence, which would also be that of the defendant Stevens, he therefore deemed it unnecessary to take any further steps on his behalf; and that, when notice of trial was received by his agent, as attorney of Stevens, he was not aware that the defendant Prall had had no notice. The agent of Prall's attorney swore, that he had directed his clerk in court to appear for Prall, which had been done: and that a separate plea was afterwards put on the roll on the part of Prall; and that neither he, nor his clerk in court, had received notice of trial in the cause. It was urged against the motion, that inasmuch as the defendants were partners in trade, and the offence charged affected them jointly, notice to the clerk in court of either, should be deemed good notice to both. To this it was answered, that Stevens had a right to his several defence, that he might have a remedy over against Pral!, if it turned out that he had, by his misconduct, led him into the difficulty. The court decided that, under these circumstances, each defendant was entitled to a separate notice of trial, and Prall not having been served, they made the rule absolute as to both defendants. It has likewise been held, that on a new trial ordered, a fresh notice of trial is necessary; otherwise a second new trial |