Rule where the case is in its nature penal. 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.— [*533] "It is very clear that you may indict the defendant 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 (1) 4 Maule & Sel. 337. (2) 6 East, 315. (3) 1 Str. 101. Where the conviction is against law. common councilman 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 *being possible that many men's [*534] 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 inconvenience. 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 was 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 au act intended to be remedial. VII. Where the conviction is against law. 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, (1) 2 Term. Rep. 484. (2) Et vide 1 Term. Rep. 575. (3) 6 Taunt. 297. (4) Vide supra, 334. Where the conviction is against law. In Wilson v. Rastall. (1) 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, [*535] where the defendant had a verdict. But after a *very full examination of the question, aided by an elaborate argument, the court made the rule absolute. In delivering his opinion, Buller, J., takes occasion to remark upon the case of Jervois v. Hall.(2) "Then as to the other ground, I know of no case except that of Jervois v. Hall, in which the court has ever refused to grant a new trial, which was moved for on account of the misdirection or mistake of the judge. And the note of that case in 1 Wilson, is much too loose to be relied on. It is not stated whether or not the court even granted a rule to show cause; at all events, the question was not agitated, whether the witness who was rejected at the trial, might or might not be examined. I think that the witness there was properly rejected, because he was interested. But if the court proceeded on the ground that the witness was a competent witness, and yet refused to grant a new trial, I think the case itself is not law."(3) And, held in Culcraft v. Gibbs,(4) cited above, that a new trial may be granted after verdict for defendant in a penal action, if the jury have been misdirected in point of law. The question arose, whether in this form of action, title could be tried, and the jury having found against the law, the court directed a new trial. Per Grose, J.-"All that the courts have hitherto said upon this subject is, that if there be a fair colorable title in the party, they will not suffer it to be tried in this form of action. But were we to go further, and declare that, because a defendant acted bona fide, it was a sufficient excuse in this action, it would oper ate almost as a total repeal of the statutes inflicting these pen (1) 4 Term Rep. 753; Supra, 263, 396. (2) 1 Wils. 17. (3) Vide 2 Barn. & Ald. 606; 17 Mass. Rep. 514. Where the conviction is against law. alties. Therefore, whether the defendant acted *bona [*536] fide or not, if he had no color of title, it could never be a proper consideration to be left to the jury; and the verdict which proceeded on such misdirection, in point of law, must in consequence be set aside.(1) (1) Et vide 8 Price, 301; 2 Bay, 466; 1 Camp. 450, et in notis. General remarks. *CHAPTER XV. AFTER TWO TRIALS AND TRIALS AT BAR. I. General remarks. II. Modern practice. III. Where the issue is solely of fact. IV. The court will endeavor to do what is just. I. General remarks. THE same principles of justice which require there shall be a second trial, will sometimes render it necessary to have a third, or more. Whatever opinion may have been formerly held on this subject, it is now well settled that the power and discretion of the courts extend to all instances of unjust verdicts, whether they are rendered for the first, second or third time, or oftener, in the same cause. This power courts are inclined to exercise with great caution, for, if used too freely, it would virtually supersede the trial by jury, the only difficulty to be encountered in applications of this kind. The granting or refusing the motion, when there has been more than one verdict, is so entirely a matter of discretion, that nothing deserving the name of general rules can be adduced. The only principle of universal application is, that new trials will be granted, without reference to their number, so long as substantial justice may demand it, or rather so long as it may be necessary to defeat manifest injustice. Should unprincipled jurors, therefore, find palpably in the face of evidence, or in defiance of the law, the court has the power, and will exercise it, to control and avoid their perverse verdicts, until a result shall have been produced, conformable to justice and right reason; a power which no lover of justice would wish to see crippled or narrowed, and without which, verdicts, in numberless instances, in civil actions at least, would most sig |