from
Bouvier's Law Dictionary, Revised 6th Ed (1856)
NEW TRIAL, practice, A reexamination of an issue in fact, before a court and
jury, which had been tried, at least once, before the same court and a jury.
2. The origin of the practice of granting new trials is concealed in
the night of time.
3. Formerly new trials could be obtained only with the greatest
difficulties, but by the modern practice, they are liberally granted in
furtherance of justice.
4. The reasons for granting new trials are numerous, and may be classed
as follows; namely:
1. Matters which arose before and in the course of trial. These are,
1st. Want of due notice. Justice requires that the defendant should have
sufficient notice of the time and place of trial; and the want of it, unless
it has been waived by an appearance, and making defence, will, in general,
be sufficient to entitle the defendant to a new trial. Bull., N. P. 327; 3
Price's Ex. R. 72; 3 Dougl. 402; 1 Wend. R. 22. But the insufficiency of the
notice must have been calculated reasonably to mislead the defendant. 7 T.
R. 59. 2d, The irregular impanelling of the jury; for example, if a person
not duly qualified to serve be sworn: 4 T. R. 473; or if a juror not
regularly summoned and returned personate another. Willes, 484; S. C.
Barnes, 453. In Pennsylvania, by statutory, provision, going on to trial
will cure the defect, both in civil and criminal cases. 3d. The admission of
illegal testimony. 3 Cowen's Rep. 712 2 Hall's R. 40. 4 Chit. Pr. 33 4th.
The rejection of legal testimony. 6 Mod. 242; 3 B. & C. 494; 1 Bing. R. 38;
1 John. IR,. 508; 7 Wend. R. 371; 3 Mass. 124; 6 Mass. R. 391. But a new
trial will not be granted for the rejection of a witness on the supposed
ground of incompetency, when another witness establishes the same fact, and
it is not disputed by the other side. 2 East, R. 451; and see other
exceptions in 1 John. R. 509; 4 Ohio Rep. 49; 1 Charlt. B. 227; 2 John. Cas.
318. 5th. The misdirection of the judge. Vide article Misdirection, and 4
Chit. Pr. 38.
5.-2. The acts of the prevailing party, his agents or counsel. For
example, when papers, not previously submitted, are surreptitiously handed
to the jury, being material on the point in issue. Co. Litt. 227; 1 Sid.
235; 4 W. C. C. R. 149. Or if the party, or one on his behalf, directly
approach a juror on the subject of the trial. Cro. Eliz. 189; 1 Serg. &
Rawle, 169; 7 Serg. & Rawle, 358; 4 Binn. 150; 13 Mass. R. 218; 2 Bay R. 94;
6 Greenl. R. 140. But if the other party is aware of such attempts, and he
neglects to correct them when in his power, this will not be a sufficient
reason for granting a new trial. 11 Mod. 118. When indirect measures have
been resorted to, to prejudice the jury; 3 Brod. & Bing. 272; 7 Moore's R.
87; 7 East, R. 108; or tricks practiced; 11 Mod. 141; or disingenuous
attempts to suppress or stifle evidence, or thwart the proceedings, or to
obtain an unconscientious advantage, or to mislead the court and jury, they
will be defeated by granting a new trial. Grah. N. T. 56; 4 Chit. Pr. 59.
6.-3. The misconduct of the jury, as if they acted in disregard of
their oaths; Cro. Eliz. 778; drinking spirituous liquors, after being
charged with the cause; 4 Cowen's R. 26; 7 Cowen's R. 562; or resorting to
artifice to get rid of their confinement; 5 Cowen's R. 283; and such like
causes will avoid a verdict. Bunb. 51; Barnes, 438; 1 Str. 462; 2 Bl. R.
1299; Comb. 357; 4 Chit. Pr. 48 to 55. See, t's to the nature of the
evidence to be received to prove misconduct of the jury, 1 T. R. 11; 4 Binn.
R. 150; 7 S. & R. 458.
7.-4. Cases in which the verdict is improper, because it is either
void, against law, against evidence, or the damages are excessive. 1. When
the verdict is contrary to the record; 2 Roll. 691; 2 Co. 4; or it finds a
matter entirely out of the issue; Hob. 53; or finds only a part of the
issue; Co. Litt. 227; or when it is uncertain; 8 Co. 65; a new trial will be
granted. 2. When the verdict is. clearly against law, and injustice has been
done, it will be set aside. Grah. N. T. 341, 356. 3. And so will a verdict
be set aside if given clearly against evidence, and the presiding judge is
dissatisfied. Grah. N. T. 368. 4. When the damages are excessive, and appear
to have been given in consequence of prejudice, rather, than as an act of
deliberate judgment. Grah. N. T. 410; 4 Chit. Pr. 63; 1 M. & G. 222; 39 E.
C. L. R. 422.
8.-5. Cases in which the party was deprived of his evidence by
accident or because he was not aware of it. The non-attendance of witnesses,
their mistakes, their interests, their infirmities, their bias, their
partial or perverted views of facts, their veracity, their turpitude, pass
in review, and in proportion as they bear upon the merits avoid or confirm
the verdict. The absence of a material piece of testimony or the non-
attendance of witnesses, contrary to reasonable expectation, and reasonably
accounted for, will induce the court to set aside the verdict, and grant a
new trial; 6 Mod. 22 11 Mod. 1; 2 Chit. Rep. 195; 14 John. R. 112; 2 John.
Cas. 318; 2 Murph, R. 384; as, if the witness absent himself with out the
party's knowledge after the cause is called on,; 14 John. R. 112; or is
suddenly taken sick; 1 McClel. R. 179 and the like. The court will also
grant a new trial, when the losing party has discovered material evidence
since the trial, which would probably produce, a different result; this
evidence must be accompanied by proof of previous diligence to procure it.
To succeed, the applicant must show four things: 1. The names of the new
witnesses discovered. 2. That the applicant has been diligent in preparing,
his cage for trial. 3. That the new facts were discovered after the trial
and will be important. 4. That the evidence discovered will tend to prove
facts which were not directly in, issue on the trial, or were not then known
and investigated by proof. 8 J. J. Marsh. R. 521; 2 J. J. Marsh. R. 52; 5
Serg. & Rawle, 41; 6 Greenl. R. 479; 4 Ohio Rep. 5; 2 Caines' R. 155; 2 W.
C. C. R. 411; 16 Mart. Louis. Rep. 419; 2 Aiken, Rep, 407; 1 Haist. R. 434;
Grah. N. T. ch. 13.
9. New trials may be granted in criminal as well as in civil cases,
when the defendant is convicted, even of the highest offences. 3 Dall. R.
515; 1 Bay, R. 372; 7 Wend. 417; 5 Wend. 39. But when the defendant is
acquitted, the humane influence of the law, in cases of felony, mingling
justice with mercy, in favorem vitae et libertatis, does not permit a new
trial. In cases of misdemeanor, after conviction a new trial may be granted
in order to fulfill the purpose of substantial justice; yet, there are no
instances of new trials after acquittal, unless in cases where the defendant
has procured his acquittal by unfair practices. 1 Chit. Cr. Law, 654; 4
Chit. Pr. 80. Vide, generally, 21 Vin. Ab. 474 to 493; 3 Chit. Bl. Co 387,
n.; 18 E. C. L. R. 74, 334; Bac. Ab. Trial, L; 1 Sell. Pr. 482; Tidd's Pr.
934, 939; Graham on New Trials 3 Chit. Pr. 47; Dane's Ab. h.t.; Com. Dig.
Pleader, IR. 17; 4 Chitty's Practice, part 7, ch. 3. The rules laid down to
authorize the granting of new trials in Louisiana, will be found in the Code
of Practice, art. 557 to 563.