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.