ness may frequently depose that in private which he will be ashamed to testify in a public and solemn tribunal. The occasional questions of the judge, the jury, and the counsel, propounded to the witnesses on a sudden, will sift out the truth much better than a formal set of interrogatories previously penned and settled; and the confronting of adverse witnesses is also another opportunity of obtaining a clear discovery, which can never be had upon any other method of trial. Nor is the presence of the judge during the examination, a matter of small importance: for, besides the respect with which his presence will naturally inspire the witness, he is able, by use and experience, to keep the evidence from wandering from the point in issue. In short, by this method of examination, and this only, the persons who are to decide upon the evidence have an opportunity of observing the quality, age, education, understanding, behaviour, and inclinations of the witness; in which points all persons must appear alike, when their depositions are reduced to writing, and read to the judge, in the absence of those who made them; and yet as much may be frequently collected from the manner in which the evidence is delivered, as from the matter of it; one, and not the least important, of the advantages attending this way of giving testimony, ore tenus.

As to such evidence as the jury may have in their own consciences, by their private knowledge of facts, it was an ancient doctrine, that this had as much right to sway their judgment as the written or parol evidence which is delivered in court. And therefore it has often been held, that though no proofs were produced on either side, yet the jury might bring in a verdict. This seems to have arisen from the ancient practice in taking assizes, where the sheriff was bound to return such jurors as knew the truth of the facts. But this doctrine was gradually exploded, and is obviously quite incompatible with the grounds upon which new trials are every day awarded, viz., that the verdict was given without, or contrary to, evidence. And therefore, together with new trials, the practice seems to have been introduced, which now universally obtains, that if a juror knows anything of the matter in issue, he may be sworn as a witness, and give his evidence publicly in court.

When the evidence is gone through on both sides, the judge, in the presence of the parties, the counsel, and all others, sums up the whole to the jury; omitting all superfluous circumstances, observing wherein the main question and principal issue lies, stating what evidence has been given to support it, with such remarks as he thinks necessary for their direction, and giving them his opinion in matters of law arising upon that evidence.

The jury, after the proofs are summed up, unless the case be very clear, withdraw from the bar to consider of their verdict: and, in order to avoid intemperance and causeless delay, are to be kept without meat, drink, fire, or candle, unless by permission of the judge, till they are all unanimously agreed; a method of accelerating unanimity not wholly unknown in other constitutions of Europe, and in matters of great concern. For by the golden bull of the empire, if, after the congress was opened, the electors delayed the election of a king of the Romans for thirty days, they were to be fed only with bread and water till the same was accomplished. But if our juries eat or drink at all, or have any eatables about them, without consent of the court, and before verdict, it is fineable; and if they do so at his charge for whom they afterwards find, it will set aside the verdict. Also if they speak with either of the parties or their agents, after they have gone from the bar; or if they receive any fresh evidence in private; or if, to prevent disputes, they cast lots for whom they shall find; any of these circumstances will entirely vitiate the verdict. And it has been held, that if the jurors do not agree in their verdict before the judges are about to leave the town, though they are not to be threatened or imprisoned, the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart.

When they are all unanimously agreed, the jury return back to the bar; and, before they deliver their verdict, the plaintiff is bound to appear in court, by himself, attorney, or counsel. The object of compelling his attendance was that he might answer the amercement to which, by the old law, he was liable, in case he failed in his suit, as a punishment for his false claim. To be amerced, or a mercie, is to be at the mercy of the court with regard to the fine to be imposed; in misericordiâ domini regis pro falso clamore suo. The amercement is disused, but if the plaintiff does not appear, no verdict can be given, and he is said to be nonsuit, non sequitur clamorem suum. Therefore it is usual for a plaintiff, when he or his counsel perceives that he has not given evidence sufficient to maintain his issue, to be voluntarily nonsuited, or withdraw himself: whereupon the crier is ordered to call the plaintiff and if neither he, nor anybody for him, appears, ne is nonsuited, the jurors are discharged, the action is at an end, and the defendant shall recover his costs. The reason of this practice is, that a nonsuit is more eligible for the plaintiff, than a verdict against him for after a nonsuit, which is only a default, he may commence the same suit again for the same cause of action; but after a verdict had, and judgment consequent thereupon, he is for ever barred from attacking the defendant upon the same ground of complaint. But in case the plaintiff appears, the jury by their foreman deliver in their verdict.

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A verdict, vere dictum, is either privy, or public. A privy verdict is when the judge has left or adjourned the court: and the jury being agreed, in order to be delivered from their confinement, obtain leave to give their verdict privily to their judge out of court; which privy verdict is of no force, unless afterwards affirmed by a public verdict given openly in court. The only effectual and legal verdict, therefore, is the public verdict; in which they openly declare to have found the issue for the plaintiff, or for the defendant: and if for the plaintiff, they assess the damages also sustained by the plaintiff, in consequence of the injury upon which the action is brought.

Sometimes, if there arises in the case any difficult matter of law, the jury, for the sake of better information, and to avoid the danger of having their verdict disregarded, will find a special verdict, stating the naked facts, as they find them to be proved, and praying the advice of the court thereon; concluding conditionally, that if upon the whole matter the court shall be of opinion that the plaintiff had cause of action, they then find for the plaintiff; if otherwise, then for the defendant. This is entered at length on the record, and afterwards argued and determined in the court at Westminster, from whence the issue came to be tried.

Another method of finding a species of special verdict, is when the jury find a verdict generally for the plaintiff, but subject nevertheless to the opinion of the judge or the court above, on a special case stated by the counsel on both sides with regard to a matter of law; the postea, of which in the next chapter, being stayed in the hands of the officer of the nisi prius, till the question is determined, and the verdict is then entered for the plaintiff or defendant, as the case may happen. But in both these instances the jury may, if they think proper, take upon themselves to determine, at their own hazard, the complicated question of fact and law; and, without either special verdict or special case, may find a verdict absolutely either for the plaintiff or defendant.

When the jury have delivered in their verdict, and it is recorded in court, they are then discharged; and so ends the trial by jury.

VI. The last species of trial is that by the court or a judge, which may be had in certain classes of cases, where the intervention of a jury is quite unnecessary. In actions, for instance, in which the question turns on the legal effect of evidence or of undisputed facts, the presence of the jury is a useless form, for the verdict must necessarily depend entirely on the direction of the judge; while in those suits which, when brought before the jury, it is found necessary to submit to arbitration, calling a jury together merely to be dis

charged, can have no other effect than to bring the institution itself into contempt. Such are the cases depending on complicated questions of account, in which figures and documents must be frequently referrred to, for with these a jury is utterly unable to deal.

When the jury is dispensed with, the proceedings upon and after the trial are the same as in ordinary cases, the verdict of the judge having precisely the same effect as the verdict of a jury, except that it cannot be questioned afterwards, as being against the weight of the evidence; on which ground the verdicts of juries are not unfrequently set aside and a new trial granted.

CHAPTER XIV.

OF JUDGMENT AND ITS INCIDENTS.

The Postea-New trial-Arrest of judgment-Judgment non obstante veredicto -Repleader-Venire de novo-Judgments interlocutory or final-Warrant of attorney-Reference to master-Writ of inquiry-Effect of judgment as binding lands-Costs.

Ir the issue be an issue of fact, and upon trial it be found for either the plaintiff or defendant, or specially; or if the plaintiff makes default, or is nonsuit; or whatever, in short, is done subsequent to the joining of issue and awarding the trial, it is entered on record, and is called a postea. The substance of which is, that postea, afterwards, the said plaintiff and defendant appeared by their attorneys at the place of trial; and a jury, being sworn found such a verdict; or, that the plaintiff, after the jury sworn, made default, and did not prosecute his suit; or, as the case may happen. This is added to the roll, which is now returned to the court from which it was sent; and the history of the cause, from the time it was carried out, is thus continued by the postea.

Next follows the judgment of the court upon what has previously passed; both the matter of law and matter of fact being now fully weighed and adjusted. Judgment may, however, for certain causes be suspended, or finally arrested: for it cannot be entered for some days after the trial. So that if any defect of justice happened at the trial, by surprise, inadvertence, or misconduct, the party may have relief in the court above, by obtaining a new trial; or if, notwithstanding the issue of fact be regularly decided, it appears that the complaint was either not actionable in itself, or not made with

sufficient precision and accuracy, the party may supersede it by arresting or staying the judgment.

1. Causes of suspending the judgment by granting a new trial, are at present wholly extrinsic, arising from matter foreign to, or dehors the record. Of this sort are want of notice of trial; or any flagrant misbehaviour of the party prevailing towards the jury, which may have influenced their verdict; or any gross misbehaviour of the jury among themselves: also, if it appears by the judge's report, certified to the court, that the jury have brought in a verdict without or contrary to evidence, so that he is reasonably dissatisfied therewith; or if they have given exorbitant damages; or if the judge himself has misdirected the jury, so that they found an unjustifiable verdict; for these, and other reasons of the like kind, it is the practice of the court to award a new, or second, trial.

The exertion of these superintendent powers of the courts, in setting aside the verdict of a jury and granting a new trial, is of a date extremely ancient. I need not, however, refer to instances, for 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 rule of court for awarding such second trial on the other: and the subsequent verdict, though contrary to the first, imports no tittle of 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 laid before the court to satisfy them 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 nisi prius, it is disclosed to the court by affidavit: if it arises from what passed at the trial, it is taken from the judge's information, who usually makes a special and minute report of the evidence. Counsel are heard on both sides to impeach or establish the verdict, and the court give their 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