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unless, within three days after the verdict is returned, the counsel of the party complaining of the proceedings or the verdict, shall file a motion for new trial, specifying the grounds of his complaint, and causing a copy of the said motion to be delivered to the adverse counsel, on the day the same shall be filed. And if it shall be alleged, as the ground, or one of the grounds of the motion, that the verdict is against the evidence, or the weight of it, the counsel of the party shall, within ten days after filing this motion, make out and deliver to the clerk, a copy of his minutes of the evidence, if oral, and shall specify the depositions or documents, on which he intends to rely in support of his motion; otherwise the motion shall be stricken off, and judgment may be rendered on the verdict, on the motion of the counsel for the party, in whose favor the verdict shall be returned.

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Provided, however, that this rule shall not apply to cases in which the judge presiding at the trial shall, of his own mere motion, reserve any question of law; -nor shall it affect the right of parties to file exceptions, pursuant to the statute in that case made and provided.'

And provided, also, that should the trial of any case be had, so near the close of any term, that the foregoing rule cannot be complied with, the motion for new trial shall be made before the court adjourns, and the specifications of the reasons shall be filed within three days afterwards, and that such time shall be allowed, for compliance with the residue of this rule, as the presiding judge shall order.2

2

1 Stat. 1804. ch. 105. s. 5. Vide ante Book II. Chap. XII. Exceptions. Reg. Gen. S. J. C. 48. Appendix A.

If the cause for the new trial arise after the verdict, and before judgment is rendered, as for instance, if it be the discovery of new and material evidence, the motion should be made in writing, stating the cause. And the motion must, before being heard, be accompanied with necessary affidavits, proving the facts set forth in the motion, so that the opposite party may have an opportunity to meet them by counter evidence.

The affidavit of the party moving for the new trial, will be received, to prove those facts alone, which could be known only to himself.1

If a verdict and judgment have been entered in the case, the course to obtain a new trial, is by petition, setting forth the causes thereof.2

3

By a rule of the Supreme Court, all copies of papers are to be furnished by the party moving for a new trial. The papers are to be filed in the clerk's office, and he, without delay, furnishes copies for the court, at the expense of the party filing the same. The copies may be made by the party, in which case, if he prevail, he shall be allowed for the same in his costs. They must be written out in a fair legible hand, on one side of the sheet, and the number of the action and the names of the parties written upon the papers, which must be folded and filed uniformly.*

The court may impose terms upon the party moving for a new trial, as to any matter relating to the trial, as well as it respects costs.5

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2 This case is provided for by the statutes of review. Vide Review. supra Chap. XVIII.

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Where a judgment has been rendered on the verdict, and in other cases which are provided for by the statute,' in which reviews are granted, the mode of proceeding is regulated by the statute, and will be found treated of under the head of review.2

1 Stat. 1788. ch. 11. Stat. 1791. ch. 17.

2 Chap. XVIII. supra.

CHAPTER XVIII.

REVIEW.

Connected with the subject of new trials, is that of review, which is a statutory method of retrying a case. Formerly, any party, against whom no more than one verdict had been returned, might review his case, as a matter of right.' While the organization of the court was such, that questions of law and fact were finally disposed of at the same time, this might be no very inconvenient mode of correcting any mistake, which might be made by the court, and it might happen, that it would conduce to the furtherance of justice, by affording a more complete opportunity for the developement of the facts. It was a provision early adopted in our colonial practice, and was again reenacted, after the adoption of our constitution.

It was intended probably in the first instance, to be applied to those cases only, where different verdicts had been returned in the two courts. In practice, however, it was extended, as well to cases brought up from the Common Pleas without trial, as to those, where a verdict had been rendered. The law, however, giving reviews as a matter of right, has been repealed.2

SECT. I. WHEN REVIEWS WILL BE GRANTED.

By Stat. 1788. ch. 11. the Supreme Court are authorized to grant a review upon petition, after judg

1 Stat. 1786. ch. 66.

2 Stat. 1817. ch. 85.

ment on a verdict, whenever there may be legal cause for setting aside such verdict before judgment, on such terms as the court may think proper. And whenever, by reason of any mistake, or accident, judgment may be rendered upon discontinuance, nonsuit, nil dicit, non sum informatus, report of referees, or default, to the hindrance and subversion of justice, the court are empowered to grant a review. Under the provisions of this act, the court are empowered to stay execution, if they see cause, and to award costs against the petitioner, if he fail to support his petition.

And by the third section of this statute, it is provided, that wherever, by reason of any of the causes above-mentioned any judgment in the Court of Common Pleas, or before any justice of the peace, hath been, or hereafter may be rendered in manner, as set forth in the foregoing sections of the statute, or any appeal hath been, or hereafter may be prevented or lost, to the hindrance or subversion of justice; the party aggrieved shall produce in, and file with the clerk of the Supreme Judicial Court, a copy of the record of the cause, duly attested, and shall petition the justices of the same court, for a review of the cause, in manner as aforesaid, — the justices aforesaid may grant a review of said cause, in manner aforesaid, to be heard and determined in the said court.

By Stat. 1791. ch. 17. s. 2. the same court are authorized to grant reviews upon petition, in civil actions, whenever they shall judge it reasonable, if application be made within three years.

The Stat. 1788. limits the application for a writ of review, to within one year and a half from the rendition of judgment; the statute last cited does not

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