Andrews smith on the demise OF dorm against Parkhurst and other a new trial  refuse after a trial at bar the evidence be doubtful a new trial may be grant  after a trial at bar queen whether it may be grant after a special verdict and  whether it may be grant after a trial at bar in ejectment SC stram ejectment  and upon a trial at bar a special verdict be find but before judgement be give  thereon or the same be argue it be move on behalf of the defendant that there  may be a new trial because it be find that at or before the levy of the fine  which be part of the defendant title the conusors be not nor either of they be  seize or possess of the land in question or any part thereof v Cowp and this  it be say be a fact find against evidence it have be prove that the conusors  have before receive part of the rend of the estate which be not contradict by  the plaintiff evidence and it do not appear that dorm the lessor of the  plaintiff be ever in possession on the other side it be argue by Mr Chute Mr  Bootle and other who say that this verdict be not against evidence and their  principal objection so far as the same may be collect from the reply and the  opinion of the court for the reporter be not present when cause be show  against the motion be that a new trial which be a modern invention ought not  to be grant after a trial at bar by reason of the solemnity of such trial  Wheeler and honour keb SC side Mod argent and sir Marmaduke Darrell Carth SC  salk Grosvenor and Fenwick salk SC far Le Mod it be material that this be a  ejectment which be not final in its nature as other action be but the party  against who the judgement shall be may bring a new ejectment argent and  Darrell before cite lady Layton against Layton a p W bro p c post a in the  exchequer hill g ejectment and after a verdict find for the plaintiff a new  trial be pray but Mr baron Montague be against grant it because it be in  ejectment however the other judge be of another opinion a new Andrews trial be  there grant a new trial ought not to be grant after a special verdict the  minute thereof be always sign by the counsel on both side and therefore it  ought to conclude both party beside the defendant be too early in make this  application as no opinion have yet be give upon this verdict which possible  may be for the defendant it be far object that a new trial ought not to be  grant against the honesty of a cause and this in the present case be with the  lessor of the plaintiff he be clear entitle to the estate in question accord  to the intention of the maker of the deed of settlement upon the construction  of which the matter depend and it will be very hard that his right shall be  take away this case be therefore similar to a action bring for burn a house by  negligent keep a fire where if the defendant be acquit the court will not  grant a new trial and it be also urge the evidence of one or two witness ought  not to overturn the find of twelve gentleman of figure and fortune who may too  be govern by their own knowledge hale hist of the law and the grant of a new  trial will be in effect impute perjury to they it may also occasion perjury in  witness because when a new trial be grant they may be prepare before hand as  it must be then know upon what circumstance the case will depend in support of  the motion it be argue by sergeant wright Mr hollings Mr Filmer and other that  there be the same reason for grant a new trial after a trial at bar as after a  trial by delegate authority where the verdict be against evidence at nisi  prius there be often a special jury as well as on a trial at bar and the  solemnity of the latter be only in regard to the dignity of the court before  who the cause be try the solemnity of this kind of trial be therefore a strong  argument in Andrews favour of a new trial for if a new trial be grantable on  the certificate of a single judge it seem more reasonable to grant one where  the jury act contrary to the direction or against the opinion of the four  judge the reason of grant new trial original which be of considerable  antiquity as appear by style keb salk be the great difficulty of succeed in  attaint it be rare for one jury to convict another lest they shall fall one  time or other into the same condition now in all case where a attaint lie a  new trial Andrews er p which be a more know short and more beneficial method  may be grant for where a verdict be find against evidence it be a strong proof  of corruption in a jury beside a attaint be in some case impracticable because  it be not sufficient to support a attaint that the verdict be find against  evidence unless there be some further proof of corruption in the jury and  therefore in such case there be no other remedy than the grant a new trial for  the jury can be fine Vaugb keb the grant of new trial be therefore for the  sake of justice and the court have from time to time extend it own rule in  order to meet with and remedy such inconvenience as have arise as for instance  a new trial be not former grantable for the misdirection of a judge I side  whereas now this be always do and as the judgement of this court be not final  there be no solid reason why the find of a jury though it be on a trial at bar  shall be so to this point the follow book and case be cite style which be say  to be the first print case of grant a new trial Mod vern SC Abr can Eq  Musgrave and Nevinson b ld ray stram b east g mandamus to the defendant to  swear in sir Christopher Musgrave as mayor and the defendant make a return  which be traverse and try at the bar and afterward a new trial be grant  because the verdict be against evidence king and the corporation of Bewdley c  I p W ld ray c hill two a after a trial at bar a new trial be pray by the  defendant because a general verdict be find when a special one Andrews be  direct and it be insist by the defendant that as the crown which be the  prosecutor never pay cost it ought not to receive any but to this the court  say that the grant a new trial be pure discretionary and if the defendant  insist upon not pay cost this may be a reason against grant it a new trial be  however grant upon the payment of cost and yet accord to Lord coke Inst a a  jury may take on they the knowledge of the law Harding and crew a issue be  there direct by the court of chancery to try the validity of a deed and the  chief justice of Chester before who it be try inform the court that he be not  satisfy with the verdict a new trial be grant because a infant be concern and  the matter in question be of great value and sergeant wright now say that in  Lord pratt time after a trial at bar upon the question whether a person be  compos or non compos a new trial be grant because the verdict be against  evidence in ejectment where the verdict be for the defendant there be no  inconvenience in put the plaintiff to a new ejectment because in such case the  possession be not change which be the reason mention in salk but where the  verdict be for the plaintiff and against evidence it be reasonable to grant a  new trial because otherwise the defendant must be turn out of possession and a  necessitous person may be let in who will perhaps hurt the estate in question  by commit waste beside the grant a new trial be a less expensive method than  the serve another ejectment so that the former will be a ease to both party  and to this point the follow case be cite Layton and Layton hill g in scacc a  new trial be there grant after a verdict for the defendant in ejectment Mr  baron Montague only dissent and yet Mr baron price who try the cause do not  report that the verdict be against evidence but only that if he have be upon  the jury he shall not have concur in the verdict and the reason of grant a new  trial there be that if the defendant have continue in possession he may have  dismiss a bill their Andrews depend and retain in chancery till the trial of  the issue which will have be to the great expense of the plaintiff Lelgo on  the demise of Wheeler against Pitt d barn prac Reg c b d mich g in c b  ejectment and upon a trial before c I Eyre at Westminster a verdict be give  for the plaintiff afterward a new trial be pray because it be a verdict  against evidence to which it be object that a new ejectment may be bring and  the c I say that this be a good reason where the verdict be against the  plaintiff but otherwise it be where the verdict be against the defendant  because be must be turn out of possession and a new trial be grant baker on  the demise of brown and Petcher e barn e mich g in c after a verdict in  ejectment for the defendant a new trial be grant on the motion of sergeant  Skinner because there be a suspicion of forgery in one of the deed simple and  hunt mich g in king b motion for a new trial in ejectment because one of the  witness be sudden take ill so that he can not attend the trial and Raymond c j  say that it be rare to grant a new trial in ejectment unless the verdict be  against evidence which be a admission that in such case it may be Andrews er p  do Dobbs and passer f stram Barnard f east g in king b motion to set aside a  judgement by default in ejectment because it be sign by surprise which be  oppose because it be in a ejectment and a new one may be bring but Hardwicke  c j say that it will be very inconvenient to change the possession of a estate  and the court ought to take great care to prevent it and therefore the motion  be grant Musgrave and Nevinson before cite a new trial be there grant upon a  mandamus because the verdict be against evidence and yet a mandamus like a  ejectment do not final determine the right for a quo warranto may be afterward  bring bagshaw on the demise of sir George win against the bishop of Bangor and  other in the exchequer this term a new trial be there grant in ejectment after  a verdict for the plaintiff because the plaintiff offer evidence to the jury  in private and one of they say he will find a verdict for the Andrews  plaintiff right or wrong there be no difference as to the present point  between a general and a special verdict because the court be as much tie down  by fact find in the latter as by a general find and if those be false the  judgement of the court must be so too verdict be entire thing and where part  be find wrong it be all one as if the jury have omit something which they  ought to have find and it be certain a imperfect find   light a   a   a roll  wonder cro throw side keb Kynaston and the mayor c of Shrewsbury g ante g  there the house of lord set aside a verdict upon a mandamus for omit the give  d damage and order a venire facias de to make new Neminick and farewell h bunb  h mich in g in scacc in trover against a customhouse officer for a seizure a  special verdict be find and the note sign by the counsel on both side in the  verdict it be find that there be no probable cause of seizure and a report be  make by the Lord chief baron who try the cause to the contrary and upon the  motion of Lechmere attorneygeneral a new trial be grant upon the payment of  cost as to the sign of the minute there be a necessity for that but it do not  amount to a consent that the fact be true but only that they be find such by  the jury it have be object that it be too early to make this application  before the opinion of the court be give answer there certain ought to be a  recent application in these case and if the defendant be to stay till the  resolution of the court be give it may with more reason be object that it be  then too late object that a new trial ought not to be grant against the  honesty of the cause answer this seem rather in the present case to be with  the defendant these be immediate descend from the maker of the settlement upon  which the present question depend whereas the lessor of the plaintiff claim so  remote as from a Andrews five brother and the hardship of the case will be on  the side of the defendant if their right shall be take away and they turn out  of possession as to the objection that the jury may perhaps go upon their own  knowledge this if allow will put a end to the grant a new trial in any case  whatsoever because on such a supposition no verdict can be say to be find  against evidence a jury be by their oath oblige to go accord to evidence I e  the evidence give in court and if a juryman be prepossess it be a good cause  of challenge which seem to be a proof that a juror ought not to go by his own  knowledge if a juror do indeed know anything material in the cause he ought to  acquaint the court therewith and be swear as a witness that he may be  crossexamined far salk and otherwise he may go upon insufficient and improper  evidence cro Elizabeth hale hist p c suppose therefore that here any of the  jury go on their own knowledge without acquaint the court therewith it be such  a misbehaviour as be a sufficient foundation for grant a new trial in kitchen  and Manwaring Pas g in king b a new trial be pray because after the withdraw  of the jury one of they offer evidence to the other but it be refuse because  Powell just who try the cause report that the verdict be accord to evidence  otherwise a new trial will have be grant it can be say with reason as bath be  object that the grant a new trial be a imputation of perjury to the jury for  they may as well be mistake as to matter of fact as the judge who be swear as  well as juror may err in point of law and their judgement be reversible by  writ of error and as to what have be say that the grant a new trial may  occasion perjury this be no solid objection for that the court ought to do  right whatever may be the consequence Andrews er p the court take time to  advice and this term lee c j deliver the opinion of the court to the follow  effect Andrews this case have be large speak to on both side and it be proper  to take notice as well of what have be mention at bar and how far the case  have go upon application for new trial as to give a opinion upon the point now  in question it be not necessary now to inquire into the original of the court  be exercise the power of grant new trial in salk there be a conjecture of Lord  chief justice holt that it be ancient and he give his reason and in style  there be a say of glynne that it have be frequent to grant new trial in the  case of Bewdley some notice be take of the power of grant new trial Lord chief  justice Parker say that it be difficult to trace a matter of this nature to  its origin there be but few report of case upon motion before the time of car  thus much however be certain that the first case in print where a new trial be  grant be in style report whereby it appear the court have exercise this power  for more than eighty year the reason of the court be have interpose in this  way be that justice may be further and that right may take place and therefore  in case that be bare or against the honesty of the case new trial have be  refuse salk it have be object in the present case that the set aside a verdict  and grant a new trial amount to say that the jury be perjure but this be a  mistake for a verdict be only a judgement give upon a comparison of proof and  the judge may be say with equal reason to be guilty of perjury when they give  erroneous judgement as a jury in the former case but in neither case be error  to be impute for crime bract as the duty of court therefore be to do justice  and as in action that be final where there be a false verdict the only remedy  be a attaint which have be consider as no remedy particular by Lord Parker in  the case of Bewdley by reason of the difficulty of the Andrews proceed and the  severity of the punishment the court have go into this easy remedy f grant new  trial but then it have be always upon term videlicet the payment of cost the  next matter to be consider be how far the court have proceed in the exercise  of this power and particular what they have do after a trial at bar after a  special verdict and after a trial in ejectment as to the first of these point  it be certain that some of the book say a new trial shall not be grant after a  trial at bar because the verdict be against evidence but only in case where  there be a misbehaviour in the jury Mod and in salk it seem to be the opinion  of three judge that in such case a new trial can be grant and the reporter  make the court say that it be never do but this be contrary to the case in  style side and can be law far it be also contrary to the opinion of eleven  judge Powell just dissent in the case of Bewdley which be a trial at bar and  in sir Christopher Musgrave and Nevinson east g the opinion of the court be  that if a verdict be against evidence a new trial ought to be grant after a  trial at bar but otherwise it be where the evidence be doubtful only in that  case the verdict be against evidence for the question be whether sir  Christopher Musgrave be a good alderman and it appear that he be choose  alderman at a assembly hold without notice and where several of the common  council be absent upon this the jury be direct and certain very right to find  against the election but they find to the contra for which reason a new trial  be grant it be not necessary at present to give any opinion whether a new  trial may be grant after a special verdict where one of the fact find by the  jury be against evidence as it be allege to be in this case I shall leave this  as a point undetermined upon the foundation of the Andrews case that have be  cite which be two only videlicet Neminick and farewell in scace mich in g and  keb when that case in the exchequer come to be consider it seem bare to  reconcile the power of the court in grant a new trial where the objection be  only to one single fact to the reason in the book relate to the office of  juror as they be judge of matter of fact in bushel case much be say upon this  head and a difference be there express take by Lord Vaughan between a general  and special verdict these be the difficulty upon this point Andrews er p trial  at bar in ejectment now the book that have be cite against the motion be very  strong against grant a new trial in such case particular t Jones g by the  report in salk it do not appear for who the verdict be but by the report of  the same case in Carth and also in a manuscript which I have see it appear to  have be for the plaintiff and in the manuscript report the opinion be mention  to have be give by the whole court though sergeant Salkeld say that Rokeby  just dissent this case answer the distinction take at the bar between a  verdict in ejectment for the plaintiff and a verdict for the defendant on  account of the inconvenience of change the possession on the other side no  case have be cite where a new trial be grant after a trial at bar in ejectment  there be indeed instance hereof after a trial at nisi prius so be lady layton  case which be a issue out of chancery this be a mistake see p W but there the  motion be grant against the opinion of one of the judge who declare that in  ejectment he be against grant a new trial because the proceed be not final by  grant a new trial therefore in this case we shall do more than we be warrant  by the book however I shall not say that it may not become necessary to  interpose in that way even in ejectment for the sake of justice this have  induce the court from time to time to grant new Andrews trial as case have  arise which have demand from the justice of the thing a fresh trial and  therefore now a new trial be always grant where the judge misdirects the jury  though the old case be to the contrary I side so former a new trial be deny  where a party have be acquit in a criminal prosecution though some of the jury  misbehave themselves I lev but otherwise it be at this day salk and so in  ejectment a case may be for aught I know of that nature that it may be proper  to grant a new trial therein the objection that the proceed in ejectment be  not final be equal applicable to the case of Musgrave and Nevinson which be  upon a return to a mandamus in the next place the circumstance of the present  case be proper to be consider and here I will premise this as a undoubted  truth that where the evidence be doubtful a new trial ought not to be grant  after a trial at bar now the evidence give upon the question whether the  defendant be in possession at the time of their levy the fine be as follow one  of the defendant witness be ask who be in possession at the time of the death  of Robert dorm which be his answer be that the defendant the daughter be that  he be send down by they to the tenant of the premise and receive of the tenant  mention Collins as one rend amount to l the whole estate be about l or l per  and and that be give receipt in the name of the daughter and pay the rend over  to they upon his crossexamination be be ask about mrs dorm the widow be say  that she come into possession of the mansionhouse that mrs dorm have the  liberty give her of choose what tenant shall pay her l per and out of the  estatethat when he receive the above rend be do not know whether she have make  election or not and further he say that mrs dorm have pay money to the parson  by way of composition for this other witness depose that he have hear mrs dorm  say that she live in the Andrews mansionhouse by the charity of her daughter  and that she be incline to use Collins for one of her tenant upon this state  of the evidence it be plain that there be no proof of a actual entry by the  defendant and the manner in which the rend be receive seem to show that they  have no other possession than by receive part of the rend after Mr justice  dorm death and there be no evidence of any receipt but two only what the title  of the defendant be in respect of estate the jury can not judge and all that  appear relate to mrs dorm interest be that she have per and give to her b that  the will of Mr justice dorm which at best be very dubious evidence of her  estate as this whole evidence bath the appearance of great uncertainty in it  the question upon the possession be leave entire to the jury and this  agreeable to the opinion of a very great man I mean the Lord chief justice  Vaughan in Vaugb for take it for grant that the rend receive by the defendant  agent be apply to their use which I suppose be the case yet this alone seem  insufficient to determine that they be in possession of the estate and the  verdict must be against all evidence in order to entitle the party to a new  trial it appear in evidence by a settlement produce that Robert dorm be tenant  for ninetynine year determinable on his Andrews er p life remainder from and  after his death or other soon determination of the estate limit to he to  trustee for his life to preserve contingent remainder remainder to the first  and other son of Robert dorm in tail male with remainder over it further  appear that Robert d and Fleetwood his only son levy a fine and suffer a  common recovery and that Robert dorm afterward die leave issue only four  daughter the defendant now if on this fine and recovery it may be take for  certain that Robert d become seize in fee I shall then think that the receipt  of the rend by his heir be sufficient evidence of their have be in possession  but to say this will be a determination of the great question between the  party whether the fine and recovery have this operation or not as to the fine  if this Andrews be consider as a fine levy by Robert d who be tenant for year  only it operate nothing   in I Inst b Lord coke indeed say that if tenant in  tail make a lease for year of land and afterward levy a fine thereof this be a  discontinuance for a fine be a feoff on record and the freehold passes but in  hunt and bourn which be report in salk and of which I have see the resolution  of the court under Lord holt own hand Lord holt take notice of the say of Lord  coke that a fine be a feoff upon record say that this be all expression by way  of similitude only but not proper and legal for that a fine and feoff be a  different species of conveyance and there be no such thing as a feoff upon  record a fine come Ceo he say suppose a previous feoff and they have different  operation and he cite buckler case   a though that part of the case have be  question in cro car and it be also say b that Lord holt that if a tenant for  year make a feoff in fee it divest the estate out of the lessor   but a fine  by a term or nil service upon these authority it seem very clear that in this  case by the fine no estate be divest nor a fee gain I shall say nothing at  present of the operation of the recovery upon the whole matter the question  therefore be whether as nothing be yet determine in relation to the defendant  right they be not to be consider as mere stranger at the time of the receipt  of the rend for the lessor of the plaintiff bath plain a title under the  settlement and that of the defendant be then at least very doubtful now it be  very clear that the receipt of rend be not sufficient proof of possession if  the person to who it be pay do not appear to have a title but be consider as  stranger hob roll pl as therefore it do not appear that the defendant have any  title and consequent their receive rend without a actual entry be not  sufficient to give they possession and as it be a principle always adhere to  Andrews that after a trial at bar where the evidence be doubtful a new trial  shall not be grant we be all of opinion that a new trial ought not to be grant  in this case see do v William Cowp where this case be cite by Lord Mansfield