It is with less confidence that a court ought to advance in granting a new trial on the ground of being against evi dence. "And one reason for this (which can never be answered) is, that the judge cannot fully know upon what evidence the jury gave their verdict, for they may have other evidence than what is shewed in court;" Tri. Per pais, 274. That is to say, the impressions of a jury of what they themselves know of the parties, or witnesses; or what is collected from the manner in which the testimony is given, cannot be communicated, and makes no part of the evidence before the judge. To say that the evidence therefore, in the language of judge Foster, 1 Bur. 397, greatly preponderates against the verdict, is a matter which in no common case can be done. I am therefore not disposed to think that in every case, "Where there is a reasonable doubt," (which is the expression of Lord Mansfield,) we are justifiable in setting aside a verdict.

The granting a new trial must involve the idea, that the court so exercising the power have the evidence all before them, from which the fact was inferred by the jury. Unless therefore in the case of a judge before whom the evidence was given, there cannot be the same evidence that was given to the jury. For though the whole be taken down by the notes of the judge, literatim as to written evidence, and verbatim as to the oral testimony, yet the impression cannot be communicated. For "as much may be frequently collected from the manner in which the evidence is delivered as from the matter of it." 3 Black. 373.

ors.

"The law's delay" is proverbial; it is enumerated by the poet amongst the evils of life. It furnishes an argument against the turning the successful party round to another trial. Nor is it him that it delays only, but other suitThere is greater delay in this state, from the granting new trials, than under the judiciary system of that country from whence we derive the practice. There, the four terms occur every year, to which the motion for a new trial can be made, and the cause may go to trial at the sittings after term; or at a nisi prius court, allowing only reasonable

time for the commission to issue, and the jury to be summoned; and the new verdict may be had in three months. Here, so far as respects the nisi prius, the delay of a new trial, ordered at March term, must be until December, and in all the circuit courts, it cannot be less than a year. So that the delay of judgment and execution, independent of the merits, is of itself an object for a motion for a new trial. Hence it is that in the circuit courts the motion for a new trial, where the verdict is for the plaintiff, is a thing of course, an appeal being given from the judge refusing a new trial, and the delay of course obtained. It being thus a thing contemplated by the judge before whom the cause comes to be tried, that a motion for a new trial will be made, he is led to delay the trial by taking down the written evidence at great length, and to chronicle the small beer' of the testimony ;* endeavouring to reach the whole body of the evidence; so that the time allotted for the circuit is taken up with sometimes little more than a single cause; and when a new trial is granted, the judge who comes the next year, has the same cause to occupy his chirography, and prepare for the motion that is to be made again. This may be said to be in some degree the fault of the system; but the court must take the system as it is, and in matters of practice must look to it; and the reason ab inconveniente must weigh with them in all that is within the province of discretion.

Our legal discretion must have respect to the rights of other parties who are waiting in the country for a hearing of their claims. And at a time when the cry of delay is loud against the administration of justice; it would seem to me that it is our duty to consult despatch in the trials; and to refuse, unless in extreme cases, the throwing the matter back upon another jury. The public sentiment as far as I can collect it, is with the juries, and we hear less of the injustice of verdicts, than of the delay of trials. If a more sparing interference of the courts should be exercsied; it may come to be felt by the people, and lead to a reform in a syswhich does not give time for those revisions of verdicts

tem,

which the constitution and holding of the English courts admits. Is it a time for the courts of this country to be stretching to the utmost extent the control of verdicts, when the struggle is, whether there shall be law judges at all? Rules of law are to be regarded, as much as the principles of any other science; but a great part of these rules which we call law, are but the dictates of natural feeling, or moral reason applied to the case before us; principles of equity and justice resulting from the relations or contracts of men. The judge in the plenitude of his pride, is apt to arrogate to himself, as having alone the capacity to judge of these, or to apply them, which is but the exercise of reason. A consideration of these particulars ought to give respect for the deductions of even uneducated men, so as not lightly to set aside what they have thought the justice of the case.

A knowledge of rules is the result of reading, or of hearing: but the application of them requires a different faculty, and which we denominate common sense; now it is allow. ed on all hands, that a man may have at least the reputation of a great judge, and yet be deficient in the knowledge of human nature, and in natural understanding. It is the province of a court to assist with the knowledge of rules; and of a jury to assist in the application of them. This gives a jury a wider field than the mere finding of a fact, even supposing them excluded from determining what the law is. The sense of a jury in the application of law to the fact, is a great help to the court, and a great support. Consilium simul, atque auctoritas adsunt. (e) [Tacit de Mor. Germ.] A passage which expresses the case, and perhaps shews the origin of juries. I never therefore find the verdict in agreement with my way of thinking, as to the justice of the case before me, but I draw from it strong confirmation of my opinion; nor, ever find it against it, but I go a great way in taking it for granted that I was wrong. And with good reason; for it has been rare, that I have not observed in the

(e) Liguntur in iisdem consiliis et principes qui jura per pagos vicosque reddunt, concilium simul atque auctoritas adsunt.

jury all due deference to the judgment of the court, and it must be a strong sense of right or wrong, that will lead them to dissent. It is this experience, and this course of thought that has given me some renitency to applications for new trials. It has been perhaps increased by the time taken up in arguing them, and the making them in the circuit courts, mere matter of course; so that every cause must be tried, with a view to a new trial, and the judge is more concerned to get the evidence forward to the hearing in term, than to infer from it in the first instance.

So much with respect to the province of the jury in drawing a conclusion of law, and the province of the court, in controling this conclusion in setting aside a verdict. But in matter of fact the conclusion of a jury is still more to be respected. I will not say that it is exclusively their province; but it is peculiarly their province and likely to be invaded. It must be a strong case that would make me easy in throwing the parties upon the country for a new trial, where there has been no surprise; where there has been a full hearing, and with the advantage of learned counsel. But when the motion is made merely on the ground that the verdict is against evidence; and where the judge who has tried the cause, and before whom the verdict was taken, and sanctioned it with his judgment, and now declares himself satisfied with it, I am nearly prepared to say, that to interfere, is a power which I will not undertake to exercise, at least I am prepared to express a wish, that the legislature may interfere and take away the appeal in such cases from the circuit court altogether. In order to prevent delay this must be done, or the system must be changed.

But under the head of granting new trials on the ground of being against evidence, I do not comprehend cases, where looking through the evidence, it may be seen that in the nature of the case there is evidence behind, which had not been before the jury, or in the words of the chief justice of the common pleas, 3 Bos. and Pul. 495, "some facts might be established which are left equivocal;" or where an evident oversight of some facts appears, a party may be allow

ed, in the language of Chambre, 3 Bos. and Pul. 372, "the opportunity of taking the opinion of another jury."

Having made these preliminary observations, I shall now consider in a few words the case before the court. It may be said to involve a question of law; for that an actual settlement is necessary, to support the claim of the plaintiff, or to protect the defendant, is matter of law; and it may be that what shall be construed an actual settlement may be considered as matter of law; but this consideration in the nature of the thing, is so involved with the conclusion to be drawn from the facts, that it amounts to the same thing; for the question will be, whether the facts of the case constitute an act of settlement. The legal conclusion, and the conclusion from the evidence cannot be separated. The verdict can therefore be considered only on the ground of being against evidence. Here then we have the conclusion of a jury, and the sanction of the judge before whom the cause was tried; and what weighs still more with me, that judge, after reflection and a lapse of time, declaring himself satisfied with the verdict. I shall therefore not be disposed to disturb it; but to concur in refusing a new trial.

OBSERVATIONS TO THE

STUDENT ON THE PRACTICE OF THE LAW.

SINCE I wrote what I had said, "might be called an introduction," &c. I have seen the preface to the American edition of lord Erskine's speeches, New-York, 1813. The editor is of opinion, "that it can be demonstrated, that there is actually a greater aggregate amount of talent exhibited at the American, than at the English bar." He founds this. upon reasons a priore, that there ought to be. "For, in this country," says he, "there is no other outlet for the first rate talent of her children, than that of the profession of the law. That, the nature of our political institutions forbids any hope of our statesmen acquiring any permanent power