NEW TRIAL. In Practice. A re-hear ing of the legal rights of the parties, upon disputed facts, before another Jury, granted by the court on motion of the party dissatis fied with the result of the previous trial, upon a proper case being presented for the pur pose. 4 Chitty, Gen. Pract. 30 ; 2 Graham & W. New Tr. 32. It is either upon the same, or different, or additional evidence, before a new jury, and probably, but not necessarily, before a different judge.
2. The origin of the practice of granting new trials is of extremely ancient date, and, consequently, involved in some obscurity. Blackstone gives the most connected and satisfactory account of it of any wiiter. 3 Blackstone, Comm. 387, 388.
Courts have, in general, a discretionary nower to grant or refuse new trials, accord ing to the exigency of each particular case, upon principles of substantial justice and equity. The reasons which will induce them to exercise this power will be enumerated in what follows.
The not giving the defendant suelcient no tice of the time and place of trial, unless waived by, an appearance and making de fence, will be a ground for setting aside the verdict. 3 Price, Exoh. 72 ; 1 Wend. N. Y.
22. But to have this effect the defendant's ignorance of the trial must not have been owing to his own negligence, and the insuffi ciency of the notice must have been reason ably calculated to mislead him. 7 Term, 59; 2 Bibb, Ky. 177.
3. Mistakes or onzissions of officers in sum moning and drawing jurors, when the irregu. larity deprives the party complaining of a substantial right, will entitle him to a new trial. 2 Halst. N. J. 244. Likewise, where the officer summoning the jury is nearly re lated to one of the parties, 10 Serg. & R. Penn. 334 ; 1 South. N. J. 364 ; or is inte rested in the event, 5 Johns. N. Y. 133, un less the objection to the officer was waived by the party, 3 Me. 215; 21 Pick. Mass. 457, or the authority of the officer be so circumscribed as to put it out of his power to select an im proper jury. 7 Ala. 253 ; 7 Cow. N. Y. 720. And the verdict will be 'set aside for the fol lowing causes : the unauthorized interference of a party, or his attorney, or the court, in selecting or returning jurors,—unless the in terference can be satisfactorily explained, 2 Graham & W. New Tr. 173-179 ; 8 Humphr. Tenn. 412 ; that a juror not regularly sum moned and returned personated another, Barnes, 455 ; 7 Dowl. & R. 684 ; but not if the juror personated another through mis take, was qualified in other respects, and no injustice has been done, 12 East, 229 ; that a juror sat on the trial after being challenged and set aside,—unless the party complaining knew of it, and did not object, 3 Yeates, Penn. 318 ; that a juror was discharged with
out any sufficient reason, after being sworn, 1 Ohio St. 66 ; but not if the juror was dis charged by mistake and with the knowledge and acquiescence of the party, 9 Metc. Mass. 572 ; 5 lred. No. C. 58 ; that the jury were not sworn, or that the oath was not adminis tered in the form prescribed by law. 1 How. 497 ; 2 Me. 270.
4. The disqualification of jurors, if it has not been waived, will be ground for a new trial: as, the want of a property qualifica tion, 4 Term, 473 ; 15 Vt. 61 ; relationship to one of the parties, 32 Me. 310, unless the re lationship be so remote as to render it highly improbable that it could have had any influ ence, 12 Vt. 661 ; interest in the event, 2 Johns. N. Y. 194 ; 21 N. H. 438 ; conscien tious scruples against finding a verdict of guilty, 13 N. H. 536 ; 16 Ohio, 364 ; 13 Wend. N. Y. 351 ; mental or bodily disease unfittin.g jurors for the intelligent performance of their duties, 6 Humphr. Tenn. 59 ; 8 Ill. 368 ; alien age. 6 Johns. N. Y. 332 ; 2 Ill. 476. But seo 8 Ill. 202 ; 4 Dall. Penn 353.
5. When indirect measure,s have been re. sorted to to .prOudice the jvry, or tricks prac tised or disingenuous attempts made to sup press or stifle evidence or thwart the pro ceedings, or to obtain an unconscionable ad vantage, they will be defeated by granting a new trial. For example : where papers map terial on the point in issue, not previously submitted, are surreptitiously handed to the jury, Cas. temp. IIardw. 116 ; 2 Yeates, Penn. 273 ; or where the party, or some one in his behalf, directly approaches the jury on the subject of the trial. 7 Sorg. & R. Penn. 458 ; 13 Mass. 218. But if the other party is aware of such attempts, and neglects to correct them when in his power, he will be deemed to have waived all ohjection. 11 Mod. 118. If the interference with the jury comes from a stranger, he without fault in the jury, and without the knowledge of the parties, and no injury has thereby ensued, the verdict will not be disturbed. 5 Mo. 525 ; 3 Bibb, Ky. 8 ; 11 Humphr. Tenn. 169, 491. But see 9 Miss. 187 ; 16 zd. 465 ; 20 id. 398. Where the jury, after retiring to deliberate, examine witnesses in the case, a new trial will be granted, Croke Eliz. 189 ; 2 Bay, So. C. 94 ; 1 Brev. No. C. 16 ; so, also, wheu one of their number communicates to his fellows private informa tion possessed by him, which influences the finding, 1 Sid. 235 ; I Swan, Tenn. 61 ; 2 Yeates, Penn. 166 ; 4 Dall. Va. 112 ; 4 Yerg. Tenn. 111 ; or the judge addresses a note to them, or privately visits them, after they have retired to deliberate. 1 Pick. Mass. 337 ; 10 Johns. N. Y. 238 ; 13 id. 487.