BARTHOLOMEW v. CLARK.
[NO NUMBER IN ORIGINAL]
SUPREME COURT OF ERRORS OF CONNECTICUT, HARTFORD
1 Conn. 472; 1816 Conn. LEXIS 20
June Term, 1816, Decided
PRIOR HISTORY: [**1] THIS was an action on the
case for false and fraudulent representations respecting the responsibility of
a mercantile house, whereby the plaintiff was induced to sell them goods to a
large amount on a credit, in consequence of which he sustained a loss.
The cause was tried at Litchfield, February term, 1816, before Edmond, Smith
and Hosmer, Js. The questions of fact, whether the representations were made by
the defendant with a fraudulent intent, and whether the plaintiff was deceived
by them, being submitted to the jury upon the evidence, they found a verdict
for the plaintiff, with 2747 dollars 81 cents, damages. The court did not
accept this verdict, because in their opinion it was against evidence; and
therefore they returned the jury to a second consideration of the cause. The
jury again brought in the same verdict; and the court, on the same ground,
returned them to a third consideration. The jury still adhered to their
verdict; and the court ordered it to be recorded. The defendant immediately
filed a motion in arrest of judgment, which was found not to be true. He then
moved for a new trial, because the verdict was found not only without any
evidence that the representations [**2] claimed to have been made
by the defendant were made with a fraudulent intent, or that the plaintiff was
deceived or defrauded by them, but against clear and satisfactory evidence to
the contrary. The questions of law arising on this motion were reserved for the
consideration and advice of the nine Judges.
DISPOSITION: New trial granted.
[summary of the arguments of counsel omitted]
JUDGES: SWIFT, Ch. J. TRUMBULL, SMITH, BRAINARD, [**16]
BALDWIN, GODDARD and HOSMER, JS. concurred. EDMOND, J. concurring. GOULD, J.
gave no opinion.
OPINION: [*480] SWIFT, Ch. J. The question in this
case is, whether the superior court have a legal power to grant a new trial
where the verdict is against evidence.
To all courts acting on the principles of the common law, the power is
incidental to grant new trials for various causes, among which one is, that the
verdict was against evidence. This has ever been done in England, as
well as in sundry states in the union. Courts in this state, then, acting
according to the common law, have this power unless prohibited by positive law.
The statute respecting this subject authorizes courts to grant new trials,
"for mispleading, discovery of new evidence, or other reasonable cause, according
to the common and usual rules and methods in such cases." This is so far
from being a prohibition, it may be considered as conferring a power to grant
new trials where the verdict is against evidence; for this comes clearly within
the expression, "for reasonable cause according to the common rules."
It would then seem clear, both by the common and statute law, our courts
possess this power. [**17]
It has been supposed from the power of the court to return the jury to the
second and third consideration, the necessary implication is, that they shall
have no further control of the verdict; and that in those countries where new
trials are granted on the ground that the verdict is against evidence, the
courts have no such power. But there is no [*481] inconsistency or
impropriety in the exercise of both these powers; and it may often happen, that
a new trial is rendered unnecessary by returning the jury to a further
consideration where the verdict is wrong. Though the courts in this state have
the peculiar power of returning the jury to a further consideration, yet they
elsewhere exercise as great or even greater authority over the jury. They, in
the first instance, give them their opinion on the sufficiency of the evidence,
which is much more likely to affect the verdict than an opinion given after
they have agreed. It would seem, then, that the exercise of this power can
furnish no reason why the courts in this state should not grant a new trial
where the verdict is against evidence.
No objection can arise from the danger that this power may be abused. It is in
criminal [**18] cases that juries are considered to be the
guardians of the rights of the people against the tyranny and oppression of the
government; but in such cases the power is not claimed to grant new trials.
It is said, that this power has never been exercised; and that it has always
been understood that courts did not possess it. It is true, there has been a
peculiar practice in this state with respect to trials by jury. An idea seems
to have been entertained, at an early period of our government, probably
originating from the power of returning juries to a further consideration, that
courts had no other controul over them. The usage was to state to them the
testimony and the law, as claimed by each party, avoiding, with the utmost
caution, any hint of their opinion with respect to either. When the verdict was
brought in, if the court dissented, they returned them to a further
consideration, giving them their opinion both as to the law and the evidence.
If the jury adhered to their verdict on the third consideration, the court were
obliged to submit, let the verdict be ever so clearly against law or evidence.
Though for a long time this right of the jury was deemed so sacred that our
courts [**19] did not venture to change the practice, yet when they
assumed their constitutional authority to direct the jury in questions of law,
so palpable was the propriety of it, that it met with universal approbation.
Precisely the same objection lies against the innovation of directing the jury
in matters of law, and granting a new trial if the verdict is against it, as
there does against granting a new trial if the verdict is contrary
[*482] to evidence. If an objection of this kind is to prevail,
there can be no improvement in jurisprudence. The science of the law would
become stationary. We ought not to be influenced by such narrow views. We ought
to adopt every improvement calculated to promote the cause of truth and
justice. It is essential to the due administration of justice that such power
should be lodged in courts. What can be more preposterous than to say, that the
verdict of a jury, often composed of men unaccustomed to weigh testimony, and
peculiarly liable to local and personal prejudices and partialities, should
never be ex-examined and corrected, though opposed to the clearest evidence?
It may be said, that judges are liable to the same influence and partialities.
But [**20] they do not decide the question of fact; they only furnish
the means for a fair investigation of the truth, and an impartial trial of the
cause; and from their situation, they act under a responsibility for the
rectitude of their conduct, which cannot be supposed to operate on the minds of
jurors.
I think a discreet and prudent exercise of this power can be attended with no
inconvenience or danger; that it is necessary to adopt it to complete the
fabric of jurisprudence, and to give to courts all the powers essential to a
due execution of the law. It should be exercised only in clear cases, which
will rarely occur. It will leave to juries an important and valuable power in
the trial of civil causes; and when it is understood that an erroneous verdict
can be corrected, the public confidence in the trial by jury will be increased,
instead of being impaired.
I think, therefore, that the motion ought to be sustained. a n1
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
a See State v. Lyon, 12 C. R. 487. Witter
v. Latham, Id. 392. Talcott v., Wilcox, 9 C. R.
184. Kinne v. Kinne & al., 9 C. R. 102. Newell
v. Wright, 8 C. R. 319. Lafflin & al. v. Pomeroy,
11 C. R. 440. Bulkley v. Waterman, 13 C. R.
328. Jackson v. Packer & al., 13 C. R. 342. Johnson
v. Scribner, 6 C. R. 185. The Eagle Bank v. Smith
& al. 5 C. R. 71. Yale v. Sales, 13 C.
R. 185. Johnson v. Hebard, 13 C. R. 337.
[**21]
n1 A new trial will not be granted, unless the verdict is very clearly and
decid edly against the weight of evidence; the courts not interfering with the
appropriate function of the jury, as the tribunal for the decision of questions
of fact, except in extreme cases. Setting aside verdicts as against the weight
of evidence is not the "daily bread, but the extreme medicine," of
the law, and like other powerful remedies, should be very sparingly
administered. See Astor v. The Union Insurance Co. 7 Cowen
202. Douglass v. Tousey, 2 Wend. 352. Kirby v. Sisson,
Id. 550. Smith v. Hicks, 5 Id. 48. Jackson
v. Loomis, 12 Id. 27. Eaton v. Benton, 2
Hill 576, and Keeler v. The Fireman's Ins. Co., 3 Hill 250.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
In this opinion TRUMBULL, SMITH, BRAINARD, BALDWIN, GODDARD and HOSMER, JS.
concurred.
CONCURBY: EDMOND
CONCUR: [*482a] EDMOND, J. I did not expect to be
called upon, at this time, to give my opinion, and assign the reasons which
have governed me in the decision of the questions which [**22] in
this case are presented to the court, and am not very well prepared to do it. I
regret this the more, as the opinion I have formed differs from that of my
brethren whose opinions I highly respect. It is, however, my opinion, which I
am bound to express; and from the consideration I have given [*483]
the subject, I cannot persuade myself that the superior court have a right by
law, to exercise the power, which they are called upon to exercise, as claimed
by the motion; or, in other words, to grant a new trial after the jury have
been returned to a third consideration upon an issue joined on any matter of
fact, and have returned a verdict, which, in the opinion of the court, is
against, or not warranted by, the evidence in the case.
In actions cognizable by the superior and county courts in this state, the
right to have questions of fact tried by a jury has, from a very early period,
been considered as a privilege of primary importance; and the power and
duty of the court in relation to verdicts of the jury found upon issues in
fact, has been repeatedly the subject of legislative contemplation, and
regulated by statute. A slight attention to the various acts which have been
[**23] passed, will evince that the possibility of a question like
the present has not escaped without due consideration. By an act passed in 1644,
the court were empowered to return the jury to a second consideration, when in
their opinion the verdict, was not according to the evidence, and if the jury
adhered to their verdict, to discharge them and cause another jury to be
impannelled for the trial of the issue, a power every way equivalent in effect
to the power of granting a new trial for the same cause after judgment
rendered. In 1694, so much of this act as gave to courts the power of rejecting
the verdict and impannelling a new jury, was repealed; by which it appears,
that an experiment of fifty years had proved to the satisfaction of the
legislature, the inexpediency of vesting the courts with a power, which, in its
exercise, might render the privilege of a jury to try issues in fact merely
nominal. After this repeal, the only power remaining with the court, in cases
where they were of opinion that the verdict of the jury was not warranted by
the evidence, was to send them to a second consideration of the case. Within a
short period after the repeal mentioned, as appears by our statutes
[**24] as revised in 1702, it was enacted "That the judges of
the court shall have liberty, if they judge the jury have not attended to
the evidence given in, and the true issue of the case in their verdict, to
cause them to return to a second consideration of the case; and shall, for like
reason, have power to return them to a third consideration, and no
more." [*484] (Tit. 6. c. 1. s.
11.) This is the extent of power which the legislature thought it expedient at
that time to grant to the court. Accordingly we find in the same act (s.
8.) it is enacted, "That all actions that shall be tried before the
superior or county courts, when issue is joined on any matter of fact, shall be
tried by a jury of twelve men of the neighbourhood, qualified, impannelled and
sworn according to law; who shall find the matter in issue, with the debt or
damages, according to law and their evidence; and the judges shall make up
and declare the sentence thereon." To this section there is indeed a
proviso, that the parties by agreement may put issues in fact to the court; but
that does not affect the present question. In these several acts of the
legislature, previous and up [**25] to 1702, we have the power
and the duty of the court, when there happened to be a difference of
opinion on the facts put in issue between the jury and the court, clearly
stated and defined; and since 1702 these acts have not been varied. With the
common law power of courts, or their practice, either in England or the
neighbouring states, in relation to the subject of granting new trials in cases
like the one now under consideration, our courts had nothing to do. The common
law of England could give to our courts no authority on a subject
contemplated by our own legislature, and expressly provided for by positive
law; or if it could, which I cannot admit, it is to be remembered that the sole
and exclusive power of granting new trials was retained by the Assembly, and
remained in the general court, or assistants' court, (so called) from 1644 to
1762, except so far as that power may be said to have been delegated by the act
of 1644 repealed in 1694, as already mentioned. Antecedent to 1762,
applications for new trials were by petition to the assembly; and it is worthy of
observation, that from 1694, when the power of the court to discharge the jury
and impannel another was [**26] taken away, or even from 1644 up to
1762, not a precedent has been shewn, and I presume there is none to be found,
where a new trial has been granted by the Assembly, or any court in this state,
on the ground now claimed. The law, plain and explicit, had put the question at
rest. In 1762, it was enacted, "That the superior and county courts in
this state, shall and may, from time to time, as occasion shall require, and as
shall by them be judged reasonable and proper, grant new trials of
[*485] causes that shall come before them, for mispleading, or
discovery of new evidence, or for other reasonable cause appearing, according
to the common and usual rules and methods in such cases." (Tit.
6. c. 1. s. 13.) From this statute is derived all the power
in relation to the subject of granting new trials, which the court have a right
to claim. Does this statute convey the authority contended for? The motion is
not founded on mispleading, or the discovery of new evidence. Is it embraced in
the words "for other reasonable cause appearing?" Can that be
considered as a reasonable cause for granting a new trial, which has been
considered by the legislature, and provided for, in [**27] another
way, by a statute defining and restricting the powers of the court in relation
to it? Certainly not.
Should it be said, by the words "common and usual rules and methods in
such cases," reference is had to the English rules and methods,
and that new trials are there granted, when, in the opinion of the judge, the
verdict is against evidence, or the weight of evidence given in the case; I
answer, the reference, if to the English practice at all, can only be
to like cases, presented under like circumstances. They have no statutes
similar to ours on the subject in question. Their example, therefore, on this
point, can furnish neither precedent nor authority.
If the words "common and usual rules and methods," &c. refer to those
rules which had been common and usual in this state, it would be absurd to
suppose the statute confers the power claimed; for not a solitary instance has
been produced to prove the existence of such a rule, or a claim that the court
by virtue of this or any other statute might exercise such a power, although
the English practice must have been well understood. Adopt the
construction contended for, and the result is, you give to a statute of
[**28] more that fifty years' standing a construction it has never
before received, a meaning not obvious or necessary to render it intelligible;
and invest the courts with an extraordinary power, which, in point of
expediency, it may be doubtful whether it is best they should possess, and
which, if possessed, it is admitted, should be exercised with extreme caution.
Let me remark here, that power should be arrogated with caution, and on clear
authority, in the exercise of which extreme caution is required.
[*486] Further, admit the principle, and by necessary consequence,
you repeal, as to their beneficial effect, all those statutes which secure to
the parties, the right to have issues in fact decided by a jury of twelve men
of the neighbourhood; for of very little consequence is that right, if after
all, the court may grant new trials without limitation as to number, and until
a jury can be found to decide the issue correctly in the opinion of the court.
I say, without limitation as to number, for so long as the cause remains for
which the new trial was first granted, so long the process of granting a new
trial (if the court act consistently) must be repeated.
In respect to any imagined [**29] failure of justice in case of an
obstinate jury, if the courts are not permitted to exercise such a power, this
may be a proper subject for the consideration of the legislature, but furnishes
no proof that such a power exists. If, however, it was admissible as an
argument, might it not be said, that questions of fact must be ultimately
decided somewhere; that the decision may as safely be entrusted to twelve
disinterested jurymen of the neighbourhood, as to the judges of the several
courts; and that a possible failure of justice may be apprehended in either
case.
I will only add, to grant a new trial on the ground stated in the motion,
either on a motion in court after verdict, or on a petition brought for that
purpose, would be, in my opinion, an innovation on our system of jurisprudence;
an assumption of power not warranted by the laws of the state; an invasion of the
right given to parties to have issues in fact decided by a jury; a measure
unsupported by any precedent of our own; not contemplated in, or adapted to,
the organization of the superior court; and wholly unnecessary, not to say an
impediment, to the due and speedy administration of justice.
GOULD, J. gave no opinion, [**30] having been of counsel in the
cause.
New trial to be granted.