New trials were originally grantable only by the general affenibly, but for public convenience, it has been provided by itatute, f that the fuperior and county courts fhall and may as occafion fhall require and they judge reasonable and proper, grant new trials of caufes that fhall come before them, for mifpleading, or for discovery of new evidence, or for other reafonable caufe appearing, according to the common and ufual rules and method in fuch cafes. It is by virtue of this ftatute, that the fuperior and county courts poffefs the power of granting new trials, and no other courts pofLes that power. The proper mode of application to courts to obtain a new trial, is by petition, ftating the fubftance or reciting the former action, with the reafons of the application; upon which, a notification figned by proper authority is iffued, and ferved upon the oppofite party, by leaving with him, or at his place of abode, a copy of the petition and citation. The petition ought to state the material points on which the cafe was decided, and the particular grounds of his application, fo that the court may fee how far they are eflential, and will affect the merits of the cafe. When the foundation of the application, is a difcovery of new evidence, the petition fhould contain the fubftance of the evidence offered on the trial of the action, and alfo of the new difcovered evidence, fo that the court may judge whether if true it would be material and fufficient to turn the cause in favour of the applicant. Regularly, every new witnefs ought to be named in the petition; but if the petitioner produce witnefles, who are named, and they testify, he may then adduce other witnesses, who can testify substantially to the fame matters, as the other: but if witneffes are named, who are not admitted to testify, witneffes not named cannot then be admitted. g Where witnefies are offered to the fame point, fome of which are, and fome are not named, it is indifferent which firft teftifies. The evidence must not only be material, but it must be new discovered, and fuch as the party could not have obtained by proper attention f Statutes 6. g Dowd vs. Pelton, S. C. 1794. : attention for a new trial fhall not be granted for evidence which might have been obtained on the former trial, or on account of evidence difcovered after the trial, which by using due diligence might have been difcovered before. Therefore in a petition for a new trial, a witnefs was offered, and it appearing that he might by the ufe of due diligence, have been difcovered and adduced on the former trial, he was rejected by the court. When an application for a new trial is made on the ground of mifpleading, the petitioner muft flate the plea which he wishes. for an opportunity to make, fo that it may appear to the court, that it would be fufficient to fave his caufe, for if it appears, that he has loft his caufe by mifpleading, yet if he cannot make a better plea, a new trial will anfwer no purpose, and therefore will not be granted. New trials for mifpleading will be granted, in cafes not only where the party has been guilty of fuch a mistake, that he has not fairly tried the queftion on which he intended to reft his caufe, but alfo in cafes where he has misjudged with regard to the point, on which he ought to have refted it. Thus where the defendant relied on a plea of tendry, and did not aver that he always flood ready to pay the money, for which the plea on demurrer was adjudged ill. This was a mifpleading, by which he failed to try the point, on which he refted his defence, and of course was a good ground for a new trial. So in an action for erecting a dam fo high that it overflowed the plaintiff's land, the defendant pleaded a fpecial matter on which he relied for his juftification, which question on demurrer came fairly before the court, and was adjudged against him. He then petitioned for a new trial, on the ground of mifpleading, becaufe in his demurrer he had admitted the fact of overflowing the land of the plaintiff, by raising his dam to a certain height, which fact he averred was not true, and that he had mispleaded by admitting it to be true, and prayed for a new trial that he might traverfe the fact, which was granted. The petitioner muft fhew, not only how he ought to have plead, but alfo that he is able to fupport his new plea, that his defence is fufficient in point of fubftance, and true in point of fact. The The difcovery of new evidence, and mifpleading, are the gronde ef new trial exprefsly mentioned by ftatute, and there is a ge neral authority given to the courts to grant new trials for other reasonable caufe. This power may be extended fo far, that in all cafes where judgment has been rendered against a perfon, and he had no opportunity of a trial, or had not a fair trial, without any neglect or default on his part, and he can fhew to the court reasonable caufe for a new trial, with grounds fufficient to fatisfy them that judgment ought to be in his favour, they may grant him a new trial. A new trial cannot be granted, because the verdict was against law or evidence, or becaute the damages were unreasonable or exceffive. Where the parties make a fubmiffion to arbitrators by rule of court, and an award is made, a new trial cannot in fuch cafe be granted. In an action on note, the defendant pleaded ufury in bar, which being decided against him, he petitioned for new trial, on the ground of mifpleading, and flated that he ought to have filed a con plaint in equity. The court of common pleas granted a new trial, and on a hearing expunged the intereft of the note, but on writ of error the judgment was reverfed, because the court had no right when a defendant had elected to place his defence upon a direct charge of ufury, to permit him to refort to a bill in equity, and which would not according to the statute, be filed on the fecond day of the fitting of the court. Whenever it is apparent on the face of a petition, that there are no fuflicient reafons for granting a new trial, the refpondent may plead in abatement, which is in the nature of a demurrer : so he may plead any other proper matter in abatement, as want of fervice. If the plea in abatement is over ruled, or if none be offered, it is the practice to proceed to the hearing of the petition, on the merits, without any plea or antwer on the part of the relpondent. A court fhould never grant a new trial, when it appears that fubftantial justice was done in the former trial, nor fhould they ". Bates, S. C. 1789. Fleming grant grant a new trial upon a strict rigid conftruction of the law, contrary to the apparent equity of the cafe. No time is limited within which new trials may be granted, and they are always granted after judgment has been rendered. Which is contrary to the British practice, where new trials are ufually granted on motion after verdict, and before judgment, and commonly because the ver dict is againft law or evidence, or the damages unreasonable, or exceffive, or where the judge has mifdirected the jury. CHAPTER TWENTY-THIRD. OF WRITS OF AUDITA QUERELA, AND WRITS OF ERROR. Ay audita querela, is where a defendant against whom judge ment is recovered, and who is therefore in danger of execution, or perhaps in execution, may be relieved upon good matter of difcharge, which has happened fince the judgment; as if the plaintif has given him a general releafe, or if the defendant has paid the debt to the plaintiff, without procuring fatisfaction to be entered of record, or to be indorfed on the execution. In thefe, and like cafes, where the defendant has good matter to plead, and has had no opportunity, an audita querela lies in the nature of a bill in equity, to be relieved against the oppreffion of the plaintiff, It alfo lies for bail when judgment is against them by fcire facias, to answer the debt of the principal, and it happens afterward, that the original judgment against the principal is reverfed, for here the bail after judgment had against them have no opportunity to plead this special matter, and therefore they shall have redress by audita querela. Where actions are brought on joint contracts against feveral defendants, part living in this ftate, and part in fome other, notice to thofe who live in this ftate is fufficient to bring the action to trial, and those who live out of the ftate, if injured, may be relieved by audita querela. This writ is not a matter of course. It can be granted only by the court who rendered the judgment, if in feffion, and if not, by the chief judge of the court; and in all inftances, the court are bound to enquire, and fee if there are good grounds to grant the fame, which must be figned by the chief judge. The writ contains the fubftance of the complaint, and a command for the party to appear before the court at the next stated term. If the execution on the original judgment be not levied, this writ will be a fuperfedeas. If the parties appear, they may proceed to trial of the question in difpute, in the fame manner as in other actions. If the execution has been levied and collected, and the plaintiff prevails in the action, he will recover all his damages if the execution has not been levied, and the plaintiff does not prevail, then the execution will remain in force, and may be collected, but if the plaintiff prevails, then the execution will be declared and adjudged to be void, and he will recover his coft. Writs of error, lie from the judgments of affistants and justices of the peace, of city courts, and courts of common pleas, to the superior court; and from the fupelior court, to the supreme court of errors. All writs of error are limited to be brought within three years, from the time of rendering judgment. I fhall treat of the fubject, under the following divifions. I. In what cafes Writ of Error will lie. 2. Of the manner of bringing a Writ of Error. 3. Of the affignment of Errors. 4. Of the defence that may be made by the defendant in Error. 5. Of the judgment that may be rendered on a Writ of Error. 1. In what cafes Writs of Error will lie. Writs of error will lie in all cafes for any error or mistake in the judgment of the court, apparent upon the record. In all cafes of demurrers in the courfe of the pleadings, and where facts are conceded, fo that the question of law arifing thereon can appear to the court, error will lie. If the court render an improper judgment on a verdict, motion in arreft, or on default, or nihil dicit, error will lie; for they must not only render the judgment according to the legal operation of the facts that appear, but it must be due and proper form. Where |