Justices of Burlington County v. Fennimore

Supreme Court of New Jersey

Justices of Burlington County v. Fennimore

1 N.J.L. 339

DecidedApril 15, 1795

StatusPublished

This text of 1 N.J.L. 339 (Justices of Burlington County v. Fennimore) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Justices of Burlington County v. Fennimore, 1 N.J.L. 339 (N.J. 1795).

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Opinion

Kinsey, C. J.

The granting a new trial is altogether discretionary with the court, and the object in view, by which they should be governed in the exercise of this discretion, is the attainment of justice. 1 T. R. 277, 719-20; 2 T. R. 4; 4 T. R. 469, 757; 1 Burr. 397, 12, 54.

The awarding costs or not, ought to depend on some other distinction than that of a difference between the mistakes of the judge, and of the jury. There seems no good reason for this, and it is nowhere laid down as a general rule. In 1 Barr. 393, Lord Mansfield says a new trial is granted in a [295] way most favorable to him who has the wrong verdict; it is done on payment of costs. He could not mean to lay this down as a universal rule, subject to no exception; perhaps it may be right, where the court grant a new trial in dubious cases, or where there is a manifest difference of opinion between the.court and jury, as in the case of Good-title v. Clayton et al., where there was evidence on both sides, and where the judge who tried the cause said that he could not declare himself dissatisfied with the verdict.

But in all eases where the verdict is manifestly wrong, whether it proceeded from the mistake of the judge or of the jury, there seems no reason why the losing party should be compelled to pay an extraordinary sum in the way of costs, in order a have a chance of justice. Such an idea is at variance with the first principles of the common law, with the real spirit of Magna Charta, and if it has been inadvertently sanctioned by courts, should at once be eradicated from the system. In the case of Levat v. Parsons, the judge gave leave to move for a new trial without costs. In the case of Jackson v. Duchaire, 3 T. Rep. 551, Judge Buller says, “ if [342]*342the verdict be manifestly against the justice of the case, and the judge’s direction, it is fit that a new trial should be granted without costs.”

This further enforces the propriety of the distinction before alluded to between a verdict plainly wrong and one which the court will set aside upon less cogent and palpable reasons. In the present case, a new trial was ordered for the mistake of the jury, a plain and important mistake; in such a case costs ought not to be awarded, though it is admitted that in general the rule has been the other way.

However, there is another ground in this case for refusing costs. The order for costs must be contained in the rule for the new trial; it is too late at this period, after the trial has been had, to annex a condition. It cannot be distinguished from the case in Douglass, which has been cited.

Rule dischai’ged.

Cited in Den v. Morris, 3 Hal. 213

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Kinsey, C. J.

The granting a new trial is altogether discretionary with the court, and the object in view, by which they should be governed in the exercise of this discretion, is the attainment of justice. 1 T. R. 277, 719-20; 2 T. R. 4; 4 T. R. 469, 757; 1 Burr. 397, 12, 54.

The awarding costs or not, ought to depend on some other distinction than that of a difference between the mistakes of the judge, and of the jury. There seems no good reason for this, and it is nowhere laid down as a general rule. In 1 Barr. 393, Lord Mansfield says a new trial is granted in a [295] way most favorable to him who has the wrong verdict; it is done on payment of costs. He could not mean to lay this down as a universal rule, subject to no exception; perhaps it may be right, where the court grant a new trial in dubious cases, or where there is a manifest difference of opinion between the.court and jury, as in the case of Good-title v. Clayton et al., where there was evidence on both sides, and where the judge who tried the cause said that he could not declare himself dissatisfied with the verdict.

But in all eases where the verdict is manifestly wrong, whether it proceeded from the mistake of the judge or of the jury, there seems no reason why the losing party should be compelled to pay an extraordinary sum in the way of costs, in order a have a chance of justice. Such an idea is at variance with the first principles of the common law, with the real spirit of Magna Charta, and if it has been inadvertently sanctioned by courts, should at once be eradicated from the system. In the case of Levat v. Parsons, the judge gave leave to move for a new trial without costs. In the case of Jackson v. Duchaire, 3 T. Rep. 551, Judge Buller says, “ if [342]*342the verdict be manifestly against the justice of the case, and the judge’s direction, it is fit that a new trial should be granted without costs.”

This further enforces the propriety of the distinction before alluded to between a verdict plainly wrong and one which the court will set aside upon less cogent and palpable reasons. In the present case, a new trial was ordered for the mistake of the jury, a plain and important mistake; in such a case costs ought not to be awarded, though it is admitted that in general the rule has been the other way.

However, there is another ground in this case for refusing costs. The order for costs must be contained in the rule for the new trial; it is too late at this period, after the trial has been had, to annex a condition. It cannot be distinguished from the case in Douglass, which has been cited.

Rule dischai’ged.

Cited in Den v. Morris, 3 Hal. 213

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Bluebook (online)

1 N.J.L. 339, Counsel Stack Legal Research, https://law.counselstack.com/opinion/justices-of-burlington-county-v-fennimore-nj-1795.