CHAPTER XII.

NEW TRIAL (a).

1. Notice of Application after Trial with Jury (b).

Take notice that the Court of Appeal will be moved at the expiration of fourteen days from the service hereof (c), or so soon thereafter as counsel can be heard, by counsel on behalf of the plaintiff [or defendant] for an order that the verdict given and judgment directed on the trial of this action. before the Honourable Mr. Justice and a [special] jury at, on the day of -, 19-, be set aside, and a new trial be had between the parties, and that the costs of the former trial abide the result; or alternatively that judgment be entered in the action for the with costs of the action. And for an order that the the costs of and occasioned by this application.

pay to the

(a) By R. S. C., Ord. XXXIX., r. 1, "Every motion for a new trial or to set aside a verdict, finding, or judgment, shall be made, where there has been a trial without a jury, by appeal to the Court of Appeal."

By r. 1A., "Every motion for a new trial, or to set aside a verdict, finding, or judgment where there has been a trial thereof or of any issue therein with a jury, shall be entered in the Court of Appeal in the same way as motions by way of appeal to the Court of Appeal are now entered where there has been a trial without a jury. Such firstmentioned motions shall be subject to the provisions of Ord. XXXIX., r. 4 ; and shall be brought before the Court of Appeal in like manner as an appeal, and upon the hearing of such motion the Court of Appeal shall have all such powers as are exerciseable by it upon the hearing of an appeal."

The above rules reproduce R. S. C., 1883, Ord. XXXIX., r. 1, as amended by R. S. C., Aug., 1890, and Feb., 1892 (r. 2). As to appeals to the Court of Appeal, see post, Part VIII., Chapter 1.

(b) Every application for a new trial must be by notice of motion (Ord. XXXIX., r. 3). (c) By Ord. XXXIX., rr. 4, 4A, "The notice of motion shall be a fourteen days' notice, and shall be served within the times following: viz., if the trial has taken place in London or Middlesex, within eight days after the trial; if the trial has taken place elsewhere than in London or Middlesex, within seven days after the last day of sitting on the circuits for England and Wales during which the trial shall have taken place. The time of the vacations shall not be reckoned in the computation of the time for serving the notice of motion."

By r. 5, "The notice may be amended at any time by leave of the Court or a Judge on such terms as the Court or Judge may think just."

And further take notice that the grounds of the application are () that [here state concisely the grounds relied upon; see form No. 2, infra]. [And further take notice that all the findings of the jury are complained of (or that the complains of part only of the findings of the jury viz., the finding that, stating the part complained of (d).]

2. Grounds of Application, to be stated in the Notice of Application for New

Trial (d).

[The following are some of the grounds frequently alleged in support of the application:]

1. That the verdict was against the weight of the evidence.

2. That the damages awarded were excessive.

3. That the learned Judge misdirected the jury (e) by directing them [or by not directing them] that [stating concisely the misdirection

complained of (ƒ)].

4. That there was evidence in support of the plaintiff's claim proper to be left to the jury, and the learned Judge was wrong in withdrawing the case from the jury, and directing judgment for the defendant.

5. That the learned Judge was wrong in refusing to leave to the jury the question (e) whether [stating the question which should have been left to the jury].

6. That the evidence of --was improperly admitted [or rejected] as evidence for the (e).

3. Notice, after Trial without Jury (g).

[Title as in form No. 1, supra.]

[Formal parts as in form No. 1, supra] for an order that the judgment of the Honourable Mr. Justice on the trial of this action on the

(d) A notice of motion for a new trial must "state the grounds of the application, and whether all or part only of the verdict or findings is complained of” (Ord. XXXIX., r. 3).

(e) By Ord. XXXIX., r. 6, "A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the Judge at the trial was not asked to leave to them, unless in the opinion of the Court to which the application is made some substantial wrong or miscarriage has been thereby occasioned in the trial; and if it appear to such Court that such wrong or miscarriage affects part only of the matter in controversy, or some or one only of the parties, the Court may give final judgment as to the part thereof, or some or one only of the parties, and direct a new trial as to the other part only or as to the other party or parties."

(f) The notice must state how the jury were misdirected (Pfeiffer v. Midland R. Co., 18 Q. B. D. 243).

(g) By R. S. C., Ord. LVIII., r. 5, "If upon hearing of an appeal, it shall appear to

day of, 19—, in favour of the, and the judgment, if any, signed pursuant thereto, be set aside, and judgment be entered for the [for £, or for the relief claimed in the statement of claim] with costs; or alternatively that a new trial be had between the parties, the costs of the former trial to abide the event. And for an order that the

pay to the

the costs of and occasioned by this appeal, and for such further or other order as the Court shall think fit.

And further take notice that the grounds of this application are that

- [state the grounds relied on].

Dated [&c., concluding as in form No. 1, supra].

for the, upon the plaintiff's [or defendant's] notice of appeal, dated the day of -, 19-, from the verdict and judgment [or from the judgment of the Honourable Mr. Justice] herein, dated the day of

19-:

It is ordered that the said appeal be allowed, and the said [verdict and] judgment, and the judgment, if any, signed thereon, be set aside, and a new trial had between the parties [upon the terms that stating the special terms, if any], [or and judgment be entered for the (for the sum of £———), with costs of action to be taxed], and that the costs of and occasioned by the appeal be [taxed and paid by the to the ]. By the Court.

Dated the

day of, 19—.

5. Order dismissing the Application.

[Formal parts as in the preceding form.] It is ordered that the said appeal be dismissed with costs to be taxed and paid by the

to the

By the Court.

6. Notice of Trial.

A fresh notice of trial must be given. For the form of notice, see ante, p. 334.

the Court of Appeal that a new trial ought to be had, it shall be lawful for the said Court of Appeal, if it shall think fit, to order that the verdict and judgment shall be set aside, and that a new trial shall be had."

(h) By R. S. C., Ord. XXXIX., r. 7, "A new trial may be ordered on any question, whatever be the grounds for the new trial, without interfering with the finding or decision upon any other question."

CHAPTER XIII.

MOTION FOR JUDGMENT (a).

1. Notice of Motion for Judgment where no Judgment directed at Trial (b).

o'clock in the

.Defendant.

will be moved on

days from the service hereof], [at

noon], or so soon thereafter as counsel can be heard by Mr. -, of counsel for the plaintiff [or defendant], on his behalf, that judgment be entered herein for the plaintiff [or defendant] for [stating the judgment sought]. And that the costs of this application be Dated

To the above-named defendant [or plaintiff], and Mr. Z., his solicitor.

Yours, &c., X. Y., Plaintiff's [or defendant's] solicitor.

66

(a) Motion for Judgment.]—By Ord. XL., r. 1, “ Except where by the Acts or by these Rules it is provided that judgment may be obtained in any other manner, the judgment of the Court shall be obtained by motion for judgment."

Two clear days' notice of motion should be given (Ord. LII., r. 5).

Time within which Motion must be made.]-By Ord. XL., r. 9, "No motion for judgment shall, except by leave of the Court or a Judge, be set down after the expiration of one year from the time when the party seeking to set down the same first became entitled so to do."

Power of Court to give Judgment at once or postpone.]-By Ord. XL., r. 10, " Upon a motion for judgment, or upon an application for a new trial, the Court may draw all inferences of fact not inconsistent with the finding of the jury, and if satisfied that it has before it all the materials necessary for finally determining the questions in dispute, or any of them, or for awarding any relief sought, give judgment accordingly, or may, if it shall be of opinion that it has not sufficient materials before it to enable it to give judgment, direct the motion to stand over for further consideration, and direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made, as it may think fit."

(b) Motion where no Judgment directed at Trial.]—As a rule, such motion is now unnecessary, because by Ord. XXXVI., r. 39, "the Judge shall, at or after trial, direct judgment to be entered as he shall think right, and no motion for judgment shall be necessary in order to obtain such judgment." The Judicature Act, 1890, s. 2, provides that every motion for judgment after a trial with a jury shall be heard and determined by the Judge before whom such trial took place, and not by a Divisional Court, unless it be impossible or inconvenient that such Judge should act, in which case such motion shall be determined and heard by some other Judge to be nominated by the Lord Chief Justice.

C.F.

24

2. Notice of Motion to set aside Judgment directed, and to enter other

Take notice that the Court of Appeal will be moved on

so soon thereafter as counsel can be heard, by [Mr.

next, or

of] counsel for

the plaintiff [or defendant], on his behalf, that the judgment directed to be entered herein by the Honourable Mr. Justice

at the trial hereof [with a

-, at (&c., as above),

of the judgment directed to be entered herein by as directs that (stating the part sought to be set aside)], be set aside, and that judgment be entered for the plaintiff [or defendant] for — [stating the judgment sought] on the ground that the judgment directed to be entered is wrong, by reason that the finding of the jury upon the question [or questions] submitted to them has not been properly entered [or upon the ground that upon the finding as entered the judgment so directed is wrong, or as the grounds may be], and that the costs of this application be paid by the to the

Upon hearing Mr., of counsel for the plaintiff herein, and Mr. of counsel for the defendant, and upon the plaintiff's [or defendant's]

(c) Motion to set aside Judgment directed, and enter other Judgment.]—By Ord. XL., r. 3, "Where, at or after a trial with a jury, the Judge has directed that any judgment be entered, any party may apply to set aside such judgment and enter any other judgment, on the ground that the judgment directed to be entered is wrong by reason that the finding of the jury upon the questions submitted to them has not been properly entered."

By r. 4, "Where, at or after a trial by a Judge either with or without a jury, the Judge has directed that any judgment be entered, any party may apply to set aside such judgment and to enter any other judgment, upon the ground that, upon the finding as entered, the judgment so directed is wrong."

By r. 5 (as amended by r. 5A), "An application under Rules 3 and 4 of this Order shall be to the Court of Appeal."

An application under this rule is an application on appeal under Ord. LVIII., rr. 2 and 4 (post," Appeal to Court of Appeal"), and must be made on notice of motion.

By R. S. C., Ord. LVIII., r. 5, "If upon hearing of an appeal it shall appear to the Court of Appeal that a new trial ought to be had, it shall be lawful for the said Court of Appeal, if it shall think fit, to order that the verdict and judgment shall be set aside, and that a new trial shall be had."