NEW TRIAL, practice, A reexamination of an issue in fact, before a court and jury, which had been tried, at least once, before the same court and a jury.
2. The origin of the practice of granting new trials is concealed in the night of time.
3. Formerly new trials could be obtained only with the greatest difficulties, but by the modern practice, they are liberally granted in furtherance of justice.
4. The reasons for granting new trials are numerous, and may be classed as follows; namely:
1. Matters which arose before and in the course of trial. These are, 1st. Want of due notice. Justice requires that the defendant should have sufficient notice of the time and place of trial; and the want of it, unless it has been waived by an appearance, and making defence, will, in general, be sufficient to entitle the defendant to a new trial. Bull., N. P. 327; 3 Price's Ex. R. 72; 3 Dougl. 402; 1 Wend. R. 22. But the insufficiency of the notice must have been calculated reasonably to mislead the defendant. 7 T. R. 59. 2d, The irregular impanneling of the jury; for example, if a person not duly qualified to serve be sworn: 4 T. R. 473; or if a juror not regularly summoned and returned personate another. Willes, 484; S. C. Barnes, 453. In Pennsylvania, by statutory, provision, going on to trial will cure the defect, both in civil and criminal cases. 3d. The admission of illegal testimony. 3 Cowen's Rep. 712 2 Hall's R. 40. 4 Chit. Pr. 33 4th. The rejection of legal testimony. 6 Mod. 242; 3 B. & C. 494; 1 Bingh. R. 38; 1 John. IR,. 508; 7 Wend. R. 371; 3 Mass. 124; 6 Mass. R. 391. But a new trial will not be granted for the rejection of a witness on the supposed ground of incompetency, when another witness establishes the same fact, and it is not disputed by the other side. 2 East, R. 451; and see other exceptions in 1 John. R. 509; 4 Ohio Rep. 49; 1 Charlt. B. 227; 2 John. Cas. 318. 5th. The misdirection of the judge. Vide article Misdirection, and 4 Chit. Pr. 38.
5. - 2. The acts of the prevailing party, his agents or counsel. For example, when papers, not previously submitted, are surreptitiously handed to the jury, being material on the point in issue. Co. Litt. 227; 1 Sid. 235; 4 W. C. C. R. 149. Or if the party, or one on his behalf, directly approach a juror on the subject of the trial. Cro. Eliz. 189; 1 Serg. & Rawle, 169; 7 Serg. & Rawle, 358; 4 Binn. 150; 13 Mass. R. 218; 2 Bay R. 94; 6 Greenl. R. 140. But if the other party is aware of such attempts, and he neglects to correct them when in his power, this will not be a sufficient reason for granting a new trial. 11 Mod. 118. When indirect measures have been resorted to, to prejudice the jury; 3 Brod. & Bing. 272; 7 Moore's R. 87; 7 East, R. 108; or tricks practiced; 11 Mod. 141; or disingenuous attempts to suppress or stifle evidence, or thwart the proceedings, or to obtain an unconscientious advantage, or to mislead the court and jury, they will be defeated by granting a new trial. Grah. N. T. 56; 4 Chit. Pr. 59.
6. - 3. The misconduct of the jury, as if they acted in disregard of their oaths; Cro. Eliz. 778; drinking spirituous liquors, after being charged with the cause; 4 Cowen's R. 26; 7 Cowen's R. 562; or resorting to artifice to get rid of their confinement; 5 Cowen's R. 283; and such like causes will avoid a verdict. Bunb. 51; Barnes, 438; 1 Str. 462; 2 Bl. R. 1299; Comb. 357; 4 Chit. Pr. 48 to 55. See, t's to the nature of the evidence to be received to prove misconduct of the jury, 1 T. R. 11; 4 Binn. R. 150; 7 S. & R. 458.
7. - 4. Cases in which the verdict is improper, because it is either void, against law, against evidence, or the damages are excessive. 1. When the verdict is contrary to the record; 2 Roll. 691; 2 Co. 4; or it finds a matter entirely out of the issue; Hob. 53; or finds only a part of the issue; Co. Litt. 227; or when it is uncertain; 8 Co. 65; a new trial will be granted. 2. When the verdict is. clearly against law, and injustice has been done, it will be set aside. Grah. N. T. 341, 356. 3. And so will a verdict be set aside if given clearly against evidence, and the presiding judge is dissatisfied. Grah. N. T. 368. 4. When the damages are excessive, and appear to have been given in consequence of prejudice, rather, than as an act of deliberate judgment. Grah. N. T. 410; 4 Chit. Pr. 63; 1 M. & G. 222; 39 E. C. L. R. 422.
8. - 5. Cases in which the party was deprived of his evidence by accident or because he was not aware of it. The non-attendance of witnesses, their mistakes, their interests, their infirmities, their bias, their partial or perverted views of facts, their veracity, their turpitude, pass in review, and in proportion as they bear upon the merits avoid or confirm the verdict. The absence of a material piece of testimony or the non-attendance of witnesses, contrary to reasonable expectation, and reasonably accounted for, will induce the court to set aside the verdict, and grant a new trial; 6 Mod. 22 11 Mod. 1; 2 Chit. Rep. 195; 14 John. R. 112; 2 John. Cas. 318; 2 Murph, R. 384; as, if the witness absent himself with out the party's knowledge after the cause is called on,; 14 John. R. 112; or is suddenly taken sick; 1 McClell. R. 179 and the like. The court will also grant a new trial, when the losing party has discovered material evidence since the trial, which would probably produce, a different result; this evidence must be accompanied by proof of previous diligence to procure it. To succeed, the applicant must show four things: 1. The names of the new witnesses discovered. 2. That the applicant has been diligent in preparing, his cage for trial. 3. That the new facts were discovered after the trial and will be important. 4. That the evidence discovered will tend to prove facts which were not directly in, issue on the trial, or were not then known and investigated by proof. 8 J. J. Marsh. R. 521; 2 J. J. Marsh. R. 52; 5 Serg. & Rawle, 41; 6 Greenl. R. 479; 4 Ohio Rep. 5; 2 Caines' R. 155; 2 W. C. C. R. 411; 16 Mart. Louis. Rep. 419; 2 Aiken, Rep, 407; 1 Haist. R. 434; Grah. N. T. ch. 13.
9. New trials may be granted in criminal as well as in civil cases, when the defendant is convicted, even of the highest offences. 3 Dall. R. 515; 1 Bay, R. 372; 7 Wend. 417; 5 Wend. 39. But when the defendant is acquitted, the humane influence of the law, in cases of felony, mingling justice with mercy, in favorem vitae et libertatis, does not permit a new trial. In cases of misdemeanor, after conviction a new trial may be granted in order to fulfil the purpose of substantial justice; yet, there are no instances of new trials after acquittal, unless in cases where the defendant has procured his acquittal by unfair practices. 1 Chit. Cr. Law, 654; 4 Chit. Pr. 80. Vide, generally, 21 Vin. Ab. 474 to 493; 3 Chit. Bl. Co 387, n.; 18 E. C. L. R. 74, 334; Bac. Ab. Trial, L; 1 Sell. Pr. 482; Tidd's Pr. 934, 939; Graham on New Trials 3 Chit. Pr. 47; Dane's Ab. h. t.; Com. Dig. Pleader, IR. 17; 4 Chitty's Practice, part 7, ch. 3. The rules laid down to authorize the granting of new trials in Louisiana, will be found in the Code of Practice, art. 557 to 563.
NEW WORK. In Louisiana, by a new work is understood every sort of edifice or other work, which is newly commenced on any ground whatever.
2. When the ancient form of the work is changed, either by an addition being made to it, or by some part of the ancient work being taken away, it is styled also a new work. Civ. Code of Lo. 852; Puff. b. 8 , c. 5, SS 3; Nov. Rec. L. 1, tit. 32; Asso y Manuel, b. 2, tit. 6, p. 144.
NEW YORK. The name of one of the original states of the United States of America. ln its colonial condition this state was governed from the period of the revolution of 1688, by governors appointed by the crown assisted by a council, which received its appointments also from the parental government, and by the representatives of the people. 1 Story, Const. B. 1, ch. 10.
2. The present constitution of the state was adopted by a convention of the people, at Albany, on the ninth day of October, 1846, and went into force from and including the first day of January, 1847. The powers of the government are distributed among three classes of magistrates, the legislative, the executive, and the judicial;
3. - 1. The legislative power is vested in a senate and assembly. By the second article, section first, of the constitution, the qualifications of the electors are thus described, namely:: Every male citizen of the age of twenty- one years, who shall have been a citizen for ten days, and an inhabitant of this state one year next, preceding any election, and for the last four months a resident of the county where he may offer bis vote, shall be entitled to vote at such election in the election district of which he shall at the time be a resident, and not elsewhere, for all officers that now are or hereafter may be elective by the people; but such citizen shall have been for thirty days next preceding the election, a resident of the district from which the officer is to be chosen for whom he offers his vote. But no man of color, unless he shall have been for three years a citizen of this state, and for one year next preceding any election shall have been seised and possessed of a freehold estate of the value of two hundred and fifty dollars, over and above all debts and incumbrances, charged thereon, and shall have been actually rated and paid a tax thereon, shall be entitled to vote at such election. And no person of color shall be subject to direct taxation unless he shall be seised and possessed of such real estate as aforesaid.
4. The third article provides as follows Sect. 6. The members of the legislature sliall receive for their services, a sum not exceeding tbree dollars a day, from the commencement of the session; but such pay shall not exceed in the aggregate, three hundred dollars for per them allowance, except in proceedings for impeachment. The limitation as to the aggregate compensation shall not take effect until the year one thousand eight hundred and forty - eight. When convened in extra session by the governor, they shall receive three dollars per day. They sliall also receive the sum of one dollar for every ten miles they shall travel, in going to and returning from their place of meeting on the most usual route. The speaker of the assembly shall, in virtue of his office, receive an additional compensation equal to one-third of his per them allowance as a member.
Sect. 7. No member of the legislature shall receive any civil appointment within this state, or to the senate of the United States, from the governor, the governor and senate, or from the legislature, during the term for which he shall have been elected; and all such appointments, and all votes given for any such member, for any such office or appointment, shall be void. Sect. 8. No person being a member of congress, or holding any judicial or military office under the United States, shall hold a seat in the legislature. And if any person shall, after his election as a member of the legislature, be elected to congress, or appointed to any office, civil or military, under the government of the United States, his acceptance thereof shall vacate his seat.
Sect. 9. The elections of senators and members of assembly, pursuant to the provisions of this constitution, shall be held on the Tuesday succeeding the first Monday of November, unless otherwise directed by the legislature.
Sect. 10. A majority of each house shall constitute a quorum to do business. Each house sliall determine the rules of its own proceedings, and be the judge of the elections, returns and qualifications of its own members, shall choose its own officers, and the senate shall choose a temporary president, when the lieutenant. governor shall not attend as president, or shall act as governor.
Sect. 11. Each house shall keep a journal of its proceedings, and publish the same, except such parts as may require secrecy. The doors of each house shall be kept open, except when the public welfare shall require secrecy. Neither house shall, without the consent of the other, adjourn for more than two days.
Sect. 12. For any speech or debate in either house of the, legislature, the members shall not be questioned in any other place.
5. - 1. The senate consists of thirty - two members, chosen by the electors. The state is divided into thirty - two districts, and each district elects one senator.
6. Senators are chosen for two years. v20 7. - 2. The assembly shall consist of one hundred and twenty-eight members. Art. 3, s. 2.
8. The state shall be divided into assembly districts as provided by the fifth section of the third article of the constitution as follows: The members of assembly shall be apportioned among the several counties of this state, by the legislature, as nearly as may be, according to the number of their respective inhabitants, excluding aliens, and persons of color not taxed, and shall be chosen by single districts.
"The several boards of supervisors in such counties of this state, as are now entitled to more than one member of assembly, shall assemble on the first Tuesday of January next, and divide their respective counties into assembly districts equal to the number of members of assembly to which such counties are now severally entitled by law, and shall cause to be filed in the offices of the secretary of state and the clerks of their respective counties, a description of such assembly districts, specifying the number of each district and the population thereof, according to the last preceding state enumeration, as near as can be ascertained. Each assembly district shall contain, as nearly as may be, an equal number of inbabitants, excluding aliens and persons of color not taxed, and shall consist of convenient. and contiguous territory; but no town shall be divided in the formation of assembly districts.
"The legislature, at its first session after the return of every enumeration, shall re-apportion the members of assembly among the several counties of this state, in manner aforesaid, and the boards of supervisors in such counties as, may be entitled, under such reapportionment, to more than one member, shall assemble at such time as the legislature making such reapportionment shall prescribe, and divide such counties into assembly districts, in the manner herein directed and the apportionment and districts so to be made, shall remain unaltered until another enumeration shall be taken under the provisions of the preceding section.
"Every county heretofore established and separately organized, except the county of Hamilton, shall always be entitled to one member of the assembly, and no new county shall be hereafter erected, unless its population shall entitle it to a member.
" The county of Hamilton shall elect with the county of Fulton, until the population of the county of Hamilton shall, according to the ratio, be entitled to a member."
9. The members of assembly are elected annually.
10. - 2. The fourth article vests the executive power as follows:
" Sect. 1. The executive power shall be vested in a governor, who shall hold his office for two years; a lieutenant governor shall be chosen at the same time, and for the same term.
" Sect. 2. No person except a citizen of the United States, shall be eligible to the office of governor; nor shall any person be eligible to that office, who shall not have attained the age of thirty years, and who shall not have been five years next preceding his election, a resident within this state.
" Sect. 3. The governor and lieutenant governor shall be elected at the times and places of choosing members of the assembly. The persons respectively having the highest number of votes for governor and lieutenant governor, shall be elected; but in case two or more shall have an equal and the highest number of votes for governor, or for lieutenant governor, the two houses of the legislature at its next annual session, shall, forthwith, by joint ballot, choose one of the said persons so having an equal and the highest number of votes for governor or lieutenaut governor.
" Sect. 4. The governor shall be commander-in-chief of the military and naval forces of the state. He shall have power to convene the legislature (or the senate only) on extraordinary occasions. He shall communicate by message to the legislature at every session, the condition of the state, and recommend such matters to them as be shall judge expedient. He shall transact all necessary business with the officers of government, civil and military. He shall expedite all such measures, as may be resolved upon by the legislature, and shall take care that the laws are faithfully executed. He shall, at stated times, receive for his services, a compensation to be established by law, which shall neither be increased nor diminished after his election and during his continuance in office.
" Sect. 5. The governor shall have the power to grant reprieves, commutations and pardons after conviction, for all offences except treason and cases of impeachment, upon such conditions, and with such restrictions and limitations, as he may think proper, subject to such regulation as may be provided by. law relative to the maniaer of applying for pardons. Upon conviction for treason, he shall have power to suspend the execution of the sentence, until the Oft - - e shall be reported to the legislature at its next meeting, when the legislature shall either pardon, or commute the sentence, direct the execution of the sentence, or grant a further reprieve. He sliall annually communicate to the legislature each case of reprieve, commutation or pardon granted stating the name of the convict, the crime of which he was convicted, the sentence and its date, and the date of the commutation, pardon or reprieve.
"Sect. 6. In case of the impeachment of the governor, of his removal from office, death, inability to discharge the powers and duties of the said office, resignation or absence from the state, the powers and duties of the office shall devolve upon the lieutenant governor for the residue of the term, or until the disability shall cease. But when the governor shall, with the consent of the legislature, be out of the state in time of war, at the head of a military force thereof, he shall continue commander-in-chief of all the military force of the state.
"Sect. 7. The lieutenant governor shall possess the same qualifications of eligibility for office as the governor. He shall be president of the senate, but shall have only a casting vote therein. If during a vacancy of the office of governor, the lieutenant governor shall be impeached, displaced, resign, die, or become incapable of performing the duties of his office, or be absent from the state, the president of the senate shall act as governor, until the vacancy be filled, or the disability shall cease.
"Sect. 8. The lieutenant governor shall, while acting as such, receive a compensation which shall be fixed by law, and which shall not be increased or diminished during his continuance in office.
"Sect. 9. Every bill which shall have passed the senate and assembly, shall, before it becomes a law, be presented to the governor; if be approve, he shall Sign it; but if not, he shall return it with his objections to that bouse in which it shall have originated; who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration, two-thirds of the members present shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered: and if approved by two-thirds of all the members present, it shall become a law, notwithstanding the objections of the governor. But in all such cases, the votes of both houses shall be determined by yeas and nays, and the flames of the members voting for and against the bill, shall be entered on the journal of each house respectively. If any bill shall not be returned by the governor within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the legislature shall, by their adjournment, prevent its return; in which case it shall not be a law."
11. - 3. The sixth article distributes the judicial power as follows:
"Sect. 1. The assembly shall have the power of impeachment, by the vote of a majority of all the members elected. The court for the trial of impeachments, shall be composed of the president of the senate, the senators, or a major part of them, and, the judges of the court of appeals, or the major part of them. On the trial of an impeachment against the governor, the lieutenant governor shall not act as a member of the court. No judicial officer shall exercise bis office after he shall have been impeached, until he shall have been acquitted. Before the trial of an impeachment, the members of the court shall take, an oath or affirmation, truly and impartially to try the impeachment, according to evidence; and no person shall be convicted without the concurrence of two-thirds of the members present. Judgment, in cases of impeachment, shall not extend further than to removal from office, or removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under this state; but the party impeached shall be liable to indictment, and punishment according to law.
"Sect. 2. There shall be a court of appeals, composed of eight judges, of whom four shall be elected by the electors of the state for eight years, and four selected from the class of justices of the supreme court, having the shortest time to serve. Provision shall be made by law, for designating one of the number elected, as chief judge, and for selecting such justices of the supreme court, from time to time, and for so classifying those elected, that one shall be elected every second year.
"Sect. 3. There shall be a supreme court having general jurisdiction in law and equity.
"Sect. 4. The state shall be divided into eight judicial districts, of which the city of New York shall be one: the others to be bounded by county lines. and to be compact, and equal in population, as rearly as may be. There shall be four justices of the supreme court in each district, and as many more in the district composed of the city of New York, as may from time to time be authorized by law, but not to exceed in the whole such number in proportion to its population, as shall be in conformity with the number of such judges in the residue of the state in proportion to its population. They shall be classified so that one of the justices of each district shall go out of office at the end of every two years. After the expiration of their terms under such classification, the term of their office shall be eight years.
"Sect. 5. The legislature shall have the same powers to alter and regulate the jurisdiction and proceedings in law and equity, as they have heretofore possessed.
"Sect. 6. Provisions may be made by law for designating, from time to time, one or more of the said justices, who is not a judge of the court of appeals, to preside at the general terms of the said court to be held in the several districts. Any three or more of the said justices, of whom one of the said justices so designated shall always be one, may hold: such general terms. And any one or more of the justices may hold special terms and circuit courts, and any one of them may preside in courts of oyer and terminer in any county.
"Sect. 7. The judges of the court of appeals and justices of the supreme court, shall severally receive, at stated times, for their services, a compensation to be established by law, which shall not be increased or diminished during their continuance in office.
"Sect. 8. They shall not hold any other office or public trust. All votes for either of them, for any elective office, (except that of justice of the supreme court, or judge of the court of appeals,) given by the legislature or the people, shall be void. They shall not exercise any power of appointment to public office. Any male citizen of the age of twenty-one years, of good moral character, and who possesses the requisite qualifications of learning and ability, shall be entitled to admission to practice in all the courts of this state.
"Sect. 9. The classification of the justices of the supreme court; the times and place of holding the terms of the court of appeals, and of the general and special terms of the supreme court within the several districts, and the circuit courts and courts of oyer and terminer within the several counties, shall be provided for by law.
"Sect. 10. The testimony in equity cases shall be taken in like manner as in cases at law.
"Sect. 11. Justices of the supreme court and judges of the court of appeals, way be removed by concurrent resolution of both houses of the legislature, if two-thirds of all the members elected to the assembly, and a majority of all the members elected to the senate, concur therein. All judicial officers, except those mentioned in this section, and except justices of the peace, and judges and justices of inferior courts not of record, may be removed by the senate, on the recommendation of the governor: but no removal shall be made by virtue of this section, unless the cause thereof be entered on the journals, nor unless the party complained of, shall have been served with a copy of the complaint against him, and shall have had an opportunity of being heard in his defence. On the question of removal, the ayes and noes shall be entered on the journals.
"Sect. 12. The judges of the court of appeals shall be elected by the electors of the state, ana the justices of the supreme court by the electors of the several judicial districts, at such times as may be proscribed by law.
"Sect. 13. In case the office of any judge of the court of appeals, or justice of the supreme court, shall becoine vacant before the expiration of the regular term for which he was elected, the vacancy may be filled by appointment by the governor, until it shall be supplied at the next general election of judges, when it shall be filled by election, for the residue of the unexpired term.
Sect. 14. There shall be elected in each of the counties of this state, except the city and county of New York, one county judge, who shall hold his office for four years. He shall hold the county court, and perform the duties of the office of surrogate. The county court shall have such jurisdiction in cases arising in justices' courts, and in special cases, as the legislature may prescribe, but shall have no original civil jurisdiction, except in such special cases.
"The county judge, with two justices of the peace, to be designated according to law, may hold courts of sessions, with such criminal jurisdiction as the legislature shall prescribe, and perform such other duties as may be required by law.
"The county judge shall receive an annual salary, to be fixed by the board of supervisors, which sliall be neither increased nor diminished during his continuance in office. The justices of the peace for services in courts of sessions, shall be paid a per diem allowance out of the county treasury. "In counties having a population exceeding forty thousand, the legislature may provide for the election of a separate officer to perform the duties of the office of surrogate.
"The legislature may confer equity jurisdiction in special cases upon the county judge.
"Inferior local courts, of civil and criminal jurisdiction, may be established by the legislature in cities; and such courts, except for the cities of New York and Buffalo, shall have an uniform organization and jurisdiction in such cities.
"Sect. 15. The legislature may, on application of the board of supervisors, provide for the election of local officers, not to exceed two in any county, to discharge the duties of county judge, and of surrogate in cases of their inability, or of a vacancy, and to exercise such other powers in special cases as may be provided by law.
"Sect. 16. The legislature may reorganize the judicial districts at the first session after the return of every enumeration under this constitution, in the manner provided for in the fourth section of this article, and at no other time; and they may, at such session, increase or diminish the number of districts, but such increase or diminution shall not, be more than one district at any one time. Each district shall have four justices of the supreme court; but no diminution of the districts shall have the effect to remove a judge from office.
"Sect. 17. The electors of the several towns shall, at their annual town meeting, and in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be four years. In case of an election to fill a vacancy occurring before the expiration of a full term, they shall hold for the residue of the unexpired term. Their number and classification may be regulated by law. Justices of the peace and judges or justices of inferior courts, not of record, and their clerks, may be removed, (after due notice and an opportunity of being beard in their defence) by such county, city or state courts as may be prescribed by law, for causes to be assigned in the order of removal.
"Sect. 18. All judicial officers of cities and villages, and all such judicial officers is may be created therein by law, shall be elected at such times and in such manner as the legislature may direct.
"Sect. 19. The clerks of the several counties of this state shall be clerks of the supreme court, with such powers and duties as shall be prescribed by law. A clerk for the court of appeals, to be ex officio clerk of the supreme court, and to keep his office at the seat of government, shall be chosen by the electors of the state; he shall hold his office for three years, and bis compensation shall be fixed by law and paid out of the public treasury.
"Sec. 20. No judicial officer, except justices of the peace, shall receive to his own use any fees or perquisites of office.
"Sect. 21. The legislature may authorize the judgments, decrees and decisions of any local inferior court of record of original civil jurisdiction, established removed for review directly into the court of appeals.
"Sect. 22. The legislature shall provide for the speedy publication of all statute laws, and of such judicial decisions as it may deem expedient. And all laws and judicial decisions shall be free for publication by any person.
"Sect. 23. Tribunals of conciliation may be established, with such powers and duties as may be prescribed by law; but such tribunals shall have no power to render judgment to be obligatory on the parties, except they voluntarily submit their matters in difference and agree to abide the judgment, or assent thereto, in the presence of such tribunal, in such cases as shall be prescribed by law."
"Sect. 25. The legislature, at its first session after the adoption of this constitution, shall provide for the organization of the court of appeals, and for transferring to it the business pending in the court for the correction of errors, and for the allowance of writs of error and appeals to the court of appeals, from the judgments and decrees of the present court of chancery and supreme court, and of the courts that may be organized under this constitution."
12. The sixth article, section 24, provides that the legislature, at its first session after the adoption of this constitution, shall provide for the appointment of three commissioners, whose duty it shall be to revise, reform, simplify and abridge the rules and practice, pleadings, forms and proceedings of the courts of record of this state, and to report thereon to the legislature, subject to their adoption and modification from time to time.
13. In pursuance of the provisions of this section, commissioners were appointed to revise the laws on the subject of the practice, pleadings and proceedings of the courts of this state, who made a report to the legislature. This report, with some alterations, was enacted into a law on the 12th of April, 1848, ch. 379, by which the forms of action are abolished, and the whole subject is extremely simplified. How it will work in practice, time will make manifest.
NEWLY DISCOVERED EVIDENCE. That evidence which, after diligent search for it, was not discovered until after the trial of a cause.
2. In general a new trial will be granted on the ground that new, important, and material evidence has been discovered since the trial of the cause. 2 Wash. C. C. 411. But this rule must be received with the following qualifications: 1. When the evidence is merely cumulative, it is not sufficient ground for a new trial. 1 Sumn. 451; 6 Pick. 114; 4 Halst. 228; 2 Caines, 129; 4 Wend. 579; 1 A. K. Marsh. 151; 8 John. 84; 15 John. 210; 5 Ham. 375 10 Pick. 16; 7 W. & S. 415; 11 Ohio, 147; 1 Scamm. 490; 1 Green, 177; 5 Pike, 403; 1 Ashm. 141; 2 Ashm. 69; 3 Vei - in. 72; 3 A. K. Marsh. 104. 2. When the evidence is not material. 5 S. & R. 41; 1 P. A. Browne, Appx. 71; 1 A. K. Marsh. 151. 3. The evidence must be discovered after the trial, for if it be known before the verdict has been rendered, it is not newly discovered. 2 Sumn. 19; 7 Cowen, 369; 2 A. K. Marsh. 42. 4. The evidence must be such, that the party could not by due diligence have discovered it before trial. 2 Binn. 582; 1 Misso. 49; 5 Halst. 250; 1 South. 338; 7 Halst. 225; 1 Blackf. 367; 11 Con. 15; 1 Bay, 263, 491; 4 Yeates, 446; 2 Fairf. 218; 7 Metc. 478; Dudl. G. Rep. 85; 9 Shepl. 246; 14 Verm. 414, 558; 2 Ashm. 41, 69; 6 Miss. 600 2 Pike, 133 7 Yerg. 432; 6 Blackf. 496; 1 Harr. 410.
NEWSPAPERS. Papers for conveying news, printed and distributed periodically.
2. To encourage their circulation the act of congress of March 3, 1825, 3 Story's L. U. S. 1994, enacts, 29. That every printer of newspapers may rend one paper to each and every other printer of newspapers within the United States, free of postage, under such regulations as the postmaster general shall provide.
3. - 30. That all newspapers conveyed in the mail shall be under cover, open at one end, and charged with the postage of one cent each, for any distance not more than one hundred miles, and one and a half cents for any greater distance: Provided That the postage of a single newspaper, from any one place to another, in the same state, shall not exceed one cent, and the postmaster general shall require those who receive newspapers by post, to pay always the amount of one quarter's postage in advance; and should the publisher of any newspaper, after being three mouths previously notified that his paper is not taken out of the office, to which it is sent for delivery, continue to forward such paper in the mail, the postmaster to whose office such paper is sent, may dispose of the same for the postage, unless the publisher shall pay it. If any person employed in any department of the post office, shall improperly detain, delay, embezzle, or destroy any newspaper, or shall permit any other person to do the like, or shall open or permit any other to open, any mail, or packet of newspapers, not directed to the office where he is employed, such offender shall, on conviction thereof, forfeit a sum, not exceeding fifty dollars, for every such offence. And if any other person shall open any mail or packet of newspapers, or shall embezzle or destroy the same, not - being directed to such person, or not being authorized to receive or open the same, such offender shall, on the conviction thereof, pay a sum not exceeding twenty dollars for every such offence. And if any person shall take, or steal, any packet, bag, or mail of newspapers, from, or out of any post office, or from any person having custody thereof, such person shall, on conviction, be imprisoned, not exceeding three mouths, for every, such offence, to be kept at hard labor during the period of such imprisonment. If any person shall enclose or conceal a letter, or other thing, or any memorandum in writing, in a newspaper, pamphlet, or magazine, or in any package of newspapers, pamphlets, or magazines, or make any writing or memorandum thereon, which he shall have delivered into any post office, or to any persou for that purpose, in order that the same may be carried by post, free of letter postage, he shall forfeit the sum of five dollars for every such offence; and the letter, newspaper, package, memorandum, or other thing, shall not be delivered to the person to whom it is directed, until the amount of single letter postage is paid for each article of which the package is composed. No newspapers shall be received by the postmasters, to be conveyed by post, unless they are sufficiently dried and enclosed in proper wrappers, on which, besides the direction, shall be noted the number of papers which are enclosed for subscribers, and the number for printers: Provided, That the number need hot be endorsed, if the publisher shall agree to furnish the postmaster, at the close of each quarter, a certified statement of the number of papers sent in the mail, chargeable with postage. The postmaster general, in any contract he may enter into for the conveyance of the mail, may authorize the person with whom such contract is to be made, to carry newspapers, magazines, and pamphlets, other than those conveyed in the mail: Provided, That no preference shall be given to the publisher of one newspaper over that of another, in the same place. When the mode of conveyance, and size of the mail, will admit of it, such magazines and pamphlets as are published periodically, may be transported in the mail, to subscribers, at one and a half cents a sheet, for any distance riot exceeding one hundred miles, and two and a half cents for any greater distance. And such magazines and pamphlets as are not published periodically, if sent in the mail, shall be charged with a postage of four cents on each sheet, for any distance not exceeding one hundred miles, and six cents for any greater distance. By the act of March 3, 1851, c. 20, s. 2, it is enacted, That all newspapers not exceeding three ounces in weight sent from the office of publication to actual and bona fide subscribers, shall be charged with postage is follows, to wit weekly only, within the county where published, free; for any distance not exceeding fifty miles out of the county, five cents per quarter; exceeding fifty, and not exceeding three hundred miles, ten cents per quarter; exceeding three bundred and not exceeding one thousand miles, fifteen cents per quarter; exceeding one thousand and not exceeding two thousand miles, twenty cents per quarter exceeding two thousand and not exceeding four thousand, twenty-five cents per quarter; exceeding four thousand miles, thirty cents per quarter; newspapers published monthly, sent to actual and bona fide subscribers, one-fourth the foregoing rates; published semi-monthly, one-half the foregoing rates; semi-weekly, double those rates; tri-weekly, treble those rates; and oftener than tri-weekly, five times those rates; Provided, That newspapers not containing over three hundred square inches may be transmitted at one-fourth the above rates. See, as to other newspapers, Postage.
NEXT FRIEND. One who, without being regularly appointed guardian, acts for the benefit of an infant, married woman, or other person, not sui juris. Vide Amy; Prochein Amy.
NEXT OF KIN. This term is used to signify the relations of a party who has died intestate.
2. In general no one comes within this term who is not included in the provisions of the statutes of distribution. 3 Atk. 422, 761; 1 Ves. sen. 84. A wife cannot, in general, claim as next of kin of her husband, nor a husband as next of kin of his wife. But when there are circumstances in a will which induce a belief of an intention to include them under this term, they will be so considered, though in the ordinary sense of the word, they are not. Hov. Fr. 288, 9; 1 My. & Keen, 82. Vide Branch; Kindred; Line.
NEXUM, Rom. civ. law. Viewed as to its object and legal effect, nexum was either the transfer of the ownership of a thing, or the transfer of a thing to a creditor as a security. Accordingly in one sense nexum included mancipium, in another sense mancipium and nexum are opposed in the same way in which sale and mortgage or pledge are opposed. The formal part of both transactions consisted in a transfer per Des et libram. The person who became nexus by the effect of a nexum, placed himself in a servile condition, not becoming a slave, his ingenuitas being only in suspense, and was said nexum inire. The phrases nexi datio, nexi liberatio, respectively express the contracting and the release from the obligation.
2. The Roman law, as to the payment of borrowed money, was very strict. A curious passage of Gellius (xx. 1) gives us the ancient mode of legal procedure in the case of debt as fixed by the Twelve Tables. If the debtor admitted the debt, or bad been condemned in the amount of the debt by a judex, he had thirty days allowed him for payment. At the expiration of this time he was liable to the manus. injectio, and ultimately to be assigned over to the creditor (addictus) by the sentence of the praetor. The creditor was required to keep him for sixty days in chains, during which time he publicly exposed the debtor, on three nundinae, and proclaimed the amount of bis debt. If no person released the prisoner by paying the debt, the creditor might sell him as a slave or put him to death. If there were several debtors, the letter of the law allowed them to cut the debtor in pieces, and take their share of his body in proportion to their debt. Gellius says that there was no instance of a creditor ever having adopted this extreme mode of satisfying his debt. But the creditor might treat the debtor, who was addictus, as a slave, and compel him to work out his debt, and the treatment was often very severe. In this passage Gellius does not speak of nexi but only of addicti, which is sometimes alleged as evidence of the identity of nbxus and addictus, but it proves no such identity. If a nexus is what he is here supposed to be, the laws of the Twelve Tables could not apply; for when a man became nexus with respect to one creditor, he could not become nexus to another; and if he became nexus to several at once, in this case the creditors must abide by their contract in taking a joint security. This law of the Twelve Tables only applied to the case of a debtor being @igned over by a judicial sentence to several debtors, and it provided for a settlement of their conflicting claims. The precise condition of a nexus has, however, been a subject of much dinussion among scholars. Smith, Dict. Rom. & Gr. Antiq. h. v., and vide Mancipitem.