27-565

Thus, it appears that in four out of five Ret- rospective Motions, the Court is permitted to consider only Defects Apparent Upon the Face of Part of the Common-Law Record—the Process, the Pleadings, and the Verdict—and Errors Occurring at the Trial were regarded as extraneous and not to be considered in ren- dering Judgment upon the Motions. Matters extraneous to or outside of the Record could be tested after Verdict and before Judgment only by a Motion for a New Trial. A distinc- tion is made between Matter of Record and Matter of Exception, Matter of Record re- ferring to those Errors Apparent upon the Face of the Common-Law Record and hence Reviewable after Final Judgment upon a Writ of Error, and Matter of Exception referring to those Errors which Occurred at the Trial, and were Not Apparent on the Face of the Common-Law Record, hence Reviewable aft- er Final Judgment only by incorporating such Errors into the Record by means of a Bill of Exceptions, as authorized by Chapter 31 of the Statute of Westminster II in 1285.8

re-examination by the Court of the occurrences at the Trial to determine whether any errors had been made upon the Trial, or whether any irregularities had occurred in connection with the Trial. A Motion for a New Trial does not reach defects in the Pleadings.

Verdict and before Judgment by a Motion for a New Trial; and after Judgment, by Writ of Error, if the Error was Apparent Upon the Face of the Common-Law Record, or, after 1285, by Bill of Exceptions, if the Error Oc- curred at the Trial. In the first instance, the re-examination of the case afresh took place in the same Court; in the second, the re-ex- amination occurred by reason of the Removal of the Record to a Higher Court by Writ of Error. When the Review was by a Motion for New Trial, which occurred before Judgment, the Entry of Judgment was necessarily sus- pended pending a Ruling on the Motion.

The Motion for a New Trial was not the procedure to Review Defects on the Face of the Pleadings, but was and is a Remedy for any Misconduct, Error or Slip occurring in the progress of the Trial itself which might. endanger its fairness, and which indicates the probability of a different result. Its purpose was to have the Court set aside the Verdict and order a New Trial on the ground that some Error had occurred at the Trial, con- sisting of some alleged Misconduct of the Parties, the Counsel, the Jurors or the Judge.. Prior to 1655, the Law Courts, it was said, held themselves incompetent to set aside Ver- dicts, hence the only Remedy available for a. Party who had been prejudiced by an improp- er Verdict was either by the then impractical Proceeding to Attaint the Jury, or by an Ap- peal to a Court of Equity, which, under some conditions, might procure New Trials. The first case in which it was said a New Trial was. granted at Law, in order to meet the inade- quacy of the Courts in refusing to set Verdicts. aside, was Wood v. Gunston,10 decided in 1655. But Lord Mansfield was of the opinion that. New Trials were granted at Law at an earlier time.”

8.	13 Edw. I., c. 31, 1 Statutes at Large 206 (1285).
9.	In general, on the subject of New Trials, see: