As heretofore indicated, at Common Law,

after a Nisi Prius Trial, the Losing Party could Move for a New Trial before the Court, En Banc, at Westminster, the Judge who pre- sided at the Trial being one of the members of this Court. As the procedure evolved in the American Courts, the Motion for a New Trial became one which was generally ad- dressed directly to the Judge who conducted the Trial, and sought to persuade him that he had committed some Error in one or more of his Various Rulings during the Trial, or that for some other reason Justice was not done. It is altogether proper that this Motion should be heard by the very Judge who tried the Case, as he is personally acquainted with the Facts involved, and able to judge as to their bearing upon the merits of the controversy, as well as give them their proper evaluation. And it was for this very reason that it became the established Rule that a Judge in passing upon a Motion for a New Trial exercised his own discretion, which, in general, was not re- viewahie in an Appellate Court, as the Grant or Refusal of a New Trial could not be As- signed as Error in Another Court.

While the discretion exercised by the Trial Court in passing upon a Motion for a New Trial was not ordinarily subject to Appellate Review, it should be observed that some of the Errors urged in support of such a Motion may be and frequently are made the subject of Exceptions, and are thus incorporated into the Record by means of a Bill of Exceptions. In this way the same Errors which are urged below on Motion for a New Trial may be Re- viewed by Writ of Error, which brings the Bill of Exceptions to the Appellate Court, or by Statutory Appeal.

If the Bill of Exceptions reveals that the Trial Court committed Errors, as in improp- erly Admitting or Excluding Evidence, or in failing to correctly Instruct the Jury, the Ap- pellate Court may, on the ground of such Er- rors, Reverse the Judgment and grant a New Trial. Such a Course of Procedure involves

no revision of the decision of the Trial Court on the Motion for New Trial; that which is revised is the Erroneous Ruling which oc- curred at the Trial. And the New Trial which is granted, is granted not because the Trial Judge Erred in refusing it, but on the ground that he had previously Erred in his hearing of the case and with respect to a Matter which Impaired the Validity of the Judgment.’2

Grounds for New TriaZ

AT Common Law there was a wide discre- tion in the Judge as to the Causes for gran- ting a New Trial, and the Statutory Grounds laid down in our Modern Codes and Practice Acts are not exclusive of all others.13

The Grounds for the Motion generally in- clude such Errors and Irregularities in the Conduct of the Trial as Errors in Impaneling the Jury, Bribes and Private Communications of the Prevailing Party to the Jury, which may have influenced their Verdict, or Misbe- havior of the Jury in their deliberations, as by intoxication, separation, private investi- gations, casting lots or drawing straws for the Verdict, or of the Jury bringing in a Verdict contrary to the weight of the evidence, so that the Judge is reasonably dissatisfied there- with, or if the Jury has given Excessive Dam- ages indicating passion and prejudice, or if the Judge has erroneously Excluded or Ad- mitted Evidence, or Misdirected the Jury on the Law controlling the case, so that in conse- quence they may have found an Unjustifiable Verdict; for these and any other reasons, which may amount for Error at the Trial, it is the duty of the Court to award a Retrial if

12. On the distinction between Review by Motion for

New Trial and Review by Bill of Exception, see

M’Lanahan v. Universal Ins. Co., 1 Pet. 170, 7 L.

Ed. 98 (1828).

13. See Note, New Trial—Exclusiveness of Statutory Grounds—Loss of Reporter’s Notes, 5 Minn.L.Rev. 564 (1921). See, also, the case of Valerius v. Rich- ard, 57 Minn. 443, 59 N.W. 534 (1894), per Canty J., dissenting.