570 LITIGATING THE CONTROVERSY Ch. 27

a fair hearing had not been had ih the Orig- inal Trial.’4

All such Grounds for a New Trial, it should be noted, fall Outside the Common Law Rec- ord, as there was no place on the Roll for the Entry of such Errors, being known to the Judge only by memory, or by representations made to him by the Parties and incorporated into Sworn Affidavits submitted to the Trial Court.

And, of course, the Motion for a New Trial, should be clearly differentiated from the Mo- tion for Venire Facias De Novo.15

Another Matter for which New Trials are sometimes granted is surprise, where a Party using all diligence and care is placed in a situation injurious to his interests without his own default.16 One may regularly Subpoena a Witness, and he may be actually in atten- dance, but absent himself at the time when needed, without the knowledge or consent of the Party or his Attorney. But to avail him- self of this Ground for a New Trial, the sur- prise must be such that there was no oppor- tunity to Move for a Continuance of the Cause. If lie had the opportunity and neglect- ed it, he cannot take the chance of a Verdict in his favor, and afterward claim the benefit of a Rehearing.17

of the Evidence to sustain the Verdict before the Appellate Court for Review, it is necessary for the losing party to make a Motion for a New Trial, and to include the Motion, the Order over- ruling it, and the Exceptions in a Bill of Exceptions. Yarber v. Chicago & A. R. Co., 23.5 Ill. 589, 85 N.E. 928 (1908).

Eng.Rep. 485, 489 (1744).

also, stale v. Morgan, SO Iowa 413, 45 NW. 1070

(1890); Solomon v. Norton, 2 Ariz. 100, 11 P. 108

(1886); Albert v. Seiler, 31 Mo.App. 247 (1888).

(Ky.) 2 SW. 116 (1886).

THE MOTION FOR VENIRE

FACLAS DE NOVO18

306. The Motion for Venire Facias De Novo was, unlike the Motion for New Trial, designed to Vacate the Verdict and obtain a Retrial on the basis of Defects Appearing on the Record; and if granted when it should not be, it was Er- ror, and the Award of it could be reversed, whereas a Motion for a New Trial was common- ly granted after a General Verdict for some Cause not Apparent on the Record, and was not Assignable for Error.

THE Motion for Venire Facias De Novo was an Ancient Proceeding of the Common Law, in use long before the Motion for a New Trial.

18. In referring to the distinction between a Motion

for Venire Facias De Noro and a Motion for a New

Trial, in the ease of Witham V. Lewis, 1 Wils. KB.

48, 55, 95 Eng.Rep. 485, 489 (1744), Chief Justice

Willes decla red:

“The Counsel at the Bar endeavored to confound a Ve. Fa, De Nova and a Motion for a New Trial. but they are very different things ; they agree indeed in some things, but differ ‘in many: they agree in this, that a Ve. J’a. Do Nova must be awarded in both, and that the Court may or may not grant either of them; but they differ first in this, that ye. Fa. Do Nova is the ancient proceeding of the Common Law, a New Trial is only a new invention; the first is as Ancient as the Law. when attaints were in use, but Motions for New Trials were introduced in this manner; the Judgment in .Attaint was very severe, and the punishment ex- cessively hard, and therefore to avoid that sever- ity it was thought better to proceed in a milder way, and so Motions for New Trials were intro- thiced. They likewise differ in this respect, that New Trials are generally granted where a General Verdict is found, a Ve. Fe. Do Novo upon a Special Verdict.

“But the most material difference between them is this, that a Ve. Pa. Do Novo must be granted upon Matter appearing upon the Record, but a New Trial may be granted Upon things out of it; if the Record be never so right; if the Verdict appear to he con- trary to the Evidence given at the Trial, or if it ap- pear that the Judge has given wrong directions, a New Trial svill be granted: but it is otherwise as to a Ve. Pa. Do Novo, which can only be granted in one or other of these two cases, as 1st., if it appear upon the Face of the Verdict, that the Verdict is so imperfect that no Judgment can be given upon it; 2dly., where it appears that the Jury ought to have found other facts differently, and it cannot be granted in any other case.”