
    Boswell & Johnson v. Jones.
    
    October Term, 1794.
    Trespass against Two — Verdict oí (iuilty as to One-Right to New Trlal. -In trespass against two, if one be found guilty, and the other he acquitted, a new trial cannot be awarded on the motion of the convicted defendant.
    New Trials — When Grounds Should Be Stated.)— Although, in general, the Inferior Court need not state the facts on which they grqund their opinion in granting a new trial, yet where they grant it against an established rule of practice, they ought to disclose the circumstances which induced them to depart from the rule.
    Same — Costs.§—It is error to grant a new trial except upon the terms of paying the costs.
    This was an action of trespass, brought by Jones against the appellants, in the District Court, who pleaded jointly, "not guilty. A verdict was rendered against Johnson for ;£15, and the defendant Boswell was found not guilty. Upon the motion of Johnson alone, a new trial was awarded, and a verdict was after-wards found, for ,£60, against both defendants. A motion in arrest of judgment being made by Boswell, and over-ruled, both defendants applied for, and obtained a super-sedeas to the judgment of the court, rendered upon the last verdict.
    The plaintiff’s in error, being both dead, it was submitted to the court, whether a new supersedeas, or writ of error, should be awarded, or whether a sci. fa. to revive the former ought to issue; and, in the latter case, whether it should be revived in the names of the executors of both plaintiffs, or of the survivor only. The court being of opinion, that a sci. fa. should issue in the names of the executors of both the plaintiffs, the counsel for the defendant consented to revive without a sci. fa. actually issuing, and now the cause came on to be argued upon the objections to the judgment of the District Court.
    Washington for the plaintiffs,
    insisted, that where one defendant is acquitted by the verdict, the court cannot grant a new trial upon the motion of the other defendant, and referred to the following authorities, 2 Str. 813 — 12 Mod. 275 — 2 Blac. Rep. 1030 — 3 Salk. 362.
    Wickham for the defendant.
    The rule contended for, considered as a general one, cannot upon principle be found. It is possible, that the 'jury may erroneously find a verdict against the wrong defendant. Thejr may in writing their verdict,.by mistake, convict the defendant, whom they intended to acquit.
    In such a case it would neither be just nor reasonable, that the court should not have a power of setting aside the verdict. And if there be a possible case, where it would be proper to set aside such a verdict, it is enough for my purpose, because this court presuming, as they ought, every thing in favor of the judgment of the Inferior Court, will not reverse that judgment, unless the record exhibit such a case, as to authorise them in saying, that the Inferior Court decided erroneously. If the Inferior Court might, or might not award a new trial, according to the circumstances of the case, the party attempting to impeach their decision in granting it, ought to have spread upon the record those circumstances, which might satisfy this court, that this was a case in which the verdict ought not to have been set aside.
    *As to the authorities which have been cited, I would premise my observations upon them with this remark: That upon no subject have the adjudications varied so materially, as upon that of new trials. It is considered as a part of practice, and to be controlled by the court in such a manner, as best to answer the ends of substantial justice; and if the English courts have considerably changed the doctrine of new trials, so as to render it more perfect, and more consistent with the real principles of justice, why may not this court exercise the same power over the subject, if they are satisfied; that the rule now contended for be unreasonable? The cases from Strange and Blackstone, are merely obiter opinions. 3 Salk, is not authority — in the case from 12 Mod. the court say, they cannot grant a new trial, except against all, which rather proves, that they might grant it against all, if the justice of the case required it.
    Washington in reply.
    It is to be observed, that the motion for a new trial in this case was not made by the plaintiff, but by one of the defendants. If this were permitted, the acquitted defendant being out of court, it would be in the power of the other, without any authority, to put the successful defendant into jeopardy again, by stating a hardship as to himself, when' the other defendant might not be present, nor have it in his power to shew that the verdict as to him was proper. I hold it to be sound law, that the court cannot set aside a verdict but upon motion, and this motion was not made by the plaintiff, nor by Boswell, but by Johnson, who had no more authority to make it for Boswell, than a stranger would have had; and surely it would have been as much an error to set aside the verdict upon the motion of a stranger, having no authority, as if the court had done it without any motion at all. So that the authorities cited, which stand uncontradicted, are fortified by the strongest reason. But if they were not, I trust that law is bottomed upon more solid and certain grounds, than the mere opinion of the judge, upon what is right, or wrong; reasonable, or otherwise; and known only when that opinion is pronounced.
    If the rule, which is so firmly settled by the authorities before referred to, can be varied or destroyed, according to the opinions of different Judges who may decide upon it; with equal propriety may thejr unsettle every other rule of law, which does not meet their approbation. A position big with mischief 1 The principle decided in the case from Salk, tho’ not directly determined in Str. and Black, is fully recognized, and admitted to be well founded.
    
      
      or monographic note on New Trials, see end of
    
    
      
       New Trials — Effect Where One of Two Is Convicted. — In the first headnote of the principal case it is held that, in trespass against two, if one be found guilty and the other acquitted, a new trial cannot be awarded on motion of the convicted defendant.
      In Gnerrant v. Tinder, Gilm. 86 (citing the principal case at page 41), it is held, in an action of malicious prosecution against several defendants some of whom were found not. guilty, on motion for a new trial, by those found guilty, because the evidence for them was improperly excluded, a new trial will be given, as to those found guilty only.
      In Kemp v. Com., 18 Gratt. 978. the rule laid down in tile principal case is quoted. That case (Ketnp v. Com.) holds that where several persons are tried for the same felony, are found guilty, the court may grant a new trial to one of them, and render a judgment against the others.
      And in Tracy v. Oloyd, 10 W. Va. 19 (citing the principal case at page 33), it was held, in an action of trover and conversion against two, where the defendants appear and file a ioint plea of not guilty and issue is thereon joined, it is competent for the jnry to acquit one of the defendants and find the other gnilty and assess damages against him.
    
    
      
      Same — When Grounds ShouSd Be Stated. -Where a court grants a new trial against an established rule of practice they ought to disclose the circumstances which induced them to depart from the rule. As bearing on this question, see the principal case cited in Lomax v. Hord, 3 Hen. & M. 277; Claiborne v. Henderson, 3 Hen. & M. 376.
      §Same— Costs. — 1’or the proposition that the party to whom a new trial is granted is liable for the costs, the principal case is cited in Macy v. DeWolf, 16 Fed. Cas. 360. See monographic note on "Costs" appended to Jones v. Tatum, 19 Gratt. 720.
    
   *The PRESIDENT.

The cases cited prove, that in trespass against two defendants, if one be found guilty, and the other be acquitted, a new trial cannot be granted on the motion of the convicted defendant, and a majority of the court are of opinion, that the rule is not without reason, since the plaintiff being satisfied, it ought not to be in the power of the convicted defendant to bring his co-defendant into jeopardy again, by obtaining a new trial. Upon authority, the rule is fixed. One judge doubted as to the reason of it, since the ground of new trials being to attain real justice, if the court perceive that injustice has been done in the acquittal of one defendant, upon principle it would seem right to grant a new trial, from whomsoever the motion might come. And as to authority, the same judge is of opinion, that tho’ uniform decisions which establish the rules of property ought to be adhered to, yet he does not view them as sacred in points of practice, which majr be varied as experience shall evince their convenience or inconvenience. But the court are unanimously of opinion, that tho’ in general, the subordinate courts need not state the facts on which they ground their opinion for a new trial, yet in this case, where they granted it, against an established rule of practice, they ought to have disclosed the circumstances which induced them to depart from that rule. We are also of opinion, that the District Court erred in awarding a new trial without payment of costs.

The judgment, and all proceedings from the granting of the new trial inclusive, is to be reversed with costs. Judgment to be entered against Johnson for the damages assessed by the first verdict and costs, and to be entered for Boswell for his costs.  