Definition
A writ commanding that a new jury be summoned and a new trial held, issued when some defect, irregularity, or ambiguity in the original proceeding makes it impossible to render judgment on the existing record. The phrase translates loosely as "you cause to come anew" — it is a fresh venire, a do-over of the jury process itself rather than a reconsideration of the merits.
The writ operates in two principal situations:
1. Defect in the jury process. Where the jury was improperly summoned, returned, or constituted — a defect apparent on the face of the record — the court awards a venire facias de novo to cure the procedural flaw by empaneling a new jury.
2. Defective or ambiguous verdict. Where the jury's verdict is so uncertain, incomplete, or ambiguous that no judgment can legally be entered upon it, the court issues the writ rather than attempt to interpret or mold the verdict.
In either case, the writ produces a new trial, but the mechanism and basis differ from a motion for new trial in the ordinary modern sense.
Common Confusion
Venire facias de novo is frequently conflated with a general new trial order, but the two are historically and procedurally distinct. A venire de novo was the old common law instrument awarded for defects visible on the face of the record — a structural or procedural failure in the jury process itself. A new trial, by contrast, was granted for matters outside the record: newly discovered evidence, weight of the evidence, juror misconduct not apparent from the record, and similar substantive grounds. Burrill draws this line explicitly. In modern practice, the procedural merger of law and equity has largely collapsed this distinction, and courts now grant "new trials" without distinguishing the old writ forms. Researchers working in pre-merger common law materials must treat these as separate remedies with separate triggers.
Why It Matters in Research
The primary trap for researchers is anachronism. In modern sources, "new trial" language covers all retrial orders indiscriminately. In common law sources predating the merger of law and equity — and especially in English and early American cases — venire facias de novo and new trial were doctrinally separate, governed by different rules, and producing different procedural consequences. A holding that a court "could not award a new trial" in a given circumstance may mean exactly that, while still leaving open the remedy of a venire de novo for record defects.
Pay close attention to what triggered the writ. Sources use "venire de novo" as shorthand, dropping the facias, and some older treatises use it loosely. When the basis is an ambiguous verdict, the writ is doing different work than when the basis is juror irregularity — the underlying doctrines trace different lineages.
The writ also appears in appellate contexts. Where a reviewing court reverses on error and determines that the defect requires a fresh jury (rather than entry of judgment or remand for other proceedings), it would award a venire de novo. This appellate use is distinct from the trial-court use, and researchers should not assume that an appellate venire de novo reference maps cleanly onto trial-level practice.
In American jurisdictions following Field Code reforms or the Federal Rules of Civil Procedure, the writ as a formal instrument is obsolete. What survives is the concept: courts still order new trials specifically because a verdict is too ambiguous to support judgment, and understanding the old writ helps explain why courts treat verdict ambiguity as a categorical ground for retrial rather than a discretionary one.
Historical Dictionary Support
Black's and Burrill are in agreement on the core definition and on the two principal grounds — irregular jury return and ambiguous or imperfect verdict. Burrill is the more analytically precise of the two, explicitly drawing the distinction between the venire de novo (record defect) and the new trial (off-record grounds), and identifying the writ as the "old common law mode of proceeding to a second trial." Black's adds the appellate dimension, noting that the writ follows a reversal on error when a new trial is awarded — a procedural posture Burrill addresses less directly.
Neither source fully addresses how this writ interacted with equity practice, where jury trials were rare and the writ had little occasion to operate. Researchers working in chancery records or mixed law-and-equity jurisdictions will not find guidance here and should consult treatises on equity procedure separately.
Both sources are silent on the writ's displacement by modern procedural codes. For the transition period — roughly the mid-nineteenth through early twentieth century in American jurisdictions — neither dictionary is a reliable guide to what courts were actually doing as the writ fell out of formal use while its function was absorbed into general new trial practice.
Jurisdictional Note
The writ in its formal Latin form belongs to English common law procedure and was carried into American colonial and early state practice. By the late nineteenth century, code pleading states had largely abandoned the formal writ, and federal practice under the Rules of Civil Procedure does not use it. Researchers in English law materials will find the writ operational through much of the nineteenth century; American researchers should treat post-1850 references with attention to whether the jurisdiction had adopted code reforms.