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justices of the peace, commissioners of the revenue, judges of a court of conscience, or any other standing magistrates), is a step towards establishing aristocracy, the most oppressive of absolute governments. The feodal system, which for the sake of military subordination pursued an aristocratical plan in all its arrangements of property, had been intolerable in times of peace, had it not been wisely counterpoised by that privilege, so universally diffused through every part of it, the trial by the feodal peers. And in every country on ihe continent, as the trial by the peers has been gradually disused, so the nobles have increased in power, till the state has been torn to pieces by rival factions, and oligarchy in effect has been established, though under the shadow of regal government; *un- [*381) less where the miserable commons have taken shelter under absolute monarchy, as the lighter evil of the two. And, particularly, it is a circumstance well worthy an Englishman's observation, that in Sweden the trial by jury, that bulwark of northern liberty, which continued in its full vigour so lately as the middle of the last century (u), is now fallen into disuse (w): and that there, though the regal power is in no country so closely limited, yet the liberties of the commons are extinguished, and the government is degenerated into a mere aristocracy (w). It is, therefore, upon the whole, a duty which every man owes to his country, his friends, his posterity, and himself, to maintain to the utmost of his power this valuable constitution in all its rights ; to restore it to its ancient dignity, if at all impaired by the different value of property, or otherwise deviated from its first institution; to amend it, wherever it is defective ; and, above all, to guard with the most jealous circumspection against the introduction of new and arbitrary methods of trial, which, under a variety of plausible pretences, may in time imperceptibly undermine this best preservative of English liberty.

Yet, after all, it must be owned, that the best and most effectual method to preserve and extend the trial by jury in practice, would be by endeavouring to remove all the defects, as well as to improve the advantages, incident to this mode of inquiry. If justice is not done to the entire satisfaction of the people, in this method of deciding facts, in spite of all encomiums and panegyrics on trials at the common law, they will resort in search of that justice to another tribunal ; though more dilatory, though more expensive, though more arbitrary in its frame and constitution. If justice is not done to the crown by the verdict of a jury, the necessities of the public revenue will call for the erection of summary tribunals. The principal defects seem to be,

1. The want of a complete discovery by the oath of the parties. This each of them is now entitled to have, by *going [*382] through the expense and circuity of a court of equity, and therefore it is sometimes had by consent, even in the courts of law. How far such a mode of compulsive examination is agreeable to the rights of mankind, and ought to be introduced in any country, may be matter of curious discussion, but is foreign to our present inquiries. It has long been introduced and established in our courts of equity, not to mention the civil law courts : and it seems the height of judicial absurdity, that in the same cause between the same parties, in the examination of the same facts, a discovery by the oath of the parties should be permitted on one side of (u) 2 Whitelocke of parl. 427.

(z) Ibid. 17. (w) Mod. Un. Hist. xxxiii. 22.

'Westminster.hall, and denied on the other: or that the judges of one and the same court should be bound by law to reject such a species of evidence, if attempted on a trial at bar, but, when sitting the next day as a court of equity, should be obliged to hear such examination read, and to found their decrees upon it. In short, within the same country, governed by the same laws, such a mode of inquiry should be universally admitted, or else universally rejected.

2. A second defect is of a nature somewhat similar to the first: the want of a compulsive power for the production of books and papers belonging to the parties. In the hands of third persons they can generally be obtained by rule of court, or by adding a clause of requisition to the writ of subpoena, which is then called a subpoena duces tecum. But, in mercantile transactions especially, the sight of the party's own books is frequently decisive; as the day-book of a trader, where the transaction was recently entered, as really understood at the time; though subsequent events may tempt him to give it a different colour. And, as this evidence may be finally obtained, and produced on a trial at law, by the circuitous course of filing a bill in equity, the want of an original power for the same purposes in the courts of law is liable to the same observations as were

made on the preceding article (40), (41). [*383] *3. Another want is that of powers to examine witnesses

abroad, and to receive their depositions in writing, where the witnesses reside, and especially when the cause of action arises in a foreign country.78 To which may be added the power of examining witnesses that are aged, or going abroad, upon interrogatories de bene esse ; to be read in evidence if the trial should be deferred till after their death or departure, but otherwise to be totally suppressed. Both these are now very frequently effected by mutual consent, if the parties are open and candid; and they may also be done indirectly at any time, through the channel of a court of equity; but such a practice has never yet been directly adopted (y) as the rule of a court of law (42). Yet where the cause of action arises in India, and a suit is brought thereupon in any of the king's courts at Westminster, the court may issue a commission to examine witnesses upon the spot, and transmit the depositions to England (z) (43).

4. The administration of justice should not only be chaste, but should not even be suspected. A jury coming from the neighbourhood has in some respects a great advantage ; but is often liable to strong objections ; especially in small jurisdictions, as in cities which are counties of them

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(y) See page 73.

(c) Stat. 13 Geo. III. c. 63.

(40) Where one party is in possession of to compel the production and discovery of papers or any species of written evidence ma- books, papers, and documents, in possession terial to the other, if notice is given him to of a party. (2 R. S. 199, § 21. Act. Feb. 8. produce them at the trial, upon his refusal co. 1830.) pies of them will be admitted; or if no copy (42) A court can, in effect, compel the has been made, parol evidence of their con- plaintiff to consent to have a witness going tents will be received. The court and jury abroad examined upon interrogatories, or to presume in favour of such evidence ; because, have an absent witness examined under a if it were not agreeable to the strict truth, it commission, by the power the judges have of would be corrected by the production of the putting off the trial. originals. There is no difference with respect (43) In New York, witnesses abroad, or goto this species of evidence between criminal ing abroad, may be examined. (2 R. S. 391, and civil cases. 2 T. R. 201.

393.) So also testimony may be taken condic (41) In New-York, the Supreme Court, or tionally when it is expected that a suit will be the Superior Court of the city of New York, or brought. (Id. 398. § 33.) the Common Pleas of the city, may make rules

(78) See Hov. n. (78) at the end of the Vol. B. III.

selves, and where such assises are but seldom holden; or where the question in dispute has an extensive local tendency; where a cry has been raised, and the passions of the multitude been inflamed; or where one of the parties is popular, and the other a stranger or obnoxious. It is true that, if a whole county is interested in the question to be tried, the trial by the rule of law (a) must be in some adjoining county ; but, as there may be a strict interest so minute as not to occasion any bias, so there may be the strongest bias without any' pecuniary interest.

In all these cases,

to summon a jury, labouring under local prejudices, is laying a snare for their consciences: and, though they should have vir- [*384] tue and vigour of mind sufficient to keep them upright, the parties will grow suspicious, and resort under various pretences to another mode of trial. The courts of law will therefore in transitory actions very often change the venue, or county wherein the cause is to be tried (6): but in local actions, though they sometimes do it indirectly and by mutual con

yet to effect it directly and absolutely, the parties are driven to a court of equity; where, upon making out a proper case, it is done upon the ground of being necessary to a fair, impartial, and satisfactory trial (c) (44)

The locality of trial required by the common law seems a consequence of the ancient locality of jurisdiction. All over the world, actions transitory follow the person of the defendant, territorial suits must be discussed in the territorial tribunal. I may sue a Frenchman here for a debt contracted abroad; but lands lying in France must be sued for there, and English lands must be sued for in the kingdom of England. Formerly they were usually demanded only in the court-baron of the manor, where the steward could summon no jurors but such as were the tenants of the lord. When the cause was removed to the hundred court (as seems to have been the course in the Saxon times) (d), the lord of the hundred had a farther power, to convoke the inhabitants of different vills to form a jury : observing probably always to intermix among them a stated number of tenants of that manor wherein the dispute arose. When afterwards it cante to the county-court, the great tribunal of Saxon justice, the sheriff had wider authority, and could impanel a jury from the men of his county at large : but was obliged (as a mark of the original locality of the cause) to return a competent number of hundredors; omitting the inferior distinction, if indeed it ever existed. And when at length, after the conquest, the king's justiciars drew the cognizance of the cause from the county-court, though they could have summoned a jury [*385) from any part of the kingdom, yet they chose to take the cause as they found it, with all its local appendages ; triable by a stated number of hundredors, mixed with other freeholders of the county. The restriction as to hundredors hath gradually worn away, and, at length entirely vanished (@); that of counties still remains, for many beneficial purposes:

e but, as the king's courts have a jurisdiction co-extensive with the kingdom, there surely can be no impropriety in sometimes departing from the general rule, when the great ends of justice warrant and require an exception.


lords in the cause between the duke of Devonshire

and the miners of the county of Derby, A. D. 1762. (c) This, among a number of other instances, (d) LL. Edw. Conf. c. 32. Wilk. 203. was the case of the issues directed by the house of (e) See page 360.

(44) This may now be done in a court of law. Tidd. 8 ed. 655.

(a) Stra. 177.
(o) See page 294.

I have ventured to mark these defects, that the just panegyric, which I have given on the trial by jury, might appear to be the result of sober reflection, and not of enthusiasm or prejudice. But should they, after all, continue unremedied and unsupplied, still (with all its imperfections) I trust that this mode of decision will be found ihe best criterion, for investigating the truth of facts, that was ever established in any country.



In the present chapter we are to consider the transactions in a cause, next immediately subsequent to arguing the demurrer, or trial of the issue.

If the issue be an issue of fact; and, upon trial by any of the methods mentioned in the two preceding chapters, it be found for either the plaintiff or defendant, or specially; or if the plaintiff makes default, or is nonsuit ; or whatever, in short, is done subsequent to the joining of issue and awarding the trial, it is entered on record, and is called a postea (a) (1). The substance of which is, that postea, afterwards, the said plaintiff and defendant appeared by their attornies at the place of trial; and a jury, being sworn, found such a verdict; or, that the plaintiff, after the jury sworn,

(a) Append. No. II. $ 6.

(1) As lo the postea in general, see Tidd, judge's notes must be made to the judge who 8th ed. 931 to 934. The verdict is entered on tried the cause. I Chilly R. 283. The court the hack of the record of nisi prius, which en- will not alter a verdict, unless it appear on the try, from the Latin word it began with, is face of it that the alteration would be accord. called the postea. When the cause is tried in ing to the intention of the jury, 1 H. Bla. 78: the king's bench in London or Middlesex, the but not after a considerable lapse of time, to record is delivered to the attorney of the suc- increase damages, although the jury join in cessful party; and he afterwards indorses the an affidavit stating their intention to have been postea from the associate's minute on the to give the increased sum, and thought they panel ; but in country causes the associate had in effect done so, 2 T. R. 281. sed vide 1 keeps the record, till the next term; and then Burr. 383. where a verdict was rectified, which delivers it with the postea indorsed to the par. had been mistakenly delivered by the forety obtaining the verdict. The practice is man. Where the jury having found the treble in some respects different in the common value in an action of debt on the statute for pleas, where in town causes also, the record not setting out tithes, on a writ of inquiry, the remains with the associate till the quarto die inquisition was amended by the insertion of post of the return of the habeas, corpora jura- nominal damages. 1 Bing. R. 182. In an actorum, who indorses the postea upon the re- tion by one defendant in assumpsit against a cord; but by a recent order it is not to be de. co-defendant for contribution, the postea is livered till the morning of the fifth day of the evidence to prove the amount of the damages. term. See ] Brod. & B. 298. 3 Moore, 643. 2 Stark. R. 364 ; see 9 Price 359. Tidd, 8 ed. If the postea be lost, a new one may, in some 932, 3. The production of the postea is not cases, be made out from the record above and sufficient evidence of a judgment; a copy of the associate's notes, 2 Stra. 1264 ; if wrong, the judgment founded thereon must also be it may be amended by the plea roll, 1 Ld. produced. Bul N. P. 234. Willes, 367. But Raym. 133; by the memory or notes of the the nisi prius record, with the postea indorsed, judge, Cro. Car. 338. Bul. N. P. 320. 2 is sufficient to prove that the cause came on to Stra. 1197. 6T. R. 694. 1 Bar. & Ald. 161. be tried, 1 Stra. 162. Willes, 368; or the day 2 Cha. R. 352 ; or the notes of the associate or of trial. 6 Esp. R. 80. 83; see 9 Price, 359. clerk of assize, 2 Chitty R. 352. 1 Bos. & Tidd, 8th ed. 977. Pul. 329. The application to amend by the

+ In New-York, the record is immediately successful party, with a certified copy of the after verdict handed over by the clerk to the minutes of the trial. (2 R. S. 422. & 72.)

made default, and did not prosecute his suit; or, as the case may happen. This is added to the roll, which is now returned to the court from which it was sent; and the history of the cause, from the time it was carried out, is thus continued by the postea.

Next follows, sixthly, the judgment of the court upon what has previously passed; both the matter of law and matter of fact being now fully weighed and adjusted. Judgment *may however for [*387] certain causes be suspended, or finally arrested: for it cannot be entered till the next term after trial had, and that upon notice to the other party. So that if any defect of justice happened at the trial, by surprise, inadvertence, or misconduct, the party may have relief in the court above, by obtaining a new trial; or if, notwithstanding the issue of fact be regularly decided, it appears that the complaint was either not actionable in itself, or not made with sufficient precision and accuracy, the party may supersede it by arresting or staying the judgment.

1. Causes of suspending the judgment, by granting a new trial (2), are at present wholly extrinsic, arising from matter foreign to, or dehors the record. Of this sort are want of notice of trial; or any flagrant misbehaviour of

(2) As to new trials in general, see Tidd, 201. 5 Taunt 537. 1 Chitty R. 265. (a) unless 8th ed. 934 to 919. When there are two con- the trial is to settle a right of a permanent trary verdicts, it is not of course, but in the nature. Ib. In all these cases, if the verdict discretion of the court, to grant a new trial. 2 be agreeable to equity and justice, the court Bla. R. 963. In an inferior court it is said a will not grant a new trial, though there may new trial cannot be had, upon the inerits, but have been an error in the admission or rejec- . only for irregularity, I Salk. 201. 2 Salk. 650. tion of evidence, or in the direction of the 1 Stra. 113. 499. i Burr. 572. Doug. 380. 2 judge, if it appear to the court on the whole Chitty's R. 250 ; but it may set aside a regular matter disclosed by the report that the verdict interlocutory judgment to let in a trial of the ought to be confirmed. 4 T. R. 468. merits. 1 Burr. 571. The principal grounds A new trial cannot be granted in civil cases for setting aside a verdict or nonsuit, and at the instance of one of several defendants, granting a new trial, besides those mentioned 12 Mod. 275. 2 Stra. 814; nor for a part only in the text, are-Ist. The discovery of new of the cause of action. 2 Burr. 1224. 3 Wils. and material evidence since the trial, 2 Bla. 47. But there may be cases in which the new Rep. 955. 2dly, If the witnesses, on whose trial is restricted to a particular part of the retestimony the verdict was obtained, have been cord, as if the judge give leave to move on one since convicted of perjury in giving their evi- part or point only, on a stipulation that coundence, M. 22. Geo. 3. K. B; or if probable sel shall not move for any thing else ; or if the ground be laid to induce the court to believe court think injustice may be done by setting that the witnesses are perjured, they will stay the whole maiter at large again, they may rethe proceedings on the finding of a bill of in- strict the second trial to certain particular dictment against them for perjury, till the in. points. 4 Taunt. 556. dictment is tried, ib. ; but the circumstance of In criminal cases no new trial can be grantan indictment for perjury having been found ed where the defendant has been acquired. 6 against a witness, is no ground of motion for East. 315. 4 M. & S. 337. 1 B. & A. 64. new trial. 4 M. & S. 140. 8 Taunt. 182. 3dly. Where several defendants are tried at the For excessive damages, indicating passion or same time for a misdemeanor, and some are partiality in the jury. 1 Stra. 692. 1 Burr. acquitted, and others convicted, the court may

3 Wils. 18. 2 Bi. Rep. 929. Cowp. grant a new trial to those convicted, if they think 230. 5 T. R. 257. 7 ib. 529. 11 East, 23. The conviction improper. 6 East. 619. See It is not usual to grant a new trial for small further on this subject, Tidd, 8th ed. 934. In ness of damages, 2 Salk. 647. 2 Stra. 940. civil cases a motion for a new trial cannot be Doug. 503. Barnes, 455, 6; in which latter made after an unsuccessful motion in arrest of case it is said, if the demand is certain, as on judgment. 4 Bar. & Cres. 160. The granta promissory note, the court will set aside a ing of a new trial is either without or upon verdict for too small damages, but not where payment of the costs of the former trial; or the damages are uncertain. Lastly, it is a ge- such costs are directed to abide the event of neral rule, not to grant a new trial, except for the suit. The general rule seems to be, that the misdirection of the judge, 4 T. R. 753. 5 if the new trial be granted for the misbehaviour ib. 19. 6 East, 316. (b). 1 Marsh. 555; or of the jury, or the misdirection of the judge, where a point has been saved at the trial, I the costs are not required to be paid by the B. & P. 338 ; in a penal, 2 Stra. 899. 10 East, party applying for a new trial; but where the 268.4 M. & S. 338. 2 Chitty R. 273; hard mere error of the jury, or the discovery of or trifling action, 2 Salk. 653. 3 Burr. 1306; fresh evidence is the ground, the costs must and an action is considered trifling in this re- be paid by the party moving to set aside the spect, when the sum to be recovered is under former verdict.' See Tidd, 8th ed. 945.



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