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 through the expense and circuity [*382] 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 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. (35)

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 subpana, which is then called a subpæna 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. (36)

*3. Another want is that of power to examine witnesses abroad, and [*383 ] to receive their depositions in writing, where the witnesses reside, and especially when the cause of action arises, in a foreign country. 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

(35) [The common law procedure act, 1854, now, however, enables either party, by leave of the court or a judge, to interrogate his opponent upon any matter as to which discovery may be sought, and to require such party to answer the questions within ten days, by affidavit sworn and filed in court in the ordinary way. Any person omitting, without just cause, to answer all questions as to which a discovery is sought, is guilty of a contempt, and liable to be proceeded against accordingly.]

(36) [When one party is in possession of papers or any species of written evidence material to the other, if notice is given him to produce them at the trial, upon his refusal copies of them will be admitted; or if no copy has been made, parc evidence of their contents will be received. The court and jury presume in favor of such evidence; because, if it were not agreeable to the strict truth, it would be corrected by the production of the originals. There is no difference with respect to this species of evidence between criminal and civil cases. 2 T. R. 201.]

[The statute 14 and 15 Vic. c. 99, § 6, enacts that on any action or other legal proceeding in the superior courts of common law, the court or any judge thereof may, on application by either of the litigants, compel the opposite party to allow the party applying to inspect all documents in his custody or under his control relating to such action or other legal proceeding, in all cases in which a discovery may be obtained by filing a bill or other proceeding in a court of equity.]

adopted (y) as the rule of a court of law. (37) 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)

4. The administration of justice should not only be chaste, but should not even be suspected. A jury coming from the neigbourhood 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 themselves, and such where assizes 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, laboring under local prejudices, is laying a snare for their consciences: and, though they should have virtue and vigour of mind sufficient to keep them upright, the parties will grow suspicious, and resort under [*384] 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: (b) but in local actions, though they sometimes do it indirectly and by mutual consent, 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) (38)

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 hundredcourt (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 came 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 from any part of the kingdom, yet they [*385] 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; (e) that of counties still remains, for many beneficial pur

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

(a) Stra. 177.

(y) Sce page 75. (b) See page 294. (c) This, among a number of other instances, was the case of the issues directed by the honse of lords in the cause between the duke of Devonshire and the miners of the county of Derby, A. D. 1762. (d) LL. Edw. Conf. c. 32. Wilk. 203. (e) See page 360,

(37) But now by statute 1 Wm. IV, c. 22, the superior courts of law are empowered, upon the application of any party to an action therein, to order the examination of any witnesses upon interrogatories, and, if the witnesses are out of the jurisdiction of the court, a commission inay be issued for the purpose. But the examination is not to be read at the trial, without the consent of the opposite party, unless it shall appear that the witness is then beyond the jurisdiction of the court, or dead, or unable from perinanent sickness to attend the trial. (38] [This may now be done in a court of law. Tidd, 8th ed. 655.]

poses: 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.

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 the best criterion, for investigating the truth of facts, that was ever established in any country. (39)

CHAPTER XXIV.

OF JUDGMENT AND ITS INCIDENTS.

IN the present chapter we are to consider the transactions in the 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) The substance of which is, that postea, afterwards, the said plaintiff and defendant appeared by their attorneys at the place of trial; and a jury, being sworn, found such a verdict; or, that the plaintiff, after the jury sworn, 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 [ *387 ] adjusted. Judgment *may however for 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

(a) Appendix No. II, § 4.

(39) So important has the right of trial by jury been regarded in the United States, that not only the national constitution, but the constitution of each of the states, contains limitations, more or less broad, upon the power of the legislature to deprive parties of it. The national constitution provides "that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed," and that" in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact tried by jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law." Const. U. S. 6th and 7th amendments. The restrictions in the state constitutions vary greatly, and they generally permit parties to waive the right. Some of them also allow a jury of less number than twelve. It is well settled, however, that where the constitution preserves the right of trial by jury in general terms, it preserves it for all those cases in which it was demandable of right at the common law. Crandall v. James, 6 R. I. 104; Dane Co. v. Dunning, 20 Wis. 210; Tabor v. Cook, 15 Mich. 322; In re Kemp, 16 Wis. 359; Byers v. Commonwealth, 42 Penn. St. 89; Haines v. Levin, 51 Penn. St. 412. And the right cannot be made to depend upon any condition. Green v. Briggs, 1 Curt. C. C. 311. And the number of the jury must be twelve, and in criminal cases, at least, the party cannot waive the right, or bind himself by consent to be tried by a less number. Work v. State, 2 Ohio, N. S. 296; Cancemi v. People, 18 N. Y. 128; Brown v. State, 8 Blackf. 561; Hill v. People, 16 Mich. 351.

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, (1) are at present wholly extrinsic, arising from the matter foreign to, or dehors the record. Of this sort are want of notice of trial; or any flagrant misbehaviour of the party prevailing towards the jury, which may have influenced their verdict; or any gross misbehaviour of the jury among themselves: also if it appears by the judge's report, certified to the court, that the jury have brought in a verdict without or contrary to evidence, so that he is reasonably dissatisfied therewith; (b) or if they have given exorbitant damages; (c) or if the judge himself has misdirected the jury, so that they found an unjustifiable verdict: for these, and other reasons of the like kind, it is the practice of the court to award a new, or second trial. But if two juries agree in the same or a similar verdict, a third trial is seldom awarded: (d) for the law will not readily suppose, that the verdict of any one subsequent jury can countervail the oaths of the two preceding ones. The exertion of these superintendent powers of the king's courts, in setting aside the verdict of a jury and granting a new trial, on account of misbehaviour in the jurors, is of a date extremely ancient. There are instances in the

(b) Law of Nisi Prius. 303, 304.

(c) Comb. 357.

(d) 6 Mod. 22. Salk. 649.

year

(1) [As to new trials in general, see Tidd, 8th ed. 934 to 949. When there are two contrary verdicts, it is not of course, but in the discretion of the court, to grant a new trial. 2 Bla. R., 963. The principle grounds for setting aside a verdict or nonsuit, and granting a new trial, besides those mentioned in the text, are-1st. The discovery of new and material evidence since the trial. 2 Bla. Rep. 955. 2dly. If the witnesses on whose testimony the verdict was obtained, have been since convicted of perjury in giving their evidence: M. 22 Geo. III, K. B; or if probable ground be laid to induce the court to believe that the witnesses are perjured, they will stay the proceedings on the finding of a bill of indictment against them for perjury till the indictment is tried: id.; but the circumstance of an indictment for perjury having been found against a witness, is no ground of motion for new trial. 4 M. and S. 140; 8 Taunt. 182. 3dly. For excessive damages, indicating passion or partiality in the jury. 1 Stra. 692; 1 Burr. 609; 3 Wils. 18; 2 Bl. Rep. 929; Cowp. 230; 5 T. R. 257; 7 id. 529; 11 East. 23. It is not usual to grant a new trial for smallness of damages; 2 Salk. 647; 2 Stra. 940; Doug. 500; Barnes, 455, 455; in which latter case it is said, if the demand is certain, as. on a promissory note, the court will set aside a verdict for too small damages, but not where the damages are uncertain. Lastly, it is a general rule not to grant a new trial except for the misdirection of the judge: 4 T. R. 753; 5 id. 19; 6 East, 316 (b); 1 Marsh. 555; or where a point has been saved at the trial: 1 B. and P. 333: in a penal (2 Stra. 899; 10 East, 258; 4 M. and S. 333; 2 Chitty R. 273), hard or trifling action : 2 Salk. 653; 3 Burr. 1305; and au action is considered trifling in this respect, when the sum to be recovered is under 201. : 5 Taunt. 537; 1 Chitty R. 265 (a); unless the trial is to settle a right of a permanent nature. Id. In all these cases, if the verdict be agreeable to equity and justice, the court will not grant a new trial, though there may have been an error in the admission or rejection of evidence, or in the direction of the judge, if it appear to the court on the whole matter disclosed by the report, that the verdict ought to be confirmed. 4 T. R. 463.

A new trial cannot be granted in civil cases at the instance of one of several defendants: 12 Mod. 275; 2 Stra. 814; nor for a part only of the cause of action. 2 Burr. 1224; 3 Wils. 47. But there may be cases in which the new trial is restricted to a particular part of the record, as if the judge give leave to move on one part or point only, on a stipulation that counsel shall not move for any thing else; or if the court think injustice may be done by setting the whole matter at large again, they may restrict the second trial to certain particular points. 4 Taunt. 556.

In criminal cases no new trial can be granted where the defendant has been acquitted;. 6 East, 315; 4 M. and S. 337; 1 B. and A. 64. Where several defendants are tried at the same time for a misdemeanor, and some are acquitted, and others convicted, the court may grant a new trial to those convicted, if they think the conviction improper. 6 East, 619. See further on this subject, Tidd, 8th ed. 934. In civil cases a motion for a new trial cannot be made after an unsuccessful motion in arrest of judgment. 4 Bar. and Cres. 160. The granting of a new trial is either without or upon payment of the costs of the former trial; or such costs are directed to abide the event of the suit. The general rule scems to be, that if the new tria! be granted for the misbehavior of the jury, or the misdirection of the judge, the costs are not required to be paid by the party applying for a new trial; but where the mere error of the jury, or the discovery of fresh evidence is the ground, the costs must be paid by the party moving to set aside the former verdict. See Tidd, 8th ed. 945.]

As to new trials, see, in general, Graham and Waterman on New Trials, passim.

VOL. II.-31

241

books of the reigns of Edward III, (e) Henry IV, (f) and Henry VII, (g) of judg ments being stayed (even after a trial at bar) and *new venires awarded, [*388] because the jury had eat and drank without consent of the judge, and because the plaintiff had privately given a paper to a juryman before he was sworn. And upon these the chief-justice Glynn in 1655, grounded the first precedent that is reported in our books (h) for granting a new trial upon account of excessive damages given by the jury; apprehending, with reason, that notorious partiality in the jurors was a principal species of misbehaviour. A few years before, a practice took rise in the common pleas, (1) of granting new trials upon the mere certificate of the judge (unfortified by any report of the evidence), that the verdict had passed against his opinion; though Chief-justice Rolle (who allowed of new trials in case of misbehaviour, surprise, or fraud, or if the verdict was notoriously contrary to evidence) (k) refused to adopt that practice in the court of king's bench. And at that time it was clearly held for law, (1) that whatever matter was of force to avoid a verdict, ought to be returned upon the postea, and not merely surmised by the court; lest posterity should wonder why a new venire was awarded, without any sufficient reason appearing upon the record. But very early in the reign of Charles the Second new trials were granted upon affidavits; (m) and the former strictness of the courts of law, in respect of new trials, having driven many parties into courts of equity to be relieved from oppressive verdicts, they are now more liberal in granting them: the maxim at present adopted being this, that (in all cases of moment) where justice is not done upon one trial, the injured party is entitled to another. (n)

Formerly the principal remedy, for reversal of a verdict unduly given, was by writ of atlaint; of which we shall speak in the next chapter, and which is at least as old as the institution of the grand assize by Henry II, (o) in lieu of the Norman trial by battle. Such a sanction was probably thought *neces[*389] sary, when, instead of appealing to Providence for the decision of a dubious right, it was referred to the oath of fallible or perhaps corrupted men. Our ancestors saw that a jury might give an erroneous verdict; and if they did, that it ought not finally to conclude the question in the first instance:, but the remedy, which they provided, shows the ignorance and ferocity of the times, and the simplicity of the points then usually litigated in the courts of justice. They supposed that the law being told to the jury by the judge, the proof of fact must be always so clear, that, if they found a wrong verdict, they must be wilfully and corruptly perjured. Whereas a juror may find a just verdict from unrighteous motives, which can only be known to the great searcher of hearts: and he may, on the contrary, find a verdict very manifestly wrong, without any bad motive at all; from inexperience in business, incapacity, misapprehension, inattention to circumstances, and a thousand other innocent causes. a remedy as this laid the injured party under an insuperable hardship, by making a conviction of the jurors for perjury the condition of his redress.

But such

The judges saw this; and therefore very early, even upon writs of assize, they devised a great variety of distinctions; by which an attaint might be avoided, and the verdict set to rights in a more temperate and dispassionate method. (p) Thus, if excessive damages were given, they were moderated by the discretion of the justices. (1) And if, either in that, or in any other instance, justice was not completely done, through the error of either the judge or the recognitors, it was remedied by certificate of assize, which was neither more nor less than a second trial of the same cause by the same jury. (r) And, in mixed or personal actions, as trespass and the like (wherein no attaint originally lay), if the jury gave a wrong verdict, the judges did not think themselves warranted thereby to pronounce an iniquitous judgment; but amended it, if possible, by subse

(f) 11 Hen. IV, 18. Bro. Ahr. tit. enquest, 3.
(h) Styl. 466.
(i) Ibid. 238.

(e) 24 Edw. III. 24. Bro. Abr. tit, verdite. 17. (g) 14 Hen. VII, 1. Bro. Abr. tit. verdite, 18. (k) 1 sid. 235. Styl. Pract. Reg 310, 311. edit. 1657. (2) Cro. Eliz. 616. Palm. 325, 1 Brownl. 207. (m) 1 Sid. 235. 2 Lev. 140. (n) 1 Burr. 395, (0) Ipsi regali institutioni eleganter inserta. Glanv. i. 2, c. 19. (p) Bract. l. 4, tr. 5, c. 4. (q) Ibid. tr. 1, c. 19, § 8. (r) Ibid. l. 4, tr. 5, c. 6, §2. F. N. B. 181. 2Inst (15.