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the question in dispute, and avers that the fact is as he contended it was, and therefore brings his suit for the dollars; the defendant admits the wager, but avers the contrary to be the fact; whereupon the issue. is joined, which is directed to be tried;—after the issue is joined, the parties proceed in the same way as in any other action pending in the court where the issue is to be tried; except that it is proper to move the court for a special jury if necessary.(l) After the issue has been tried, the judge before whom the issue was tried, certifies how it was found, and that the verdict was supported by proof without or in addition to the confessions of the party charged.(m) If the party against whom the issue is found, is dissatisfied with the verdict, and wishes for a new trial, the application for one must be made to the court, previously to which, it is necessary to procure a copy of the judge's report who tried the cause ; which is obtained by an application to the court. The verdict must be such as will satisfy the conscience of the court, therefore a new trial will be granted if the verdict is contrary to the weight of evidence, or if the judge has misdirected the jury, or where new evidence is produced which was not before the jury before, and is material, although the judge certifies that he is satisfied with the verdict, and although a court of law would not have granted a new trial.(n) The 84th rule of court provides, that if an issue is awarded in cases of adultery, to satisfy this court whether such adultery has been committed, and the verdict on such issue affirms the adultery, the complainant
(l) See Newland, 178, 179. (n) See Newland, 178, 179, and 90. (m) Rule 84. Amb, 210. 2 Wes. 553.
shall not be entitled to an order on the return of the
Form of order for an issue of quantum damnificatus.
Between } and
This cause coming on to be heard this day upon the 3. Form of
- - - order for an is
pleadings and proofs taken therein, on hearing Mr. ...oriano.
of counsel for the complainant, and Mr. “ of counsel for the defendant, it is ordered, adjudged and decreed, that the plaintiff ought to receive from the defendants in this suit, or their successors in office, the damages sustained by, and compensation due to him, by reason of lowering his mill-dam across the Wallkill, in the bill mentioned, at the time the same was done; and, also, by reason of the defendants, their predecessors, or successors in office, entering upon, using and occupying the lands of the plaintiff, for digging a canal, and otherwise, as the
same may have been used for the purpose of draining, or to facilitate and assist in draining the drowned lands in the pleadings mentioned. But, inasmuch as it does not satisfactorily appear to the court, that any agreement has been made, by and between the parties, as to the amount of such damages and compensation, to the end, that the same may be satisfactorily ascertained, it is further ordered, adjudged and decreed, that an issue be made up between the parties, to ascertain by the verdict of a jury of the county of Orange, the amount of such damages and compensation; that the said issue be tried at the next, or any subsequent circuit in the said county; that, for the purpose of forming a proper issue for the assessment of the damages and compensation, to which the plaintiff is declared to be entitled as aforesaid, the plaintiff shaki declare in assumpsit, that the defendants promised to pay him as much as he reasonably deserved to have for his said damages and compensation, or to that effect; and to which declaration, the plea shall be non-assumpsit, on the trial, the plaintiff shall not set up any agreement between him and the defendants, or their predecessors in office, as to the amount of damages and compensation; and the defendants shall admit their assumption, to pay the plaintiff so much as he reasonably deserved to have, as damages and compensation for lowering his mill-dam, by the defendants' request, and for their accommodation, as commissioners for draining the drowned lands, and for the defendants, or their predecessors, or successors in office, entering upon, using and occupying the lands of the plaintiff as aforesaid; and the jury are to allow, in their assessment of damages, interest upon the amount of the damages they may find, for such damages and compensation, from the times
when the several acts were done for which the plaintiff is declared to be entitled to damages and compensation as aforesaid, to the time of rendering the verdict; and that all further directions be reserved until the said issue shall be tried, and the postea returned to this court.(a)
Common order for feigned issue in cases of adullery.
A. B. Complainant,
This cause coming on to be heard before his honor the Chancellor; thereupon on reading the pleadings, and on motion of E. F. Esq. solicitor of the complainant, it is ordered, that a feigned issue be formed and tried in the ordinary manner between the above parties, by a jury of King's county, to inquire, ascertain and determine, whether the adultery complained of in the complainant's bill of complaint hath been committed by the defendant; and that all further directions be reserved until after the determination of the said ISSUlee
After the order directing the feigned issue is made,
4. Order for eigned issue.
the complainant prepares his declaration, and serves it” “P”
upon the opposite party; and the defendant pleads thereto. As the form of the declaration, and of the plea, will both be sufficiently known by examining the nisi prius record, the compiler, to prevent repetition, has omitted them. The nisi prius record is as follows:
(a) Philips v. Thompson et al. 1 Johns, Chan. Rep. 151.
Form of nisi prius record.
6. Moi pri. Pleas before the justices of the people of the state of
New-York, of the Supreme Court of Judicature of the same people, at the City-Hall of the city of New-York, of the term of May, in the year of our Lord one thousand eight hundred and seventeen. Witness, Smith Thompson, Esq. Ch. Justice. Fairlie, Bloodgood and Breeze, clerks.
King's county, ss. John Doe puts in his place E. F. his attorney, against Richard Roe, in a plea of trespass on the case.
King's county, ss. Richard Roe puts in his place G. H. his attorney, at the suit of John Doe, in the plea aforesaid. King's county. To wit: Be it remembered, that on the first Monday of May, instant, before the justices of the people of the state of New-York, of the Supreme Court of Judicature of the same people, at the city of New-York, came John Doe, plaintiff in this suit, by E. F. his attorney, and brought into the court of the said people, before the said justices, a certain bill against Richard Roe, defendant in this suit, the said defendant being in custody, &c. of a plea of trespass on the case, and there are pledges of prosecuting, to wit, John Doe and Richard Roe, which said bill follows in these words, to wit:
Ring’s county. John Doe complains of Richard Roe, being in custody, &c. For, that whereas on the tenth day of May, in the year of our Lord one thousand eight hundred and sixteen, at Flatbush, in the