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tinction between actions at law and suits in equity under sec. 69, some distinction must always exist between cases of a legal and those of an equitable nature; and that, where legal and equitable principles are in conflict in the same case, substantial justice cannot be done, without a mode of trial adapted to the due consideration of the latter. See in particular Wooden v. Waffle, above referred to, in corroboration of this view, which has already been developed in the chapter on the general requisites of pleading.

The power of the jury to assess damages, in favor of a defendant prevailing on a set-off to an amount exceeding the plaintiff's claim, and those of the court to order judgment accordingly, are made clear by the recent amendment in sec. 263. Similar relief had, however, been previously granted in these cases.

It will be remarked that, in the event of the general verdict of the jury, and their special finding on any particular questions of fact submitted to them being inconsistent, the latter, under sec. 262, is always to prevail.

The former power of the judge to order a verdict to be entered subject to the opinion of the court thereon, which had been swept away by the Codes of 1848 and 1849, is restored by the recent amendment of sec. 264. The old books of practice should be accordingly consulted, as to the proper course under this most salutary restoration.

The mode of procedure, on the return of the jury prepared to deliver their verdict, is thus prescribed by the earlier portion of sec. 264:

§ 264. Upon receiving a verdict, the clerk shall make an entry in his minutes, specifying the time and place of the trial, the names of the jurors and witnesses, the verdict, and either the judgment rendered thereon, or an order that the cause be reserved for argument or further consideration. If a different direction be not given by the court, the clerk must enter judgment in conformity with the verdict.

If the verdict be returned in open court, and in the presence of counsel, and the jury, as is often the case, have fallen into manifest error, the present is the proper period for its correction. By a reconsideration of such errors under the direction of the judge, much subsequent trouble, and possibly the necessity of a new trial, may be obviated. This observation of course assumes that the errors in question have arisen from a manifest misapprehension on the part of the jury, as to the extent of their functions, or as to the real nature of the questions submitted to them. If, however, their opinion

has been regularly come to, on a question of fact duly submitted to them, that opinion, however manifestly erroneous, cannot be impeached, otherwise than by means of a new trial. However unsatisfactory it may be, their verdict is conclusive, until such fresh trial, if granted, shall have taken place.

In actions of replevin, the plaintiff, if he recover less than $50 damages, should be careful to ask for an assessment of the value of the property recovered, with a view to the purposes of costs, and in order to bring the case within the following clause, forming part of sec. 304:

"And in an action to recover the possession of personal property, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages, unless he recovers also property, the value of which, with the damages, amounts to fifty dollars. Such value must be determined by the jury, court, or referee, by whom the action is tried."

The power to reserve the case "for argument or further consideration," has formed part of the Code from its original passage, but, strange to say, no instance occurs in the reports in which that power has ever been directly acted upon. It was probably intended as a substitute for the now restored practice of entering a verdict subject to the opinion of the court.

The total omission in the two former Codes, of any provisions as to the granting of a new trial upon errors of fact, had been the occasion of much doubt and inconvenience. The cases on the subject will be cited, and the necessary observations made, in chap. VII. of the present portion of the work. For the present, it is only necessary to remark further in conclusion, that, on the entry of the verdict, the court and jury fees must be paid by the prevailing party. The results of that verdict remain for future consideration. Where, on the delivery of the verdict, it is manifest that a new trial will be moved for, or an appeal taken, a stay of proceedings may at once be applied for, whilst in court, and may probably be granted. The more usual course is, however, to make a subsequent application for that purpose, before the actual entry of the judgment.

CHAPTER V.

TRIAL BY THE COURT.

ALL issues of fact, not properly triable by a jury, [V. sections 252 and 254,] and, therefore, as a general rule, the whole class of equitable causes, may be considered as falling within the present category, though, as before remarked, these last may be submitted to a jury if the parties choose, and have been so in some few cases.

1. By failing to appear at the trial.

2. By written consent, in person or by attorney, filed with the clerk.

3. By oral consent in open court, entered in the minutes.

It will be observed that it is only in actions arising out of contract, that this waiver can take place as of course. In others, the assent of the court is necessary; and, in fact, in actions sounding in tort, or where, for any cause, damages require to be assessed, trial by jury is the proper form, and the court may very possibly refuse to dispense with it.

The waiver of trial by jury, by failure to appear, has already been considered, under the head of Inquest and Default. The present observations apply only to cases where an actual trial takes place, or is intended, and it is the desire of the parties that such trial should be had by the court, and not by the jury.

In these cases, it will obviously be most convenient to obtain a written consent, and file it with the clerk beforehand, and then to set down and notice the cause accordingly, upon the

Special Term Calendar, or otherwise, as may be the practice in the particular court or district. In the Common Pleas, this mode of setting down the cause is made the subject of special provision, by Rule 7, of June, 1848, and the causes thus set down are to be placed in a separate part of the calendar. The form of waiver by oral consent, in open court, seems more peculiarly applicable to those cases in which the parties change their intentions at the last moment, and after the cause has actually been called on, in its order on the circuit or trial term calendar-a case of comparatively infrequent occurrence.

The general course of the trial before a single judge is practically the same as that before a jury, "mutatis mutandis." The case is opened, proved, argued, summed up, and any interlocutory objections or exceptions taken and noted in the same manner, and the general conduct of the cause is identical.

In the nature, however, of the decision of the court, and in the mode in which that decision is given, a material distinction exists. The verdict of the jury must be simultaneous with, or, at least, immediately consequent upon the trial of the issue by them. Time for consideration is, on the contrary, given to the court by sec. 267, which runs as follows:

§ 267. Upon a trial of a question of fact by the court, its decision shall be given in writing, and filed with the clerk within twenty days after the court at which the trial took place. Judgment upon the decision shall be entered accordingly.

Of course, this power does not exclude the right of the judge who tries the cause, to give an oral opinion at the close of the trial, in case he does not require the time here allowed for deliberation; and, although the question has been mooted, it seems now settled that his oral direction, entered in form upon the clerk's minutes, is a sufficient decision of the cause, and a sufficient authority for the consequent entry of judgment.

In The People v. Dodge, 5 How. 47, it was held that the period of twenty days, above prescribed, was merely directory; and, the decision in that case having been made by the judge, but accidentally prevented from being filed in due time, it was held that he had power to file such decision afterwards, and that a mandamus might issue to compel him to do so.

The decision of the judge, in these cases, being usually given in writing, and filed with the clerk, instead of being delivered

in the presence of the parties, the taking of exceptions to that decision at the time of its delivery, is necessarily impracticable. By section 268, a special power of excepting, on matters of law, is, therefore, given to the parties, if exercised within ten days after notice in writing of such judgment. The decision may also be reviewed on matters of fact, by means of an appeal to the general term, on a case made in the usual manner. the same section. It is, of course, important with the above limitatio

See

g vi a judge, upon an issue of fact tried before him, is, in all respects, equivalent to the verdict of a jury upon the same issue, and is to be so treated.-V. Osborne v. Marquand, 1 Sandf. S. C. R. 457. It is therefore conclusive, unless the weight of evidence against it be so great, that a verdict, under similar circumstances, would be set aside.

CHAPTER VI.

TRIAL BY REFEREES.

WIDE though the distinction be between interlocutory or consequential references, and those of the whole issue, the general form of proceeding in both is, in many respects, analogous.

The interlocutory or consequential reference, bears more the character of one to the master, under the old Chancery prac tice; the reference of the whole issue, that of a trial by the court. In both instances, the general form of proceeding, viz., the ap pointment to attend before the referee, the course of proof and argument before him, and the nature and form of the report to be made, present the same general characteristics. To treat both separately would involve much needless repetition, whilst, on the other hand, any minor distinctions are easy to be no

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