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Trial by Jury.

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disperse, to insure their returning at the ap"pointed time, as also to prevent the possibility "of communications on the subject of the cause "being held with them in the interval." But the rigorous inflexibility with which a cause once commenced has hitherto been carried on to its close, seemed capable of being modified with advantage; and accordingly the court or the judge at the trial of any cause, where they or he may deem it right for the purposes of justice, may now order an adjournment for such time, and subject to such terms and conditions as to costs and otherwise, as they or he may think fit (s. 19).

It will be recollected that the sittings of the court or of a judge for the trial of issues in fact, need not be confined to the sittings in and after term. Sittings may be appointed for any time in term or vacation, not being between the tenth of August and the twenty-fourth of October (s. 95); and the courts, or any judge, may make such orders as are necessary for the attendance of the jury at such time and place and in such manner as they or he may think fit (s. 59).


THE jury are bound, on a question compounded Special Case. of law and fact, to take the law from the judge. If unable to come to a satisfactory conclusion as to the combined question of law and fact, they may find the facts specially, i. e. they may find a special verdict, and leave the application of the law to the court. When the facts are not in dispute, this course is often adopted by the parties. Upon the judgment of the court, applying the law to the facts found in the special verdict, error may be brought.

Another course sometimes resorted to, when the facts are agreed upon, is to allow a verdict to be found for the plaintiff, subject to a special case, i. e., a case specially stating the facts, on which the court will afterwards determine the law as applicable thereto, and alter the verdict, if necessary, to one for the defendant. This mode of proceeding has been found so convenient, that the 3 & 4 Will. IV, c. 42. s. 25, enabled the parties to an action to state a special case immediately after issue joined, and to avoid the expense and delay of a trial altogether. The Common Law

Procedure Act, 1852, gave further facilities. It enables the parties to an action immediately after the issue of the writ to state any question of law in a special case for the opinion of the court without any pleadings whatsoever.

Special Case.

Error on a

special case.

There has hitherto existed a great drawback on this mode of proceeding; i. e., that the judgment of the court on a special case, unlike the judgment on a special verdict, could not be taken to a Court of Error. It is generally on questions of legal difficulty that a special case is resorted to, and parties are naturally unwilling to debar themselves of the opportunity of an appeal against an adverse decision. There seems to be no sufficient reason why a special case should not be placed on the same footing as a special verdict, except where the parties agree to be bound by the decision of the court.

Accordingly error may now be brought upon a judgment on a special case, in the same manner as upon a judgment upon a special verdict, unless the parties agree to the contrary (s. 32). The proceedings, for bringing a special case before the Court of Error, are to be the same as in the case of a special verdict; and the Court of Error may either affirm the judgment, or give the judgment which ought to have been given in the court below (s. 32). The Court of Error is required to draw any inferences of fact, from the facts stated in the special case, which the court where it was originally decided ought to have drawn (s. 32).

Motion for a New Trial, &c.

The facts of the case being ascertained, the judge frequently directs a nonsuit or a verdict to be entered. In such a case, with the view of avoiding a new trial, leave is generally reserved to the party against whom the judge has ruled, to move the court to set aside the nonsuit or the verdict, as the case may be, and to enter a verdict or nonsuit in his favour.

New Trial,

In the event of the improper rejection or im- Motion for a proper admission of evidence, or of erroneous &c. direction in point of law by the judge, the party whose evidence is rejected, or who objects to the admission of the evidence received by the judge, or to his direction in point of law, may either tender a bill of exceptions at the trial, or afterwards apply to the court for a new trial. The difference which has hitherto existed between the proceeding by a bill of exceptions and that by a motion for a new trial is, that, upon a bill of exceptions, the appeal is at once to the Court of Error, the court out of which the record issued being entirely passed over; while, on a motion for a new trial, the decision of the court in Banco has hitherto been conclusive, no appeal being allowed.

The proceeding by bill of exceptions has been Bill of considered objectionable on three grounds :exceptions.

1. The Court of Error is compelled in case of the erroneous admission or reception of evidence to award a new trial, although the error may have been unimportant, and the verdict would have been the same if the ruling had been otherwise.

2. This mode of proceeding is altogether inapplicable to the case of a nonsuit or verdict directed by the judge, with a leave reserved to the party prejudiced thereby, to move to enter an opposite verdict or a nonsuit, a proceeding found to be very convenient, as, if the ruling of the judge be wrong, it saves the necessity of a second trial.

3. The bill of exceptions must be tendered at the trial before verdict; and though in practice a short abstract of the grounds of exception is stated merely at the bar, sufficient opportunity

Motion for a for consideration in cases of nicety or difficulty is not afforded to the parties.

New Trial,


There are, likewise, objections to the proceeding by motion for a new trial, or to enter a nonsuit or verdict on leave reserved.

If the judge before whom the trial took place is a judge of the court, out of which the nisi prius record issued, the judge whose decision is thus appealed against, forms one-fourth part, and not unfrequently one-third part of the court of appeal. In the event of one other member of the court agreeing with him, the court is equally divided; and according to the rule of the courts, that when the court is equally divided, no rule shall be granted, the nonsuit or verdict stands, and the leave reserved to move for a different verdict becomes altogether illusory.

In the next place, the decision of the court on a motion for a new trial, or to enter a verdict or nonsuit, has hitherto been final, and without appeal; and thus, although the most important and difficult questions of law arise upon such motions, the result has been, that if the court upheld the ruling of the judge at the trial, and in so doing was wrong, the losing party was without redress. If, again, the court decided that there should be a new trial, as there was no appeal against such an order, the cause must have been again tried at the second trial the judge ruled as the court had ruled; and the party against whom the judge so ruled, might then tender exceptions to that ruling, and possibly obtain its reversal in a Court of Error. The second trial, in such a case, was purely formal, and yet it must have taken place, if the party intended to appeal from the judgment against him. If he appealed, and the Court of Error decided that the court below was wrong, the second trial was wholly thrown away. But that was not the climax.


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