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§ 197. An injunction to suspend the general and ordinary business of a corporation, shall not be granted, except by the court or a judge thereof. Nor shall it be granted, without due notice of the application therefor, to the proper officers of the corporation, unless the plaintiff shall give a written undertaking, executed by two sufficient sureties, to be approved by the court or judge, to the effect that the plaintiff will pay all damages, not exceeding the sum to be mentioned in the undertaking, which such corporation may sustain, by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto. The damages may be ascertained by a reference or otherwise, as the court shall direct.

§ 198. If the injunction be granted by a judge of the court or by a county judge, without notice, the defendant, at any time before the trial, may apply, upon notice, to a judge of the court in which the action is brought, to vacate or modify the same. The application may be made upon the complaint and the affidavits on which the injunction was granted, or upon affidavits on the part of the defendant, with or without the answer.

$ 199. If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs, in addition to those on which the injunction was granted.

CHAPTER IV.

OTHER PROVISIONAL REMEDIES.

SECTION 200. Powers of court, as to receivers, deposit of money, &c., in

court, and other provisional remedies.

$ 200. Until the legislature shall otherwise provide, the court may appoint receivers, and direct the deposit of money or other thing in court, and grant the other provisional remedies now existing, according to the present practice, except as otherwise provided in this act.

There are several other provisional remedies, which we shall define and provide for in the completed code of procedure. It is not necessary to do so now, and we have therefore devoted our time to portions of the code more pressing.

TITLE VIII.

of the Trial and Judgment, in Civil Actions.

CHAPTER I. JUDGMENT UPON FAILURE TO ANSWER.

II. ISSUES AND THE MODE OF TRIAL.
III. TRIAL BY JURY.
IV. TRIAL BY THE COURT,

V. TRIAL BY REFEREES.
VI. THE MANNER OF ENTERING JUDGMENT.

We have included trial and judgment in the same title, because they are so connected in some cases that it is difficult to separate them. Thus, in the case of trial by the court, the jud, ment of the court is given at the same time, upon both the facts and the law. To treat of the trial, in this instance, in one title, and the judgment in another, would needlessly lengthen and involve the provisions of the act.

The mode of trying issues of fact, is the first point to be delcrmined. The instructions of the legislature, and our own judgment, lead us to seek uniformity. We have already provided an uniforin mode of commencing actions, and an uniform mode of pleading. We think that there can also be an uniforra mode of trial.

All that the constitution has prescribed on the subject, is contained in these two paragraphs :

“ The trial by jury, in all cases in which it has been heretofore used, shall remain in violate forever. But a jury trial may be waived by the parties in all civil cases, in the manner to be prescribed by law." (Article 1, section 2.)

“ The testimony in equity cases shall be taken in like manner as in cases at law." (Article 6, section 10.)

“ The cases in which it has been heretofore used," are all cases at common law, except that a reference might have been ordered, when the trial would require the examination of a long account. Therefore, in the old common law cases there are to be two modes of trial, one by jury as heretofore accustomed, the other by the referees, or the court, when the parties waive a trial by jury. Can the same mode be adopted in that class of cases heretofore delermined by the courts of equity ?

A trial by the court or referees, is equally applicable to both classes of cases. Courts of equity have heretofore tried causes themselves, or with the aid of masters. It is true, that the testimony was in writing. But that appears to us an immaterial element in respect to this mode of trial, and if it were otherwise, the constitution has abolished it, and required the proofs to be taken orally, as often, and to the saine extent, in equity as at law. Wherever, therefore, the parties waive a trial by jury, and a trial by the court or referees is to be had, there may be

entire uniformity between cases legal and equitable. [P. & p.)

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The mode of doing this is naturally suggesteå by the other modes of trial. The practice which now prevails in equity, of writing down the restiinony, word for word, and sending it all to the superior court on an appeal, must be discontinued. If it be not, the mere taking of the testimony, will occupy half the time of the judges. The rapid examination which takes place on common law trials before juries, leads to the truth, as surely as the slower process of other trials. A juilge is as competent 10 estimate the weight of testimony as a juror, and can do it as rapidly. More time, or a more careful record of the testimony, is not necessary for him. Nor is it necessary for any purpose. In case of an appeal upon questions of fact, so much of the testimony as may be necessary to present the questions, may be stated in a case, as is now done in common law actions. We perceive no good reason why it should not be so.

Whenever the questions to be taken to the court above, are questions of law, they may be presented on bills of exceptions, or cases, made from the notes of counsel, unier the direction of the judge, in this case, as well as thit of a trial by jury. The court is substituted for the jury. The same machinery may be applied to the one mode of trial, which is now applied to the other. Bills of exceptions, cases, motions for new trials, on the ground of newly discovered evidence, will be equally appropriate, in both cases.

The point ailmitting of most debate is this, how far a determination of the facts by one court, on a trial had before it, without a jury, should be subject to revision. That it should be so to some extent, we cannot doubt. The power of determining the facts, vested in a single judge, without appeal, would be liable to abuse, and would be subject to great suspicion, whether abused or not. But how far this right of appeal upon the facts should be allowed, or whether it should be coextensive with the right of appeal upon the law, or might be safely and justly limited to less, is a question of some moment. We are inclined to the limited appeal, because the issues of fact are in general not the most difficult, and an examination by two courts creates as great a probability that justice has been done, as can ever attach to the verdicts of juries.

For the purpose of revision, we propose that a case be made, containing so much of the evidence as is material to the questions to be raised. The cases now made, at law, on molions for new trials, for insufficient evidence, are supposeil to present and do in fact present the evidence correctly. It is not necessary to a proper judgment upon the facts, that the whole of every question and of every answer should be written down. A condensed statement of the evidence presents it as fairly, and, to the court more acceptably, because more easily examined.

There remains then but the case of a trial by jury. And the enquiry is narrowed down to this : can it be adopted in bo:h classes of cases? Or in other words, where an uniform mode of pleading is used, will not the trial by jury be applicable as well to that class of cases heretofore denominated equitable, as to that denominated legal?

Tie contrary supposition implies, either that there is something in the nature of equitable cases, which unfits them for that mode of trial, or that the form of the pleadings is unsuited to it. We have already endeavored to show in the note to section 1i8, that the form of the pleadings in common law cases can be radically changed, and made uniforin with those of equity, without in any degree impairing their fitness for jury trial. If we were right in that, then the obstacle, if there be any, is not in the form of the pleading, and the only remaining enquiry is, whether there be any thing in the nature of the cases distinguished as equitable, which unfits them for that mode of trial.

If there be, it must arise either from the nature or from the number and variety of the questions. It cannot be the former, because a jury can determine the questions of fact in one case, as well as the other. Is it then the latter? It is, we know, objected frequently and earnestly, that the number and variety of the questions of fact in equity cases, make it inexpedient, if not impossible, to submit them properly to a jury at a single trial.

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