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The objection assumes that the number of questions of fact presented by an equity case is greater, than the number of questions in a case at law. Is this true however, and if it be true, is the difference so great as to make a different mode of trial necessary? We have taken pains to make a comparison and think we are warranted in saying that the average number of real issues of fact, is not greater in equitable than in legal
If it were, however, considerably greater, that would not be decisive, unless it could be shown, that it was greater than could be conveniently disposed of by a jury, or greater than a jury is ever required to dispose of in a common law casc. This however cannot be shown, for we know that common law suits sometimes present a score or more of issues joined, and that each issue mày and toes often really involve several questions of fact.
Then it is sail, that in equity cases there are many parties, standing in different relations to each other, while in cases at law the parties are few, and all the plaintiffs stand in the same relation to all the defendants. They who make this an objection forget, that by our present law, a plaintiff may sue in ene action all the parties to commercial paper, however different may be their lefences, and however various their relations to each other. The holder of a protested bill of exchange may prosecute together all the drawers, acceptors and endorsers, and one jury shall try all the issues. Can more than this happen in an equitable case?
We think, therefore, we are warranted in concluding, that there is nothing in the nature of the questions, nor in the number and variety of them, which should prevent a uniform mode of trial in all cases, whether they be such as have been heretofore denominated legal or equitable.
The next point far consideration is, how, in respect of form, the questions should be submitted to the jury. Should they be left at large upon the complaint, answer, and reply, under the instructions of the court, or should they be reduced beforehand, to the form of particular and detached issues ? Either mode may be adopted. Our own preference is for the former. We think that there is no necessity for stating the questions before the trial, further than they appear in the complaint, answer and reply. It cannot be necessary to do so for the information of the parties, or their counsel. They know what questions are in dispute, from an examination of the pleadings. The same is true of the court. And all that the jury needl, is to have the questions plainly stated, when the case is given to them. This is now done by the judge in summing up; and to him we would leave it.
But we wculd authorize him, to direct the jury in certain cases, where the questions may be complicated, to find a special verdict in writing, upon all or any of the issues; or, if they render a general verdict, to find upon particular questions of fact, stated in writing. This will have a tendency to give greater precision to the language of the judge, enable the jury the better to separate the questions, and prevent mistake and misunderstanding
Sometimes it may happen, perhaps, that the wrong issues, or immaterial ones, are put to the jury. But that often happens now, in the trial of cases at law, upon the strictest issues, of which common law p'eadings are capable. The books are full of cases of new trials granted, because the judge had put the cause to the jury upon some wrong or immaterial question. And if it so happens in ordinary cases, as now conducted, it cannot be considered a serious objection, that the same thing, though less frequently, may happen in a trial upon pleadings reformed as we propose. We make no scruple in saying, that the new pleadings will be exposed to it in a much less degree, for the reason, that the parties will be better acquainted beforehand, with the really disputable points, and therefore more able to prepare for, and point out to the court and the jury, those which are, and those which are not, disputed.
JUDGMENT UPON FAILURE TO ANSWER.
SECTION 201. Judgment, what.
202. Juigmen', on failure of de eilant lo answer.
201. A judgment is the final determination of the rights of the parties.
To avoid the confusion incident to the use of the word judgment, in two senses, one as interlocutory, and the other as final, we liave thought it better to use is only in the latter sense, and to designate all other written directions of a court or judge, as orders.
§ 202. Judgment may be had, if the defendant fail to answer the complaint, as follows:
1. In an action arising on contract, for the recovery of money only, he may file with the clerk, the summons and comp'aint, with proof of service, and that no answer has been received. The clerk shall thereupon enter judgment for the amount mentioned in the sum
2. In other actions, he may, upon the like proof, apply to the court, at the time and place specified in the summons, for the relief demanded in the complaint. If the taking of an account or the proof of any fact be necessary to enable the court to give judgment, or to carry the judgment into effect, the court, instead of taking the account or hearing the proof, may in its discretion, order a refirence for that purpose to any person, free from all esception, to be named by the plaintiff. And where the action is for the recovery of money only, the court, if the plaintiff require it, shall order the damages to be assessed by a jury, or if the examination of a long account be involved, by a reference as above provided.
ISSUES, AND THE MODE CP TRIAL.
SECTION 203. The different kinds of issues.
24. Issue of law.
§ 203 Issues arise upon the pleadings, when a fact or conclusion of law is maintained by the one party and controverted by the other. They are of two kinds :
1. Of law; and 2. Of fact.
§ 204. An issue of law, arises,
2. Upon an allegation of fact in a pleading, by the one party, the truth of which is not controverted by the other.
$ 275. An issue of fact arises,
1 Upon an allegation in the complaint controverted by the answer; or,
2. Upon new matter in the answer controverted by the reply ; or,
3. Upon new matter in the reply.
$ 206. Issues both of law and of fact may arise upon the pleadings in the same action. In such case, the issues of law must be first tried, unless the court otherwise direct.
§ 207. A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.
The word trial is here useil, in its true and original signification, as applicable both to questions of fact and of law, though in common parlance, it is used in this state in a more restricted sense, and applied only to the first. The old definition is thus given in the first Institute, 124.
" Trial is to find out by due examination the truth of the point in issue, or question between the parties whereupon judgment may be given. And as the question between the parties is two-folıl, so is the trial thereof : for either it is questio juris, (and that shall be tried by the judges cither upon a demurrer, special verdict, or exception, for cuilibet in sua arte perito est credendum ; et quod quisque norit in hoc se exerceat; and it is commonly and truly said, ad questionem juris non respondent juratores,) or it is quæstio facti.”
As one word is desirable, for both kinds of judicial examination, we have thought it best to employ this, in its proper acceptation.
§ 208. Whenever, in an action for the recovery of money only, or of specific real or personal property, there shall be an issue of fact, it must be tried by a jury, unless a jury trial be waived, as provided in section 221, or