« PreviousContinue »
a reference be ordered, as provided in sections 225 and 226.
As we have already mentioned, in the note to the title, there are three kinds of trial of an issue of fact; a trial by jury, trial by the court, and trial by referees. A trial by jury is secured, by the constitution, to the parties, if they require it, where there are issues of fact in the courts of law, excepting only those where the trial involves the examination of a long account. We propose an extension of the right of trial by jury to many cases, not within the constitutional provision,
$ 209. Every other issue is triable by the court, which, however, may order the whole issue, or any specific question of fact involved therein, to be tried by a jury; or may refer it, as provided in sections 225 and 226.
$ 210. All issues, whether of law or fact, triable by a jury or by the court, shall be tried before a single judge. Issues in the supreme court, shall be tried at the circuit courts.! Bumi
$*&!, Issues of law and fact in equity cases, hare heretofore, been 46 tried before a single judge. Issues of fact, in common law cases,
have also been tried before a single judge, while the issues of law have been tried before three judges. To proluce uniformity in the mode of trial, we propose, that all issues shall be tried in the first instance before a single judge, whether they be issues of fact or of law. By this arrangement, we are enabled to give two appeals, in cases originating in the supreme court, one from the special term or circuit, to the general term, and the other from the general term to the court of appeals. And we can see no inconvenience to arise, either to the suitors or the court, from such an arrangement, although it may not be quite consonant with the present habits of the profession.
The same practice should of course be adopted in the superior court and common pleas of New York. There ought to be no difference between the courts in that respect.
$211. At any time after issue, and at least ten days before the court, either party may give notice of trial. The party giving the notice shall furnish the clerk, at least four days before the court, with a note of the issue, containing the title of the action, the names of the attorneys, and the time when the last pleading was served; and the clerk shall thereupon enter the cause upon the calendar, according to the date of the issue.
$ 212. The issues on the calendar shall be disposed of in the following order; unless, for the convenience of parties, or the despatch of business, the court shall otherwise direct:
1. Issues of fact, to be tried by a jury;
The issues to be tried by a jury should be first disposed of, that the jury may be relieved from their attendance at court, as soon as possible.
TRIAL BY. JURY.
SECTION 213. Either party may bring issue to tried.
214. Plaintiff to furnish court with copy summona, &c.
court may direct special finding.
$ 213. Either party giving the notice may bring the issue to trial, and in the absence of the adverse party, unless the court, fr good cause, otherwise direct, inay proceed with his case, and take a dismissal of the complaint, or a verdict or judgment, as the case may require.
$ 214. The plaintiff shall furnish the court with a copy of the summons and pleadings, with the offer of the defendant, if any shall have been made.
$ 215. The verdict of a jury is either general or special. A general verdict, is that hy which they pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury find the facts only, leaving the judg. ment to the couri.
§ 216. In every action for the recovery of money only, or specific real or personal property, the jury, in their discretion, may render a general or special verdict. In all other cases, the court may direct the jury to find a special verdict in writing, upon all or any of the issues; or may instruct them, if they render a general, verdict, to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. The special verdict or finding shall be filed with the clerk, and entered upon the minutes.
$217, Where a special finding of facts shall be inconsistent with the general verdict, the former shall control the latter, i nd the court shall give judgment accordingly.
$ 218. When a verdict shall be found for the plaintiff, in an action for the recovery of money only, the jury shall also assess the amount of the recovery.
§ 219. Upon receiving a verdict, the court shall direct an entry to be made, specifying the time and place of the trial, the names of the jurors and witnesses, the verdict, and either the judgment to be rendered thereon, or an order that the case be reserved for argument or further consideration.
$ 220. Judgment shall be entered by the clerk, in conformity to the verdict, after the expiration of four days, unless the court order the case to be reserved for argument or further consideration.
TRIAL BY THE COURT.
SECTION 221. Trial by jury how waived.
222. On trial by court, judgment to be given in twenty days.
§ 221. Trial by jury may be waived by the several parties, to an issue of fact in the manner following:
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.
This section is intended to provide the means, by which the parties may avail themselves of the constitutional permission, that “a jury trial may be waived by the parties in all civil cases, in the manner to be prescribed by law."
We are inclined to think, that parties will frequently avail themselves of this permission; and that under our system of an elective judiciary, trial by the court will become more and more popular. There are a great many cases, which the parties will prefer submitting to the judgment of the court, particularly where the question is one resting upon documentary evidence, or in which the chief controversy is upon questions of law. Cases respecting, title to land, in which the trial must necessarily involve the examination of abstruse questions in the law of real properly, cases of insurance, or concerning commercial paper, or requiring the consideration of foreign law, will often be of this character. In that limited class of actions, in which the paties have been heretofore permitted 10 choose, bet treen trial by the court and a trial by the jury, the former has been the more commonly chosen. Such has been found to be the case, we believe, in justices' courts. In the marine court in the city of