« PreviousContinue »
New-York, as appears from a return made to the convention, the number of judgments entered iu 1815, was 1285, while the number of jury trials was only 67; anil in 1816, up to the 27th of June, the number of judgments was 544, while the jury trials were only 27.
The late act of the English parliament, for the establishment of counly courts gives the parties in civil suits the choice of a trial by jury or by the court. We
e see it reported, that in one of the metropolitan courts unler that act, there have been 3000 cases triel, in which applications for juries have been made in only three cases.
One of the mosi burthensome duties of the citizen, is the performance of jury service. If that burthen can be lessened, by the plan proposed, without in any way infringing upon the rights of parties, we shall regard it as a great benefit.
§ 222. Upon a trial of a question of fact by the court, its decision shall be given in writing, and filed by the clerk, within twenty days after the court at which the trial took place. In giving the decision, the facts found shall be first stated, and then the conclusion of law upon them. Judgment upon the decision shall be entered accordingly.
§ 223. Either party may except to a decision on a mat'er of law arising upon such trial, in the same manner, and with the same effect, as upon a trial by jury. And either party desiring a review upon the evidence appearing on the trial, either of the questions of fact or of law, may, at any time within ten days after notice of the judgmeiit, make a case containing so much of the evidence as may be material to the question to be raised. The case shall be settled according to the existing practice.
§ 224. On a judgment for the plaintiff upon an issue of law, the plaintiff may proceed in the same manner as upon the failure of the defendant to answer, as prescribed by section 202. If judgment be for the defendant, upon an issue of law, and the taking of an account or the proof of any fact be necessary to enable the court to complete the judgment, a reference may be ordered as in that section provided.
TRIAL BY REFEREES.
SECTION 225. Reference of all issues by consent.
226. Compulsory reference.
$ 225. All or any of the issues in the action, whether of fact or of law, or both, may be referred, upon the written consent of the parties.
This will give the parties the advantages of an arbitration, without any of its risks, it being provided by section 159, that the report of the referees shall stand as the decision of the court, and the right of appeal be secured. It will also operate to relieve the courts, by enabling parties to choose judges of their own, whose decisions will have the effect of judgments.
$ 226. Where the parties do not consent, the court may, upon the application of either, or of its own motion, direct a reference in the following cases:
1. Where the trial of an issue of fact shall require the examination of a long account on either side; in which case, the referees may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein; or,
2. Where the taking of an account shall be necessary for the information of the court, before judgment, or for carrying a judgment or order into effect; or,
3. Where a question of fact, other than upon the pleadings, shall arise, upon motion or otherwise, in any stage of the action.
$ 227. The report of the referees upon the whole issue, shall stand as the decision of the court, in the same manner as if the action had been tried by the court; and their decision upon the matter referred, may be excepted to and reviewed in like manner.
§ 228. In all cases of reference, the parties may agree upon a suitable person or persons, not exceeding three; and on filing such agreement, the reference shall be ordered accordingly. If the parties do not agree, the court shall (except in the city and county of New-York,) appoint one or more referees, not exceeding three, who shall be free from exception, and reside in the county where the action is triable.
§ 229. In the city and county of New-York, when the parties do not otherwise agree, there shall be three referees, who shall be free from exception and reside in that city. They shall be appointed as follows: Each party shall name one, and these two shall name the third. If they fail to do so within two days after their own appointment, the name of the third referee shall be drawn by the clerk from the jury box, in the manner to be directed by the court, on ordering the reference. If either party omit to name a referee, his place shall be supplied from the jury box, in the same manner,
The power given to the courts of appointing referees, has already, in the city of New-York, given rise to great embarrassment. Judicial patronage, by this means, has become greater than has ever before been known among us, and should not be allowed to continue. We have devised the best means we could, of putting an end to it absolutely. If the effect shall be to induce parties to agree generally upon the referee, as we hope will be the case, we shall esteem it an opportune provision.
The evils of the appointments by the judges not having been felt, as we understand, out of the city, and there being no complaint on the subject, known to us, we have left the provisions of the judiciary act to stand as they are, in that respect.
MANNER OF ENTERING JUDGMENT.
SECTION 230. Judgment for or against any plaintiff or defendant.
231. What relief plaintiff to have.
$ 230. Judgment may be given, for or against one or more of several plaintiffs, and for or against one or more of several defendants, and it may determine the ultimate rights of the parties on each side, as between themselves.
The object of this section, is to prevent a failure of justice, when there happen to be too many or too few parties brought into court. The questions arising on the nonjoinder or misjoinder of parties, are the cause of much delay, vexation and disappointment, resulting, not unfrequently, in an entire failure of justice. This section will prevent them hereafter. It is also designed to save the necessity of a second action between parties, on the same side, where their liability over to each other, depends on the result of the issue joined with their common adversary. As for instance, if a recovery be had against the makers and endorsers of a promissory note, in one action, the latter would be entitled, in the same action, to a judgment against the makers, or to be subrogated in the place of the plaintiff, on paying his recovery.
$ 231. The relief granted to the plaintiff, if there be no answer, cannot exceed that which he shall have demanded in his complaint; but in any other case, the court may grant him any relief consistent with the