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court of law(24). Yet where the cause of action arises in India, and a suit is brought thereupon in any of the king's courts at Westminster, the court may issue a commission to examine witnesses upon the spot, and transmit the depose tions to England ?

4. The administration of justice should not only be chaste, but should not even be suspected. A jury coming from the neighbourhood has in some respects a great advantage; but is often liable to strong objections: especially in small jurisdictions, as in cities which are counties of themselves, and such where allises are but seldom holden; or where the question in dispute has an extensive local tendency; where a cry has been raised, and the passions of the multitude been in, flamed; or where one of the parties is popular, and the other a stranger or obnoxious. It is true that, if a whole county is interested in the question to be tried, the trial by the rule of lawa must be in some adjoining county: but, as there may be a strict interest fo minute as not to occasion any bias, so there may be the strongest bias without any pecuniary interest. In all these cases, to summon a jury, labouring under local prejudices, is laying a suare for their consciences : and, though they should have virtue and vigour of mind sufficient to keep them upright, the parties will grow fufpicious, and resort under various pretences to another mode of trial. The courts of law will therefore in transitory actions very often change the

venue, or county wherein the cause is to be triedb: but in local [ 384 ) actions, though they sometimes do it indirectly and by mutual

confent, yet to affect it directly and absolutely, the parties 2 Stat. 13 Geo. III. c. 63.

o See page 294 1 Stra. 177.

(24) A court can compel the plaintiff to consent to have a witness going abroad examined upon interrogatories, or to have an absent witness examined under a commiflion, by the power the judges have of putting off the trial; but they have no control in these instances over the defendant.


are driven to a court of equity; where, upon making out a proper case, it is done upon the ground of being necessary to a fair, impartial, and satisfactory trial.

The locality of trial required by the common law seems a consequence of the antient locality of jurisdiction. All over the world, actions transitory follow the person of the defendant, territorial suits must be discussed in the territorial tribunal. I may sue a Frenchman here for a debt contracted abroad; but lands lying in France must be sued for there, and English lands must be sued for in the kingdom of England. Formerly they were usually demanded only in the court-baron of the manor, where the steward could summon no jurors but such as were the tenants of the lord. When the cause was removed to the hundred court, (as seems to have been the course in the Saxon times ") the lord of the hundred had a farther power, to convoke the inhabitants of different vills to form a jury; observing probably always to intermix among them a stated number of tenants of that manor wherein the dispute arose. When afterwards it came to the county court, the great tribunal of Saxon justice, the sheriff had wider authority, and could impanel a jury from the men of his county at large: but was obliged (as a mark of the original locality of the cause) to return a competent number of hundredors; omitting the inferior distinction, if indeed it ever existed. And when at length, after the conquest, the king's jufticiars drew the cognizance of the cause from the county court, though they could have summoned a jury from any part of the kingdom, yet they chose to take the cause as they found it, with all it's local appendages; triable by a stated number of hundredors, mixed with other freeholders of the county, The restriction as to hundredors hath gradually worn away, and at length entirely vanished ; that of counties still remains, for many beneficial purposes; but, as the king's courts have [ 385 7 a jurisdiction co-extensive with the kingdom, there surely can

• This among a number of other in- miners of the county of Derby, A. D. tances, was the case of the issues di. 1762. rected by the house of lords in the cause LL. Edw. Conf.6. 32. Wilk. 203. between the Duke of Dexonthire and the See pag. 360. Ee 4


be no impropriety in sometimes departing from the general rule, when the great ends of justice warrant and require an exception.

I HAVE ventured to mark these defects, that the just panegyric, which I have given on the trial by jury, might appear to be the result of sober reflection, and not of enthusiasm or prejudice. But should they, after all, continue unremedied and unsupplied, still (with all it's imperfections. I trust that this mode of decision will be found the best criterion, for investigating the truth of facts, that was ever established in any country.




IN the present chapter we are to consider the transactions

1 in a cause, next immediately subsequent to arguing the demurrer, or trial of the issue.

If the issue be an issue of fact ; and, upon trial by any of the methods mentioned in the two preceding chapters, it be found for either the plaintiff or defendant, or specially ; or if the plaintiff makes default, or is 'nonsuit; or whatever, in short, is done subsequent to the joining of issue and awarding the trial, it is entered on record, and is called a poftear. The substance of which is, that postea, afterwards, the said plaintiff and defendant appeared by their attornies at the place of trial; and a jury, being sworn, found such a verdict; or, that the plaintiff after the jury sworn made default, and did not prosecute his suit; or, as the case may happen. This is added to the roll, which is now returned to the court from which it was sent; and the history of the cause, from the time it was carried out, is thus continued by the postea.

Next follows, fixthly, the judgment of the court upon what has previously passed; both the matter of law and matter of fact being now fully weighed and adjusted. Judgment a Aprend. NO II. $6.


may however for certain causes be suspended, or finally arrested: for it cannot be entered till the next term after trial had, and that upon notice to the other party. So that if any defect of justice happened at the trial, by surprize, inadvertence, or misconduct, the party may have relief in the court above, by obtaining a new trial; or if, notwithstanding the issue of fact be regularly decided, it appears that the complaint was either not actionable in itself, or not made with sufficient precision and accuracy, the party may supersede it, by arresting or staying the judgment.

: 1. Causes of suspending the judgment by granting a new trial, are at present wholly extrinsic, arising from matter foreign to or dehors the record. Of this sort are want of notice of trial; or any flagrant misbehaviour of the party prevailing towards the jury, which may have influenced their verdict ; or any gross misbehaviour of the jury among themselves; also if it appears by the judge's report, certified to the court, that the jury have brought in a verdict without or contrary to evidence, so that he is reasonably dissatisfied therewith b; or if they have given exorbitant damages; or if the judge himself has mif-directed the jury, so that they found an unjustifiable verdict ; for these, and other reasons of the like kind, it is the practice of the court to award a new, or second, trial. But if two juries agree in the same or a similar verdict, a third trial is feldom awardedd : for the law will not readily suppose, that the verdict of any one subsequent jury can countervail the oaths of the two preceding ones (1). b Law of nifi prius: 303, 4.

d 6 Mod. 22. Salk, 649. Comb. 357.

(1) If the verdict of the jury be agreeable to equity and justice, the court will rot grant a new trial, though there may have been an error in the admission of evidence or in the direction of the judge. 4 T. R. 468.

And it will not be granted merely because it has been disco. *vered after the trial, that a witness examined was incompetent. I T.R.717. But excesive damages in all cases, except in an

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