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preme Court shall award, and also pay any | justice of the peace, and requires of the ap-
sum of money which shall appear by the pellant a bond with surety to prosecute the
judgment of the said court to be due from appeal and to pay the judgment of the ap-
him" to the state; and might have the whole pellate court. The full extent and weight
matter tried by a jury upon the appeal. This of those precedents cannot be justly appreci-
statute also provided that the settlement of ated without referring to the texts of the
any account by the comptroller general, and statutes which they upheld, and which have
confirmation thereof by the executive council, not always been fully set forth in the re-
whereby any sum of money should be found ports.
due from any person to the state, should be a
lien on all his real estate throughout the
state. 2 Dall. Laws Pa. 44, 247, 248, 251.

In Livingston v. Moore (1833) 7 Pet. 469,
[8: 751], which came to this court from the
circuit court of the United States for the
eastern district of Pennsylvania, the valid-
ity of a lien so acquired by the state was at-
tacked on the ground, among others, that the
statutes creating it were contrary to section
6 of the Pennsylvania bill of rights of 1790.
But this court upheld the validity of the lien,
and in an opinion delivered by Mr. Justice
Johnson, after elaborately discussing the
other questions in the case, briefly disposed
of this one as follows: "As to the sixth sec-
tion of the Pennsylvania bill of rights, we
can see nothing in these laws on which to
fasten the imputation of a violation of the
right of trial by jury; since, in creating
the lien attached to the settled accounts, the
right of an appeal to a jury is secured to
the debtor." 7 Pet. 552 [8: 781].

The leading case is Emerick v. Harris (1808) i Binn. 416, which arose under the statutes of Pennsylvania. The provisions of the Constitution of the state are quoted above. The provincial statute of March 1, 1745, gave a justice of the peace jurisdiction of actions to recover the sum of forty shillings and upwards and not exceeding five pounds; and authorized any person ag grieved by his judgment to appeal to the court of common pleas, "first entering into recognizance, with at least one sufficient security, at least in double value of the debt [24] or damages sued for, and sufficient to answer all costs, to prosecute the said appeal with effect, and to abide the order of the said court, or in default thereof to be sent by mittimus to the sheriff of the county, by him to be kept until he shall give such security, or be otherwise legally discharged." 1 Dall. Laws Pa. 304, 307. The statute of April 5, 1785, enlarged the summary jurisdiction of a justice of the peace to sums not exceeding ten pounds; and, for the avowed purpose of conforming to the Constitution of the state, gave an appeal to the court of common pleas, upon the like terms as by the statute of 1745. And the statute of March 11, 1789, conferred upon the aldermen of the city of Philadel phia the jurisdiction of justices of the peace. 2 Dall. Laws Pa. 304, 305, 660. The statute of April 19, 1794, extended the jurisdiction of justices of the peace, as well as of the aldermen of Philadelphia, to demands not excecding twenty pounds, with a right of ap peal, after judgment, if the amount exceeded five pounds, to the court of common pleas, "in the same mauner, and subject to all other restrictions and provisions," as in the statute of 1745. 3 Dall. Laws Pa. 536-538. In support of a writ of certiorari to quash a judgment for cleven pounds and six shillings, rendered in the alderman's court of Philadelphia upon default of the defendant, it was argued "that the Constitution, by di

While, as has been seen, the Seventh Amendment to the Constitution of the United States requires that "the right of trial by jury shall be preserved" in the courts of the United States in every action at law in which the value in controversy exceeds twenty dollars, and forbids any fact once tried by a jury to "be otherwise re-examined, in any court of the United States, than according to the rules [23] of the common law," meaning thereby the common law of England, and not the law of any one or more of the states of the Union, yet it is to be remembered that, as observed by Justice Johnson, speaking for this court, in Bank of Columbia v. Okely, above cited, it is not "trial by jury," but "the right of trial by jury," which the Amendment declares "shall be preserved." It does not prescribe at what stage of an action a trial by jury must, if demanded, be had; or what conditions may be imposed upon the demand of such a trial, consistently with preserving the right to it. In passing upon these ques-recting that trial by jury should be as heretions, the judicial decisions and the settled tofore, and the right thereof remain inviopractice in the several states are entitled to late, had interdicted the legislature from great weight, inasmuch as the Constitutions abolishing or abridging this right in any of all of them had secured the right of trial case in which it had existed before the Conby jury in civil actions, by the words "shall stitution; that a prohibition to do this dibe preserved," or "shall be as heretofore," or rectly was a prohibition to do it indirectly, "shall remain inviolate," or "shall be held sa- either by deferring the decision of a jury uncred," or by some equivalent expression. til one, two, or more previous stages of the cause had been passed, or by clogging the resort to that tribunal by penalties of any kind, either forfeiture of costs, security upon appeal, or delay; that the power to obstruct at all implied the power to increase the obstructions until the object became unattainable; and that the instant the enjoyment of the right was to be purchased by sacrifices unknown before the Constitution, the right was violated, and ceased to exist as

881

56

A long line of judicial decisions in the sev-
eral states, beginning early in this century,
maintains the position that the constitution-
al right of trial by jury in civil actions is not
infringed by a statute which sets the pe-
cuniary limit of the jurisdiction of justices
of the peace in actions at law higher than it
was when the particular Constitution was
adopted, allows a trial by jury for the first
time upon appeal from the judgment of the
174 Ú. S.
U. S.. BooK 43.

the statute of 1809, chap. 63, provided that an appeal from the judgment of a justice of the peace should not be granted, unless the appellant "enter into bond with good and sufficient security, with a condition to prosecute said appeal;" and that, if the papers should not be returned to the clerk of the county court at the return term, it should "be lawful for the appellee, on the production of the papers in the cause, to move for judgment against the appellant and his securities, for the amount of the debt and costs, if he should have been the original defendant; if not, for the amount of costs." 1 Scott's Laws of Tennessee, pp. 476, 695, 1166. The statute of 1831, chap. 59, further extended the jurisdiction of a justice of the peace to one hundred dollars. Public Acts of Tennessee of 1831, p. 83. In a case arising under the last statute, the supreme court of Tennessee, while Chief Justice Catron (afterwards a justice of this court) was a member thereof, declared it to have been settled by a long series of its decisions, beginning under the statute of 1801, that such a sub-statute was constitutional, upon the ground that "inasmuch as the party was in all cases allowed his appeal, when he could have a trial by jury, the right of trial by a jury was not taken away; so that the terms of requiring bail or security for the money be longed to the legislature to provide, and though the security required in the cases of appeal differed from those cases where the party was brought into court by original writ, still, as it did not take away the right of trial by jury, the act was not unconstitutional." Morford v. Barnes (1835) 8 Yerg. 444, 446; *followed in Pryor v. Hays (1836) [27] 9 Yerg. 416.

The Constitution of Tennessee of 1796 de clared that "the right of trial by jury shall [26] remain inviolate." 2 Charters and Constitutions, 1674. At the time of the adoption of that Constitution, as appears by the territorial statute of 1794, chap. 1, §§ 52, 54, justices of the peace had jurisdiction only of actions for twenty dollars and under; and either party night appeal to the county court, "first giving security for prosecuting such appeal with effect, which said appeal shall be tried and determined at the first court, by a jury of good and lawful men, and determination thereon shall be final." The Jurisdiction of a justice of the peace was extended by the statute of 1801, chap. 7, to fifty dollars, "subject, nevertheless, to ap-diction, with the right of appeal, as it existpeal by either party, to be tried in the county ed when the Constitution was adopted, is court by a jury, as in other cases." And violation of the above privilege, secured by

The Constitution of Connecticut of 1818, article 1, section 21, likewise declared that "the right of trial by jury shall remain inviolate." 1 Charters and Constitutions, 259. At the time of its adoption, the jurisdiction of justices of the peace, in actions of trespass, was limited to fifteen dollars. In the Revised Laws of 1821, tit. 2, § 23, their jurisdiction was extended to thirty-five dollars; but in demands for more than seven dollars an appeal was allowed to the county court, the appellant to "give sufficient bond, with surety, to the adverse party, to prosecute such appeal to effect, and to answer all damages in case he make not his plea good." The supreme court of Connecticut held the statute constitutional; and Chief Justice Hosmer, in delivering judgment, said: “I admit that the trial by jury must continue unimpaired; and shall not now dispute that there can be no enlargement of a justice's jurisdiction, which shall take from anyone the legal power of having his cause heard by a jury, precisely as it might have been before the Constitution was adopted. It is indisputable that a justice of the peace is empowered to hear all causes personally, and that he cannot try them by a jury. The question, then, is brought to this narrow point, whether the enlargement of a justice's juris

before." But the supreme court of Pennsylvania held that the statute of 1794 was [25]a constitutional regulation of judicial proceedings by legislative authority. 1 Binn. 424, 428. See also M'Donald v. Schell (1820) 6 Serg. & R. 240; Biddle v. Commonwealth (1825) 13 Serg. & R. 405, 410; Haines v. Levin (1866) 51 Pa. 412.

Soon after the decision in Emerick v. Harris, a similar decision was made by the supreme court of North Carolina. In the Constitution of that state of 1776 it was declared that "in all controversies at law, respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable." 2 Charters and Constitutions, 1410. When that Constitution was formed, justices of the peace had jurisdiction over sums of twenty shillings and under. In 1803 the legislature extended their jurisdiction to thirty pounds, "subject, nevertheless, to the right of appeal, as in similar cases" a statute of 1794 having provided that in all cases of appeals from the judgment of a justice, the appellant's scription and acknowledgment of the security, attested by the justice, "shall be sufficient to bind the security to abide by and perform the judgment of the court; and where judgment shall be against the appellant the same shall be entered on motion against the security, and execution shall issue against the principal, or against both principal and security, at the option of the plaintiff." 2 Martin's Laws of North Carolina, pp. 60, 207. "The legislature has," said the court, "given to either party the right of appealing to a court, where he will have the benefit of a trial by jury. It cannot, therefore, be said that the right of such trial is taken away. So long as the trial by jury is preserved through an appeal, the preliminary mode of obtaining it may be varied at the will and pleasure of the legislature. The party wishing to appeal may be subjected to some inconvenience in getting security, but this inconvenience does not in this, nor in any other case where security is required, amount to a denial of right." Keddie v. Moore (1811) 6 N. C. (2 Murph.) 41, 45 [5 Am. Dec. 518]; followed in Wilson v. Simonton (1821) 8 N. C. (1 Hawks) 482.

|istrate, he or she shall be at liberty to appeal to the next county court, before the justices thereof, who are hereby, upon the petition of the appellant, in a summary way, empowered and directed to hear the allegations and proofs of both parties, and determine upon the same according to the law of the land, and the equity and right of the matter;" and "either of the said parties may demand a trial by jury, or leave the cause to be determined by the court, at their elec tion." And by 5, the appellant was required to give bond with sufficient sureties, in double the sum to be recovered, to prosecute his appeal, and to pay the appellee, "in case the said judgment shall be affirmed, as well as the debt, damage, and cost adjudged by the justice from whose judgment such appeal shall be made, as also all cost and damage that shall be awarded by the court before whom such appeal shall be heard, tried, and determined." Latrobe's Justices' Practice, 1st ed. 1826, pp. 56, 112, 360, 362; 2 Kilty's Laws.

that instrument. I am clear that it is not; and that a construction of this nature is equally unwarranted by the words, and by the intention, of the Constitution. An instrument remains inviolate if it is not infringed; and by a violation of the trial by jury, I understand taking it away, prohibit ing it, or subjecting it to unreasonable and burdensome regulations, which, if they do not amount to a literal prohibition, are, at least, virtually of that character. It never could be the intention of the Constitution to tie up the hands of the legislature, so that no change of jurisdiction could be made, and no regulation even of the right of trial by jury could be had. It is sufficient, and with[28] in the reasonable *intendment of that instrument, if the trial by jury be not impaired, although it may be subjected to new modes, and even rendered more expensive, if the public interest demands such alteration. A law containing arbitrary and unreasonable provisions, made with the intention of annihilating or impairing the trial by jury, would be subject to the same considerations, as if the By the statute of Maryland of 1809, chap. object had been openly and directly pursued. 76, §§ 1, 6 (3 Kilty's Laws), the exclusive But, on the other hand, every reasonable reg- original jurisdiction of justices of the peace ulation, made by those who value this palla- was extended to all cases where the real debt dium of our rights, and directed to the at- or damages demanded did not exceed fifty tainment of the public good, must not be dollars. And by the statute of Maryland of deemed inhibited because it increases the 1852, chap. 239, their original jurisdiction burden or expense of the litigating parties." was extended to all cases of contract, tort, or "In conclusion, I am satisfied that the liber-replevin, where the sum or damage or thing ty of appeal preserves the right of trial by demanded did not exceed one hundred doljury inviolate, within the words and fair in-lars, with a right of appeal to the county tendment of the Constitution; and that no court; and was made concurrent with that of such unreasonable hardship is put on the ap- the county court where it exceeded fifty pellant, by the bond required for the prose- dollars. cution of the appeal, as to justify the assertion that the right of trial by jury is in any manner impaired." Beers v. Beers (1823) 4 Conn. 535, 538, 540 [10 Am. Dec. 186]. See also Colt v. Eves (1837) 12 Conn. 243, 253; Curtis v. Gill (1867) 34 Conn. 49.

Before the adoption of the Constitution of the state of Maryiand, each of the statutes of the province "for the speedy recovery of small debts out of court, before a single justice of the peace," would appear to have restricted his civil jurisdiction to claims for thirty-three shillings and four pence, as in the statute of 1715, chap. 12, or for fifty shillings, as in the statute of 1763, chap. 21. Bacon's Laws.

In Steuart v. Baltimore (1855) 7 Md. 500, the court of appeals of Maryland, speaking by Judge Eccleston, said: "In the third section of the old Bill of Rights, it was declared 'that the inhabitants of Maryland are entitled to the common law of England, and the trial by jury, according to the course of that law.' Notwithstanding this, the legislature passed laws at different times, extending the jurisdiction of justices of the peace in matters of contract, and giving jurisdiction *in [30] matters of tort where they had none previously. These laws, of course, made no provi'sion for trials by jury except on appeal to the county courts, and yet they were constantly acquiesced in, and not considered as being repugnant to the Bill of Rights." The court then referred to Morford v. Barnes, Beers v. Beers, and McDonald v. Schell, above cited, and added: "These cases fully establish the principle that where a law secures a trial by jury upon an appeal, it is no violation of a constitutional provision for guarding that right, although such law may provide for a primary trial without the intervention of a jury. This is upon the ground that the party, if he thinks proper, can have his case decided by a jury before it is finally settled." 7 Md. 511, 512.

By the statute of the state of Maryland of 1791, chap. 68, "for the speedy recovery of small debts out of court," § 1, any one justice of the peace, of the county wherein the debtor resided, was vested with jurisdiction to try, hear, and determine "all cases where the real debt and damages doth not exceed ten pounds current money" (or twenty-six and two-thirds dollars), "and, upon full hearing of the allegations and evidences of both parties, to give judgment, according to the laws of the land, and the equity and right of the matter." By § 6 his jurisdiction was made exclusive to that extent. By § 4, "in all cases where the debt or demand doth ex-ing: Kentucky Stat. January 30, 1812, §§ [29] ceed twenty *shillings common money" (or 4-6, 2 Morehead & Brown's Digest, pp. 893, two and two-thirds dollars), "and either 894; Pollard v. Holeman (1816) 4 Bibb, plaintiff or defendant shall think him or her- 416; Head v. Hughes (1818) 1 A. K. Marsh. self aggrieved by the judgment of any mag- 372 [10 Am. Dec. 742]; Feemster v. Ander

To the like general effect are the follow

son (1828) 6 T. B. Mon. 537; Flint River S. B. Co. v. Foster (1848) 5 Ga. 194, 208 [48 Am. Dec. 248]; Lincoln v. Smith (1855) 27 Vt. 328, 361; Lamb v. Lane (1854) 4 Ohio St. 167, 180; Norton v. McLeary (1858) 8 Ohio St. 205, 209; Reckner v. Warner (1872) 22 Ohio St. 275, 291, 292; Cooley, Const. Lim. 6th ed. 505; 1 Dillon, Mun. Corp. 4th ed. § 439.

VI. When the District of Columbia passed under the exclusive jurisdiction of the United States, the statute of Maryland of 1791, chap. 68, above quoted (having been continued in force by the statute of that state of 1798, chap. 71, 2 Kilty), was one of the laws in force in the District.

Stat. D. C. §§ 997, 1006.] And by section 6, the jurisdiction of justices of the peace up to fifty dollars was made exclusive. [Rev. Stat. D. C. § 769.] The reference in section 1 was evidently to the act of Congress of February 27, 1801, § 11, above quoted; and sections 1 and 6 of the act of 1823 followed, as to jurisdictional amount, the statute of Maryland of 1809, chap. 76, §§ 1, 6.

*

Sections 3 and 4 of the act of Congress of 1823 made it the duty of every justice of the peace to keep a docket containing a rec-[32] ord of his proceedings, and subjected him to damages to any person injured by his neglect to keep one. [Rev. Stat. D. C. §§ 1000, 1001.] Those provisions were evidently taken from the statute of Maryland of 1809, chap. 76, §§ 4, 5. But they never were considered, either in the state of Maryland or in the District of Columbia, as making a justice of the peace a court of record.

The act of Congress of February 27, 1801, chap. 15, in § 1, enacted that the laws in force in the state of Maryland, as they then existed, should be and continue in force in that part of the District which had been ceded by that state to the United States-which, since the retrocession of the county of Alexandria to the state of Virginia by the act of Congress of July 9, 1846, chap. 35 (9 Stat. at L. 35), is the whole of the District of Columbia—and in § 11, provided for the appointment of "such number of discreet persons to be justices of the peace" in the District of Columbia as the President should think ex[31] pedient, who should continue in office five years, and who should "in all matters civil and criminal, and in whatever relates to the conservation of the peace, have all the powers vested in, and shall perform all the duties required of, justices of the peace as individual magistrates, by the laws hereinbefore continued in force in those parts of said District for which they shall have been respectively appointed; and they shall have cognizance in personal demands of the value of twenty dollars, exclusive of costs; which sum they shall not exceed, any law to the contrary notwithstanding." 2 Stat. at L. 104, 107.

In quoting the provisions of subsequent acts of Congress, the re-enactments of them in the corresponding sections of the Revised Statutes of the District of Columbia will be referred to in brackets.

By section 7 of the act of Congress of 1823, "in all cases where the debt or demand doth exceed the sum of five dollars, and either plaintiff or defendant shall think him or herself aggrieved by the judgment of any justice of the peace, he or she shall be at liberty to appeal to the next circuit court in the county in which the said judgment shall have been rendered, before the judges therecf, who are hereby, upon the petition of the appellant, in a summary way, empowered and directed to hear the allegations and proofs of both parties, and determine upon the same according to law, and the equity and right of the matter;" "and either of the said parties may demand a trial by jury, or leave the cause to be determined by the court, at their election." [Rev. Stat. D. C. §§ 775, 776, 1027]. These provisions (increasing the requisite sum, however, from twenty shillings, or two and two thirds dollars, to five dollars) were evidently copied. from the statute of Maryland of 1791, chap. 68, § 4, above cited; and the provision of

5 of that statute, which required the appellant to give bond with sureties to pay, if the judgment should be affirmed, as well the sum and costs adjudged by the justice of the peace, as also those awarded by the appellate court, was not repealed or modified by the act of Congress of 1823, and appears to have been considered as still in force in the District of Columbia. Butt v. Stinger (1832) 4 Cranch, C. C. 252.

On March 1, 1823, Congress took up the subject in the act of 1823, chap. 24, entitled "An Act to Extend the Jurisdiction of Justices of the Peace in the Recovery of Debts in the District of Columbia." 3 Stat. at L. 743.

The same act of 1823, for the first time in the legislation of Congress, provided that actions might be tried by a jury before a justice of the peace, as follows:

"Sec. 15. În every action to be brought by virtue of this act, where the sum demanded shall exceed twenty dollars, it shall be lawful for either of the parties to the suit, after issue joined, and before the justice shall

The first section of that act gave to any one justice of the peace, of the county wherein the defendant resided, jurisdiction to try, hear, and determine "all cases where the real debt or damages do not exceed the sum of fifty dollars, exclusive of costs," "and, upon full hearing of the allegations and evidence of both parties, to give judgment, accord-proceed to inquire into the merits of the [33] ing to the laws existing in the said District cause, to demand of the said justice that of Columbia, and the equity and right of the such action be tried by a jury; and upon matter, in the same manner and under the said demand the said justice is hereby resame rules and regulations, to all intents and quired to issue a venire under his hand and purposes, as such justices of the peace are seal, directed to any constable of the county now authorized and empowered to do when where said cause is to be tried, commanding the debt and damages do not exceed the sum him to summon twelve jurors to be and apof twenty dollars, exclusive of costs." [Rev. pear before the justice issuing such venire,

at such time and place as shall be therein expressed; and the jurors thus summoned shall possess the qualifications, and be subject to the exceptions, now existing by law in the District of Columbia.

*The provisions of the New York statute [35] of 1801 (copied in the margin) were re-enacted, almost word for word, in the statutes of that state of 1808, chap. 204, § 9, and of 1813, chap. 53, § 9.

"Sec. 16. If any of the persons so sum- The New York statutes of 1801, 1808, and moned and returned as jurors shall not ap- 1813, indeed, differed from the act of ConFear, or be challenged and set aside, the jus-gress of 1823, in giving a justice of the peace tice before whom said cause is to be tried civil jurisdiction up to twenty-five dollars shall direct the constable to summon and re- only; in authorizing every action "brought turn forthwith a tales, each of whom shall by virtue of this act," without restriction be subject to the same exceptions as the ju- of amount, to be tried by a jury before a jusrors aforesaid, so as to make up the number tice of the peace; in providing for a jury of of twelve, after all causes of challenge are six, instead of a jury of twelve men; and in disposed of by the justice; and the said the mode of selecting the jury; but were twelve persons shall be the jury who shall construed to authorize the justice of the try the cause, each of whom shall be sworn peace (as the act of Congress of 1823 afterby the justice well and truly to try the mat- wards did in terms) to award a tales in case ter in difference between the parties, and a of a default of the jurors summoned on the true verdict to give, according to evidence; venire. Zeely v. Yansen (1807) 2 Johns. and the said jury, being sworn, shall sit to- 386. gether, and hear the proofs and allegations of the parties, in public, and when the same is gone through with, the justice shall administer to the constable the following oath, riz.: 'You do swear, that you will keep this jury together in some private room, without meat or drink, except water; that you will not suffer any person to speak to them, nor will you speak to them yourself, unless by order of the justice, until they have agreed on their verdict.' And when the jurors have agreed on their verdict, they shall deliver the same publicly to the justice, who is hereby required to give judgment forthwith thereon; and the said justice is hereby authorized to issue execution on said judgment, in the manner, and under the limitations, hereinbefore directed." 3 Stat. at L. 746. [Rev. Stat. D. C. §§ 1009-1017.]

These sections, providing for a trial by a jury before the justice of the peace, would appear, from their position in the act, to have been added, by an afterthought, to the scheme of the earlier sections, derived from [34] the legislation of Maryland, and providing for a trial without any jury before a justice of the peace, and for a trial by jury, if demanded by either party, in an appellate court; and were evidently taken, in great part verbatim, from the twelfth section of the statute of New York of 1801, chap. 165 (which gave justices of the peace jurisdiction of actions in which the debt or damages did not exceed twenty-five dollars), as modified by the twenty-second section of the statute of New York of 1818, chap. 94, which extended their civil jurisdiction to fifty dollars. The material parts of both those statutes are copied, for convenience of compari- | son, in the margin.t

"In every action to be brought by virtue of this act, it shall be lawful for either of the parties to the suit, or the attorney of either of them, after issue joined and before the court shall proceed to inquire into the merits of the cause, to demand of the said court that such action be tried by a jury; and upon such demand the said justice holding such court is hereby required to issue a venire, directed to any constable of the city or town where the said cause is to be tried, commanding him to summon twelve good and lawful men, being freeholders or freemen of such city, or being freeholders of

The New York statute of 1818, however, like the act of Congress of 1823, extended the civil jurisdiction of a justice of the peace to [36] fifty dollars, and (in the section copied in the margin) provided for a trial by a jury of twelve men before the justice of the peace, although it differed from the act of Congress in allowing such a trial to be had only when the sum demanded exceeded twenty-five dollars, whereas the act of Congress allowed it whenever the sum demanded exceeded twenty dollars.

The New York statute of 1801 also, in its first section, differed from the act of Congress, by expressly authorizing a justice of the peace to hold a court, and vesting him with all the powers of a court of record; and, in the twelfth section, by not requiring the justice of the peace to give judgment "forthwith" upon the verdict of the jury.

Yet under that statute it was held by the supreme court of the state of New York, in per curiam opinions, doubtless delivered by Chancellor (then Chief Justice) Kent, and, before the passage of the act of Congress of 1823, was understood to be settled law in that state, that upon a trial by a jury before a justice of the peace (differing in these respects from a trial by jury in a superior court), the jury were to decide both the law and the facts, and the justice was bound to render judgment, as a thing of course, upon the verdict of the jury, and had no authority to arrest the judgment, or to order a new trial. Felter v. Mulliner (1807) 2 Johns. 181; M'Neil v. Scoffield (1808) 3 Johns. 436; Hess v. Beekman (1814) 11 Johns. 457; Cowen's Justice of the Peace, 1st ed. 1821, 541, 544.

By a familiar canon of interpretation, such town, where said cause is to be tried, and who shall be in nowise of kin to the plaintiff or defendant, nor interested in such suit, to be and appear before such justice issuing such venire, at such time and place as shall be expressed in such venire, to make a jury for trial of the action between the parties mentioned in the said venire." [It is then provided that the names of the jurors so summoned shall be written on separate papers and put into a box.] "And on the trial of such cause such justice, or such indifferent person as he shall appoint for that purpose, shall draw out six of the said papers

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