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constitutional law that a legislature is pre | 803); Magoun v. Illinois Trust & Savings sumed to have acted within constitutional Bank, 170 U. S. 283, 300 [42: 1037, 1045] ; limits, upon full knowledge of the facts, and Tinsley v. Anderson, 171 U. S. 101[ante, 91). with the purpose of promoting the interests In some of them the *court was unanimous.[108] of the people as a whole, and courts will not In others it was divided; but the division in lightly hold that an act duly passed by the all of them was, not upon the principle or legislature was one in the enactment of rule of separation, but upon the location of which it has transcended its power. On the the particular case one side or the other of other hand, it is also true that the equal pro the dividing line. tection guaranteed by the Constitution for- It is the essence of a classification that bids the legislature to select a person, natu- upon the class are cast duties and burdens ral or artificial, and impose upon him or it different from those resting upon the general burdens and liabilities which are not cast public. Thus, when the legislature imposes upon others similarly situated. It cannot on railroad corporations a double liability for pick out one individual, or one corporation, stock killed by passing trains it says, in efand enact that whenever he or it is sued the fect, that if suit be brought against a railjudgment shall be for double damages, or road company for stock killed by one of its subject to an attorney fee in favor of the trains it must enter into the courts under plaintiff, when no other individual or corpo-conditions different from those resting on Jration is subjected the same rule.* Neither ordinary suitors. If it is beaten in the suit can it make a classification of individuals or it must pay, not only the damage which it corporations which is purely arbitrary, and has done, but twice that amount. If it sucimpose upon such class special burdens and ceeds, it recovers nothing. On the other liabilities. Even where the selection is not hand, if it should sue an individual for deobviously unreasonable and arbitrary, if the struction of its livestock it could under no discrimination is based upon matters which circumstances recover any more than the have no relation to the object sought to be value of that stock. So that it may be said accomplished, the same conclusion of uncon- that in matter of liability, in case of litistitutionality is affirmed. Yick Wo v. Hop- gation, it is not placed on an equality with kins, supra, forcibly illustrates this. In other corporations and individuals; yet this that case a municipal ordinance of San Fran- court has unanimously said that this differcisco, designed to prevent the Chinese from entiation of liability, this inequality of right carrying on the laundry business, was ad. in the courts, is of no significance upon the judged void. This court looked beyond the question of constitutionality. Indeed, the mere letter of the ordinance to the condition very idea of classification is that of inequal. of things as they existed in San Francisco, ity so that it goes without saying that the and saw that under the guise of regulation fact of inequality in no manner determines an arbitrary classification was intended and the matter of constitutionality. accomplished.

Our conclusion in respect to this statute While cases on either side and far away is that, for the reasons above stated, giving from the dividing line are easy of disposition, full force to its purpose as declared by the the difficulty arises as the statute in ques- supreme court of Kansas, to the presumption tion comes near the line of separation. Is which attaches to the action of a legislature the classification or discrimination pre that it has full knowledge of the conditions scribed thereby purely arbitrary or has within the state, and intends no arbitrary some basis in that which has a reasonable selection or punishment, but simply seeks to relation to the object sought to be accom- subserve the general interest of the public, plished ? It is not at all to be wondered at it must be sustained, and the judgment of the that as these doubtful cases come before this Supreme Court of Kansas affirmed. court the justices have often divided in opin. ion. To some the statute presented seemed Mr. Justice Harlan dissenting: a mere arbitrary selection; to others it ap- *The statute of Kansas, the validity of[107] peared that there was some reasonable basis which is involved in the present case, proof classification. Without attempting to vides in its first section that in all actions cite all the cases it may not be amiss to no- against a railway company to recover damtice, in addition to those already cited, the ages resulting from fire caused by the operatfollowing: Missouri v. Lewis, 101 U. S. 22 ing of its road, it shall only be necessary for (25: 989); Hayes v. Missouri, 120 U. S. 68 the plaintiff to establish the fact that the [30: 578] ; Duncan v. Missouri, 152 U. S. fire complained of "was caused by the operat377, 382 [38: 485, 487); Marchant v. Penn- ing of said railroad, and the amount of his sylvania Ř. R. . 153 U. S. 380, 389 [38: damages (which proof shall be prima facie 751, 756); Chicago, K. & W. R. R. Co. v. evidence of negligence on the part of said Pontius, 157 U. Š. 209 [39: 675); Lowe v. railroad): Provided, that in estimating the Kansas, 163 U. S. 81, 88 [41: 78, 81]; Plessy damages under this act, the contributory 5. Ferguson, 163 U. S. 537 [41: 256); Cov. negligence of the plaintiff shall be taken into ington & L. Turnpike Co. v. Sandford, 164 consideration.” The second and only other U. S. 578, 597 [41: 560,567]; Jones v. Brim, section provides that “if the plaintiff shall 165 U. S. 180 (41: 677]; Western U. Teleg. recover, there shall be allowed him by the Co. v. Indiana, 165 U. S. 304 [41: 725]; Chi- court a reasonable attorney's fee, which shall cago, B. & Q. R. R. Co. v. Chicago, 166 U. S. become a part of the judgment.”. 226, 257 [41: 979, 992]; Holden v. Hardy, Manifestly, the statute applies only to 169' U. S. 366 [42: 780]; Savings & L. Socie- i suits against railroad companies, and only to ty v. Multnomah County, 169 U. S. 421 [42: causes of action arising from fire caused by 174 U. S. U. S., BOOK 43. 58

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before.” But the supreme court of Penn- | the statute of 1809, chap. 63, provided that

sylvania held that the statute of 1794 was an appeal from the judgment of a justice of (25)a constitutional regulation of judicial pro- the peace should not be granted, unless the

ceedings by legislative authority. 1 Binn. appellant "enter into bond with good and 424, 428. See also M'Donald v. Schell (1820) sullicient security, with a condition to prose6 Serg. & R. 240; Biddle v. Commonwealth cute said appeal;” and that, if the papers (1825) 13 Serg. & R. 405, 410; Haines v. should not be returned to the clerk of the Lerin (1866) 51 Pa. 412.

county court at the return term, it should Soon after the decision in Emerick v. "be lawful for the appellee, on the producHarris, a similar decision was made by the tion of the papers in the cause, to move for supreme court of North Carolina. In the judgment against the appellant and his Constitution of that state of 1776 it was de securities, for the amount of the debt and clared that "in all controversies at law, re- costs, if he should have been the original de specting property, the ancient mode of trial fendant; if not, for_the amount of costs.” by jury is one of the best securities of the 1 Scoti's Laws of Tennessee, pp. 476, 695, rights of the people, and ought to remain 1166. The statute of 1831, chap. 59, further sacred and inviolable.” 2 Charters and Con- extended the jurisdiction of a justice of the stitutions, 1410. When that constitution peace to one hundred dollars. Public Acts was formed, justices of the peace had juris- of Tennessee of 1831, p. 83. In a case arisdiction over sums of twenty shillings and ing under the last statute, the supreme court under. In 1803 the legislature extended of Tennessee, while Chief Justice Catron their jurisdiction to thirty pounds, "subject, (afterwards a justice of this court) was a nevertheless, to the right of appeal, as in member thereof, declared it to have been similar cases”—a statute of 1794 having pro- settled by a long series of its decisions, beginvided that in all cases of appeals from the ning under the statute of 1801, that such a judgment of a justice, the appellant's sub- statute was constitutional, upon the ground scription and acknowledgment of the secur- that "inasmuch as the party was in all cases ity, attested by the justice, “shall be suffi- allowed his appeal, when he could have a cient to bind the security to abide by and trial by jury, the right of trial by a jury perform the judgment of the court; and was not taken away; so that the terms of rewhere judgment shall be against the ap- quiring bail or security for the money be pellant the same shall be entered on motion longed to the legislature to provide, and gainst the security, and execution shall though the security required in the cases of issue against the principal, or against both appeal differed from those cases where the principal and security, at the option of the party was brought into court by original plaintiff.” 2 Martin's Laws of North Caro- writ, still, as it did not take away the right lina, pp. 60, 207. “The legislature has,” of trial by jury, the act was not unconstisaid the court, "given to either party the tutional.” Morford v. Barnes (1835) 8 Yerg. right of appealing to a court, where he will 444, 446 ; *followed in Pryor v. Hays (1836) (27) have the henefit of a trial by jury. It can 9 Yerg. 416. not, therefore, be said that the right of such The Constitution of Connecticut of 1818, trial is taken away. So long as the trial by article 1, section 21, likewise declared that jury is preserved through an appeal, the "the right of trial by jury shall remain in. preliminary mode of obtaining it may be violate.” 1 Charters and Constitutions, varied at the will and pleasure of the legis- 259. At the time of its adoption, the juris. lature. The party wishing to appeal may diction of justices of the peace, in actions of be subjected to some inconvenience in getting trespass, was limited to fifteen dollars. In security, but this inconvenience does not in the Revised Laws of 1821, tit. 2, $ 23, their this, nor in any other case where security is jurisdiction was extended to thirty-five dolrequired, amount to a denial of right.” | lars; but in demands for more than seven Keddie v. Moore (1811) 6 N. C. (2 Murph.) dollars an appeal was allowed to the county 41, 45 [5 Am. Dec. 518]; followed in Wil- court, the appellant to "give sufficient bond, son v. Simonton (1821) 8 N. C. (1 Hawks) with surety, to the adverse party, to prose 482.

cute such appeal to effect, and to answer all The Constitution of Tennessee of 1796 de damages in case he make not his plea good."

clared that “the right of trial by jury shall The supreme court of Connecticut held the [26] remain inviolate.” 2 Charters and Consti- statute constitutional; and Chief Justice

tutions, 1674. At the time of the adoption Hosmer, in delivering judgment, said: “I of that Constitution, as appears by the terri- admit that the trial by jury must continue torial statute of 1794, chap. 1, 88 52, 54, jus- unimpaired; and shall not now dispute that tices of the peace had jurisdiction only of there can be no enlargement of a justice's juactions for twenty dollars and under; and risdiction, which shall take from anyone the either party might appeal to the county legal power of having his cause beard by a wurt, "first giving security for prosecuting jury, precisely as it might have been before such appeal with effect, which said appeal | the Constitution was adopted. It is indisshall be tried and determined at the first putable that a justice of the peace is em: court, by a jury of good and lawful men, and powered to hear all causes personally, and determination thereon shall be final.” The that he cannot try them by a jury. The quesjurisdiction of a justice of the peace was ex- tion, then, is brought

to this narrow point, tended by the statute of 1801, chap. 7, to whether the enlargement of a justice's juris 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 882

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material. It is all done in the exercise of consistent with the principles there laid the police power of the state and with a view down. Placing the present case beside the to enforce just and reasonable police regula former case, I am not astute enough to per. tions. While this action is for stock killed, ceive that the Kansas statute is consistent the recovery of attorney's fees cannot be sus- with the Fourteenth Amendment, if the tained upon the theory just suggested. There Texas statute be unconstitutional. is no fence law in Texas. The legislature of In the former case we held that railroad the state has not deemed it necessary for the corporation, sued for killing an animal, was protection of life or property to require entitled to enter the courts upon equal railroads to fence their tracks, and as no terms with the plaintiff, but that that priv. duty is imposed, there can be no penalty for ilege was denied to it when the Texas statnonperformance. Indeed, the statute does ute required it to pay a special attorney's not proceed upon any such theory; it is fee if wrong, and did not allow it to recover broader in its scope. Its object is to compel any fee if right in its defense; and yet althe payment of the several classes of debts lowed the plaintiff to recover a special atnamed, and was so regarded by the supreme torney's fee if right, and pay none if wrong: court of the state.” Again: “Neither can it Upon these grounds it was adjudged that be sustained as a proper means of enforcing the parties did not stand equal before the the payment of small debts and preventing law, and did not receive its equal protection. any unnecessary, litigation in respect to in the present case the Kansas statute is them, because it does not impose the penalty held to be constitutional, although the par. in all cases where the amount in controversy ties in*suits embraced by its provisions are[112) is within the limit named in the statute. not permitted to enter the courts upon equal Indeed, the statute arbitrarily singles out terms, and although the defendant railroad one class of debtors and punishes it for a corporation is not allowed to recover an at. failure to perform certain duties—duties torney's fee if right, but must pay one if which are equally obligatory upon all debt- found to be wrong in its defense; while the ors; a punishment not visited by reason of plaintiff is exempt from that burden if found the failure to comply with any proper police to be wrong. regulations, or for the protection of the la- In the former case it was adjudged that a boring classes or to prevent litigation about state had no more power to deny to corporatrifling matters, or in consequence of any tions the equal protection of the law than it special corporate privileges bestowed by the had to individual citizens. In the present state. Unless the legislature may arbi. case it is adjudged that in suits against a trarily select one corporation or one class of railroad corporation to recover damages corporations, one individual or one class of arising from fire caused by the operation of individuals, and visit a penalty upon them the railroad, a rule of evidence may be apwhich is not imposed upon others guilty of plied against the corporation which is not like delinquency, this statute cannot be sus applied in like actions against other corpo tained. But arbitrary selection can never be rations or against individuals for the negli. justified by calling it classification. The gent destruction of property by fire. equal protection demanded by the Fourteenth

In the former case it was held that as the Amendment forbids this."

killing of the colt was not attributable to a 1]. If the opinions in the Ellis Case and in failure upon the part of the railroad to per. this case be taken together, the state of the form any duty imposed upon it by statute, law seems to be this:

there could be no penalty for nonperform1. A state may not require a railroad com

In the present case it is adjudged pany sued for negligently killing an animal that the statute may impose a penalty upon to pay to the plaintiff, in addition to the the defendant corporation for nonperformdamages proved and the ordinary costs, a seasonable attorney's fee, when it does not'al. ance, although the negligence imputed to it

was not in violation of any statutory duty. low the corporation when its defense is sus

Suppose the statute in question had been tained to recover a like attorney's fee from

so framed as to give the railroad corporation

a special attorney's fee if successful in its 2. A state may require a railroad company sued for and adjudged liable to dam- individual plaintiff when successful. I can

defense, but did not allow such a fee to an ages arising from fire caused by the opera- not believe that any court, Federal or state, tion of its road, to pay to the plaintiff, in ad would hesitate a moment in declaring such dition to the damages proved and the ordinary costs, a reasonable attorney's fee, even tiff the equal protection of the laws. If this

an enactment void as denying to the plain. if it does not allow the corporation when successful in its defense to recover a like attor: be true, it would seem to follow that a statney's fee from the plaintiff.

ute that accords to the plaintiff rights in The first proposition arises out of a suit courts that are denied to this adversary

on account of the killing by the rail should not be sustained as consistent with road of a colt. The second proposition arises the doctrine of the equal protection of the out of a suit brought on account of the de laws. This conclusion, it seems to me, is instruction of an elevator and the property at- evitable unless the court proceeds upon the tached to it by fire caused by operating a theory that a corporate person in a court of

justice may be denied the

ial protection of Having assented in the Ellis Case to the the laws when such protection could not be first proposition, I cannot give my assent to denied under like circumstances to natural the suggestion that the second proposition is persone. But we said in the Ellis* Case that[113)

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the plaintiff.

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railroad.

174 U.S.

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von (1828) 8 T. B. Mon. 537 ; Flint River 8.B., Stat. D. C. 88 997, 1006.) And by section 6, 00. v. Foster (1848) 5 Ga. 194, 208 (48 Am. the jurisdiction of justices of the peace up Dec. 248); Lincoln v. Smith (1855) 27 Vt. to fifty dollars was made exclusive. (Rev. 328, 361; Lamb v. Lane (1854) 4. Ohio St. Stat. Ď. C. 8 769.) The reference in section 167, 180; Norton v. McLeary (1858) 8 Ohio ! 1 was evidently to the act of Congress of St. 205, 209; Reckner v. Warner (1872) 22 February 27, 1801, $ 11, above quoted; and Ohio St. 275, 291, 292; Cooley, Const. Lim. sections 1 and 6 of the act of 1823 followed, 6th ed. 505; 1 Dillon, Mun. Corp. 4th ed. 8 as to jurisdictional amount, the statute of 439.

Maryland of 1809, chap. 76, 88 1, 6. VI. When the District of Columbia passed Sections 3 and 4 of the act of Congress of under the exclusive jurisdiction of the Unit- 1823 made it the duty of every justice of ed States, the statute of Maryland of 1791, the peace to keep a docket containing a rec- (32) chap: 68, above quoted (having been contin. ord of his proceedings, and subjected him to ued in force by the statute of that state of damages to any person injured by his neg. 1798, chap. 71, 2 Kilty), was one of the laws lect to keep one. [Rev. Stat. D. Č. 88 1000, in force in the District.

1001.] Those provisions were evidently The act of Congress of February 27, 1801, taken from the statute of Maryland of 1809, chap. 15, in § 1, enacted that the laws chap. 76, $$ 4, 5. But they never were conin force in the state of Maryland, as they sidered, either in the state of Maryland or then existed, should be and continue in in the District of Columbia, as making a force in that part of the District which justice of the peace a court of record. had been ceded by that state to the United By section 7 of the act of Congress of 1823, States—which, since the retrocession of the “in all cases where the debt or demand doth county of Alexandria to the state of exceed the sum of five dollars, and either Virginia by the act of Congress of July plaintiff or defendant shall think him or her. 9, 1846, chap. 35 (9 Stat, at L. 35), is the self aggrieved by the judgment of any juswhole of the District of Columbia—and tice of the peace, he or she shall be at libin $ 11, provided for the appointment erty to appeal to the next circuit court in of “such number of discreet persons to be the county in which the said judgment shall justices of the peace” in the District of Col. I have been rendered, before the judges there.

umbia as the President should think ex- of, who are hereby, upon the petition of the (81) pedient, *who should continue in office five appellant, in a summary way, empowered

jears, and who should “in all matters civils and directed to hear the allegations and and criminal, and in whatever relates to proofs of both parties, and determine upon the conservation of the peace, have all the ihe same according to law, and the equity powers vested in, and shall perform all the and right of the matter;", "and either of duties required of, justices of the peace the said parties may demand a trial by jury, as individual magistrates, by the laws here or leave the cause to be determined by the inbefore continued in force in those parts of court, at their election.” (Rev. Stat. D. C. said District for which they shall have been 88 775, 776, 1027]. These provisions (inrespectively appointed; and they shall have creasing the requisite sum, however, from cognizance in personal demands of the value twenty shillings, or two and two thirds dolof twenty dollars, exclusive of costs; which lars, to five dollars) were evidently copied sum they shall not exceed, any law to the from the statute of Maryland of 1791, chap. contrary notwithstanding.” 2 Stat. at L. 68, 8 4, above cited; and the provision of 104, 107.

§ 5 of that statute, which required the apIn quoting the provisions of subsequent pellant to give bond with sureties to pay, acts oi Congress, the re-enactments of them is the judgment should be affirmed, as well in the corresponding sections of the Revised the sum and costs adjudged by the justice Statutes of the District of Columbia will be of the peace, as also those awarded by the referred to in brackets.

appellate court, was not repealed or modified On March 1, 1823, Congress took up the by the act of Congress of 1823, and appears subject in the act of 1823, chap. 24, entitled to have been considered as still in force in the "An Act to Extend the Jurisdiction of Jus- District of Columbia. Butt v. Stinger tices of the Peace in the Recovery of Debts (1832) 4 Cranch, C. C. 252. in the District of Columbia.” 3 Stat. at L. The same act of 1823, for the first time in 743.

the legislation of Congress, provided that ac. The first section of that act gave to any tions might be tried by a jury before a jus. one justice of the peace, of the county where- tice of the peace, as follows: in the defendant resided, jurisdiction to try, “Sec. 15. In every action to be brought by hear, and determine “all cases where the real | virtue of this act, where the sum demanded debt or damages do not exceed the sum of shall exceed twenty dollars, it shall be law. fifty dollars, exclusive of costs," "and, upon ful for either of the parties to the suit, aft: full hearing of the allegations and evidence er issue joined, and before the justice shall of voth 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 ap. of twenty dollars, exclusive of costs.” (Rev.'pear before the justice issuing such venire,

1 at such time and place as shall be therein "The provisions of the New York statute (35) expressed; and the jurors thus summoned of 1801 (copied in the ipargin) were re-enshall possess the qualifications, and be sub- acted, almost word for word, in the statutes ject to the exceptions, now existing by law of that state of 1808, chap. 204, § 9, and of in the District of Columbia.

1813, chap. 53, 8 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 forth with 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 jus. rors 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 coustrued to authorize the justice of the iry 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. ward3 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 The New York statute of 1818, however, of the parties, in public, and when the same like the act of Congress of 1823, extended the is gone through with, the justice shall ad. civil jurisdiction of a justice *of the peace to (36) minister to the constable the following oath, fifty dollars, and (in the section copied in riz.: 'You do swear, that you will keep the margin) provided for a trial by a jury this jury together in some private room, of twelve men before the justice of the peace, without meat or drink, except water; that although it differed from the act of Congress you will not suffer any person to speak to in allowing such a trial to be had only when them, nor will you speak to them yourself, the sum demanded exceeded twenty-five dol. unless by order of the justice, until they have lars, whereas the act of Congress allowed it agreed on their verdict.' And when the ju. whenever the sum demanded exceeded twenty rors have agreed on their verdict, they shall dollars. deliver the same publicly to the justice, who The New York statute of 1801 also, in its is hereby required to give judgment forth. first section, differed from the act of Conwith thereon; and the said justice is hereby gress, by expressly authorizing a justice of authorized to issue execution on said judg. the peace to hold a court, and vesting him ment, in the manner, and under the limita- with all the powers of a court of record; and, tions, bereinbefore directed.” 3 Stat. at L. in the twelfth section, by not requiring the 746. [Rev. Stat. D. C. 88 1009-1017.] justice of the peace to give judgment "forth

These sections, providing for a trial by a with" upon the verdict of the jury. jury before the justice of the peace, would

Yet under that statute it was held by the appear, from their position in the act, to supreme court of the state of New York, in have been added, by an afterthought, to the per curiam opinions, doubtless delivered by

scheme of the earlier sections, derived from Chancellor (then Chief Justice) Kent, and, (34) the legislation of Maryland, *and providing before the passage of the act of Congress of

for a trial without any jury before a justice 1823, was understood to be settled law in of the peace, and for a trial by jury, if de that state, that upon a trial by a jury before manded by either party, in an appellate a justice of the peace (differing in these recourt; and were evidently taken, in great spects from a trial by jury in a superior part verbatim, from the twelfth section of court), the jury were to decide both the law the statute of New York of 1801, chap. 165 and the facts, and the justice was bound to (which gave justices of the peace jurisdic- render judgment, as a thing of course, upon tion of actions in which the debt or damages the verdict of the jury, and had no authori. did not exceed twenty-five dollars), as modi ty to arrest the judgment, or to order a new fied by the twenty-second section of the stat-trial. Felter v. Mulliner (1807) 2 Johns. ute of New York of 1818, chap. 94, which ex. 181; M'Neil v. Scoffield (1808) 3 Johns. 436; tended their civil jurisdiction to fifty dol-Hess v. Beekman (1814) 11 Johns. 457; lars. The material parts of both those stat. Cowen's Justice of the Peace, lst ed. 1821, utes are copied, for convenience of compari- 541, 544. son, in the margin.t

By a familiar canon of interpretation, "In every action to be brought by virtue of such town, where said cause is to be tried, and this act, it shall be lawful for either of the who shall be in nowise of kin to the plaintiff or parties to the suit, or the attorney of either of defendant, nor interested in such suit, to be and them, after issue joined and before the court appear before such justice issuing such venire, shall proceed to inquire into the merits of the at such time and place as shall be expressed in cause, to demand of the said court that such ac- such venire, to make a jury for trial of the action be tried by a jury; and upon such de- tion between the parties mentioned in the said mand the sald justice holding such court is venire." [It is the provided that the names hereby required to issue a venire, directed to of the jurors so summoned shall be written on any constable of the city or town where the said separate papers and put into a box.) cause is to be tried, commanding him to summon the trial of sucb cause such justice, or such in. twelve good and lawful men, being freeholders different person as he shall appoint for that or freemen of such city, or being freeholders of' purpose, shall draw out six of the said papers

"And on

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