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has been regularly come to, on a question of fact duly submitted to them, that opinion, however manifestly erroneous, cannot be impeached, otherwise than by means of a new trial. However unsatisfactory it may be, their verdict is conclusive, until such fresh trial, if granted, shall have taken place.

In actions of replevin, the plaintiff, if he recover less than $50 damages, should be careful to ask for an assessment of the value of the property recovered, with a view to the purposes of costs, and in order to bring the case within the following clause, forming part of sec. 304 :

" And in an action to recover the possession of personal property, if the plaintiff recover less than fifty dollars damages, he shall recover no more costs than damages, unless he recovers also property, the value of which, with the damages, amounts to fifty dollars. Such value must be determined by the jury, court, or referee, by whom the action is tried." The power to reserve the

argument or further consideration,” has formed part of the Code from its original passage, but, strange to say, no instance occurs in the reports in which that power has ever been directly acted upon. It was probably intended as a substitute for the now restored practice of entering a verdict subject to the opinion of the court.

The total omission in the two former Codes, of any provisions as to the granting of a new trial upon errors of fact, had been the occasion of much doubt and inconvenience. The cases on the subject will be cited, and the necessary observations made, in chap. VII. of the present portion of the work. For the present, it is only necessary to remark further in conclusion, that, on the entry of the verdict, the court and jury fees must be paid by the prevailing party. The results of that verdict remain for future consideration. Where, on the delivery of the verdict, it is manifest that a new trial will be moved for, or an appeal taken, a stay of proceedings may at once be applied for, whilst in court, and may probably be granted. The more usual course is, however, to make a subsequent application for that purpose, before the actual entry of the judgment.



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All issues of fact, not properly triable by a jury, [V. sections 252 and 254,) and, therefore, as a general rule, the whole class of equitable causes, may be considered as falling within the present category, though, as before remarked, these last may be submitted to a jury if the parties choose, and have been so in anma few.casas.

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.

It will be observed that it is only in actions arising out of contract, that this waiver can take place as of course. In others, the assent of the court is necessary; and, in fact, in actions sounding in tort, or where, for any cause, damages require to be assessed, trial by jury is the proper form, and the court may very possibly refuse to dispense with it.

The waiver of trial by jury, by failure to appear, has already been considered, under the head of Inquest and Default. The present observations apply only to cases where an actual trial takes place, or is intended, and it is the desire of the parties that such trial should be had by the court, and not by the jury.

In these cases, it will obviously be most convenient to obtain a written consent, and file it with the clerk beforehand, and then to set down and notice the cause accordingly, upon the Special Term Calendar, or otherwise, as may be the practice in the particular court or district. In the Common Pleas, this mode of setting down the cause is made the subject of special provision, by Rule 7, of June, 1848, and the causes thus set down are to be placed in a separate part of the calendar. The form of waiver by oral consent, in open court, seems more peculiarly applicable to those cases in which the parties change their intentions at the last moment, and after the cause has actually been called on, in its order on the circuit or trial term calendar-a case of comparatively infrequent occurrence.

The general course of the trial before a single judge is practically the same as that before a jury, “mutatis mutandis." The case is opened, proved, argued, summed up, and any interlocutory objections or exceptions taken and noted in the same manner, and the general conduct of the cause is identical.

In the nature, however, of the decision of the court, and in the mode in which that decision is given, a material distinction exists. The verdict of the jury must be simultaneous with, or, at least, immediately consequent upon the trial of the issue by them. Time for consideration is, on the contrary, given to the court by sec. 267, which runs as follows:

§ 267. Upon a trial of a question of fact by the court, its decision shall be given in writing, and filed with the clerk within twenty days after the court at which the trial took place. Judgment upon the decision shall be entered accordingly.

Of course, this power does not exclude the right of the judge who tries the cause, to give an oral opinion at the close of the trial, in case he does not require the time here allowed for deliberation; and, although the question has been mooted, it seems now settled that his oral direction, entered in form upon the clerk's minutes, is a sufficient decision of the cause, and a sufficient authority for the consequent entry of judgment.

In The People v. Dodge, 5 How, 47, it was held that the period of twenty days, above prescribed, was merely directory; and, the decision in that case having been made by the judge, but accidentally prevented from being filed in due time, it was held that he had power to file such decision afterwards, and that a mandamus might issue to compel him to do so.

The decision of the judge, in these cases, being usually given in writing, and filed with the clerk, instead of being delivered in the presence of the parties, the taking of exceptions to that decision at the time of its delivery, is necessarily impracticable. By section 268, a special power of excepting, on matters of law, is, therefore, given to the parties, if exercised within ten days after notice in writing of such judgment. The decision may also be reviewed on matters of fact, by means of an appeal to the general term, on a case made in the usual manner. See the same section. It is, of course, important with the above limitati


.....ug vi a judge, upon an issue of fact tried before him, is, in all respects, equivalent to the verdict of a jury upon the same issue, and is to be so treated.–V. Osborne v. Marquand, 1 i Sandf. S. C. R. 457. It is therefore conclusive, unless the weight of evidence against it be so great, that a verdict, under similar circumstances, would be set aside.




WIDE though the distinction be between interlocutory or consequential references, and those of the whole issue, the general form of proceeding in both is, in many respects, analogous.

The interlocutory or consequential reference, bears more the character of one to the master, under the old Chancery practice; the reference of the whole issue, that of a trial by the court. In both instances, the general form of proceeding, viz., the appointment to attend before the referee, the course of proof and argument before him, and the nature and form of the report to be made, present the same general characteristics. To treat both separately would involve much needless repetition, whilst, on the other hand, any minor distinctions are easy to be no

ticed, in commenting on both in connection with each other. This course has, accordingly, been adopted.

Though selected by the parties, a referee cannot act until regularly appointed by the court; and, if he assume to do so, before bis regular appointment has taken place, all his acts will, as of course, be a nullity.Litchfield v. Burwell, 5 How. 341; 1 C. R. (N. S.) 42.

The sections of the Code which lay down rules as to the granting of references in general, and the cases upon that subject, have been cited in a previous chapter. The powers and duties of such referees, when duly appointed, and the mode of proceeding before them, will form the subject of the present.

A reference to report as to facts, for the information of the court, is usually to one party oply, of the judge's selection, (see Conway v. Hitchins, 9 Barb. S. C. R. 378, as to his powers in this respect,) those of the whole issue are, on the contrary, more ordinarily made to three, chosen by the parties, or appointed by the court under the powers in sec. 273. In neither case, however, is the rule imperative. References of the latter nature are frequently made to a single party: whilst, in those of the former description, three are occasionally, though more rarely nominated.

The distinction between the powers and duties of general and special referees, is laid down in the case of Graves v. Blanchard, 4 How. 300, 3 C. R. 25, in the following terms: “A referee, under the Code, is not merely a substitute for the master under the former practice, but is clothed with the power of a judge at special term. When a specific question is referred to him, his office resembles that of a master ; when the whole issue is referred to him, he takes the place of the court; his report thereon stands as its decision, and may be reviewed in like manner.

The same distinction is clearly drawn in sec. 272, by which the mode of trial, before referees, whether of the whole issue or of interlocutory questions, is laid down as follows:

§ 272. The trial by referees is conducted in the same manner, and on a similar notice, as a trial by the court. They have the same power to grant adjournments as the court upon such trial. They must state the facts found and the conclusions of law separately, and their decision must be given, and may be excepted to and reviewed in like

; but not otherwise, and they may, in like manner, settle a case or exceptions. The report of the referees upon the whole



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