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1. Stephen, A Treatise on the Principles of Pleaffing in Civil Actions, ~. I, Of the Proceedings in an Ac­tion, from its Commencement to Its Termination, 48, 60 (Williston ed., Cambridge, Mass., 18~5).
It is held, however, that there is no material differ­once between these two Modes of Expression and that if “ponit se’ be substituted for “petit quod inquiratur,” or vice versa, the mistake Is unimpor­tant. Weltale v. Glover, 10 Mod. 166, 88 Eng.Rep. 677 (1713).

Traverse except the Special Form, and also Replications, Rejoinders, etc., which do not contain New Matter, but present an Affir­mative or Denial in a direct and positive form.


Conciw~ion by Verification

When the Answering Pleading contains New Matter, introducing Statements of Fact not previously mentioned by the other side, the latter has the right to be heard in an­swer if the accompanying Denial is immate­rial, and a Tender of Issue by the Party Pleading such matter would therefore be pre­mature.2 In such case, unless the New Mat­ter is a Negative, the Pleading concludes with a “Verification,” as it is termed, gener­ally in the following words: “And this the said A.B. is ready to Verify.”


To this exception belongs the case former­ly noticed, of Special Traverses. These, as already explained, never Tender Issue, but always Conclude with a Verification; and the reason seems to be, that in such of them as contain New Matter in the Inducement, the introduction of that New Matter will give the Opposite Party a right to be heard in answer to it if the absque hoc be imma­terial, and consequently makes a Tender of Issue premature. And, on the other hand, with respect to such Special Traverses as contain no New Matter in the Inducement, they seem in this respect to follow the anal­ogy of those first mentioned, though they are not within the same reason.
Not only in the case of Special Traverses, but in other instances also, to which that Form does not apply, a Traverse may some­times involve the Allegation of New Matter;
2. Ilayman v. Oerrard, I Wins.Sannd. 102, 103, note I,

85 Eng.Rep. 109, 110 (1667); Chandler v. Roberts, I

Doug. 58, 99 Fng.Rep. 41 (1779); henderson v.

WIthy, 2 Term B. 576, 100 Eng.Rep. 300 (1788).
3’ Stephen, A Treatise on the Principles of Pleading

In Civil Actions, e, II, Of the Principal Rules of

Pleading, 230 (3d Am. ccl. by Tyler, Washington, B.

C., 1000).

534


DEFENSIVE PLEADINGS

Ch. 24


and in all such instances, as well as upon a Special Traverse, and for a similar reason, the Conclusion must be with a Verification, and not to the Country. An illustration of this is afforded by a case of very ordinary occurrence, viz., where the Action is in Debt on a Bond Conditioned for Performance of Covenants. If the defendant Pleads Gener­ally Performance of the Covenants, and the plaintiff, in his Replication, relies on a Breach of them, he must show Specially in what that Breach consists; for to Reply Gen­erally that the defendant did not Perform them would be too vague and uncertain. His Replication, therefore, setting forth, as it necessarily does, the circumstances of the Breach, discloses New Matter; and conse­quently, though it is a Direct Denial or Trav­erse of the Plea, it must not Tender Issue, but must Conclude with a Verification.4 So, in another common case, in an Action of Debt on Bond conditioned to indemnify the plaintiff against the consequences of a cer­tain act, if the defendant Pleads Non Dam­nificatus, and the plaintiff Replies, Alleging a Damnification, he must, on the principle just explained, set forth the circumstances, and the New Matter thus introduced will make a Verification necessary5 To these it may be useful to add another example. The plaintiff declared in Debt on a Bond Condi­tioned for the Performance of certain Cove­nants by the defendant, in his capacity of Clerk to the plaintiff; one of which Cove­nants was to account for all the money that he should receive. The defendant pleaded performance. The plaintiff Replied, that on such a day such a sum came to his hands, which he had not accounted for. The defend­ant Rejoined, that he did account, and in the following manner: that thieves broke into
4. Gainsford v. Griffith, 1 ~Vnis.SaunJ. 51, 85 Eng. Rep. 59 (1667).
5. Richards v. Hodges, 2 \Vms.Sauni]. 80, 85 Eng. Rep. 749 (1670).

the counting-house and stole the money, and that he acquainted the plaintiff of the fact; and he Concluded with a Verification. The Court held that, though there was an express affirmative that he did account, in contradic­tion to the Statement in the Replication that he did not account, yet the Conclusion ~vith a Verification was right; for New Matter be­ing alleged in the Rejoinder, the plaintiff ought to have liberty to come in with a Sur­rejoinder, and Answer it by Traversing the robbery.6


The application, however, to particular cases, of this exception, as to the introduc­tion of New Matter, is occasionally nice and doubtful; and it becomes difficult sometimes to say whether there is any such introduc­tion of New Matter as to make the Tender of Issue improper. Thus, in Debt on a Bond conditioned to render a full account to the plaintiff of all such sums of money and goods as were belonging to W. N. at the time of his death, the defendant Pleaded that no goods or sums of money came to his hands. The plaintiff Replied, that a silver bowl, which belonged to said W. N. at the time of his death, came to the hands of the defendant, viz, on such a day and year; “and this he is ready to Verify,” etc. On Demurrer, it was contended that the Replication ought to have Concluded to the Country, there being a complete Negative and Affirmative; but the Court thought it well concluded, as New Matter was introduced. However, the learn­ed Judge who reports the case thinks it clear that the Replication was bad; and Mr. Ser­geant Williams expresses the same opinion, holding that there was no introduction of New Matter such as to render a Verification proper.7
6. Vere v. Snnth, 2 Ley, 5, 1 Vent, 121 83 Eng.ReP

426 (1671).



7. Hayman ‘cc Gerrard, 1 Wms.Saund. 102, 85 Eug.

Rep, 109 (1667).

Sec. 294

PRODUCTION, TENDER, AND JOINDER OF ISSUE

535


JOINDER OF ISSUE
291. Issue, when well Tendered, must be accepted. The Rule applies both to Issues—

(I) In Fact; and (II) In Law


IF issue be well Tendered both in Point of Substance and in Point of Form, nothing re­mains for the Opposite Party but to accept or Join in It; and he can neither Demur, Traverse, nor Plead in Confession and Avoid­ance.8
The Form of accepting or Joining in the Tender of an Issue in Fact is by the use of the words “And the said A.B. doth the like.” This is called the “Similiter.” It is only re­quired when the Conclusion of the Adverse Pleading Tenders a Trial by Jury, but is then essential. If omitted by the Party, it may be added for him to complete the Record, as, when the Issue is well Tendered, he has no option but to accept it.° An Issue need never be accepted unless it is well Tendered. If
S. Stepflen, A Treatise on the Principles of l’lending in Civil Actions, c. IT, Of the Principal Rules of Pleading, 233 (3rd Am. ed. by Tyler, Washington, D. C., 1900).
Digby v. Fitzharbort, J’Iob. 101, 80 E~ig,Rc’p. 251 (1615) Dawes v. Wlnship, 16 Mass. 291 (1820); Hapgood V. Houghto,,, S Pick. (Mass.) 451 (1829).
~. See, English: Hayman v. Gerrard, I Wms.Saund. 102, 85 Eng.Rep. 109 (1667); Sayre v. Minus, 2 co~vp. 575, 98 Eng.Rep. 1248 (1777); Digby V. Fitz­harbert, Bob, 101, 80 EngRep. 251 (1615); Wilson v. Kemp, 3 M. & 5. 549, 103 Eng.Rep. 496 (1814) Illi­nois: Stomps v. Kelley, 22 Ill. 140 (1859); Davis v. Ransom, 26 Iii, 100 (1801).

the Opposite Party thinks the Traverse is Bad in Substance or in Form, or objects to the Mode of Trial proposed, in neither case is he obliged to add the Similiter; but he may Demur, and if it has been added for him he may strike it out and Demur. As now used, the Similiter serves to mark both the acceptance of the question itself and the Manner of Trial proposed. As the resort to a Jury could in ancient times only be had by consent of both the Parties, it appears to have been formerly used only to indicate an expression of such consent. A Form of the Joinder in Issue in Fact is set out below, and a Form of Joinder in Demurrer is heretofore set out in section 198 of Chapter 20, the De­murrer.


FORM OF JOINDER IN ISsUE, OR SIMILITER
In The King’s Bench.
Term, in the year of the reign of Queen Victoria.
A.a

V.
C. D,


AND the said A.B., plaintiff in the above-mentioned action, as to the plea of the de­fendant pleaded therein, and whereof he bath put himself upon the country, doth the like.
SHIPMAN, Handbook of Common-Law

Pleading, c. 17, General Rules Relating to

Pleas, § 255, Joinder of Issue, 449 (3d ed. by

Ballantine, St. Paul 1923).

See.
295. Trial by Court.

296. Trial by Jury.

TRIAL BY COURT

295. The decision of the Issue in Fact is called the Trial.

Issues of Law are always decided by the Court without a Jury, after Argument by Coun­sel for the respective Parties.

The decision of an Issue of Fact in an Ac­tion at Law is by Trial, which is generally


1. I]I general, on the History and Development of

Trial by Jury, see: -


Treatises: Barnard, A Guide to Grand Juryrncn (Lon­don 1629); Williams, The ]-~xccllency and Praeherni­nence of the Lawes of England (London 1080); A Guide to English Juries; Setting Forth Their Antiquity, l’ouc’r and Duty, from the Common Law and the Statute.s (London 1082); Babington, Advice to Grand Jurors in Cases of Blood (London 1692); Somers, The Security of Englishmen’s Lives: or Trust, Power, and Duty of the Grand Juries Of England (London 1706); Duneombe, Trials Per Pai~: or Law of England Concerning Juries by Nisi Prius, &c., 2 vols. (London 1760); Pcttingal, An Enquiry into the Use and Practice of Juries Among the Creeks and Bonrnns, whence the Origin of the English Jury may Probably be Deduced (London 1709); BulIer, Introduction to the Law Relative to Trials at Nisi I’rius (5th ed., London 1790) Davies, The Juryman’s Guide (London 1779); Complete Jnryinan (Dublin 1752); Towers, Ob­servations on the flights and Duty of Juries in Trials for Libels, Together with I~emark-s on the Origin and Nature of the Law of Libels (London 1784); Maseres, An Inqoiry into the Extent of the Power of Juries on Trials of Indictments, or In­formation for Publishing Seditious or other Crim­inal Writings (London 1792); Phillips, On the Pow­ers a]]d Ditties of Juries, and on the Criminal
536

a Trial by the Court and a Jury. The parties, however, may waive a Jury Trial, and submit an Issue of Fact to the Court. in Equity, Cases are tried by the Court.


Where there was no right of Trial by Jury, or where the Parties waived it, the Trial might be by the Court. In such a case, before a Ilnal decision, the Parties might request a
Law of England (London 18l1)z Worthington. An Inqui,’y into the lower of Juries to Dec-ide In­cidentally on Questions of Law (Londoa 1825):

Kennedy, A Treatise on the Law and Practice of Juries, as Amended by the Statute of 6 Geo. IV, c. 50 (London 1826); Cary, Practical Treatise on the Law of Juries and Jurors, as founded on the Act 6 Geo. IV (London 1826); Repp, A Historian’s Trea­Use on Trial by Jury, Wager of Law nnd Other On­ordinate Forensic Institutions Formerly in Use in Scandinavia and Iceland (Edinburgh 1832); Steele, On the Powers and Duties of Juries on Criminal Trials in Scotland (Edinburgh 1833); Smith, Charg­es and Addresses from Grand Juries, with their Answers at Length (Dublin 1834); Adams, A Pra& tical Treatise and Observations on Trial by Jury in Clvii Causes, (Edinburgh 1830); MeFarlane, The Practice of the Court of Session in Jury Court Civil Causes (Edinburgh 1837); Eest, Exposi~ion of the Practice Relative to the Eight to Begin and Bight to Reply, in Triam by Jury (London 1837); Murray, Reports of Cases tried in the Court of Session, by Jury Trial, from 1815 to 1830, 5 Vols. (Edinburgh 1838); Worthington, Inquiry into the Power of Juries to Decide Incidentally on Questions of Law (Pluladelpluia 1840); Cornish, Juryman’s Logal Hand-bools and Manual of Conimon Law, &e (London 1843); Joy, On Peremptory Challenge of Jurors, &c. (Dubli]i 1844); Forsyth, History of

PART FIVE
LITIGATING THE CONTROVERSY

CHAPTER 25
TRIAL BY COURT OR BY JURY’

537


Sec. 295
Finding of the Facts and a Statement of the
Condusions of Law thereon.

Trial by Jury (London, 1852); Bigelow, History of procedure in England, e. IX, The Trial Term, 301 (Boston 1880); Thayer, A Preliminary Treatise on Evidence at the Common Law, cc. Il—TV, 47—182 (Boston 1898); Brickwood’s Saclrctt Instructions to Juries (3d ed., Chicago 1008); Bigelow, Papers on the Legal History of Go~-ez’nrnent, C. IV, The Old Jury, 152 (Boston 1020); Scott, Fundamentals of Procedure in Actions at Common Law, e. III, Trial by Jury, 70 (New York 1922); Green, Judge and Jury (Kansas City 1930); von Moschzisker, Trial by Jury (2d ed., Philadelphia 1030); Abbott, A Brief for the Trial of Civil Issues Before a Jury (5th ed. by Viessehnan, Rochester 1935); Goldstein, Trial Technique (Chicago 1035); Wigmore, A Treatise on the Anglo-American Sys­tem of Evidence iii Trials at Common Lan-, c. 1, In­troduction, 8, General Survey of the Historical Development of the Rules of Evidence, 234 (3d ed, Boston 1940); Busch, Law and Tactics in Jury Trials (Indianapolis 1940); Millar, Civil Procedure of the Trial Court in Historical Perspective (New York 1952); Bclli, Modern Trials, 3 vols. (Indiana­polis 1054).


Articles: Thayer, The Jury and Its Development, S Han-.L.Rer, 24~ 295, 357 (1892); Clark, The Su­preme Court of North Carolina, 4 Green Bag 457, 472 (1592); Dennis, Jury Trial and the Federal Constitution, 6 Col.L.Rev. 423 (1906); Schofield,

- New Trials and the Seventh Amendment, S Ill. L.Rev. 2S7 (1013); Thorndike, Trial by Jury in the United States Courts, 26 HarvL.Rev. 732 (1913); Wells, Early Opposition to the Petty Jury in Criminal Cases, 30 L.Q.Itev. 07 (1014); Thayer, Judicial Adrninirti’ation, 63 ILI’a.L.ltcr. 585 (1915); Sunderland, The Inefficiency of the American Jury, 13 MiekL.Rev. 302 (1913); Scott, Trial by Jury and the I :efoi-uu of Civil l’roeedu re 31 1-larv.L.ltev. GCO (1018) ; Smith, The Power of tlie Judge to Direct A Verdict, 24 Col.L.ltev. 111 (1924); Smith, F orne Problems ut Connect jolt with Motions During the Trial of a Civil Action Before a Jury, 25 Col.L.Rev. 752 (1925); Conhoy, The Preparation of .a Case for Trial, 11 A.B.A.J. 310 (1025); Frank­furter and Corcoran, Petty Federal Offcnces and tite Constitutional Guaranty of Trial by Jury, 30 Harv.L.Rev. 917 (1025); Wicker, Special In­terrogatories to Juries in Civil Cases, 35 Yale L.J. 200 (1926); Sundcrland, The Problem of Trying Issues, 5 Text.Rev. IS (1920); Moore, Voir Dire Eramiriation of Jurors, I, The English Practice, 16 Geo.LJ, 435 (1928); II, The Federal Practice, IT Geo.L.J. 13 (1028); Harris. Is the Jury Trial Vanishing, 7 N.Y.U.L.Q.Rev, 657 (1930); Morgan, Instructing the Jury upon Presumptions and Burden of Proof, 47 Harv.L.Rev. 59 (1933); Langbeln, The Jury of Presentment and the Coroner, 33

Argument Upon Demurrer

THE decision of an Issue of Law is exdu­sively vested now, as it always has been, in


Col.L.Rev. 1329 (1933); Clark and Shulnian, Jury Trial in Civil Cases—A Study in Judicial Ad­ministration, 43 Yale L.J. 867 (1034); James, Trial by Jury and the New Federal Rules of Procedure, 45 Yale L.J. 1022 (1936); Pike and Fischer, Plead­ings and Jury Rights in the New Federal Procedure, 88 CLPa.L.Rev. 645, 654 (1935); Jackson, The In­cidence of Jury Trial During the Past Century, 1 Mod.L.Rev. 132 (1937); Ladd, Common Mistakes in the Technique of Trial, 22 Iowa L.Bev. 609, 012—Oil (1937); Jackson, Jury Trial Today, 6 Camb. U. 367 (1938); Rodda, Trial Practice---Right to Trial by Jury—Declaratory Judgment, 13 So.Calif.L. 11ev. 170 (1939); DoNe, The Federal miles of Civil Procedure, 25 Va.L.Rev. 261, 281 (1030); )JcCaskill, Jury Demands in the New Federal Procedure, 88 U.Pa.L.Rev, 315 (1940); Soper, The Charge to the Jury, 24 J.Am.Jud.Soc. 111 (1040); lleKenna, Trial by Jury under the Federal Rules, 20 Geo.L.J. 88 (1040); Deutsch, Jury Trial nader the Federal Rules and tl,e Louisiana Practice, 3 La.L.Rev, 422 (1941); Stayton and Watkins, The Pick-Up Jury, 19 Tex. L.Rev. 141 (1941); Bouchelle, Requirement of Consent of Three-Fourths of Jury to Verdicts in Civil Actions, Abolishing Law of Unanimous Con­sent, 48 W,Va.L.Q. 140 (1942); Mot-ris, Jnry Trial under the Federal Fusion of Law and Equity, 20 Tex.L.Rev. 427 (1942); Rossman, The Judge-Jury Relationship in the State Courts, 3 RRD, ‘iS (1944); Moseowitz, Glimpses of Federal Trials and Proce­dure, 4 F.R.D. 216 (1946); Nizer, The Art of Jury Trial, 32 Cornell L.Q, 59 (1046); Thatcher, Why Not Use the Special Jury? 31 MinnLRev 232 (1047); Simpson, The Problem of Trial, in David Dudley Field Centenary Essays, 141 (Ed. by fleppy, New York 1940); Ehume, Origin and Development of the Directed Verdict, 48 MicIiIRev. 555 (1950); Levin, Equitable Clean-Up and the Jury: A Sug­gested Orientation, 1~ ILPa.L.flev. 820 (1951); Wi-ight, The Invasion of Jury: Temperature of the \Vat’, 27 Texnp.L.Q. 137 (1053); Vanderbilt, Judges and Jurors: Their Functions, Qualifications and SelectIon, 36 B.U,L.Rev. 1 (1956).
Comments: Trial by Jury in Suits to Enjoin Nui­sances, 25 Col,L.Rev. 641 (1925); Jury Trial Under Federal Declaratory Judgments Act, 3-5 IILL.Rev. 339 (1940); Right to Jury Trial as to Fact Essential to Action or Defense but not Involving Mci-its There­of, 170 A.LR. 383 (1947); Bight to Jury Trial in Declaratory Judgment Actions: A Narrowing Inter­pretation, 59 Yale L.J. 168 (1949); flung Juries— Admonitions Urging Agreement and Directions as to Methods of Deliberation, 20 Ind.L.J. 86 (1950); The Right to Jury Trial Under Merged Procedure, 65 Harv.L,Rev. 453 (1052); Psychological Tests and

TRIAL BY COURT OR BY JURY

538


LITIGATING TIlE CONTROVERSY

Ch. 25

the Judges of the Court. In this connection, however, it should be kept in mind that sometimes the Court decides certain Issues of Fact, as when the Action is founded upon a Record and the defendant has pleaded Nut Tiel Record, as in an Action on a Domestic Judgment, or where a Jury Trial is waived.


Where, therefore, upon a Demurrer, the Issue in Law has been Entered on Record, the next step at Common Law is to Move for a Conciliuhi, that is, to move to have a day appointed on which the Court will hear the Counsel of the Parties argue the Demurrer. In this country this development is described as placing the Demurrer on the argument list or “Law and Motion Calendar,” according to the practice which prevails. And on the day entered for argument, or as soon thereafter as the business of the Court will permit, the Demurrer is argued viva voce in Court by the respective counsel of both parties, after which the Judge or Judges announce their decision,
Trial Without a Jury—Findings of Fact and

Conclusions of Law -

IN some instances, at Common Law, a case might be tried by a Court without a Jury. This might occur where there was no right to a Jury Trial or where the par­ties had waived the right. In such Trials, the ordinary incidents of a Jury Trial, such as the Selection of Jurors, Requests to the Court to Charge the Jury, Exceptions to the Charge, various Motions, and Verdict, are absent. The Opening Statements be-


Standards of Competence for Selecting Jurors, 65 Yale L.J. 531 (1056).
Annotations: Province of Court and Jury Respec­tively as to Construction of Written Contrnct Where Extrinsic Evidence as to Intention has been Introduced, 85 A.L.I1. 648 (1930); Right to Jury Trial of Issues as to Personal Judgment for Defi­ciency in Suit to Foreclose Mortgage, 112 ALIt. 1402 (1938); Nature and Effect of Jury’s Verdict in EquIty, 156 A.L.R. 1147 (1945); Disregard or Cor­rection by Court of Apportionment of verdict Among Joint Tortfeasors, 8 A.L.R.2d 862 (1949); Jury Trial in Action for Declaratory Relief, 15 A.L. R,2d 777 (1950).

come informal outlines of the principal con­tentions of the contending Counsel. Evi­dence may be admitted more freely than in a Trial by Jury, but for the most part the Requirements of Proof are the same. Before final submission of the case to the Court for Judgment each Party has an opportunity to Request a Finding of Facts 2 and a Statement of the Conclusions of Law thereon, to serve as a basis of the Final Judgment, and, if it becomes necessary, to make an Appeal. Un­der Section 4213 of the New York Civil Prac­tice Law and Rules, the decision of the Court may be Oral or in Writing, and must state the Facts which it deems essential.


Under Rule 52 of the Federal Rules of Civil Procedure, in Trials by the Court upon the facts without a Jury or with an Advisory Jury, the Court is obligated to Find the Facts Specially 1 and then state separately its Con­clusions of Law thereon, after which it di­rects tilat the appropriate Judgment be en­tered. For purposes of Review, Requests for such Findings are not essential. Such Findings of Fact, however, shall not be set aside except where clearly erroneous. And, of course, the Trial Court must have had full opportunity to consider the credibility of the Witnesses. And if an opinion or mem­orandum of decision is filed, it will be deem­ed sufficient if the Findings of Fact and Con­clusions of Law appear therein.4
TRIAL BY JURY
296. At Common Law Trials by Jury were either at Bar or Nisi Prius, The latter type of Trial was a product of the Statute of West­minster II (1285), which permitted actions, except those of great importance, to be tried out on the Nisi Prius Circuits, thus eliminat­ing the inconvenience to the Parties, Jurors and Witnesses of Attending the Trial at West­
2. New York Civil Practice Law and Rules, § 4213. -
3. Federal Rules of Civil Procedure, Rule 52, 28 U.S.

CA.
4. Ibid.

Sec. 296


TRIAL BY COURT OR BY JURY

539


minster, when they lived in a distant County and the means of transportation were inade­quate.
Trial at Bar or at Nisi Prius

TRIALS by the Jury are either at Bar, or Nisi Prius. Prior to the Statute of West­minster II (1285)~ civil causes were tried at the Bar, before all the Judges of the Court, in Term-Time; or, when of no great mo­ment, before the Justices in Eyre. All causes anciently commenced in the Superior Com­mon-Law Courts were tried at the Bar of the Specific Court in which they were com­menced, wherever the Court might be sitting. The Jury was, therefore, necessarily brought before the Court from the County in which the Venue was laid by a Writ of Venire Facias Juratores. Only actions of great importance were brought in the Superior Courts, suits of less significance being disposed of in the Court Baron, the Hundred and County Courts. In time, however, by reason of the superior quality of justice administered in the Superior Courts, cases of a trifling amount and nature were brought to these Courts for Trial, and it imposed an intolera­ble burden upon the Parties, Jurors and Witnesses to compel them to attend the Trial at Westminster when they lived in a distant County and the means of transportation were scarce and difficult. Accordingly, at a very early date, the practice developed of contin­uing the cause from Term to Term in the Court above, provided the Justices in Eyre did not come into the County where the cause of action arose; and if it appeared that they arrived there during the continuance, the whole cause was removed from the Jurisdic­tion of the Superior Court to that of the Jus­tices in Eyre.°


5. 13 Edw. 1, c. 30, 1 Statutes at Large 203 (1285).
8. 2 Tidd, The Practice of the Court of King’s Bench in Persona] Actions, c. XXX~1i, Of Trials by the Country, and their Incidents, 706 (Philadelphia, 1807).

But when the Court of Common Pleas be­came fixed at Westminster Hall by virtue of Magna Charta in 1215,’ the practice of con­ducting Trials before the Bar of one of the Su­perior Courts, in cases which could not be properly removed therefrom, was fraught with great hardship to the Parties, Witnesses, and Jurors, whose attendance was required. Once it was recognized that the Fact-Finding Process could be separated from the Law and from the rest of the legal procedure involved, the way was opened to relieve the hardship to the Parties, Jurors and Witnesses occa­sioned by the necessity of traveling to West­minster in London.


This relief came in 1285 in the Form of the Statute of Westminster II, 13 Edw. I, c. 30, 1 Statutes at Large 203. Under this Statute power was conferred upon the Jus­tices of Assize, who had superseded the Jus­tices in Eyre, to try Common Issues in Tres­pass, and other less important actions, with instructions to return them, when tried, into the Superior Courts above, where alone Judg­ment could be Rendered and Enrolled.8
Since, under the Statute, only the Trial, and not the determination in the entire case, was now to be conducted in the Lower Court, the Nisi Prius Clause was omitted from the Conditional Continuances. Instead, the Stat­ute directed that there should be inserted in the Writs of Venire Facias the foflowing lan­guage, “that the Sheriff should cause the Ju­rors to come to Westminster (or wherever the King’s Courts should be held) on such a day in Easter and Michaelmas terms (Nisi Prius), unless before that day the Justices as­signed to take Assizes shall come into his said County.” As the Justices in Assize were al­
7. Martin, Civil Procedure at Common Law, c. XIV, Trial, Verdict, Judgment, and Execution, Article I, Trial, § 302, Trials by Jury Ordinary, 307 (St. Paul, 1905).
8. 2 TiUd, The Practice of the Court of iCing’s Bench in Personal Actions, e. XXXvII, Of Trials by the Country, and their Incidents, 766, 777 (Philadel. phia, 1807).

540

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