Banyer v. Ellice — 1 Hill & Den. 23

Majority

p. 23

Banter and others vs. Ellice.

Headnote

Where by consent of parties a general verdict was taken at the circuit, subject to the opinion of this court as to certain questions raised at the trial, and the facts were neither agreed on, nor found by the jury, agreeably to the standing rule on that subject; the court ordered a new trial because of the omission.

The rule referred to requires quite as much fulness and certainty, respecting the facts, in a case made, as in a special verdict.

Ejectment, tried at the Essex circuit, January, 1839, before Willard, C. Judge. On the trial, the evidence was mostly documental; and among a number of questions there raised and decided against the defendants, was this: whether the lot in question did or did not lie in Summer Vale patent. The judge decided, from the documental evidence, that it appeared it did. In the course of the trial, much evidence was objected to, and its effect, on the whole, was finally questioned: 1. as not entitling the plaintiffs to recover any thing; and 2. as, at all events, not entitling them to recover the entire lot. On the latter question coming up, the parties, on the recommendation of the circuit judge, consented that, as a correct determination of it required a careful examination of documental evidence quite voluminous and complicated in its nature, a verdict should be taken for the plaintiffs, subject to be modified in this particular by the supreme court, and subject moreover to the opinion of the supreme court on the other questions raised and disposed of on the trial; a new trial to be awarded, if the judge had erred in deciding any material point against the defendant. Verdict accordingly. The defendant now moved for a new trial on a case, in which it did not appear either that the facts were agreed upon at the circuit, or that they were found by the jury.

J. Burnet, for the defendant.

A. C. Hand, for the plaintiffs.

The 36th rale of this court ahrogates the practice of taking a general verdict, subject to the opinion of this court, on all the evidence given on the trial. It then proceeds to declare, that “ no verdict shall hereafter- be taken subject to the opinion .of the supreme court, except where the parties shall agree on the facts proved, or where such facts shall be found by the jury.”

The object of this rule was two-fold; first, to divide' more accurately the offices of the circuit and the bench; and second, to expedite the business of the court. The old practice of taking a verdict for the plaintiff, subject to the opinion of the court, confounded the duties of judge and jury, and rendered it often necessary to exercise the latter on an imperfect statement of the evidence, and at best, in a very unsatisfactory manner. The second object is effected by diminishing the number of cases in which this court would otherwise be called on to decide questions of fact, and confining them, as far as possible, to their more appropriate duty of passing on the law of the case. Both objects are important, and should not be lost sight of in practice. The rule in question requires quite as much fulness and certainty in a case, on a verdict subject to the opinion "of the court, as in a special.verdict. The only difference lies in the form. In' the case made, the facts are either to be found by the jury, or agreed by the parties ; in the special verdict, they are to be found. In the case before us, neither of the requisites demanded by the rule is complied with. For this reason, we are .of opinion that a new trial should be granted, the costs to abide the event.

Ordered accordingly.