[ranks and degrees; it follows as a regular conclusion from the premises of fact pre-established. But in settling and adjusting a question of fact, when entrusted to any single magistrate, partiality and injustice have an ample field to range in; either by boldly asserting that to be proved which is not so, or by more artfully suppressing some circumstances, stretching and warping others, and distinguishing away the remainder. Here, therefore, a competent number of sensible and upright jurymen, chosen by lot from among those of the middle rank, will be found the best investigators of truth, and the surest guardians of public justice (g).]

2. Trial before a Judge.-This was a mode of trial first introduced into modern practice by "The Common Law Procedure Act, 1854," (and recognized by "The Judicature Act, 1873,") which dispenses with a jury under certain circumstances (h). For by the former, it was enacted, that the parties to any action might by consent in writing, signed by them or their solicitors, leave the decision of any issue of fact to the court, provided the court or a judge should in their or his discretion think fit to allow such trial; and that such issue might thereupon be tried and damages assessed when necessary in open court by any judge who might otherwise have presided at the trial thereof by jury, either with or without the assistance of any other judge or judges of the same court or included in the same com

(g) 3 Bl. Com. p. 380. The institution of the County Courts, in which the decision of matters of fact as well as law is generally intrusted to the judge, must not be considered as any indication that the views of Blackstone on the subject to which the above extract refers, are disregarded at the present day. For though in favour of the great objects of cheapness and dispatch, trial by jury has (as the general

rule) been dispensed with in these courts, yet either of the parties is entitled to insist on that mode of decision, where the claim exceeds 51.; and it may be granted (in the discretion of the judge) even in cases below that amount. (Vide sup. p. 289).

(h) The idea of this method of trial appears to have been taken from the trial by witnesses per testes, mentioned by Blackstone, vol. iii p. 336.

mission at the assizes (i). And by the rules of procedure annexed to the latter Act, one of the modes given for the decision of an action is a trial before a judge or judges (j).

3. Trial before Referees.-We have in a former part of this work explained that one of the remedies for an injury suffered is the reference by the parties themselves of the matters in dispute to the arbitration of some person or persons by them selected and by whose decision they consent to abide (k). And this method of decision was by "The Common Law Procedure Act, 1854" (17 & 18 Vict. c. 125), adopted into the proceedings in an action, it being by that statute provided that if at any time after the issuing of the writ of summons it should be made to appear to the satisfaction of the court or a judge, upon the application of either party, that the matter in dispute consisted wholly or in part of matters of mere account which could not conveniently be tried in the ordinary way, it should be lawful for the court or a judge either themselves to decide the matter in a summary way or to order that the same should be compulsorily referred to an arbitrator appointed by the parties or to an officer of the court, upon such terms as to costs and otherwise as such court or judge should think reasonable (1).

"The Judicature Act, 1873," contains enactments on the subject of compulsory references in an action, which will render the above provisions, though not repealed, of less importance in the future. For by that Act, it is enacted, that, subject to rules of court and existing rights, any question arising in any cause or matter (other than a criminal proceeding by the crown) before the High

(i) 17 & 18 Vict. c. 125, s. 1. See Andrews v. Elliott, 5 Ell. & Bl. 502; 6 Ell. & Bl. 338.

(j) 36 & 37 Vict. c. 66, sched. r. 30.

(k) Vide sup. p. 259.

(1) 17 & 18 Vict. c. 125, ss. 3, 6. As to these provisions see Brown v. Emerson, 17 C. B. 361; Chapman v. Van Toll, 8 Ell. & Bl. 396.

Court of Justice or before the Court of Appeal may be referred for inquiry and report to an official or special referee, whose report, if adopted, may be enforced as a judgment (n). Moreover, by consent of the parties, and without such consent in any cause or matter requiring any prolonged examination of documents or accounts, or any scientific or local investigation which cannot, in the opinion of the court or a judge, be conveniently made before a jury or conducted by the court through its other ordinary officers, any question or issue of fact, or any question of account arising therein, may be ordered to be tried either before an official or a special referee, (with or without assessors,) whose report shall be equivalent to the verdict of a jury (0).

These official referees are permanent officers directed by the Act to be attached to the Supreme Court; and their number, qualification and tenure of office is to be determined by the Lord Chancellor, with the concurrence of the presidents of the divisions of the High Court of Justice or a majority of them (of which majority the Lord Chief Justice of England shall be one), and with the sanction of the Treasury (p). And they are to perform the duties entrusted to them in such places, whether in London or in the country, as may be directed by order of court (q).

Where a reference has been made to a referee, he is authorized, subject to the order of the court or a judge, to hold the trial at any place which he may deem convenient, and have any inspection or view, either by himself or with his assessors, if any, which he may deem expedient for the better disposal of the controversy before him; and, unless otherwise directed, shall proceed with the trial in open court de die in diem in a similar manner as in actions tried by a jury (r).

(n) 36 & 37 Vict. c. 66, s. 56. (0) Sects. 57, 58, sched. r. 30.

(p) Sect. 83.
(q) Ibid.

(") Sched. r. 34.

He may also, before the conclusion of any trial before him, or by his report, submit any question arising therein, or state any facts specially, for the decision of the court; and the court shall have power to require any explanation or reasons from the referee, or to remit the action or any part thereof for re-trial or further consideration to the same or any other referee (s).

IV. The issues of law, equity or fact having been decided in the several methods above described, and it thus being ascertained whether the plaintiff is entitled to maintain his action, or the defendant, on the other hand, to be discharged therefrom, the next step is the judgment (or decree), that is, the formal award of redress in the one case, or discharge in the other (t). And as regards an issue in law or in equity raised on demurrer or otherwise, we have already been led in part to advert to this proceeding (u); the judgment in that case being in effect given at the time that the court deliver their opinion or decision upon the legal or equitable question brought before them, though it is not formally drawn up and entered on record till afterwards (x). But if the issue be an issue in fact, and tried by a jury, the course of practice is as follows.

In the first place, whatever has been done subsequently to the joining of issue, and the awarding of the trial, is entered on the back of the nisi prius record, and is called the postea; the substance of which is, that afterwards the said plaintiff and defendant appeared at the place of trial, and a jury being sworn, found such a verdict; or that

(8) 36 & 37 Vict. c. 66, sched. r. 35.

(t) In the Judicature Act, 1873, the term "judgment" is to include "decree." (Sect. 100.)

(u) Vide sup. p. 511. (a) The judgment of the court above referred to is only as to

whether some pleading demurred to is or is not sufficient. But a judgment in an action in which a legal remedy is sought and one in an action in which equitable relief or redress is desired must essentially differ in their nature one from the other.

the plaintiff, after a jury sworn, made default, and did not prosecute his suit, or as the case may happen (y).

The unsuccessful party may then, within such interval of time as the practice allows for the purpose, move the court for a new trial, or for arrest of judgment, or for judgment non obstante veredicto, or for a repleader (z).

And, 1. As to the motion for a new trial. [The ground of this may be an irregularity in the proceedings connected with the trial, such as want of notice of trial; or any other matter dehors, (that is, extrinsic to,) the record, tending to show, that, though the trial may have been in due form, yet it has not done justice between the parties; as, for example, any flagrant misbehaviour of the party prevailing towards the jury, which may have influenced their verdict; or any gross misbehaviour of the jury among themselves; or that it appears to the court, that the jury have brought in a verdict without, or contrary to, evidence (a), so that he is reasonably dissatisfied therewith or that they have given exorbitant or insufficient damages; or that the judge himself has misdirected the jury, so that they found an unjustifiable verdict. For any of these reasons, or for any of a similar kind, it is competent to the unsuccessful party, whether plaintiff or

(y) The postea is not referred to in the rules of procedure annexed to the Judicature Act, 1873, but an analogous practice to that now in use will probably be prescribed.

(z) In addition to the applications mentioned in the text, the defendant may also move to enter a nonsuit, or the plaintiff to set aside a nonsuit, and enter a verdict; - the effect being, in either case, if the rule is granted, and made absolute, that no second trial is required. But such motions can only be made as upon a point reserved, that is, by leave of the judge who tried the

cause, granted during the course of the trial. By 17 & 18 Vict. c. 125, s. 33, it was provided, that in every rule nisi for a new trial, or to enter a verdict, or nonsuit, the grounds upon which such rule has been granted, should be shortly stated. (See Grayson v. Andrews, 10 Exch. 427.)

(a) Where a new trial is ordered on the ground that the verdict was against evidence, it was directed by the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), s. 44, that the costs of the first trial should abide the event of the action.