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III Bl. Com. 352.

THERE never was a power under the judiciary system of Pennsylvania, as at first adopted, or since, to change the venue; and this, owing to the organization of the courts, and the laws providing for the return of jurors. The supreme court, as at first constituted had no original jurisdiction, nor has had since at any time unless within the city and county of Philadelphia. No original writ therefore could issue from the supreme court to any county, as was the case with the superior courts in England. Every cause must come into the supreme court by removal. Issue having been joined in the court below, or joined in the supreme court after removal thither, the venire issued to the sheriff of the county from whence the cause had been removed, commanding him to summon jurors; or rather to distrain them: for, following the English theory, they were supposed, in contemplation of law, to have made default before on a summons served. The sheriff was commanded to have these at the sitting of the supreme court in term, nisi prius, that is, unless the judges of the supreme court came into the county before that term holden. But this was matter of form merely, and without reason, following the theory of the judiciary system of England, and adopting the precedent of the writ. It was not the understanding that any trial was to be had at bar, or the jurors to attend at the sitting of the term. For it is provided by the act constituting the court, 22d May 1722, "that upon issue joined in the supreme court, such issue shall be tried in the county, from whence the cause was removed, before the judges of the supreme court or any two of them, who are hereby empowered and required to go the circuit, into the respective counties; and to do generally all those things that shall be necessary for the trial of any issuc as fully as the justices of nisi prius in England may or can do. This reserves to the court in term, the giving judg ment; or hearing motions for a new trial; or in arrest of judgment. It may be seen therefore that under this act there can be no trial at bar; by calling a jury from the county;

nor can there be a change of the venue by calling a jury from one county to another.

By an act of 25 Sept. 1806, original jurisdiction under certain restrictions, was given to the supreme court within the county and city of Philadelphia; and in that case there might be, and frequently were trials at bar, all the judges sitting; but it has been since restored, but limited by act of 24th Feb. 1806, and a removal in civil actions restrained; but no issues in fact are to be tried in bank; and nisi prius courts to be holden by a single judge; so that trial at bar cannot, at this time, exist in any place. I consider all these particulars a great improvement of the system; and I would consider it a farther improvement to have the trials of issues in fact taken away from the supreme court, even at nisi prius sittings in the city and county of Philadelphia, as is the case in the other counties in the state.

As to trial by jury, too much cannot be said for it in a eriminal case, where the necessity of unanimity is more reconcileable to reason. For there is a presumption of law in fa vour of the accused, that he is innocent; and it is the maxim, that if there is a doubt, acquit. Where one or more of the jury doubt so much as to stand out, after being kept together a reasonable time, and no appearance of agreeing, it may be evidence that there is ground of doubt; and it being necessary to keep the jury together in the case of felony, with out meat or drink until they are agreed. It is a reason that such a principle may be admitted in foro conscientiæ to justify a concession in favour of the accused.

In a civil action there is no legal presumption on one side or on the other; and the court have a power to allow the jury to eat and drink; and may permit the finding a privy verdict, and separating; or upon cause may discharge. Trials per pais 250. By our act of assembly 21 March, 1806, this power is impliedly sanctioned in the oath prescribed to be taken by the jurors; "a true verdict give according to the evidence unless dismissed by the court, or the cause withdrawn by the parties."

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It might seem expedient to give the district courts the power to change the venue in the case where a county was interested, which is quasi a corporation; and the presumption might be that an impartial trial could not be expected.

III Bl. Com. 377.

IT is the understanding of some judges that a writ of error will not lie upon a case stated. I cannot say that I have ever known it so decided. But the adding to the statement for the opinion of a court that it "shall be considered in the nature of a special verdict, would seem to imply that there is some necessity for such addition. I do not see, that, unless at nisi prius, there can be any necessity for it. There, indeed, there may be a good reason. Because facts stated by the parties, are in the nature of, or, rather, in the place of a special verdict: and this, because, as the commentator says, the facts must be as if the jury had found them; and be made a part of the proceedings. But where the statement is made immediately to the court in term, and made ipso facto, a part of the proceedings, they do appear upon the record; and there would not seem to be a necessity, or, even a propriety, in tacking to the tail of a statement, that it was to be considered in the nature of a special verdict. The truth is, I take it, that the appendage has been transferred from an exigence where it was proper, to an occasion where it was not wanted; and this without examination of the reason of the use. Because, that, in a case stated, at nisi prius, it was added, that it should be in the nature of a special verdict, for which there was reason; when a case came to be stated for the opinion of the court, in term, pursuing the form of a case at nisi prius, it was added that it should. be in the nature of a special verdict without distinguishing the difference.

I could assign a reason, and it is the only possible reason that I could assign, for this sublevamen, or wing to the stateBB

ment; or tail, as I have already called it, viz. that it is to be understood in submitting to the opinion of the court, that a writ of error is not to be brought; but, it would be more intelligible that this should be expressed, and to have it said, that a writ of error was not to be brought.

But in term, and in a case stated to a court in the last resort, our supreme court, it is still added, that it is to be is the nature of a special verdict. It cannot therefore be to save the bringing a writ of error that this is added. The truth is, it is unmeaning, and without any visible use. It ought therefore to be rejected. It can answer no possible end but to puzzle the student to know what to make of it. He must think it either mystery, or magic, or nonsense, where it is supported by no visible, artificial, or moral reason.

"Thus much for judgments; to which costs are a necessary "appendage, &c." III Bl. Com. 399.

It will be useful for the student to have some idea of the difference of the law of Pennsylvania from that of Eng land in regard to costs. It is observable that in original writs in England; or writs instituting process, there is a condition directory to the officer serving these writs; that, if he (the plaintiff) shall make you secure of prosecuting his claim, &c. This security was at the beginning a matter of substance; and real persons were required; not, as since, merely nominal, John Doe and Richard Roe. But when the law ceased to be, that the plaintiff, for his false clamour, or groundless complaint, should be amerced, these sureties became nominal; and, had it not been for the form of the writ being still preserved with this condition, even John Doe and Richard Roe, might have been left out. But in Pennsylva nia we have no such condition in our writs; and therefore John Doe and Richard Roe need not be attached to the writ or declaration pursuing the writ. Pledges of prosecution are idle words, and need not be introduced.

What was the necessity of security to prosecute the suit, at an early period? It was because that parties, plaintiff or defendant, were liable to an amercement; the plaintiff for complaining falsely; the defendant for groundlessly resisting a just claim.

But when costs were given by statute; or came to be given in certain cases, which the common law eo nomine did not allow, all idea of amercement ceased, and the costs are the amercement; or answer the same, and a better purpose; some allowance to the party for what has been expended in prosecuting or sustaining a suit. But it is under the idea of an amercement that the form still remains of calling the plaintiff in the case of a nonsuit.

It is on the same principle that the paying a fine to the king in case of a judgment against a party has ceased in England, costs being deemed a sufficient restraint against a vexatious suit, or groundless defence. But it is still under the idea of vexation in the bringing the action, that executors and administrators in England do not pay costs; for the reason given is that they cannot be supposed to be cognizant of the ground of action, in those whom they represent, in such a manner, as that the law can infer a vexation. But fine and amercement ceasing, and costs being in place of these in England, the exemption of executors and administrators from costs, ought to have ceased also. Here it has never been introduced; and no distinction taken as to these from other parties to a suit.

The absurdity did not exist at the common law, so far as respected the plaintiff, that he could have no allowance for his costs of writ, service by the sheriff, and return, docketing by the clerk, filing of papers, and continuance of suit, together with subpoena for witnesses, &c. An allowance was made for these in the damages assessed by the jury, in all cases where damages were recoverable. But as the jury could make but an estimate or guess as to these, the costs actually laid out, were a most certain criterion; and, therefore given by the statutes; and these added by way of increase of damages, by the court. For even before the statute of Gloucester "the justices in Eyre were wont at their iters to assess

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