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ment of the parties, it may be referred agreeably to the provisions of this act; and the plaintiff's atttorney shall not be entitled to a judgment fee, in any action of debt, whether the judgment be confessed by the defendant or rendered on the report of referees, or on the verdict of a jury; and if the plaintiff on trial being had as aforesaid, does not recover more than the amount for which the defendant was willing to confess judgment, he shall not recover any costs that accrued on the cause subsequent to the offer of confessing judgment, excepting the costs of issuing and serving a writ of execution when the same may be necessary."

Our courts, in every case before this act, where the declaration was not sufficiently explicit, to enable a defendant to know what demand to meet, would direct a special statement of the items to be filed; and this in matters of account was always done, if the party demanded it. And, it was also a rule in most districts, that the declaration or statement should be filed at the return of the process, or during the term, if an appearance had been entered, or special bail to the action, if in a case that bail could be required.

I do not see any thing gained by this act; for surely the party might always have been his own attorney. It is provided by the constitution, that "he shall be heard by himself or his counsel."

The idea of the legislature was, to enable the better every man to be his own lawyer. But every man will not chuse to be his own lawyer, so far as respects the conduct of a suit in court; for he will not find his account in it; any more than in being his own blacksmith or taylor. For though there are no rules, merely arbitrary in conducting, or defending a suit in court, but all is founded in reason and good sense; yet, attention divided upon different objects, distracts; and the habit of doing a thing gives a facility in doing it. There is no magic in the thing, or mystery, but as the good man of Auchtermuchty found, according to the old tale, it was best to stick to his stots, (oxen) and let the housewife mind her kirn, (churn) and her children. But to go on with my observations to the student. Suppose yourself attorney or counsel for the defendant, what will you do on the re

turn of process, say a summons; or rather, what can you do in any possible case?

Answer. I can object, on his behalf to the jurisdiction of the justice, or of the court, and allege that they have no cognizance of a matter in his case; he is not amenable to that tribunal. If that is overruled, I can say, he is entitled to other process, and move to quash the writ. If that is overruled, I can allege that the adversary has no right to sue, as being an alien enemy, or for other cause; or that the defendant ought to be sued at all, or alone, but with others, &c.

After the declaration filed, or statement made, in abatement, the preceding matter being overruled, I could demur to the declaration, or make a pause, and ask whether such a declaration or statement contained cause of action, &c.

This being overruled, I could plead, in bar, as we say, such as a former recovery for the same cause of action. All this course of proceeding, you will see in Chitty on Pleading, which I have just put into your hands.

Replication to your plea will be a step that may be taken on the part of the plaintiff. You demur, or make a pause and put it to the court to say, whether such a replication, is not a departure from the point, or can be made.

If this is overruled, you will rejoin, and make an answer to what he had replied to your plea. He may surrejoin until it comes to a point in issue between you. If you join issue, it closes the pleadings.

I state these things just to give an outline, and to shew that it is nothing more than bringing the parties to a point, that it may be seen what is the controversy between them.

At an early period, in England, all those matters took place at the trial when the parties came into court; and the altercation; saying that the party could not sue in that court; or sue at all from some disability; or that he could not sue alone; or that he the defendant ought not to be sued alone, but with another in the bond for instance; or that his action was frivolous, such as for grinning at him, &c. &c. But an improvement was made upon all this in due time, for the dispatch of business, and all these allegings and denials, and

fending, and proving, as the phrase is, came to be put into writing. These might be in short minutes at first; but in due time, for the greater certainty, the statements came to be made, on both sides, at greater length.

All the difference then is with us that we take the midway, as it was in the second stage of the English custom, and are entered in brief with us in Pennsylvania.

"A common jury is one returned by the sheriff according to the directions of the statute, 3 Geo. 2, c. 25, which appoints, &c.

As the jurors appear when called, they shall be sworn unless challenged by either party." 3 Bl. Com. 358.

BEFORE this statute, the sheriff summonet, at his own discretion, unless in special cases, inhabitants of the county. The law was the same with us in this state before the revolution and afterwards, but by acts of assembly on this head, provisions are made even in the return of a common jury, for the purpose of giving a fairer chance of an impartial selection and return.

By an act of 29th March, 1805, the sheriff and commissioners, or any two of them with the sheriff, shall meet in each county, at the seat of justice, at least thirty days previous to the first court of common pleas in each year, and sclect from the list of taxables, the names of a suitable num-ber of sober and judicious persons to serve as jurors for that year, and write the name of each person so selected on a small piece of paper, each paper as nearly alike in size and shape as may be, so that the name does not appear; two wheels shall be provided, No. 1, and No. 2; the nanics for grand jurors shall be put in No. 1; those for petit jurors in No. 2, The wheels shall then be turned sufficiently to intermix the papers, and having first drawn from the proper wheels a number of names sufficient for the then next court, the wheels shall be locked up and sealed, &c. and so

in the same manner, thirty days previously to each succeeding court.

The name of each person summoned and impannelled according to the provisions of the act, shall be written on a distinct piece of paper, of an equal size and similar shape, as nearly as may be, and rolled up and put into a box, and when any cause shall be ready for trial, some disinterested person, by direction of the court, shall in open court, after having well mixed the papers, draw out one after another, until a sufficient number shall appear and be approved.

A supplement to this act, passed 4th Ap. 1807, provides, that whenever process shall be issued for summoning a jury, the sheriff shall immediately give notice to the commissioners, who shall proceed to draw a sufficient number of jurors

for the next court.

By an act passed 4th April, 1809, it is provided, that, "in all civil suits, each party shall be allowed to challenge two jurors peremptorily; and in all criminal prosecutions wherein peremptory challenges have not heretofore been permitted by law, the defendant or defendants shall be allowed to challenge four jurors peremptorily."*

By sec. 12, of the act of 21 March, 1772, which provides the manner of giving possession to the landlord, where tenant holds over, a jury of substantial freeholders is directed to be summoned.

In the case of special juries, our law is similar to that under the statute 3 Geo. 2, c. 35.

* This improvement in a trial by jury, and it is a great inprovement, was on the suggestion, and at the instance of the lately deccased Mr. Mountain, of Pittsburgh, of whom, did the nature of this publication permit an eulogium on his personal integrity and professional talents, I should have much to say, but the Sed nunc non erat his, locus

will apply.

"Thus much for costs to which judgments are a necessary appendage." 3 Bl. Com. 399.

THE minute variations in the law of Pennsylvania from that of England, with regard to costs, are considerable. They must be collected from the acts of assembly, and the adjudications of the courts. In case of granting new trials, the act of 21 March, 1806, sec. 3, has made some variation from what the law was in this state before.

It is provided "that in all cases where a verdict of a jury shall be set aside, a new trial shall be had on the same conditions as to costs, and daily pay as are above prescribed, in cases of a new trial on the report of referees being set aside. If he shall prosecute his action, and not recover a sum equal or greater than was at first awarded, he shall not have judgment for costs, and shall pay the defendant seventyfive cents per day while attending on the same, and if the defendant file such exceptions, and the award be set aside by the court, and the plaintiff, by a new action, shall recover a sum equal, or greater than the original award, then and in that case, the plaintiff shall have judgment for all the costs accrued on that suit, together with seventy-five cents per day, whilst attending the same."

A new trial is granted by the English judges; and was with us before this act, on condition of paying the costs of the former trial; or costs to abide the event. That is, the costs of the trial to go into the bill; and whoever fails, pays the whole costs in the cause. It is to be remarked that the word suit is used in the act; and therefore it is the costs of the whole proceeding that are in question; not a particular part or portion, such as the costs which have accrued, from that stage to which the person applying for a new trial, wishes to be put back, which costs might be ordered to be paid down; or to abide the event.

But this section would not seem to have a reference to actions where land is to be recovered; for the words are, not recover a sum equal or greater," which can only be in case where a sum is to be recovered. It would seem to be

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