CH. XXVII. § 2. Casting lots. Reception of further evidence after retirement. Juror taken ill. Where, however, a trial was not concluded on the first day, but the Court adjourned to the day following, and in the mean time the jury separated and went to their respective homes, without the assent or knowledge of the defendant, still the Court held it to be no ground for granting a new trial, unless it could also be shown that some improper attempt had been made to practise upon or tamper with the jury, whilst they were thus separated.' And where two of the jury, during the progress of a trial'which lasted two days, dined and slept at the house of the defendant on the evening of the first day, and consequently before the summing up, it was held that this did not avoid a verdict found for the defendant.2 If the jury determine their verdict by lots, the verdict may be set aside, and the jurors fined.8. 4 When the jury withdraw, they may take with them documents put in evidence in the cause; but they cannot take with them documents which have not been proved; and if the party for whom the verdict is afterwards given, delivers such documents to the jury after they have left the box, it will avoid the verdict; but if delivered by the opposite party, or produced by one of the jurors without having received it from the parties, it will not. If, also, the jury examine witnesses after they have left the box, even to the same points to which the same witnesses were examined before in Court, it will avoid the verdict; but they may return into Court to hear evidence as to any matter of which they are in doubt, or to ask any questions of the Court. After the jury have had the case summed up to them, and have retired, the Judge will not allow them to see a treatise on the law of the subject, even with the consent of the parties; they should state their difficulty to the Judge, and receive his direction as to the law.10 Any irreg ularity, however, of the above description cannot, at Common Law, be made the subject of a motion in arrest of judgment, or of proceedings in error, unless it appears upon the record.11 If one of the jury happen to be taken suddenly ill, so as to be incapable of remaining until the verdict is agreed on, the Court may discharge that jury, and charge another with the cause.12 1 R. v. Kinnear, 2 B. & Ald. 462; 3 Pri. 536; see R. v. Fowler, 4 B. & Ald. 273; 2 Doug. 416; Co. Litt. 227. 2 Morris v. Vivian, 10 M. & W. 137; 8 Dowl. N. S. 235. 3 Fry v. Hardy, T. Jon. 83; R. v. Lord Fitzwater, 2 Lev. 140; Foster v. Hawden, ib. 205, Hale v. Cove, 1 Stra. 642. 4 Vicary v. Farthing, Cro. El. 411; R. v. Burdett, 1 L. Raym. 148; Co. Litt. 227, b. 5 2 Ro. Abr. 686. CH. XXVII. § 2. when, where, and how delivered. When the jury return to the box, their names are called over,1 and they are asked if they have agreed upon their verdict, and whether they find for the plaintiff or the defendant. The foreman Verdict: of the jury, in the presence and hearing of the remainder of the jurors, then delivers the verdict, and it is recorded. The verdict is either general or special; general, when the jury find generally for the plaintiff or for the defendant; special, when they find the facts of the case specially, as proved. The verdict is also either public or privy. A public verdict is that which is given by the jury in open Court, whilst the Court is sitting. A privy verdict is given before the Judge, after the Court has risen; and it must be confirmed by the jury in open Court, before it can be recorded: before which time, the jury may vary from it if they think proper; but after a verdict is recorded, no alteration however slight can be made in it. Before the verdict is recorded, the jury are also at liberty to vary from the first offer of their verdict, and to tender a new verdict; and the verdict which is recorded stands. At Common Law, the practice now is, if the jury are not ready to deliver their verdict before the Judge leaves the Court, for them to deliver it in open Court, in the presence of the associate." 6 The jury should find their verdict upon all the issues joined. By consent, however, of the parties, they may be discharged from giving their verdict on certain issues; but without such consent, it seems that the Judge should not so discharge them.8 If the jury find a verdict manifestly against the evidence, the Court may send them back to reconsider it, before it is recorded; but not afterwards. This, however, is very unusual. It is said that a jury may ground their verdict on their own knowledge of the facts of the case; 10 but this doctrine, although generally entertained, appears to be questionable. It seems to be contrary to these words in the jurors' oath, "and a true verdict give according to the evidence:" for to say that the word “evidence" here, includes any thing which the jurors may know of their own knowledge of the subject, and which has not been disclosed to the Court, would be giving a construction to the word very different from its common and legal acceptation. If a juror knows any thing respecting the case, the proper course to pursue seems to be, for the juror to state to the Court that he has such 1 See Torbock v. Lamy, 5 Jur. 318, Q. B. 2 See R. v. Wooller, 2 Stark. 111; Cogan . Ebden, 1 Bur. 318; 2 Ld. Ken. 24. 8 As to the verdict in general, and the difference between a general and special verdict, see Chitty's Arch. 448 et seq. 4 Co. Litt. 227. 5 Ibid. lb. b.; Napier v. Daniel, 3 Bing. N. C. 77; 3 Sc. 417. 7 Doe Lewis v. Barter, 5 A. & E. 129; see Bentley v. Fleming, 1 C. B. 479. 8 See Tinkler v. Rowland, 4 A. & E. 868; Empson v. Fairfax, 8 A. & E. 296; Rex v. Johnson, 1 Rob. 1; 5 A. & E. 488; Powell v. Sonnett, 1 Bligh N. S. 302. 92 Hawk. c. 47, § 11; see Napier v. Daniel, 3 Bing. N. C. 77. 10 Trial per Pais, 239, 279; Smith's case, 1 Vent. 67; Anon., 1 Salk. 405. Discharging jury from giving verdiet on cer tain issues. Verdict against evi Verdict jurors' own knowledge of founded on the case. CH. XXVII. knowledge, and thereupon to be examined and cross-examined as § 3. Verdict: how recorded. In what cases. a witness.1 The verdict or finding of the jury, or of the Court, as the case may be, is indorsed by the registrar on the record for trial, and signed by him, and then returned to the office of the Clerks of Records and Writs to be filed; and if the trial has been by a jury, then with the jury panel, and the names of the jurors who were sworn, indorsed thereon.2 SECTION III. Trials of Questions of Fact at the Assizes, or at We have seen that, where the Court considers that any question of fact may, under the particular circumstances of the case, be more conveniently tried by a jury at the Assizes, or at any sitting in London or Westminster for the trial of issues at Common Law, it may direct an issue to try such question; and, subject to such general orders, if any, as may be made in relation thereto, the former practice of the Court in reference to the trial of issues is to prevail in reference to the trial of any issues so directed.* 16 Howell's State Trials, 1012, n.; Mauley v. Shaw, Car. & M. 361, per Tindal C. J.; Anon., 1 Salk. 405; and see Taylor, § 1244; Best, § 187. 2 Ord. XLI. 45. For form of indorsement, see Seton, 971. 8 Chamberlain v. Juppiers, 11 Iowa, 513. A motion is the proper form in which to bring the question of issues before the Court. Hoitt v. Burleigh, 18 N. H. 300, per Parker C. J. The Court may direct issues on its own motion. Tappan v. Evans, 11 N. H. 311, 334; Hoitt v. Burleigh, supra; Back v. Shreve, 2 Beasley (N. J.), 455, 478; Black v. Lamb, 1 Beasley (N. J.), 108; Trenton Bank v Woodruff, 1 Green Ch. 117; Bassett v. Johnson, 2 Green Ch. 421, 422; see Smith v. Croom, 7 Florida, 180. In Massachusetts, "the Court may frame issues of fact to be tried by a jury, in an Equity cause, when requested by a party, and direct the same to be tried in the county where such cause is pending, at the bar of the Supreme Judicial Court or the Superior Court." Genl. Sts. c. 113, § 22. And by rule of Court, "whenever it shall be necessary or proper to have any fact tried and determined by a jury, the Court will direct an issue for that purpose, to be framed by the parties, containing a distinct affirmation and denial of the points in question, or in such form as the Court shall order; and the issue thus framed and joined shall be submitted to a jury and tried upon the like evidence as in a suit at law, together with such part of the answers, depositions, and other proceedings in the 3 cause, as the court shall direct." Rule 36 of the Rules of Practice in Chancery. In general, according to the practice in Chancery, a cause will be brought to a formal hearing, before an issue is directed. But in a case where it was conceded, that the only material question was that of sanity, a fact peculiarly fit and suitable for a trial by jury, the Court said: "There seems to be no objection to ordering an issue, before a general hearing." Eames v. Eames, 16 Pick. 141; Charles River Bridge v. Warren Bridge, 7 Pick. 344; see Waterman v. Dutton, 5 Wis. 413; New Orleans G. L. & B. Co. v. Dudley, 8 Page, 452; ante, p. 1080, note. Such issues may be directed in Massachusetts by the Court when holden by a single Judge. Eames v Eames, ubi supra ; Gen. Sts. (Mass.) c. 113, § 6; see Duncan v. King, 1 Overton, 79. It was formerly held, that they should be framed and filed at a jury term, and not at a law term of the Court. Coffin v. Easton, 12 Cush. 107. But since the recent enactments in Massachusetts, which confer on the Court and on the Justices thereof full power to make and enter all decrees in Equity, either interlocutory or final, at any time, irrespective of the regular terms established by law for the transaction of business on the common-law side of the Court, the Court of Chancery is always open for the direction of such issues. See Thompson v. Goulding, 5 Allen, 83, 84. 4 25 & 26 Vict. c. 42, § 2; ante, p. 1071. No general orders under this Act have been issued. The order by which the issue is directed, after stating that the Court is desirous of having the question of fact stated therein tried by a jury, directs a writ of summons to be sued out of one of the Superior Courts of Common Law, pursuant to the Act 8 & 9 Vict. c. 109;1 and the parties are directed to proceed to trial at the Sittings or Assizes named in the order.2 CH. XXVII. § 3. Form of order directing an issue. The order not unfrequently imposes terms on the party who is Special to act as plaintiff in the issue.3 gener The party supporting the affirmative of the question to be tried is usually directed to be the plaintiff in the issue. This is ally the plaintiff in Equity; but the Court will direct any other party to be plaintiff at Law, if the issue can be thus more conveniently raised; and where the plaintiff in Equity, who had been. ordered to act as plaintiff in the issue, refused to proceed with the trial, other persons were, on their application, allowed to be substituted for him, on giving security for the costs of the trial. terms. Who should be plaintiff. One or more issues will be directed, according to the number of One or more. issues may be substantial points upon which it is necessary to take the opinion of raised. a jury; and where the point to be decided embraces several circumstances, an issue will be directed upon each of those circumstances. Thus, in Bryan v. Parker," a double issue was directed to try the validity of a farm modus: the inquiry being, first, as to the existence of the ancient farm; and, secondly, as to the payment of the modus. The Court has also directed an issue as to a particular clause in a will." 1 See Chitty's Arch. 890, 981; and for form of issue, see Chitty's Forms, 455. 2 For forms of order, see Seton, 975 et $Ex; 4 Chapman v. Smith. 2 Ves. S. 506, 516; see Mott v. Blackwall Railway Company, 2 Phil. 632. As to who should be parties to an issue, in the case of tenants in common, see Attorney-General v. Flint, 4 Hare, 147. 159. Elliott v. Ince, 7 De G., M. & G. 489, n. (^). 1 Y. & C. Ex. 170; see also Bailey v. Sewell, 1 Russ. 239. 7 Hippesley v. Horner, Seton, 984: see also Earl of Newburgh v. Countess of Newburgh, 5 Mad. 364. Issues should be specific and distinct. Hall v. Doran, 6 Clarke (Iowa), 433; see Black v. Lamb, 1 Beasley (N. J.), 114, 115. Objections to their form should be made before trial. Bassett v. Johnson, 1 Green Ch. 155; Black v. Lamb, 1 Beasley (N J.), 108, 115. And in the Court from which they are sent. Woodward, 47 N. H. 539, 542. The issues may consist of a series of specific questions. Black v. Lamb, ubi supra. Bell v. Where the pleadings present the question of one particular fraud only, an issue on the general question whether there was any In Massachusetts, the statute directs An issue may be amended in a proper case when an application therefor is seasonably made. Waterman v. Dutton, 5 Wis. 413; see Appx., 5 R. I. 596. Special issues may be framed to have a special verdict. Brewster v. Bours, 8 Cal. 501. For forms of orders for various issues, see Seton, 983 et seq. Every issue presented must be separately passed upon. Dunn v. Dann, 11 Mich. 284. All the jury have to do is to return a finding our each issue. The consequences resulting from their findings are to be determined by the Court of Equity. It is not CH. XXVII. § 3. Where to be tried. Applications to be made in Equity. Trial at bar. New trials thereafter. Admissions. Formerly, the plaintiff was entitled to elect out of which of the Courts of Common Law the writ of summons should be sued ;1 and issues concerning lands or other hereditaments were, except under special circumstances, directed to be tried in the county where the same were situated. Now, however, it seems that the Court of Chancery will direct the issue to be tried at the Assizes for the county, or at any Sittings in London or Middlesex, where the same may be most conveniently tried." In general, all applications relative to the course of proceeding in the issue should be made in the Court of Chancery.* 6 5 It is said, that the Court seldom or never directs a trial at bar, but only intimates that it would be desirable; this, however, is not strictly correct for although the Court, owing to the great increase of expense attendant upon trials at bar, is very cautious in directing an issue so to be tried, yet instances are to be found in which such trials have been directed; and, it seems, that even new trials may be directed of issues which have been tried at bar. In Baker v. Hart, Lord Hardwicke directed the trial to be at the bar of the Court of King's Bench, provided the party praying it would consent that, if he prevailed, he would be contented with Nisi Prius costs. In directing an issue, the Court will order the parties to make such admissions as are necessary to raise the question to be determined, but it will not order the admission of any fact not in issue for the presiding justice at a jury trial to ant. Bell v. Woodward, 47 N. H. 539. 1 Antrobus v. East India Company, 5 Mad. 3. In Massachusetts, the Court may direct the trial to be had at the bar of the Supreme Judicial Court or the Superior Court; neither party has a right of selection. See Genl. Sts. c. 113, § 22. 2 Chapman v. Smith, 2 Ves. S. 506, 516; Sparke v. Ivatt, 1 S. & S. 366. 8 See 25 & 26 Vic. c. 42, § 2; ante, pp. 1071, 1110; and see, as to venue generally, M'Gregor v. Topham, 3 Hare, 488, 491; Hopwood v. Earl of Derby, 1 K. & J. 255. In Massachusetts, the trial of issues is to be had in the county where the cause is pending. Genl. Sts. c. 113, § 22. 4 Per Wilde C. J. in Hargrave v. Hargrave, 4 C. B. 648, 651; and see Anon., 2 P. Wms. 68. 5 2 Mad. Pr. 478, 2d ed.; 625, 3d ed. Trials at bar in this connection are those that take place before all the Judges at the bar of the Court in which the action is brought; Tomlins L. Dict. Tit. Trial; a trial before the full Court in term. Burrill L. Dict. Tit. Trial. See Baker v. Hart, 3 Atk. 542, 546; 1 Ves. S. 28, 30; Hite v. Salter, 2 Dick. 495; Richards v. Symes, 2 Atk. 319; AttorneyGeneral v. Montgomery, ib. 378. For form of order for a trial at bar, see Seton, 978, No. 1. 7 Regina v. Ball. de Bewdley, 1 P. Wms. 212; Richards v. Symes, and Baker v. Hart, ubi sup.; Coker v. Farewell, 2 P. Wms. 563. 8 Ubi sup. ; see also Hite v. Salter, ubi sup. 9 Fenwick v. James, Seton Dec. 513, last edit.; Elderton v. Lack, 2 Ph. 680; Duke of Beaufort v. Morris, 2 Ph. 683. So the Court, in directing an issue, may order that a party shall not traverse a particular fact, Hodges v. Pingree, Essex Co. Mass. January, 1860, and may impose any other restrictions upon the parties that will prevent fraud and surprise at the trial. See the directions given in Apthorp v. Comstock, 2 Paige, 485; and Clark v. Congre gational Society, 44 N. H. 382; Black v. Shreve, 2 Beasley (N. J.), 455, 485. But |