Rhode Island or the United States, that the justice presiding at the jury trial should first pass upon the question whether the verdict is against the weight of the evidence, or that he should sit with the court required to pass upon that question in granting a new trial for that

reason.

Sketch of the history of awarding new trials in the colony and State.

TRESPASS ON THE CASE for negligence. Heard on constitutional questions by the full bench. Motion of plaintiff to dismiss defendant's petition for new trial and to direct the Common Pleas Division to enter judgment on the verdict of the jury denied.

ROGERS, J. This suit is trespass on the case for negligence brought in the Common Pleas Division, wherein, upon a jury trial, the plaintiff obtained a verdict against the defendant for $10,000; and thereupon the defendant brought it to this Division on a petition for a new trial on the ground, among others, that the verdict was against the law and the evidence and the weight thereof. On December 28, 1900, this Division filed its opinion granting the petition on the ground that the verdict was against the weight of the evidence. See 22 R. I. 321. On the same day, to wit, December 28, 1900, the plaintiff moved that this Division dismiss the defendant's petition for a new trial and direct the Common Pleas Division to enter judgment on the verdict of the jury in said action,

"First. Because the record in said case shows that to grant a new trial on the grounds therein set forth would be in violation of the constitution of Rhode Island, and also of the constitution of the United States, to wit, of the fourteenth amendment to said constitution of the United States, wherein it is provided that no state shall deprive any person of life, liberty or property, without due process of law.'

"Second. Because the court in its opinion has granted the defendant's petition for a new trial' on grounds which the record shows deprive the plaintiff of his right to a trial by jury, and of his property, without due process of law :""

Five days later the plaintiff filed a motion for leave to reargue the petition for a new trial, which motion was heard by three judges on grounds other than constitutional, and

was denied in an opinion filed April 10, 1901.

579.

See 22 R. I.

The court retained the plaintiff's motion to dismiss on constitutional grounds until after it had finally passed upon the petition for a new trial on other than constitutional grounds, retaining the constitutional question for hearing and determination under that clause of Gen. Laws R. I. cap. 222, 3, which reads as follows, viz. that whenever practicable as many more than three as possible of all the justices of the supreme court shall sit in the appellate division in the hearing and determination of such constitutional questions." Accordingly the plaintiff's motion to dismiss on constitutional grounds was heard at length before six judges on June 8, 1901.

The provisions of the constitution of Rhode Island which went into operation on the first Tuesday of May, 1843, relating to juries, are sections 10 and 15 of article 1, and are as follows, viz.:

"SEC. 10. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury; to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining them in his favor, to have the assistance of counsel in his defence, and shall be at liberty to speak for himself; nor shall he be deprived of life, liberty, or property, unless by the judgment of his peers, or the law of the land."

"SEC. 15. The right of trial by jury shall remain inviolate."

The last clause of article 1, section 10 of our State constitution, though grammatically it seems to apply only in favor of persons accused of crime, has been held to apply to all persons, whether accused of crime or not. Reynolds v. Randall, 12 R. I. 522, 526.

Article 1, section 15, means simply that in those proceedings in which a right to trial by jury existed at the time of the adoption of the constitution the right shall still continue; the constitution requiring the conservation, not an extension, of the right of jury trial. Crandall v. James, 6. R. I. 144, 148;

(1)

Mathews v. Tripp, 12 R. I. 256, 258; Bishop v. Tripp, 15 R. I. 466, 469; Merrill v. Bowler, 20 R. I. 226, 228; The Narragansett Indians, 20 R. I. 715, 766.

The provision of the statute under which the petition for a new trial is brought is Gen. Laws R. I. cap. 251, § 5, which is in part as follows, viz.; "Either party to a civil suit, or suit in form civil, commenced in the common pleas division, if he deem himself aggrieved by any direction, ruling or decision of such division in any matter of law raised by the pleadings, or apparent upon or brought upon the record by a statement of the rulings, or of the evidence and the rulings thereon, or, if the case has been tried by a jury, deem himself entitled to a new trial for reasons for which a new trial is usually granted at common law, shall be entitled in

any of such cases to have his petition for a new trial heard before and decided by the appellate division of the supreme court upon complying with the following course of procedure."

The influence of the law of England upon this State has been ever present since early colonial days. In the royal charter of 1663 the power to make laws granted thereunder, was so as such laws, ordinances and constitutions, so made, be not contrary and repugnant unto, but, as near as may be, agreeable to the laws of this our realm of England, considering the nature and constitution of the place and people there."

66

Trial by jury was early established here, and in October, 1677, the General Assembly enacted that "either the plaintiff or defendant shall each of them have liberty of one rehearing if either of them desire it and no more." The person desiring the rehearing had to give bond and pay costs, and, in the words of the statute, this cost not to be recoverable again except ye Jury see good cause to give it." Public Laws of Rhode Island (1636-1705), 26. By act of the General Assembly passed in May, 1680, it was provided that if either plaintiff or defendant be aggrieved after judgment entered in court upon review he might appeal to the next

General Assembly. Public Laws of Rhode Island (16361705), 32.

Various modifications of the statute relating to jury trials took place from time to time until in 1843, when our State constitution went into operation, a litigant could obtain at least two jury trials. In the language of Durfee, C. J. in Mathews v. Tripp, 12 R. I. 256, 257,-"At the time of the adoption of the constitution the Supreme Court, or, as it was then called, the Supreme Judicial Court, had only appellate jurisdiction in civil jury cases, original jurisdiction being conferred in 1847. Previously, the course of procedure was to commence the action, if the amount involved exceeded twenty dollars, in the Court of Common Pleas, and for either party aggrieved by the judgment to appeal to the Supreme Judicial Court. There was thus opportunity for two jury trials, one in the Court of Common Pleas and the other in the Supreme Judicial Court; but it was in the power of either party to prevent the jury trial in the Court of Common Pleas by submitting to judgment and taking an appeal. Even this, however, did not exhaust the privilege of jury trial. For either party aggrieved by the judgment of the Supreme Judicial Court was entitled within one year to review the same, and have one trial more in the same court.' Digest of 1822, p. 133. There was no further trial except for cause. Trial by review was abolished by the revision of 1844, after the adoption of the constitution."

At the time our State constitution went into operation section 5 of "An act to establish a Supreme Judicial Court" was in full force, which gave that court the power to grant new trials in cases decided therein or in any Court of Common Pleas for various reasons specified; and said section contained this clause, viz.: "and the said court shall also have power to grant new trials in cases where there has been a trial by jury, for reasons for which new trials have been usually granted at common law." Digest of 1822, p. 109.

It is clear that our ancestors prior to our present State constitution found trial by jury so fallible that it was necessary to provide for more than one trial. In England as well

as in the older States of America, two hundred years ago, trial by jury was in a state of evolution. The old law of attaints against a jury as a means of reversing a verdict against the evidence was apparently obsolete both in England and in this country before the American Revolution. Note to Erving v. Cradock, Quincy, 560, by Horace (Mr. Justice) Gray.

Sir William Blackstone, writing in or about 1765 (3 Com. Chitty's ed., 388-392), says: "Formerly the principal remedy, for reversal of a verdict unduly given, was by writ of attaint. But such a remedy as this laid the injured party under an insuperable hardship, by making a conviction of the jurors for perjury the condition of his redress. The judges saw this; and therefore very early, even upon writs of assise, they devised a great variety of distinctions, by which an attaint might be avoided, and the verdict set to rights in a more temperate and dispassionate method. When afterwards attaints, by several statutes, were more universally extended, the judges frequently, even for the misbehavior of jurymen, instead of prosecuting the writ of attaint, awarded a second trial; and subsequent resolutions, for more than a century past, have so amplified the benefit of this remedy, that the attaint is now as obsolete as the trial by battle which it succeeded; and we shall probably see the revival of the one as soon as the revival of the other.

If every verdict was final in the first instance, it would tend to destroy this valuable method of trial, and would drive away all causes of consequence to be decided according to the forms of the imperial law, upon depositions in writing, which might be reviewed in a course of appeal. The jury are to give their opinion instanter; that is, before they separate, eat, or drink. And under these circumstances the most intelligent and best intentioned men may bring in a verdict, which they themselves upon cool deliberation would wish to reverse.

"Next to doing right, the great object in the administration of public justice, should be to give public satisfaction. If the verdict be liable to many objections and doubts in the