time, through the channel of a court of equity: but fuch a practice has never yet been directly adopted as the rule of a court of law (24). Yet where the cause of action arifes in `India, and a fuit is brought thereupon in any of the king's courts at Westminster, the court may iffue a commission to examine witnesses upon the fpot, and tranfmit the depofitions to England. 4. THE administration of justice fhould not only be chafte, but should not even be fufpected. A jury coming from the neighbourhood has in fome refpects a great advantage; but is often liable to ftrong objections: efpecially in small jurifdiations, as in cities which are counties of themselves, and fuch where affifes are but feldom holden; or where the question in difpute has an extenfive local tendency; where a cry has been raised, and the paffions of the multitude been inflamed; or where one of the parties is popular, and the other a ftranger or obnoxious. It is true that, if a whole county is interested in the queftion to be tried, the trial by the rule of law must be in fome adjoining county: but, as there may be a strict interest so minute as not to occafion any bias, so there may be the ftrongeft bias without any pecuniary intereft. In all thefe cafes, to fummon a jury, labouring under local prejudices, is laying a fnare for their confciences: and, though they fhould have virtue and vigour of mind sufficient to keep them upright, the parties will grow fufpicious, and refort under various pretences to another mode of trial. The courts of law will therefore in tranfitory actions very often change the venue, or county wherein the caufe is to be tried: but in local actions, though they fometimes do it indirectly and by mutual [384] (24) A court can compel the plaintiff to confent to have a witnefs going abroad examined upon interrogatories, or to have an abfent witnefs examined under a commiffion, by the power the judges have of putting off the trial; but they have no control in thefe inftances over the defendant. BOOK III. confent, yet to effect it directly and abfolutely, the parties are driven to a court of equity; where, upon making out a proper cafe, it is done upon the ground of being neceffary to a fair, impartial, and fatisfa&ory trial. THE locality of trial required by the common law feems a confequence of the antient locality of jurifdiction. All over the world, actions tranfitory follow the perfon of the defendant, territorial fuits muft be difcuffed in the territorial tribunal. I may fue a Frenchman here for a debt contracted abroad; but lands lying in France must be sued for there, and English lands must be fued for in the kingdom of England. Formerly they were ufually demanded only in the court-baron of the manor, where the steward could fummon no jurors but such as were the tenants of the lord. When the cause was removed to the hundred court, (as seems to have been the courfe in the Saxon times',) the lord of the hundred had a farther power, to convoke the inhabitants of different vills to form a jury; obferving probably always to intermix among them a stated number of tenants of that manor wherein the difpute arofe. When afterwards it came to the county court, the great tribunal of Saxon juftice, the fheriff had wider authority, and could impanel a jury from the men of his county at large:' but was obliged (as a mark of the original locality of the caufe) to return a competent number of hundredors; omitting the inferior distinction, if indeed it ever exifted. And when at length, after the conqueft, the king's jufticiars drew the cognizance of the caufe from the county court, though they could have fummoned a jury from any part of the kingdom, yet they chofe to take the caufe as they found it, with all it's local appendages; triable by a ftated number of hundredors, mixed with other freeholders of the county. The reftri ion as to hundredors hath gradually worn away, and at length entirely vanifhed; that of counties ftill remains, This among a number of other inftances, was the cafe of the iffues directed by the house of lords in the caufe between the Duke of Devonshire and the miners of the county of Derby, A D. 1762. LL. Edw. Conf. c. 32. Wilk. 203. • See pag. 360. for for many beneficial purposes: but, as the king's courts have a jurisdiction co-extenfive with the kingdom, there surely can be no impropriety in fometimes departing from the general rule, when the great ends of justice warrant and require an exception. I HAVE ventured to mark these defects, that the juft panegyric, which I have given on the trial by jury, might appear to be the refult of fober reflection, and not of enthufiafm or prejudice. But should they, after all, continue unremedied and unfupplied, still (with all it's imperfections) I trust that this mode of decifion will be found the best criterion, for inveftigating the truth of facts, that was ever eftablished in any country. CHAPTER THE TWENTY-FOURTH. OF JUDGMENT, INCIDENTS. AND IT'S N the prefent chapter we are to confider the tranfactions in a cause, next immediately fubfequent to arguing the demurrer, or trial of the iffue. If the iffue be an iffue of fact; and, upon trial by any of the methods mentioned in the two preceding chapters, it be found for either the plaintiff or defendant, or specially; or if the plaintiff makes default, or is nonfuit; or whatever, in fhort, is done fubfequent to the joining of iffue and awarding the trial, it is entered on record, and is called a poftea. The fubftance of which is, that poflea, afterwards, the faid plaintiff and defendant appeared by their attornies at the place of trial; and a jury, being fworn, found fuch a verdict; or, that the plaintiff after the jury fworn made default, and did not profecute his fuit; or, as the cafe may happen. This is added to the roll, which is now returned to the court from which it was fent; and the hiftory of the caufe, from the time it was carried out, is thus continued by the poftea. NEXT follows, fixthly, the judgment of the court upon what has previously paffed; both the matter of law and matter of fact being now fully weighed and adjusted. Judgment [387] may however for certain caufes be fufpended, or finally arrested; Append. N° 11. § 6. for it cannot be entered till the next term after trial had, and that upon notice to the other party. So that if any defect of juftice happened at the trial, by furprize, inadvertence, or mifconduct, the party may have relief in the court above, by obtaining a new trial; or if, notwithstanding the iffue of fact be regularly decided, it appears that the complaint was either not actionable in itself, or not made with fufficient precision and accuracy, the party may fuperfede it, by arrefting or staying the judgment. ; 1. CAUSES of fufpending the judgment by granting a new trial, are at prefent wholly extrinfic, arifing from matter foreign to or dehors the record. Of this fort are want of notice of trial; or any flagrant misbehaviour of the party prevailing towards the jury, which may have influenced their verdict; or any grofs misbehaviour of the jury among themselves; alfo if it appears by the judge's report, certified to the court, that the jury have brought in a verdict without or contrary to evidence, so that he is reasonably diffatisfied therewith or if they have given exorbitant damages; or if the judge himself has mif-directed the jury, fo that they found an unjuftifiable verdict; for thefe, and other reafons of the like kind, it is the practice of the court to award a new, or fecond, trial. But if two juries agree in the fame or a fimilar verdict, a third trial is feldom awarded: for the law will not readily suppose, that the verdict of any one subsequent jury can countervail the oaths of the two preceding ones (1). ↳ Law of nifi prius, 303,4 46 Mod. 22. Salk. 649. (1) If the verdict of the jury be agreeable to equity and justice, the court will not grant a new trial, though there may have been an error in the admission of evidence or in the direction of the judge. 4 T. R. 468. And it will not be granted merely because it has been difcovered after the trial, that a witnefs examined was incompetent. 1 T. R. 717. Nor will it be granted on the ground of evidence fuppofed to have been discovered after the trial. And when the plaintiff recovers a verdict against the defendant, the defendant cannot |