Banyer v. Ellice

By the Court, Cowen, J.

The 36th rale of this court ahrogates the practice of taking a general verdict, subject to the opinion of this court, on all the evidence given on the trial. It then proceeds to declare, that “ no verdict shall hereafter- be taken subject to the opinion .of the supreme court, except where the parties shall agree on the facts proved, or where such facts shall be found by the jury.”

The object of this rule was two-fold; first, to divide' more accurately the offices of the circuit and the bench; and second, to expedite the business of the court. The old practice of taking a verdict for the plaintiff, subject to the opinion of the court, confounded the duties of judge and jury, and rendered it often necessary to exercise the latter on an imperfect statement of the evidence, and at best, in a very unsatisfactory manner. The second object is effected by diminishing the number of cases in which this court would otherwise be called on to decide questions of fact, and confining them, as far as possible, to their more appropriate duty of passing on the law of the case. Both objects are important, and should not be lost sight of in practice. The rule in question requires quite as much fulness and certainty in a case, on a verdict subject to the opinion "of the court, as in a special.verdict. The only difference lies in the form. In' the case made, the facts are either to be found by the jury, or agreed by the parties ; in the special verdict, they are to be found. In the case before us, neither of the requisites demanded by the rule is complied with. For this reason, we are .of opinion that a new trial should be granted, the costs to abide the event.

Ordered accordingly.