Cook v. Shrauder

The opinion of the Court was delivered by

Black, J. —

In this case it appears that the counsel of the parties agreed to make a case stated, in the nature of a special verdict, which was afterwards lost. The Court appointed a commissioner to take testimony of its contents, and upon his report gave judgment.

The like of this has never been heard of before. I do not say that it is necessarily wrong because it is new. But we are of opinion that it violates principle and analogy. A case stated is a substitute for a verdict. When it is lost or destroyed it cannot answer the purpose, and if the parties cannot agree upon a new one, the cause goes to á jury just as if none had ever been made.

In a Court of common law an issue in fact cannot be determined by a commissioner. If such a mode of inquiry were legal, it would hardly follow that his report is conclusive, when he merely finds that on a certain occasion, the parties admitted the facts to be in a particular way.

A statement of the case is, "itself, not conclusively binding on the parties. Whenever it can be shown that there is a defect in it, no judgment should be given. We have often referred eases of that sort back again to be tried by a jury, even after judgment below and writ of error.

When the parties put their case on paper, it is of the utmost importance, sometimes, that it should be submitted to the Court in the very form and shape which they chose to give it. It cannot be expected that this can be reproduced from the testimony of witnesses who have seen it months or years before. It seems to us exceedingly probable that the commissioner’s report, in this case, is nothing like the original paper. The counsel would hardly call such a thing a case stated. It sets forth merely an abstract question of law. There is not a fact mentioned on which we could tell whether the plaintiff has a claim or not.

Judgment reversed and venire awarded.