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sideration, after discarding the false description aris- of its evils, and much more entitled to the confidence ing from the name of the county, is this, and no more: of the public as well as of the legal and judicial minds “ A small farm in Iowa, wear Missouri line." There of the country, if some number less than the whole is not one word in the will directing inquiry to any should be authorized to render a verdict. I would not source which may aid in discovering the locality of myself be willing that a bare majority should be perthe farm. Without such aid, it would be in vain to mitted to do this. There could be little difference in search near the Missouri line, for 240 miles, for the

the confidence which would be reposed by the court, small farm. In our opinion, the doctrine of Fitzpatrick the public, or the parties, in the opinion of five men v. Fitzpatrick controls the disposition of this case. or of seven. It sbould be something more then than Counsel for defendant think as the ten-acre tract is a bare majority. If the jury is to consist of twelve appurtevant to the large tract, and is in Wayne county, men, I certainly would not be willing tbat its verdict this will serve to identify the land in controversy. should represent less than eight, which is two-thirds, But there is nothing in the will showing the connection or probably nine, which is three-fourtbs. Many of of the two tracts of land as constituting one farm. It what are called mistrials, produced by a failure of surely will not do to say that a ten-acre tract of land the jury to render a verdict, would be avoided if the is a part of a farm six miles away. It is doubtful in. power were given to nine or eight to render a verdict deed, whether the ten-acre tract is sufficiently identi- instead of requiring them all to unite in it, and such a fied by the description of the will declaring it verdict would be entitled to as much confidence as if to be in Wayne county. But if we

that it were unanimous. In respect to civil actions, where it is, it cannot be claimed that its description will aid the question at issue is the right to specific property, the description of the other tract, in the absence of or to damages for failure to fulfill a contract, or torts any thing directing inquiry thereto. Iowa Sup. Ct., against the person or property of the plaintiff, this Oct. 13, 1887. Christy v. Budger. Opinion by Beck, J. approach to perfect justice is perhaps as near as the

fallibility of human nature permits, and the cha"

removes the most serious objection to the system MR. JUSTICE MILLER ON JURY TRIAL.

trial by jury, the one which stands out as almost [Extracts from the American Law Review.]

without support in reason or experience. I must confess that my practice in the courts before I came to the bench had left upon my mind the im

NEW BOOKS AND NEW EDITIONS, pression that as regards contests in the courts in civil suits, tbe jury system is one of doubtful utility;

POMEROY'S RIPARIAN RIGHTS. and if I had then been called upon as a legislator to

A Treatise on the Law of Riparian Rights as the same is provide for a system of trial in that class of actions, I

formulated and applied in the Pacific States, including

the doctrine of Appropriation. By John Norton Pomeroy. should have preferred a court constituted of three or

Revised and edited by W. Campbell Black. St Paul, Minn.: more judges, so selected from differeut parts of the West Publishing Co., 1887. Pp. xx, 307. district or circuit in which they presided as to pre- This treatise was substantially published in the form veut, so far as possible, any preconcerted action or of papers in the West Coast Reporter, during Prof. agreement of interest or opinion, to decide all the Pomeroy's editorial charge of that periodical. They questions of law and fact in the case, rather than the were intended as a study with a view to affecting and present jury system. * * * This impression upon effecting legislation, or as Prof. Pomeroy put it, “a me, growing out of my practice, I have since come to code of rules," and in this respect he paid a tribute to think however was largely due to the fact, that owing the usefulness of codification. The doctrine of such to popular and frequent elections of the State judges rights in most of the Pacific States is quite different and insufficient salaries, the judges of those courts in

from the common law rule prevailing in most of the which I mainly practiced were neither very compe- States east of the Mississippi, and the work therefore tent as to their learning, nor sufficiently assured of is of principal interest to the residents of the western their position to exercise that control over the pro- slope, the decisions of which region are chiefly exceedings in a jury case, and especially in instructing amined and relied on. Mr. Black has discreetly edited the jury upon the law applicable to it, which is essen- the original papers, citing and commenting on thi tial to a right result in a jury trial. It may as well be later decisions, and adding appropriate matter. The stated here that a case submitted to the unregulated book is well printed. discretion of a jury, without that careful discrimination between matters of fact and matters of law,

COURT OF APPEALS DECISIONS. which it is the duty of the court to lay before them, is but little better than a popular trial before a town THE following decisions were handed down Friday, meeting. *

* An experience of twenty-five years Dec. 23, 1887: on the bench, and an observation during that time of Judgment reversed, uew trial granted, costs to abide cases which came from all the courts of the United event-John Lilly, appellant, v. New York Central States to the Supreme Court for review, as well as of and Hudson River Railroad, respondent.-Judg. cases tried before me at nisi prius, have satisfied me ment affirmed with costs-Jave Greer et al., respondtbat when the principles above stated (principles upon ents, v. New York Central and Hudson River Railwhich judges shonld instruct) are faithfully applied road, appellant; William H. Kimball, respondent, v. by the court in a jury trial, and the jury is a fair one, Mary Leonard et al., appellants; Edward M. Ross, as a method of ascertaining the truth in regard to dis- respondent, v. John H. Ross, appellant; Julia H. Halputed questions of fact, a jury is in the main as valu-pin, appellant, v. Thomas C. Townsend, respondent; able as an equal number of judges would be, or any Daniel Savin, respondent, v. Ferdinand A. Duckwitz, less number. And I must say, that in my experience appellant; Anna Maria Howell et al., respondents, v. in the conference room of the Supreme Court of the Long Island Railroad Company, appellant. —Motion United States, which consists of nine judges, I have to dismiss denied, with $10 costs-Ellen T. Mayes, re. been surprised to find how readily those judges come spondent, v. Charles J. Nowise, Jr., appellant. to an agreement upon questions of law, and how often It was ordered that a term of this court for 1888 be they disagree in regard to questions of fact which ap- held at the Capitol, commencing Monday, the 16th parently are as clear as the law. * I am there- day of January, at 10 o'clock a. M., then to proceed fore of the opinion that the system of trial by jury with the present calendar. Tuesdays, January 17 and would be much more valuable, much shorn of many 31, will be motion days.


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