unless waived in civil cases by the parties. But by force of the subsequent provisions of the Code of Procedure, abolishing the distinction between proceedings in Equity and at Law, it is conceived that the facts, in all cases, may be tried by Jury, if demanded.2 Undoubtedly they may be in Louisiana, where this right is granted generally, in all cases, if required by either party; and probably, also, in those other States where the sole remedy is by petition and answer, no distinction existing between remedies in Equity and at Law; as is the case in California and Georgia, and in the other States before mentioned. In Delaware, it is required by the constitution, that "trial by Jury shall be as heretofore;" but it seems to be extended, by statute, to all cases. In the States of Rhode Island, Connecticut, New Jersey, Florida, Mississippi, Tennessee, Kentucky, Ohio, Alabama, Missouri, Arkansas, Texas, and Iowa, the constitutional provision is simply, that "the right of trial by Jury shall remain inviolate;" the words being in each constitution nearly the same, and without qualification. The same provision exists in the constitution of Indiana, where it is expressly extended to all

1 New York, Const. (1846,) Art. 1, § 2.

2 N. Y. Code of Procedure, § 62, 208, 221, 225, [252, 266, 270]; Lyon v. Ayres, 1 Code Rep. N. S. 257.

3 Louisiana, Code of Practice, § 494, 495; Texas, Const. (1845,) Art. 4, § 16, 18, 19; Id. Art. 1, § 12.

4 Delaware, Const. (1831,) Art. 1, § 4. In the constitution of this State, in 1776, it was declared, "That trial, by Jury, of facts, where they arise, is one of the greatest securities of the lives, liberties, and estates of the people." Declaration of Rights, Art. 13. And accordingly, in the Revised Statutes of 1852, ch. 95, § 1, it is enacted, that "where matters of fact, proper to be tried by Jury, shall arise in any cause depending in Chancery, the Chancellor shall order such facts to trial by issues at the bar of the Superior Court."

5 Rhode Island, Const. (1842,) Art. 1, § 15; Connecticut, Const. (1818,) Art. 1, § 21; New Jersey, Const. (1844,) Art. 1, § 7; Florida, Const. (1838,) Art. 1, 6; Mississippi, Const. (1817, 1832,) Art. 1, § 28; Tennessee, Const. (1796, 1835,) Art. 1, § 6; Kentucky, Const. (1799,) Art. 13, § 8; Ohio, Const. (1802, 1851,) Art. 1, § 5; Alabama, Const. (1819,) Art. 1, § 28; Missouri, Const. (1821,) Art. 11, § 8; Arkansas, Const. (1836,) Art. 2, § 6; Texas, Const. (1845,) Art. 1, § 12; Iowa, Const. (1844,) Art. 2, § 9.

civil cases; in those of Maryland, Illinois, and Wisconsin, where it is applied only to "all cases at law," or to "civil proceedings in Courts of law;" and in those of South Carolina and Georgia, where it is qualified by the addition of the words "as heretofore used in this State." It is qualified in a similar manner in the constitution of Pennsylvania.1 In the constitution of Michigan it is provided, that "the right of trial by Jury shall remain, but shall be deemed to be waived in all civil cases, unless demanded by one of the parties, in such manner as shall be prescribed by law;"-a provision apparently copied from that in New York, with a studious omission of the words "in all cases in which it has been heretofore used." 2

§ 265. In other States, as well as in some of those above mentioned, the right of trial by Jury, in all civil cases, without exception, is further secured by statute. Thus, in the Code of Iowa, it is enacted, that issues of fact shall be tried by the Court, unless one of the parties require a Jury.3 And in North Carolina, it is made "the duty of the Court, to direct the trial of such issues as to the Court may appear necessary, according to the rules and practice in Chancery, in such cases." In Georgia, the Superior and Inferior Courts, which are Courts of general jurisdiction in civil cases, both at law and in equity, have "full power and authority" to hear and determine all causes in their respective tribunals by Jury; and the course of such trials, in cases in equity, is provided for by the general rules in Equity."6

1 Indiana, Const. (1816, 1851,) Art. 1, § 20; Maryland, Const. (1851,) Art. 10, § 4; Illinois, Const. (1818, 1847,) Art. 13, 6; Wisconsin, Const. (1848,) Art. 1, § 5; South Carolina, Const. (1790,) Art. 9, § 6; Georgia, Const. (1798, 1839,) Art. 4, § 5; Pennsylvania, Const. (1838,) Art. 9, § 6. 2 Michigan, Const. (1836, 1850,) Art. 6, § 27.

3 lowa, Code of 1851, § 1772.

4 North Carolina, Rev. St. 1836, Vol. 1, ch. 32, § 4. 5 Hotchk. Dig. p. 529, § 149.

6 Idem. p. 953, 954, Reg. 1, 6.

§ 266. In view of these express declarations respecting the great value of the trial by Jury, and of the sacredness of the right, and the care taken for its preservation, no one will deny that it is a mode of trial highly favored, and intimately connected with the general welfare. And therefore it may deserve to be considered, whether, in those States where Courts of Equity are "authorized and empowered," or "permitted," to direct issues to the Jury for the trial of material facts, it be not their duty so to do, and whether the parties may not demand it of right; unless, perhaps, in those cases where the statute expressly leaves it in the discretion of the Court; it being the well known rule of law, that words of permission, in a statute, if tending to promote the public benefit, or involving the rights of third persons, are always held to be compulsory.1 Such permission and authority to direct a trial by Jury, "if there be an issue as to matter of fact, which shall render the intervention of a Jury necessary," is found in the statute of Arkansas, and is copied, in nearly the same words, in that of Wisconsin.2 In Alabama, the Courts, sitting in Chancery, "may direct an issue of fact to be tried whenever they judge it necessary."3 In Virginia, "any Court, wherein a chancery case is pending, may direct an issue to be tried in such Court, or in any circuit, county, or corporation Court." 4 The precise construction of these provisions, and whether

1 So held in Rex v. Mayor, &c., of Hastings, 1 D. & R. 148; where the words were 66 may have power to have and hold a Court of Record." &c. So, where the churchwardens and overseers shall have power and authority to make a rate to reimburse the constables. Rex v. Barlow, 2 Salk. 609. So, where the Chancellor may grant a commission of bankruptcy. Blackwell's case, 1 Vern. 152. So, where the trustees of a public charity, under the will of the founder, may remove a pensioner, for certain causes. Att'yGen. v. Lock, 3 Atk. 164. And see Newburg Turnp. Co. v. Miller, 5 Johns. Ch. 113; Rex v. Com'rs of Flockwold, 2 Chitty, R. 251; Dwarris on Statutes, 712; Rex v. Derby, Skin. 370; 1 Kent, Comm. [467] 517; Simonton, ex parte, 9 Port. 390; Malcolm v. Rogers, 5 Cowen, 188; 1 Pet. 64.

2 Arkansas, Rev. Stat. 1837, ch. 23, § 64; Wisconsin, Rev. Stat. 1849, ch. 84, § 31.

3 Toulm. Dig. 487; English's Dig. ch. 28, § 62.

4 Virginia, Rev. Code, 1849, ch. 177, § 4, and note.

they would justify the Court in refusing to grant a trial of material facts by Jury, when claimed by the parties, yet remains to be settled. Probably few Judges, at the present day, in any State where the law is not perfectly clear against it, would venture to deny such an application, in a case proper for a Jury, nor to disregard the verdict, if fairly rendered upon a legal trial. And in proportion to the duty of directing an issue to the Jury, is the obligation on the Judge to be governed by their verdict.

§ 267. Thus it appears, that the regular course of Chancery proceedings, as heretofore used in England, is not strictly followed in any State of the Union. In some States, the proceedings in Chancery are by bill and answer, the commonlaw remedy being by writ, as before; in others, there is but one, and that a brief form of remedy, pursued alike in all cases. In some, the parties may examine each other as witnesses; in others, this is not permitted. In some, the witnesses may be examined in Court, vivâ voce, as at law; in others, the testimony is always taken in writing, either in open Court, by the Clerk or the Judge, or in depositions, after the former method. In the latter case, however, there is this farther diversity of practice, that, in some States, the parties may examine and cross-examine the witness, ore tenus, before the magistrate or commissioner; in others, they may only propound questions in writing, through the commissioner; in others, they may only be present during the examination, and take notes of the testimony, but without speaking; while in others, the parties are still excluded from the examination. In some of the States, also, it is required that all matters of fact, in all cases, shall be tried by the Jury; in others, it is at the option of the parties; in others, it is apparently left in the discretion of the Court; but with plain intimations that it ought not to be refused, unless for good cause. Other changes in the course of Chancery proceedings might be mentioned; but these will suffice to show, how difficult it is, if not impossible, to prepare a complete system of the law of evidence in Equity, adapted alike to all the States in the Union. An approximation to this result is all that the author can hope to attain.

NOTE.

DURING the composition of this volume, the Practice and Course of Proceeding in the High Court of Chancery in England, have been amended and materially reformed, by Stat. 15 & 16 Vict. c. 86, (July 1, 1852,) and by the Orders made by the Lord Chancellor, pursuant to the provisions of that statute; some account of the leading features of which will not be unacceptable to the profession in the United States, and is therefore subjoined.

The practice of engrossing bills and claims on parchment, and of issuing a subpoena to appear and answer, is abolished; instead of which the plaintiff files a printed bill or claim, and serves a printed copy on the defendant. Stat. 15 & 16 Vict. c. 86, § 1-4. Of these printed bills or claims, the plaintiff is required to deliver to the defendant or his solicitor such a number as he may have occasion for, not exceeding ten, at a halfpenny each folio. Id. § 7. Orders, Aug. 7, 1852. Ord. 5, 6.

The copy of the bill or claim filed is to be interleaved; and where, by the former practice, an amendment may be made, without a new engrossment, it may now be made by written alterations on the printed bill or claim, or on the interleaves; an amended copy being served as before. Stat. sup. § 8. Ord. 7, 9, 10.

Every bill must contain, as concisely as may be, a narrative of the material facts and circumstances on which the plaintiff relies; divided into paragraphs and numbered consecutively; each paragraph containing, as nearly as may be, a distinct statement or allegation; and must pray for specific and general relief; but must not contain interrogatories to the defendant. Stat. sup. 10. A brief form for a bill, pursuant to this section, is appended to the new Orders. Ord. 14.

If the plaintiff requires an answer from the defendant, he is to file interrogatories in the Record Office, for the examination of the defendant, (serving a copy on him or his solicitor,) within a time, limited in the Orders. Stat. sup. 12, Ord. 15 – 20.

The defendant's answer to the bill may contain not only his answers to the plaintiff's interrogatories, filed as above, but any other statements he may be advised to set forth by way of defence; to be divided into paragraphs and numbered, as is required in the bill. Stat. sup. § 14. A brief form of such answer is also appended to the orders. Ord. 21.

The practice of excepting to bills, answers, and other proceedings, for impertinence, is abolished; but the party may be punished in costs. Stat. sup. § 17.

The Court may order the defendant to produce, under oath, such documents in his possession or power relating to matters in question in the suit, as