444
The Green Bag
would fall within the plaintiff's claims; if not, they ought to find for the defend ant and he should hold his possession. "Humphreys, J.: It is the province of the Court to declare the law, and of the jury to find the facts. The Court is to give its opinion of the law, and it was prudent of the jury to pay attention to that opinion; but they might find con trary to the directions of the Court; and the only control the Court has is to grant a new trial." Being thus assured by Campbell, J., that their province was to decide the law as well as the fact, the jury, at least Campbell's followers, entered upon the strenuous undertaking of deciding whether the grant was valid or not; while the disciples of Overton, J., tried to receive the law as it was delivered and apply it to the facts, and solve the problem in that way. On the con trary, the Humphreys contingent of jurors prudently resolved to pay atten tion to the Court's opinion of the law
and then exercise their prerogative of finding contrary to those directions. Imagine the jargon and discord in that jury room in the chase after a verdict, whether receiving or rejecting the in structions of the Court! It happened in this as it did in that other case, where the chancellor gave all the contradictory instructions requested on both sides, seventeen for plaintiff and twenty-one for defendant. "When doctors disagree, disciples then are free." And so these jurors, each following his own choice among these three wise men on the bench, went their several ways, and the result is laconically reported—"Mistrial." And yet there are people who would abolish trial by jury and try causes by judges only, because of the dullness or ignor ance of perversity of jurors! And that, too, notwithstanding old Justice Miller's report that three-fourths of the cases of disagreement in the federal Supreme Court were upon facts and not law!
Communis Error Facit Jus By Mr. Justice Darling NO code to Britons gave a right. They reasoned wrong; then saw Their common error's regal might, And hailed it common law. —From " On the Oxford Circuit," recently published by Smith, Elder fir* Co., London.
