trial

The basic purpose of a trial is the determination of truth

The examination before a competent tribunal, according to the law of the land, of the facte pu^ in issue in a cause for the purpose of dd»rmining such issue. 4 Masdn (U. S.) 282. Thts methods of Mai at ennmon law were: (1) By certificate, where the evidence of the person certifying is the only proper oriterldn of the point u dispute. S BL Ck>mm. 833. senses decide the point in dispute. (3) By witnesses, without the intervention of a jury (3 BI. Comm. 336). (4) By jury, which is that form of trial in which the facts are determined by twelve men impartially selected from the body of the county. See "Jury." (5) By the record, where an issue oi nul tiel record is joined in any action. (6) By grand assize, a peculiar method of trial allowed in writs of right. See "Grand Assize." (7) By wager of battel, which, in the old English law, was a barbarous mode of trying facts, among a rude people, founded on the supposition that heaven would always ■ interpose and give the victory to the champions of truth and innocence. This mode of trial was abolished in England as late as St. 69 Geo. III. c. 46, A. D. 1818. It never was in force in the United States. See 3 Bl. Comm. 337; 1 Hale, Hist. Com. Law, 188. See a modern case, 1 Barn. & Aid. 405. (8) By wager of law, which mode of trial has fallen into complete disuse; but, in point of law, it seems in England to be still competent in most cases to which it anciently applied. The most important and best-established of these cases is the issue of nil debet, arising in action of debt on simple contract, or the issue of non detinet, in an action of detinue. In the declaration in these actions, as in almost all others, the plaintiff concludes by offering his suit (of which the ancient meaning was followers or witnesses, though the words are now retained as mere form) to prove the truth of his claim. On the other hand, if the defendant, by a plea of nil debet or non detinet, deny the debt or detention, he may conclude by offering to establish the truth of such plea "against the plaintiff and his suit, in such manner as the court shall direct." Upon this, the court awards the wager of law (Co. Entr. 119a; Lilly, Entr. 467; 3 Chit. PI. 479), and the form of this proceeding, when so awarded is that the defendant brings into court with him eleven of his neighbors, and for himself makes oath that he does not owe the debt or detain the property.

In Practice. The examination before a competent tribunal, according to the laws of the land, of the facts put in issue in a cause, for the purpose of determining such issue. U. S. v. Curtis, 4 Mas. 232, Fed. Cas. No. 14,905. The examination of the matter of fact in issue in a cause. The decision of the issue of fact; Steph. PI. 77; Deane v. Bridge Co., 22 Or. 167, 29 Pac. 410, 15 L. R. A. 614. The final examination and decision of matter of law as well as facts for which every antecedent step is a preparation; Carpenter v. Winn, 221 U. S. 533, 31 Sup. Ct. 683, 55 L. Ed. 842. “Trial,” as used in the acts of congress of July 27, 1866, and March 2, 1867, appropriately designates a trial by the jury of an issue which will determine the facts in an action at law; and “final hearing,” in contradistinction to hearings upon interlocutory matters, the hearing of a cause upon its merits by a judge sitting in equity; Galpin v. Cntchlow, 112 Mass. 343, 17 Am. Rep. 176; Home L. Ins. Co. v. Dunn, 19 Wall. (U. S.) 214, 22 L. Ed. 68. Undoubtedly the word “trial” in the common law meant the examination and determination of the case upon the facts, and the word was usually applied to a trial by jury; “hearing” was used w r ith respect to cases in equity. The word “trial” is now used not only colloquially but by courts, with a more comprehensive signification, and it has been defined to be “the examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause for the purpose of determining such issue”; Finn v. Spagnoli, 67 Cal. 330, 7 Pac. 746; In re Chauncey, 32 Hun (N. Y.) 429, 431; Second N. Bk. of Grand Forks v. Bank, 8 N. D. 50, 76 N. W. 504; including all the steps in the case from the submission to the jury to the rendering of the judgment; Castellaw v. Blanchard, 106 Ga. 97, 31 S. E. 801; or before a judge who has jurisdiction of it; Bullard v. Kuhl, 54 Wis. 544, 11 N. W. 801 (citing Jacob’s Law Diet. Tit “Trial”). In many cases it is said to be a judicial examination of the issues in a case; Tingley v. Dolby, 13 Neb. 371, 14 N. W. 140, 148; Miller v. King, 32 App. Div. 349, 52 N. Y. Supp. 1041; or in an action; Spen- Ohio St 403, 42 N. E. 34; or of the issues between parties, whether of law or fact; Vertrees* Adm’r v. Newport News & M. V. R. Co., 95 Ky. 314, 25 S. W. 1 (and this is the expression in many state codes and statutes); and the “trial” is not concluded until finally submitted to the court, referee or jury; Mygatt v. Willcox, 35 How. Prac. (N. Y.) 410; or until the decision is reduced to writing and signed by the judge; Connolly v. Ashworth, 98 Cal. 205, 33 Pac. 60. The word has been applied to the decision of issues arising on demurrer; Alley v. Nott, 111 U. S. 472, 4 Sup. Ct. 495, 28 L. Ed. 491; Hume v. Woodruff, 26 Or. 373, 38 Pac. 191; Pratt v. Lincoln County, 61 Wis. 62, 20 N<- W. 726; Louisville, N. A. & C. R. Co. v. Reynolds, 118 Ind. 170, 20 N. E: 711; to an inquest which was said to be by a trial of issue of fact where the plaintiff alone introduced testimony; Haines v. Davis, 6 How. Pr. (N. Y.) 118; or a feigned issue out of chancery as to the amount due on a land contract; Parks v. Andrews, 56 Hun, 391, 10 N. Y. Supp. 344. “Trial” has been held not to include a decision on demurrer that the plea in abatement was bad; Winet v. Berryhill, 55 la. 411, 7 N. W. 6S1; the taking of proof before a master to dispose of a motion for an injunction pendente lite; Doughty v. W. Bradley & C. Mfg. Co., 8 Blatchf. 107, 7 Fed. Cas. No. 4,030; the hearing of a case on appeal where the object is to correct errors of the trial court; Eldridge v. Strenz, 39 N. Y. Super. Ct. 295; the granting of an allowance in a divorce case; Stewart v. Stewart, 28 Ind. App. 378, 62 N. E. 1023; a hearing before a mayor for the removal of a city official; Avery v. Studley, 74 Conn. 272, 50 Atl. 752; a question of taxation of costs of the marshal, before the United States supreme court, on a certificate of division; Bank of U. S. v. Green, 6 Pet. (U. S.) 26, S L. Ed. 307; or the presentation or determination of a motion for a new trial; Mc- Dermott v. Halleck, 65 Kan. 403, 69 Pac. 335. The precise meaning of the word “trial” has become material in the construction of statutes regulating appeal or error costs, criminal procedure, voluntary non-suits, the removal of causes and official fees. The trial was held to be used, not in its limited and restricted, but in its general, sense, including all the steps of a criminal case from its submission to the court or jury to the rendering of the judgment; Hotsenpiller v. State, 144 Ind. 9, 43 N. E. 234. In such a statute it includes as well an issue of law as an issue of fact; Redington v. Cornwell, 90 Cal. 49, 27 Pac. 40; but pleading is not a part of the trial; it does not commence until an issue of fact is joined, so that an error in overruling a demurrer is not an error in law occurring at the trial; Mechanics’ Sav. Palmer v. State, 42 Ohio St. 596; and commences at last immediately after they ar^ sworn; Wagner v. State, 42 Ohio St. 537. Within statutes authorizing extra allowances, there is no trial where no issue is joined on the pleadings; Randolph v. Foster, 3 E. D. Smith (N. Y.) 648; but there was a trial where the plaintiff voluntarily submitted to a non-suit after evidence had been taken on both sides and the summing up was begun; Allaire v. Lee, 11 N. Y. Super. Ct. 609. In a criminal case the trial does ndt include the arraignment and other preliminary proceedings before the jury is sworn; Com. v. Soderquest, 183 Mass. 199, 66 N. E. 801; Byers v. State, 105 Ala. 31, 16 South. 716; nor the holding to bail upon an examination; State v. Gerry, 68 N. H. 495, 38 Atl. 278, 38

The examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause, for the purpose of determining such issue. A trial is the judiciui examination of the issues between the parties, whether they be issues of law or of fact. Code N. Y. § 252; Code N. C. § 397. The examination of a cause, civil or criminal, before a judge who has jurisdiction over it, according to the laws of the land. See Finn v. Spagnoli, 67 Cal. 330, 7 Pac. 746; In re Chauncey, 32 Hun (N. Y.) 431; Bullard v. Kuhl, 54 Wis. 545, 11 N. W. 801; Spencer v. Thistle, 13 Neb. 229, 13 N. W. 214; State v. Brown, 63 Mo. 444; State v. Clifton, 57 Kan. 449, 46 Pac. 715; State v. Bergman, 37 Minn. 407, 34 N. W. 737; Home L. Ins. Co. v. Dunn, 19 Wall. 224, 22 L. Eld. 68; Crane v. Reeder, 28 Mich. 535, 15 Am. Rep. 223.

— Mistrial. See that title.

— New trial. A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury or court or by referees. Code Civ. Proc. Cal. § 656. A new trial is a re-examination of the issue in the same court, before another jury, after a verdict has been given. Pen. Code Cal. § 1179. A new trial is a re-examination in the same court of an issue of fact, or some part or portions thereof, after the verdict by a jury, report of a referee, or a decision by the court. Rev. Code Iowa 1880, § 2837.

— New trial paper. In English practice. A paper containing a list of causes in which rules nisi have been obtained for a new trial, or for entering a verdict in place of a nonsuit, or for entering judgment non obstante veredicto, or for otherwise varying or setting aside proceedings which bave taken place at nisi prius. These are called on for argument in the order in which they stand in the paper, on days appointed by the judges for the purpose. Brown.
—Public trial, A trial held in public, in the presence of the public, or in a place accessible and open to the attendance of the public at large, or of persons who may properly be admitted. "By this [public trial] is not meant that every person Who sees fit shall in all cases be permitted to attend criminal trials, because there are many cases where, from the character of the charge and the nature of the evidence by which it is to be supported, the motives to attend the trial, on the part of portions of the community, would be of the worst character, and where a regard to public morals and public decency would require that at least the young be excluded from hearing and witnessing the evidences of human depravity which the trial must necessarily bring to light. The requirement of a public trial is for the benefit of the accused ; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions ; and the requirement is fairly observed if, without partiality or favoritism, a reasonable proportion of the public is suffered to attend, notwithstanding that those persons whose presence could be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether." Cooley, Co.nst. Lim. 312. And see People v. Hall, 51 App. Div. 57, 64 N. Y. Supp. 433; People v. Swafford, 65 Cal. 223, 3 Pac. 809.

— Speedy trial. See that title.

— Separate trial. See Separate.

— State trial. See State.

— Trial at bar. A species of trial now seldom resorted to, excepting in cases where the matter in dispute is one of great importance and difficulty. It is a trini which takes place before all the judges at the bar of the court in Which the action is brought. Brown. See 2 Tidd, Pr. 747; Steph. Pi. 84,

— Trial at nisi prins. In practice. The ordinary kind of trial which takes place at the sittings, assizes, or circuit, before a single judge. 2 Tidd, Pr. 751, 819.

— Trial by certificate. A form of trial allowed in cases where the evidence of the person certifying was the only proper criterion of the point in dispute. Under such circumstances, the issue might be determined by the certificate alone, because, if sent to a jury, it would be conclusive upon them, and therefore their intervention was unnecessary. Tomlins.

— Trial by grand assize. a peculiar mode of trini allowed in writs of right. See Assize; Grand Assize.

— Trial by inspection or examination. a form of trial in which the judges of the court, upon the testimony of their own senses, decide the point in dispute.

— Trial by jury. A trial in which the issues of fact are to be determined by the verdict of a jury of twelve men, duly selected, impaneled, and sworn. The terms "jury" and "trial by jury" are, and for ages have been, well known in the language of the law. They were used at the adoption of the constitution, and always, it is believed, before that time, and almost always since, in a single sense. A jury for the trial of a cause was a body of twelve men, described as upright, well-qualified, and lawful men, disinterested and impartial, not of kin nor personal dependente of either of the parlies, having their homes within the jurisdictional limits of the court, drawn and selected by officers free from all hias in favor of or against either party, duly impaneled under the direction of a competent court, sworn to render a true verdict according to the law and the evidence given them, who. after hearing the parties and their evidence, and receiving the instructions of the court relative to the law involved in the trial, and deliberating, when necessary, apart from all extraneous influences, must return their nnanimous verdict upon the issue submitted to them. Ali the books of the law describe a trial jury substantially as we have stated it; and a "trial by jury" is a trial by snch a body so constituted and conducted. State v. McClear, 11 Nev. 60. And see Gunn v. Union R. Co.., 23 R. I. 289, 49 Atl. 999; State v. Harney, 168 Mo. 167, 67 S. W. 620, 57 L. R. A. 846; Capital Traction Co. v. Hof, 174 In S. 1, 19 Sup. Ct. 580, 48 L. Ed. 873; Lommen v. Minneapolis Gaslight Co., 65 Minn. 196, 68 N. W. 53, 33 L. R. A. 437, 60 Am. St. Rep. 450; People v. Dutcher, 83 N. Y. 242; Vaughn v Scade, 30 Mo. 600; Ward v. Farweil, 97 111. 612,

— Trial by proviso. A proceeding allowed where the plnintiff in an action desists from prosecuting his suit, and does not bring it to trial in convenient time. The defendant, in such case, may take out the venire facias to the sheriff, containing these words, "proviso quod," etc., i. e., provided that. If plaintiff take out any writ to that purpose, the sheriff sball summon but one jury on them bath. This is called "going to trial by proviso." Jacob, tit. "Proviso."

— Trial by the record. A form of trini resorted to where issue is taken upon a plea of nul tiel record, in which case the party asserting the existence of a reconi as pleaded is bound to produce it in court on a day assigned. If the record is forthcoming, the issue is tried by inspection and examination of it. If the record is not produced, judgment is given for his adversary. 3 BI. Comm. 330.

— Trial by wager of battel. This was a species of trial introduced into England, among other Norman customs, by William the Co.nqueror, in which the person aceused fought with his accuser, under the apprehension that Heaven would give the victory to him who was in the right. 3 Bl. Comm. 337-341.

— Trial by wager of law. In old English law. A method of trial, where the defendant, coming into court, made oath that he did not owe the claim demanded of him, and eleven of his neighbors, as compurgators, swore that they believed him to speak the truth. 3 Bl. Comm. 343. See Wager of Law.

— Trial by witnesses. The name "trini per testes" has been used for a trial without the intervention of a jury, is the only method of trial known to the civil law, and is adopted by deposition in chancery. The j'udge is thus left to form, in his own breast, his sentence upon the credit of the witnesses examined. But it is very rarely used at common law. Tomlins.

— Trial de ncrvo. A new trial or retrial had in an appellate court in which the whole case is gone into as if no trial wbatever had been had in the court below. See Karcher v. Green, 8 Houst. (Del.) 163, 32 Atl. 225; Ex parte Morales (Tex. Cr. App.) 53 S. W. 108 ; Shultz v. Lempert, 55 Tex. 277.

— Trial jury. The jury participating in the trial of a given case; or a jury summoned and impaneled for the trial of a case, and in this sense a petit jury as distinguished from a grand jury

— Trial list. A list of cases marked down for trini for any one term.

— Trial witb assessors. Admiralty actions involving nautical questions, e. a., actions of collision, are generally tried in England before a judge, with Trinity Masters sitting as assessors. Rose. Adm. 179.

In a general sense, the formal Invest'gation and decision of a matter in issue between parties, before a competent tribunal; in a stricter sense, the examination before a competent tribunal, according to the law of the land, of the facts in issue for the purpose of determining the issue; in the strictest sense, the examination and decision of an issue in fact, by a jury, under the supervision of the court' Trial at bar: a trial before all the judges at the bar of the court Trial at nisi prius: the ordinary trial which takes place at the sittings, assizes or circuit before a single judge.

That part of an action which and ends at the judgment. Anciently, which began with the medial or proof the final judgment; as trial by battel, used to mean that part of the action Trial at bar, nisi prius, by battel, ipection: see those titles.