
    Ebenezer W. Raymond vs. The Danbury & Norwalk Railroad Company.
    Upon the question as to how damages should he assessed upon a default in the United States Circuit and District Courts—Held,
    1. That the assessment of such damages by a jury is matter of practice and riot of right.
    2. That the assessment should be made according to the practice of the state courts.
    Trespass on the case ; brought to the Circuit Court of the United States for the District of Connecticut. The defendants suffered a default, and the plaintiff moved for a hearing in damages before the Jury. The motion was argued at the September Term, 1876, before Shipman, District Judge.
    
      W. It. Smith, for the plaintiff.
    
      C. C. Child, for the defendants.
   Shipman, J.

This is an action of tort to recover damages for an injury to the plaintiff, arising from the negligence of the defendants. The defendants have suffered a default, and have thereby admitted a cause of action as alleged, but not the alleged extent of the injury, and the question now before the court is as to the tribunal by which the quantum of damages is to be ascertained. The plaintiff insists that he has a constitutional right to have the questions of fact in regard to damages determined by a jury, while the defendants assert that, in accordance with the practice of the state courts in Connecticut, the damages are to be assessed by the court.

The seventh amendment to the constitution of the United States provides that “ in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.” By the first clause of the amendment, the right of trial by jury, in common law actions, was guaranteed. The right and the same right of jury trial which then existed was to remain undisturbed. In some of the state constitutions the same idea is expressed by the phrase “ shall remain inviolate.”

By the common law, at the date of the adoption of the constitution, the trial of all issues of fact must be by a jury. By issues of fact are meant questions of fact, as distinguished from questions of law, which the result of the pleadings in each case shows to .be in dispute or controversy between the parties, and a jury trial in issues of fact was the right of the litigant. In pursuance of the constitutional right guaranteed by the seventh amendment. Congress provided, in the twelfth section of the act of September 24th, 1789, that the trial of all issues of fact shall, in all suits, except those of equity and of admiralty or maritime jurisdiction, be by a jury.

But the assessment of damages upon a default, either in actions of tort or of contract, stood upon a different footing from the trial of issues of fact. In the early history of the common law the subject of the ascertainment of damages was in some confusion. The courts frequently fixed the amount of damages on a judgment by default and on demurrer. Rolle’s Abridgment, tit. Damages. And “ though the justices use to award inquest of damages, when they give judgment by default, yet they may give damages if they will.” Sedgwick on Damages, 704; Viner. Abr., Damages I. Courts had also the right of revising the amonnt of damages which had been assessed upon a writ of inquiry.

In 1765, the date of the publication of the first volume of Blackstone’s Commentaries, the practice had become settled that upon a default damages should be assessed upon a writ of inquiry by a sheriff’s jury, but “ a practice was established in the courts of King’s Bench and Common Pleas, in actions where judgment is recovered by default upon a bill of exchange, or a promissory note, to refer it to the master or prothonotary, to ascertain what is due for principal, interest and costs, whose report supersedes the necessity of a writ of inquiry.” 3 Black. Com., note on p. 397. In 1848, before the enactment of the statute of 15 and 16 Yict., in regard to the ascertainment of damages by a master in actions of contract, it is said, in Whitaker v. Harold, an action of covenant, 12 Jurist, 395, that the court of Queen’s Bench had the power to assess damages on demurrer or default without the intervention of a jury.

The assessment of damages by a jury in actions of tort was however a matter of ¡practice and not of right. Chief Justice Wilmot held in 1770, as had been previously declared in 1764, that a writ of inquiry, in an action of tort, is an inquest of office, to inform the conscience of the court, which could itself have assessed the damages, without any inquest. Beardmore v. Carrington, 2 Wils., 244; Bruce v. Rawlins, 3 Wils., 61; 2 Finlason’s Reeves’s History of English Law, 610.

In the 26th section of the act of 1789, Congress provided that, in all causes to recover the forfeiture annexed to any article of agreement, covenant, bond or other specialty, when the forfeiture, breach or non-performance shall appear by the default or confession of the defendant or upon demurrer, the court shall render judgment therein for the’plaintiff to recover so much as is due according to equity. And when the sum for which judgment should be rendered is uncertain, the same shall, if either of the parties request it, be assessed by a jury. This section is reproduced in the 961st section of the Bevised Statutes. No provision was made for assessing damages in actions of tort. By the 17th section of the same act, the United States courts were empowered to establish all necessary rules for the orderly conducting of business in said courts, provided such rules were not repugnant to the laws of the United States. It is said by Judge Washington, in Golden v. Prince, 3 Wash. C. C. R., 313, in speaking generally of the rules of practice, that the different Circuit Courts, at their first sessions, adopted the state practice as it then existed. In 1797 the Supreme Court decided in Brown v. Van Braam, 3 Dall., 344, upon a writ of error from the Circuit Court for the district of Rhode Island, that the assessment of damages after a default, in a suit upon a foreign bill of exchange, by the court instead of a jury, under the practice and laws of that state, was correct, Judge Chase observing that he concurred in the opinion of the court upon common law principles.

The practice in this state at the date of the adoption of the constitution, in regard to the assessment of damages, is easily ascertained. Judge Swift, in his System, published in 1796, says:—“Our courts possess the same power to assess damages as a jury in England, upon a writ of inquiry issued to the sheriff for that purpose. There, in these cases* the court must issue a writ to the sheriff, commanding him by twelve men to inquire into the damages and make return to the court, which process is called a writ of inquiry. The sheriff sits as judge, and there is a regular trial by twelve jurors to assess the damages. This mode of proceeding must be productive of expense and delay, and the practice of this state, introduced by our courts without the authority of a statute, of assessing the damages themselves^ without the intervention of a jury, is one of the many instances in which we have improved upon the common law of England.” 2 Swift’s System, 268. This practice of the courts was afterwards sanctioned by statute, (Revision of 1821, sect. 59, p. 50,) and has remained the law of the state ever since.

The practice of the United States courts in the different circuits has not been uniform. The more common method has been to assess damages by a jury, upon a writ of inquiry, but it is believed that the practice has conformed to the usage of the state in which the Circuit Court was held. 2 Abbott’s Practice, 50. In this district, neither the custom of calling in a marshal’s jury to assess damages, nor the assessment by a petit jury under the direction of the court, has prevailed.

The conclusion is, that the assessment of damages by a jury upon a default is matter of practice and not of right; and that the assessment should be made in this case according to the uniform practice of the state courts.

Let the damages be assessed by the court, or if the parties agree, by the clerk, as committee to find and report the facts and the amount of damages.  