tested on the ground that it was an indignity to the injured party, but the doctrine seems now to be well settled that the court may in its discretion compel him to submit to a reasonable and proper examination by disinterested physicians.(*) § 1310. Approximate evidence. -*The application of the rules which we have thus examined, in regard to the proof necessary to establish a claim for damages, often renders it difficult, if not impossible, to arrive with precise accuracy at the object of the inquiry. But justice is after all but an approximate science, and its ends are not to be defeated by a failure of strict and mathematical proof. The following language of Mr. Justice Story is full of good sense, and susceptible of frequent and wide application : "It is said that it is difficult and indeed impracticable, to ascertain its true and exact value, when thrown overboard. There may be difficulty, and perhaps an impossibility, to ascertain its exact and minute value, for we have no means of weighing it in scales, or fixing its positive price. But the same difficulty occurs in many other cases of insurance; as in cases of injuries to sails, or rigging, or spars, by tempest, or by cutting them away in cases of jettison; and yet no one doubts that they must be contributed for according to their value, ascertained by a jury, in the exercise of a sound discretion, upon proper evidence. Suppose that fruit is insured, and the vessel has a long passage, in which, by ordinary waste and decay, it must suffer some deterioration, and then a storm occurs, in which it suffers other positive damage and injury, or there is a jettison thereof; how are we to ascertain what diminution is to be attributed to natural waste and decay, and what to the perils of the seas? or what was its true value at the time of the jettison? There can be no positive and absolute certainty. The (*) Schroeder v. Chicago, R. I. & P. Ry. Co., 47 Ia. 375; Atchison, T. & S. F. R.R. Co. v. Thul, 29 Kas. 466; Walsh v. Sayre, 52 How. Pr. 334; White v. Milwaukee C. Ry. Co., 61 Wis. 536. most that can be done, is to ascertain, by the exercise of a sound judgment, what, under all the circumstances, may reasonably be attributed to one cause, and what to the other. Absolute certainty in cases of this sort is unattainable. All that we can arrive at is by an approximation thereto; and yet no man ever doubted that such a loss must be paid for if it is covered by the policy." ** 1 ' Rogers v. Mechanics' Ins. Co., I Story 603, 609. CHAPTER XLIV. COURT AND JURY. § 1311. Relative power of judge and | § 1318. Exemplary damages-Aggra jury. 1312. Analogies of Roman jurisprudence. 1313. Formulæ. 1314. Changes wrought by the Empire. 1315. Origin and development of Anglo-Saxon judicial procedure. 1316. Former indefinite separation between province of court and of jury. 1317. Present separation of functions. vation and mitigation. 1319. Modifications-Setting aside verdict. 1320. Excessive damages - Power of court. 1321. What damages are excessive. 1322. Practice. 1323. Wrong measure of damages 1324. Successive verdicts. act. 1326. Inadequate damages. 1327. Modes of computing damages allowed the jury. * 1311. Relative power of judge and jury. — As the final decision of every case involving an issue of fact is pronounced by the jury in giving their verdict, and as that verdict also expresses the amount of compensation which the party in fault is to make, it is plain that, unless the court retain to itself some control over the action of the jury, their power over the subject of remuneration would be practically unlimited. We have, then, yet to see what remedy is provided if the jury disregard the rules laid down for their government; and this necessarily brings us to a consideration of the relative powers of the judge and the jury. § 1312. Analogies of Roman jurisprudence.-One of the most marked peculiarities of the Anglo-American system of jurisprudence, perhaps its most striking feature, is that division of power by which the decision of questions of law is given to the court, and that of questions of fact to the jury. It is an error to suppose that this division. is altogether peculiar to our system, or that it is exclusively of English origin. The recent labors of the German scholars, assisted by the discovery of Gaius, in 1816, have disclosed the true nature of the procedure by the formula in the republican period of the Roman jurisprudence; and the analogies that it furnishes on the present branch of our subject are too striking to be overlooked. The despotism of Augustus and his successors introduced changes into the administration of justice analogous to those which it wrought in the general framework of the imperial government. Its peculiar characteristics were centralization and despotism; it established in all branches of the system a gradation of ranks, deriving their existence from and dependent upon the will of the emperor alone, and it destroyed every vestige of popular action. The first and most important of these changes in the machinery of the law was by abolishing the judices or jurors, to make the judges absolute masters of the whole cause, subject only to the right of appeal; which, in probably all cases, might carry the suitor before the Cæsar himself; and this led directly to the adoption of written and secret instead of oral and public discussion. Thus was produced the system which, in its general outline, ruled continental Europe almost exclusively till the adoption of the Code Napoleon. But the plan on which justice was administered at Rome in the time of Cicero, perhaps the most truly great period of its development, was very different. The Romans during their republican epoch were too jealous of power to give to the judiciary an uncontrolled authority over questions both of law and fact. The judicial functions were divided, as with us, by an analogous and in some cases by an identical line. The suit was instituted before a magistrate, usually the prætor; and the proceedings before him were termed in jure. Here the cause of action was stated, the defense set up, and the issue whether of law or of fact formed. In other words, the pleadings were put in. To this issue was then joined the instructions proper for its trial, and the issue and instructions together were termed the formula. A judex or referee was then appointed. This was called datio judicis. The cause was then turned over to him; and he decided the question submitted to him, according to the instructions contained in the formula. The proceedings before him were termed in judicio. 1313. Formulæ.-The formula succeeded the old legis actiones, which, by their technical severity, had become odious. These forms were abolished, and the formula introduced, by the Lex Æbutia, the precise date of which is uncertain, but the better opinion would seem to be that it was passed early in the seventh century of the city, or not long before the period of Cicero.' The formula were of two kinds, according as they turned on questions of law or questions of fact, formula in jus conceptæ and formulæ in factum conceptæ. A single instance of the latter kind will sufficiently exhibit their character: Judex esto; si paret A. Agerium apua N. Negidium mensam argenteam deposuisse, eamque dolo malo N. Negidii A. Agerio redditam non esse, quanti ea res erit tantam pecuniam judex N. Negidium A. Agerio condemnato; si non paret, absolve. Which may be rendered thus: Let this cause be referred to —. If it shall 1 Gaius by Heff, cap. vii, p. 23. |