SNYdee, Jud&e:
Civil action commenced before a justice of Taylor county, September 26, 1885, by W. L. Hickman v. Baltimore & Ohio Railroad Company, to recover damages for a trespass. [297]*297The summons was duly served, and the defendant appeared, and, by consent of the parties, the case was twice continued, the last time to the twenty second October, 1885. The plaintiif appeared at the time thus fixed, and, after waiting one hour, he stated the grounds of his complaint which the justice recorded as follows: “ That on September 18, 1885, at Grafton, in Taylor county, he was a passenger on the railroad cars of the defendant, which is a common carrier for hire, and that while on the said cars as such passenger, the defendant by its servants, to-wit, one Thomas Shipley and others, whose names are to the plaintiif unknown, unlawfully, wantonly, wickedly and in a cruel manner did assault, beat, wound and ill-treat the plaintiff, to the great damage of the plaintiff, to wit, in the sum of $300.” The defendant did not enter any plea of denial or defence. The plaintiff demanded a jury, which was called, and sworn by ; the justice “to diligently inquire and truly ascertain the' damages, if any, which the plaintiff has sustained by reason of the wrongful acts of the defendant, The Baltimore & Ohio Railroad Company, as mentioned in the said complaint, and a true verdict render according to the evidence.” The case was tried, and the jury found a verdict for the plaintiif for $250.00 damages. The justice entered judgment for that sum and the costs against the defendant. On the day after the judgment was rendered the defendant filed its bond with the justice, and was allowed an appeal to the Circuit Court of said county. On January 21,1886, the appeal was docketed in the Circuit Court, and upon the same day upon the motion of the plaintiff that court dismissed the appeal at the defendant’s costs. It is from this action of the Circuit Court that the defendant obtained the present writ of error.
In 1880, the thirteenth section of article 3 of the Constitution of this State was amended so as to read as follows: “ In suits at common law, where the value in controversy exceeds twenty dollars, exclusive of interest and costs, the right of trial by jury, if required by either party, shall be preserved; and in such suit, before a justice, a jury may consist of six persons. No fact tried by a jury shall be otherwise re-examined in any case than according to the [298]*298rules of the common law.” In Barlow v. Daniels, 25 W. Va. 512, this Court decided that this constitutional provision embraces and governs cases tried by a jury of six persons before a justice, and that such cases can not be re-tried de novo by the Circuit Court. In reference to this xirovision the Court, in the opinion delivered in that case, says : “ This is a positive guarantee, an imx>erative command, that in all cases at common law, — that is, all cases which are not cases in equity or admiralty, according to the established practice in England at the time of our separation from her, — where the value in controversy is over $20.00, the trial by jury shall be preserved, and that in no such case can any party,' if he requires. it, be deprived of the right of such trial. The court in which such trial is to be had is not fixed, but the right is made inviolate, and, consequently, in whatever tribunal such case may be, the right must exist in that tribunal. This sacred and absolute right can not be taken away or impaired, either by the form of the proceeding, or by the constitution of the tribunal in which said suit may be brought. It is the right, and not the xiroceeding, that is guaranteed by the Constitution. It is, therefore, entirely immaterial whether the justices’ court-sin this State are courts of record or not; nor does it matter thai, according to the common law, they had no civil jurisdiction, and no error lay to them. The right pirotected is entirely distinct from the form of the proceeding in which it. is asserted.” 25 W. Va. 518, 519. It would seem that this decision is conclusive of the case at bar. This is certainly a common-law case, and as it is decided that in “ no such case can any party, if be requires it, be deprived of the right of such trial,” — that is, trial by jury, — the plaintiff was entitled to a trial by jury, in this case, and having required a jury, and had the case tried by jury the case can not again be tried dé novo by appeal in the Circuit Court. But it is sought to distinguish this case from that of Barlow v. Daniels upon various grounds. It is asserted that the right of trial by jury, secured by the Constitution is not a right to have a jury, whenever the plaintiff brings a suit at common law, but only a right to have a jury, when' the value in controversy exceeds $20.00.
[299]*299. It is claimed that because the defendant failed to pleadJ or deny the plaintiff’s cause of action, there was no contro-j yersy in this case; that the word ■“ controversy ” implies not; only a suit, but a suit in which something is affirmed upon the one side and denied upon the other, in which there is a dispute, — an issue to be tried. If this be conceded to be the( true interpretation of the word “ controversy ” in the Constitution, then by applying the same interpretation to the statute, under which the defendant seeks to maintain its appeal in the Circuit Court,, the right of appeal does not exist in this case. The statute declares that in all cases an : appeal shall lie from the judgment of a justice to the Cir-, cuit Court, “ when the amount in controversy on the trial ; before the justice exceeds fifteen dollars.” Section 163, ch. 50, Amend. Code, p. 416. It therefore inevitably follows; that if there was nothing in controversy on the trial before! the justice, the defendant was not entitled to an appeal to! the Circuit Court.
It is also insisted that, unless there is to be a trial before', the justice, the Constitution does not give the party a right , to a jury. The word “trial,” it is claimed, implies an issue, • the decision of the issue in fact is called a trial, citing 1 Stepli. PI. 76, 77, and 3 Bl. Comm. 330. This position, as I ■shall endeavor to prove by the authorities, is either in evasion of the question presented in this case or a misapprehension of the law. The claim of the plaintiff' in error is that, unless there was an issue to be tried, the plaintiff according to the rules of the common law was in no case entitled to a trial by jury; and if a jury was called to inform the conscience of the court in such cases, as was sometimes done, the verdict was in no respect binding upon the court and might be wholly ignored and treated as a nullity. According to the common law, when there was an interlocutory judgment, whereby the right of the plaintiff was established, but the quantum of damages sustained by him was not ascertained, the plaintiff was entitled to the intervention of a jury to ascertain his damages. This is the case, where the defendant suffers judgment to go against him by default or nihil elicit, that is, where he puts in no plea at all to the plaintiff’s declaration; or by non sum informatics., [300]*300when the defendant’s attorney declares he has no instructions to say anything in answer to the plaintiff or in defence of his client. This is a species of judgment by default. If these, or any of them, happen in actions where the specific thing sued for is recovered, as in actions of debt for a sum certain, the judgment is absolutely complete.
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SNYdee, Jud&e:
Civil action commenced before a justice of Taylor county, September 26, 1885, by W. L. Hickman v. Baltimore & Ohio Railroad Company, to recover damages for a trespass. [297]*297The summons was duly served, and the defendant appeared, and, by consent of the parties, the case was twice continued, the last time to the twenty second October, 1885. The plaintiif appeared at the time thus fixed, and, after waiting one hour, he stated the grounds of his complaint which the justice recorded as follows: “ That on September 18, 1885, at Grafton, in Taylor county, he was a passenger on the railroad cars of the defendant, which is a common carrier for hire, and that while on the said cars as such passenger, the defendant by its servants, to-wit, one Thomas Shipley and others, whose names are to the plaintiif unknown, unlawfully, wantonly, wickedly and in a cruel manner did assault, beat, wound and ill-treat the plaintiff, to the great damage of the plaintiff, to wit, in the sum of $300.” The defendant did not enter any plea of denial or defence. The plaintiff demanded a jury, which was called, and sworn by ; the justice “to diligently inquire and truly ascertain the' damages, if any, which the plaintiff has sustained by reason of the wrongful acts of the defendant, The Baltimore & Ohio Railroad Company, as mentioned in the said complaint, and a true verdict render according to the evidence.” The case was tried, and the jury found a verdict for the plaintiif for $250.00 damages. The justice entered judgment for that sum and the costs against the defendant. On the day after the judgment was rendered the defendant filed its bond with the justice, and was allowed an appeal to the Circuit Court of said county. On January 21,1886, the appeal was docketed in the Circuit Court, and upon the same day upon the motion of the plaintiff that court dismissed the appeal at the defendant’s costs. It is from this action of the Circuit Court that the defendant obtained the present writ of error.
In 1880, the thirteenth section of article 3 of the Constitution of this State was amended so as to read as follows: “ In suits at common law, where the value in controversy exceeds twenty dollars, exclusive of interest and costs, the right of trial by jury, if required by either party, shall be preserved; and in such suit, before a justice, a jury may consist of six persons. No fact tried by a jury shall be otherwise re-examined in any case than according to the [298]*298rules of the common law.” In Barlow v. Daniels, 25 W. Va. 512, this Court decided that this constitutional provision embraces and governs cases tried by a jury of six persons before a justice, and that such cases can not be re-tried de novo by the Circuit Court. In reference to this xirovision the Court, in the opinion delivered in that case, says : “ This is a positive guarantee, an imx>erative command, that in all cases at common law, — that is, all cases which are not cases in equity or admiralty, according to the established practice in England at the time of our separation from her, — where the value in controversy is over $20.00, the trial by jury shall be preserved, and that in no such case can any party,' if he requires. it, be deprived of the right of such trial. The court in which such trial is to be had is not fixed, but the right is made inviolate, and, consequently, in whatever tribunal such case may be, the right must exist in that tribunal. This sacred and absolute right can not be taken away or impaired, either by the form of the proceeding, or by the constitution of the tribunal in which said suit may be brought. It is the right, and not the xiroceeding, that is guaranteed by the Constitution. It is, therefore, entirely immaterial whether the justices’ court-sin this State are courts of record or not; nor does it matter thai, according to the common law, they had no civil jurisdiction, and no error lay to them. The right pirotected is entirely distinct from the form of the proceeding in which it. is asserted.” 25 W. Va. 518, 519. It would seem that this decision is conclusive of the case at bar. This is certainly a common-law case, and as it is decided that in “ no such case can any party, if be requires it, be deprived of the right of such trial,” — that is, trial by jury, — the plaintiff was entitled to a trial by jury, in this case, and having required a jury, and had the case tried by jury the case can not again be tried dé novo by appeal in the Circuit Court. But it is sought to distinguish this case from that of Barlow v. Daniels upon various grounds. It is asserted that the right of trial by jury, secured by the Constitution is not a right to have a jury, whenever the plaintiff brings a suit at common law, but only a right to have a jury, when' the value in controversy exceeds $20.00.
[299]*299. It is claimed that because the defendant failed to pleadJ or deny the plaintiff’s cause of action, there was no contro-j yersy in this case; that the word ■“ controversy ” implies not; only a suit, but a suit in which something is affirmed upon the one side and denied upon the other, in which there is a dispute, — an issue to be tried. If this be conceded to be the( true interpretation of the word “ controversy ” in the Constitution, then by applying the same interpretation to the statute, under which the defendant seeks to maintain its appeal in the Circuit Court,, the right of appeal does not exist in this case. The statute declares that in all cases an : appeal shall lie from the judgment of a justice to the Cir-, cuit Court, “ when the amount in controversy on the trial ; before the justice exceeds fifteen dollars.” Section 163, ch. 50, Amend. Code, p. 416. It therefore inevitably follows; that if there was nothing in controversy on the trial before! the justice, the defendant was not entitled to an appeal to! the Circuit Court.
It is also insisted that, unless there is to be a trial before', the justice, the Constitution does not give the party a right , to a jury. The word “trial,” it is claimed, implies an issue, • the decision of the issue in fact is called a trial, citing 1 Stepli. PI. 76, 77, and 3 Bl. Comm. 330. This position, as I ■shall endeavor to prove by the authorities, is either in evasion of the question presented in this case or a misapprehension of the law. The claim of the plaintiff' in error is that, unless there was an issue to be tried, the plaintiff according to the rules of the common law was in no case entitled to a trial by jury; and if a jury was called to inform the conscience of the court in such cases, as was sometimes done, the verdict was in no respect binding upon the court and might be wholly ignored and treated as a nullity. According to the common law, when there was an interlocutory judgment, whereby the right of the plaintiff was established, but the quantum of damages sustained by him was not ascertained, the plaintiff was entitled to the intervention of a jury to ascertain his damages. This is the case, where the defendant suffers judgment to go against him by default or nihil elicit, that is, where he puts in no plea at all to the plaintiff’s declaration; or by non sum informatics., [300]*300when the defendant’s attorney declares he has no instructions to say anything in answer to the plaintiff or in defence of his client. This is a species of judgment by default. If these, or any of them, happen in actions where the specific thing sued for is recovered, as in actions of debt for a sum certain, the judgment is absolutely complete. But where damages are to be recovered, a jury must be called in to assess them, unless the defendant, to save charges, will confess the whole damages laid in the declaration; otherwise, the entry of the judgment is “that the plaintiff ought to recover his damages, but because the court knows not what damages the said plaintiff hath sustained, therefore the sheriff is commanded that by the oaths of twelve honest and lawful men he inquire into said damages, and return such inquisition into court.” This process is called a writ of inquiry, in the execution of which the sheriff sits as judge, and tries by a jury, subject to nearly the same law and conditions as the trial by jury at nisi prius, what damages the plaintiff has really sustained; and when their verdict is given, which must assess some damages, the sheriff returns the inquisition,.which is entered upon the roll in manner of a postea, and thereupon it is considered that the plaintiff do recover the exact sum of damages so assessed. 3 Bl. Comm. 397, 393; Steph. Pl. 133, 134; Tidd. Pr. 295-297; Brill v. Neele, 1 Chit. 619; 18 E. C. L. 180; 4 Minor Inst. pt. 1, (602,) 648. Some of the old English authorities seem to hold that the return of the inquest or the writ of inquiry merely informs the conscience of the court, which might, if it chose to do so, in all cases assess the damages itself, and thereupon give final judgment. Beardmore v. Carrington, 2 Wils. 244; Bruce v. Rawlins, 3 Wils. 61. The doctrine announced in those two cases was merely obiter and incidental ; it was not involved in the questions decided.
But if is .unnecessary for the purposes of this case to dispute the doctrine thus announced. If we admit that a common-law court has a conscience, which may be enlightened, a rather heretical admission, it must be something of the same character as, and certainly no more scrupulous or inflexible than the conscience of a court of chancery. Under the practice in a court of chancery the chancellor may, in cer[301]*301tain cases,' direct an issue to be tried by a jury to enlighten his conscience. But when in a proper case such issue is directed, the verdict returned in response thereto is as binding upon the court as a verdict in any other case. It can not disregard it or arbitrarily set it aside. In Nease v. Capehart 15 W. Va. 300, this Court, following the law as settled in Yirginia and elsewhere, decided, that “the object in directing the issue is to satisfy the conscience of the chancellor, but that conscience must be satisfied with the verdict of the jury upon an issue properly directed, where no errors have been committed during the trial thereof, either by the court or by the jury, to the prejudice of either party.” Carter v. Campbell, Gilmer 159; Lee v. Boak, 11 Gratt. 182; Fitzhugh v. Fitzhugh, Id. 210; Henry v. Davis, 7 W. Va. 715.
“The right of trial by jury,” which the Constitution declares “ shall be preserved,” must be understood to be the common-law right, as settled and existing in this State in 1880, the time at which the amendment under consideration was adopted by the people. This being so, it is not very important to know what that right was claimed to be in England in 1764, when the cases in Wilson’s reports, above cited, were decided. Referring to some of the Yirginia cases, on which our practice is founded, we find that it has long been the settled law of that State in all cases at law sounding in damages, that a plaintiff, where the defendant failed to appear or plead, could not obtain a final judgment without the intervention of a jury. In Metcalf v. Battaile, Gilmer 191, where the action was debt against the maker and indorser of a note, the defendant did not appear, and the inferior court gave judgment against him for the debt and interest. The appellate court reversed this judgment, stating as a reason therefor, that “neither the interest nor a final judgment for the principal sum could be given upon the note without the intervention of a jury.”
In James River, etc., Co. v. Lee, 16 Gratt. 424, the syllabus is as follows : “An office-judgment in an action of ejectment does not become final without the intervention of a court or jury; but there ought in every case to be an order for an inquiry of damages.” The court in its opinion in that case after reviewing a number of Yirginia cases says: “ These cases [302]*302clearly show, that under the Code of 1819 the award of a writ of inquiry was necessary in every case of an office-judgment against a defendant, except the case of an action of debt upon instruments of writing for the payment of an ascertained sum of money absolutely and unconditionally.”
“An inquiry of damages is, in general, requisite in all cases where the amount of the demand, and the defendant’s liability to pay it, are not ascertained (at least prima facie) by his own written acknowledgment, or something equivalent thereto. * * * Thus an order or writ of inquiry is necessary in all actions of ejectment, and for all torts.” 4 Minor Inst. (602,) 648. Prof. Minor, after stating how the writ of inquiry was formerly executed in England, which is in the manner heretofore stated, says: “ With us no writ issues, but the order is executed in court, generally by a jury, although if neither party desire a juiy, it is made the duty of the court to ascertain the damages, and from what time interest shall be computed, and to give judgment for such damages and interest.” 4 Minor Inst. (602,) 649. Such is now our practice, and was the law in this State at the time our Constitution was adopted.
Our Constitution, as will be seen, declares in express terms' that “ the right of trial by jury, if required by either party, shall be preserved.” This right, in nearly the same language as that employed in the Constitution, and used in the common law as it existed in this State at the time our Constitution -was adopted, is enforced by our statute. It provides that “ either party to a civil action before a justice, when the value in controversy, or the damages claimed, exceed twenty dollars, or the possession of real estate is in controversy, shall be entitled under the regulations herein prescribed to a trial by six jurors, if demanded.” Section 72, ch. 50, Amend. Code, p. 398. 'It wall be observed that the right to a jury trial is given by this statute, not only in cases where there is a controversy, but in all civil actions when damages are claimed. The.language used is mandatory and unqualified. It does not say the right shall exist only in cases where both parties appear and make up an issue, but it gives the right in all cases, when demanded by either party.
If, however, notwithstanding what vrehave already shown, it is still insisted that an issue or denial on behalf of the de[303]*303fendant of the plaintiff’s cause of action, is indispensable to entitle the plaintiff to trial by jury, the statute itself interposes such denial and makes up an issue in all cases where the defendant fails to appear. It declares: “When a defendant does not appear, the plaintiff can not recover without proving his case.” Section 68, ch. 50, Code. This statute pleads the general issue for the defendant, and puts the plaintiff in precisely the same situation that he would be in, if such plea had been put in by the defendant himself. It presents both an issue and a controversy, which places the whole burden of proving his case upon the plaintiff.
But it is suggested that the second sentence of this section 68 of the statute, which provides that “the justice, if the process has been served on the defendant, shall in such case proceed to hear the allegations and evidence of the plaintiff, and render judgment as the right shall appear,” makes it the duty of the justice to determine such case without the intervention of a jury. This, it seems to me, is a very narrow and unauthorized construction. Statutes in pari materia must be reconciled by construing them together as a whole. Therefore, in connection with this section, we must read section 72 of the same statute, which declares in general and unqualified terms that “either party to a civil action before a justice * * * shall be entitled * * * to a trial by six jurors, if demanded.” Taking these provisions of the statute together, the first simply means that it shall be the duty of the justice to hear the case, if neither party demands a jury. There are no negative words used to exclude this construction. The Constitution also declares, as we have seen, that “the right of trial by jury, if required by either party, shall be preserved.” This language is unqualified and necessarily includes all civil cases. If, therefore, we adopt the construction claimed for the plaintiff in error, the provision in section 68 will not only be inconsistent with section 72, but in conflict with the express command of the Constitution. The Legislature has no authority to impose limitations or restriction upon rights expressly guaranteed by the organic law; consequently the effect oí' yielding to the interpretation claimed by the plaintiff in error would be to declare the statute unconstitutional, a thing we are not at [304]*304liberty to do, unless the conflict is entirely irreconcilable. Cooley Const. Lim. 163.
In Railroad Co. v. Morris, the Supreme Court of Texas held that a statute of that State which provided for a jury for defendants in cases where judgment is rendered by default, but. made" no provision for a jury for plaintiffs in such cases, could not deprive the plaintiff of the right to a trial by jury in such cases, because its bill of rights (section 15) “ preserves to all parties the common-law right of trial by jury.” The court, in its opinion in that case, says: “We are of the opinion, however, that under the course of the common law, where a judgment was rendered by default, and the cause of action was not liquidated, a jury was always called to assess the damages. If this be so, the right is preserved by the fifteenth section of our bill of rights, and can not be infringed by any act of the Legislature. In a very, numerous class of cases, the amount of damages is the important question to be determined, and the one in which the plaintiffs haye the most interest in a trial by jury.” 3 S. W. Rep. 457, 462. In Pratte v. Corl, 9 Mo. 163, the Supreme Court of Missouri decided that, “ on a judgment by default, the court can not assess the damages, unless the suit be founded on an instrument in writing by which the demand is ascertained.” This was an appeal from a justice’s court. See, also, Swearingen v. Knox, 10 Mo. 31.
It necessarily results from what has preceded that according to the common law, ¿s recognized and settled in this State, there can be no final judgment by default, or otherwise, in the absence of a writ of inquiry, in any action at law in the Circuit Court, or before a justice, when the value in controversy exceeds $20.00, where the action is for damages, or where the sum which the plaintiff is entitled to recover is not definitely ascertainable from the contract sued on, or the confession of the defendant, and the right, of either party, if he demands it, to have such writ executed by a jury, is guaranteed by our Constitution, This right does not depend upon the condition of the pleadings, or the conduct of the adverse party. It is a "right which may be invoked by either party, whatever may be the wishes or the actions of the opposite party.
[305]*305A number of decisions in Virginia and this State have been referred to for the purpose of showing that without an issue there can not, in contemplation of law, be a trial by jury. Among these cases are the following: Stevens v. Taliaferro, 1 Wash. 155; Snyder v. Burke, 4 Rand. 161; Rowans v. Givens, 10 Gratt. 250; Railroad Co. v. Faulkner, 4 W. Va. 180; Ruffner v. Hill, 21 W. Va. 159; and Brown v. Cunningham, 23 W. Va. 109. All these cases involve the same point, and simply hold that when the parties have appeared and commenced to plead they must perfect their pleading and arrive at an issue before proceeding to the trial. In all of them there was a failure to make up the issue, and the defect was so radical that it was not cured by the statute of jeofails■ Yet in each case, while there was in fact no issue, the jury was sworn to try the issue. The court, therefore, held that there was a mistrial, irpon the ground that the jury were improperly sworn to try the issue or issues, when there was in fact no issue. The judgments were not reversed merely because the cases were tried by a jury. The result would have been the same if the cases had been tried by the court in lieu of a jury. In fact, in one of the cases above relied on, Railroad Co. v. Faulkner, the Court- decided “if the intervention of a jury is waived, and the evidence is heard by the court, and judgment rendered without issue having been joined, it is as equally erroneous as if the case had been tried by a jury.”
None of those cases have any application to the questions presented in the case at bar. In this case the jury were not sworn to try the issue, but they were sworn to ascertain the damages of the plaintiff, the usual oath in executing writs of inquiry. There was no appearance by the defendant to the action in this case, and no attempt to try any issue, as was the fact in all of the above mentioned cases. The case here was one of pure damages for a tort, an assault and battery, a case peculiarly suited to a trial' by jury. It would have .clearly been error if the justice had refused a jury upon the demand of the plaintiff, and consequently it was not error, much less a nullity, to allow a trial by jury. And the case having been thus properly tried by a jury, and a judgment rendered on their verdict, the Gu> [306]*306cuit Court, according to the decision of this Court in Barlow v. Daniels, 25 W. Va. 512, had no authority to try the case de novo-, or to entertain an appeal from said judgment.
The judgment of the Circuit Court was therefore right, and must be affirmed.