Slocum v. New York Life Insurance

228 U.S. 364, 33 S. Ct. 523, 57 L. Ed. 879, 1913 U.S. LEXIS 2380

• Court: Supreme Court of the United States
• Decided: April 21, 1913
• Docket: 20
• Status: Published

Opinions

Mr. Justice Van Devanter

delivered the opinion of the court.

This was an action in the Circuit Court for the Western District of Pennsylvania on a policy,of insurance on the life of Alexander W. Slocum, The policy was for $20,000, was an ordinary life contract on the 20-year accumulation plan, was payable to the executors, administrators or assigns of the insured, became effective November 27, 1899, and called for the payment of a premium of $579.60 on each anniversary of that date. It made provision for interest-bearing loans by the company to the insured on terms stated, and also. contained the following stipulations:

“This policy is automatically non-forfeitable from date of issue, as follows:

“First. If any premium is not duly paid, and if there is tío indebtedness to the Company, this policy will be enorsed for the amount of paid-up insurance specified in the table on the second page hereof, on written request therefor within six months from the date to which premiums were duly paid. If no such request is made,-the insurance will automatically continue from said date' for $20,000 for the term specified in said table and no longer.

“Second. If any premium or interest is not duly paid, and if there is an indebtedness to the Company, this policy will be endorsed for such amount of paid-up insurance as any excess of the reserve held by the Company over such indebtedness will purchase according to the Company’s present published table of single premiums, on written request therefor within six months from the date to which premiums were duly paid. If no such request for paid-up. insurance is made, the net amount that would have been payable as a death claim on the date to which premiums were duly paid will automatically continue as term insurance from such date, for such time as said excess of the reserve will purchase according to the Company’s present' published table of single premiums for term insurance, and no longer.

“Grace in Payment of Premiums. — A grace of one month, during which the policy remains in full force, will be allowed in payment of all premiums except the first,, subject to an interest charge at. the rate of five per cent, per annum.

“General Provisions. — (1) Only the President, a Vice-President, the Actuary or. the Secretary has power in behalf of the Company to make or modify this or any contract of insurance or to extend the time for paying any premium, and the Company shall not be bound by any promise or representation heretofore or hereafter given by any person other than the above. (2) Premiums are due and payable at the Home Office, unless otherwisagreed' in writing, but may be paid to an agent producing receipts signed by one of the above-named officers and countersigned by the agent. If any premium is not paid on or before the day. when due, or within the month of grace, the liability of the Company shall be only as hereinbefore provided for such case.”

The insured died December 31, 1907, and the action was brought by his executrix. In the plaintiff’s statement of claim recovery was sought upon two grounds: First, that all premiums prior to the one of November 27, 1907, had been duiy paid; that the premium of that date had been adequately adjusted on December 27, 1907, the last day of grace, by an agreement between the insured’s wife, acting in his behalf; and a duly authorized agent, of the company, whereby the wife made, and the agent accepted, a payment of $264.20, which was to carry the policy along until May 27, 1908, and whereby the agent was to accept from the insured a “blue note” for $434.00, payable May 27, 1908, as covering the balance of the premium; and that the company had adopted and confirmed the acts of its agent in that regard; second, that, independently of the adjustment of that premium, the company on November 27, 1907, held a reserve on the policy sufficiently exceeding any indebtedness of the insured to the company to continue the policy in force, under the latter part of the automatic non-forfeiture provision before quoted, beyond the date of his death, and that in consequence of this the policy was in full force when he died. The company entered a plea of non-assumpsit and also filed an affidavit of defense denying the alleged adjustment of the premium of November 27, 1907, as also the existence of any reserve on the policy in excess of the indebtedness of the insured to the company, and otherwise adequately setting up the defenses presently to be noticed. The issues so presented were tried before the court and a jury. At the conclusion of all the evidence, the defendant requested the court tó direct a verdict in its favor, which the court declined to do, and the company excepted. A general verdict for the plaintiff, was returned, assessing the recovery at $18,224.02,- which sum was ascertained by deducting from the amount of the policy a loan of $2,360.00 from the company to the insured and $434.00, the amount of the intended blue note, and then allowing interest on the remainder from the date when proofs of death were submitted to the company to the date of the verdict. The company moved for judgment in its favor on the evidence notwithstanding the verdict, but the motion was denied, the .company excepting, and judgment was entered for the plaintiff. A bill ,of exceptions, embodying all the evidence with the rulings and exceptions, was seasonably presented and allowed, and the case was taken on writ of error to the Circuit Court of Appeals, where error was assigned on the refusal to direct a verdict for the defendant and on the denial of the motion for judgment notwithstanding the verdict. That court reversed the judgment with a direction to sustain the latter motion, on the ground that the evidence did not legally admit of the conclusion that the policy was a subsisting contract of insurance at the date of the insured’s death. 177 Fed. Rep. 842. A writ of certiorari then brought the case here.

The questions now to be considered are, first, whether the Circuit Court of Appeals erred in reversing the judgment, and, second, if it did not err in that regard, whether it should have awarded a new trial instead of directing a judgment for the defendant on the evidence notwithstanding the verdict for the plaintiff.

As a preliminary to the consideration of the first question it'may be well to repeat what this court often has said, that when, on the trial of the issues of fact in an action law before a Federal court and a jury, the evidence, with all the inferences that justifiably could be drawn from it, does not constitute a sufficient basis for £ verdict for the plaintiff or the defendant, as the case may be, so that such a verdict, if returned, would have to be set aside, the court may and should direct a verdict for the other party. Randall v. Baltimore & Ohio Railroad Co., 109 U. S. 478; Delaware &c. Railroad Co. v. Converse, 139 U. S. 469; Southern Pacific Co. v. Pool, 160 U. S. 438; Patton v. Texas & Pacific Railway Co., 179 U. S. 658; The recognized mode of invoking the application of this rule is by preferring, at the conclusion of the evidence, a request for a directed verdict, and the ruling on such a. request is subject to reexamination and approval or disapproval on writ of .error in like circumstances and in like manner as are other rulings in matter of law during the course of the trial.

The case made by the evidence, in that view of it which is most favorable to the plaintiff, was as follows:

The plaintiff’s right to recover if the policy was a subsisting contract of insurance at the date of the insured’s death, and the latter’s compliance with the terms and conditions of the policy other than the payment of the premium of November 27, 1907, were conceded. The month of grace allowed for the payment of that premium expired four days before the insured died. He had been seasonably and regularly notified of the time when the premium would fall due and of the consequences which would follow a default in its payment. But it had not been paid or adjusted, unless a. payment or adjustment was effected by the negotiations and transactions presently to be recited.

When the premium fell due the insured was indebted to the company in the sum of $2,360.00 for money theretofore borrowed under the policy, and that sum represented the full amount of the reserve, on the policy. If there had been no loan the automatic non-forfeiture provision before quoted and the reserve would have entitled the insured, if he so elected, to a paid-up insurance of $4,000.00 for the full period of his life, and in the absence of such an election would have operated to continue the policy in force for the full sum of $20,000.00 for a period of seven years and seven months, without payment of further premiums. But as the insured had borrowed the full amount of the reserve, there was no excess applicable to a continuance of the insurance in either mode. Thus the policy expired according to its own terms before the death of the insured, unless a payment or adjustment of the premium of November 27,1907, was effected in the manner already suggested:

While the policy provided that only the president, a vice-president, the actuary or the secretary of the company had power in its behalf to modify the terms of that or any other policy or to extend the time for paying any premium, the company had qualified this provision by adopting a plan of adjusting the payment of premiums whereby its agents were authorized to accept from an insured less.than the full amount in cash if accompanied by a “blue note” for the balance. Notes of this type were distributed by the company and contained stipulations upon which its consent to the adjustment was conditioned and to which the insured would necessarily assent by signing the note. The agent at Pittsburgh, to whom the earlier premiums on this policy were paid, was authorized to make adjustments conformably to this plan, but, like other agents, he could not accept a partial payment or grant an extension of time for the balance unless the blue note was given, nor, so far as appeared, had anything been done which was calculated to engender the belief that he could do so. He repeatedly had accepted payment in cash of part of a premium and extended the time for paying the remainder, but this was done only where the policy holder had given a note of the prescribed type embodying the terms on which the company’s assent depended. The practice in this regard was known to the. insured and his wife, for they had secured three or four such adjustments in. connection with this policy before 1907, the insured being required in each instance to execute such a note.

On the day before the premium of November 27, 1907, fell due, the wife of the insured, acting in his behalf, called at the agent’s office', and made inquiry respecting the easiest method of adjusting the premium, explaining at the time that the insured was short of ready money. The agerit suggested two possible methods and outlined them upon memoranda which she took away to show to the insured. The first method has no bearing here. “By the other method,” as is said in the brief for the plaintiff, “it was represented that if she [meaning the insured] paid $264*20 in cash and gave a blue-note contract for $434.00, payable in six months, the insurance would be continued for a period of six months, and if the note was paid when due, the insurance would be continued for the remainder of the year.” The aggregate of these sums represented the premium on the policy and the interest on the loan, settlement of both being essential to a continuance of the policy. On the last day of grace, December 27, 1907, the wife returned to the agent’s office with a check for $264.20, payable to her order and by her endorsed to the company. Of what then occurred she testified:.,“I gave him [the agent] the check for $264.20, and he handed me the blue note and another paper in an envelope, and he said that the note must be signed, and I must return it. I told him Mr. Slocum was ill, and it might be several days before I could send it back, and he said that would be all right, Mail it as soon as you can.’” She to.ok the blue note home with her intending to get it signed, but found" the insured too ill to give it attention. He died four days later without having signed it. The agent did not give a receipt for the $264.20, nor was one requested. In 1905 that year’s premium was adjusted by a partial payment in cash and the giving of a blue note for the balance, and when the adjustment was completed the agent gave a single receipt for both the cash and the note and in the receipt recited the terms upon which the adjustment was made, as was done in the note.

In 1906 the insured had notified the company that his postoffice address was Houston, Texas, and that fact carried matters pertaining to his policy to the company’s St. Louis agency. It was from that agency that he received the notice calling for the payment of the premium of November 27, 1907. On January 6, 1908, the agent at St. Louis, not knowing of the insured’s death, wrote to him acknowledging receipt of the check for $264.20 handed to the agent at Pittsburgh (the letter inaccurately stated the amount) and saying: “Pending the return by you of the note contract, properly signed, your remittance is held subject to your order.” The check was then deposited in a St. Louis bank to the. credit of the company, and the latter carried the amount in a suspense account awaiting directions from the insured.

Subsequently the plaintiff tendered to the company the amount for which the blue note was “to have been given, and the company tendered to the plaintiff the amount of the check, both tenders being refused.

The material portion of the agreement set forth in the proposed blue note, which was to have been signed by the insured and returned to the company’s agent, is as follows:

“This note is accepted by said Company at the request of the maker, together with One hundred forty-five and 60-100 Dollars ¹ in cash, on the following express agreement: That although no part of the premium due on the 27th day of Nov. 1907, under Policy No. 3,011,158 issued by said Company on the life of A. W. Slocum has been paid, the insurance thereunder shall be continued in force until midnight of the due date of said note; that if this note is paid on or before the date it becomes due, such payment, together with said cash, will then be accepted by said Company as payment of said premium, and all fights under said policy shall thereupon be the same as if said premium had been paid when due; that if this note is not paid on or before the day it becomes due, it shall thereupon automatically cease to be a claim against the maker, and said Company shall retain said cash as part compensation for the rights and privileges hereby granted, and all rights under said policy shall be the same as if- said cash had not been paid nor this agreement made.”

The Circuit Court of Appeals was of opinion that the evidence conclusively established that there was no excess of reserve on the policy applicable to a continuance of the insurance after the premium of November 27, 1907, fell due, and we fully concur in that conclusion. Indeed, its correctness is practically conceded by counsel' for the plaintiff. That court also was of opinion that the evidenoe afforded no basis for a finding that that premium was either paid or adjusted. The accuracy of that conclusion is challenged, but we are constrained to give it our approval for the following reasons:

1. The policy plainly provided for the payment of the stipulated premium annually within the month of grace following the due day, and as plainly excluded any idea that payment could be made in installments distributed through the year. Concededly, there was no payment .of the whole of the premium in question, and as a partial payment was not within the contemplation of the policy, nothing was gained by handing to the agent the check for $264.20, unless what he did in that connection operated as a waiver of full and timely payment.

2. One who deals with an agent, knowing that, he iclothed with a circumscribed authority and that his act transcends his powers, cannot hold his principal; and this is true whether the agent is a general or a special one, for a principal may limit the authority of one as well as of the other.

3. Under the terms of the policy, as qualified by the practice of the company, the agent was without authority to waive full and timely payment of the premium, save as he could adjust the payment conformably to the blue-note plan. His authority turned upon the giving of the note, which was a matter óf real substance, and not of mere form, as is shown by the terms of the note, before quoted. See White v. New York Life Insurance Co., 200 Massachusetts, 510. Without it he could neither accept a partial payment nor extend the time for paying the balance. No note was. given, and so no waiver resulted. from his acts. The insured and his wife could not reasonably have understood it otherwise,, for they knew the terms of the policy and were familiar with the qualifying practice.

4. There was no evidence that the company itself treated the check as a partial payment or otherwise ratified the agent’s acts. Indeed, the only permissible inference from the evidence was to the contrary.

We are accordingly of opinion that the evidence did not admit of a finding that the policy was in force at the time of the insured’s death, and. therefore that the Circuit Court should have granted the company’s request that a verdict in its favor be directed. As that request was denied,' the Circuit Court of Appeals did not err in reversing the judgment.

It becomes necessary, therefore, to consider whether that court should have directed a new trial instead of a judgment on the evidence contrary to the verdict. The latter direction was given conformably to a statute of Pennsylvania, the State in which the Circuit Court was held, and to the practice thereunder in the courts of the Staté. The statute reads as follows:

“That whenever, upon the trial of any issue, a point requesting binding instructions has been reserved or declined, the party presenting the point may, within the time prescribed .for moving for a new trial, or within sucother or further time as the court Shall allow, move the court to have all the evidence taken upon the trial duly certified and filed so as to become part of the record, and for judgment non obstante veredicto upon the whole record; whereupon it shall be the duty of the court, if it does, not grant a new trial, to so certify the evidence, and to enter such judgment as should have.been entered upon that evidence, at the same time granting to the party against whom the.decision is rendered an exception to the action of the court in that regard. From the judgment thus entered either party may . appeal to the Supreme or Superior Court, as in other cases; which shall review the action of the court below, and enter such judgment as shall be warranted by the evidence taken in that court.” Penn. Laws 1905, p. 286, c. 198.

The real question is, whether in the direction given by the Circuit Court of Appeals there was añ infraction of the Seventh Amendment to the Constitution of the United States, which declares.:

“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 reexamined in any Court of the United States, than according to the rules of the common law.”

That what was done may be clearly in mind it is well to repeat that, while on. the trial in the Circuit Court the jury returned a general verdict for the plaintiff, the Circuit Court of Appeals on an examination of the evidence concluded that it was not sufficient to sustain the verdict, and on that ground directed a judgment for the defendant. In other words, the Circuit Court of Appeals directed a judgment for one party when the verdict was for the other, and did this on the theory, not that the judgment wa§ required by the state of the pleadings, but that it was warranted by the evidence. It will be perceived, therefore, that the court, although practically setting the verdict aside, did not order a new.trial, but assumed to pass finally upon the issues of fact presented by the pleadings and to diréct a judgment accordingly. If this was an infraction of the Seventh Amendment it matters not that it was in conformity with the state statute, or. with the practice thereunder in the courts of the State, for neither the statute nor the practice could be followed in opposition to the Amendment, which, although not applicable to proceedings in the courts of the several States, is controlling in the Federal courts. . .

The Constitution of the United States, as originally adopted, conferred upon this court, by Article III, § 2, “appellate jurisdiction, both as to law and fact, with such exceptions, and'under such regulations as the Congress shall, make;” but this and the absence of any provision respecting the mode of trial in civil action^ were so generally regarded as endangering the right of trial by jury as existing at common law and evoked so much criticism on that ground that the first Congress proposed to the legislatures of the.several States the Seventh Amendment, which was promptly ratified. 1 Stat. 21, 97; Story on the Constitution, §§ 1763, 1768.

The adjudged cases dealing- with the origin, scope and effect of the Amendment are numerous and so comprehensive that little room for original discussion remains. A reference to some of them will show its true and settled meaning and point the way to its right application here.

In United States v. Wonson, 1 Gall. 5, 20; 28. Fed. Cas. 745, 750, a case decided in 1812 and often cited with approval by this court, it was said by Mr. Justice Story, after quoting the words-of the Amendment: “Beyond all question, the common law here alluded to is not the common law of any individual State, (for it probably differs in all), but it is the common law of England, the grand reservoir of all our jurisprudence. . . . Now, according to the rules of the common law the facts once tried by a jury are never reexamined, unless a new trial is granted in the discretion of the court, before which the suit is depending, for good cause shown; .or unless the judgment of such court is reversed by a superior tribunal, on a writ of error, and a venire facias de novo is awarded. This is the invariable usage settled by the decisions of ages.”

Ip Parsons v. Bedford, 3 Pet. 433, decided in 1830, the same learned justice, speaking for this court, said (p. 446): “The trial by jury is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy. . . . One of the strongest objections originally taken against the Constitution of the United Stated, was the want of an express provision securing the right of trial by jury in civil cases. As soon as the Constitution- was adopted, this right was secured by the Seventh Amendment of the Constitution proposed by Congress, and which received an assent of the people so general as to establish its importance as a fundamental guarantee of the rights and liberties of the people.” And then coming to the clause, “apd no fact tried by a jury shall be otherwise reexamined in any court of the United States,.than according to the rules of the common law,” he continued (pp. 447, 448): “This is a prohibition to the. courts of the United States to reexamine any facts tried by a jury in any other manner. The only modes known to the common law to reexamine such facts, are the granting of a new trial by the court where the issue was tried, or to which the record was properly returnable, or the award of a venire facias de novo, by an appellate court, for some error of law which intervened in the proceedings.”

In Walker v. New Mexico &c. Railroad Co., 165 U. S. 593, 596, decided in 1897, where the Amendment was again under consideration, it was said by this court, speaking through Mr. Justice Brewer: “Its aim is not to preserve mere matters of form and procedure but substance of right. This requires that questions of fact in common law actions shall be settled by a jury, and that the court shall not assume directly or indirectly to take from the jury.or to itself such prerogative. . . . Now a general verdict embodies both the law and the facts. The jury, taking the law as given by the court, apply that law to the facts as they find them to be and express their conclusions in- the verdict. The power of the court to -grant a new trial if in its judgment the jury have misinterpreted the instructions as to the rules of law or misapplied them, is unquestioned, as also when it appears that there was no real evidence in support of any essential fact. These things .obtained at the common law-; they do not trespass upon the prerogative of the jury to determine all questions of fact.

In Capital Traction Co. v. Hof, 174 U. S. 1, 13, decided in 1899, the subject was much considered, and, following a careful review of the prior decisions, it was said by Mr. Justice Gray, who spoke for the court: “It must therefore be taken as established, by virtue of the Seventh Amendment of the Constitution, that either party to an action at law (as distinguished from suits in equity or in admiralty) in a court of the United States, where the value in controversy exceeds twenty dollars, has the right to a trial by jupy; that, when a trial by jury has beén had- in an action at law, in a court either of the United States or of a State,, the facts there tried, and decided cannot be reexamined in any court of the United States, otherwise than according to. the rules of the common law of England; that by-the rulés of that law, no other mode of reexamination is . allowed than upon a new trial, either granted by thé court in which the first trial was had or to which the record was returnable, or ordered by an appellate court for error in law; and therefore that, unless á new trial has been granted in one of those two ways, facts once tried by a jury cannot be tried anew, by a jury or otherwise, in any court of the United States.”

These decisions make it plain,- first, that the action of the Circuit Court of Appeals in setting aside the verdict and assuming- to pass upon the issues of fact and to direct a judgment accordingly must be tested by the rules of the common law; second, that, while under those rules that court could set aside the verdict for error of law in the proceedings in the Circuit Court and order a new trial, it- could not itself determine the facts; and, third, that when the verdict was set aside there arose the same right of trial by jury as in the first instance. How, then, can it be said that there was not an infraction of the Seventh Amendment? When the verdict was set aside the issues of fact were left .undetermined, and until they should be determined anew no judgment on the merits could be- given. The new determination, according to the rules of the common law, could be had only through a new trial, with the same right to a jury as before. Disregarding those rules, the Circuit Court of Appeals itself determined the facts, without a new trial. Thus, it assumed a power it did not possess and cut off the plaintiff’s right to have the facts settled by the verdict of a jury.

While it is true, as before said, that the evidence produced at the trial was pot sufficient to sustain a verdict for the plaintiff and that the Circuit Court erred in refusing so to instruct the jury, this does not militate against the conclusion just' stated. According to the rules of the common law, such an error, like other errors of law affecting a verdict, could be corrected on writ of error only by ordering a new trial. In no other way could an objectionable verdict be avoided and full effect given to the right of trial by jury as then known and practiced. And this procedure was regarded as of real value, because, in addition to fully recognizing that right, it afforded an opportunity for adducing further evidence rightly conducing to a solution of the issues.. In the posture of the case at bar the plaintiff is entitled to that opportunity, and for anything that appears in the record it may enable her to supply omissions in her own evidence, or to show inaccuracies in that of the defendant, which will rightly entitle her to a verdict and judgment in tier favor.

We do not overlook the fact that at common law there were’ two well-recognized instances in which the verdict could be disregarded and the case disposed of without a new trial. One was where the defendant’s plea confessed the plaintiff’s cause of action and set up matter in avoidance which, even if true, was insufficient in law to constitute a bar or defense; and the other was where the plaintiff’s pleading, even if its allegations were true, disclosed no right of recovery. If in either instance a verdict was taken, the court nevertheless could make such disposition of the case as was required by the state of the pleadings, and this because the issues settled by the yerdict were wholly immaterial. In the first instance the court’s action was invoked by a motion for judgment non obstante veredicto, and in the latter by a motion to arrest judgment on the verdict. Thus we find it is said in Smith’s Action at Law (12th ed., p. 147), a recognized authority on common law procedure: “A motion for judgment non obstante veredicto is one which is only made by a plaintiff. . . . It is given when, upon an examination of the whole pleadings,’ ft appears to the court that the defendant has admitted himself to- be in the wrong, and has taken issue on some point, which, though decided in his favour by the jury, still does .not at all better his case. A motion ‘ in arrest of judgment’ is the exact reyerse of that for judgment non obstante veredicto. The applicant in the one case insists that the plaintiff is entitled to the judgment of the court, although a verdict has been found against him.* In the other case, that he is not entitled to the judgment of the court, although a verdict’ has been delivered in his favour. Like the motion for judgment non obstante veredicto, that in arrest of judgment must always be grounded upon something apparent on the face of the pleadings.” To the same effect are 1 Chitty on Pleading, 687; Stephen on Pleading, 96-98; Rand v. Vaughan, 1 Bing. N. C. 767; Pim v. Grazebrook, 2 C. B. 429, 444; Schermerhorn v. Schermerhorn, 5 Wend, 513; Bellows v. Shannon, 2 Hill, 86; McFerran v. McFerran, 69 Indiana, 29, 32; Lewis v. Foard, 112 N. Car. 402; Manning v. City of Orleans, 42 Nebraska, 712; McCoy v. Jones, 61 Oh. St. 119, 129. In Bond v. Dustin, 112 U. S. 604, 608, and Van Stone v. Stillwell & Bierce Mfg. Co., 142 U. S. 128, 135, this court, recognizing that this was the extent of the common law practice) held that a motion in arrest of judgment could not be sustained for an insufficiency in the evidence, but only for a defect apparent on the face of the record proper. Thus, it will be perceived that the rules of the common law, permitting a judgment non obstante veredicto and the arrest of judgment on a verdict, did not embrace cases like the present, but only those in which the pleadings presented no material issue requiring a trial or verdict.

In the trial by jury, the right to which is secured by the Seventh Amendment,. both the court and the jury are essential factors. To the former is committed a power of direction and superintendepce, and to the latter the ultimate determination of the issues of fact. . Only through the cooperation of the two, each acting within its appropriate sphere, can the constitutional right be satisfied. And so, to dispense with either or to permit one to disregard the province of the other is to impinge on that right.

This was plainly recognized in Barney v. Schmeider, 9 Wall. 248, decided in 1869. That, was an action in assumpsit, in which the defendant pleaded the general issue. The trial in the Circuit Court was before a jury, and the evidence consisted of the testimony taken a few days before on another trial. This testimony was voluminous and was put in with the consent of the parties and the approbation of the court. But it was not read to the jury, because the court regarded it as necessarily requiring a verdict for the plaintiff. In a charge briefly-referring to it and explaining why it was not read, the court instructed the jury that their verdict should be for the plaintiff, and the defendant excepted. Such a verdict was returned and judgment was given on it. This court reversed the judgment, and Mr. Justice Miller, delivering the opinion, referred to the constitutional right to a trial by jury and said, inter alia (pp. 251, 252):

“As the defendant in this case did not waive his right to have the facts tried by a jury, it was the duty of the court to submit such facts to the jury that was sworn to try them. It is needless to say that this was not done. The statement is clear that the case was decided upon the testimony taken on a former trial, and not read before this jury, because the court had heard it in the first case, and did not deem it necessary to be heard by the jury in this case.

“It is possible to have a jury trial in which the plaintiff, having failed to offer any evidence at all, or any competent evidence, the jury finds for the defendant for that very reason: And in such case it is strictly correct, if the plaintiff does not take a non-suit, for the court to instruct the jury to find for the defendant.

“But we have never before heard of a case in which the jury were permitted, much less instructed, to find a verdict for the plaintiff on evidencé of which they knew nothing except what is detailed to them in the charge of the. court. It is obvious that if such a verdict can be supported here, when the very act of the court in doing this is excepted to and relied on as error, the trial by jury may be preserved in name, but will be destroyed in its essential value; and become nothing but the machinery through which, the court exercises the functions of a jury without its responsibility.

“It is insisted with much ingenuity that in this case there was no disputed fact for the jury to pass upon, and that the only issue in the case being one of law, it was proper for the court' to dispose of it. If this were so, the instruction of the court might be sustained, provided the undisputed facts necessary to sustain the verdict had been submitted to the jury.”

A case much in point is Hodges v. Easton, 106 U. S. 408, decided in 1882. It was an action in trover, wherein the allegations of the complaint were all put in issue by the answer. , On a trial by jury in the Circuit Court a special verdict was returned consisting of responses to interrogatories specially propounded by the court but not embracing all the issues presented by the pleadings. Following the reception of the verdict the plaintiffs moved for, judgment in their favor, and the defendants for a new trial on the groünd that the verdict did not dispose of'all the -issues.- After hearing these motions- the court refused to grant a new trial, and^gave judgment for the plaintiffs on “the special verdict of the jury/and facts conceded or not disputed upon the trial.” . When the case came here the defendants complained that their constitutional right to a trial by jury had been violated, and, the plaintiffs insisted that the Circuit Court had but conformed to the local practice sanctioned by numerous decisions of the Supreme Court of the State where the Circuit Court was held, and that it therefore should be presumed, nothing appearing to the contrary, that the special verdict and the -facts conceded or not disputed upon the trial disposed of all the issues.presented by the pleadings and justified the action of the Circuit Court. Responding to these contentions this court said, speaking through Mr. Justice Harlan (pp. 411, 412):

“It is not, necessary, in this opinion, to enter upon an examination of those decisions,- or to consider how far the local law controls in determining either the essential requisites of a special verdict in the courts of the United States, or the conditions under which a judgment will be presumed to have been supported by facts other than those set out in a special verdict. The difficulty we have arises from other considerations. The record discloses that the jury determined a part of the facts, while other facts, upon which the final judgment was rested, were found by the court to have been conceded or not disputed. . . . We then have a case at law, which the jury were sworn to try, determined, as to certain material facts, by the court alone, without a waiver of jury trial as to such facts. It was the province of the jury to pass upon the issues of fact, and the right of the defendants to have this done was secured by the Constitution of the United States. They might have waived that right, but it could not be taken away by the court. Upon the trial, if all the facts .essential to a recovery were undisputed, or if they so conclusively established the cause of action as to have authorized the withdrawal of the case altogether' from the jury, by a peremptory instruction to find for. plaintiffs, .it would still have been necessary that the jury-make its verdict, albeit in conformity with the order of the court. The court could not, consistently with the constitutional right of trial by jury, submit a part of the facts to the jury, and, itself,. determine the remainder without a waiver by the (defendants of a verdict by the jury. . . . It has beeW often said by this court that the trial by jury is a fundamental guarantee of the rights and liberties of the people. Consequently, .every reasonable presumption should be indulged against its waiver. For these reasons the'judgment below must be reversed.”

Even more in point is Baylis v. Travellers’ Insurance Co., 113 U. S. 316, decided in 1885. It was an action on a policy of accident insurance, and on the trial before a jury in the Circuit Court the parties differed as to whether the plaintiff’s evidence was sufficient to sustain a verdict in her favor, no evidence being presented by the defendant. The court directed a verdict for the plaintiff, subject to its opinion on the sufficiency of the evidence, and the jury conformed to that direction. On further consideration, and construing the evidence in a manner deemed most favorable to the. plaintiff,, the court ruled that it was insufficient, because admitting of but one conclusion, namely, that the insured’s death resulted from a cause not covered by the policy. Judgment was then given for the defendant notwithstanding the verdict, and the plaintiff brought the case here. The judgment was reversed, with directions to grant a new trial, for reasons stated by. Mr. Justice Matthews as follows (pp. 320, 321).

‘ If, after the plaintiff’s case had been closed, the court had directed a verdict for the defendant on'the ground that the evidence, with all inferences that the jury could justifiably draw from -it, was insufficient to support a verdict for the plaintiff, so that such a verdict, if returned, must be set aside, it would have followed a practice sanctioned by repeated decisions of this court. Randall v. Baltimore & Ohio Railroad, 109 U. S. 478, and cases there cited. And, in .that event, the plaintiff, having duly excepted to the ruling in a bill of exceptions, setting out all the evidence, upon a writ of error, would have been entitled to the judgment Of this court, whether, as a matter of law, the ruling against him was erroneous.

“Or, if in the present case, a verdict having been taken, for the plaintiff by direction of the court, subject to its opinion whether the evidence was sufficient to sustain- it, the court had subsequently granted a motion on behalf of the defendant for a new trial, and set aside the verdict, on the ground of the insufficiency of the evidence, it would have followed a common practice, in respect to which error could not have been alleged, or it might, with propriety, have reserved the question, what judgment should be .rendered, and in favor of what party, upon an agreed statement of facts, and afterwards rendered judgment Upon its conclusions of law. But, without a waiver of the right of trial by jury, by consent of parties, the court errs if it substitutes itself for the jury, and, passing upon the effect of the evidence, finds the facts involved in the-issue and renders judgment thereon.

“This was what was done in the present case. It may be that the conclusions of fact reached and stated by the court are correct, and, when properly ascertained, that they require such a judgment as was rendered. That is a question not before us. The plaintiff in error complains that he was entitled to have the evidence submitted to the jury, and to the benefit of such conclusions of fact as it might justifiably have drawn; a right he demanded and did not waive; and that he has been deprived of it, by the act of the court, in entering a judgment against him on its own view of the evidence, without the intervention of a jury. In this particular, we think error has been.well assigned.

“The right of trial by jury in.the courts of the United States is expressly secured by the. Seventh Article of Amendment to the Constitution, and Congress has, by statute, provided for the trial of issues of fact in civil cases by the court without- the intervention of a jury, only when the parties waive their right to a jury by a stipulation in writing. Rev. Stat., §§ 648, 649.

“This constitutional right this court has always guarded with jealousy. Elmore v. Grymes, 1 Pet. 469; De Wolf v. Rabaud, 1 Pet. 476; Castle v. Bullard, 23 How. 172; Hodges v. Easton, 106 U. S. 408.”

In principle, these cases are decisive of the question arising on the motion for judgment on the evidence notwithstanding the verdict. They show that it is the province of the jury to hear the evidence and by their verdict to settle the' issues of fact, no matter what the state of the evidence, and-that while it is the province of the court to aid the jury in the right discharge of their duty, even to the extent of directing their verdict where the insufficiency or conclusive character of the evidence warrants 'such a direction, the court cannot dispense with a verdict,, or disregard one when given, and itself pass on the issues of fact. In other words, the constitutional guaranty operates to require that the issues be settled by the verdict of a jury, unless the right thereto be waived. It is not a question of whether the facts are difficult or easy of Ascertainment, but of the tribunal charged with their ascertainment, and this, we have seen, consists of the court and jury, unless.there be a waiver of the latter.

But the suggestion is made that sufficient warrant for setting Aside the verdict and rendering judgment on the evidence without a new trial is to be found in the rules of the common law in respect of demurrers to evidence and nonsuits. It therefore will be well to see what those rules were and whether they support the suggestion.

The leading English cases dealing with demurrers to evidence as employed at common law are Middleton v. Baker, Cro. Eliz. 752; Wright v. Pindar, Aleyn, 18; S. C., Style, 34, and Gibson v. Hunter, 2 H. Bla. 187, 205. The last, which adhered to the principle of the other two, was much considered in the House of Lords, and the opinion delivered by Lord Chief Justice Eyre,, who spoke for all the judges, was to the following effect: (a) A demurrer to the evidence is a proceeding whereby the court, whose province it is to answer all questions of law, is called upon to declare what the law is “upon the facts shewn in evidence,” and, “in the nature of the thing, the question of law to arise out of the fact, cannot arise until the fact iascertained.” (b) Such a demurrer is permissible only when proposed by one party, joined in by the other and allowed by the court. It must contain an express and distinct admission by the demurrant of every fact, which the evidence of his adversary conduces to prove, else he cannot insist that the latter join in the demurrer; and the admission, to be effective to that end, must be of the.facts, and not merely the evidence from which their existence is inferable, (c) When the matter of fact is so ascertained and shown in the demurrer, the case is deemed ripe for judgment in matter of law, and the jury properly may be discharged from giving a verdict.

This statement of the true office and use of a demurrer to evidence was both accepted and applied by this court in Fowle v. Alexandria, 11 Wheat. 320, decided in 1826. There the court below had sustained such a demurrer, which merely set forth and admitted the evidence as introduced at the trial, as well the testimony of witnesses as written documents. We excerpt the following from the opinion, which was by Mr. Justice Story (pp. 321, 322, 323):

“There is no joinder in demurrer on the record, which is probably a mere defect in the. transcript, as the court proceeded to give judgment upon, the demurrer in favor of the defendants. Without a joinder in demurrer, no such judgment could be properly entered; and such joinder ought not to have been required or permitted while there was any matter of fact in controversy between the parties. . . . The true and proper object of such a demurrer is to refer to the court the law arising from facts. It supposes, therefore, the facts to be already admitted and ascertained, and that nothing remains but for the court to apply the law to those facts. . . . Indeed,.. the case made for a demurrer to evidence, is, in many respects, like a special verdict. It is to state facts, and not merely testimony. which may conduce to prove them. It is to admit whatever the jury may reasonably infer from the evidence, and not merely the circumstances which form a ground-.of presumption. .... Upon examination of the case at bar, it will be at once perceived that the demurrer to evidence, tried by the principles already stated, is fatally ‘ defective. The defendants have de-' murred, not to. facts, but to evidence of facts; not to positive admissions, but to mere circumstances of presumption introduced on the other side.”

And that this was not a new doctrine in this court is shown in Young v. Black, 7 Cranch, 565, 568, decided thirteen years before, where, in declining to disturb the action of the court below in refusing to compel a joinder in a demurrer to the evidence, it was said: “The party demurring is bound to admit as true, not only all the facts proved by the evidence introduced by the other party, but also all the facts which that evidence legally may conduce to prove. It follows that it [the demurrer] ought never to be admitted where the party demurring refuses to admit the facts 'which the other side attempts to prove; and it would be as little justifiable where he offers contradictory evidence, or attempts to establish inconsistent propositions.”

True, in United States Bank v. Smith, 11 Wheat. 171, and Columbian Insurance Co. v. Catlett, 12 Wheat. 383, 389, the rule that the demurrer should set forth the facts rather than the evidence from which they are inferable was not strictly enforced, but in each of those cases the opposite party voluntarily joined¹ in the demurrer, thereby consenting that the case be withdrawn from the jury and submitted to the court on the evidence embodied in the demurrer; so, they are without bearing here, save as the opinions contain some observations making strongly for the views expressed in Fowle v. Alexandria. Thus, in United States Bank v. Smith, the demurrer was criticised as substituting the court in the place of the jury, whichwhile true of the demurrer there, would not be true of one rightly drafted and allowed; and in Columbian Insurance Co. v. Catlett, it was said: “The plaintiff was not bound to have joined in the demurrer without the defendant’s having distinctly admitted, upon the record, every fact which the evidence introduced on his behalf conduced to prove; and that when the joinder was made, without insisting on this preliminary, the court is at liberty to draw the same inferences in favor of the plaintiff, which the jury might have drawn.”

Pawling v. United States, 4 Cranch, 219, and Chinoweth v. Haskell, 3 Pet. 92, are also cases in which, as shown by the record, there was a voluntary joinder in the demurrer. In the former the record, after setting forth the demurrer, shows this order: “Wherefore let the jury aforesaid be discharged by the court here, by the assent of the parties, from giving any verdict.”

The doctrine stated in Gibson v. Hunter, and recognized by this court in Young v. Black and Fowle v. Alexandria, has been applied not only in the lower Federal courts but in several of the state courts. Pickel v. Isgrigg, 6 Fed. Rep. 676; Johnson v. United States, 13 Fed. Cas. 868, 872; Miller v. Baltimore & Ohio R. Co., 17 Fed. Cas. 304; Patty v. Edelin, 18 Fed. Cas. 1344; Copeland v. New England Insurance Co., 22 Pick. 135; Golden v. Knowles, 120 Massachusetts, 336; Dormady v. State Bank, 2 Scam. 236; Ware v. McQuillan, 54 Mississippi, 703; Ingram v. Jacksonville Street R. Co., 43 Florida, 324; Bass v. Rublee, 76 Vermont, 395, 401; Chapize v. Bane, 1 Bibb, 612; Sawyer v. Fitts, 2 Port. 9.

At common law, if on a demurrer to the evidence judgment was given for one party when it. should have been for the other, the error was corrected in the appellate tribunal by directing the proper judgment, and this because the error was confined to the judgment, and did not reach the facts as ascertained and shown in the demurrer. But when the reversal was for error in allowing the demurrer, the latter necessarily went .for naught, and, as there remained no ascertained facts on which to base a judgment, a new trial was deemed essential. Thus in Gibson v. Hunter, supra, one of the questions was, whether, considering the state of the evidence and the admissions in the demurrer, the plaintiff was obliged to join in it. The question was resolved in the negative, and, as this eliminated the demurrer on which judgment had been given in the court of King’s Bench, the judgment of reversal was accompanied by a direction for a new trial. And in Fowle v. Alexandria, supra, where this court ruled that the. demurrer ought not to have been allowed, the judgment rendered thereon was reversed with a like direction. So, in the present case when the verdict was set aside there remained no ascertained facts on which a judgment might be rested, and that made a new trial necessary.

Enough has been said to make it plain, as we think, that there was nothing in the nature or operation of the demurrer to evidence at common, law which has any tendency to show that issues of fact tried by a jury could be reexamined otherwise than on a new trial.

We come, then, to the other branch of the suggestion. A nonsuit at common law was a dismissal of the plaintiff’s action without an adjudication, other than the imposition of costs, and constituted no bar to another action for the same cause. Originally granted where the .plaintiff made default when his presence was required, or otherwise failed to proceed in due course, it came to be applied on the trial when, although actually present, he chose, in view of the state of his evidence, not to risk an adverse verdict. But unless he assented to being nonsuited on the evidence it was essential that a verdict be taken, even although it was certain to be against him. In other words, such a nonsuit was. always voluntary, and never compulsory. Mr. Starkie says of this proceeding: “The doctrine of. nonsuits is founded on the ancient practice, according to which the plaintiff was bound by himself or his attorney to appear at the trial, prosecute his suit, and hear the-verdict; and in case, after being called, he made default, he was decreed to have abandoned his suit, and was nonsuited. This ancient practice has long been used as the medium by which the court intimates an opinion that the plaintiff has not made out a sufficient case for the consideration of the jury. The plaintiff is therefore formally called, although by himself or his counsel he has actually appeared in court. In conformity, however, with the old practice, being called, he may if he choose appear, and if he do, the case must go to the jury.” Starkie Ev. 806, 4th London ed. In the course of a similar statement, Mr. Tidd says: “The plaintiff in no case is compellable to be nonsuited; and therefore, if he insist upon the matter being left to the jury, they must give in their verdict, which is general or special.” 2 Tidd’s Pr. 796, 1807 ed. Mr. Lilly describes the office and. nature of the proceeding as follows: “Non-suit is when a man brings a personal action, and doth not prosecute it with effect, or else upon the trial refuses to stand a verdict; then he becomes nonsuited, which is recorded by the court, and the defendant recovers his costs against him.” “The court cannot compel the plaintiff to appear and stand a verdict; but if the plaintiff appears, or his counsel or attorney appears for him, he cannot be afterwards nonsuit, but the jury must, deliver, in their verdict.” 2 Lil. Reg. 230, 231, 1719 ed, And Mr. Chitty says: “A nonsuit must always be voluntary, i. e. by the plaintiff’s counsel submitting to the same or not appearing, and in no case can it be adverse or without implied consent.” 3 Chitty’s Gen. Pr. 910. To the same, effect are 3 Bl. Com. 376, 377; Dewar v. Purday, 3 Ad. & E. 166, 170; Corsar v. Reed, 21 L. J. R. (N. S.) Q. B. 18; Stancliffe v. Clark, 21 L. J. R. (N. S.) Exch. 129; Minchin v. Clement, 1 B. & Ald. 252. In the last case the court, on ruling that a verdict, theretofore given for the plaintiff could not be sustained, was requested to order a nonsuit instead of a new trial; but the request was denied, Lord Ellenborough, C. J., observing: “It is in the plaintiff’s option to be nonsuited or not.”

The question whether a compulsory nonsuit could be ordered on the evidence was presented to this court in 1828 in Elmore v. Grymes, 1 Pet. 469, a case in which the Circuit Court, conceiving that the plaintiff’s evidence was insufficient to sustain a verdict in his favor, had non-suited him without his assent. Speaking for all the members of this court but one, Chief Justice Marshall disposed of the question by saying (p. 471): “The Circuit Court had no authority to order a peremptory nonsuit, against the will of the plaintiff. He had a right by law to a trial by a jury, and to have had the case submitted to them. He might agree to a nonsuit; but if he did not so choose, the court could not compel him to submit to it.” The decision in that case was approved and reaffirmed in D’Wolf v. Rabaud, 1 Pet. 476, 497; Crane v. Morris, 6 Pet. 698, 609, where Mr. Justice Story said the point was not longer “open for controversy;” Silsby v. Foote, 14 How. 218, 222, and Castle v. Bullard, 23 How. 172, 183.

It being thus certain that the common law rules in respect of nonsuits recognized that the plaintiff had a right to have the verdict' of the jury taken, which he could waive or assert at his option, it follows that those rules give no support to the suggestion before mentioned.

In what has been said we would not be understood as implying that a motion for a compulsory nonsuit and a demurrer to the evidence are equivalents of a request for a directed verdict, for while they are sometimes spoken of as analogous to it, this only means that for the purpose of each the evidence must be taken most strongly in favor of the opposite party. In other respects they are essentially unlike. A motion for a compulsory nonsuit looks to an arrest of the trial and a dismissal of the cause, leaving the merits undetermined and the plaintiff free to sue again, while a request for a directed verdict looks to á completion of the trial and an adjudication of the merits through the accustomed cooperation of the court and jury. Full recognition of this, as also of its bearing here, is found in Oscanyan v. Arms Co., 103 U. S. 261, 264, where it is said: “The difference in the two modes is rather a matter of form than of substance, except in the case of a nonsuit a new action may be brought, whereas in the case of a verdict the action is ended, unless a new trial be granted either upon motion or upon appeal.”

Equally pronounced is the difference between a demurrer to the evidence and a request for a directed verdict; for if on such a demurrer, properly joined in and allowed, judgment is not given for the demurrant, it is-necessarily given for his opponent, while if a request for a directed verdict is denied the party making the request may yet receive the jury’s verdict and a judgment thereon. And when a judgment on a demurrer to the evidence is reversed because given for the wrong party, the error is corrected by ordering á judgment for the other party, whereas when a judgment is reversed for error in granting or refusing a request to direct a verdict, judgment is not ordered for either party, but a new trial is awarded. This was so at common law, and it has been the uniform course of action in this court from the beginning. These distinctions are so substantial as to show that the suggested analogy is far from complete.

We come now to two decisions in this court which, although not involving the real question here, namely, the power of a Federal court to reexamine, otherwise than according to the rules of the common law, issues of fact which have been determined by the verdict of a jury, yet have su^h an indirect bearing thereon that they ought not to be passed unnoticed.

In Central Transportation Co. v. Pullman's Palace Car Co., 139 U. S. 24, 38, a case coming here from the eastern district of Pennsylvania, it appeared that on a trial to the Circuit Court and a jury the court, following a statute of the State, had entered a compulsory nonsuit which, according to the state law, terminated that suit but was not an adjudication of the merits or a bar .to another suit on the same cause of action. This court, deeming it important to notice the question of its own jurisdiction, proceeded to inquire whether such a judgment was subject to review on writ of error, and in the course of the inquiry expressed the opinion that the state statute established a practice or mode of procedure which the conformity provisions of the Federal statutes required the Circuit Court to follow. But it was stated that the question was “not mentioned by counsel in argument,” and, as the opinion contains no reference to the right of trial by jury or to the Seventh Amendment, it well may be that the bearing of the latter on the applicability of the state statute to the trial in the Circuit Court was not actually considered.

The other case is Coughran v. Bigelow, 164 U. S. 301, which originated in a territorial court, where the Seventh Amendment was applicable. On a trial by jury a compulsory nonsuit was entered according to a local statute, for an insufficiency in the plaintiff’s evidence, without prejudice to his right to sue again, and when the case came here the judgment was affirmed, it being directly held that granting such a nonsuit does not infringe the constitutional right.

Of these two cases it is to be observed: (1) Although they hold, one by implication and the other expressly, that the constitutional right of trial by jury is not invaded by a statute authorizing the court to enter a compulsory nonsuit against a plaintiff for an insufficiency in his evidence, when he is not thereby prevented from suing again on the same cause of action, they neither hold nor suggest that, consistently with that right, the court can refuse to take the verdict of the jury, or disregard it when taken, and enter a binding judgment on the eyidence. (2) Assuming, without so deciding, that they should be' accepted and followed in respect of the particular matter to which they áre addressed, that is, the granting of an involuntary nonsuit which leaves the merits unadjudicated, they afford no justification whatever for overruling or departing from the repeated decisions of this court, reaching back to the beginning of the last century, wherein it uniformly has been held (a) that we must look to the common law for a definition of the nature and extent of the right of trial by jury which the Constitution declares “shall be preserved;” (b) that the right so preserved is the right to have the issues of fact presented by the pleadings tried by a jury of twelve, under the direction and superintendence of the court; (c) that the rendition of a verdict is of the substance of the right, because to dispense with a verdict is to eliminate the jury which is no less a part of the tribunal charged with the trial than is the court, and (d) that when the issues have been so tried and a verdict rendered they cannot be reexamined otherwise than on a new trial granted by the court in which the first trial was had or ordered by the appellate court for some error of law affecting the verdict.

Coughran v. Bigelow recognizes that this is the true conception of trial by jury, for it is there said (p. 307), “if the evidence be not sufficient to warrant a recovery, it is the duty of the court to instruct the jury accordingly, and, if the jury disregard such instruction, to set aside the verdict.” Why instruct the jury in such a case if they have no office to perform? Why contemplate that they may not conform to the instruction if. it be immaterial whether they do or not? And why take their verdict or have any concern about it if none is required? The answers are given in prior decisions, which hold, as before shown, that in such a case it is essential “that the jury make its verdict, albeit in conformity with the order of the court,” and that if there be a verdict “the action is ended, unless a new trial be granted either upon motion or upon appeal.”

Whether in a given case there is a right to a trial by-jury is to be determined by an inspection of the pleadings and not by an examination of the evidence. If the pleadings present material issues of fact, either party is entitled to have them tried to the court and a jury, and this is as true of a second trial as of the first. Whether the evidence is sufficient to sustain a verdict for one party or the other is quite another matter and does not affect the mode of trial, but only the duty of the court in instructing the jury and of the latter in giving their verdict. The issues to which the jury must respond are those presented by the pleadings, and this whether the evidence be disputed or undisputed and whether it be ample or meagre. To speak, therefore, of the evidence as determinative of the right to a trial by jury is to confuse the test of that right with a different test applicable only in determining- whether a particular verdict should be directed.

In the present case certain well-defined issues of fact were presented by the pleadings, which the plaintiff, as also the defendant, was entitled by the Constitution to have tried to the court and a jury. Such a trial was had and resulted in a general verdict resolving all the issues in the plaintiff’s favor. That verdict operated, under the Constitution, to prevent a reexamination of the issues save on a new trial granted by the trial court in the exercise of its discretion or ordered by the appellate court for error of law. At the trial the defendant requested that a verdict in its favor be directed, and had the court indicated its purpose to do that, it would have been open to the plaintiff, under the then prevailing practice, to take a voluntary nonsuit, which would, have enabled her to make a fuller and better presentation of her case, if the facts permitted, at another trial in a new suit. But the defendant’s request being denied and a verdict being returned for the plaintiff, she recovered a judgment. That judgment the Circuit Court of Appeals reversed, and rightly so, because the defendant’s request, in the state of the evidence, ought, as matter of law, to have been granted. The reversal operated to set aside the verdict and to put the issues at large, as they were before it was given. But, instead of ordering a new trial, as was required at common law, the Circuit Court of Appeals itself reexamined the issues, resolved them in favor of the defendant, and directed judgment accordingly. This we hold could not be done' consistently with the Seventh Amendment, which not' only preserves the common law right of trial by jury, but expressly forbids that issues of fact settled by such a trial shall be reexamined otherwise than “according to the rules of the common law.”

To the suggestion that in so holding we are but adhering to a mere rule of procedure at common law there is a twofold answer: First, the terms of the Amendment and the circumstances of its adoption unmistakably show that one of its purposes was to require adherence to that rule, which in long years of practice had come to be regarded as essential to the full realization of the right of trial by jury; and, second, the right to a new trial in a case such as this, on the vacation of a favorable verdict secured from a jury, is a matter of substance and not of mere form, for it gives opportunity, as before indicated, to present evidence which may not have been available or known before, and also to expose any error or untruth in the opposing evidence. As is said in Blackstone’s Commentaries, vol. 3, p. 391: “A new trial is a rehearing of the cause before another jury. . . . The parties come better informed, the counsel better prepared, the law is more fully understood, the judge is more master- of the subject; and nothing is now tried but the real merits of the case.”

The judgment of the Circuit Court of Appeals is accordingly modified by eliminating the direction to eniér judgment for the defendant notwithstanding the verdict, and by substituting a direction for a new trial.

1 The remaining portion of the cheek represented interest on the loan made under the policy.

1 In United States Bank v. Smith the joinder is shown in the record, although not mentioned in the opinion. It also is shown in the report of the decision of the lower, court. 1 Fed. Cas. 733.