Foster v. Morse

• Decision Date: 02 March 1882
• Citation: 132 Mass. 354
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Chauncey Foster & another v. H. H. Morse

132 Mass. 354

Chauncey Foster & another v. H. H. Morse

Supreme Court of Massachusetts

March 2, 1882

Suffolk.

Exceptions overruled.

E. W Sanborn, for the defendant.

G. F Williams, for the plaintiffs.

Morton C. J. Lord Field & C. Allen JJ., absent.

OPINION

Morton, C. J.

The only question in this case is as to the constitutionality of the statutes providing in effect that in civil actions a party shall not be entitled to a trial by jury unless he files within the time prescribed by the statutes a notice that he desires such trial. St. 1874, c. 248, § 1. St. 1875, c. 212, § 1. ^[*]

The defendant contends that these provisions are in violation of the fifteenth article of the Declaration of Rights, which provides that "in all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been other ways used and practised, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners' wages, the Legislature shall hereafter find it necessary to alter it."

The purpose of the Declaration of Rights was to announce great and fundamental principles, to govern the action of those who make and those who administer the law, rather than to establish precise and positive rules of action. It has uniformly been held that this and the similar provision in the twelfth article of the Declaration of Rights are intended to secure a benefit or right to a party to a suit, which he may avail himself of or waive at his election; and that the Legislature, under the power given it by the Constitution to make "all manner of wholesome and reasonable orders, laws, statutes and ordinances, directions and instructions," not repugnant to the Constitution, has the authority to make reasonable laws regulating the mode in which this right shall be enjoyed and used. Jones v. Robbins, 8 Gray 329.

Thus, a law is constitutional which provides that, if a defendant in a civil or a criminal suit is defaulted, judgment is to be rendered against him; he is deemed to have waived his right of trial by jury. Commonwealth v. Whitney 108 Mass. 5. So the law requiring that in a civil action the defendant shall be defaulted unless he files, within ten days of the return day of the writ, an affidavit that he has a good defence, has been held to be constitutional, and not an unreasonable restriction of the defendant's right of a trial by jury. Hunt v. Lucas, 99 Mass. 404. So a law requiring a party appealing from the judgment of an inferior tribunal to give bonds to prosecute his appeal, or bail for his appearance,...