A Brief History of Special Verdicts and Special Interrogatories

Abstract

When battle and inquest were introduced into England by the Normans as modes of proof, they took their places beside the Anglo-Saxon ordeal and wager of law as methods of determining disputes between litigants. The functions of the court with reference to the inquest were identical with its functions with respect to the ordeal or battle, namely, to decide whether it was a permitted means of proof and to supervise its performance. The issues submitted to the older forms of trial frequently, if not usually, involved mixed conclusions of law and fact. Naturally the inquiries put to the inquest were of a similar character. There was no thought of separating questions of law from questions of fact. Thus, the grand assize in a writ of right was asked to say whether the demandant or the tenant had the greater right in the land, services, or other thing involved. In the assize of novel disseisin, the jurors who forrmed the petty assize were called upon to determine whether A had disseised B unjustly and without judgment. In the assize of mort d'ancestor, they were required to tell whether A was seised of certain land on the day of his death and whether B was his next heir. The answer given by ordeal, battle, or wager of law was final, for it was dictated by the supernatural. While there seems to have been a tendency at first to accord the same finality to the answer given by the inquest, yet it was early perceived that, as the work of mere man, it was liable to error, and that it should be subject to correction.