I think the amendments made to the declaration after the plaintiff had rested his original case in the county court were material amendments, and made an entirely different case than the one stated in the original declaration. The original declaration charged the placing of the plank across the ditch as having been done by the city of Jackson; the amended declaration charged the city of Jackson with negligence in permitting the planks to be placed across the ditch at such place and allowing them to remain there. It will be readily seen that the declaration, after its amendment, made other pleading proper that would have been improper to the original declaration.
After this amendment was made by the plaintiff, the defendant reshaped its pleading and promptly demanded a trial by jury. In my opinion, this motion for a trial by jury after the reshaping of the pleading was timely, and a jury should have been allowed under the statute. It is true that "either party to a suit in the county court may *Page 741 demand a jury, but the demand shall be made by the plaintiff, if made by him, with the filing of the declaration, and, if made by the defendant, on the filing of his plea or answer. But the court may in its discretion allow a jury trial for any cause arising after such event." It cannot be said that the filing of the pleas by the defendant after the declaration was amended so as to make an additional charge of negligence was not timely applied for. Under the language of the statute, the defendant is permitted to demand a jury on the filing of its plea or answer. It is, of course, to be construed to mean whenever such a plea tenders issue of some fact alleged in the declaration, and where the declaration, as originally drawn, did not state a case calling for a plea of a particular nature, and afterwards, by amendment, presents a case for such pleading as is proper, it is certainly not too late to demand a jury with the plea. The concluding sentence of the section quoted in the majority opinion, "But the court may, in its discretion, allow a jury trial for any cause arising after such event," shows that it was contemplated that changes might be made in pleadings and issues.
This discretion is not a personal or arbitrary discretion, but a legal, judicial discretion, to be exercised, not at the caprice of a judge, but according to the facts arising when the application is presented. When the plaintiff files a declaration, he cannot, ordinarily, anticipate any defense except one in denial of the demands and rights made by the declaration. If the defendant presents an affirmative defense in confession and avoidance, and the plaintiff desires to take issue upon such affirmative plea or defense, it certainly would be proper for him to have the right, under the statute, to demand a jury when the issue is made up or tendered calling for decisions of issues of fact not anticipated when the declaration was filed. *Page 742
When the defendant filed its plea of general issue in the present case, it had the right to rely upon the fact that the case would be tried upon the declaration as it then stood, and to deny the allegations of the declaration as then made, so that the plaintiff could not maintain an action. Certainly, the plaintiff was not willing to maintain and risk her action upon the original declaration, but reached the conclusion that it was necessary to present a different ground of liability. Upon amending its plea, the defendant had a right to plead either in general denial to the general declaration or an affirmative defense, or affirmative matter; and it may be that for the first time the defendant saw a necessity for having the issues decided by a jury. It seems to me that it would be unreasonable to say that a plaintiff must be held to have waived the jury when he filed his declaration with no demand for a jury in all possible cases that might arise. Before he should be deprived of his right to a jury, the issues should be made up by the pleadings. Whether a jury should be demanded at all cannot be determined at all in certain cases until a defense is filed making an issue. It would be merely piling up the costs of the litigation without any reason therefor to demand a jury when no issue is made up. But it is more reasonable to require the plaintiff to know the facts pertaining to the matter which he brings into court than it is for the defendant to anticipate cases being made by amendment which are not made by the declaration. The purpose of the statute, so far as the defendant is concerned, is to file with his plea tendering an issue a request for a jury as to the issue so tendered. If that plea is answered by another plea in confession and avoidance, making issuable other facts, then, when the pleading is finally made up, the party should be allowed a jury if he desires one. The sole purpose, as I understand the statute, is to dispense *Page 743 with summoning the jury in such cases in the county court when neither party desires a jury therein.
Section 31 of the Constitution of 1890, providing that trial by jury shall remain inviolate, preserves the right of trial by jury as it then existed in the laws of the state free from interference by any department of the government. The section itself names the modification which may be made by the legislature to the section. It is a familiar rule of construction of constitutional provisions that they are to be construed in the light of the common law and in the light of the law existing at the time the provisions were enacted into the Constitution.Inviolate means that such right shall remain as it is in all substantial particulars. Wolfe v. Martin, 1 How. 30, andByrd v. State, 1 How. 163, announced this construction: That a trial by jury meant a trial by twelve men; and, where the provision was silent as to the number of persons composing the jury, the court must look to the common law to discover its meaning. In Hunt v. State, 61 Miss. 577, it was held in the trial of a felony case, a consent to try the case with less than twelve jurors was void; and to the same effect were decided the cases of Scott v. State, 70 Miss. 247, 11 So. 657, 35 Am. St. Rep. 649; Ex parte, Grossman, 267 U.S. 87-122, 45 S.Ct. 332, 69 L.Ed. 527 et seq., 38 A.L.R. 131. In this last case the supreme court of the United States announced the same principle in reference to construing the United States Constitution. Chief Justice TAFT, speaking for the court, said:
"The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of the thirteen states, were born and brought up in the atmosphere of the common law and thought and spoke in its vocabulary. They were *Page 744 familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood."
At page 668 of 1 Cooley's Constitutional Limitations (8 Ed.) this distinguished author and constitutionalist discusses the question saying:
"Accusations of criminal conduct are tried at common law by jury; and wherever the right to this trial is guaranteed by the Constitution without qualification or restriction, it must be understood as retained in all those cases which were triable by jury at the common law, and with all the common-law incidents to a jury trial, so far, at least, as they can be regarded as tending to the protection of the accused."
At page 676 of this work, the author says:
"Many of the incidents of a common-law trial by jury are essential elements of the right. The jury must be indifferent between the prisoner and the commonwealth; and to secure impartiality challenges are allowed, not only for cause, but also peremptory without assigning cause. The jury must also be summoned from the vicinage where the crime is supposed to have been committed; and the accused will thus have the benefit on his trial of his own good character and standing with his neighbors, if these he has preserved; and also of such knowledge as the jury may possess of the witnesses who may give evidence against him. He will also be able with more certainty to secure the attendance of his own witnesses. The jury must unanimously concur in the verdict."
In volume 2 of the same work, at page 865, it is said:
"The Constitutional provisions do not extend the right; they only secure it in the cases in which it was a matter *Page 745 of right before. But in doing this, they preserve the historical jury of twelve men, with all its incidents, unless a contrary purpose clearly appears. The party is therefore entitled to examine into the qualifications and impartiality of jurors; and to have the proceedings public; and no conditions can be imposed upon the exercise of the right that shall impair its value and usefulness."
See, also, 35 C.J., p. 224, section 145.
In La Bowe v. Balthazor, 180 Wis. 419, 193 N.W. 244, 32 A.L.R. 862, the Wisconsin court held that the legislature was without power by statute to impose a fee, or tax, of two dollars per juror, upon the litigant, in order to obtain a jury trial in a municipal court, and that such imposition violated the constitutional guaranty of right to trial by jury. The language of the Constitution of Wisconsin should remain inviolate. At page 864 of the American Law Reports of this case (110 Wis. 421, 193 N.W. 245), the court said:
"The meaning of the language used in our Constitution must be gleaned from the common law, and this is because of the peculiarity of the language, `The right of trial by jury shallremain inviolate;' that is, it shall continue as it was at the time of the formation and adoption of the Constitution by the people of this state. This right, `according to the course ofthe common law,' was guaranteed to the people of the Northwest Territory by article 2 of the ordinance of July 13, 1787" — i.e., "the inhabitants of the said territory shall always be entitled to the benefits . . . of judicial proceedings according to the course of the common law."
The quotation in the majority opinion from 16 R.C.L. 196, "Any reasonable regulation, free from arbitrary and unreasonable provisions regarding the right, will not be a denial or impairment thereof," is not in my opinion a correct expression of the law upon the subject. The quotation from Mr. Cooley in this case, above given, is *Page 746 the true and proper interpretation of the right to regulate trial by jury. No regulation can be made which impairs or restrains the right of trial by jury. Still when such right has been denied, it cannot limit the effect of the Constitution itself. All constitutional provisions designed for the protection of the citizen are to be given a liberal interpretation in order to accomplish the object sought. There is no more valuable right to the people at large, in the Constitution, than the right of trial by jury. It is the Palladium of Liberty, the great security, well calculated to preserve the people from tyrannical acts of either officers or other citizens.
I think, therefore, that the court below erred in refusing to give the appellant a jury trial, and that no harm would have been done by continuing the case, if that was necessary, until court next met, which would have been a delay of one month, and such delay could not be a serious public handicap in administering justice. It is not sufficient to say that the trial judge may have been fair or impartial in the damages awarded. This is peculiarly the character of action for which a jury trial is provided, and the allowing of a jury trial in such case constituted a valuable right to each litigant, and no denial of this right should be entertained, unless it is clear that injustice was not done in the denial of such right. *Page 747