56 bench in the court in which the case originated. If the assize judge who tried the case was a member of that court, he would arrange with counsel the customary “case stated”, ordinarily a summary description of the question that arose at trial to be referred to the full court for argument and decision, usually with an indication of what the jury verdict was and howit was to depend upon the outcome of the reserved question. Then when the case came on in London, the judge who tried the case on assize would turn to his trial notes and would report the facts of the case to his fellow judges. If the case on assize were tried by a judge who was not a member of the court in which the case originated, he would not be present when the case came on for argument. This necessitated a slightly different procedure, which was for the assize judge to write out a report giving not only the case stated, but also a summary of the testimony given at trial and of any documentary evidence, sometimes accompanied by comments on the behavior or attitudes of the jury, on how the judge instructed the jury or on the question of law reserved.Presumably Lord Mansfield followed this practice when a question of lawarose in an assize trial originating in Common Pleas or Exchequer. Lord Mansfield faithfully attended the assizes every summer from 1757 through 1785 except one, in 1784, when he was at Tunbridge Wells after the death of Lady Mansfield. Because of deteriorating health, Mansfield did not go on assize in 1786 or 1787. He resigned as Chief Justice onJune 4, 1788. Most often, Mansfield chose the Home Circuit,and his most frequent partner was Baron Smythe until Smythe’s retirement in 1777.^^ Mansfield’s custom on the Home Circuit, as reported in the newspapers, was to invite his assize partner to Mansfield’s country home (Kenwood) on the Sunday before the assizes were to begin, and the pair would travel to Hertford on Monday morning. At some point they would decide which of the two would handle the Crown cases and which would take the civil list, and thus the work was divided for each assize town. The customary pattern for the Home Circuit was quoted above from Ryder’s diary, but adjustments were made in it. On 12 August 1755, for example, Ryder noted that he had chosen to sit at nisi prius at Lewes (Sussex). Lord Mansfield usually began at Hertford on the plea side and alternated Crown and plea cases thereafter, so that he finished the Home Circuit at Surrey on the plea side. Civil and criminal lists were often imbalanced, and it was customary for the judge who finished first to help his colleague complete his business.Ryder reI have examined a number of such reports among the Dampier MSS at Lincoln’s Inn Library for King’s Bench cases tried at the assizes by judges from other couns. See Oldham, J., “EighteenthCentury Judges’ Notes; HowThey Explain, Correct and Enhance the Reports”, XXXI Am. Jour. L. Hist. 9, 29-31, 1987. Twenty-three times. Smythe and Mansfield were partners for 16 of the 21 summers from 1757 through 1777. As Ryder put it: “It is usual on the circuits for the judges, when they go from the bench, to adjourn to the other court that is sitting ”. Ryder Diary, 28 July 1755 (Lincoln’s Inn Library).
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