verdict, a new trial was granted.' But it is not imperative on the party, in such cases, to proceed in the trial; and if a proper challenge be overruled, he will not be nonsuited, for refusing to proceed.2

If a juror be objected to, at the time of the trial, and the fact objected to be inquired into, by examining the juror upon oath, according to the statute, and he be adjudged to stand indifferent, the same objection cannot be made a ground for granting a new trial, though evidence to support it, be afterwards discovered.s

All challenges to the polls are made ore tenus.

2 Gardner v. Turner, 9 Johns. Rep. 260. Pringle v. Huse, 1 Cowen Rep. 432.

3 Borden v. Borden, 5 Mass. Rep. 67, 80. Vide Jeffries et al. v. Randall, 14 Mass. Rep. 205.

CHAPTER XXIII.

TRIAL AND VERDICT.

SECT. I. TRIAL.

In what cases a trial is had by jury. By the Constitution of the United States,' 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 re-examined, in any court of the United States, than according to the rules of common law.

By the Constitution of Massachusetts,2 it is provided, that"in all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherwise 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 in such as relate to mariners' wages, the legislature shall hereafter find it necessary, to alter it.

S

In Shirley v. Lunenburg, it was holden, that questions relative to the settlement and removal of paupers, might be tried without a jury. Such questions, the court say, come within the exception in the constitution, of cases, "in which it has heretofore been otherwise used and practised;" and from the settlement of

1 Art. VII. of the Amendments.

2 Part I. Art. 15.

11 Mass. Rep. 379.

the country, they have been uniformly heard and determined, by the court of General Sessions of the Peace, without the intervention of a jury.

The civil actions, of which justices of the peace have jurisdiction,' come within the same exception.

In Mountfort v. Hall, it is intimated, that prosecutions for the breach of the militia laws, likewise fall within the same exception.

In Charles River Bridge Corporation v. Warren Bridge Corporation, the question was discussed, how far this constitutional provision embraced proceedings in equity. The court waived any decision of the point, but intimated that they should always grant a trial by jury, when claimed, unless the claim appeared to be vexatious, or for delay; and such has been the practice.

SECT. II. COURSE OF THE TRIAL.

The pleadings having been filed, and the jury empanneled, the cases, upon the trial list, come on in their order, for trial, subject to the rules, which have already been stated.1

Jury fees. Before a cause is opened to the jury, the jury fees must be paid, by the plaintiff or appellant if unpaid, the attorney of the plaintiff or appellant, will be responsible for them, unless the

:

1 Stat. 1807. ch. 123. s. 1.

21 Mass. Rep. 443.

37 Pick. Rep. 344, 368.

4 Ante Chap. XIX. page 206, 208.

court, upon a subsequent nonsuit, or default, see fit to remit them.1

Opening the case. 1. By which party. The general rule is, that the party having the affirmative of the issue, and consequently the burden of proof, shall open and close the case to the jury.

Where there is a plea of the general issue, and a special plea, and the general issue is not waived, the plaintiff shall open and close. But if the defendant, at the opening of the trial, waive the general issue, he may, in the Court of Common Pleas, open and close. This latter rule, however, is not applied in the Supreme Court.

2

3

But in both courts, where the defendant pleads only a special plea in avoidance or justification, and issue is taken upon it, he shall open and close, — as in an action of trespass quare clausum fregit, where the defendant pleads soil and freehold, without the general issue. If, however, the replication to such special plea, confess and avoid it, as in case of the plea of infancy, where a new promise is replied, it seems that the plaintiff again acquires the right of opening and closing."

Where there are several issues, the plaintiff opens and closes, if he have affirmed upon any.

In an action of replevin, if the defendant plead property in himself, or in a stranger, the plaintiff shall

1Reg. Gen. S. J. C. 36. Appendix A. 26th Rule C. C. Pleas. Appendix B.

2 28th Rule C. C. Pleas. Appendix B.

4

* Vide Davis v. Mason, 4 Pick. Rep. 156. Ayer v. Austin, 6 Pick. Rep. 225. Brooks et al. Exors. v. Barrett et al. 7 Pick. Rep. 94. 28th Rule C. C. Pleas. Appendix B.

5 Ibid.

open and close. And in the argument of all questions, arising upon the answers of trustees, the plaintiff shall open and close.2

2. Manner of opening. The counsel for the party, who has the right of opening, -or the junior counsel, where there are two, - commences by reading to the jury, the declaration in the writ, together with the subsequent pleadings. He then shortly states to them the substance of these pleadings, and the points, upon which issue has been joined, and which they are to determine. He then states the facts and circumstances of the case, the substance of the evidence which he intends to adduce, and its application to the points of the case; and he also remarks upon, and cites his authorities for, any principles of law, on which, together with the matters of fact, the jury will have to found their verdict. He may also state the matter of defence, if it appear from the record, or from a notice of set-off, or the like, and also the evidence, by which he can disprove it.

Calling and swearing witnesses. The opening counsel then calls his witnesses, who are sworn by the clerk, or presiding judge.

3

In the administration of oaths, in this Commonwealth, the ceremony of lifting up the hand, must be practised, with such exceptions, as to Mahometans, and other persons, who believe that an oath is not binding, unless taken in their accustomed manner, as

1 28th Rule C. C. Pleas. Appendix B.

2 Ibid.

* Stat. 1797. ch. 35. s. 10. Catholics are permitted to make oath, upon the Holy Evangelists, holding the book in their hands and kissing it.