disqualified for serving the venire, and that this CHAP. 2. would be good ground of challenge to the array. But after the law was altered in this respect, and petit jurors were required to be drawn by lot by the county clerk, the question arose in the case of Woods v. Rowan & Coon (5 John. Rep., 133), whether it was still a valid ground of objection to the array that the sheriff by whom the jurors had been summoned, was a party to the suit. The court decided this question in the affirmative; chiefly on the ground, that though the sheriff no longer possessed the power to designate the jurors, yet that under various pretexts he might omit to summons those named in the panel whom he might wish to exclude.

The act of 29th April, 1802, enacts that from and after the passage thereof, "no special juries shall be returned by the clerks of any of the circuit courts; but that in all cases in which it was the duty of the clerks to return special juries, before the passing of this act, it shall be the duty of the marshal for the district where any circuit court may be held, to return special juries in the same manner and form as, by the laws of the respective states, the said clerks were required to return the same."

Jurors' fees.] Jurors are entitled to a compensation of two dollars for each day's attendance in court; and to five cents a mile for traveling, in going to and returning from the place of holding the court.2

Before the passage of the act here cited, the fees of jurors were prescribed by the act of 28th February, 1799. The old as well as the new act gave per diem compensation, and the practice under it was for the marshal, at the adjournment of the court, to pay the Ch. 31, § 30: 2 Stat. at Large, p. 167.

* Act of February 26, 1853, ch. 80, § 3: 10 Stat. at Large, p. 168. See Appendix, where this act will also be found.

PART 2. jurors for each day's attendance without regard to the particular nature of the services they had been required to perform. It seems highly improbable that congress designed to alter this practice. But the act of 1853, contains a provision that appears nevertheless, to infer such a purpose. It is this: "In cases where the United States are parties, the marshal shall, on the order of the court, to be entered in its minutes, pay to the jurors and witnesses all such fees as they may appear by such order to be entitled to, which sums shall be allowed him at the treasury in his accounts." With respect to witnesses this provision is intelligible and unobjectionable, and in accordance with antecedent usage, except that, so far as I am informed, no order of the court was supposed to be required to authorize the payment by the marshal of the compensation due, to wit: for attendance in behalf of the United States. Witnesses are summoned to testify in particular specified causes; and in suits between private parties may, conveniently, and in justice, should, be paid by the party at whose instance they attend. But it is otherwise with jurors, and it seems most probable that they were inadvertently coupled in this enactment with witnesses, without any actual design to introduce an innovation scarcely susceptible of practical application.

9. Notice of trial.

In the circuit and district courts for the southern district of New York, eight days' notice of trial is to be given.

In the district court for the northern district of New York, fourteen days' notice of trial, and six days' notice of countermand, are to be given in all cases without regard to the defendant's place of

residence, as in the supreme court of New York.1 CHAP. 2. In each of these courts, a note of the issue, and of the pleadings and attorneys' names, must be delivered to the clerk, on or before the Thursday preceding the term, who is required, as early as the following day, to have the calendar of causes to be tried, made up, arranging them according to the dates of their issues.2

There are, however, certain descriptions of cases, as already shown, in which the United States are entitled, under certain circumstances, to judgment against the defendant, at the return term of the process by which he is brought in to answer. With the rigid enforcement of this right, the regular service of a notice of trial is, of course, incompatible. And, for the regulation of the practice, in one of those cases, the following rules have been adopted by the district court for the southern district of New York, and are also to be considered as operative in the circuit court for that district.

"In suits in behalf of the United States, in which the plaintiffs are by statute entitled to judgment at the return term of the writ, the declaration may be filed in open court on the day the writ is returned; and proper proceedings may be thereon taken for perfecting judgment instanter, unless a plea is filed and a continuance of the cause allowed by the court."

"If the defendant pleads to any such suit, the district attorney may have the cause placed on the calendar at the same term, and may without other notice bring the same to trial when called, unless at the instance of the defendant, the court shall grant a continuance in the cause."3

1 Appendix, Rule 31, D. C.

'Appendix, Rule 45, D. C., N. D. 'Rules 209, 210, D. C.

PART 2,

The rules upon this subject of the courts for the northern district of New York, are substantially the same as the foregoing.1

SECTION VIII.

PROCEEDINGS FROM THE TRIAL TO THE EXECUTION, INCLUSIVE.

1. Of the trial and its incidents.

No one acquainted with the manner of conducting trials in the courts of a state, is likely to be at a loss in the management of a trial in the national courts of that state. There is nothing in the organization of these courts, nor in the acts of congress regulating the proceedings, which necessarily leads to any diversity of practice in this respect, between them and the courts of the several states in which they act. The jurors are called and sworn; may be fined for non-attendance; may be challenged upon the same grounds, and the challenge is tried in the same manner in each. The case is opened; the witnesses are called, sworn and examined, in the same manner; and the rules of evidence are the same; it is in like manner the duty of the judge to decide pertinent questions of law as they arise, and equally the right of the parties to except to his decisions; a plea puis darrien continuance may in like manner be pleaded; a demurrer to evidence may in like manner be put in; the verdict is in like manner either general or special, or (when the state practice admits it) may Appendix, Rules 20, 21.

C

1

In some of the states the parties in a suit are, by statute, permitted to testify in their own behalf, and also to call each other as witnesses. Doubts were entertained whether this great innovation upon a fundamental principle of the common law was within the provision of the thirty-fourth section of the judicial act of 1789, adopting the laws of the several states as rules of decision in trials at common law. This question has at length received an affirmative answer in Vance v. Campbell et al., 1 Black, 427; Haussknecht v. Claypool et al., 1 Black, 431; and Wright v. Bales, 2 Black, 535.

be taken subject to the opinion of the court, on a CHAP. 2. special case; a juror may, under like circumstances, be withdrawn, and the rules with regard to damages are the same, excepting always such modifications as may have been introduced by special rules of court, in relation to such of these particulars as, from their nature, are subject to judicial discretion.1

A usage prevails in the national courts of praying instructions to the jury at the close of the trial, on all such questions of law as the case is supposed to involve. These questions are generally very formally drawn up in writing. They are frequently divided and subdivided, and spun out to such a degree, that, being presented to the court not until the case is just about being submitted to the jury, and sometimes not until this has been done, the court finds it embarrassing to deal with them. It has, however, been very properly held, that the court is not restricted to the terms and forms of instruction required by the parties, simply deciding whether it will give or withhold the particular instructions prayed for; but that it is sufficient to instruct the jury on such questions of law as appear to the court to be applicable to the evidence, and in such terms as it shall see fit, leaving it to the parties respectively to except to the refusal of the court to give any other or further instructions; for "whilst," says Mr. Justice DANIEL, in delivering the opinion

In the circuit and district courts for the southern district of New York, when two counsel on each side sum up to the jury, the arguments are to be heard alternately, and not from both counsel consecutively on the same side, as had before been the practice.

When at any session of a circuit or district court, the trial or hearing of a cause, civil or criminal, having been begun, shall not be concluded before the arrival of the time fixed for the commencement of another session, it may, nevertheless, be continued and completed. Act of March 2, 1855, ch. 140: 10 Stat. at Large, 630.