matter of course, to detail the testimony at length. Jones v. Stevens, 5 Met. 373.

In the trial of causes, it often happens that there are two questions, which ought always to be kept distinct and independent of each other, and which, for the purposes of justice, may better be tried separately than together; 1st, whether the defendant is liable at all, and 2d, if liable, for what amount. Amongst reputable practitioners, it is now common to separate the questions, by agreeing, at an early stage of the proceedings, that an auditor shall be appointed to fix the amount, in case the plaintiff shall recover, or, which is in most cases the better course, agreeing that the question of liability shall be first tried, and then, if necessary, that an auditor shall be appointed to fix the

amount.

The effect of an auditor's report is the only matter that remains to be considered. It is of very high authority, as emanating from a person, either agreed upon by the parties, or appointed by the Court, and presumed therefore to be skilful and honest, who has had ample time and every facility to make an elaborate examination, and because it would wholly defeat the purpose of the statute, to proceed with the case as if it were a very slight piece of evidence. It is primâ facie evidence for the party which produces and reads it, (Lazarus v. Commonwealth Ins. Co. 19 Pick. 81); it being taken for granted that it will be produced and read by the party in whose favor it is made, and changes the burden of proof, (Taunton Iron Co. v. Richmond, 8 Met. 435); although the auditor reports the evidence from which he drew his conclusions.

It is competent for the party, against whom the report is made, to impeach it, either by the introduc

tion of the same evidence that was produced before the auditor, or by other evidence. Allen v. Hawks, 11 Pick. 359. It was held, in this case, that the party may do so without filing specific objections. The case has not, upon this point, been expressly overruled, but the practice is nevertheless uniform, throughout the Commonwealth, on the production of the auditor's report, to inquire of the opposite counsel whether it is intended to impeach it, and in what particulars, and to move for a specification of the grounds of objection, in order that the other party may be prepared to meet the several objections that are intended to be made. If a party should neglect to make such inquiries, or to move for specifications of objections, he would have little reason to complain of surprise at the trial.

CHAPTER XXII.

THE TRIAL AND ITS INCIDENTS.

THE great majority of cases upon every docket are disposed of without trial; by default, nonsuit, continuance or otherwise, so that the intervention of a jury is unnecessary. The cases that are for trial, though few in number, are nevertheless not only the most interesting and important of all the cases upon a docket, but they call into requisition the learning and the talents of the bar.

To be ready for trial, when a cause is called in its order, is one of the highest achievements of an attorney, and this can only be effected by procuring depositions, in all those cases, in which that mode of obtaining evidence is proper or necessary, and by taking measures to secure the attendance of witnesses in due season.

The first object that engages the attention of counsel, when a trial is about to commence, is the composition of the jury. In this connection, it may not be useless to state, briefly, the statute provisions, in regard to the selection of jurors, as condensed from the 95th Chapter of the Revised Statutes.

All qualified voters are liable to be drawn as jurors, except the Governor, Lieutentant Governor, Members of the Council, Judges and Justices of any Court, Justices of the Peace, County and Special Commissioners, Clerks of the Courts, Registers of Probate and Deeds, Sheriffs, their Deputies, Coroners, Con

stables and Criers of Courts, Marshals of the United States, and their deputies, and all other officers of the United States, Counsellors at Law, (though they have retired from practice, see chapter on Attorneys,) settled Ministers, of the Gospel, Officers of Colleges, Preceptors and Teachers of incorporated academies, practising Physicians and Surgeons regularly licensed, Cashiers of incorporated Banks, constant Ferrymen, and all persons more than sixty-five years old; and by Stat. 1838, c. 21, Members of the Senate and House of Representatives during the session of the General Court; all members of the fire department in Boston, and all engine men and members of the fire department in other towns, if the town so vote. No person is liable to serve as a juror in any Court oftener than once in three years, c. 95, § 12. A service on a sheriff's jury does not therefore constitute a ground of exemption. Brewer v. Tyringham, 14 Pick. 196. In regard to the statute exemption by reason of being sixty-five years of age, the Court say, in Munroe v. Brigham, 19 Pick. 368, "the statute does not declare all persons exempted, incapable or disabled absolutely to serve as jurors, so that a verdict rendered by a Jury, in which a person exempted shall sit without exception, shall be void; but only that all such persons shall be exempted from serving, at their own election, and shall be liable to be excepted to, by either party, if the exception be taken at the empannelling of the jury." A Methodist minister, stationed in some place or circuit, according to the usages of that denomination, is exempted. Commonwealth v. Buzzell, 16 Pick. 153.

The selectmen of each town are required, at least once in three years, to prepare a list of " persons of

good moral character, of sound judgment, and free from all legal exceptions," not less than one for every hundred, and not more than one for every sixty inhabitants; computing by the last census; to lay the same before the town, when any alterations may be made in it, and, when approved, to deposit each name in a separate ballot, in a box to be kept for the purpose. The town may make any changes in the list presented, they see fit. Page v. Danvers, 7 Met. 326. In due season, before the commencement of any term of the Court, and in other cases, venires are issued by the clerks, to the selectmen of the several towns, requiring them to draw a certain number of jurors, who, when drawn, are duly summoned by a constable. On the day when the session of the Court actually commences, the persons so drawn and summoned are arranged in alphabetical order and empannelled.

It is obvious that this is an admirable mode of sesecuring an impartial tribunal, and that if the important duty, which is entrusted to the selectmen in preparing the original list, be honestly discharged, of securing also as intelligent and impartial a tribunal, as the lot of humanity will admit.

When from any cause, by challenge or otherwise, a sufficient number of jurors, so returned, cannot be obtained, the Court may order jurors to be returned from the bystanders or from the county at large, not, however, exceeding five in the whole. Such jurors should regularly be returned for each case; but where one was empannelled a second time, without being specially returned for the case, it was holden to be no objection to the verdict. Amherst v. Hadley, and Howland v. Gifford, note, 1 Pick. 38.