denee, and if it be not again called, he is liable to have judgment pass against him, as in case of nonsuit. And where a cause goes off at the circuit, because the plaintiff is not ready, he cannot recover the costs of that circuit, though he finally succeed in the cause.101 If there are any inquests to he taken, this is done at any Inques day after the first day of the circuit, immediately after the opening of the court.4 If the plaintiff is ready, and the cause'is not put off on application of the defendant, he may then plead any matter of defence arising puis darrein continuance. If this be not done, the next step taken, is to draw the names of the jurors from the box provided for that purpose. Either party may challenge Jurors, the array, that is, the whole panel, or any individual juror. The twelve persons first sworn, constitute the jury. If on account of any jurors having been set aside, or for any other reason, there be not a sufficient number of jurors remaining, either party may pray a tales. When the jury in either of these modes is completed, the plaintiff, or defendant, as the case may be, opens the cause, and the witnesses are examined. ment of sub We shall treat of the subjects embraced in this chapter, in Arrange the following order: first, of pleas puis darrein continuance ; jects. secondly, of drawing the jury of talesmen, and of challenges; thirdly, of proceedings before the jury, as the manner in which witnesses are sworn and examined, and exceptions taken to the opinion of the judge, and such other matters as seem proper to be noticed under this head; fourthly, of verdicts general and special; fifthly, of the postea and rule for judgment; and lastly, of the damages. SECTION 1. OF PLEAS PUIS DARREIN CONTINUANCE. When the cause is carried on, the defendant may plead any matter of defence arising after the last continuance, or as it is called in French, puis darrein continuance; and such a plea may be pleaded after the jury are gone from the bar, but not after they have given their verdict.5 The continuance is now from circuit to circuit ; but formerly continuances were from Meaning of term to term, and by the last continuance, as here used, must as here used. be understood the last term. The plea is a matter of right, and the judge is bound to receive it." continuance lay. 7 8 When the plea must be put in, &c.] It is well settled that matter arising after issue joined, and good by way of plea puis Without de- darrein continuance, must be pleaded without delay; and matter which the defendant might have so pleaded in term, cannot be pleaded at nisi prius, or given in evidence on the trial.1 Verdict; re- The plea cannot be pleaded, as we have before remarked, after verdict; and in case of a reference, which is a legislative substitute for a trial by jury, it cannot be pleaded after the referees have reported, though before the report has been filed."1 Nor can it be pleaded after the defendant has given a relicta and cognovit. 12 ference. Cognovit. 5 2 Tidd. Pract. 899. 3 Caines' Rep. 173. 12 Johns. Rep. 218. 6 R. St. P. 3. Ch. 7. T. 4. s. 83. Vol. 2. p. 423. Rules, &c. p. 46. ante, p. 455. 456. 7 1 Dunlap. Pract. 573. 3 Caines' Rep. 172. 9 Ib. 10 7 Johns. Rep. 194. 195. 3 Cowen. Rep. 752. Tidd. Pract. 901. 11 12 Johns. Rep. 218. The proper course for the plaintiff, if he wishes to avail himself of the objection that the plea was not pleaded in season, is by motion to set it aside, and not by demurrer ;13 and it rests in the discretion of the court to receive it or not, even after more than one term between the time that the matter of the plea arose, and the coming in of the plea; and this discretion. is governed by circumstances extrinsic, and which cannot appear on the face of the plea.14 discharge A defendant is allowed to plead his discharge under the in- Insolvent solvent laws, nunc pro tunc, on payment of costs, though more than one term has intervened.15 And the circuit judge may receive the plea under such circumstances, if the delay has not been unreasonable.16 Where the defendant has had no opportunity to plead his discharge, he will be relieved on motion after judgment;17 and it seems in such case, if the validity of the discharge be questioned, that the defendant should be required to plead the discharge, and the plaintiff allowed to reply.18 The defendant will not, however, be relieved after judgment, if he has had an opportunity of pleading his discharge.19 Where a plea puis darrein continuance is filed in term time, Copy, &c. a copy of it must be served; but where the matter of the plea arises in vacation, so that it can only be offered at the circuit, no copy is necessary.20 ments; A plea puis darrein continuance may be amended, under the Amendgeneral rule, allowing amendments in the same manner as rule to reply. other pleas;21 and the defendant may enter a rule to reply in twenty days, and proceed to judgment of nonpros, as in other at circuit. cases.22 There can be but one plea of this description;23 and such a plea cannot, it is said, be pleaded after demurrer.24 Where a plea puis darrein continuance is put in at nisi prius, the plaintiff is not to reply to it there; for the judge has no Not to reply power to accept of a replication, or to try it,25 but ought to return the plea as parcel of the record 26 and if the plaintiff demur, it cannot be argued there.27 Where a plea is certified on the back of the postea, and the plaintiff demurs, if the defendant, on the expiration of a rule to join in demurrer, neglect to do so, the plaintiff may sign judgment.28 Affidavit. How verified.] A plea puis darrein continuance, pleaded at nisi prius, should be verified by affidavit, or the judge is not bound to receive it;29 but it is in his discretion to receive it without oath, if he have reason to believe it true. And if Pleaded in pleaded in bank, without an affidavit, it cannot be treated as a nullity; but the plaintiff must either reply to it, or move the court to set it it aside.31 If the affidavit refer to the plea, and the plea is in the cause, the affidavit is sufficient, though not specially entitled in the cause. ttank. 31 $2 Nature and effect of the plea.] In general, as we have beters may be fore stated, the defendant may plead puis darrein continuance, What mat thus pleaded. any matter of defence which has arisen since issue joined. 33 Thus, he may plead payment, bankruptcy," a discharge under the insolvent laws,35 or that the plaintiff has given him a release. By pleading in this manner, the former pleading 22 4 Cowen. Rep. 418. 23 Gilb. C. P. 105. 1 Chitty on 24 Ld. Raym. 266. 1 Str. 493. 26 Cro. Jac. 261. Yelv. 180. 2 272 Mod. 307. 1 Stark. ni. pri. 62. 28 Bul. ni. pri. 311. 29 Str. 493. 30 9 Johns. Rep. 250. 1 Wendell. Rep. 89. 31 Ib. 4 Cowen. Rep. 418. 32 5 Taunt. 333. 33 Salk. 519. pl. 16. 34 Bul. ni. pri. 309. 1 Chitty on Plead. 635. 35 9 Johns. Rep. 250. 36 1 Archb. Pract. 199. 7 Taunt. 421. 37 former plea, is waived, and the case stands in the same state as if this Waiver of had been the plea originally put in. abatement. If any thing happen pending the suit to abate it, this may Matter of be pleaded, puis darrein continuance, though there is a plea in bar; for such plea is a waiver of those pleas in abatement only which were in being at the time of the bar pleaded, and not of subsequent matter: and judgment thereon, if against the defendant, is peremptory, quod recuperet, as well on demurrer as on trial; because after a bar pleaded, he has answered in chief, and therefore can never have judgment to OF DRAWING THE JURY, OF TALESMEN AND OF CHALLENGES. The first step taken in the trial of the cause is to draw the jury. The mode in which this is to be done is prescribed by statute. It is provided, that "at the opening of every court at which issues of fact are to be tried, the clerk of such court shall cause the names of the several persons returned as jurors by the sheriff, with their respective additions and places of residence, to be written on several and distinct pieces of paper; and shall roll up or fold such pieces of paper, each in the same manner as near as may be, and so as to resemble each other as much as possible, and so that the name written thereon shall not be visible. The said pieces of paper shall be deposited in a sufficient box, from which they shall be drawn as hereinafter provided."59 37 Ld. Raym. 693. 1 Salk. 178. 33 Gilb. C. P. 105. 1 Wheaton 215. Bull. N. P. 310. 1 Chitty on Plead. 636. 39 R. St. P. 3. Ch. 7. T. 4. s. 59. Vol. 2. p. 420, |