same party, that party has a right to begin; but where there are several issues, and the affirmative of some of them lies on one party and the affirmative of others on the other party, there the plaintiff has a right to begin. This, however, is the case only where the amount of debt or damages requires no proof by the plaintiff, as in actions on bills of exchange and promissory notes; but where the plaintiff must give evidence of the amount of his debt or damages, as in actions for goods sold, and the like, in which cases the amount stated on the record is immaterial, he is to begin, although the affirmative of all the issues may be on the defendant. It being settled which party is to begin, that party states the case to the jury, and informs them what he intends to prove, and then calls his witnesses; after they are examined, the other party addresses the jury; if he call no witnesses, the under-sheriff sums up; but if he do call witnesses, he examines them immediately after he has finished his address to the jury, and then the party who began has the privilege of addressing the jury in reply. It will, however, sometimes happen that the party who began, instead of replying then, will call some witnesses to give evidence in reply to his opponent's evidence; if he do so, he examines those witnesses, but then his opponent has the privilege, immediately after their examination, to address the jury a second time; but in this second address he must not wander into the whole case, but must confine himself strictly to the bearing which the evidence in reply has on the case. After he has finished his address, the party who began has then a general reply on the whole case, and then the under-sheriff sums up the case to the jury, who give their verdict. The following will make this better understood. Suppose A. and B. to be the attornies for the parties, and the affirmative of the issue to be on A., who therefore begins, the trial will take one of the three courses following: A. opens the case to A. opens the case to A. opens the case to the jury. the jury. A. examines his wit- A. examines his wit- A. examines his wit nesses. the jury. nesses. nesses. B. addresses the jury B. addresses t the B. addresses the but calls no evidence. jury. "jury. | B. examines his wit- B. examines his wit nesses. A. addresses jury in reply. The under sums up. sheriff The cause having been tried, the successful party gets the writ of trial, with the postea indorsed, from the under-sheriff, and sends it, together with the affidavit of increase, to his agent, who will tax the costs and sign judgment. If, however, either party intend to move for a new trial, or to bring any question arising out of the trial before the Court, the under-sheriff has the power, and will, if he have doubts on the subject and think it a fair question, stay the execution, to give the party an opportunity of moving. If the undersheriff refuse to do so, an application may in vacation be made to a judge to stay execution and give the opportunity desired. For this purpose, a copy of the under-sheriff's notes (which he is bound to give on being paid for them) must be procured and produced to the judge, and the point must be stated to him; and if he think there be reasonable ground for a motion he will order execution to be stayed, to give the opportunity of making it. It must be made within the first four days of the following term, if the trial took place in vacation, or within four days of the end of the term; but if the trial took place in term time, and more than four days before the end of it, the motion should be made within the four days following the trial. In order to make the motion, the copy of the sheriff's notes must be sent to the agent, verified by affidavit (a). If a rule nisi be granted, it is disposed of like any other motion. If it be for a new trial, and it be made absolute, the writ of trial is altered and re-sealed, and the second trial takes place, after the regular notice, in the same manner as the first. (a) See the Form of this Affidavit, Appendix, sect. 23. 1 1 CHAPTER XIV. MOTION FOR NEW TRIAL, &c.-JUDGMENT. Various Motions after Trial-Within what Time-Of using Affidavits-Costs of such Motions-Judgment-Taxing Costs-Affidavit of Increase-Its Requisites-Papers to be sent to Agent. If the party who has failed on the trial of the cause intend to move in arrest of judgment, or for judgment non obstante veredicto, or if he intend to move for a new trial, either on the ground that the judge has misdirected the jury, or that the verdict is against the evidence, or that the judge has rejected evidence which he ought to have admitted, or admitted evidence which he ought to have rejected,—or that the jury has given excessively great or excessively little damages, or if a point of law have been reserved for the unsuccessful party,- —or if the judge have nonsuited a plaintiff who intends to move to set the nonsuit aside,—or if the plaintiff intends to move to increase the damages, or a defendant to reduce them, or if the judge have reserved leave to the defendant to move to enter a nonsuit, (and a nonsuit can never be moved for without leave of the judge who tried the cause,)—in any of these cases the Court must be moved within the first four days of the term next after the trial; and all that is necessary for the country attorney to do is, to send his agent the briefs the counsel held on the trial, and tell him to instruct counsel to move, and the agent will do what is necessary, and the country attorney has nothing to do till he hears the result of the motion. In neither of the above cases should any affi davit be made; the chief cases in which affidavits are necessary are when the motion is made on the ground of being taken by surprise at the trial, or where very strong and material evidence has come to the knowledge of the party since the trial, which he could not, even with reasonable diligence, have discovered or been aware of before the trial. In these cases the facts must be brought before the Court by affidavit, because they could not appear at the trial; and in the former case the affidavits should show how the surprise occurred, and also what evidence the party could have been prepared with, and can, on another trial, be prepared with, so as to place the case in a very different point of view. In the latter case, the affidavits must set out the evidence discovered, and how it was discovered, and show that the party could not before the trial have been aware of it even by exercising reasonable diligence. And it is to be observed, that on an occasion of this kind the party's own affidavit of any facts bearing on the case is of little or no weight, as he could not be examined as a witness on the second trial. The only case in which his affidavit can be of any service is where the facts stated must be in the knowledge of the opposite party, and he makes no affidavit denying those facts, nor is any reason assigned for his not doing it, and even then the affidavit is only of use where the facts stated in the party's affidavit are facts proposed to be proved by other persons, who may be witnesses on a second trial; for it would be useless to grant a new trial upon facts which it is clear the party has no means of proving on the trial, if it were granted. Other cases than the above may of course occur, where the ground moved upon will not appear on the judge's notes of the trial, and therefore it must be brought before the Court on affidavit. Where a new trial is granted on affidavits, it is, as a matter of course, on payment, by the party ap |