St. Clair County IL Archives Court.....Cornelius, V Boucher 1819-31
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 27, 2008, 11:11 pm

Source: Reports Of Cases Illinois
Written: 1819-31

December Term 1820, Vandalia

Joseph Cornelius, Plaintiff in Error, v. John Boucher, Defendant in error.

Error to St. Clair.

Granting continuances and new trials rests in the discretion of the court and 
a refusal of either, cannot be assigned as error. 

Swearing the jury, is matter of form, and an irregularity in swearing them not 
objected to at the time can not be assigned as error.

This was an action of covenant, brought in the St. Clair circuit court, by 
Cornelius against Boucher; on the trial a verdict was found for the defendant, 
and a motion made by plaintiff for a new trial, which was overruled, and 
judgment entered on the verdict for the defendant. To reverse this judgment 
the plaintiff prosecuted this writ of error, and assigns for error, 1. That 
the affidavit of the defendant for a continuance, at the July term 1848, was 
not sufficient to authorize a continuance. 2. That there were three issues of 
fact made up, and the jury were sworn to try but one issue, and it does not 
appear, upon which they found their verdict; and 3. That the court erred in 
not granting a new trial on the affidavit of the plaintiff.

Opinion of the Court. On the first point, there is no case within the 
recollection of the court, in which it has been considered error, to grant a 
continuance. The third objection will depend very much upon the same 
principle, that granting continuances and new trials, is so much a matter of 
discretion, that an appellate court can not undertake to inquire into the 
proper exercise of that discretion, in a case like the present. The court, 
however, must not be understood as saying, that in no case would it make the 
inquiry. If a case was brought up, upon bill of exceptions containing all the 
facts, it would furnish this court with the means of forming an opinion, as to 
the proper exercise or abuse of the discretion of the court below. (1)

The second error assigned, is considered equally untenable. The swearing the 
jury, is matter of form, and if not objected to at the time, an irregularity 
in the manner of swearing them, can not afterwards be assigned as error. There 
is no judgment of the court upon the point, and the jury is presumed to take 
into consideration the whole matter, and if their intention is manifest the 
court will set right mere matters of form. The cases of Thompson v. Button, 14 
Johns. Rep., 84; and Hawks v. Crofton, 2d Burrow, 698, are authorities in 
support of this opinion. The judgment of the court below is affirmed. (2)

Judgment affirmed.

-------------------
(1) See note to the case of Sawyer v. Stevenson, ante, page 24.

(2) The decisions are abundant that formal objections must be taken before 
trial, or if not they are waived. Curtis v. The People, post. Guykowski v. The 
People, 1 Scam., 479. Stone v. The People, 2 Scam., 338. Townsend v. The 
People, 3 Scam., 329. Conolly v. The People, 3 Scam., 477. A jury should not, 
at the commencement of a term, be sworn for the whole term, but should be 
sworn for the trial of each particular cause. Barney v. People, 22 Ill., 160.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the 
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831. By Sidney Breese, Counsellor at Law. Second 
Edition, with Additional Notes, By Edwin Beecher. Chicago: Callaghan & 
Company, 1877.

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