#### 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 *33plaintiff 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.