Fay v. Vanderford

Allen, J. The presiding justice framed an issue for the jury, and after trial and verdict he set the verdict aside and discharged the issue. There was a memorandum stating the reason, but the petitioner, having appealed from the order discharging the issue, objects that the memorandum is no part of the record, and ought not to be considered. We therefore lay that aside. The petitioner certainly was not entitled to a trial by jury as a matter of right. The exercise of discretion in discharging the issue, or in refusing on application seasonably made to frame an issue, is reviewable by the full court. But we have not before us the means of saying that the presiding justice was wrong. The framing of issues for a jury in probate cases is by no means a matter of course; but it is to be granted or refused, in each particular case, in the discretion of the presiding justice. In the present case there was a trial, so that the presiding justice was familiar with the facts; and in the absence of anything to show that he was wrong, his decision must stand. Ross v. New England Ins. Co. 120 Mass. 113, 117. Newell v. Homer, 120 Mass. 277, 281. Decree affirmed.