Trial

In Practice. The examination before a competent tribunal, according to the laws of the land, of the facts put in issue in a cause, for the purpose of determining such issue.

U. S. v. Curtis, 4 Mas. 232, Fed. Cas. No. 14,905.

The examination of the matter of fact in issue in a cause. The decision of the issue of fact; Steph. PI.

77; Deane v. Bridge Co., 22 Or. 167, 29 Pac. 410, 15 L. R. A. 614.

The final examination and decision of matter of law as well as facts for which every antecedent step is a preparation; Carpenter v. Winn, 221 U. S. 533, 31 Sup. Ct. 683, 55 L. Ed. 842. “Trial,” as used in the acts of congress of July 27, 1866, and March 2, 1867, appropriately designates a trial by the jury of an issue which will determine the facts in an action at law; and “final hearing,” in contradistinction to hearings upon interlocutory matters, the hearing of a cause upon its merits by a judge sitting in equity; Galpin v. Cntchlow, 112 Mass. 343, 17 Am. Rep. 176; Home L. Ins. Co. v. Dunn, 19 Wall. (U. S.) 214, 22 L. Ed. 68. Undoubtedly the word “trial” in the common law meant the examination and determination of the case upon the facts, and the word was usually applied to a trial by jury; “hearing” was used w r ith respect to cases in equity.

— The word “trial” is now used not only colloquially but by courts, with a more comprehensive signification, and it has been defined to be “the examination before a competent tribunal, according to the law of the land, of the facts or law put in issue in a cause for the purpose of determining such issue”; Finn v. Spagnoli, 67 Cal. 330, 7 Pac. 746; In re Chauncey, 32 Hun (N. Y.) 429, 431; Second N. Bk. of Grand Forks v. Bank, 8 N. D. 50, 76 N. W. 504; including all the steps in the case from the submission to the jury to the rendering of the judgment; Castellaw v. Blanchard, 106 Ga. 97, 31 S. E. 801;

— or before a judge who has jurisdiction of it; Bullard v. Kuhl, 54 Wis. 544, 11 N. W. 801 (citing Jacob’s Law Diet. Tit “Trial”).

— In many cases it is said to be a judicial examination of the issues in a case; Tingley v. Dolby, 13 Neb. 371, 14 N. W. 140, 148; Miller v. King, 32 App. Div. 349, 52 N. Y. Supp. 1041;

or in an action; Spen- Ohio St 403, 42 N. E. 34;

— or of the issues between parties, whether of law or fact; Vertrees* Adm’r v. Newport News & M. V. R. Co., 95 Ky. 314, 25 S. W. 1 (and this is the expression in many state codes and statutes); and the “trial” is not concluded until finally submitted to the court, referee or jury; Mygatt v. Willcox, 35 How. Prac. (N. Y.) 410;

— or until the decision is reduced to writing and signed by the judge; Connolly v. Ashworth, 98 Cal. 205, 33 Pac. 60.

— The word has been applied to the decision of issues arising on demurrer; Alley v. Nott, 111 U. S. 472, 4 Sup. Ct. 495, 28 L. Ed. 491; Hume v. Woodruff, 26 Or. 373, 38 Pac. 191; Pratt v. Lincoln County, 61 Wis. 62, 20 N<- W. 726; Louisville, N. A. & C. R. Co. v. Reynolds, 118 Ind. 170, 20 N. E: 711;

— to an inquest which was said to be by a trial of issue of fact where the plaintiff alone introduced testimony; Haines v. Davis, 6 How. Pr. (N. Y.) 118;

— or a feigned issue out of chancery as to the amount due on a land contract; Parks v. Andrews, 56 Hun, 391, 10 N. Y. Supp. 344. “Trial” has been held not to include a decision on demurrer that the plea in abatement was bad; Winet v. Berryhill, 55 la.

411, 7 N. W. 6S1; the taking of proof before a master to dispose of a motion for an injunction pendente lite; Doughty v. W. Bradley & C. Mfg. Co., 8 Blatchf.

— 107, 7 Fed. Cas. No. 4,030; the hearing of a case on appeal where the object is to correct errors of the trial court; Eldridge v. Strenz, 39 N. Y. Super. Ct. 295; the granting of an allowance in a divorce case; Stewart v. Stewart, 28 Ind. App. 378, 62 N. E. 1023; a hearing before a mayor for the removal of a city official; Avery v. Studley, 74 Conn. 272, 50 Atl. 752; a question of taxation of costs of the marshal, before the United States supreme court, on a certificate of division; Bank of U. S. v. Green, 6 Pet. (U. S.) 26, S L. Ed. 307;

— or the presentation or determination of a motion for a new trial; Mc- Dermott v. Halleck, 65 Kan. 403, 69 Pac. 335.

The precise meaning of the word “trial” has become material in the construction of statutes regulating appeal or error costs, criminal procedure, voluntary non-suits, the removal of causes and official fees. The trial was held to be used, not in its limited and restricted, but in its general, sense, including all the steps of a criminal case from its submission to the court or jury to the rendering of the judgment; Hotsenpiller v. State, 144 Ind. 9, 43 N. E. 234. In such a statute it includes as well an issue of law as an issue of fact; Redington v. Cornwell, 90 Cal. 49, 27 Pac. 40; but pleading is not a part of the trial; it does not commence until an issue of fact is joined, so that an error in overruling a demurrer is not an error in law occurring at the trial; Mechanics’ Sav. Palmer v. State, 42 Ohio St. 596; and commences at last immediately after they ar^ sworn; Wagner v. State, 42 Ohio St. 537. Within statutes authorizing extra allowances, there is no trial where no issue is joined on the pleadings; Randolph v. Foster, 3 E. D. Smith (N. Y.) 648; but there was a trial where the plaintiff voluntarily submitted to a non-suit after evidence had been taken on both sides and the summing up was begun; Allaire v. Lee, 11 N. Y. Super. Ct. 609. In a criminal case the trial does ndt include the arraignment and other preliminary proceedings before the jury is sworn; Com. v. Soderquest, 183 Mass. 199, 66 N. E. 801; Byers v. State, 105 Ala. 31, 16 South. 716; nor the holding to bail upon an examination; State v. Gerry, 68 N. H. 495, 38 Atl. 278, 38