Where objection is made in a criminal trial to comments on facts not in evidence or exaggerated expressions of the prosecut ing officer, the court should interfere and put a stop to them if they are likely to be prejudicial to the accused ; Graves v. U. S., 150 U. S. 118, 14 Sup. Ct. 40, 37 L. Ed. 1021.
An objection of disorderly conduct of a trial is. within the sound discretion of the trial court ; and it is only when such dis cretion has been abused to the prejudice of the complaining party that the appellate court will interfere ; Gulf, C. & S. F. Ry. Co. v. Curb, 66 Fed. 519, 13 C. C. A. 587, 27 U. S. App. 663.
Judges of courts of equity frequently de cide facts upon mere inspection. The most familiar examples are those of cases where the plaintiff prays an injunction on an allega tion of piracy or infringement of a patent or copyright ; 5 Ves. Ch. 709, and the cases there cited.
Trial at nisi prius. Originally, a trial be fore a justice in eyre. Afterwards, by Westm. 2, 13 Edw. I. c. 30, before a justice of assize ; 3 Bla. Com. 353. See Nisi Psius.
Trial by the record. This trial applies to cases where an issue of nul tiel record is joined in any action.
The trial by record is not only in use when an issue of this kind happens to arise for decision, but it is the only legitimate mode of trying such issue; and the parties can not put themselves upon the country ; Steph. Pl., And. ed. 171; 2 Bla. Com. 330.
Trial by wager of battle. See WAGER or BATTLE.
Trial by wager of law. See OATH DEM I:101ff ; WAGER OF LAW.
Trial by witnesses is a species of trial by witnesses, or per testes, without the inter vention of a jury. This is the only method of trial known to the civil law.
In England, when a widow brings a writ of dower and the tenant pleads that the husband is not dead, this, being looked upon as a dilatory plea, is in favor of the widow, and, for greater expedition, allowed to be tried by witnesses examined before the judges ; and so, says Finch, shall no other case in our law ; Finch, Law 423. But Coke mentions others : as, to try whether the ten ant in a real action was duly summoned; or, the validity of a challenge to a juror : so that Finch's observation must be confined to the trial of direct and not collateral issues.
Trial at bar. A species of trial now seldom resorted to, and, as to civil causes, abolished by the Judicature Act, 1875, was one held be fore all the judges of one of the supreme courts of Westminster, or before a quorum representing the full court. The celebrated case of Reg. v. Castro, otherwise Tichborne v. Orton, L. R. 9 Q. B. 350, was a trial at bar ;. Brown, Diet. See POSTULATION ; OPEN COURT ; PUBLIC TRIAL ; WITNESS.
As to evidence taken at a former trial, See MEMORANDUM.
See, for an article on the conduct of coun sel at trial, 45 Cent. L. J. 292.