Nichols v. Munsel

115 Mass. 567, 1874 Mass. LEXIS 254

Opinion

Gray, C. J.

1. The single issue presented by the pleadings was whether the demandant had been lawfully married to Dan-forth Nichols. Upon that issue, the burden of proof rested on her throughout the trial. Evidence that she had gone through the legal form of marriage with him made a primá facie case for her; and so the judge ruled. But it did not change the burden of proof. Powers v. Russell, 13 Pick. 69. Delano v. Bartlett, 6 Cush. 364. Central Bridge v. Butler, 2 Gray, 130.

2. We can see no foundation for the argument that the action of the presiding judge was compulsory in its nature, and an improper interference with the deliberations of the jury.' The proper mode of communication between the judge and the jury is in open court. It is within the discretion of the judge to have the jury brought in at any time for the purpose of ascertaining whether they have agreed or desire additional instructions; and to restate the evidence and the principles of law applicable to it, so far as he considers necessary or fit to assist them in deciding the case, even if they do not request it. Gen. Sts. c. 132, § 34. Sargent v. Roberts, 1 Pick. 337. Commonwealth v. Snelling, 15 Pick. 321. Florence Sewing Machine Co. v. Grover & Baker Sewing Machine Co. 110 Mass. 70. Exceptions overruled.