
    Francis H. Kinnicutt & wife vs. Maria Stockwell.
    Ho exception lies to a decision of the court of common pleas, overruling a motion made for a new trial on the ground of the alleged incompetency of a juror by reason of interest.
    This was an action of trespass quare clausum fregit, brought to try a question of boundary. After a verdict for the defendant in the court of common pleas, the plaintiff moved in that court for a new trial, on the ground that one of the jurors was interested in an estate, adjoining to a part of a boundary line, another part of which was drawn in question in the present case; and that the juror was, therefore, incompetent to sit in this case, by reason of interest in the question in dispute. And the plaintiff made affidavit that, at the time of the trial, he did not know of the fact, on which the objection to the competency of the juror was placed. At the hearing of the motion for a new trial, it was proved to the satisfaction of the presiding judge, Hoar, J., that the part of the boundary line adjoining the land of the juror had been fixed and established by the consent of the owners of the lots on each side of the line, and by an adverse and continuous occupation for more than twenty years; and that the juror, therefore, was not interested either in the cause or in the question. And the judge overruled the motion for a new trial, and ordered judgment to be entered on the verdict; whereupon the plaintiffs alleged exceptions.
    
      B. F. Thomas and J. Mason, for the plaintiffs.
    
      E. Washburn, for the defendant.
   Shaw, C. J.

As the supposed interest of the juror depends

solely upon facts, the decision of that question belongs exclusively to the judge, on the trial, if the challenge be then made; but if not then known, and a motion for a new trial be made on that ground in the court of common pleas, the same rule must apply, and the decision of the judge is conclusive. Rev. Sts. c. 95, § 27; Borden v. Borden, 5 Mass. 79, 80. The same rule applies when the competency of a witness depends on questions of fact. The decision of the judge is conclusive, unless he prefers to reserve the question. Dole v. Thurlow, 12 Met. 159.

The court are also inclined to the opinion, that any motion for a new trial in the court of common pleas is an application to the discretion of that court, and that then- decision is conclusive; but we do not place our decision of this case on that ground, the other being decisive. Gray v. Bridge, 11 Pick. 189. Exceptions overruled.  