circumstances as usually attend the fact, hath also its due weight: as if, in a suit for rent due in 1754, the tenant proves the payment of the rent due in 1755; this will prevail to exonerate the tenant, (b) unless it be clearly shown that the rent of 1754 was retained for some special reason, or that there was some fraud or mistake; for otherwise it will be presumed to have been paid before that in 1755, as it is most usual to receive first the rents of longest standing. Light, or rash, presumptions have no weight or validity at all.28 *The oath administered to the witness is not only that what he de[*372 poses shall be true, but that he shall also depose the whole truth; so that he is not to conceal any part of what he knows, whether interrogated particularly to that point or not. And all this evidence is to be given in open court, in the presence of the parties, their attorneys, the counsel, and all bystanders, and before the judge and jury; each party having liberty to except to its competency, which exceptions are publicly stated, and by the judge are openly and publicly allowed or disallowed, in the face of the country; which must curb any secret bias or partiality that might arise in his own breast. And if, either in his directions or decisions, he mistakes the law by ignorance, inadvertence, or design, the counsel on either side may require him publicly to seal a bill of exceptions, stating the point in which he is supposed to err; and this he is obliged to seal, by statute Westm. 2, 13 Edw. I. c. 31, or, if he refuse so to do, the party may have a compulsory writ against him,(c) commanding him to seal it, if the fact alleged be truly stated: and if he returns that the fact is untruly stated, when the case is otherwise, an action will lie against him for making a false return. This bill of exceptions is in the nature of an appeal, examinable, not in the court out of which the record issues for the trial at nisi prius, but in the next immediate superior court, upon a writ of error, after judgment given in the court below. But a demurrer to evidence shall be determined by the court out of which the record is sent. This happens where a record or other matter is produced in evidence, concerning the legal consequences of which there arises a doubt in law; in which case the adverse remains unimpeached; but it may be impeached on the ground of fraud, and then the consideration becomes the subject of inquiry. But in the case of bills of exchange, the presumption that it was accepted for a good consideration may be rebutted by evidence. So where a fine has been levied, it will be implied that it has been levied with proclamations, (3 Co. 86, b.,) unless rebutted, (Bull. N. P. 229,) and some other like instances; but the presumption in favour of innocence is, it has been held, too strong to be overcome by any artificial intendment of law. 2 B. & A. 386. 2d. Presumptions of law and fact, as that adverse enjoyment, unquestioned for twenty years, of an incorporeal hereditament, presumes a grant; that a bond has been satisfied upon which no interest has been paid, nor other acknowledgment made of its existence, for a like period, (2 Stra. 826. 2 Ld. Raym. 1370;) that there has been a conversion in the case of trover where the defendant refuses to deliver them up. 3d. Natural presumptions. It is the peculiar province of the jury to deal with presumptions of this class; yet, where the particular facts are inseparably connected according to the usual course of nature, the courts themselves will draw the inference; as when a child has been born within a few weeks after access of the husband, its bastardy will be inferred without the aid of a jury. 8 East, 193. All cases of circumstantial evidence may be more or less within this class. And it is obvious that the case put in the text belongs to this division, upon which Mr. Christian has made the following remark : : "This can scarcely be correct. I should conceive that proof may be admitted to repel all presumptions whatever; and even if a receipt should be produced expressly for the rent of the year 1754, still, the landlord might show that it had been obtained by mistake or fraud, and that no rent had been received at the time." In a case of a similar nature tried before Abbott, C. J., at Guildhall, A.D. 1824, the landlord adduced evidence to show the mistake, and recovered.-CHITTY. 28 It is difficult to say what is a light and rash, presumption, if it is any presumption at all. Any circumstance may be proved from which a fair inference can be drawn, though alone it would be too slight to support the verdict of the jury; yet it may corroborate other testimony, and a number of such presumptions may become of importance. Possunt diversa genera ita conjungi, ut quæ singula non nocerent, ea universa tanquam grando reum oppri mant. Matthæus de Crim.-CHRISTIAN. party may if he pleases demur to the whole evidence; which admits the truth of every fact that has been alleged, but denies the sufficiency of them all in point of law to maintain or overthrow the issue; (d) which draws the question of law from the cognizance of the jury to be decided (as it ought) by the court. But neither these demurrers to evidence, nor the bills of exceptions, *373] are at present so much *in use as formerly; since the more frequent extension of the discretionary powers of the court in granting a new trial, which is now very commonly had for the misdirection of the judge at nisi prius.29 This open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth(e) than the private and secret examination taken down in writing before an officer or his clerk in the ecclesiastical courts and all others that have borrowed their practice from the civil law, where a witness may frequently depose that in private which he will be ashamed to testify in a public and solemn tribunal. There an artful or careless scribe may make a witness speak what he never meant, by dressing up his depositions in his own forms and language; but he is here at liberty to correct and explain his meaning, if misunderstood, which he can never do after a written deposition is once taken. Besides, the occasional questions of the judge, the jury, and the counsel, propounded to the witnesses on a sudden, will sift out the truth much better than a formal set of interrogatories previously penned and settled; and the confronting of adverse witnesses is also another opportunity of obtaining a clear discovery, which can never be had upon any other method of trial. Nor is the presence of the judge during the examination a matter of small importance; for, besides the respect and awe with which his presence will (d) Co. Litt. 72. 5 Rep. 104. (e) Hale's Hist. C. L. 254, 255, 256. 29 The matter which the jury has to try is the issue joined upon the pleadings which are copied on the nisi prius record, and at which alone the judge is permitted to look for the question to be tried. Although, therefore, the plaintiff may be able to prove a good cause of action, or the defendant a good defence, that is not sufficient to entitle either to a verdict, unless the proof of it establishes that side of the issue which it is his duty to maintain. When there was no power to amend the pleadings at nisi prius, it accordingly often happened that a party failed on the trial, by reason of some minute discrepancy between the statement of his cause of action or defence and the evidence produced to support it; for though as a rule it is sufficient that the issue shall be substantially proved, it is necessary that it be completely proved. This strictness consequently produced great injustice; for parties perfectly aware of the true nature of the dispute came to trial relying upon some slight misstatement in his adversary's pleadings not material to the merits of the case, and which, had it been discovered in time, would have been corrected. To obviate hardships of this kind, the statute 9 Geo. IV. c. 15 enacted that it should be lawful for any court or any judge sitting at nisi prius, when any variance appeared between any matter in writing or in print produced in evidence and the recital thereof on the record, to cause the record to be forthwith amended in such particular on payment of such costs, if any, to the other party, as such judge or court thought reasonable; the trial thenceforth to proceed as if no such variance had appeared. The statute 3 & 4 W. IV. c. 42, ss. 23, 24 extended this power of amendment to all cases where any variance appeared between the proof and the recital or setting forth thereof on the record, the trial to proceed as if no variance had happened. The powers of amendment given by these statutes have been still further extended, if not superseded, by the provisions of the Common-Law Procedure Act, 1852. Thus, a non-joinder or misjoinder may be amended at the trial; so the evidence of the plaintiff may show a contract or cause of action varying somewhat from that alleged in his declaration; or the defendant's witnesses may make out a defence which has not been pleaded with technical exactness. In either case the declaration or plea may be amended; and this must be done by the presiding judge, so that the real question in controversy between the parties to the cause may be determined in the existing suit. Amendments are generally granted in payment of the costs previously incurred, and which by the amendment have been rendered unnecessary or without result. The defendant may be allowed, if necessary, to plead de novo; in which latter case the further trial of the action is at once stopped and the jury discharged from giving any verdict. If either party is dissatisfied with the decision of the judge, he may apply for a new trial; and if the court think that the amendment was improper, a new trial will be granted.-Kerr. naturally inspire the witness, he is able by use and experience to keep the evidence from wandering from the point in issue. In short, by this method of examination, and this only, the persons who are to decide upon the evidence have an opportunity of observing the quality, age, education, understanding, behaviour, and inclinations of the witness; in which points all persons must appear alike when their depositions are reduced to writing and read to the judge in the absence of those who made them; and yet as much may be frequently collected from the manner in which the evidence is delivered as from the matter of *it. These are a few of the advantages attending this the English way of giving testimony ore tenus. Which was also, indeed, familiar among [*374 the antient Romans, as may be collected from Quintilian, (f) who lays down very good instructions for examining and cross-examining witnesses viva voce. And this, or somewhat like it, was continued as low as the time of Hadrian ;(g) but the civil law, as it is now modelled, rejects all public examination of witnesses. As to such evidence as the jury may have in their own consciences by their private knowledge of facts, it was an antient doctrine that this had as much right to sway their judgment as the written or parol evidence which is delivered in court. And therefore, it hath been often held(h) that though no proofs be produced on either side, yet the jury might bring in a verdict. For the oath of the jurors to find according to their evidence was construed(i) to be, to do it according to the best of their own knowledge. This seems to have arisen from the antient practice of taking recognitions of assize at the first introduction of that remedy; the sheriff being bound to return such recognitors as knew the truth of the fact, and the recognitors when sworn being to retire immediately from the bar, and bring in their verdict according to their own personal knowledge, without hearing extrinsic evidence or receiving any direction from the judge.(j) And the same doctrine (when attaints came to be extended to trials by jury as well as to recognitions of assize) was also applied to the case of common jurors, that they might escape the heavy penalties of the attaint in case they could show by any additional proof that their verdict was agreeable to the truth, though not according to the evidence produced; with which additional proof the law presumed they were privately acquainted, though it did not appear in *court. But this doctine was again gradually exploded, when attaints began to be disused and new trials intro[*375 duced in their stead. For it is quite incompatible with the grounds upon which such new trials are every day awarded, viz., that the verdict was given without, or contrary to, evidence. And therefore, together with new trials, the practice seems to have been first introduced(k) which now universally obtains, that if a juror knows any thing of the matter in issue he may be sworn as a witness and give his evidence publicly in court. When the evidence is gone through on both sides, the judge, in the presence of the parties, the counsel, and all others, sums up the whole to the jury; omitting all superfluous circumstances, observing wherein the main question and principal issue lies, stating what evidence has been given to support it, with such remarks as he thinks necessary for their direction, and giving them his opinion in matters of law arising upon that evidence. The jury, after the proofs are summed up, unless the case be very clear, withdraw from the bar to consider of their verdict; and, in order to avoid intemperance and causeless delay, are to be kept without meat, drink, fire, or candle, unless by permission of the judge, till they are all unanimously agreed. A method of accelerating unanimity not wholly unknown in other constitutions of Europe, and in matters of greater concern. For by the golden bull of the empire,() if, after the congress is opened, the electors delay the election of a king of the Romans for thirty days, they shall be fed only with bread and water, till the same is accomplished. But if our juries eat or drink at all, or have any eatables about them, without consent of the court, and before verdict, it is finable; and if they do so at his charge for whom they afterwards find, it will set aside the verdict. Also if they speak with either of the parties or their *376] agents, after they are gone *from the bar; or if they receive any fresh evidence in private; or if to prevent disputes they cast lots for whom they shall find; any of these circumstances will entirely vitiate the verdict. And it has been held, that if the jurors do not agree in their verdict before the judges are about to leave the town, though they are not to be threatened or imprisoned, (m) the judges are not bound to wait for them, but may carry them round the circuit from town to town in a cart. (n) This necessity of a total unanimity seems to be peculiar to our own constitution ;(0) or, at least, in the nembda or jury of the antient Goths, there was required (even in criminal cases) only the consent of the major part; and, in case of an equality, the defendant was held to be acquitted.(p)31 When they are all unanimously agreed, the jury return back to the bar; and, before they deliver their verdict, the plaintiff is bound to appear in court, by himself, attorney, or counsel, in order to answer the amercement to which by the old law he is liable, as has been formerly mentioned, (q) in case he fails in his suit, as a punishment for his false claim. To be amerced, or à mercie, is to be at the king's mercy with regard to the fine to be imposed; in misericordia domini regis pro falso clamore suo. The amercement is disused, but the form still continues; and if the plaintiff does not appear, no verdict can be given, but the plaintiff is said to be non-suit, non sequitur clamorem suum. Therefore it is usual for a plaintiff, when he or his counsel perceives that he has not given evidence () Mirr. c. 4, 24. (n) Lib. Ass. fol. 40, pl. 11. () See Barrington on the Statutes, 19, 20, 21. (P) Stiern. 7. 1, c. 4. 30 Pending a trial of long duration the jury may be adjourned, and in civil cases may separate; but after the judge has summed up, they cannot separate. 2 Bar. & Ald. 462. -CHITTY. 31 The learned judge has displayed much erudition in the beginning of this chapter to prove the antiquity of the trial by jury; but the trials referred to by the authors there cited, and even the judicium parium, mentioned in the celebrated chapter of magna charta, are trials which were something similar to that by a jury, rather than instances of a trial by jury according to its present established form. The judicium parium seems strictly the judgment of a subject's equals in the feudal courts of the king and barons. And so little appears to be ascertained by antiquarians respecting the introduction of the trial in criminal cases by two juries, that although it is one of the most important, it is certainly one of the most obscure and inexplicable, parts of the law of England. The unanimity of twelve men, so repugnant to all experience of human conduct, passions, and understandings, could hardly in any age have been introduced into practice by a deliberate act of the legislature. But that the life, and perhaps the liberty and property, of a subject should not be affected by the concurring judgment of a less number than twelve, where more were present, was a law founded in reason and caution, and seems to be transmitted to us by the common law, or from immemorial antiquity. The grand assize might have consisted of more than twelve, yet the verdict must have been given by twelve or more; and if twelve did not agree, the assize was afforced, that is, others were added till twelve did concur. See 1 Reeve's Hist of Eng. Law, 241, 480. This was a majority, and not unanimity. A grand jury may consist of any number from twelve to twenty-three inclusive, but a presentment ought not to be made by less than twelve. 2 Hale, P. C. 161. The same is true also of an inquisition before the coroner. In the high court of parliament and the court of the lord high steward a peer may be convicted by the greater number; yet there can be no conviction unless the greater number consists at least of twelve. 3 Inst. 30. Kelyng. 56. Moore, 622. Under a commission of lunacy the jury was seventeen, but twelve joined in the verdict. 7 Ves. Jr. 450. A jury upon a writ of inquiry may be more than twelve. In all these cases, if twelve only appeared, it followed as a necessary consequence that to act with effect they must have been unanimous. Hence this may be suggested as a conjecture respecting the origin of the unanimity of juries, that, as less than twelve-if twelve or more were present-could pronounce no effective verdict, when twelve only were sworn, their unanimity became indispensable. -CHRISTIAN. sufficient to maintain his issue, to be voluntarily non-suited, or withdraw him. self: whereupon the crier is ordered to call the plaintiff and if neither he, nor anybody for him, appears, he is non-suited, the jurors are discharged, the action is at an end, and the defendant shall recover his costs. The reason of this practice is, that a non-suit is more eligible for the plaintiff than a verdict against him for after a non-suit, which is only a default, he may commence the same suit again for the same cause of action; but after a verdict had, and judgment consequent thereupon, he is forever barred from attacking [*377 the defendant upon the same ground of complaint. But, in case the plaintiff appears, the jury by their foreman deliver in their verdict.32 A verdict, vere dictum, is either privy, or public. A privy verdict is when the judge hath left or adjourned the court: and the jury, being agreed, in order to be delivered from their confinement, obtain leave to give their verdict privily to the judge out of court:(r) which privy verdict is of no force unless afterwards affirmed by a public verdict given openly in court; wherein the jury may, if they please, vary from the privy verdict. So that the privy verdict is indeed a mere nullity; and yet it is a dangerous practice, allowing time for the parties to tamper with the jury, and therefore very seldom indulged. But the only effectual and legal verdict is the public verdict: in which they openly declare to have found the issue for the plaintiff, or for the defendant; and if for the plaintiff, they assess the damages also sustained by the plaintiff in consequence of the injury upon which the action is brought. 33 Sometimes, if there arises in the case any difficult matter of law, the jury, for the sake of better information, and to avoid the danger of having their verdict attainted, will find a special verdict; which is grounded on the statute of Westm. 2, 13 Edw. I. c. 30, § 2. And herein they state the naked facts, as they find them to be proved, and pray the advice of the court thereon; concluding conditionally, that if upon the whole matter the court should be of opinion that the plaintiff had cause of action, they then find for the plaintiff; if otherwise, then for the defendant. This is entered at length on the record and afterwards argued and determined in the court at Westminster, from whence the issue came to be tried. *Another method of finding a species of special verdict is when the jury find a verdict generally for the plaintiff, but subject nevertheless to [*378 the opinion of the judge or the court above, on a special case stated by the counsel on both sides with regard to a matter of law; which has this advantage over a special verdict, that it is attended with much less expense, and obtains a much speedier decision; the postea (of which in the next chapter) being stayed in the hands of the officer of nisi prius, till the question is determined, and the verdict is then entered for the plaintiff or defendant, as the case may happen. But, as nothing appears upon the record but the general verdict, the parties are precluded hereby from the benefit of a writ of error, if dissatisfied with the judg ment of the court, or judge, upon the point of law. Which makes it a thing to be wished, that a method could be devised of either lessening the expense of special verdicts, or else of entering the cause at length upon the postea. But in both these instances the jury may, if they think proper, take upon themselves to determine, at their own hazard, the complicated question of fact and law, () If the judge hath adjourned the court to his own lodgings, and there receives the verdict, it is a public and not a privy verdict. 32 When a verdict will carry all the costs, and it is doubtful from the evidence for which party it will be given, it is a common practice for the judge to recommend, and the parties to consent, that a juror should be withdrawn; and thus no verdict is given, and each party pays his own costs. Where there is a doubt at the trial whether the evidence produced by the plaintiff is sufficient to support the verdict given in his favour by the jury, the judge will give leave to apply to the court above to set aside the verdict and to enter a non-suit; but if such liberty is not reserved at the trial, the court above can only grant the defendant a new trial, if they think the plaintiff's evidence insufficient to support his case. 6 T. R. 67.— CHRISTIAN. A privy verdict cannot be given in treason and felony. 2 H. P. C. 300.-CHITTY. |