Where one credible witness sufficient.

Positive and presumptive proof.

as jurors propter delictum; and, therefore, never shall be
admitted to give evidence to inform that jury with whom they
were too scandalous to associate. Interested witnesses may be
examined upon a voire dire (y), if suspected to be secretly con-
cerned in the event; or their interest may be proved in court.
Which last is the only method of supporting an objection to the
former class; for no man is to be examined to prove his own
infamy. And no counsel, attorney, or other person intrusted
with the secrets of a cause by the party himself, shall be com-
pelled, or perhaps allowed to give evidence of such conversation
or matters of privacy as came to his knowledge by virtue of such
trust and confidence, but he may be examined as to mere
matters of fact, as the execution of a deed or the like, which
might have come to his knowledge without being intrusted in
the cause.
One witness, if credible, is sufficient evidence to a
jury of
any single fact: though the concurrence of two or more
corroborates the proof. Our law considers that there are many
transactions to which only one person is privy; and, there-
fore, the testimony of two is not as in the civil law always
required. But to avoid all temptations of perjury, the law of
England lays it down as an invariable rule, that nemo testis
esse debet in propria causa.

Positive proof is always required where from the nature of the case it appears it might possibly have been had. But next to positive proof circumstantial evidence, or the doctrine of presumption must take place for when the fact itself cannot be demonstratively evinced, that which comes nearest to the proof of the fact is the proof of such circumstances, which either necessarily or usually attend such facts; and these are called presumptions, which are only to be relied Co. Litt. 373. upon till the contrary be actually proved. Stabitur præsumptioni donec probetur in contrarium. Violent presumption is many times equal to full proof; for there those circumstances appear which necessarily attend the fact. As if a landlord

Ibid. 6.

be rated to poor or

repairing bridges. By 55 Geo. 3, c. 51, s. 22, witnesses liable to county rates are competent in matters relating to county rates. By 3 Geo. 4, c. 126, s. 137, inhabitants are competent witnesses under the Turnpike Act; and by 11 Geo. 4 and 1 Wm. 4, c. 27, parishioners are competent witnesses in proceedings under that act for making provision for watching and lighting of parishes.

(y) If it should be discovered at any stage of the trial before the close of a witnesses examination, and before his dismissal that he is interested, his evidence will be rejected. Phillipps and Amos on Evid. cap. 3, p. 884; and that although he may have ventured to deny it on the voire dire; Roscoe on Evid. by Granger. 153.

Witness sworn to depose the whole truth.

Evidence to be given in open

court.

sues for rent due at Michaelmas 1839, and the tenant cannot prove the payment, but produces an acquittance for rent due at a subsequent time in full of all demands, this is a violent presumption of his having paid the former rent, and is equivalent to full proof. Probable presumption arising from Probable presuch circumstances as usually attend the fact, has also its due sumption. weight; as if in a suit for rent due in 1838, the tenant proves the payment of the rent due in 1839; this will prevail to exonerate the tenant, unless it be clearly shown that the rent of 1838 was retained for some special reason, or that there was some fraud or mistake. Light or rash presumptions have no weight or validity. The oath administered to the witness is not only that what he deposes shall be true, but also that he shall depose the whole truth (z), 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 given in open court, each party having liberty to except to its competency, which exceptions are publicly stated, and by the judge are publicly allowed or disallowed. And if either in his directions or decisions he misstates 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 Bill of exwherein he is supposed to err, and this he is obliged to seal by 13 Edw. 1, c. 31. This bill of exceptions is in the nature of an appeal, examinable in the superior court upon a writ of error, after judgment given in the court below (a). But a demurrer to evidence shall be determined by the court out of which the record is sent. This happens where a record or Demurrer to other matter is produced in evidence, as to the legal consequences of which there arises a doubt in law; in which case the adverse 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, which draws the question of law from the cognizance of the jury, to be decided by the court. But neither demurrers to evidence or bills of exceptions are now much in use, since the more frequent exercise of the discretionary powers of the court in granting new trials, which are now commonly had for the misdirection of the judge at nisi prius.

ceptions.

evidence.

(2) The act 5 & 6 Wm. 4, c. 62, which abolished oaths and affirmations taken and made in various departments of the state, provided that oaths then taken in courts of justice should be retained.

(a) Now the court of exchequer chamber.

Evidence of

juror.

Of the sum

As to such evidence as a juror may have from his private knowledge of facts, 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 ming up by the sums up the whole to the jury, omitting all superfluous cirjudge. cumstances, 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 then, unless the case be very clear, withdraw from the bar to consider their verdict, and unless by permission of the judge, are kept without meat, drink, fire, or candle. If they eat or drink at all, or have any eatables before 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. If they speak with either of the parties or their agents after they are gone from the bar, or if they receive any fresh evidence in private, or if to prevent dispute they cast lots for whom they shall Lib. Ass. fol. find, any of these circumstances will entirely vitiate the verdict. If they do not agree in their verdict before the judges leave the town, they may be carried round the circuit.

40, pl. 11.

When agreed, jury return and

When they are all unanimously agreed, the jury return to deliver verdict. 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, if he fails in his suit, as a punishment for his false claim. The amercement is disused, but the form continues, and if the plaintiff does not appear no verdict can be given; but the plaintiff is said to be nonsuit, non sequitur clamorem suum. But it is usual for a plaintiff, when he or his counsel perceives that he has not given evidence sufficient to maintain his issue, to be voluntarily nonsuited or withdraw himself: whereupon the crier is ordered to call the plaintiff, and if neither he or any body for him appears, he is nonsuited, the jurors are discharged, the action is at an end, and the defendant recovers his costs. The reason of this practice is, that a nonsuit is more eligible for the plaintiff than a verdict against him for after a nonsuit, 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 for ever barred from attacking the defendant upon the same ground of complaint.

Nonsuit.

Of the verdict.

A verdict, vere dictum, is either privy or public; but the

only effectual and legal verdict is the public verdict, in which the jury openly declare to have found the issue for the plaintiff or for the defendant; and if for the plaintiff, they assess the damages sustained by him, in consequence of the injury upon which the action is brought (b).

Sometimes, if there arises in the case any difficult matter Special verdict. 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, grounded on the statute West. 2, 13 Edw. 1, c. 30, s. 2, wherein 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 shall 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 (c).

Another method of finding a species of special verdict is of a special when the jury find a verdict generally for the plaintiff; but case. subject to the opinion of the judge or the court above on a

(b) In real actions no damages are recoverable. In mixed actions damages are recoverable either at common law or by virtue of some particular statute. Damages are also recoverable in all personal actions, with the exception of actions upon statutes by common informers for penalties. In most cases damages are the sole object of the action, in some however, they are merely nominal. In assumpsit, covenant, case, trover, and trespass, damages are the sole object of the action. In debt and detinue the damages are in general merely nominal, the recovery of the debt itself in the former, or the value of the articles detained, in the latter, being the object of the action. In replevin, a verdict for the plaintiff gives damages as in trespass. In ejectment the damages are (unless the lessor of the plaintiff proceed under 1 Geo. 4, c. 87) but nominal; see Archbold's Q. B. Prac. by Chitty, 7th ed. 320, 1, 2. By 3 & 4 Wm. 4, c. 42, s. 28, (see the first note to this chapter) the jury are empowered to allow interest upon debts from the time when payable, if secured by written instrument, or otherwise from the time of demand of payment. And by s. 29, the jury may give damages in the nature of interest above the value of the goods at the time of the conversion or seizure in all actions of trover or trespass, de bonis asportatis, and above the money recoverable in all actions on policies of assurance. By s. 30, interest is allowed on all writs of error from the time that execution has been delayed. And by 1 & 2 Vict. c. 110, (see post, page 462, n.) s. 17, judgment debts carry interest at four per cent from the time when entered up, or if then entered up from the commencement of the act, (1 Oct. 1838).

(c) See 3 & 4 Wm. 4, c. 42, s. 24, ante, the first note to this chapter, whereby power is given to the court or judge in the cases of variance between the proof and record stated in s. 23 of the act, to direct the facts to be found specially, and the said court or the court from which the record issued, may, if they think the variance immaterial to the merits, give judgment according to the right and justice of the case.

Discharge of the jury.

special case stated by the counsel on both sides with regard to a matter of law (d); 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 judgment of the court or judge upon the point of law. In both cases, however, the jury may, if they think proper, determine the question of fact and law; and without special verdict or special case, find a verdict absolutely, either for the plaintiff or defendant. When the jury have delivered in their verdict, and it is recorded in court, they are discharged, and so ends the trial by jury.

CHAPTER XXIV.

Of judgment and its incidents.

Of the postea.

OF JUDGMENT AND ITS INCIDENTS.

JUDGMENT and its incidents are the transactions in a cause next immediately subsequent to arguing the demurrer, or trial of the issue.

If the issue be an issue of fact, and upon trial by any of the methods mentioned in the two preceding chapters, it be found for either the plaintiff or defendant, or specially; or if the plaintiff makes default, and is nonsuit; or whatever, in short, is done subsequent to the joining of issue and awarding the trial, is entered on record, and is called a postea. The substance of which is, that postea, afterwards, the said plaintiff and defendant appeared by their attornies at the place of trial, and a jury being sworn, found such a verdict; or that the plaintiff, after the jury sworn, made default, and did not prosecute his suit; or as the case may happen. This is added to the roll, which is now returned to the court from which it was sent; and the history of the cause, from the time it was carried out, is thus continued by the postea.

(d) See 3 & 4 Wm. 4, c. 42, s. 25, ante, the first note to this chapter, whereby power is given to state a special case for the opinion of the court, without proceeding to trial.