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deposition of a witness, is not evidence for this purpose (1). In answer to such evidence, and for the purpose of corroborating the testimony of the witness, the Ch. B. Gilbert is of opinion that the party, who called him, may shew that he affirmed the same thing before on other occasions, and that he is still consistent with himself. (2)

If an attesting witness to a will or deed impeach its validity on the ground of fraud, and accuse other subscribing witnesses, who arc dead, of being accomplices in the fraud, the party claiming under the instrument may give evidence of their general good character. For, if living, they might be produced as witnesses, and their character would then appear in cross-examination; and after their death an opportunity ought to be given, to shew what credit is to be attached to their attestation (3). But in a case, where a witness for the plaintiff asserts one thing, and a witness for the defendant asserts another, and direct fraud is not imputed to either, evidence to general character is not admissible. (4)

A party will not be permitted to produce general evidence, to discredit his own witness. "This," says Mr. J. Buller, "would enable him to destroy the witness if he spoke against him, and to make him a good witness if he spoke for him, with the means in his hand of destroying his credit if he spoke against him (5)." The meaning of this rule is, that a party cannot prove his own witness to be of such a general bad character, as would make him unworthy of credit. If he knew the infamy of his character, he was practising a fraud upon the court in producing him as a witness. But if a witness unexpectedly give

(1) R. v. How 6 Esp. N. P. C. (3) Doe dem. Walker v. Stephenson, li5. I Campb. 4%i. S. C. 3 Eap. N. V.C. 284, 4 E«p. N. P. C.

(2) Gilb. Ev. 135. See Lmterel v. 50; cited and approved in I Campb. Reynell, I Mod. 282, where this con- 210.

nimatory evidence was offered in chief, (4) Bp. of Durham v. Beaumont,

which would not now be allowed; and 1 Campb. 2,07.

it is doubted in Buller's N. P., p. 294, (c) Bull. N. l'.ao?.

whether it is good evidence in rtfly.

P 3 evidence evidence against the party that called him, another witness may be called to prove those facts otherwise; as, where the question was, whether the-defendant's servant, who had been employed to sell a horse, had warranted him sound, he swore, on being called by the plaintiff, that he had not given any warranty; and Lord Ellenborough allowed the plaintiff to call another witness to prove, that at the time of the sale he had expressly warranted its soundness. There can be no rule of law, by which the truth on such an occasion is to be shut out, and justice perverted. (i)

(i) Aleunder v. Gibson, 1 Campb. SS6. Bull, N P 197.

CHAP. IX.

On Bills of Exceptions, and Demurrers to Evidence.

r I 'HE competency of witnesses and the admissibility of evidence are to be decided by the judge who tries the cause, and from his judgment there is an appeal, by a bill of exceptions.

Bill rf ex- At common law, a writ of error could not be brought cepuoM. fm error in law, which not appear on the record;

and therefore where the plaintiff or defendant alleged any thing ore tenus, which was over-ruled by the judge, the party aggrieved had no redress (2). To remedy this defect, it was enacted by stat. 13 Ed. 1. s. 31. "if one, impleaded before any of the justices, allege an exception, praying that the justices will allow it, that, if they will not, and if he write the exception and require the justices to put their seals to it, the justices shall do so, and if one will not, another shall."

This statute extends to the plaintiff as well as the defendant (3), and to a trial at bar as well as at nisi prius(4).

(2) 2 Inst. 426. Adm. per Cur. in Duchess of Grafton

(3) 2 Inst. 427. v.Holt, Skin. 354. R. v. Smith, 2 Show.

(4) Thurston r. SUtford, 3 Salk. 1 ; 287, contri.

But But it has been doubted, whether it extends to criminal cases. Lord Coke, in his exposition of the statute, states that it extends to all actions, real, personal, and mixed; but of criminal cases he makes no mention. In the case of Sir H. Vane(1), who was tried for high treason, the Court refused to sign a bill of exceptions, "because," they said, ** criminal cases were not within the statute, but only actions between party and party." From this authority Mr. Serjt. Hawkins infers only, that a bill of exceptions is not allowable on an indictment for treason or felony (2). *' Whether a bill lies not in any criminal case," said Lord Hardwicke, "is a point not settled (3)." It was allowed in the case of the King against Lord Paget and others, on an indictment for a trespass (4), and also on an information in the nature of a quo warranto (5). But Lord Hardwicke, in the case before referred to, after saying "that he had known a bill of exceptions allowed in informations in the Court of Exchequer, which are civil suits for the king's debt," added, "it has never been determined to lie in mere criminal proceedings in other courts (6)." A bill of exceptions cannot be allowed by the justices of the peace at the Quarter Sessions on the hearing of an appeal against an order of removal (7). It can be used only on a writ of error, and therefore where a wit of error will not lie, there cannot be a bill of exceptions. (8)

A demurrer to evidence is a proceeding, by which the Demurrer judges, whose province it is to determine questions of law, t0 *videnct are called upon to declare what the law is upon the facts in evidence. And it is analogous to the demurrer upon facts alleged in pleading. (9)

(l) iLev.68; Kel.lS.S.C.5 I Sid. (6) Rep. temp. Hard. 151.

83. S.C. gfe (7) See (3).

(i) PI. Cr. KWc.46. s. 210. (8) Bull. N. P. 316.

(3) R. v. Inhabitants of Preston, (9) See the judgment of Eyre C. J. Rep. temp. Hard. in Gibson and Johnson v.Hunter, iH.

(4) 1 h(on. $. Bl. 20 r, 206. (c) R.v.Higgins and others, 1 Vefitr.

366.

P 4 When

When the admissibility of the evidence has been established, the question, how far it conduces to the proof of the fact, which is to be ascertained, is not for the judge to decide, but for the jury exclusively. And when the jury have ascertained the fact, if a question arises, whether the fact thus ascertained maintains the issue joined between the parties, or, in other words, whether the law arising upon the fact is in favour of one or other of the parties, that question is for the judge to decide (i). Ordinarily, he declares to the jury what the law is upon the fact which they find, and then they compound their verdict of the law and fact. But if the party wishes to withdraw from the jury the application of the law to the fact, and all consideration of what the law is upon the fact, he then demurs, in law upon the evidence. (2)

It is reasonable that either party should have such a power of referring to the Court to decide what the inference of law is upon the facts; as the jury may refuse to find a special verdict, in which case the facts would not appear on the record. On the other hand, as it is the peculiar province of the jury, to ascertain the truth of facts and the credibility of witnesses, the party ought not to be allowed, by a demurrer to evidence, or any other means, to refer the trial of such questions to another tribunal. A demurrer must therefore admit the truth of all facts, which the jury might find in favour of the other party, upon the evidence laid before them, whatever the nature of that evidence may be, whether of record, or in writing (3), or by parol (4), According to Alleyn's report of the case of Wright v. Pindar, it was resolved, "that he that demurs upon the evidence ought to confess the whole matter of fact to be true, and not refer that to the judgment of the Court; and if the matter of fact be uncertainly allegec^or that it be doubtful whether it be true or no, because offered to be

(1) 2 H. Bl. 205. (3) Baker's case, 5 Co. Rep. 104.

(a) lb. (4) Wright v. Piudir, AUeyn, 18.

proved only by presumptions or probabilities, and the other party demurs thereupon, he that alleges this matter cannot join in demurrer with him, but ought to pray the judgment of the court, that he may not be admitted to his demurrer, unless he will confess the matter of the fact to be true." And now it is an established rule, that, in a demurrer to circumstantial evidence, the party offering tho evidence is not obliged to join in demurrer, unless the party demurring will distinctly admit upon the record every fact and every conclusion, which the proposed evidence conduces to prove. (1)

If, in an information, or any other suit, evidence be given for the king, and the defendant offers to demur upon it, the king's counsel cannot be compelled to join in demurrer, but in such case the Court ought to direct the jury to find the special matter; and, upon that, they shall adjudge the law. (2)

When all matters of fact are admitted, the case is ripe for judgment in matter of law upon the evidence, and may then be properly withdrawn from the jury; and being entered on record, it will remain for the decision of the judges. (3)

The whole proceeding upon a demurrer to evidence is under the control and direction of the judge at nisi prius, qr of the Court on a trial at bar. The Court, said Mr. J, Doddridge in the case of Worsley v. Filisker (4), may deny and hinder a party from demurring, by over-ruling the matter in demurrer, if it seem to them to be clear in law. And in that case the Court did over-rule the dev murrer, and left the case to the jury,

(1) Gibson and Johnson v. Hunter, (3) 1 H. BL 108. 1 H. Bl. 187. (4) 1 R*U. Rep. 119. Bull. N. P,

{2) 5C0.Rep.I04. 3'4.

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