can be questioned only concerning material or relevant facts, or concerning matters necessary to explain such facts. Except in the case of adverse witnesses, no question, which suggests the desired answer, can be asked concerning any material or relevant fact; nor can a question, which assumes the existence of a fact not yet established, be permitted. The witness may, when necessary, assist his memory by reference to written memoranda, provided he can thereupon testify to the facts from his own recollection. On cross-examination a far greater latitude is allowed. Leading questions, suggesting the desired answer to the witness, may be employed. Collateral facts may also be elicited, and questions may be asked concerning almost any matter, which, in the discretion of the judge, may appear proper in order to test the veracity and knowledge of the witness. A witness cannot, however, be cross-examined as to any immaterial and irrelevant fact, merely for the purpose of contradicting him by other evidence. The re-direct examination is intended to enable the witness to explain the statements made on cross-examination, and is governed by the same general rules as the direct. Read Bac. Abr., Evidence E 1. 3 Chitty Gen. Prac., pp. 890–903. 1 Starkie Ev., pp. 146–254. § 302. Of the Burden of Proof. The burden of proof, or the duty of supporting his position by a preponderance of evidence, rests on the affirmative. This may be either the plaintiff or defendant, according to the nature of the issue. The affirmative also usually goes forward in the presentation of his claims and in supporting them by evidence, and the negative having followed with his claims and proof, the contest is then closed by the affirmative. Read 1 Starkie Ev., pp. 585–595. 1 Greenleaf Ev., §§ 74-81. § 303. Of Presumptions. The admissibility of the evidence offered on the trial is to be determined by the judge, according to the settled rules of law, or, in cases where no rule exists, according to his own discretion. The sufficiency and weight of evidence are to be, in almost every case, determined by the jury. There are, however, certain classes of facts, from which the law conclusively infers the existence or non-existence of other facts, and the jury are, therefore, compelled to find the latter whenever the former have been proved. From other classes of facts the law infers, but not conclusively, the existence or non-existence of other facts, and the jury, in such cases, are compelled to find the latter, only when the former have been proved, and when the inference, which the law usually derives therefrom, has not been rebutted. The rules of law, necessitating these conclusive or prima facie inferences, are called presumptions. The jury are also compelled to decide in accordance with the evidence actually presented; and a verdict clearly against the evidence is illegal, and will be set aside by the court on due application, and a new trial granted. Read 3 Bl. Comm., pp. 371, 387. Bac. Abr., Evidence H. 1 Starkie Ev., pp. 70-80, 96–101, 741–763. Burrill Circ. Ev., pp. 9–75. § 304. Of the Charge of the Judge. After the evidence is closed and the arguments of counsel have been made, the judge instructs the jury in those rules of law, which are to guide them in arriving at their verdict. This instruction is called the charge, and in it he must not only state the law correctly, but so clearly and completely as to enable the jury to properly apply the evidence, and to decide legally every question embodied in the issue. Any default of the judge, in this respect, may become ground for a new trial, at the instance of the party prejudiced thereby. Read 3 Bl. Comm., p. 375. 3 Chitty Gen. Prac., pp. 911-916. § 305. Of the Deliberations of the Jury. The charge being finished, the jury deliberate in private upon the questions thus submitted to them, having before them the pleadings, documents, depositions, and other written evidence. The oral evidence they are expected to remember, and, if they do not remember it, they should return to the court-room, and hear anew so much of it as they may have forgotten. They cannot give evidence to each other, or examine any witness by themselves. If they are in doubt concerning any question of law, which was, or should have been, embraced in the charge, they may return and receive additional instructions. If, after due deliberation, they cannot agree on a decision, they report the disagreement to the judge, who takes back the papers and orders a new trial before another jury. When they do agree, they return into the court-room, and announce their decision in the mode prescribed by the statutes or the rules of court. This decision is called a verdict. Read 3 Bl. Comm., pp. 375, 376. 2 Tidd Prac., pp. 916, 917. § 306. Of the Verdict. A Verdicts are of two kinds: General and Special. general verdict finds the issue, in general terms, for the plaintiff or defendant, and is presumed to embrace a decision upon every question of fact presented in the issue. A special verdict recites all the facts in detail, as the jury find them to have been proved, and prays the advice of the court thereon; concluding conditionally, that if, upon all the facts so found, the court should be of the opinion that the plaintiff had a cause of action, then the verdict is for the plaintiff; if otherwise, for the defendThe latter form of verdict is seldom adopted. ant. Read 3 Bl. Comm., pp. 377, 378. Bac. Abr., Verdict. Com. Dig., Pleader S. 2 Tidd Prac., pp. 928-932. § 307. Of New Trials. The verdict of the jury has no validity until accepted by the judge. Any illegal conduct, in relation to the action, on the part of one or more of the jurors, or on the part of the prevailing party in relation to the jury; any material contradiction between the facts found by the verdict and the facts established by the evidence; any palpable variance between the rules of law delivered in the charge, and the rules by which the jury have been guided in their application of the testimony, or their decision of the issue; when duly brought to the attention of the judge, renders it his duty to set aside the verdict and to order a new trial. Proceedings for this purpose are usually by motion, addressed orally or in writing by the defeated party to the judge, upon the allegations in which witnesses may, if necessary, be examined. Read 3 Bl. Comm., pp. 378, 386–393. Com. Dig., Pleader R 17. 1 Graham and Waterman N. T., Introd. pp. 1-502. 2 Graham and Waterman N. T., pp. 1–50. § 308. Of Arrest of Judgment. Where it is apparent on the face of the pleadings that the verdict is improper, or that if accepted it cannot be sustained, a motion in arrest of judgment may be made by the defeated party, which, if successful, will result in the refusal of the judge to accept the verdict as the basis of a judgment, and in an order for the reconstruction of the pleadings from the point where the first defect appears. This correction of the pleadings is known as a repleader. When a verdict has been improperly rendered in favor of the defendant, and when neither on his present plea, nor on any other plea which he can offer, a verdict in his favor can legally be given, the judge may order a judgment non obstante veredicto to be entered for the plaintiff. Upon these motions, only material defects in the pleadings can be regarded, all formal defects being cured by verdict. Read 3 Bl. Comm., pp. 393-395. Com. Dig., Pleader R 18, S 47. 1 Chitty Pl., pp. 655-657. 2 Tidd Prac., pp. 949-954. |