*When several defendants appear by separate attornies, [909] and have separate counsel, if they are in the same interest, only one counsel can be heard to address the jury, and the witnesses are to be examined by one counsel on the part of all the defendants, in the same manner as if the defence were joint. And when there are several counsel on the same side, and a junior has begun to examine a witness, the leader may interpose, take the witness into his own hands, and finish the examination. But after one counsel has brought his examination to a close, a question cannot regularly be put to the witness, by another counsel on the same side. And, if a junior counsel at nisi prius take a well founded objection, which his leader gives up, the court of Common Pleas will not entertain it, in discussing a rule for a new trial or nonsuit on another ground. So, if the leading counsel at nisi prius take one line of case, contrary to the opinion of the junior counsel, that court will not permit the latter to obtain a new trial, upon the ground that he was prepared with evidence to support another line of case, which his leader repudiated.' And if the plaintiff's counsel acquiesce in the judge's ruling at the trial, whereby the defendant takes a verdict, without going into his case, the plaintiff will not afterwards be permitted to move for a new trial, on the ground of a misdirection.TM In a criminal case, a prosecutor conducting his cause in person, and who is to be examined as a witness in support of the indictment, has no right to address the jury, in the same manner as counsel:" And where a defendant, in addressing the jury, is guilty of a contempt, a judge at nisi prius has the power of fining him.° The defendant, on the trial of a misdemeanour, cannot have the assistance of counsel to examine the witnesses, and reserve to himself the right of addressing the jury:P But if he conduct his defence himself, and any point of law arises, which he professes himself unable to argue, the court will hear it argued by his counsel. And where, upon an information for a misdemeanour, the defendant calls no witnesses, the counsel for the prosecution, except in the case of the Attorney general, is not entitled to a reply. If the counsel however for the defendant, on an indictment for a misdemeanour, open new facts in his address to the jury, and afterwards decline calling witnesses to prove the facts *so opened, the counsel [*910] for the prosecution is notwithstanding entitled to a general reply. It frequently happens, that persons are made defendants with others, for the mere purpose of excluding their testimony: In this case, if no evidence whatever be given against the person so improperly made defendant, he may be acquitted immediately after the plaintiff has closed his case, and may then be examined as a witness on behalf of the other defendants; but if there be any, even the slightest, evidence to charge one defendant, he cannot be acquitted 4 Campb. 174. but see 3 Stark. Ni. S. C. and see id. 602. Pri. 162. ¡2 Campb. 280. 3 Taunt. 531. 14 Taunt. 779. 6 Taunt. 336. ☐ 2 Barn. & Ald. 606. 1 Chit. Rep. 352. • 2 Barn & Ald. 329. Þ 3 Campb. 98. a Id. ibid. Peake's Cas. Ni. Pri. 236. immediately, so as to enable him to give evidence for the others, but the case must go altogether to the jury: And the acquittal of one of several defendants is not a matter of right, which the defendants counsel can claim; it being discretionary with the judge at nisi prius, whether he will direct the acquittal of the defendants against whom there is no evidence, at the close of the plaintiff's case, for the purpose of making them witnesses for the co-defendants." So, in an action against several defendants for goods sold, some of whom pleaded bankruptcy, and others the general issue, the court of Common Pleas held, that after the plaintiff had closed his case, and the bankrupt defendants had proved their bankruptcy, one of them could not be admitted as a witness, to shew a dissolution of the partnership prior to the delivery of the goods. In this manner the trial proceeds, unless the parties agree to withdraw a juror; which is frequently done, at the recommendation of the judge, where it is doubtful whether the action will lie; and in such case the consequence is, that each party pays his own costs. In the progress of the trial, either party, if there be occasion, may tender a bill of exceptions, or demur to the evidence. To understand the nature of these proceedings, it should be observed, that in the first stage of that process under which facts are ascertained, the judge decides whether the evidence offered conduces to the proof of the fact which is to be ascertained; and there is an appeal from his judgment, by a bill of exceptions. The admissibility [*911] of the evidence *being 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; with which the judges interfere in no case, but where they have in some sort substituted themselves in the place of the jury in attaint, upon motions for new trials. When the jury have ascertained the fact, if a question arise, whether the fact thus ascertained maintains the issue joined between the parties, or in other words, whether the law arising upon the fact (the question of law involved in the issue depending upon the true state of the fact,) is in favour of one or other of the parties, that question is for the judge to decide. 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 thus ascertained. But if the party wish 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; and the precise operation of that demurrer is, to take t Peake's Evid. 2 Ed. 152,3. Phil. Evid. 4 Ed. 75, 6. "Holt Ni. Pri. 275. per Gibbs, Ch. J. and see 1 Stark. Ni. Pri. 98, 9. where Lord Ellenborough held, that a defendant, against whom no evidence had been given before the plaintiff closed his case, ought not to be acquitted before the whole case was ready for the jury. * 7 Taunt. 599. 1 Moore, 332. S. C. 1 Campb. 268. 2 Campb. 442. 1 Stark. Ni. Pri. 63. 98. For the form of the postea, where a juror is withdrawn, see Append. Chap. XXXVII. § 28. from the jury, and refer to the court, the application of the law to the fact. a b A bill of exceptions then is founded upon some objection in point of law, to the opinion and direction of the court, upon a trial at bar, or of the judge at nisi prius, either as to the competency of witnesses, the admissibility of evidence, or the legal effect of it; or for over-ruling a challenge, or refusing a demurrer to evidence, &c. In these cases it is enacted, by the statute Westm. 2. (13 Edw. I.) c. 31. that "if the party write the exception, and pray that the justices may put their seals to it for a testimony, the justices shall put their seals; and if one will not, another shall: And if the king, on complaint made of the justices, cause the record to come before him, and the exception be not found in the roll, and the party shew the exception written, with the seal of the justice affixed, the justice shall be commanded that he appear at a certain day, to confess or deny his seal: and if the justice cannot deny his seal, judgment shall be given according to the exception, as it may be allowed or disallowed." This statute extends to inferior courts; and to trials at bar, as well as those at nisi prius: but it has been doubted, whether the statute extends to criminal cases. If a judge allow the matter *to be evidence, but not conclusive, and so refer it to the jury, [*912] no bill of exceptions will lie; as if a man produce the probate of a will, to prove the devise of a term for years, and the judge leave it to the jury; because though the evidence be conclusive, yet the jury may hazard an attaint if they please, and the proper way had been to have demurred to the evidence. The bill of exceptions must be tendered at the trial: for if the party then acquiesce, he waives it, and shall not resort back to his exception, after a verdict against him; when perhaps, if he had stood upon his exception, the other party had more evidence, and need not have put the cause on that point. The statute indeed appoints no time; but the nature and reason of the thing require that the exception should be reduced to writing, when taken and disallowed, like a special verdict, or demurrer to evidence; not that it need be drawn up in form, but the substance must be reduced to writing, while the thing is transacting, because it is to become a record. When a bill of exceptions has been tendered, the court will not grant a motion for a new trial, unless the bill of exceptions be abandoned. And if a party who, at the trial of a cause, has tendered a bill of exceptions, bring a writ of error, before he has procured the judge's signature to such bill, he thereby waives the bill of exceptions, and will not be permitted by the court of error, afterwards to tack or append the bill of exceptions to the writ of error.k z 2 H. Blac. 205, 6. a 3 Durnf. & East, 27. 1 Salk. 284. T. Raym. 404. T. Jon. 146. S. C. 1 Blac. Rep. 555. 3 Bur. 1693. S. C. Cowp. 161. 2 Blac. Rep. 929. S. C. d Cro. Car. 341. 2 H. Blac. 208, 9. and see Show. P. C. 120. e 2 Inst. 427. ! See the cases referred to in 1 Bac. Abr. 325. Willes, 535. Bul. Ni. Pri. 316. and stat. 55 Geo. III. c. 42. § 7. as to a bill of exceptions in the jury court in Scotland. 8 T. Raym. 404, 5. T. Jon. 146. S. C. h 1 Salk. 288, 9. i 2 Chit. Rep. 272. * 1 Bing. 17. The bill of exceptions is either tacked to the record, or not: If it be not tacked to the record, it is necessary to set out the whole of the proceedings, previous to the trial;' but otherwise, it begins with the proceedings after issue joined: And in either case, it goes on to state, according to the circumstances, that a witness was produced" to prove certain facts; the particular evidence offered, or given to the jury, in support of the whole or a part of the case; or that a challenge was made, or demurrer to evidence tendered; the allegations of counsel, respecting the competency of the witness, the admissibility of the evidence, or the legal effect of it, &c.; the opinion and direction of the court or judge thereon; the verdict of the jury; and the exception of the counsel, to the opinion given. P [*913] And where the bill of *exceptions respects the legal effect of evidence, the conclusion is as follows: "And inasmuch as the said several matters, so produced and given in evidence for the party objecting, and by his counsel objected and insisted on, do not appear by the record of the verdict aforesaid, the said counsel did then and there propose their aforesaid exception to the opinion of the judge, and requested him to put his seal to this bill of exceptions, containing the said several matters so produced and given in evidence for the party objecting as aforesaid, according to the form of the statute in such case made and provided; and thereupon the aforesaid judge, at the request of the said counsel for the party objecting, did put his seal to this bill of exceptions, pursuant to the aforesaid statute in such case made and provided, on the in the year of the reign, &c." day of On tendering the bill, if the exceptions therein are truly stated, the judges ought to set their seals, in testimony that such exceptions were taken at the trial; but if the bill contain matters false, or untruly stated, or matters wherein the party was not over-ruled, the judges are not obliged to affix their seals; for that would be to command them to attest a falsity. If the judges refuse to sign the bill of exceptions, the party grieved may have a writ, grounded upon the statute commanding them to put their seals juxta formam statuti, &c. This writ contains a surmise of an exception taken and over-ruled, and commands the justices, that if it be so, they put their seals;' upon which, if it be returned quod non ita est, an action lies for a false return, and thereupon the surmise will be tried, and if found to be so, damages will be given; and upon such recovery, there issues a peremptory writ." When the bill of exceptions is sealed, the truth of the facts con tained in it can never afterwards be disputed. And judgment being entered, a writ of error is brought, to remove the proceedings into the court above: for a bill of exceptions is only to be made use of upon a writ of error; and therefore, where a writ of error will not lie, there can be no bill of exceptions. And a bill of *exceptions being no part of the record in the court below, [*914] is not to be included in the taxation of costs there.a Upon the return of the writ of error, the judge is called upon by writ, either to confess or deny his seal; and if he confess it, the proceedings being entered of record, the party assigns error: If the judge deny his seal, the plaintiff in the writ of error may take issue thereupon, and prove it by witnesses. On a writ of error from the court of King's Bench in Ireland, the proper mode is to send a writ from this country to the chief justice of that court, to take the acknowledgment of the seal of the judge at nisi prius. The judgment on the writ of error, as in other cases, is either that the former judgment be affirmed or reversed. If it be reversed, a venire de novo issues; which must be made returnable in the King's Bench, although the judgment was given in the Common Pleas.f A demurrer to evidence is à proceeding, by which the judges of the court in which the action is depending, are called upon to declare what the law is, upon the facts shewn in evidence, analogous to the demurrer upon facts alleged in pleading. The reason for demurring to evidence is, that the jury, if they please, may refuse to find a special verdict, and then the facts never appear on the record: And the question upon a demurrer being, whether the evidence offered be sufficient to maintain the issue, the party, on such demurrer, cannot take advantage of any objection to the pleadings.i A demurrer to evidence is not allowed in the king's case; and therefore if a doubt arise, upon the effect of the evidence, the judge must direct the jury to find the matter specially.< If a matter of record, or other matter in writing, be offered in evidence, to maintain an issue joined between the parties, all the books agree, that the adverse party may insist upon the jury being discharged from giving a verdict, by demurring to the evidence, and obliging the party offering the same to join in demurrer, or waive the evidence: and the reason given for it is, that there cannot be any *variance of matter in writing. The books also agree, that [915] Show. P. C. 120. m y But see 2 Inst. 427. by which it seems, that a bill of exceptions may be also used on a writ of false judgment from the county or hundred courts, or from the court baron. 1 Salk. 284. Rex v. Inhabitants of Preston, Bul. Ni. Pri. 316. 1 Blac. Rep. 679. Cowp. 501. but see 2 Lev. 236. a 1 Bos. & Pul. 32. b Rast. Ent. 293. b. 3 Bur. 1693. 1 Blac. Rep. 556. S. C. C 1 Lutw. 905, 6. And for assignments of and other proceedings in error, on bills VOL. II.-22 |