sonable charges, to ground an attachment. Cas. Hardw. 313. Stra. 1054.

164. So, where a sum was tendered to a witness, which, in the opinion of the court, was too small, an attachment was refused. 'Stra. 1150.

165. So, where a witness was subpoenaed at home, but no tender of fees made, who afterwards attended at court, but refused to be sworn, although he was there tendered his fees; the court refused an attachment, saying, that a witness improperly subpoenaed was to be considered as a stander by, and it was no contempt for a stander by to refuse to be sworn. Bl Rep. 36.

166 And by the court, the witnesses ought to have a reasonable time to put their affairs in order, that their attendance upon the court may be as little prejudice to themselves as possible. Stra. 510.

167. In criminal cases, if a witness hath been bound over, and does not appear, he shall forfeit his recognizance..

V. OF THE MANNER OF GIVING EVIDENCE.

168. He who affirms the matter in issue, whether plaintiff or defendant, ought to begin to give evidence. Lit. 36.

169. The evidence both for and against a prisoner ought to be upon oath.

But this is not always necessary; and may now be dispensed with, in favour of those whose religious scruples will not permit them to take an oath. See title OATHS'

·

170. It is no satisfaction for a witness to say, that he thinks or persuades himself; and this for two reasons, by Coke Ch. J. 1. Because the judge is to give absolute sentence, and ought to have more ground than thinking. 2. Because judges, as judges, are always to give. judgment, secundum allegata et probata, notwithstanding that private persons think otherwise. Dyer. 53.

171. The court may indulge a prisoner in examining the witnesses. apart, but he cannot demand it of right. St. Tr. V. 4. 9.

172. In cases of life, no evidence is to be given against a prisoner but in his presence. Haw. B. 2. c. 46, sect. 1.

173. In every issue the affirmative is to be proved. A negative cannot regularly be proved; and therefore it is sufficient to deny what is affirmed, until it be proved: but when the affirmative is proved, the other side may contest it with opposite proofs, for this is not properly the proof of a negative, but the proof of some proposition totally inconsistent with what is affirmed: as if the defendant be charged with a trespass, he need only make a general denial of the fact, and if the fact be proved, then he may prove a proposition inconsistent with the charge, as that he was at another place at the time, or the like. ory of Ev. 116, 117.

The

174. But to this rule there is an exception of such cases, where the law presumes the affirmative contained in the issue. Therefore, in an information against lord Halifax for refusing to deliver up the rolls of the auditor of the exchequer, the court of exchequer put the plaintiff upon proving the negative, namely, that he did not deliver

them; for a person shall be presumed duly to execute his office, till the contrary appear. Ibid. 117.

175. A prisoner may not call witnesses to disprove what his own witnesses have sworn. St. Tr. V. 4. 764, 792.

176. A witness shall not be permitted to read his evidence, but he may look upon his notes to refresh his memory. St. Tr. V. 445.

177. A witness shall not be cross-examined, till he has gone through the evidence for the party on whose side he was produced. St. Tr. V. 2. 792.

178. And it seems agreed, that where a witness at one trial varies from his own evidence at another, in relation to the same matter, such variance may be given in evidence to invalidate his testimony at the second trial. 2 Haw. 430.

179. The counsel of that party which doth begin to maintain the issue ought to conclude, Tri. p. pais 220.

180. If, in the course of the trial, either party offer evidence which is thought to be inadmissible by the other, and the court do, notwithstanding, admit it, the party who moved the court to reject the evidence may except to their opinion. See Bull. N. P. 314.

181. But if on the evidence given a doubt in law arises, or either party considers it as insufficient to support the issue joined, he may demur to the evidence, and thus arrest the cause from the cognizance of the jury (except so far as to assess conditional damages) and submit it to the court, on the law arising from the facts stated in the demurrer. See Bull. N. P. 313. Hargrave's Coke Littleton 155. b. note (5.)

182. As bills of exceptions, and demurrers to evidence, frequently occur in practice, it is presumed that the following precedents will be a proper conclusion to this title.

Be it remembered, that on the trial of this cause, the counsel for the plaintiff (or defendant, as the case may be) to maintain and prove the issue, on his part gave in evidence, That, &c (here set out the evidence offered.) To which evidence the defendant (or plaintiff, as the case may be) by his counsel, objected as improper to go to the jury, whereupon the matter was referred to the court; who being of opinion that the said evidence was proper to go to the jury, the defendant (or plaintiff, as the case may be) by his counsel, excepted to such opinion, and prayed that these his exceptions might be sealed and enrolled, pursuant to the act of the General Assembly in that case made and provided; and it is accordingly done.

These exceptions must be signed by a majority of the justices present. 1 Rev. Code, p. 44.

And where a paper was offered as a bill of exceptions to the opinion of the district court (two judges being present) and only signed by one judge, it was held not to operate as a bill of exceptions. 3 H. and M. 219.

Bills of exceptions may also be taken for a misdirection in the judges or justices. See Hargrave's Coke Littleton 156. 3 Bl. 372.

This bill is to prevent the precipitancy of the judges, and ought to be allowed in all courts, and in all places of pleadings, and may be put in any time before the jury have given their verdict. Trials p. pais 229. It must be tendered at the trial; and reduced to writing while the thing is transacting. Bull. N. P. 315.

If a judge allow the matter to be evidence, but not conclusive, and so refer it to the jury, no bill of exception will lie. L. Raym. 404, 405. It ought to be upon some point of law, either in admitting or denying of evidence, or a challenge, or some matter of law arising upon facts not denied, in which either party is overruled by the court. Bull. N. P. 316.

If a bill be tendered, and the exceptions in it are truly stated, the judges ought to set their seals to it; but if the bill contain matters false, or untruly stated, or matters wherein the party was not overruled, they are not obliged to seal it. Bull. N. P. 316. 3 Bl. 372.

If the judge refuses to sign the bill, a writ on the statute may be awarded against him, commanding him to do it. If he returns that the facts are not truly stated, when they are, an action for a false return will lie, and if they are found true, damages will be given, and a peremptory writ commanding the same. 2 Inst. 426.

The party grieved may have a writ of error, and may assign error upon that bill sealed, and also in the record, or in one of them, at his pleasure. F. N. B. 21.

A bill of exceptions has been refused in criminal cases. (1 Lev. 68. Keyling. 15. 1 Sid. 84.) But it has been allowed in an indictment for a trespass. (1 Lem. 5.) Also in an information in nature of a que 1 Vent. 366. See also, Haw. B. 2. c. 46, sect. 1.

zvarranto.

The plaintiff, by his counsel in this cause, produces in evidence to the jury, to prove and maintain the issue joined on his part, That, &c. (here state the evidence.) And the said defendant says, that the aforesaid matters to the jurors aforesaid, in form aforesaid, shewn in evidence by the said plaintiff, is not sufficient in law to maintain the said issue joined, on the part of the said plaintiff, and that he the said defendant to the matter aforesaid shewn in evidence hath no necessity, nor is he obliged by the laws of the land to answer; and this he is ready to verify. Wherefore, for want of sufficient matter in that behalf shewn in evidence to the jury aforesaid, the said defendant prays judgment, and that the jurors aforesaid be discharged from giving any verdict upon the said issue, &c. and that the plaintiff be barred of having a verdict, &c.

Joinder in Demurrer.

And the said plaintiff saith, that he hath given sufficient matter in evidence, to which the defendant hath given no answer, &c. and de

mands judgment, and that the jury be discharged, and that the defendant be convicted, &c.

A demurrer to evidence admits the truth of all facts, which, upon the evidence stated, might be found by the jury in favour of the party offering the evidence. Doug. 133.

The judgment on a demurrer to evidence is, that the evidence was or was not sufficient to maintain the issue. Doug. 223. Bull. N. P. 313. When evidence is demurred to, the jury may assess the damages conditionally. If they do not, and judgment on the demurrer is given for the plaintiff, there shall be a writ of inquiry; and after the execution thereof the defendant may take advantage of any objection to the declaration, by moving in arrest of judgment, or bring a writ of error, Doug. 223.

If one demur properly, the other ought to join. Bull. N. P. 313. For the form of summons for witnesses, see title WITNESSES.?

EXAMINATION.

1. If upon the examination of a prisoner, it manifestly appears that no such crime as that with which he is charged was committed, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only it is lawful totally to discharge him. Otherwise he must either be committed to prison, or give bail; that is, put in securities for his appearance to answer the charge against him. 4 Bl. Com. 296.

2. If by some reasonable occasion, the justice cannot at the return of the warrant take the examination, he may by word of mouth command the constable, or any other person, to detain in custody the prisoner till the next day, and then to bring him before the justice for further examination. And this detainer is justifiable by the constable or any other person, without shewing the particular cause for which he was to be examined, or any warrant in writing. 1 Hale 585.

3. But the time of the detainer must be reasonable, therefore the justice cannot justify the detainer of such a person sixteen or twenty days, in order to such examination. (1 Hale 586.) And three days have been held the utmost time allowed for the above purpose. Cro. Eliz. 829.

The examination of prisoners, and witnesses, in pursuance of the stat. of 2 & 3 Ph. & Mar. c. 10, is not recognized in Virginia. See 4 Tuck. Bl. 296, note 1, and title CRIMINALS."

EXECUTION.

1. EXECUTION is the last step after final judgment; or the putting the sentence of the law in force. (3 Bl. Com. 412.) By some it is called the life of the law; by others the end of the law.

2. Executions are of various kinds. 1. Habere facias seisinam, or writ of seizing of a freehold. 2. Habere facias possessionem, or writ of possession of a chattel interest. These are for the actual possession of lands recovered; and in the execution of them the sheriff may take the posse comitatus, and break open doors, if the possession be not quietly delivered. (3 Bl. Com. 412.) 3. Where some special thing is to be done or rendered by the defendant; as, upon a judgment for the removal of a nuisance, a writ goes to the sheriff to abate it at the charge of the party or, in replevin, the writ de retorno habendo, and if the distress be eloigned, a capias in withernam for the defendant; but on the plaintiff's tendering the damages, and submitting to a fine, the process in withernam shall be stayed; or a distringas, in detinue for the specific thing recovered; or else a scire facias against any third person in whose hands it may be. (3 Bl. Com. 413. 4. A capias ad satisfaciendum (called a ca. sa.) to imprison the body of the debtor till satisfaction be made for the debt, costs and damages. (3 Bl. Com. 414.) 5. A fieri facias (called a fi. fa.) which is an execution against the goods, including a lease for years. (3 Bl. Com. 417.) 6. A levari facias, which affects a man's goods, and the profits of his lands. (3 Bl. Com, 418.) 7. An elegit, by which the defendant's goods and chattels (except oxen and beasts of the plough) are delivered to the plaintiff, by appraisement; and if they be insufficient, then one half his freehold lands, whether held in his own name or by any other in trust for him, are delived, till out of the rents the debt be paid, or the defendant's interest expire. (3 Bl. Com. 418.) 8 A venditioni exponas, concerning which, see 1 Rev. Code, p. 299, sect. 19. Ibid. p. 425.

3. The sheriff may not break open any outer door to execute a ca. sa. or fi. fa. but must enter peaceably, and then may break open any inner door belonging to the defendant. S Bl. Com. 417.

4. By the laws of Virgina, where a ca. sa. is served on a debtor, he may relieve his body by giving up property to the sheriff. (See 1 Rev. Code, p. 301, sect. 29.) This principle was very early engrafted into our laws. See act XI. of February, 164-5. Stat. at Large, vol. 1. p. 294. And act VIII. of November, 1647. Ibid p. 346.

5. If the plaintiff take out no execution on his judgment for a year and a day, he cannot afterwards sue out execution, without a scire facias. See Tidd's Prac. (Riley's edit. 999. &c.

6. But where a fi. fa. or ca. sa. is taken out within the year, and not