cide, 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 (1). 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) (a). 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 alleged, or that it be doubtful whether it be true or no, because offered to be *proved only by presumptions or probabilities, and the other party demurs thereupon, he that alleges this (1) 2 H. Bl. 205. (2) Ib.

(3) Baker's case, 5 Co. Rep. 104.
(4) Wright v. Pindar, Alleyn 18.

(a) Vide Hurst v. Dippo, 1 Dall. 20.

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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 (a)." And now it is an established rule, that, in a demurrer to circumstantial evidence, the party offering the 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,

(1) Gibson and Johnson v. Hunter, 2 H, Bl. 187.

(a) Every inference, which the jury might fairly have drawn from the evidence, in favour of the party offering it, will on a demurrer to evidence be considered as admitted. Cocksedge v. Fanshaw, 1 Doug. 119. Patrick v. Ludlow, 3 Johns. Cases 10. Forbes v. Church, Id. 159. Steinback v. Columbian Insurance Company, 2 Caines' Rep. 134. Smith v. Steinback, 2 Caines' Cases in Error 158. Lewis v. Few, 5 Johns. Rep. 29. Snowden v. Phœnix Insurance Company, 3 Binney 457. Stephens v. White, 2 Wash. 203. In Paulding & others v. The United States, 4 Cranch 219., Marshall, Ch. J. states the doctrine on this point in these words :"The party demurring admits the truth of the testimony to which he demurs, and also those conclusions of fact which a jury may fairly draw from that testimony. Forced and violent inferences he does not admit; but the testimony is to be taken most strongly against him, and such conclusions as a jury might justifiably draw, the court ought to draw." In Patrick v. Hallett & Bowne, 1 Johns. Rep. 241., Livingston, J. says;-"If there were any evidence, now, from which a jury might have drawn this conclusion," (that the vessel was seaworthy) "it must be considered as admitted by the demurrer, and that too, without any scrupulous inquiry, whether such inference would be correct or not, for courts should not encourage this practice. It is not only productive of considerable delay and expense, but unless all inferences are admitted, which a jury might have drawn, judges, instead of confining themselves within their province of deciding on questions of law, will also become triers of every matter of fact."

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, or 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 overruling the matter in demurrer, if it seem to them to be clear in law. And in that case the Court did overrule the demurrer, and left the case to the jury (b).

(2) 5 Co. Rep. 104.

(3) 2 H. Bl. 208.

(4) 2 Roll. Rep. 119. Bull. N. P. 314.

(b) Vide Wroe v. Washington & others, 1 Wash. 357. Harrison v. Brock, 1 Mun. 22.

END OF PART 1.

PART THE SECOND.

ON WRITTEN EVIDENCE.

THE preceding chapters having treated of the competency of witnesses, and of parol or unwritten evidence, it is now proposed to inquire into the several kinds of written evidence.

Some public

Writings are either public or private. writings are of record; others not of record. And public writings not of record, may be distinguished into such as are of a judicial character, and such as are of a public nature, but not judicial. In this order it is proposed to treat of the several kinds of written evidence; and to consider, first, in what cases they are admissible; and, secondly, if admitted, how they ought to be proved.

Records.

CHAP. I.

Of Acts of Parliament.

RECORDS are the memorials of the legislature, and of the
King's courts of Justice (a); and they are considered of

(a) That the proceeding of a court may have the effect of a record, it must be enrolled: thus, where on an issue of nul tiel record, a judgment was produced, and to rebut that evidence the plaintiff produced a rule setting aside the judgment for irregularity, the court held that the writing on the minutes could not be received as evidence against the record. The Court say; 66 It appears to be contrary to all the well settled technical rules upon the subject to give the entry that effect. A record imports verity and can only be tried by itself. The vacatur ought to be enrolled or entered of

such authority, that no evidence is allowed to contradict them (1) (b). Thus, if a verdict, finding several issues, were to be produced in evidence, the opposite party would not be allowed to show that no evidence was offered on one of the issues, and that the finding of the jury was indorsed on the postea by mistake (2). So, where the declaration stated that a precept issued, directed to the mayor of a borough, *and, on producing the precept, it appeared to have been written, thus, "to the mayor and commonalty," but the two latter words had been struck through with a pen, the court refused to admit evidence, that those words had not been obliterated, when the precept was delivered and returned (1). An officer, who has the care and custody of records, may be examined as to their condition, though he cannot be examined as to their matter or contents (2).

A record, then, is conclusive proof, that the decision or judgment of the Court was, as is there stated: and evidence to contradict it will not be admitted. But it will not be conclusive as to the truth of allegations, which were not material nor traversable (3). Thus, for example, a party will not be estopped from averring, in an action of debt on a bond, that the bond was made at A., though in a (2) Leighton v. Leighton, 1 Str.

(1) Co. Lit. 117. b. 260. a. Gilb. Ev. 5. Bull. N. P. 221.

(2) Reed v. Jackson, 1 East 355. (1) Dickson v. Fisher, 4 Burr.

210.

(3) Co. Lit. 352. b.

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2267; 1 Black. 664., S. C.

record, as much as the rule for judgment.

The court could not

receive the entry on the minutes of the rule for judgment, as evidence to support a plea of a former recovery, and why should an entry vacating a judgment be received to contradict the enrolment of the judgment? The maxim in this, as well as in other cases is, that nihil tam naturale quam quidlibet dissolvi eo modo quo ligatur. To give an entry on the minutes that authority, would destroy the certainty, order, and solemnity of enrolments; and it has been frequently held, that the courts cannot regard any proceeding as a matter of record until it is enrolled." Croswell v. Byrnes, 9 Johns. Rep. 287.

(b) Vide Leech v. Armitage, 2 Dall. 125.