Witneffes to wills may be fworn before the next affistant or jus tice of the peace, and the oath entered on the back of it, which fhall be as effectual as if they appeared before the court in perfon. If a perfon refufe to appear, and give his depofition, he is liable to the fame penalty as for refusing to appear before a court as a witness.

It has been determined by our courts that when depofitions are taken out of the ftate notice fhould be given to the adverse party, or to his known agent, or attorney if within twenty miles of the caption, and if the party himself lives out of the state, and has a known agent, or attorney in the ftate, he fhall be notified.

That where depofitions are taken in this ftate, within twenty miles of the adverse party, who lives out of the ftate, notice mult be given him to attend at the time of taking, or they will not be admiffible. When feveral are joined in a fuit, depofitions cannot be improved against fuch of them as are not notified of the taking, but each perfon must have notice, if within the distance the ftatute prescribes.

d That where the adverfe party within this ftate lives more than twenty miles from the place of caption, if he has a known agent or attorney within twenty miles, fuch agent or attorney must be notified but as this decifion is clearly against the ftatute, it is not probable that it will long be confidered as law. • That a deposition drawn by the plaintiff, copied by a third person and afterwards fworn to before a juftice, the adverfe party cited and prefent, and an addition made by the juftice, might not be read excepting that part added by the juftice. That depofitions are admiffible in qui tam actions. But this must be understood to be where no corporal punishment can be inflicted.

10. Of Demurrer to Evidence. g If the plaintiff or defendant give in evidence matter of record, or writings, or parol evidence, on which a doubt in law arifes, the other fide may demur to the evidence; otherwise if there be a doubt whether the fact be well proved; for the jury may find it on their own knowledge.

A demurrer to evidence, is an admiffion of the truth of the fact

Kirh. Rep. I

Mofes vs. Geer. S. C. 179r. Kirb. too. C vs. Fitch, S. c. Grifwold vs. Grifwould, S. C. 1791 Geer, S. C. 1791. g Co. Lit. 72 2 Bac. Abr. 136, 137. 494. Bull. N. P. 113. I Morg. Elays. 448.

alledged

d Williams f Mofes vs.

Allcu, 18. Ray.

alledged by the adverfe party, or an acknowledgment that the evidence produced by him at the trial of the caufe, is true; but denies its operation and effect in law, and thereupon the party demurs and prays the judgment of the court: for the fact being agreed on, the judges are the proper expofitors of the law, and are to determine the fame, and not the jury: but if a matter of evidence which is thought material be offered, and the court difallow or over-rule it, this is a proper matter for a bill of exceptions.

He that demurs to evidence ought to confefs 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 alledged, or if it be doubtful whether true or not, becaufe offered to be proved only by prefumptions and probabilities, and the other party will demur thereon, he that alledges the matter cannot join in the demurrer with him, but ought to pray the judgment of the court, that he may not be admitted to his demurrer, unless he will confefs the matter of fact to be true.

The practice in this ftate has been for the party demurring, to fate the whole of the evidence in writing, and pray judgment of the court whether the fame be fufficient to fupport the issue; and if there be a joinder in the demurrer, the jury are to be dismissed. Where a demurrer to evidence on the trial of an iffue by the jury is properly taken, the other party is bound to join by the common law: but on a question whether on a demurrer to evidence on a trial before a justice of the peace, the juftice was bound to compel the other party to join in the demurter, a the fuperior court determined that a party is not compellable to join in a demurrer to parol evidence, and remarked that where an iffue in fact is put to the court, who are judges of law, as well as of fact, the propriety of demurring to evidence, is very questionable. It has alfo been decided that there is no propriety in demurring to parol evidence, before a juftice of the peace, as it ferves but to entangle his proceedings, and bring a re-hearing of the caufe before the fuperior court, upon a partial ftating of the teftimony, when the queftions are too trifling for an appeal to the common pleas.

There feems to be no propriety in demurring to evidence where a Bolkly vs. Clark S. G. 1793.

Kirb. Rep. 352.

the

the iffe in fact is tried by the court, if the court has final jurif diction; but where the facts are uncontested and the party withes to remove the cause to a higher jurifdiction, to obtain their opinion, it may be proper to allow a demurrer to evidence, which lays a foundation for a writ of error. a But the question has lately been decided. In the cafe of the town of Hampton, vs. the town of Windham, after the parties had agreed on a statement of the evidence which was chiefly written, the plaintiffs refused to join in demurrer; in confequence of which, on a motion to the court to order it, the question came regularly before the court, whether the facts being fairly stated, they would compel a joinder in demurrer to evidence, and the court decided that it was optional with the party and refused to compel it.

This decifion is not only repugnant to the common law, but clearly militates against the first principles of our jurifprudence. It is a firft principle, that the judges are to decide queftions of law, and the jury matters of fact. One of the modes by which questions of law are to be brought before the court is, by demurrer to evi. dence: if the court cannot compel a joinder in demurrer, there is an end of that mode of proceeding: for a party when he knows the law is against him, will infist on a trial of the question of law by a jury, and from their ignorance of the law, may hope for a decifion in his favour.

The inconfiftency of the judgment in the cafe cited, is very strikingly manifefted from the cafe itself. All the facts were agreed to by the parties, fo that none were left for the jury to find. The only question was whether they were fufficient in law to fupport the declaration. The confequence was, that a mere question of law was fubmitted to the confideration of the jury. They found a verdict contrary to the opinion of the court, and yet the verdict of the jury must stand; for the facts not appearing of record, the court cannot revife or correct the erroneous opinion of the jury refpecting the law; but if they had compelled a joinder in demurrer to the evidence, the facts would have been before them, and they could have decided with refpect to their legal effect-That fyftem of jurifprudence muft be defective, where the jury can decide a question

LI

Town of Hampton, vs. Town of Windham, Sup. C 1795.

queftion of law contray to the opinion of the court; and there is no mode by which it can be revised and corrected. It is making the jury final judges in points of law over the head of the courts, and is destroying the boundaries between the provinces of the judges and jury.

• A demurrer to evidence admits the truth of every conclufion of fact, which the jury could have inferred from the evidence demurred to, and the only question for the confideration of the court, is whether the evidence is fufficient to fupport the iffue; and in their judgment they must decide whether it be fufficient or infufficient. By the English law, on a demurrer to evidence the party cannot take advantage of any objection to the pleadings: but as our mode of proceeding is different in refpect of affeffing damages, I prefume on a demurrer to evidence, the party may take advantage of any defect in pleadings, in the fame manner as he can in an iffue in fact put to the court; and that if the court find the evidence fufficient to fupport the iffue for the plaintiff, yet if the declaration be infufficient, judgment will not be rendered in his favour. In cafes where judgments are rendered upon a demurrer to evidence in favour of the plaintiff, damages will be affeffed by the court, in the fame manner as in cafes of default.

When the parties have closed their evidence, the council for the party that takes the iffue, opens the caufe, and begins the argament. He is followed by the council of the oppofite party, and the argument is closed by the council on the fide that opened the cause.

He

The judge then publicly gives the charge to the jury. ftates the cafe, and the evidence, with the arguments of the council, of each party, both with respect to the facts and the law. The court give no opinion with regard to the points of law arising in the cafe, nor does the judge give them any direction how to find the verdict, but the whole cafe is committed to them as relative to the law arifing out of the facts, as well as the facts themselves.

The jury then retire to some private apartment under the care of fome officer appointed by the court, ufually a constable of the town where the court fits, and there deliberate upon the fubject.

a Doug. 134.

Ibid.

Jurors

Jurors are not confined in this state in the manner they are in England; but have liberty to eat, and drink, and go where they please : but may not converse with any person about the cause under confideration, or take any new evidence, or inform what the verdict is till it is given up in court. They muft unanimously agree upon a verdict, which is in many inftances productive of delay, and may give an obftinate juror the power of controuling all the reft. If the jury cannot agree on a verdict, our courts have never adopted any coercive measures, but have taken back the papers.

After the jury have agreed upon a verdict, they return it into court, and if the parties appear, the verdict is delivered to the clerk, and read publicly. If it is approved of, and accepted by the court it is ordered to be recorded; but if a majority of the court difapprove of the verdict, they may return them to a fecond, and a third confideration; but on a third confideration îf the jury adhere to their first verdict, the court muft order it to be recorded. When the court return the jury to a further confideration of the caufe, they give their reafons at large with their opinion, both with refpect to the law and the facts. It may therefore be confidered as a principle of our jurisprudence that in all iffues in fact tried by the jury, they are equally the judges of the facts, and the questions of law involved in the facts: and that when the court diffent from the verdict of the jury, they have equal right to give their opinion in respect of the facts, and the law.

This is a defect in our judicial system. The court ought to have the power of directing the jury in points of law; and tho they now have an opportunity to give them their opinion on returning them to a farther confideration, yet this is after the jury by their verdict have formed their opinion, when there is danger that the natural obftinacy of the human mind, in adhering to opinions once formed, will induce them to disregard the opinion of the court, and when it is apparent that if the court ever ought to give their opinion to the jury with a view to influence their determinations, it ought to be before they have agreed on a verdict: for it is highly improper to leave the jury uninftructed and uninformed in regard to principles of law, till they have made up their judgment, and then