is entirely for the jury in civil cases, it would appear, as well as criminal cases, and the judge may only give a general definition of the offence (z). But if the jury find against the defendant, the court will arrest the judgment, if the writing, on the face of it, appear not to be libellous (a).

Finally, it is for the jury, apparently, to determine the meaning of foreign law and documents, on the testimony of skilled witnesses; but for the court to decide on the competency of the witnesses, the admissibility of documents, and the applicability of the foreign law to the matter in issue (b).

(z) Sup. p. 13.

(a) Hearne v. Stowell, 12 A. & E. 719; Goldstein v. Foss, 6 B. & C. 154.

(b) R. v. Picton, 30 How. St. Tr. 536-540, 864-870.

ON

CHAPTER III.

BILLS OF EXCEPTIONS, NEW TRIALS, AND DEMURRERS TO EVIDENCE-ON THE COMPETENCY OF WITNESSES.

WHERE either party to an action considers that the judge has wrongly admitted or rejected evidence at the trial, he may appeal from the ruling by a bill of exceptions, or by motion for a new trial (a).

The former right is a statutory privilege which was given by the 13 Edw. 1, c. 31. It is there enacted that "if one impleaded before any of the justices, allege an exception, praying that the justices will allow it; if they will not, and if he write an exception and require the justices to put their seals to it, the justices shall do so, and if one will not another shall."

It has always been doubted whether this right extends to criminal proceedings; and the weight of authority is in the negative. At Sir H. Vane's trial for high treason the court would not grant a bill of exceptions, "because criminal cases were not within the statute, but only actions between party and party" (b). "Whether a bill lies or not in any criminal case is a point not settled" (c). And in the recent case of The Attorney-General v. Radloff, it

(c) Per Lord Hardwicke, R. v. Preston, Rep. temp. Hard. 251.

seems to have been held that an information for penalties is a criminal proceeding on which a bill of exceptions will not lie, even with the consent of the Attorney-General (d). But when a verdict is against evidence, a new trial may be granted on an indictment in the nature of a civil proceeding, as for obstructing a navigable strait (e).

The exception must be taken at the trial, and before verdict (ƒ). It must state the alleged misdirection; and be tendered to the judge, who will seal it. After it is sealed it may be amended (g). If the court above be of opinion that the evidence was improperly received or rejected, they will grant a new trial (h). The same matter cannot be raised by bill of exceptions and also by a motion for a new trial; but if there are independent questions, and one of them may, but the other cannot be raised by bill of exceptions, a party is not precluded from moving as to the latter, because a bill of exceptions has been tendered with respect to the former (i).

To entitle a person to a new trial on the ground of the rejection of evidence, it must appear not merely that it was offered and not received, but that the judge was given to understand that its reception was pressed, and that he deliberately rejected it (k).

If a judge misstates evidence in summing-up, a new trial will be granted if the misstatement was pointed

(d) 10 Ex. 84.

(e) R. v. Russell, 3 E. & B. 942.

(f) Wright v. Sharpe, 1 Salk. 288.

(g) Cully v. Doe d. Taylerson,11 Ad. & El. 1008.

(h) De Rutzen v. Lloyd, 5 A. & E. 456.

(i) Marquis of Salisbury v. Gladstone, 7 W. R. 408.

(k) Whitehouse v. Hemmant, 27 L. J. Ex. 295.

out to the judge at the time, but not otherwise (1). So it is ground for a new trial if he omit to call the attention of the jury to material circumstances (m). A new trial will also be granted if a jury misconduct themselves (n), or if the judge be dissatisfied with their verdict; and in civil proceedings the courts exercise a general discretion of granting new trials where the verdict appears to have been against the weight of evidence. But no new trial is ever granted in cases of indictable felonies and crimes; nor as a general rule in misdemeanors, although in a few instances it has been granted in the latter cases.

When facts are established (but it is disputed how far they maintain an issue), it was formerly a practice to demur to the evidence. By this course all facts are admitted, and the issue reduced to one of law. But as the same object can be obtained by taking a special verdict, or a verdict subject to a special case, and as these are more customary expedients, we need not enlarge here on a topic which belongs more strictly to treatises on the practice of courts.

The next point for consideration is the competency of witnesses.

It has been already stated (o), that all objections to the competency of witnesses are for the decision of the judge, who will, if there appear to be any doubt on the subject, examine the witness before allowing him to be sworn. This preliminary examination is termed the examination on the voir dire, i. e. vrai dire.

(1) Payne v. Ibbotson, 27 L. J. Ex. 341.
(m) Hemmings v. Gasson, E. B. & E. 346.
(n) Allum v. Boultbee, 9 Ex. 738.
(0) Sup. p. 12.

Under this title it may be considered to be the general and established principle of evidence, that—

All persons of sound and adult mind, believing in the religious obligation of an oath, and including generally, but not universally, the parties to civil proceedings, but not a prisoner or defendant on a criminal charge, are competent and compellable witnesses in every court of justice concerning the matters in issue.

Under this rule the first consideration will be

SECT 1. The Incompetency from Defect of Understanding in Witnesses.

Persons who have not the use of reason are, from their infirmity, utterly incapable of giving evidence, and are therefore excluded as incompetent witnesses.

This description of incompetency may be either constitutional or accidental: and in the latter case it may be either temporary or permanent. It may also arise from imperfect development. Hence we have three classes of incompetent witnesses:

1. Idiots.

2. Lunatics.

3. Children.

1. An idiot is one that hath had no understanding from his nativity, and therefore is by law presumed never likely to attain any (p); and such a person is

(p) 1 Bl. Comm. 303.

P.