the evidence of some witness whose evidence was sufficiently credible or corroborated. So a new trial should not be granted merely because a witness subsequently to the trial admits that he swore falsely, or makes statements contradictory of what he said on the witness stand.3

$379. Writ of error- When employed at common law. An appeal or appellatio as defined by Blackstone an other writers on the common and the civil law was a proceeding the use of which was, to a large extent, confined to courts of equity, admiralty and ecclesiastical jurisdiction, whose procedure was modeled after the rules of the Roman civil law. It was, as the word implies, an appeal or application for relief against the alleged injustice of an inferior court, and by the civil law the whole proceeding was removed to the appellate court, and the matter was reviewed and retried by that court both as to the facts and the rules of law involved. The purpose of the common-law "writ of error," on the other hand, was not primarily to procure a retrial of the whole subject by the supervisory court, for the reason that the trial at nisi prius, being always by a jury, a retrial in the court of error of the issue of fact involved by the same method was not possible. The theory of this writ was that the issue. of fact had been properly decided by the jury on sufficient evidence, but that in case it bad not, or if an erroneous decision of any rule of law had been made, the error would appear at once upon an inspection of the record itself, or it might be more clearly and specifically pointed out by the assignment of error. Thus, a writ of error might be brought for a notorious or open mistake in any part of the record, or

1 Fist v. Fist (Colo., 1893), 32 Pac. Rep. 719; W. U. T. Co. v. Haman (Tex., 1893), 20 S. W. Rep. 1133; Keith v. Knoche, 43 Ill. App. 161; Sweigert v. Finlay, 144 Pa. St. 266; Green v. Beckner, 3 Ind. App. 39; State v. Potter, 108 Mo. 424; Pease v. State (Ga., 1883), 16 S. E. Rep. 113; State v. Potts, 83 Iowa, 317; Marable v. State, 89 Ga. 425; People v. Loui, 27 Pac. Rep. 295; 90 Cal. 377; State v. Chambers, 43 La. Ann. 1108; 10 S. Rep. 247; Maurer

v. State, 129 Ind. 587; 29 N. E. Rep. 392; Hudspeth v. State, 55 Ark. 323; Russell v. Nall, 79 Tex. 644; 15 S. W. Rep. 635; Vanderburg v. Campbell, 64 Miss. 89.

2 Hoy v. Chicago, etc. Co., 46 Minn. 269.

3 State v. Workman (S. C., 1893), 16 S. E. Rep. 770.

4 Hestres v. Brennan, 50 Cal. 217; United States v. Wonson, 1 Gall, 13. See, also, Anderson's Law Dict.

for any omission, irregularity or informality in the process or committed at the trial.' The proceeding under the writ of error affected the record alone which was removed into the higher court, and on the denial of the allegation of error an issue was raised placing the burden of proof on the party alleging the error in the record to prove its existence affirmatively.2

In most of the states of the American Union the proceeding by which the judgment of an inferior court is reviewed by another court exercising supervisory powers, though termed an appeal, is substantially and in principle the common-law writ of error regulated and modified as to details by statutory provisions. So far as these modern appellate proceedings involve a reconsideration of the evidence which has been given in the lower court, they are regulated rather by the principles of the common law than by the rules governing appeals in admiralty and ecclesiastical courts.

$380. The powers of appellate tribunals in relation to the evidence received in the trial court. The weight of evidence and the credibility of witnesses are for the jury exclusively, and the general rule is that the appellate court will not, either in civil or criminal cases, review the evidence merely because it may have been of a weak, contradictory or conflicting character,3 provided that upon an inspection of the

1"At common law a writ of error might be had for an error apparent on the record, or for an error in fact, but not for an error in law not appearing on the record; hence anything alleged ore tenus and overruled could not be assigned for error. To remedy this evil was the object of the statute of Westminster. Under its provisions a bill of exceptions is founded on some objection in point of law to the opinion and direction of the court, either as to the competency of a witness, the admissibility or the legal effect of evidence, or other matter of law arising from facts not denied in which either party is overruled by the court. The seal attests that the exception was

taken at the trial. If the bill contains matter falsely or untruly stated, the judge ought to refuse to affix his seal." Wheeler v. Winn, 53 Pa. St. 126.

2 Burkhalter v. State, 58 Pa. St. 376; Bragg v. Danielson, 141 Mass. 195.

3 Board of Com'rs Pulaski Co. v. Shields, 29 N. E. Rep. 385; 130 Ind. 6; Aultman v. Ritter, 81 Wis. 395, Belles v. Anderson, 38 Ill. App. 126; Vowels v. Com., 83 Ky. 193; Bull v. Wagner (Neb., 1892), 49 N. W. Rep. 1130; Smith v. State, 11 Pac. Rep. 908; 35 Kan. 618; Cooper v. Perry, 27 Pac. Rep. 946; 16 Colo. 436; Rosenthal v. McMann, 29 Pac. Rep. 121; 93 Cal. 505; Graves v. Griffith, 3 Wash. St. 742; Allen v. Kirk, 81

record there is no such manifest preponderance of evidence on the side of the defeated party as will show that the verdict as rendered is erroneous or unjust.1

A verdict will not be reversed on appeal which was based upon facts which were shown in evidence, the legitimate inferences from which were uncertain or controvertible. If the facts which were proved are capable of more than one construction in the minds of persons of average intelligence, or if the evidence is such that reasonable men may, in considering it, arrive at different conclusions, the decision of the jury is. final where the issue of fact was clearly and fairly submitted to them. If there is any evidence to sustain a verdict which is in itself reasonable on all the circumstances of the case, the verdict should not be set aside because of insufficiency of evidence, though the appellate court might have arrived at a different conclusion from the jury on such evidence. Where, however, the verdict as it appears from the evidence sent up and contained in the case on appeal is not only against the weight of evidence but is wholly unsupported by any evidence, the appellate court will not hesitate to reverse the judgment of the lower court. Every presumption will be made that the jury acted impartially and fairly, and that their verdict was according to the evidence. Especially is this true where there is a conflict of evidence, and here the supervisory or appellate court will not disturb the verdict, though the evidence may

Iowa, 658; Bonner v. Beam, 80 Tex. 152; Simmons v. Spratt, 26 Fla. 449; Powell v. Achey, 87 Ga. 8; McBride v. Railroad Co., 60 Hun, 585; Searsmont v. Lincolnville, 83 Me. 75; Noyes v. Pugin, 2 Wash. St. 258.

1 Rudolph v. Davis (Neb., 1892), 52 N. W. Rep. 841; Lalor v. McDonald, 44 Mo. App. 439; San Gabriel Wine Co. v. Behlow, 94 Cal. 108; Huffman v. Burr, 26 Atl. Rep. 367; 155 Pa. St. 218; Van Vlissenger v. Cox, 44 Ill. App. 247; Mansfield v. Rab, 21 N. Y. S. 65; 66 Hun, 631; Monselle v. Bacon, 66 Hun, 628; Beveridge v. Parmlee, 43 Ill. App. 459; Yadon v. Mackey, 50 Kan. 630; Eppert v. Hall (Iowa, 1893), 32 N. E.

Rep. 713; Puget Sound R. Co. v. Ingersoll, 4 Wash. St. 675; Coleman v. Jones, 89 Ga. 459; Wells v. Yarborough, 84 Tex. 660; Richmond, etc. Co. v. Burnett, 88 Va. 538.

2 Evansville, etc. Co. v. Weikle (Ind., 1893), 33 N. E. Rep. 639; Goff v. Akers, 21 N. Y. S. 454; Paige v. Chedsey, 20 id. 898; Meentz v. Reiker, 42 Ill. App. 17.

3 St. Louis, I. M. & S. R. Co. v. Spann (Ark., 1893), 20 S. W. Rep. 914; Eckert v. Rule (Kan., 1893), 32 Pac. Rep. 657; Kimball v. Saguin (Iowa, 1893), 53 N. W. Rep. 116; Lalor v. McDonald's Adm'rs, 44 Mo. App. 439; Shailer v. Corbett, 61 Hun, 626.

preponderate somewhat against it and call for a different verdict. On the other hand, where the verdict is not against the mere weight of conflicting evidence, but against uncontradicted evidence amounting to positive proof of the fact alleged, or where the preponderance of evidence against the verdict is so excessive that it is fair to presume that it was rendered only because of the existence of partiality, unfairness or corrupt motives or gross ignorance on the part of the jury, the judgment of the trial court will be reversed."

The same rules that are held applicable to the review on appeal of a verdict by a jury are also recognized where a jury trial in the lower court is not of right or is waived by the consent of the parties. If the evidence, though it is conflicting, tends to or is sufficient to support the judgment, and no errors of law appear from the record to have been committed, the decision or findings of the judge upon matters of fact will be regarded as final, notwithstanding the appellate court might arrive at a different conclusion upon the same evidence if before it.1

1 Gayheart v. Patton (Ky., 1893), 20 S. W. Rep. 912; Angus v. Foster, 42 Ill. App. 19; Kouhn v. Schroth, 44 id. 513; Louisville & N. R. Co. v. Kenley (Tenn., 1893), 21 S. W. Rep. 326.

v. Burns (Wis., 1893), 54 N. W. Rep. 731; Keesey v. Gage (Tex., 1893), 21 S. W. Rep. 397; Tolman v. Crane. 44 Ill. App. 237; Com. v. Westinghouse Elec. & Mfg. Co., 24 Atl. Rep. 1107; 151 Pa. St. 265; Gamble v. Ross, 44

2 Walton v. Kansas, etc. Co., 49 Ill. App. 291; Brown v. Sullivan, 3 Mo. App. 620.

3 Lewis v. Pallin, 48 Mo. App. 657; Porter v. Sherman Co. Banking Co. (Neb., 1893), 55 N. W. Rep. 234; Cole v. National Sch. Furn. Co., 45 Ill. App. 273; Stanfell v. Lewellyn (Ky., 1893), 22 S. W. Rep. 645; Reuber v. Crawford (Neb., 1893), 54 N. W. Rep. 549; Kummer v. Christopher & Tenth St. R. Co., 2 Misc. Rep. 298; Urias v. Penn. R. R. Co., 152 Pa. St. 326; Gary v. Cole, 38 Ill. App. 236; Huber v. Schmocht, 39 Ill. App. 229; Marabitti v. Bagolan, 21 Oreg. 299.

4Castner v. Richardson (Colo., 1893), 33 Pac. Rep. 163; Teeter v. Teeter, 20 N. Y. S. 259; 65 Hun, 623; Kehoe

Ind. App. 211; 29 N. E. Rep. 453; Smith v. Kipp, 49 Minn. 119; Robbins v. City of Fond du Lac, 82 Wis. 340; Chase v. Jones, 84 Me. 107; Glover v. Holliday, 109 Mo. 108; Schuler v. Eckert, 90 Mich. 165; Gwyn v. Butler, 17 Colo. 114; Worthington v. Worthington, 32 Neb. 334; Long v. Langsdale, 56 Ark. 239; Redfearn v. Douglas, 35 S. C. 569; Markley v. Hull, 49 N. W. Rep. 1050; 51 Iowa, 109; Tatum v. Colvin, 9 S. Rep. 747; 43 La. Ann. 755; Belford, Clarke & Co. v. Scribner, 144 U. S. 488; Cox v. Jones, 110 N. C. 309. A statutory provision that an appellate court "shall review a cause where trial by jury has been

So, in an appeal from the decision of the chancellor or of a master in equity, the appellate court will not review his findings of fact unless it appears that they are so manifestly erroneous and lacking in evidence to support them as to be unjust or that they are evidently the result of mistake. The decision or finding of fact of a master in chancery, referee or auditor which is confirmed by the court by which he was appointed is equivalent to the verdict of a jury upon the same point, will be presumed to have been based on sufficient evidence, and will be conclusive upon the parties in the appellate court.2

§ 381. Limitations on the number of witnesses. It is the right of both parties to have all the witnesses heard by the jury who are able to testify of their own knowledge to any material fact which is controverted. The court cannot in such a case limit the number of witnesses, and its action in doing so over an objection which is taken in time will be ground for a new trial. For the same reason if a party rely

waived in the same manner and to the same extent as if it had been tried by a jury" does not, it has been held, mean that the appellate court shall decide upon the weight of the evidence. Lynch v. Grayson (N. M., 1893), 32 Pac. Rep. 149. If a plain and manifest error is shown to have been made by the trial judge in his findings of facts they should be reversed. Metro. Nat. Bank v. Rogers, 3 C. C. A. 666; 53 Fed. Rep. 776. But a finding of fact will not be disturbed where it can be shown to be erroneous only by discrediting a witness, as the credibility of testimony is for the trial judge exclusively. Delano v. Jacoby, 31 Pac. Rep. 290; 96 Cal. 275.

1 Ellis v. Ward, 137 Ill. 509; Montague v. Stoltz (S. C., 1893), 15 S. E. Rep. 868; Dooly Block v. S. L. Rap. T. Co. (Utah, 1893), 33 Pac. Rep. 229; Thomas v. Chicago, etc. Co., 49 Mo. App. 110; McGill v. Hawks (Mich., 1893), 54 N. W. Rep. 707; Hamlin v.

Phillips (Cal., 1893), 33 Pac. Rep. 331; Berry v. Berry, 24 Atl. Rep. 957; 84 Me. 541; Daveyac v. Seiler (Ky., 1893), 20 S. W. Rep. 375; Herbert v. Keck, 35 Neb. 508. The rule stated in the text is also applicable to the findings of fact on conflicting evidence by a surrogate or similar judicial officer. In re Sherman, 24 N. Y. S. 283; In re Snelling's Will, 136 N. Y. 575.

2 McHugh v. Railroad Co., 65 Hun, 619; Warner v. Hare, 154 Pa. St. 548; Crim v. Starkweather, 136 N. Y. 635; Knell v. Stephan, 65 Hun, 624; Tischler v. Apple, 30 Fla. 132; Porter v. Christian, 88 Va. 730: Crawford v. Osmun, 90 Mich. 77; Witte v. Weinberg (S. C., 1893), 17 S. E. Rep. 681; Johnston v. Markle Paper Co., 153 Pa. St. 189; Morrell v. Kelly (Mass., 1893), 31 N. E. Rep. 755; Mech. & Trad. Nat. Bank v. Wynant, 49 Hun, 607; Levi v. Blackwell, 35 S. C. 511.

3 Village of South Danville v. Ja