Jurymen to say in excuse for giving a wrong verdict, that they believed it was wrong, but how could they do otherways.-The facts were sworn to, it was the fault of the witness, ot theirs. This practice of jurors' loading on the witness their own sins, and making him a scape goat for the whole, is grossly improper. It is true, that jurors cannot, nor ought they to substitute in the place of proof, their own fancies, conjectures, or prepossessions, much less to suffer their passions, inclinations. or biasses, to come in aid of proof, but are to govern themselves by the testimony given in the cause. But should a witness re late a fact, which, from its improbable nature, or from the badness of the character of the witness, taken together with other circumstances in the cause, on due consideration, doth not carry a belief of the fact home to the minds of the jury, but on the other hand, they believe that what the witness hath related is false; in that case, what he hath said is no evidence to them, and they are not bound to give any weight to it; but on the contrary, if they act upon it, or rather make up their verdict on it, such conduct is a departure from their duty, and little short of a violation of their oaths. After all the evidence is given in a cause, it frequently happens that the mind is in doubt. If the testimony is contradictory, it should be reconciled if possible: if it is not susceptible of reconciliation, it must be weighed by a sound discretion, and determined as one or the other preponderates. If, after all, the mind is balanced, I think it a reasonable rule, (though I do not recollect any where seeing it laid dowu) that it must be de termined against the party that hath the affirmative side of the question, as having failed to make out what he hath undertaken to do." (Vide Pennington on small causes, 162, 3.) SECTION VIII. OF THE SEVERAL WAYS IN WHICH THE CREDIT OF A WITNESS MAY BE IMPEACHED. 1. To impeach the credit of a witness, the opposite party may disprove the facts stated by him, or may examine other witnesses as to his general character, but they will not be allowed to speak to particular facts, or parts of his conduct; for, thought every man is supposed capable of supporting the former, it is not likely that he should be prepared to answer the latter, without notice. The regular mode is to inquire whether they have the means of knowing the witness' general character, and whe ther from such knowledge they would believe him on his oath. In answer to such evidence against character, the other party may cross-examine the witnesses, as to their means of knowledge, or may attack their general character, and by fresh evidence, support the character of his own witness. This inquiry properly relates to the witness' character for truth and veracity, or at any rate, this should be the principal or first inquiry. (c) Chancellor Kent approves of this rule, that the inquiry should be confined to the general character of the witness for truth and veracity.(d) This is the law of Connecticut.(e) And accordingly it has been determined by the Supreme Court of this state, that you cannot impeach the credit of a witness by showing that she is, or has been a common prostitute. (ƒ) The English rule is as first above stated, and relates to character generally; not being confined to truth and veracity, but whether from such general character, the witness is to be believed on his oath.(g) In commenting upon the English rule, Mr. Evans (h) makes the following remarks: "It is an established rule, that witnesses examined with a view to discredit the testimony of others, cannot be permitted to depose to particular facts of criminality, but can only express their general opinion, whether the party is or is not entitled to be believed on his oath; but the other side, to support the testimony, may inquire what are the reasons of disbelief, which sometimes, as in a case(1) above adverted to, are ridiculous enough. If it is declined to inquire into these reasons, there is pretty considerable ground to presume a consciousness, that the opinion is founded upon adequate motives. I have heard witnesses asked, whether they had ever known the persons against whose veracity they depose, give false evidence in a court of justice and upon their answering in the negative, it was intimated to the jury, that the testimony to the discredit was absolutely frivolous; whereas, if the question had been, what were the reasons upon which the discredit was founded, a fraudulent conduct might have been shown, which indicated the want of moral and religious principle, and consequently affected the strongest ground of reliance upon testimony. When witnesses speak to the character of others, not (1) The case adverted to by Mr. Evans, is stated in his Pothier, vol. 2 250, as follows: "A witness swore, that a person examined on the other side, was not fit to be believedjupon his oath; and being asked his reason, said, that he had never made a good fence since he came to his farm." (c) 13 John. 505, per Thompson, Ch. J. (d) 3 John. Ch. Rep. 565, 6, (e) 4 Day's Esp. 104. n. (19 (f) 13 John. 504. (g) 4 Esp. Rep. 102 to 104, & vide 2 Evan's Poth. 250, 260. (h) 2 Evan's Poth. 260. only their own character, but their ability, and opportunity to form an adequate judgment, are circumstances very proper to be taken into consideration." On this head of evidence, Ch. Justice Pennington makes the following remarks. He says, (i) that "it is bottomed on the plainest principle that can be imagined; that is, that one man is not entitled to the same credit with another. Witnesses, therefore, may be sworn to give the character of a witness examined in a cause; it is held, however, that only the general character of a witness shall be inquired into; and some hold that only the general character of the witness, in respect of his veracity, when under oath, is to be inquired of. I never could perceive any substantial reason for this opinion, nor is it adhered to in practice. Suppose a witness is a notorious cheat, sharper, and swindler; although nothing has been particularly alleged against him, on the ground of his veracity under oath, is he to stand, in point of credit, on equal ground with a man of unblemished character, and good standing in society? Reason revolts at the idea. I take it, that the general character of the witness, so far as it goes to show turpitude of mind, is in issue, less credit being due to a corrupt mind, than a pure one; but you cannot examine as to particular facts which are to show this corruptness of mind." I have been thus particular in noting the English rule with some of its comments, and vindications, because I believe there is no adjudged case in this state which positively precludes its application with us; the cases which I have cited from Johnson, affording merely incidental notices of what is, in general, the proper, or rather principal inquiry in these questions of character, without expressly denying to us the latitude established in England. 2. The credit of a witness may be impeached, by showing that he has made statements out of court, either parol, by letter or by deposition, on the same subject, contrary to what he swears on the trial. Then again in order to corroborate his testimony, the party who called him, may, according to Gilbert,(j) show that he affirmed the same thing before, on other occasions, and that he is still consistent with himself; but this has since been doubted in England, by Mr. Justice Buller, and is said to have been overruled by Ch. Justice Eyre, and Mr. Phillips thinks it inadmissible, except where some design to misrepresent is imputed to the witness, arising from motives of interest or relationship when this is done by the party or counsel 'on the : (i) Penn. on small causes, 158, 9. (j) Gilb. Ev. 135. other side, he holds it proper, in order to repel such imputation, to show that the witness made a similar statement, at a time when the supposed motive did not exist, or when motives of interest would have prompted him to make a different statement of the facts. The rule, as laid down by Gilbert, has, however, been recognized as law, in its fullest latitude, by Judge Washington, in the Circuit Court of the United States.(k) And if an attesting witness to a deed, impeach its validity on the ground of fraud, it may be supported by showing the good character of another subscribing witness, who is since dead; though where two witnesses merely contradict each other, as to facts, and no fraud is imputed, evidence of general character is not admissible in support of either. A party will not be allowed to impeach his own witness by showing his general character, or any other facts directly impeaching him. But he may contradict him, and show the fact by other witnesses to differ from what he states it, and thus do away the effect of his testimony. For the subject of the two last sections, more at large, and most of the authorities concerning the same, vide Phil. Ev. 2d Am. ed. 203 to 214. SECTION IX. OF THE CONSEQUENCES FROM THE JUSTICE'S ADMITTING IMPROPER EVIDENCE. The justice should be careful not to suffer any improper evidence to go to the jury, or to receive it himself, when sitting alone, if objected to; for this will be fatal on certiorari, even though he immediately direct the jury to disregard it, or return that he utterly disregarded it himself. (1) Thus, where the justice was himself sworn by another magistrate,(m) where he acted on his own private knowledge as evidence ;(n) or where in an action for not attending, as a witness on a subpoena, he suffered parol evidence that the defendant had confessed being subpoenaed, without the plaintiff's first showing that the subpœna itself was incapable of being produced ;(0) so where he (k) 1 Peter's Rep. 199 203. (1) 19 John 128. 13 id. 350. 15 481. id. 29. (m) i id 505. 5 id. 228. 10 id. 363. (n) 2 id. 189, 1 id. 228. 14 id. (o) 10 id. 248. received as evidence the certificate of another justice, not properly authenticated, (p) in all these, and a great variety of similar cases, judgments have been reversed on certiorari. So the judgment was reversed where the justice admitted hearsay evidence, touching a fact, though he returned that he merely admitted it as evidence to himself, but not to the jury.(g) Yet, if the fact so improperly proved, or attempted to be proved, be afterwards established by legal evidence on the other side, the error is thereby cured.(r) And it an improper question be put and answered, even on an examination in the jury room, after the jury are sworn and have retired, but is immediately corrected by the justice, who tells the jury not to regard it, the judgment will not, for that reason, be reversed.(s) On the other hand, if the justice improperly reject any test:mony offered, the judgment will be reversed, on certiorari ;(t) and in one case, where the judgment was in favour of the party offering such evidence, but its rejection diminished the amount of his damages, he brought his certiorari, and was allowed, for that reason, to reverse his own judgment.(u) SECTION X. HOW THE EVIDENCE WILL BE CONSIDERED AND WEIGH ED ON ITS BEING RETURNED UPON CERTIORARI. The court will not reverse the judgment, because the evidence was too light in the court below, if some evidence was given (v) though since the act(w) requiring justices to return the facts, the court exercise a more extensive jurisdiction in this respect;(x) and where there is either no evidence in support of a demand, (y) or, where a fact clearly appears from the evidence on both sides, and there is no question as to the credibility of the witnesses, a verdict of a jury will not conclude the Supreme Court; but they will inquire into the sufficiency of the evidence to support the verdict ;(2) and if insufficient, the judgment will be reversed ;(a) though where there is evidence on both sides. so that the question is at least doubtful, the judg (p) 3 id. 429. 15 id. 239. 13 id. 517. (s) 12 id. 384. (1) 6 id. 190. (u) id. (v) 1 John. 520. (s) 2 id. 195. (a) 3 id. 146. id, 433, |