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No. 3249.

Book 4, tit. 8, chap. 11, sec. 3, § 6, art. 2.

No. 3250.

both on their own personal account, and because browbeating a witness or other person, or abusing a party, will injuriously affect their case, in the eyes of a respectable court and jury.

The counsel should, first, distinctly state the full extent of the plaintiff's claim, and the circumstances under which it is made; secondly, he should show how it is supported by the evidence; thirdly, the legal grounds, and authorities in favor of the claim.

3249.-1. The grounds on which it is founded, and the statement of the claim, must be made out so clearly that they shall make an impression on the minds of the jury; for, unless these are distinctly shown, the jurors will have an imperfect or confused idea of the subject.

3250.-2. Too much care cannot be taken to classify and arrange, in a natural order, all the facts which have been detailed in evidence, and to show how they bear on the case. In general, a few of the principal facts are sufficient to maintain the issue on the part of the plaintiff; these should be prominently set forth and pressed upon the attention of the jury; others, which are collateral, may be observed upon, but they must be considered only as collateral; and those which have inadvertently been introduced by the other side, which have no relation to the true merits of the case, should be exposed in their nakedness.

It will be the duty of counsel, too, at this stage of the cause, to examine the character of the witnesses, the manner in which they gave their evidence, and other circumstances which are calculated to gain them credence, or to deprive their testimony of any confidence.

When the defendant has given any evidence, it is proper to examine his defence, and to show that it is not supported by the facts, or that it is not warranted by the pleadings, or that the evidence of the plaintiff

No. 3251.

Book 4, tit. 8, chap. 11, sec. 3, § 6, art. 3, 4.

No. 3255.

has effectually rebutted all such defence, or any other facts which the evidence warrants.

3251.-3. It is the duty of the counsel, also, to state all the points of law on which he intends to rely, and to refer to the authorities which support them. In some cases it is proper to read such authorities, and press them on the consideration of the court and jury.

Art. 3.-Of the speech for the defendant.

3252.-1. The speech of the defendant's counsel ought to show clearly what is the defence of the defendant, whether it acknowledges the cause of action of the plaintiff and shows some matter in discharge, or whether it denies that the plaintiff had any cause of action; the particulars of the defence should be distinctly stated, and all the circumstances attending it.

3253.-2. Next should be an examination of the evidence on both sides, and those facts which show that the plaintiff never had a cause of action, or, if he had one, that it had been discharged, should be pressed upon the consideration of the jury. The arguments of the counsel for the plaintiff, not well founded, should be attacked and exposed; and if any important fact has been omitted by him, in commenting upon the evidence, it should be pointed out to the jury.

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3254.-3. The points of law made by the plaintiff should be examined, and, if found futile or not applicable to the case, should be explained, and authorities cited to show what is the law of the case.

Art. 4.-Of the reply of the plaintiff.

3255. In strictness, the reply of the plaintiff's counsel must be confined to such new matters and arguments as have been advanced by the counsel for the defendant. He cannot, therefore, again go into an examination of the whole case, and travel over the same ground which he formerly occupied. The prin

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cipal business of the reply is to refute such unjust arguments as may have been pressed by the opposite counsel, and to show, when the truth will justify such course, that however plausible such arguments may be, they are not founded in law or in fact.

§ 7. Of charging the jury, or the judge's summing up.

Art. 1.-Of the form of the charge.

3256. After the counsel on both sides have finished their addresses to the jury, the judge proceeds to sum up, as it is called, or charge the jury.

Before this is done, however, sometimes the counsel on both sides, or on one side only, present to the judge a statement of the points on which they request him to charge the jury. These points are brief statements of what the counsel conceive is the law of the case. In the course of his charge, the judge gives an answer to the several questions to which the points give rise.

In summing up, as in every other part of his conduct, impartiality is the first duty of a judge. He must not only be impartial, but he must pay a blind obedience to the law, whether it be good or bad. He is bound to declare what the law is, and not to make it: he is not an arbitrator, but an interpreter of the law.

When we consider that the jury in general are unlearned in the law, unaccustomed to examine cases with all their intricacies; that they may have been perplexed as well as enlightened by the speeches of the counsel, we will perceive that the accuracy of the summing up of the judge is of the utmost importance. To enable the jury to come to a just conclusion, it is incumbent on the judge correctly to state the law of the case, as well as the evidence, and the bearing of the latter. He may also direct the jury to find a verdict in a particular way, if they believe the evidence adduced by one of the parties, or the testimony on a particular point.

No. 3256.

Book 4, tit. 8, chap. 11, sec. 3, § 7, art. 1.

No 3256.

The learned judge, in general, concisely states the precise issue between the parties. He explains the substance of the plaintiff's claims, and the grounds of defence. He then, to a certain extent, details the evidence which has been given in the cause, sometimes reading certain parts from his notes. It is usual for him to consider the evidence of the plaintiff in the first place, and whether he has given such proof of his claim as may warrant the jury to find a verdict in his favor, if the defendant had given no evidence; next he examines the evidence of the defendant, and points out where it affects the evidence of the plaintiff. In case the testimony given by the plaintiff can be reconciled with the apparent contradictory evidence of the defendant, he shows how that may be done; but when' this is impossible, he leaves it to the jury to decide which is entitled to credit. In the course of this examination he comments occasionally on the nature of the evidence, and the circumstances which attach a credit to it, or which render it doubtful or incredible.

When any question of law happens to be mixed up with a question of fact, he states the rule of law according to which the jury are to decide, and informs them that as to the law they are bound to take it from the court; as to the facts, they are the sole judges, and must decide them upon the credibility of the evidence and witnesses; at the same time he may observe upon the manner and conduct of each, so as to assist the jury to come to a correct conclusion. A just judge will state what the law is, in clear, distinct, and unmistakable terms, without any attempt to qualify his opinion in any way. The jury are to be guided by his decision as to the law, and they and the parties have a right to have it clearly explained. He will leave the facts to the consideration of the jury, without any effort to take them from that body, who are alone lawfully authorized to pass upon them.

In case points of law have been submitted to him

No. 3257.

Book 4, tit. 8, chap. 11, sec. 3, § 8, art. 1.

No. 3258.

by the counsel on either side, he will decide them, and give clear and distinct answers to each, without any evasion, and direct the jury what is the law as to the points submitted to him.

He will also direct the jury as to the form of the verdict which they ought to find.

Art. 2.-Of exceptions to the charge.

3257. We have seen that exceptions have been taken in the course of the trial, whenever a cause for taking them arose; so an exception must be taken to the charge of the court as soon as it has been delivered. This is to be done in a respectful manner; for it is of the utmost importance to the parties, the counsel, and all others concerned, to support the dignity of the judge. If, by any inadvertence, the learned judge has omitted to state any material explanation of the law which it was his duty to explain, or neglected to answer any or all of the points submitted to him, these should be suggested; or, if he has misstated the evidence to the jury, an opportunity to set that matter right ought to be given to him, by calling his attention to it.

When an exception is taken to the charge of the court, the judge should state in the bill of exceptions the words used, without any attempt to qualify them in any way whatever. What he said to the jury has had its effect, and if any qualification is given to it, so that the court above have not the exact expression used, he may do great injustice to the party against whom a verdict has been found. A just, a noble, and impartial mind, will disdain to carry a point at the expense of justice.

§ 8. Of the verdict.

Art. 1. Of considering the verdict.

3258. After the judge has delivered his charge, the jury are required to consider their verdict. For this

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