weight on a number of circumstantial peculiarities which affect the credibility of the witness or other proof. Presumptive or circumstantial evidence, as distinguished from direct evidence, is understood to be that species of proof which arises from the existence of a fact, and not from the deposition of a witness, or from writings which are substituted for witnesses. If a man be stabbed in a house, and another man be seen running from the house immediately after, with a bloody sword in his hand, the flight, the weapon, and the blood raise, in legal language, a violent presumption that the second man murdered the first (g). Similarly, in larceny, where goods have been stolen by a person unknown, and they have been found shortly after in the possession of the prisoner, juries are always told by judges, that on this evidence alone they are bound to convict, unless they are satisfied with the prisoner's explanation of the manner in which he obtained the goods. Here the evidence consists not of statements, but of inferences from facts satisfactorily established. But on this class of evidence it has been remarked by a learned writer (h), and the remark is universally applicable to all presumptive evidence, that it must be admitted that, like every other rule of human institution, it will sometimes fail to guide rightly. And Lord Hale mentions a case which he says was tried before a very learned and wary judge, where a man was condemned and executed for horse-stealing, upon proof of his having been apprehended with the horse shortly after it was stolen; and afterwards it came out that the real thief,

(g) Co. Litt. 6, b.

(h) Russell on Crimes, by Greaves; note by editor.

being closely pursued, had overtaken the man upon the road, and asked him to hold the horse for him for a few minutes. The thief escaped, and the innocent man was apprehended with the horse (i). In such cases, and generally, it is well to bear in mind the recent language of a learned judge, that "where it is sought to establish a theory by circumstantial evidence, all the facts proved must be consistent with the theory; but there must also be some one substantial, credible fact inconsistent with the contrary" (k). Hence it has been decided lately, that since there can be no larceny of goods unless there be a felonious intention in the taker's mind at the time of the taking, a mere fraudulent conversion of goods by the taker after the taking is no evidence that he had a felonious intention at the time of taking, because such a malappropriation is consistent with the theory that he had no felonious intention at the time of the taking, but that he conceived the intention subsequently (7). At the same time it is held that where the facts do not clearly destroy the supposition that there is some evidence, they ought, at least in civil cases, to be left to a jury (m).

Such, in outline, is the double basis on which the positive principles of the Law of Evidence are founded. It is compounded equally of the credibility which arises from oral testimony, and from facts which are considered to be tantamount to oral testimony.

(i) 2 Hale, P. C. 289.

(k) Willes, J.: Great Western Railway v. Rimmell, 27 L. J. C. P. 201.

(1) R. v. Christopher, Bell, 27.

(m) Jewsbury v. Newbold, 26 L. J. Ex. 247.

But before considering the principles of direct and presumptive evidence in detail, it will be convenient to treat of the different functions of judge and jury in the reception of evidence; of bills of exceptions; of demurrers to evidence; and of the competency of witnesses.

(9)

CHAPTER II.

ON THE FUNCTIONS OF JUDGE AND JURY.

Ad quæstionem juris non respondent juratores; ad quæstionem facti non respondent judices. Whether there is any reasonable evidence is a question for the judge; but whether the evidence is sufficient is a question for the jury (a).

THE meaning of this rule, which may be regarded as fundamental, is, that it is for the judge to decide on the character of all evidence that may be tendered, and to admit or reject it according to its consistency or inconsistency with the established rules of courts. The latest authorities, from which the above rule is drawn, have exploded the ancient form of it, by which a judge was bound to leave a case to a jury if there were any evidence for their consideration. Where there is merely a scintilla of evidence a judge ought not to leave it to a jury (b). At the same time it is a very delicate function for a judge to withdraw a case from a jury on the ground either that there is no evidence, or merely a scintilla; and it seems that when there is any sort of prima facie presumption in a case (c), or a condition of facts which does not clearly

(a) Avery v. Bowden, 6 E. & B. 953; Wheelton v. Hardisty, 8 E. & B. 232.

(b) Per Cur. Avery v. Bowden, sup.

(c) Dare v. Heathcote, 25 L. J. Ex. 245.

negative the supposition that there is some evidence, the decision is for the jury, and not for the judge (d). Thus, in actions for negligence, it has been held by the Court of Exchequer that there are some accidents which imply negligence from the very nature of the circumstances, as where a barrel of flour rolled out of a window, and fell upon the plaintiff as he was walking in the street (e); though when there is no such presumption, the plaintiff must give affirmative evidence of negligence (ƒ); and where the evidence is equally consistent with the existence or absence of negligence, the case must be withdrawn from the jury (g). But where the judge discharges at once his own peculiar functions and also those of the jury, then it will be his duty to estimate the credibility as well as the admissibility of evidence. Such is his position in Courts of Equity, Indian Civil Courts, and other jurisdictions which follow the practice of the Roman law. Under a recent act (h), trial by jury is annexed to the jurisdiction of the Court of Chancery, and the court follows the rules of common law evidence in all cases of its employment. And now, by the Common Law Procedure Act, 1854 (i), it is enacted, that the parties to any cause may, by consent in writing, signed by them or their attorneys, as the case may be, leave the decision of any issue of fact to the court, provided that the court, upon a rule to show cause, or a judge

(d) Jewsbury v. Newbold, 26 L. J. Ex. 247. (e) Cotton v. Wood, 8 C. B. N. S. 568.

(f) Hammach v. White, 11 C. B. N. S. 588.

(g) Byrne v. Boodle, 2 H. & C. 722; Scott v. London Dock Co.

3 H. & C. 596; Briggs v. Oliver, 4 H. & C. 403.

(h) 21 & 22 Vict. c. 27.

(i) 17 & 18 Vict. c. 125, s. 1.