general, simply finding the issue for one party or the other, and thus concluding both the law and fact; or it may be special, setting forth the facts proved, and leaving the law arising thereon to the court. Now the jury cannot be compelled to render the one or the other as may be desired; but may, by our law, have their option. Accordingly, if either party is willing to admit the truth of the testimony offered, and wishes to refer its effect at once to the court, so as to avoid a general verdict, he may demur to the evidence; which is thereupon reduced to writing, and entered like a special verdict, on the minutes of the court, for future argument. (a)

Arguments of Counsel. When the testimony is closed, the cause is argued to the court and jury, by the counsel, not exceeding two on each side. The party on the affirmative of the issue has the opening, the adversary follows, and the opening counsel closes.

Charging the Jury. (b) When the arguments are closed on both sides, it is the province of the court to charge or instruct the jury on the points of law presented by the facts of the case. This is done as a matter of course, if there be any dispute about the law; and either party may move for particular instructions; the granting or refusing of which by the court, if erroneous, may be taken advantage of by a bill of exceptions. A sense of propriety does usually, and should always, prevent the court from intimating any opinion upon the weight of evidence; and on the other hand, a similar motive should induce the jury to take the law as laid down to them by the court. The theory of judicial proceedings requires these two functions to be kept entirely distinct. In practice, however, they are liable to be more or less confounded. Judges, in particular, are apt in their charge to sway the minds of the jury, by opinions upon the evidence; but this is as clearly an

(a) Form of a Demurrer to Evidence. This day came the said parties by their attorneys, and thereupon came a jury, to wit [give the names of the jurors], who being impanelled and sworn the truth to speak upon the issue joined between the parties, the said plaintiff to maintain the issue on his part, showed in evidence that [set forth fully the testimony demurred to]; and the said defendant says that the aforesaid matters to the jury shown are not sufficient in law to maintain the issue on the part of the said plaintiff; and this he is ready to verify; wherefore he prays judgment, and that the jury may be discharged from giving any verdict; and that the said plaintiff may be barred of his action. Signed by the attorney.]

The joinder is as follows: And the said plaintiff, because he has shown sufficient evidence to maintain the issue on his part, which the said defendant does not deny nor answer unto, prays judgment and his damages. [Signed by the attorney.]

The jury are then instructed to assess the damages, in case the judgment should be for the plaintiff, and return their verdict subject to the opinion of the court on the demurrer.

(b) Section 266 of the Code, as amended May 13, 1868, allows counsel before argument to request instructions to the jury on points of law, which the court must give or refuse, and which are to be reduced to writing, if either party require it. After argument, the court is immediately to charge the jury, which charge also is to be reduced to writing, if either party require it, and cannot be orally qualified or explained; and all written charges and instructions are to be taken by the jury in their retirement, and returned with their verdict into court, and filed with the papers of the case. Campbell v. Beckett, 8 Ohio State, 210.

usurpation, as it would be for the jury to undertake to decide upon the law. In some of the States, the charge of the court is required to be reduced to writing, and read to the jury, who take it with them to their room; and it afterwards remains on file among the papers in the cause. (a) Many obvious advantages result from this provision; and perhaps it would be well if it were made universal.

Verdict. (b) The jury being thus in possession of the case, retire for deliberation, under the charge of an officer, who is sworn not to allow them to hold intercourse with any one or to take any refreshment, without leave of the court. It is a singular provision, and perhaps in civil cases an unwise one, as before observed, that all the jurors must agree in order to find a verdict. Those who reflect how rare it is to find absolute unanimity among men on any

(a) See Hardy v. Turney, 9 Ohio State, 400. (b) See 3 Black. Com. 375. The meaning of verdict is a true word. By the Code, in every action for money only, or specific real property, the jury have an option to render a general or a special verdict. In all other cases, the court may require a special verdict, presenting the facts so fully, that the court have only to draw the conclusions of law. § 275-8. The right of the court to direct a special verdict is discretionary; and the refusal to do so cannot be assigned as error. C. C. &. C. R. R. Co. v. Terry, 8 Ohio State, 586. In civil actions at law, verdict is given for the party in whose favor there was a preponderance of evidence, including presumptions as evidence. And it is difficult to see on what ground a court can direct a jury to give verdict for one party when the jury finds the preponderance of evidence is with the other party. In criminal prosecutions the rule is different. In a prosecution by the sovereign against a subject for crime, the parties being so unequal, and the consequence of conviction being fine or imprisonment or death, the Roman Civil Law as well as the English Common Law, in mercy to the accused required the prosecution to be made out, not merely by a preponderance of evidence, but beyond a reasonable doubt. In England, in 1823, in Thurtell v. Beaumont, 1 Bing. 339, it was ruled that where in a civil action on a policy of insurance, the defence was that the plaintiff had wilfully burned the property, this defence must be made out beyond a reasonable doubt. But this case has been ignored and the contrary held in later cases. In civil actions under the Carriers' Act, where it was necessary to allege and prove loss by felonious acts, Voughton v. L. & N. W. R. R. Co., 9 L. R. Ex. 93; McQueen v. G. W. R. R. Co., L. R. 10 Q. B. 569, and in an action for penalty under the Bribery Act, where it was necessary to aver and prove a crime, Cooper v. Slade, 6 H. L. Cases, 746, a preponderance of evidence was held sufficient. One exception is made. Where there is a plea of justification in slander, it is held the plea must be proved precisely as if the plaintiff were prosecuted for the crime charged. Chalmers v. Shackel, 6 C. & P. 478.

Thurtell v. Beaumont was followed in some early American cases, but it is now generally rejected. Schmidt v. Ins. Co., 1 Gray, 529; Kane . Ins. Co., N J. Court of Errors and Appeals, April, 1878; Ins. Co. v. Johnson, 11 Bush, 587; Rothschild v. Ins. Co., 62 Mo. 356; Blaeser v. Ins. Co., 37 Wis. 31; Hoffman v. Ins. Co., 1 La. Ann. 216; Scott v. Ins. Co., 1 Dillon, C. C. 105; Huchberger r. Ins. Co., 4 Biss. C. C. 265. A distinction was made in Sinclair v. Jackson, 47 Maine, 102, that where the criminal act must be so set out in the pleadings as to raise the distinct issue of crime before the jury, in such case the criminal act must be proved beyond a reasonable doubt. And this distinction has been often referred to approvingly, as in Strader r. Mullane, et al., 17 Ohio State, 624. But even this is disapproved in Gordon ». Parmelee, 15 Gray, 413; Jones et al. v. Greaves, 26 Ohio State, 2, and Kane v. Ins. Co., cited above. And where action was brought for damages for arson of plaintiff's house. Bradish v. Bliss, 35 Vt. 326, and for treble damages for a felonious taking, 30 Conn. 102, a preponderance was held sufficient. The rule that a plea of justification in slander must be proved beyond a reasonable doubt seems generally recognized in the United States. Clark v. Dibble, 16 Wend. 601; Steinman v. McWilliams, 6 Barr, 170; Mix v. Woodward, 12 Conn. 262; Tucker v. Call, 45 Ind. 31; Darling v. Banks, 14 Ill. 46; Ellis v. Lindley, 38 Iowa, 461. It is said in Kane v. Ins. Co., cited above, that if in any civil action a party must make out his case beyond a reasonable doubt, it is a defend int who pleads justification in slander.

point of controversy will not wonder that jurors very frequently disagree as to a verdict. When this is the case, and there is no prospect of coming to an agreement by further deliberation, instead of starving them into unanimity, as was formerly done, the court order them to be discharged; and the cause remains for trial at a subsequent term, as if none had taken place. But when, on the other hand, they have agreed upon their verdict, they come into court and declare it, before separation, unless the court, with consent of counsel, give permission to seal it up, and then separate. In this case, they either hand it to the clerk or one of the judges, or bring it in themselves at the next opening of the court. We have seen that it may be general or special, (a) at the option of the jury; and it must assess the damages, if the case require it. The court may correct it in point of form, but cannot change the substance. It is delivered or declared by the foreman, and any juror may then express his dissent, but not afterwards. Sometimes, also, a party is permitted to poll the jury, that is, to ask each juror if he assents to the verdict, but this is not a matter of course. Jurors are not now punishable, as formerly, for finding a false or corrupt verdict, unless their misconduct amounts to a contempt. We shall see, however, that there are ways provided for avoiding the effect of a wrong verdict, for which purpose a discretion is lodged in the court; but in the mean time the verdict is entered on the journal of the court, and the jury are discharged, so far as relates to the case in hand.

Incidents after Verdict. In the regular course of proceeding, the next step is to pronounce judgment. But between the verdict and the judgment, certain steps may be taken to prevent the judgment, which are now to be described.

New Trial. (b) If the party against whom the verdict is, has sufficient cause, he may move for a new trial, and the court will

(a) The form of a special verdict, as it appears in the final record, is as follows:This day came the parties by their attorneys, and thereupon came a jury, to wit, [names of the jurors], who being impanelled and sworn to speak the truth upon the issue joined between the parties, upon their oaths did say [set forth the facts in their own words]; and if upon this finding the judgment ought to be for the plaintiff, then the jury assess his damages at dollars; but if for the defendant, then they find

accordingly.

Thus the question of law is wholly submitted to the court who hear argument thereon. The form of a general verdict must correspond with the issue to be tried, and is commonly in the very words of the issue. Thus on the issue of nil debet, after the foregoing introduction: That the defendant does owe to the plaintiff the sum of dollars in manner and form as the plaintiff has declared; and they assess his damages by reason of the detention of the said debt to dollars.

(b) The Code defines a new trial to be, a re-examination in the same court of an issue of fact, after a verdict by a jury, report of a referee, or a decision by the court. Eight causes are specified for granting it. 1. Irregularity in the proceedings of the court, jury, referee, or prevailing party, preventing a fair trial. 2. Misconduct of the jury or prevailing party. 3. Accident or surprise. 4. Excessive damages. Durrell v. Carver, 9 Ohio State, 72. 5. Error in the assessment of the amount of recovery. 6. Where the verdict, report, or decision is not sustained by sufficient evidence, or is contrary to law. Abernethy v. Wayne Co. Bank, 5 Ohio State, 266; Breese v. The State, 12 Ohio State, 146. 7. Newly discovered material evidence. Loeffner v. The State, 10 Ohio State, 598. 8. Error

hear argument upon such motion; but not more than two new trials will be granted in the same cause. The reasons of a new trial, which must be filed with the motion, are such as do not appear on the record, unless by a bill of exception; namely, where the court misdirect the jury; where evidence has been rejected or admitted contrary to law; where the verdict is against law, or against evidence, or on insufficient evidence, or gives excessive damages; where the jury have behaved improperly; and where a new and material fact has been subsequently discovered, which might change the verdict. Sometimes also a venire facias de novo is awarded, which has the same effect. The result is, that the former verdict is set aside, and the cause stands for trial as if none had taken place. (a)

Arrest of Judgment. The party aggrieved may next make a motion in arrest of judgment, and the court will hear argument upon it. Judgment can only be arrested on account of some error appearing on the face of the record, and which might have been ground for demurrer. It must be an error in substance, and not merely in form, and may occur anywhere in the proceedings. If this motion prevail, no judgment is entered on the verdict, but the party making it has judgment in his favor.

Judgment non obstante. There is one case also in which the proper motion is for judgment notwithstanding the verdict ; namely where the defendant has put in a defective plea of confession and avoidance, and yet obtained a verdict. Here the plaintiff's case being confessed by the plea, and the defence or matter in avoidance being insufficient, the verdict must, of course, be wrong; and judgment is properly rendered the other way.

Repleader. It sometimes happens that parties make up an immaterial issue; that is, an issue which, being found either way will not decide the cause. Whenever this state of pleading is discovered, the court will direct the parties to plead again, that a proper issue may be made.

§ 213. Judgment. (b) In the regular course of judicial pro

of law occurring at the trial, and then excepted to. The motion must be made in writing, with the reasons, at the same term, unless the reasons could not then be discovered; and then not later than the second term after discovery. As to the rules governing the granting of new trials, see Waterman on New Trials, Hilliard on New Trials.

(a) As to new trial in action for recovery of real property, City of Marietta v. Emerson, 5 Ohio State, 288; Singer v. Bell, 8 Ohio State, 291. Affidavits of jurors that they misunderstood the charge of the court will not be received on a motion to set aside the verdict. Holman v. Riddle, 8 Ohio State, 384.

(b) For the nature and various kinds and forms of judgments see 3 Black. Com. chap. 24; Steph. on Plead. 138-45. By the common law judgment did not operate as a lien until execution was levied. And the time of being dormant, without execution, was a year and a day, after which it must be revived by scire facias. As to judgment liens, see an excellent note to 10 Ohio, 74. See provisions of the Code making judgment liens on real estate from the first day of the term at which judgment is rendered, § 421, 422; as to liens of judgments before justices of the peace, see § 490, as amended by the act of Jan. 25, 1860. As to questioning judgments collaterally, see Ludlow v. M'Bride, 3 Ohio, 240; Ludlow v. Wade, 5 id. 494; Foster v. Dugan, 8 id. 87; Adams v. Jeffries, 12 id. 253; Douglass v. M'Coy, 5 id. 522. As to the power of

ceedings, we have now reached the point at which the court pronounce the sentence of law upon the case presented, and which is called the judgment. A judgment is said to be interlocutory, when it does not fully terminate the controversy, and final, when it does. In general, the judgment is not pronounced in so many words from the bench, but its nature being intimated by the court, the clerk enters it on the journal in due form. From that moment it carries on its face such absolute verity, that while it stands unreversed, nothing can be received to contradict or gainsay it. To avoid all questions about priority, it takes effect from the first day of the term. Of itself, it is, by our statute, a lien upon all real property of the defendant within the county; and by levy of execution it becomes a lien upon any other property. With the exception of ejectment for reasons before given, it is a conclusive bar to all further litigation between the same parties, touching the same subject-matter. (a) Within the State, the plaintiff may take out execution to carry it into effect at any time, unless he suffer an interval of five years to elapse without so doing; in which case the judgment becomes dormant; (b) that is, it ceases to operate as a lien, or to authorize execution, until revived by an action of debt or scire facias. If several judgments be recovered against the same debtor, at the same term, and executions be taken out within ten days after the end of the term, there is no preference or priority; but otherwise the first execution has the preference, unless two or more be issued on the same day. If execution be not taken out within one year from the rendition of judgment, it loses its priority of lien with respect to subsequent judgments complying with this rule. If execution have been levied upon so much of the property of the debtor, that two-thirds of the appraised value will satisfy the debt, the lien of that judgment ceases upon the residue.

the same court to set aside, alter, or amend a judgment at any subsequent term, unless fraudulently obtained, see Botkin e. Commissioners, 1 Ohio, 375; Reed v. Hatcher, 1 Bibb, 346; Medford v. Dorsey, 2 Wash. C. C. R. 433; Brackenridge v. M'Culloch, 7 Blackf. 331; Reynolds v. Stansbury, 20 Ohio, 344, and note.

By the Code, the judgment is so shaped as to specify the exact remedy or relief intended; in which respect it resembles a decree in chancery. When it is for a conveyance, release, or acquittance, and is not performed, it is declared to have the same operation and effect as if it had been performed. It is defined 'to be the final determination of the rights of the parties in an action. §370-94. And the power of the court which rendered the judgment to reverse, vacate, or modify it, after the term, on motion or petition, is greatly enlarged. § 534-42. The court may in the judgment give the defendant affirmative relief. § 385. Klonne v. Bradstreet, 7 Ohio State, 322.

(a) A judgment for or against one of the makers of a joint obligation is a bar to an action afterwards brought against another; but otherwise, if the obligation is joint and several. Clinton Bank v. Hart, 5 Ohio State, 33.

(b) Whether the fact of execution being stayed by injunction will prevent the judgment from becoming dormant, quære See Lytle v. Cin. Man. Co. 4 Ohio, 459; Winter . Lightbound, 1 Strange, 301; Mitchell v. Cue, 2 Burr, 660 But the statute of limitations does not run against a judgment, though suffered to become dormant. Todd v. Crumb, 5 M'Lean, 172. As to revivor of dormant judgments, see Code, § 417, amended by act of March 10, 1860; and § 490, amended by act of Jan. 25, 1860. As to judgment upon a warrant of attorney irregularly entered, see Knox Co. Bank v. Doty, 9 Ohio State, 505.