adverse party. The means he ought to employ are drawn from principles of law and from reason. When he cites a decision he ought to be careful to state it as it is; he ought not merely to show that such a decision has been made, but also the reason, and the principle upon which it has been so adjudged.

As the matters in the temple of justice ought always to be seriously discussed, and as they are always of importance to the parties, a wise advocate will abstain from all pleasantries and jests, too often insipid, which may excite a laugh, but frequently at the expense of their author.

It is a rule, which cannot be too rigidly observed, that a speech should not be filled with useless circumlocutions, for they are injurious, they draw the attention from the real points of the case, and weaken the argument, and even when the advocate has a bad cause, the introduction of extraneous circumstances will have a tendency to prejudice wise judges against him, as it is easily shown that they could not have been introduced for a legitimate purpose. But a perfect arrangement of thoughts and words is not sufficient to make an eloquent discourse; there is a beauty in the position of the body and the gesture, and agreeableness in the modulations of the voice, which, joined to a clear, firm and distinct pronunciation, are required to make an eloquent speech. In fact, the eloquence of gesture, of the face, and the proper modulation of the voice, are not less necessary than the words uttered by the speaker, and not seldom make as much impression as the words themselves. It must, however, be remembered that, to have any effect, these must be natural and without af fectation; for although an immovable orator, without grace, chills his auditors, yet he is not more defective than he who assumes a theatrical air, and by his misplaced gestures and his affected manners leaves upon the minds of his hearers nothing solid or convincing about his case, and only an unfavorable opinion as to himself. The first puts you to sleep; the last prevents you, by his speech, from thinking of what you came into court to hear.53

3248. The counsel of the party who has the right to begin, which we sup

53 The foregoing rules are condensed in the following lines:

Be brief, be pointed; let your matter stand

Lucid in order, solid, and at hand;

Spend not your words on trifles, but condense;

Strike with the mass of thoughts, not drops of sense;

Press to the close with vigor once begun,

And leave, (how hard the task!) leave off when done;
Who draws a labor'd length of reasoning out

Puts straw in lines for winds to whirl about;

Who draws a tedious tale of learning o'er,

Counts but the sands on ocean's boundless shore;
Victory in law is gain'd as battles fought,
Not by the numbers, but the forces brought.
What boots success in skirmish or in fray,

If rout and ruin following, close the day?

What worth a hundred posts maintain'd with skill,

If these all held, the foe is victor still?

He who would win his cause with power must frame
Points of support, and look with steady aim;
Attack the weak, defend the strong with art,
Strike but few blows, but strike them to the heart;
All scatter'd fires but end in smoke and noise

The scorn of men, the idle play of boys.
Keep, then, this first great precept ever near:
Short be your speech, your matter strong and clear,
Earnest your manner, warm and rich your style,
Severe in taste, yet full of grace the while;
So may you reach the loftiest hights of fame,
And leave, when life is past, a deathless name."

pose is the plaintiff, now argues his case to the jury. It is essential to the due administration of justice that the counsel should be privileged and protected in the energetic discharge of his professional duty; that, when commenting with just severity, when the case requires it, upon the conduct of the parties or of witnesses, he may use strong epithets, however derogatory of the opponent or his attorney, or other agents employed in bringing or defending the action; for if he were liable to an action for uttering such language, whether true or not, it would cramp, if not destroy, the energy of counsel, which is considered so essential to society. Respectable and sensible counsel, however, will always refrain from the indulgence of any unjust severity, 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; second, he should show how it is supported by the evidence; third, the legal grounds and authorities in favor of the claim.

3249. 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. 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 naked

ness.

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

3251. 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.

3252. 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. Next should be an examination of the evidence on both sides, and

"In Louisiana it is enacted, "that no client or other person shall be held to be liable or responsible for any slanderous or libellous words uttered by his attorney at law, but attorneys at law shall be liable and responsible themselves for any slanderous or libellous words by them uttered, any law to the contrary notwithstanding." Act of March 25, 1828, section 23.

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.

3254. 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.

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 principal 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 nor in fact.

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.

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 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.

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.

3258. After the judge has delivered his charge, the jury are required to consider their verdict. For this purpose they have a right to withdraw from the bar or jury-box, and retire in charge of an officer to a private room, there to deliberate on their verdict. They are not allowed to take with them any documents, without the leave of the court, for it is evident that if the documents should be all on one side, as, where depositions are taken to support the plaintiff's claim, and none upon the other, or his testimony has all been given viva voce, in open court, the parties would not stand upon equal ground.55

If, after having retired from the court, the jury cannot agree upon their verdict, and the court or judge is fully satisfied that they cannot agree, after having made many efforts to do so, the judge may in his discretion discharge them from the further consideration of the case. In England this has the effect of putting the parties out of court without any judgment, and of course each has to bear his own costs, and the plaintiff is allowed to bring a new suit for the same cause of action. If, in the new action, he should recover, he will not be entitled to the costs of the first.56 In Indiana, when a jury in a civil cause was impanelled, heard a part of the evidence, and the jurors dispersed,

55 See Wright v. Rogers, 2 Penn. N. J. 547.

56 Vallance v. Evans, 3 Tyrwh. Exch. 865; Sealy v. Powis, 3 Dowl. 372; 1 Am. Lead. Cas. 118; Everett v. Youells, 3 Barnew. & Ad. 349; Bonsor v. Clement, 6 Carr. & P. 230.

by consent, and next day one of the jurors failed to appear, whereupon the jury was dismissed, and a new jury impanelled, the proceedings were held not to be

The jury may also be dismissed by withdrawing a juror, that is, requesting one of the jurors to leave the jury-box, by which means the proceedings in the suit are at an end, and each party must pay his own costs. This is usually done at the suggestion of the judge when there are reasons why the case should not proceed further. But the plaintiff may bring a new suit for the same cause of action.

3259. It may be remembered that the jurors were sworn "to try the issue joined between the parties, and a true verdict give according to the evidence." The issue is the question or matter in controversy between the parties, as appears upon the pleadings on record; and the term evidence means the proofs adduced by the parties before the jury in open court; consequently no verdict can be founded upon any other knowledge, and still less upon any hearsay information acquired by a juror out of court. If a juror has any knowledge of the facts, he ought to be examined like any other witness, in order to give the party against whom his knowledge would operate an opportunity to contradict or explain what operates on the juror's mind.

The verdict should be in positive terms, one way or the other, and not in any doubtful mode of expression; but when it is a special verdict, it may be in the alternative.

The law requires that the verdict shall be unanimous; the verdict of any number less than the whole twelve cannot be received, except by consent.

58

When the jury have agreed upon their verdict, they come into court, and after being placed in the jury-box, their names are called by the clerk of the court to ascertain whether they are all present. The clerk then asks them, "Gentlemen of the jury, are you agreed upon your verdict?" Upon their assenting, he asks, "How say you, do you find for the plaintiff or the defendant?" The foreman of the jury then answers either "We find for the plaintiff,” if in an action of debt or assumpsit, so many dollars, debts or damages, and costs; or if for the defendant, "We find for the defendant." The clerk then makes an entry of the finding, and addressing the jury, says, "Gentlemen of the jury, hearken unto your verdict, as the court have recorded it, you say you find,' and then repeats their finding, to which they all assent.

But after the jury have come in, at any time before the verdict has been delivered and recorded, either party has a right to ask that the jury shall be polled; that is, that each juror shall be asked separately what is his verdict.59 If, upon being so polled, one should dissent from his fellows, the verdict cannot be received, because the jurors are not unanimous. In such case, or indeed in any other, when the jury are in doubt, they may ask additional instructions from the court as to the law, or they may recall any witness about whose testimony there is some disagreement among the jurors.60 They retire again, and further deliberate upon their verdict, and the same form of receiving it is pursued which was adopted in the first instance.

3260. A verdict is the unanimous decision made by a jury and reported to the court on the matters lawfully submitted to the jurors in the course of the trial of a cause.

57 Harris v. Doe, 4 Blackf. Ind. 369.

58 Campbell v. Wooldredge, Ga. Dec. part 2, p. 132.

59 Johnson v. Howe, 7 Ill. 342; Rigg v. Cook, 9 Ill. 336. It is held that polling the jury is in the discretion of the court. Beale v. Hall, 22 Ga. 431; Blum v. Pate, 20 Cal. 69. 60 Blackley v. Sheldon, 7 Johns. N. Y. 32.