Page:Harvard Law Review Volume 5.djvu/333

317 THE JURY A ND ITS DE VEL OPMENT. 3 t 7 bar, 1 in an assise of novel disseisin. This case shows us wit- nesses testifying openly to the jury; that practice had come in now. And it also shows us the counsel putting in evidence freely by mere allegations to the jury. Littleton, Fairfax, and others, Serjeants, make a long narrative for the plaintiff. Yong does the same for the defendant. Sometimes a witness is called, and examined by the court. Sometimes he is only referred to as being present and ready to testify. Sometimes a document is put in. But mainly the statements of counsel are put forward as being in themselves evidence. It is interesting to notice that the judges suggested to the defendant's counsel discharging the inquest and demurring upon the evidence, then, probably, a pretty new thing in pleading ; the plaintiff's counsel were ready for this, but the others declined ; and the defendants afterwards lost by the jury's verdict. If they had demurred to the evidence they would have demurred to the allegations. A century later, in 1571, 2 in a famous demurrer upon evidence in an assise of novel disseisin, there is a long set of recitals of what William Bendloe, the plaintiff's serjeant, "said in evidence," and "gave in evidence," and " showed in evidence ; " and then the defendants say that "the evidence and allegations aforesaid are insufficient in law," etc. And so, two centuries later, in Cocksedge v. Fanshawe. 3 In the great case of Gibson v. Hunter, in 1793, 4 in which the de- murrer upon evidence, as a workable part of legal machinery in England, came to an end, after its life of about three centuries and a half, we find a note by the reporter seeking to reconcile this case with Cocksedge v. Fanshawe ; the record in that case, it is said, "is agreeable to the ancient mode adopted in demurrers to evidence, in which it was usual to enter both the allegations of counsel in favor of the party offering the evidence and the evi- dence itself on the record, and to demur as well to the allegations as the evidence." This note is only wrong in its intimation that the allegations in former times were in any way a thing different from the "evidence." They appear to have been a leading and well recognized kind of evidence. 1 Babington v. Venor, Long Quint (5 Edw. IV.) 58. 2 Newis v. Lark, Plow. 403, 407. This form, with others, is given in Rastell's Entries} 318-3193. 8 Doug. 119 (1779).
 * 2 H. Bl. 187, 209-11.