Seymour D. (Seymour Dwight) Thompson.

A treatise on the law of trials in actions civil and criminal (Volume 2) online

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voluntarily took a nonsuit after the ^ Chiles v. Wallace, 83 Mo. 85, 93.
oveiTuliug of a motion to strike out a





2242. The Legal Sufficieucy of the Evidence.

2243. The Legal siifflicieucy of the Facts.

2244. The Legal effect of the Evidence.

2245. Where there is no Evidence.

224G. The Doctrine of " Scintilla " of Evidence.

2247. This Doctrine Denied in England.

2248. And in the American Federal Courts.

2249. And in the Courts of many of the American States.

2250. Further Explanations of the Rule. — (a.) Where the Vei'dict would be

set aside if found for the Party Sustaining the Burden of Proof.

2251. (?>.) Where the Party sustaining the Burden of Proof alleges one State

of Facts and proves an entirely Different State of Facts.

2252. This Rule not affected by a Statute curing Variances.

2253. Instances of Material Variances.

2254. Instances of Immaterial Variances.

2255. [Continued]. Under the Missouri Statute.

225(3. Variance in the spelling of Names which are Idem Sonans.

2257. Variance in Respect of Matters of Inducement not the Foundation of

the Action.

2258. Variance in Respect of Dates.

2259. Variance between Allegation and Record Evidence Explainable by


2260. Variance in Actions for Slander.

2261. Other Instances of Immaterial Variance.

2262. (c.) Where the Facts are Undisputed or Admitted.

2263. (fZ.) Where the Evidence leaves a Single Material Fact Unproved.

2264. (e.) Where the Plaintiff's Evidence is Irreconcilable with Existing

Physical Facts.

2265. (/.) In Actions upon Bills of Exchange where nothing is Required but

a Computation, etc.

2266. {g.') In Equitable Actions in Pennsylvania.

2267. Office of an Instruction in the Nature of a Ruling sustaining a De-

murrer to the Evidence.

2268. When such a Motion should not be granted.

2269. Whether a Nonsuit may be Ordered or a Peremptory Instruction given

upon New Matter elicited upon Cross-Examination of Plaintiff's



2270. At what Stage of the Trial Nonsuit granted or Peremptory Instructions


2271. Defendant's Evidence helping out Plaintiff's Case.

2272. When Plaintiff Estopped on Appeal to insist that he was entitled to go

to the jury. '

2273. Verdicts, hoAV Considered on Appeal or Errcjr.

§ 2242. The Legal Sufficiency of the Evidence. — It is often
said tliat the evidence offered to a jury has a " twofold suffi-
ciency — a sufficiency in law, and a sufficiency in fact. Of its
sufficiency in hiw, the court, when applied to for that purpose,
are the exclusive judges." ^ " It appertains to the court," it is
said in another case, " to determine upon the legal sufficiency of
evidence to prove a fact." ^ And the same court, in another
case, thus expresses the doctrine: "It is the peculiar province
of the court to determine all questions of law arising before
them; and the undoubted right of the jury, to find all matters of
fact, when evidence, legally sufficient for that purpose, is sub-
mitted to their consideration. And this legal sufficiency is a
question of law, of which the court are the exclusive judges." ^
" When, assuming that all the testimony adduced by the one or
the other party is true, it does not support his issue, it is the
duty of the judge to declare this clearly and directly." * " The
legal sufficiency of proof," says Ames, C. J., " and the moral
weight of legally sufficient proof are very distinct in legal idea.
The first lies within the province of the court, the last within
the province of the jury." ^

§ 2243. The Legal Sufficiency of the Facts. — But this ex-
pression is not to be commended, ))ecause it is liable to be mis-
understood. All judicial administration exhausts itself in the

1 Cole V. Ilebb, 7 Gill & .7. (Md.) (Md.) 3(;. To the same doctrine is
20; Belt V.Marriott, 9 Gill (Md.), 331, Belt r. Marriott, 9 Gill (Md.), 331,
334; Davis V. Davis, 7 Ilarr. &,J. (Md.) 334.

36. * Campbell, .1., in Chandler v. Von

2 Chase, C. J., in Tyson v. Eickard, Koedcr, 24 How. (U. S.) 227.

3 Ilarr. & J. (Md.) 109, IK!. ^ Wheeler v. Schroeder, 4 R. I. 383,

3 Davis V. Davis, 7 Ilarr. & J. 392.


twofold office (1) of finding the ultimate or constitutive facts
upon which the rights of the parties depend, and (2) in applying
the law to those facts. In cases where the dual tribunal of judge
and jury exists, the judge performs the twofold office of (1)
determining whether any evidence has been presented tending to
establish the constitutive facts advanced by the party sustaining
the burden of proof, and (2) of applying the law to the facts so
found. Where the judge ascertains that there is evidence tend-
ing to show the constitutive facts advanced by the party sustain-
ing the burden of proof, it is for the jury to say whether the evi-
dence is suj/ic lent for that purpose. ^ Thus, where parol evidence
is invoked to explain the meaning of a written instrument, —
as, for instance, a 7vill, — and the evidence, assuming that it is
believed by the jury and allowed full effect in respect of all that
it tends to prove, fails to alter the meaning of the will as found
in the language used, the court may properly charge the jury to
disregard such evidence entirely,'^ and generally, where there is
no conflict in the evidence, no dispute as to the facts, there is
nothing to submit to the jury, and the question is one of law,
and can be decided only by the court. In such cases it is proper
for the court to direct the verdict, and a verdict thus ordered
will be sustained if the law, and the facts disclosed by the evi-
dence, warrant it."^

§ 2244. Legal Effect of the Evidence. — Another expres-
sion of the same doctrine is, that it is the province of the court
to determine the legal effect of the evidence.* Thus, where the
evidence is all in, and the judge sees that it does not have the

^ The liue which defines the rela- reaffirmed in Burke v. Lee, 76 Va. 386,

tive provinces of the court and jury 391.

distinguishes between tlie sufficiency ^ Bui'keu. Lee,76 Va. 386. Compare
of evidence to prove certain facts, and Pasley v. English, 10 Gratt, (Va.) 236.
the legal sufficiency of facts to invoke ^ St. Johnsbury v. Thompson, 9
a certain judgment. It is the province Atl. Rep. 571 ; s. c. 59 Vt. 300; Lind-
of the jury to decide as to the former, say v. Lindsay, 11 Vt. 621; Wilder v.
but of the court, it invoked for the Wheeldon, 56 Vt. 3-14; Noyes v. Rock-
purpose, to decide as to the latter. wood, 56 Vt. 647.
Davis V. Miller, 14 Gratt. (Va.) 1, 22; ^ Harris v. Woody, 9 Mo. 113.


effect in law to entitle the plaintiff to recover, it is his duty lo
to instruct the jury to find for the defendant. Therefore, in an
action for slander, when all the evidence offered, admitting it to
be true, shows simply that the defendant charged the plaintiff
with having sworn to a lie, but there was no evidence that the
charge was made with reference to any judicial proceeding, it
was held proper for the court to instruct the jury that the plaintiff
could not recover. Such an instruction was in the nature of a
rulinsr on a demurrer to the evidence.^ So, in an action for an
illegal arrest, the presumption being that the arrest was legal, if
there is no evidence which has the legal effect of overcoming this
presumption, the case should not be submitted to the jury.^

§ 2245. Where there is uo Evidence. — The most frequent
expression of the rule is that, where there is no evidence tending
to prove the constitutive facts set up by the party who sustains
the burden of proof, the court is bound, on request, to direct the
jury to return a verdict for the opposite party. ^ On the other
hand, where there is any evidence tending to prove such facts,
the court cannot so direct the verdict, but must submit the evi-
dence to the jury and leave it to them to determine whether it is
sufficient to that end. ^ The rule has been thus expressed: " When
the testimony is allin one direction, or when all the evidence for
the plaintiff has been given, and it has no tendency whatever to

i Ihido Levee Co., 5G Mo. 590; Tutt v. Cloney,

* Stouffer V. Latshaw, 2 Watts 02 Mo.IKj; Halliday u. Jones, 59 Mo.
(Pa,), KJo. 482, 484; Groll v. Tower, 85 Mo. 249;

3 Tisou V. Yawn, 15 Ga. 491; Bo- Moody v. Deutsch, 85 Mo. 237; Alex-
land ■;;. Missouri K. Co., 3G Mo. 484, ander v. Harrison, 38 Mo. 258, 266;
491; Meyer v. Pacific R. R., 40 Mo. Routsong v. Pacific R. Co., 45 Mo.
151; Clark v. Hannibal &c. R. Co., 36 230; Hays v. Bell, 16 Mo. 496; Emer-
Mo. 202, 217; Lee v. David, 11 Mo. 114, sou v. Sturgeon, 18 Mo. 170; MacFar-
116; Callahan ». Warne, 40 Mo. 131; land v. Bellows, 49 Mo. 311; Smith ».
Chariest). Patch, 87 Mo. 450, 462; Ru8- Hutchin.son, 83 Mo. 683; Bowen v.
sell t). Barcroft, 1 Mo. 662; Alexau- Lazalere, 44 Mo. 383; Williamson v.
der V. Harrison, 38 Mo. 258; McFar- Fischer, .50 Mo. 198; Grady v. Ins. Co.,
land V. Bellows, 49 Mo. 311. GO Mo. 116; Baum y. Fryrear, 85 Mo.

* Cooku. Hauuibal&c.R. Co.,63Mo. 151.
397; St. Vrain v. Columbia Bottom


prove the particular issue relied on to recover, and there is no
question in regard to the credibility of the witnesses who have
given the evidence, the court may determine the whole case as a
question of law." ^ " But wdien the facts are disputed, or the
credibility of witnesses is drawn in question, or a material fact is
left in doubt, or there are inferences to be drawn from facts
proven, the case, under proper instructions, should be submitted
to the jury," ^ It is said that a nonsuit ought not to be granted,
if the evidence is sufficient to authorize the jury to find for the
plaintiff, although it may not be sufficient to require them to do
so.^ Again, it is said that if there is any evidence upon which a
verdict can be rendered, it is error to award a nonsuit.* With
equal vagueness, it is said in another case, that a nonsuit ought
not to be granted, where the jury may have found facts from
the evidence offered to support the action.^ The judge merely
decides whether there is, prima facie^ any reason for allowing
the evidence to be considered by the jury at all, and his decision
on the point, if erroneous, maybe reviewed on error. ^ The ques-
tion whether there is any evidence tending to prove a fact in
issue, is a preliminary question which the judge must decide,
either at the close of the plaintiff's case or at the close of the
whole evidence, before submitting the fact to the decision of the
jury; since it is error to submit to the jury a question which
there is no evidence tending to prove. ^

§ 2246. The Doctrine of "Scintilla" of Evidence. — Those
courts which uphold with jealousy the right of trial by jury,
have agreed upon this doctrine : That where there is any evi-
dence, however slight, tending to support a material issue, the
case must go to the jury, since they are the exclusive judges of

1 Boland v. Missouri &c. R. Co., 36 ^ phillips v. Brigham, 26 Ga. 617»
Mo. 484, 491. To the same effect is G19.

the language of Redfield, J., in Viu- * Tison v. Yawn, 15 Ga. 491.

ton V. Schwab, 32 Vt. 612. 5 Biggers v. Pace, 5 Ga. 171, 175.

2 Kelly V. Hannibal &c. R. Co., 70 « Cleave v. Jones, 7 Exch. 421.
Mo. 604, 608; Eichey V. Burns, 83 Mo. 'Ryder v. Worabwell, L. R. 4
362, 364. Exch. 32; s. c. 38 L. J. Exch. 8.


the weight of evidence.^ And this is so, although the judge may
be of opinion that the iveight of evidence is insufficient to support
the issue. 2 In other words, where the facts offered in evidence
by the plaintiff, if true, make out a prima facie case, the jury,
and not the judge, ought to pass upon them, however meager or
improbable the evidence may be.^

§ 2247. This Doctrine Denied in England. — This doctrine
seems at one time to have had a foothold in England, but in
more recent times it has been denied by all the courts of that
country. The doctrine which now prevails in that country was
thus expressed by Mr. Justice Maule, in language which has been
very much quoted: " Perhaps it cannot with strict propriety be
said, where the facts proved are not inconsistent either with the
affirmative or the negative of the alleiration souo;ht to be estab-
lished, that there is no evidence, to go to the jury. That would
exclude many cases where no doubt there would be evidence,
though slight, which ought to be submitted to the jury. Apply-
ing the maxim de minimus non curat lex, when we say that there
is no evidence to go to a jury, we do not mean that there is lit-
erally none, but that there is none which ought reasonably to

1 Mercier v. Mercier, 43 Ga. 323; v. Hannibal &c. R. Go., 36 Mo. 202;

Johnston v. Crawley, 22 Ga. 348; Lee v. David, 11 Mo. 114, 116; Meyer

Stamper V. Hayes, 25 Ga. 546; Phillips v. Pacific Railroad, 40 Mo. 151; Glas-

V. Brigham, 26 Ga. 617; Thornton v. gow v. Copeland, 8 Mo. 268; Way v.

Gibson, 43 Ga. 395; Denny ■?;. Williams, Illinois &c. R. Co., 35 Iowa, 585;

'5 Allen (Mass.), 1; Brooks v. Somer- Muldowney v. Illinois &c. R. Co., 32

ville, 106 Mass. 271, 275; Hays v. Bell, Iowa, 178; Lewis v. Pratt, 48 Vt. 358;

16 Mo. 496; Ilonghtaliug v. Ball, 19 Hughes v. Ellison, 5 Mo. 110; Morton

Mo. 84; Chambers v. McGiveron, 33 w. Reeds, 6 Mo. 64; Emerson r. Stur-

Mo. 202; Deere v. Plant, 42 Mo. 60; geon, 18 Mo. 170; Rippey u. Friede,26

McKown V. Craig, 39 Mo. 156; Mat- Mo. 523; Cumberland Coal &c. Co. v.

thews V. St. Louis Grain Elevator Co., Scally, 27 Md. 589; Flori v. St. Louis,

50 Mo. 149; Chambcrlin v. Smith, 1 3 Mo. App. 231. And whether direct

Mo. 482; Speed v. Herrin, 4 Mo. 356; or inferential, Charles v. Patch, 87

Obouchon v. Boon, 10 Mo. 442; Rob- Mo. 450, 462.

bins V.Alton Marine &c. Ins. Co., 12 2 Bowen 17. Lazalere, 44 Mo. 383, 388.

Mo. 380: Dooly v. .Tiunings, 6 Mo. 61; ^ -^Voods v. Atlantic Mutual Ins.

Todd V. Boone County, H Mo. 432, 437: Co., 50 Mo. 112.
Winston v. Wales, 13 Mo. 669; Clark


satisfy a jury that the fact sought to be proved is established.
There may be evidence upon which a jury may properly proceed,
although the contrary is possible; for instance, when the question
is whether a certain document is in the handwriting of A. B.,
and a witness conversant with the handwriting of that person
states that he believes it was written by him, it is consistent with
that evidence that the document may not be in the handwriting
of A. B., and yet the jury would be well warranted in coming
to the conclusion that it was, even though there might be wit-
nesses on the other side to pledge their belief that it was not.
In the case of presumptive evidence of a given fact, all possibil-
ity of the contrary is not necessarily to be excluded ; a very high
degree of probability must often be treated as an absolute cer-
tainty. Even in criminal cases, it constantly happens that evi-
dence is acted upon, even to the infliction of the highest penalty
of the law, which is not inconsistent with the innocence of the
party charged." ^ The same doctrine was tersely expressed by
Williams, J., when he said: "A scintilla of evidence or a mere
surmise that there may have been negligence on the part of the
defendants, clearly would not justify the judge in leaving the
case to the jury ; there must be evidence upon which they might
reasonably and properly conclude that there was negligence."^
In another case the question was said to be "whether the proof
was such as that a jury could reasonably come to the conclusion"
that the issue was proved.^ " Such a question," said Willes, J.,
*'is one of mixed law and fact. In so far as it is a question of
fact, it must be determined by a jury, subject no doubt to the
control of the court, who may set aside the verdict and submit
the question to the decision of another jury. But there is in
every case * * * a preliminary question, which is one of
law, namely, whether there is any evidence on which the jury

1 Jewell V. Parr, 13 Com. Bench, C. B. (n. s.) 146, 150; approved In
909, 915, 916. Quoted with approval Corumau v. Eastern Counties R. Co., 4
by Hand, J., in Ciaflin v. Meyer, 75 Hurl. & N. 781, 786, per Bramwell, J.;
N. Y. 260, 266, and by Van Vorst, J., and in Giblin v. McMuUen, L. R. 2 P.
iu Madan v. Covert, 13 Jones & S. C. 317, 335.

(N. Y. Super.) 245, 250. 3 wheeltou v. Hardisty, 8 EI. & Bl.

2 Toomey v. Loudon &c. R. Co., 3 231, 262.



could properly find the question for the party on whom the onus
of proof lies. If there is not, the judge ought to withdraw the
question from the jury and direct a nonsuit, if the onus is on the
plaintiff, or direct a verdict for the plaintiff if the onus is on the
defendant. It was formerly considered necessary in all cases to
leave the question to the jury, if there was any evidence, even a
scintilla, in support of the case; but it is now settled that the
question for the judge (subject, of course, to review), is, as
stated by Maule, J., in Jeioell v. Parr,^ ' not whether there is
literally no evidence, but whether there is none that ought rea-
sonably to satisfy the jury that the fact sought to be proved is
established.' "^

§ 2248. And in the American Federal Courts. — In the

Federal courts, " the judges are no longer required to submit a
case to the jury, merely because some evidence has been intro-
duced by the party having the burden of proof unless the evi-
dence be of such a character that it would warrant the jury to
proceed in finding a verdict in favor of the party introducing
such evidence. Decided cases may be found, where it is held
that, if there is a scintilla of evidence in support of a case, the
judge is bound to leave it to the jury ; but the modern decisions
have established a more reasonable rule, to wit: that before the
evidence is left to the jury, there is, or may be in every case, a
preliminary question for the judge, not wdiether there is literally
no evidence, but whether there is any upon which a jury can
properly proceed to find a verdict for the party producing it,
upon whom the burden of proof is imposed." ^ In a very early

1 13 C. B. 909, 91G. 78, per Lord Blackburn, and in Dublin

2 Ryder v. Wombwell, L. R. 4 Exch. &c. R. Co. v. Slattery, L. R. 3 App.
32, 38; reaffirmed in the House of Cas. 1155, 1171, per Lord Ilathcrlcy.
Lords in Metropolitan R. Co. v. Jack- Similarly, the following American
son, L. R. 3 App. Cas. 193, 207; s. c. cases: Beaulieu v. Portland Co., 48
47 L. J. C. P. 303; 37 L. T. C79; 2G W. Me. 291 ; Greenleaf v. Illinois &c. R.
R. 175; reversing s. c. in Court of Ap- Co., 29 Iowa, 14, 22; Lehman v.
peal, 2 C. P. Div. 125; 4(! L. J. C. P. Brooklyn, 29 Barb. (N. Y.) 234.
37G;3(;L.T.485; 25W.R. CGl;andalso 3 Commissioners y. Clark, 94 U. S.
in Common Pleas, L. R. IOC. P. 49; 44 278, 284, per Mr. Justice Clifford.

L. J. C. P. 83; 31 L. T. 475; 23 W. R.


case, substantially the same rule was thus enunciated by Mar-
shall, C. J. : " The general doctrine on a demurrer to evidence has
been correctly stated at the bar. The party demurring admits
the truth of the testimony to which he demurs, and also those
conclusions of fact which a jury m.a]f fairly draw from that tes-
timony. Forced and violent inferences he does not admit ; but the
testimony is to be taken most strongly against him, and such con-
clusions as c\]\xvjmigJitjusiifiahly<:hmio,i\\e courtoughtto draw." ^

§ 2249. And in the Courts of many of the American
States. — The old rule is likewise exploded in several of the
States, whose courts are now in the constant habit of ordering-
nonsuits against the consent of the plaintiff ,2 of giving peremp-
tory instructions to the jury to find for one party or the other, ^
or of sustaining demurrers to the evidence, in cases where there
is confessedly some evidence supporting a material issue. This
is often done under the disguise of various expressions which
seem to leave the ancient prerogative of the jury intact. In
Maryland, and perhaps other States, the judge achieves this re-
sult by determining the legal sufficiency of the evidence,* and in
Missouri, by determining its legal effect.^ The Supreme Court
of the latter State, which in former years upheld the preroga-
tive of juries to an absurd extent, has lately reproached, in
expressive language, the weakness of the circuit judges in sub-
mitting cases to juries, in which a verdict ought not to be allowed
to stand, if rendered for the plaintiff.^ In North Carolina the

^ Pawliug V. United States, 4 ^ Wittkowsky v. Wasson, 71 N. C.

Crauch (U. S.), 219, 222. 451; Fort Scott Coal & Miuiug Co. v.

2 Colt V. Sixth Av. R. Co., 49 N. Y. Sweeney, 15 Kan. 244; Reed v. Deer-

671; Wombougli v. Cooper, 4 Tliomp. field, 8 Allen (Mass.), 622, 524; Todd

& C. (N. Y.) 586; Sliirley v. Vail, 38 v. Old Colony R. Co., 7 Allen (Mass.),

How. Pr. (N. Y.) 406; Brooks «. Buf- 207; Denny v. Williams, 5 Allen

falo &c. R. Co., 25 Barb. (N. Y.) 600; (Mass.), 1, 5; Gavett v. Manchester

Bailey v. Kimball, 26 N. H. 351; Mason &c. R. Co., 16 Gray (Mass.), 501.

V. Lewis, 1 G. Greene (la.), 494; * Ante, § 2242.

Brown V. European &c. R. Co., 58 Me. & Ante, § 2244.

384; Morton V. Frankfort, 55 Me. 46; « Morgan v. Durfee, 69 Mo. 469,

Cooper V. Waldron, 50 Me. 80. See 476; s. c. 9 Cent. L. J. 12, opinion by

Brooks V. Somerville, 106 Mass. 271, Sherwood, C. J. In 9 Cent. L. J. 102,

i 275. will be found a forcible article on this


English rule is conceded, that there must be some evidence from
which the jury might reasonal)ly come to the conclusion that the
issue was proved.^ In ^Maryland it was early ruled that when-
ever the testimony adduced by cither party " is so light and in-
conclusive, that no rational, well-constructed mind can infer from
it the fact wliich it is offered to establish, it is the duty of the
court, when a})plied to for that purpose, to instruct the jury that
that there is no evidence before them to warrant their tindinj; the
fact thus attempted to be proved."'-^ In Maine it was forcibly
said: "• A jury cannot be permitted to find there is evidence of
a fact when there is not any. A plaintiff cannot read his writ to
the jury and claim a verdict without submitting any evidence.
Xor can he do so where the evidence is too slight or trifling to be
considered and acted upon by a jury. The evidence must have
some legal weight. There is no practical or logical difference
between no evidence and evidence without legal weight." " The
old rule that a case must go to the jury if there is a scintilla of
evidence has been almost everywhere exploded. There is no ob-
ject in permitting a jury to find a verdict which a court would
set aside as often as found. The better and imjiroved rule is,
not to see whether there is an}^ evidence, a scintilla, or crumb,
dust of the scales, but whether there is any upon which a jury
can, in any justifiable view, find for the party producing it, upon
whom the burden of proof is imposed."^ Accordingly, the pre-
siding judge directs a nonsuit where the jury would not be
authorized to find for the plaintiff under the evidence adduced.*

subject by 11. C. McDoucal, Esq. For s Counor v. Giles, 70 Me. 132, 134,

other Missouri cases teiuliuij; the same opiuiou of the court by Peters, C.J.

way^ see Maher v. Atlantic &c. R. Co., The court cite Bouv. Law Diet., Sciu-

G4 Mo. 2G7; Fletcher v. Atlantic &c. tilla of Evidence; Beaulieu v. Port-

E. Co., 04 Mo. 484; Railroad Co. v. land Company, 48 Me. 294; Brown ?>.

Houston, 95 U. S. 697; s. c. 6 Cent. European &c. R. Co., 68 Me. 384;

L. J. 132; 1 Thomp.ou Neg. 444; No- Rourke v. BuUens, 8 Gray (Mass.),

lau V. Shickle, 3 Mo. App. 300. 549.

1 Wittkowsky v. Wassou, 71 N. C. ^ Pray v. Garcelon, 17 Me. 145;
451. Head v. Sleeper, 20 Me. 314.

2 Belt V. M<irriott, 9 Gill (Md.), 331,



§ 2250. Further Explanations of the Rule: (ci.) Where
the Verdict would be set aside if found for the Party Sustain-
ing- the Burden of Proof. — Several modern courts have united

Online LibrarySeymour D. (Seymour Dwight) ThompsonA treatise on the law of trials in actions civil and criminal (Volume 2) → online text (page 52 of 126)