1880. GIBSON v. MERCANTILE tions of fact, solely for the consideration of the jury; it is their privilege to decide upon evidence in which witnesses contradict each other; or where statements made by witnesses at one time, THE NORTH on oath, are at variance with what they make at a later period. BRITISH AND There was evidence given on the part of the plaintiffs, which, if the jury believed, entitled them to the verdict; and there was evidence given by the defendants in support of the third and fourth pleas, upon which, if the jury believed it, they could find for the defendants. The several Judges who tried the case, in the several years, no doubt, formed an opinion from the evidence, but their opinions do not decide the issues-that belongs to the jury alone; the evidence for the defendants was not given viva voce, but by depositions; not in open Court, nor subject to any cross-examinations. There is no doubt the opinion of the Judge who tries a cause, upon the conflict of evidence, given on the trial, is entitled to great consideration, for he has seen the witnesses' conduct on the stand, the demeanor, manner, and mode of giving evidence, and this necessarily leads to forming an opinion whether the. witnesses are frankly and honestly speaking truly, or trying to evade questions to elicit the truth, by avoiding answering the questions. But these reasons do not apply when all the testimony is written; for, with the depositions before the Court, each Judge is competent to form an opinion upon such evidence, as the Judge trying the cause. The affirmative of the issues, in this case, is upon the defendants, and they must satisfy the jury by evidence; if their evidence is insufficient, or if rebutted or answered by the plaintiffs, and the evidence of the plaintiffs believed, the verdict is for them; if, on the contrary, the defendants' evidence satisfies the jury, the defendants will have the verdict. The question being thus settled by the jury seems to be the governing rule. In Little v. Johnson,1 a case tried before Parker, J., in Northumberland, 1841, the question of fraud was put to the jury, who negatived, and found for the plaintiff;—a rule nisi for a new trial-verdict, against weight of evidence. Chip 11 Kerr, 494. Ins. Co. 1880. GIBSON v. MERCANTILE INS. Co. man, C. J. As to the fraud-all the circumstances were before the jury, and the fraud expressly put to them, from THE NORTH Which they have drawn their own conclusions, and I cannot BRITISH AND say they are wrong." Botsford, J. "It was entirely left to the jury, and they have negatived it." Carter, J. Carter, J. "The fraud was left as fairly to the jury as it could be, and though I might come to a different conclusion, I cannot say the jury were not right in the verdict given by them." Parker, J. "I confess my impression at the trial was favorable to the defendant; but it was a case for the jury to decide. *** As to the fraud,—if I were to try the case fifty times, I could not put it to the jury more favorably for the defendants than was done." In Charlotte County Bank v. Berry,1 cause tried before Ritchie, J.; a rule nisi granted, on the ground the verdict was against the weight of evidence. Carter, C. J., in delivering the judgment of the Court, says: "It is not material for us to say to what conclusion we might individually have come, on the point in question; * * * whatever conclusion we might individually have come to on the facts submitted to the jury, we think they were the proper tribunal to determine as to the credibility and sufficiency of the evidence, and that their decision cannot be disturbed." The learned Chief Justice charged the jury fully and carefully upon the whole case, and particularly upon the defendants' special pleas, and upon the evidence bearing on the same, as to the putting out of the fire, and the representations alleged to have been made by Mrs. Gibson, relative to powder. The case has been five years before the Court; all the evidence which can be given has, I should suppose, been given; I do not know what further evidence may be given, if any. Whether, if a fifth jury would find for or against the plaintiffs, I cannot say. I know what opinion I should form upon the evidence. Some of my learned brothers may entertain a different opinion. From having tried the case-I have had it twice on trial-and whoever may try the case again, if sent down for a fifth trial, will he leave the case more favorably for the defendants than the Chief Justice has done? I am of opinion we ought not to interfere with the finding of the jury. When all the evidence 15 Allen, 523. 1880. GIBSON บ. MERCANTILE which can be given was heard by them, and the charge to them upon the evidence and law was unexceptionable, and where there was evidence in favor of the plaintiffs, and evidence in THE NORTH favor of the defendants, which was conflicting, and the jury BRITISH AND believed the evidence given by the plaintiffs, and did not be- INS. Co.. lieve the defendants' evidence,—I think we should be departing from all the decisions regarding granting new trials, if we were to make this rule absolute. As I am of opinion the evidence was sufficient to justify the jury in finding a verdict for the plaintiffs, and they were the proper tribunal to determine the credit due to the witnesses of the respective parties, we ought not to disturb their finding, and this rule should be discharged. FISHER, J., concurred. ALLEN, C. J. I think, for the reasons stated by Mr. Justice Duff, that this case should be submitted to another jury; and I will only add to what he has so fully detailed, that I think the fact that two juries had failed to agree upon a verdict in this case, is no argument in favor of the plaintiffs, but rather the contrary, because it shews that on two occasions they failed to satisfy even the legal majority of the jurors, that their case was free from a strong suspicion of fraud. A majority of the Court, however, being of opinion that the verdict ought not to be disturbed, the rule for a new trial will be discharged. Rule discharged. GENERAL RULE. HILARY TERM, 43RD VICTORIA. It is ordered that no cause, in which issues in law and in fact are joined, shall hereafter be entered for trial at any circuit, unless the plaintiff, when he enters the cause, intends to try it in its order when it is reached on the Docket. JOHN C. ALLEN, See PARISH OFFICERS. AGENT-Of Insurance Company has no author- See INSURANCE. 1. 13 -Power to refer to arbitration.] Authority See SALE. 2. See STATUTE OF FRAUDS. 1. was so given without value and for the accom- Held, (by WELDON and FISHER, JJ., WET- 106 ACCOUNT STATED-Action on-A new trial See NEW TRIAL. 1. -Note with Stamp uncancelled may be See EVIDENCE. 4. AMENDMENT Judge rightly granted order ing,. See PRACTICE. 2. Of declaration-Where both lessor of See EJECTMENT. 3. .471 -Evidence of, with reference to former peal. COPP v. REID,. Held, also. (by ALLEN, C. J., and WELDON 3. Held, by WETMORE, J., on appeal from the |