SUBMITTING THE FACTS TO THE JURY. At the trial by jury, the proceedings are directed by the judge or judges ; it being the func tion of the judge to pass on the admissibility of any evidence that may be offered by one party and object ed to by the other as irrelevant, or incompetent, the judge is also to instruct the jury with regard to the duties it is to perform. After hearing the evidence, the addresses of counsel, and the charge of the judge, and his instructions in regard to the construction of any in strument of writing that may have been introduced in evidence, the jury retires and having deliberated on the case announce its verdict, which the law requires to be unanimously given. The verdict is usually in general terms as "for the defendant", "for the plaintiff", and in the later case finding at the same time, where damages are claimed, the amount to which the plaintiff is enti tled.
The rules governing the jury in the arriving at its verdict are, briefly, these : i. To take no matter into consideration but the question at issue. 2. To give its verdict for the party who, upon the proof, appears to have succeeded in establishing his side of the issue. 3. Consider the burden of proof to be upon him who has the affirmative of the issue ; and i-f he does sustain his contention, in civil cases by a preponderance of the evidence, and in criminal cases, by proof beyond a rea sonable doubt, the verdict should be given to him who has the negative.
OF A VARIANCE. A disagreement upon a material point between the allegations and the proof at trial, is called a "variance", and is fatal to the party on whom rested the burden of sustaining that particular allegation. It is sufficient, however, that the issue in the pleadings be substantially proved.