While the jury is in legal theory absolute as to matters of fact, it is in practice largely controlled by the judges. Not only does the judge at the trial decide as to the relevancy of the evidence tendered to the issues to be proved, and as to the admissibility of questions put to a witness, but he also advises the jury as to the logical bearing of the evidence admitted upon the matters to be found by the jury. The rules as to admissibility of evidence, largely based upon scholastic logic, sometimes difficult to apply, and almost unknown in continental jurisprudence, coupled with the right of an English judge to sum up the evidence (denied to French judges) and to express his own opinion as to its value (denied to American judges), fetter to some extent the indepen dence or limit the chances of error of the jury.
The appellate court will not upset a verdict when there is sub stantial and conflicting evidence before the jury. In such cases it is for the jury to say which side is to be believed, and the court will not interfere with the verdict. To upset a verdict on the ground that there is no evidence to go to the jury implies that the judge at the trial ought to have withdrawn the case from the jury. Under modern procedure, in order to avoid the risk of a new trial, it is not uncommon to take the verdict of a jury on the hypothesis that there was evidence for their considera tion, and to leave the unsuccessful party to apply for judgment notwithstanding the verdict. The question whether there was any evidence proper to be submitted to the jury arises of tenest in cases involving an imputation of negligence—e.g., in an action of damages against a railway company for injuries sustained in a collision.
This statement indicates existing practice but scarcely deter mines what relation between the facts proved and the conclusion to be established is necessary to make the facts evidence. from which a jury may infer the conclusion. The true explanation is to be found in the principle of relevancy. Any fact which is rele vant to the issue constitutes evidence to go before the jury, and any fact, roughly speaking, is relevant between which and the fact to be proved there may be a connection as cause and effect. As regards damages the court has always had wide powers, as damages are often a question of law. But when the amount of the damages awarded by a jury is challenged as excessive or inadequate, the appellate court, if it considers the amount un reasonably large or unreasonably small, must order a new trial unless both parties consent to a reduction or increase of the damages to a figure fixed by the court; see Watt v. Watt (19o5), App. Cas. 115.
seizure effected by the sheriff or his officer, under this writ, of the property of the debtor, is what is popularly known as "the putting in" of an execution. The seizure should be carried out with all possible dispatch. The sheriff or his officer must not break open the debtor's house in effecting a seizure, for "a man's house is his castle"; but this principle applies only to a dwelling-house, and a barn or outhouse unconnected with the dwelling-house may be broken into. The sheriff on receipt of the writ endorses it on the day, hour, month and year when he received it; and the writ binds the debtor's goods as at the date of its delivery, except as regards goods sold before seizure in market overt, or purchased for value, without notice before actual seizure (Sale of Goods Act 1893, s. 26, which supersedes s. 16 of the Statute of Frauds and s. 1 of the Mercantile Law Amendment Act 1856).
This rule is limited to goods, and does not apply to the money or bank-notes of the debtor which are not bound by the writ till seized under it (Johnson v. Pickering, Oct. 14, 19o7, C.A.). The mere seizure of the goods, however, although, subject to such exceptions as those just stated, it binds the interest of the debtor, and gives the sheriff such an interest in the goods as will enable him to sue for the recovery of their possession, does not pass the property in the goods to the sheriff. The goods are in the custody of the law. But the property remains in the debtor who may get rid of the execution on payment of the claim and fees of the sheriff. The wearing apparel, bedding, tools, etc., of the debtor to the value of £5 are protected. Competing claims as to the owner ship of the goods seized are brought before the courts by the pro cedure of "interpleader." In the king's bench division, the sheriff issues a summons before a master in chambers calling upon the execution creditors and claimant to appear and state their respec tive cases. If the claim is not admitted by the execution creditor, an issue is directed to try the merits and either party may ask the master to try the issue himself. This he generally does at the earliest possible opportunity, for the sheriff being in possession, costs are mounting up. Otherwise the "issue" is reported for trial to the High Court or county court, the claimant being directed to bring the amount of the sheriff's valuation into court. That money being in court, the sheriff withdraws. After seizure the sheriff must retain possession, and, in default of payment by the execution debtor, proceed to sell. Where the judgment debt, including legal expenses, exceeds £20, the sale must be by public auction, unless the court otherwise orders, and must be publicly advertised. The proceeds of sale, after deduction of the sheriff's fees and expenses, become the property of the execution creditor to the extent of his claim.