jury found for the defendants. A motion was made to set aside the verdict, and it was contended, the note was restricted in its operation. But, per Marcy, J., delivering the opinion of the court, "I think the judge erred in telling the jury, that, by the terms of the note, its negotiability was restrict ed to the place where it was made payable. The jury found a verdict for the defendants; whether on the ground that the note had been negotiated at a place different from that contained in the body of the note, or on the ground, that it had been passed by Hughes, for his individual debt, and that the assent of Moore had not been shown, it is impossible for us to determine. If the verdict was found on the first ground, it ought to be set aside, for the misdirection of the judge; if on the latter, the evidence being of such a character that it might be regarded as insufficient to show the assent of Moore, it should not be disturbed. Inasmuch, therefore, as the verdict may have resulted from the error of the judge, and I think there is an even chance that it did, a new trial ought to be granted."

According to this decision, even a reasonable doubt as to the effect of the erroneous charge, will be sufficient to avoid the verdict. In a prior case, Clarke v. Dutcher,(1) the court had shown with what astuteness they seize upon errors of law, that creep in at the trial. It was conceded, in that case, that a charge of the judge, entirely abstract or out of the case, so as not to affect it, though erroneous, cannot be insisted on as error by exception; but, it was added, the court, in error, will look through the case, and if they find that it might have been affected by the charge or opinion, injuriously to the plaintiff in error, the judgment will be reversed. This was an action in assumpsit for over payment by mistake, and verdict for plaintiff. The charge of the judge below, which was excepted

(1) 9 Cowen, 674.

to, referred to a subsequent promise, taking the case out of the statute of limitations, and consisted in the common error of confounding law and fact, and not sufficiently discriminating the province of the court and jury. It was noticed and corrected, by granting a new trial, and is illustrative of the rule. Sutherland, J., delivering the opinion of the court, observes, "Where there is any dispute as to the facts which go to prove the making of a new promise, there, whether a sufficient acknowledgment or promise has been made to take the case out of the statute, is a mixed question of law and fact, to be passed upon by the jury. But when the facts are undisputed, it is for the court to determine, whether they take the case out of the statute or not. Here it was not denied, that Clarke made the declaration relied upon as evidence of an acknowledgment of the debt. Whether it amounted to a sufficient acknowledgment or not, was an unmixed question of law. The opinion expressed by the court was erroneous, and properly excepted to." Again, "It is undoubtedly true, that a judgment will not be reversed on account of an erroneous opinion expressed or decision made by the court, where it clearly appears, that the error did not and could not have affected the verdict or the judgment. But this very position implies that we are to look beyond the letter of the exception, into the case itself, to ascertain what the effect of the error was."

2. With a like scrupulous attention to the rules of law that ought to govern the charge, it has been held to be erroneous in a judge to instruct a jury, that they may indulge a presumption, not warranted by the evidence disclosed.

As in Harris v. Wilson.(1) Action in assumpsit, on a joint and several promissory note. Plea, general issue, and that the note had been made by the defendant and one

(1) 1 Wendell, 511.

Judd, and that the claim had been settled by arbitration. At the trial, the defendant's counsel insisted that the award was a bar to the plaintiff's right of recovery on the note. The judge decided, that in the absence of all proof as to what the note was given for, the award was not broad enough to cover it, but that the defendant's counsel might go to the jury upon the question of a presumption of payment, previous to the award, under the circumstances of the case, and to that effect charged the jury, who found for the defendant. A motion was made to set aside the verdict. And per Sutherland, J.-"I think the judge erred in submitting it to the jury, to determine upon the evidence before them, whether the note had not been paid or satisfied, by some arrangement between the parties previous to the arbitration. There was no evidence from which any such conclusion could legitimately be drawn. The defendant did not pretend that the note had been paid or satisfied in any other manner, than by the general settlement of the partnership concerns by the arbitrators. He did not attempt to prove any fact or circumstance from which such payment could be inferred."(1)

And in Hollister v. Johnson,(2) action for false imprisonment, against a constable, who had taken plaintiff's body in execution. The judge charged the jury, among other things, that the fact of the plaintiff's having property was not conclusive evidence that the execution might be satisfied, for it appeared that the premises were leased, and it might reasonably be presumed that the landlord had a claim for rent, which might have defeated the execution; and that if the defendant had not taken the body of the plaintiff, and it had turned out that he had not sufficient property to satisfy the execution, the defendant would have

(1) Vide, 10 Wendell, 461.

(2) 4 Wendell, 639.

been liable. The plaintiff excepted to the charge, and the jury found a verdict for the defendant. The court, per Sutherland, J., "The charge of the judge appears to me to have been wrong in two essential particulars:-in stating to the jury, that it might reasonably be presumed, that the landlord of the plaintiff had a claim or lien on the property, which was shown to have been in his possession, for rent, which might have defeated the execution.-Now there is not a particle of evidence in the case upon the subject of rent, except the simple fact, that the plaintiff lived on a farm, for which he was to pay or had paid $60 per annum. No claim on the part of the landlord was shown, nor any other circumstance from which an inference could be drawn, that there was any rent in arrear; and unless such presumption exists in judgment of law in all cases between landlord and tenant, there was no foundation for it in this." And new trial granted for this cause.

So, in Levingsworth ad. Fox.(1) This was an action of trespass, to try titles to land on Savannah river, in which the jury took upon them to find, that a release produced and given in evidence by defendant, was fraudulent, without any proof of its being so, or of any circumstances from which it could be strongly inferred. Upon this ground the court, after argument, ordered a new trial, as fraud is never to be presumed, unless the circumstances are so strong as to leave no doubt to the contrary. From the silence of the reporter in this case, the judge had not charged the law. It falls therefore within the rule.

3. The omission of the judge to charge the jury on questions of law, though not of itself a reason for granting a new trial; yet if, in the absence of proper instructions, the jury should err, the verdict will be set aside, and a new trial granted.

(1) 2 Bay, 520.

In Morrison v. Muspratt.(1) Action on a policy of insurance on the life of one Mrs. Elgin. At the trial, it appeared that a surgeon who had attended Mrs. Elgin for several years prior to February, 1821, but who had not seen her professionally in the interim, was applied to just before the policy was effected, to certify as to her state of health. He accordingly examined her on the 19th March, and afterwards certified that she was in good health, and was not afflicted with any disease which would tend to shorten her life. The insurance was therefore effected in April, 1823. Mrs. Elgin died of a pulmonary disease in April, 1824. Subsequently to February, 1821, and before the date of the certificate, Mrs. Elgin was under the care of another medical man, a Mr. Bland, who thought her consumptive. During this period, she had been twice alarmingly ill. The facts of the attendance of Mr. Bland, and the illness of Mrs. Elgin, were not communicated to the defendants at the time of the execution of the policy. The judge left it to the jury to say whether there had been any misrepresentation, but omitted to call their attention to the facts of Mrs. Elgin's illness, and the consequent attendance of Mr. Bland. The jury found for the plaintiff— damages £1000. And per Burrough, J.-"A material point in this case was not left to the jury, nor observed upon by the judge. The assurers were not informed that Mrs. Elgin, whose life they were about to insure, had been attended by Mr. Bland, who thought her extremely ill. Had they known this fact, they might have examined him.”

So, in Calbreath v. Gracy.(2) An action on a policy of insurance of goods, where the important questions of charter-party, capture, abandonment and loss were involved. No charge was given to the jury, who found for the plaintiff. A rule to show cause why a new trial should

(1) 12 Moore, 231.

(2) 1 Wash. C. C. R. 198.