nesses it appeared that the seat was common forty years ago. Lord Mansfield-"The question in this case is, whether there was any evidence at all to be left to the jury. The plaintiff's title to this pew is, that it has immemorially belonged to the house which he possessed. The defendant has set up a joint title in right of the house, enjoyed by himself and another person. The plaintiff, in support of his claim, proved that he was put in possession of this pew by the rector and church wardens, thirty-six years ago. The question is, whether this act of the rector was to give possession under an old immemorial right, or in consequence of a new gift. There are strong reasons to induce us to suppose it was not a gift. They would not make a gift of that which other people claimed." And, per Cu

riam, rule discharged."(1)

But the error, in refusing to nonsuit, will be cured by proof, subsequently supplied, whether by plaintiff or defendant. As in Murray v. Judah.(2) Action in assumpsit. After the plaintiff had rested, a motion was made for a nonsuit, which was overruled by the judge, and an exception taken. The case went on, and the requisite evidence was afterwards supplied. Upon which the court observe― The first point made on the part of the defendant is, that the motion for a nonsuit ought to have been granted, no demand of payment of the check at the bank having been then proved. It is a sufficient answer to this point, that a demand was subsequently proved. That such demand was necessary to entitle the plaintiff to recover from the drawer is well established. A check is, in form and effect, a bill of exchange. It is not a direct promise by the drawer to pay money; but it is an undertaking, on his part, that the drawee shall accept and pay; and the drawer

(1) Et vide, 2 Gill & Johns. 382.

(2) 6 Cowen, 484.

is answerable only in the event of the failure of the drawee to pay." And this proof having been subsequently supplied, by the plaintiff, a new trial was denied.

So, in Lansing v. Van Alstyne.(1) Plaintiff declared on a lease for rent due by the defendant, as assignee. The defendant pleaded that all the estate of the assignor did not come to him by assignment. On the trial of the cause, the plaintiff insisted that he was entitled to recover without offering any proof, the pleadings admitting his right, and the presiding judge ruled accordingly. It would appear, from the opinion of the court, the judge had been asked to nonsuit the plaintiff, and refused, and the defendant afterwards supplied the evidence that was wanting, and per Savage, Ch. J.-"The defendant takes issue upon one fact only, viz: the assignment to himself. This averment then is denied, and as to this, it seems to me plain, that the plaintiff must prove the facts. The judge erred, therefore, in refusing to nonsuit the plaintiff. But it has often been decided, that although the judge err in refusing to nonsuit a plaintiff, still, if the evidence which ought to have been given by the plaintiff, is given in the course of the trial, a new trial will not be granted for such error. That principle is applicable here. Proof that the defendant is in possession of the demised premises, is prima facie evidence that he is assignee. The plaintiff ought to have given that proof if he did not choose to show the defendant assignee in any other manner; yet as the defendant himself proved that fact, a new trial must be denied."

And in Jackson v. Leggett.(2) Action in ejectment. At the trial, the plaintiff produced a record of incorporations of religious denominations in the city of New-York, by one of which, a deed was given, conveying title to the premises in question. The counsel for the defendant in

(1) 2 Wendell, 561.

(2) 7 Wendell, 377.

sisted, that the record produced was not evidence of the fact of incorporation, and that the original certificate of incorporation ought to be produced, which objection was overruled. The plaintiff rested, and the defendant moved for a nonsuit, which was denied, but afterwards supplied the testimony himelf. The jury, under the charge of the judge, found a verdict for the plaintiff, subject to the opinion of the court. And per Savage, Ch. J.-"The first question is, whether the proper evidence was produced to prove the incorporation of the church. I am of opinion, the best evidence was not produced. The defendant objected to the record; the original certificate was higher evidence, and should have been produced, or its absence accounted for. As the cause stood when the plaintiff rested, he should have been nonsuited; but if the defendant chooses to go into his defence, and supplies the evidence which the plaintiff ought to have produced, the reason for setting aside the verdict no longer exists. The defendant did so in this case; he did not produce the certificate, but he proved by parol, without objection, that the congregation had long existed, and was incorporated anew in 1809. This is a sufficient answer to the objection to the plaintiff's evidence. It is an assertion by the defendant, that the fact was as stated by his witness."

And a new trial will not be granted, where, on motion for a nonsuit, the judge declares the evidence to be sufficient to entitle the plaintiff to recover, and charges the jury to find for the plaintiff, if the evidence warrants the verdict. Thus, in Dean v Hewit ;(1) action in assumpsit, on two promissory notes, by plaintiff, as endorser. To a plea of the statute of limitations, the plaintiff had replied a subsequent promise. After the plaintiff had rested, the defendant moved for a nonsuit. Among other causes for that,

(1) 5 Wendell, 257.

the promise being conditional, the plaintiff was bound to prove that the defendant was able to pay. The judge denied the motion for a nonsuit, and ruled that the testimony was sufficient to entitle the plaintiff to recover; to which decision the defendant excepted. The judge charged the jury to find a verdict for the plaintiff, for the amount of the notes, to which charge the defendant also excepted. The jury found for the plaintiff, and a motion was made to set aside the verdict. And per Marcy, J., delivering the opinion of the court-"It is to be observed, that the testimony was not withdrawn from the jury, but was in fact submitted to them, although accompanied with a positive expression of opinion, that it was sufficient to establish the condition, which rendered the new promise effective. The judge viewed the testimony correctly; it well warranted the verdict. We cannot, therefore, interfere with the finding of the jury on that ground. If the sufficiency of the evidence to establish the ability of the defendant to pay could be questioned, the party might have had reason to complain that the judge had thrown the weight of his decided opinion into the scale against him."

5. If the judge give in charge to the jury questions of law, or if, where the issue consists of a mixed question of law and fact, the judge submits the whole issue to the jury, a new trial will be granted.

Questions of this kind are principally confined to negligence, usury, fraud, and malicious prosecutions; in which it is difficult, if not impracticable, to trace with precision the line of demarcation between the province of the court and the jury. To all of these, the rule laid down in the supreme court, in Divver v. McLaughlin,(1) that upon a conceded state of facts, the rest is a question for the court,

(1) 2 Wendell, 596.

will apply. But what will constitute a conceded state of facts; or how, where the facts are numerous and refined, and the statements contradictory, the case is to be distributed between the court and jury, are vexed questions. And until subjected to general rules, these classes of cases must continue to furnish, as they have done, constant grounds of mistake and misdirection, and prove a fertile source of new trials.

The question of fraud in the state of New-York, has been greatly simplified by recent decisions. The much agitated distinction, being rather nominal than real, between fraud in law and fraud in fact, has been exploded, whether as it relates to sales or voluntary conveyances, and the whole at last resolved into its simple elements, fact coupled with intent, and assigned to its appropriate province, the jury. The overthrow of this most embarrassing distinction, was accomplished by the very elaborate and perspicuous decision of the court in Seward v. Jackson.(1) In Jackson v. Peck, that soon followed, the principles deducible from the reasoning in the former case were recognised and applied by Sutherland, J., who, in delivering the opinion of the court, observed-"The distinction which had previously been supposed to exist between fraud in law and fraud in fact, or actual fraud, appears to have been entirely exploded." And adopting the language of Spencer, senator, in that case, proceeds-"Strictly speaking, there is no such thing as fraud in law. Fraud or no fraud is and ever must be a fact. The evidence of it may be so strong as to be conclusive; but still it is evidence, and as such must be submitted to a jury. No court can draw it against the finding of a jury." And applying the rule, he adds—“ If the conveyance in question, therefore, were conceded to have been voluntary, the admission upon the trial, that

(1) 8 Cowen, 406.