shingles. Among other evidence, a trunk full of what were alleged to be shingles, was brought into court, which upon inspection, the judge pronounced not to be shingles and so charged the jury, who found for the plaintiff. The defendant excepted to the charge, on the ground of misdirection. And, per Curiam-" The defendant contended that whether they were shingles or not, was a question of fact for the jury, and that his rights were not to be affected by the circumstance of the evidence being more or less strong on that question; but it was ruled that as the point was clear upon inspection, it was to be decided by the court. As the jury would have the whole case before them, this may seem to be a speculative objection; but we think that in strictness, the point thus decided was a question of fact, and the jury may have been unduly influenced, for they may have considered themselves not at liberty to find contrary to the decision of the court." So, also, if the judge charge the jury on one or other of several grounds, inconsistent and repugnant. As in Winchell v. Latham.(1) Action on a promissory note. The plaintiff proved first, that the consideration was work and labour and cash lent. When that was impeached, he proved it was for several smaller notes, work, and a book account. And finally insisted upon certain declarations of his, given in evidence by the defendants, showing both of the considerations were unfounded. The judge was called upon to charge that any of the grounds would entitle the plaintiff to recover. And he charged accordingly. The court commenting on the charge, and especialy on that part which directed the jury to find for the plaintiff, on his own declarations, offered in evidence by the defendant, that the note was given as surety for certain provisions to be inserted in a will, say-" Ought they not rather to have been charged, that the witnesses effectually destroyed each (1) 6 Cowen, 682. other; and that neither were entitled to credit? That the plaintiff, by taking two contradictory grounds, had deprived himself of the benefit of both ?--If the plaintiff had acquiesced in the evidence given by the defendant, as to the consideration of the note, and had reposed himself upon it, as a legal consideration, there would have been no objection to it. But instead of that, he denies that that was the consideration, and produces a multitude of witnesses, to establish another, and entirely different one. He maintains, and he labours by his evidence to prove, that the declarations which he is shown to have made, as to the considerations, were false; and yet the jury are instructed, that if they believe those declarations, the plaintiff is entitled to recover. To permit those declarations, under such circumstances, to be used in this way, appears to me to be subversive of all morals. In this respect, therefore, we think the judge erred; and that a new trial must be granted.”(1) So in Virginia. Fisher v. Duncan,(2) on appeal. One of the questions decided in this case was, how far a court may instruct the jury, as to the sufficiency of evidence. Upon this point, the opinion of Fleming, J., appears to have expressed the mind of the court. "It appears to me that the county court erred in having instructed the jury, that, from the whole testimony before them, the demand of the plaintiff's was not barred by the act of limitations, which I conceive to have been an improper interference, and an infringement on the privileges of the jury, whose right it was to judge of the sufficiency or insufficiency of the evidence adduced, to establish any fact or facts in issue before them. The province of the court being to see that all proper evidence offered be submitted to their consideration, without saying what effect such evidence ought to have in the cause." The judgment was reversed, and a venire facias de novo directed. (1) Vide 2 W. Blacks. 1249. (2) 1 Hen. & Munf. 563. 8. Where the judge instructs correctly on points of law, a verdict will not be set aside on the ground of misdirection, although he may casually express his opinion on the evidence, as he proceeds in his charge. Thus in Hunt v. Bell.(1) Action for a libel against the plaintiff, as proprietor of a building called the Tennis Court, appropriated to pugilism and other sports. At the trial, Dallas, Ch. J., first put it to the jury, to consider whether the plaintiff's exhibitions were not illegal, as tending to form prize fighters, declaring such to be his opinion at the moment, although he was unwilling to decide the point, without further time for deliberation, and he then recommended the jury to find a verdict for the plaintiff, which the defendant might afterwards move to set aside, and so fully discuss the question; but the jury found a verdict for the defendant. Upon motion for a new trial, the court unanimously sustained the view taken by the judge. Richardson, J.-"If the question were merely whether it is lawful or unlawful for persons to learn the art of self-defence, whether with artificial weapons or such only as nature affords, there can be no doubt that the pursuit of such an object is lawful; but public prize fighting is unlawful, and any thing which tends to train up persons for such a practice, or to promote the pursuit of it, must also be unlawful. The jury have found that the exhibitions in question have such a tendency, and I see no reason for disturbing their verdict."(2) In Wakeman v. Robinson.(3) Trespass for driving against plaintiff's horse and injuring him with the shaft of a gig. The judge directed the jury, after a full summing up, that this being an action of trespass, if the injury was occasioned by an immediate act of the defendant, it was immaterial whether that act was wilful or accidental. He (1) 1 Bingham, 1. (2) Vide Yates v. Foot, 12 Johns. Rep. 1. did not direct them to consider whether the accident was occasioned by any negligence or default on the part of the defendant, or was wholly unavoidable, nor was he requested to do so by the defendant's counsel. The jury found a verdict for the plaintiff. And on motion to set it aside, Dallas, Ch. J.-"If I had presided at the trial, I should have directed the jury, that the plaintiff was entitled to a verdict; because the accident was clearly occasioned by the default of the defendant. The weight of evidence was all that way. I am now called upon to grant a new trial, contrary to the justice of the case, upon the ground that the jury were not called on to consider, whether the accident was unavoidable, or occasioned by the fault of the defendant. There can be no doubt that the learned judge who presided would have taken the opinion of the jury on that ground, if he had been requested so to do; and under all the circumstances, I am of opinion, that a new trial ought not to be granted in this case." So, in a recent case of usury, Solarte v. Melville.(1) The judge stated to the jury that in his opinion no usury had been committed, but left it to the jury to draw their own conclusions. The jury found against the usury. Motion to set aside the verdict for misdirection, and as against evidence. Lord Tenterden, Ch. J., now delivered the opinion of the court-"I left it to the jury, whether Bramley thought himself under an honorary engagement to pay the bankrupt; and that if he did, it was not usury. A new trial was moved for, on the ground that I ought to have intimated my opinion to the jury, and that I ought to have done so in a different way. I still think, and I believe one or two of my learned brothers are of the same opinion, that if Bramley thought himself under an honorary obligation, what was done was not usury. We all, how (1) 1 Man. & Ryl. 198. ever, think that, as notwithstanding my intimating such an opinion, I left it to the jury to draw their own conclusion upon the whole matter, we cannot disturb the verdict, in a case involving such penal consequences."(1) Nor will the verdict be disturbed, if the opinion of the judge upon the sufficiency or insufficiency of the testimony be clearly correct, however strongly it may be expressed. As in Dean v. Hewitt, it was held-A verdict will not be set aside, where on a 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.(2) Nor because the judge, in his charge to the jury, attempts to reconcile a discrepancy between the testimony of a witness on the stand and his former statement as to the same fact. As in Jacksonv. Packard, (3) in ejectment. On the different relations given of the transaction by one Baker, a witness, the judge remarked, in his charge to the jury, that the discrepancy between his testimony and former statements seemed naturally enough accounted for. The jury found for the plaintiff, and the defendant moved for a new trial. And on motion, one of the grounds was, that the judge misdirected the jury in relation to the credit to be given to the witness. Upon which, Sutherland, J., delivering the opinion of the court, remarks "The observation of the judge, that the discrepancy between the testimony of Baker, and his former statements, seemed naturally enough accounted for, can hardly be considered a misdirection. It was nothing more than the expression of the opinion of the judge upon that point; but it in no respect assumed to take from the jury the right to judge for themselves upon the matter." (1) Vide Swift v. Stevens, 8 Conn. Rep. 431. (2) 5 Wendell, 257. (3) 6 Wendell. 415 |