Omitting to charge on questions of law.

is no reason per se for granting a new trial, yet there is reason to apprehend that, under the circumstances of the case, justice has not been done. As the case now appears to me, the verdict does not seem to consist with legal principles; although I mean not to give any decided opinion. I think the ends of justice will be most likely to be attained, by granting a new trial.”

So in Page v. Pattee.(1) Action on the case, and verdict for defendant. The plaintiff moved for a new trial, alleging that the verdict was given against evidence, which is reported by the judge who sat on the trial. It is agreed by the parties, that after the evidence on each side was given to the jury, the counsel for neither party summed up his evidence, but left it to the judge to sum up and to give to the jury the necessary instructions. The judge reports that the evidence to support the plaintiff's demand was contained in certain depositions, which accompany the report, which were unimpeached, uncontradicted and unexplained, and were sufficient in the opinion of the judge, if believed by the jury, to support the plaintiff's declaration so clearly, that he apprehended no instructions were necessary, and accordingly none were given, but such as related to the allowing of interest to the plaintiff. By the Court." It is our opinion that either party can lawfully claim from a judge trying his cause, the benefit of his instruetions to the jury; and when such instructions are not given, on the ground that the case is too clear for one of the parties to render them useful, and the jury find for the other party, a new trial ought to be granted, that the jury may be assisted by the direction of the court."(2)

*So, if the judge comment on a piece of testimony, [*276] and leave it generally to the jury, without adding such views as to its credibility as the law requires the jury to consider. As in Dunlop v. Patterson.(3) One Fuller had been produced as a witness, and strongly impeached. The judge below had stated

(1) 6 Mass. Rep. 459.

(2) Vide 6 Monroe, 61. (3) 5 Cowen, 243.

Omitting to charge on questions of law.

to the jury that Fuller's testimony was competent, and that they might give it such weight as they thought it deserved. Upon which, the court, by Woodworth, J., observes." After an attentive consideration of the evidence given by Fuller, it seems to me that this part of the charge was manifestly erroneous. The jury, it is true, are judges of fact, and the credibility of witnesses; but, in the exercise of this power, they must be governed by the judgment of law on the facts. If the law has adjudged that certain facts render a witness unworthy of credit, the jury cannot rightfully give credit to his testimony, or found a verdict upon it. They have no arbitrary discretion. It is their duty to follow the advice of the court as to the law. In this case, the charge gave them the most extensive range. Their attention was not called to the fact that Fuller, by his own admission, had sworn falsely. He was not, therefore, a credible witness, unless supported as to the material fact which he attempted to establish. The law will not permit either life or property to be put in jeop ardy by such testimony. If it would, there must be but little security for either. When the court instructed the jury to give the evidence the weight they thought it deserved, this implied that they had an uncontrolled discretion to do as their judgments might direct, without any legal restraint as to the manner of exercising it. The court ought to have charged the jury, that the testimony of Fuller was so strongly impeached as to justify

them in disregarding it altogether; that the unsupported [*277] *testimony of a single witness, who swore, at one time,

in direct contradiction to the testimony given by him at another, in relation to the same transaction, was not entitled to credit, and ought not to be regarded. If the charge had been of such a character, it is probable the result of the trial would have been different. My opinion is, that this exception is well taken; that the judgment be reversed, and a venire de novo issue in the court below."(1)

And it is the right of a party to have the charge of the judge

(1) Vide Allen v. Young, 6 Monroe, 136; Ante, p. 235; 2 S. C. Con. Rep. 323;

Omitting to charge on questions of law.

on questions of law, and if he refuse, and the jury err, a new trial will be granted, as in Scott v. Lunt,(1) in error, to the Circuit Court of the United States, in the District of Columbia. Action of covenant, to recover sundry rents, under a deed executed by General George Washington and wife, to the defendant's intestate, by which a lot of ground was conveyed to Lunt, subject to the payment of an annual rent of seventy-three dollars. One of the cove. nants reserved to the grantor a right of re-entry on non-payment of the rent, and the defendants below set up the fact of re-entering, as one of his pleas on which issue had been taken. At the trial, the plaintiff prayed the court to instruct the jury, that at the time at which the re-entry ought to be made, depended upon the lease given in evidence by the plaintiff, and could not be varied by the evidence; and that if the jury found a re-entry, it must conform to the deed. The court refused to give the instruction, being of opinion that it was competent for the actual tenant to waive any of the formalities required by law for his benefit.

By the Court."The instruction prayed has reference to the pleadings in the case. The averment there is, that the plaintiff entered on the premises, under and by virtue of the condition of re-entry in the original deed mentioned, for non-payment of the rent; and, upon the issue joined, this was the [*278] material inquiry. It is clear that, upon such an issue, no entry not conforming to that deed, and no evidence of an entry varying from it, would be admissible to support it. The sufficiency of the evidence before the jury to support the issue, was properly left for their consideration. But the defendant had a right to the instruction, that the proof must conform to the allegations in the pleadings. For these reasons, we are of opinion that the Circuit Court erred in refusing the above instruction; and the judgment must, on this account, be reversed, and a venire facias de novo be awarded."(2)

But the judgment will not be reversed, if the jury, notwith

(1) 7 Peters, 596.

(2) Vide 3 Hawks, 5.

Improperly neglecting to non-suit.

standing the omission to charge them on the point requested, find a correct verdict, and such as in justice it must have been, had the charge been given.(1)

V. Improperly neglecting to non-suit.

If the judge send the case to the jury, when he ought to have non-suited, the verdict will be set aside.

Although, by the English practice, a plaintiff cannot be nonsuited against his will, but may insist upon carrying his case to the jury,(2) with us a different practice prevails. Even an infe rior court may non-suit, where the plaintiff entirely fails to make out his case. In Pratt v. Hull, (3) in error, from a court of common pleas, where the court were of opinion that the plaintiff ought to have been non-suited, but doubted their power, and sent the case to the jury, the Supreme Court, upon a bill of exceptions, reversed the judgment, observing upon the power to non-suit: "This must be a power vested in the court. It results, necessarily, from their being made the judges of the law of the case, when no facts are in dispute. What the evidence before the

court was, or whether they were correct in their judg [*279] ment, *or not, are questions not now before us. We. must assume that there was no dispute about the facts before the court, or any weighing of testimony falling within the province of the jury; and therefore it was a pure question of law, whether, under a given state of facts, the plaintiff was, in law, entitled to recover. And, unless this was a question for the court, there is no meaning in what has been considered a salutary rule in our courts of justice, that, to questions of law, the judges are to respond, and to questions of fact, the jury.”

And in a subsequent case, Stuart v. Simpson, (4) it was held, that a court may, and it is their duty to non-suit a plaintiff, if the

(1) Douglass v. M'Alister, 3 Cranch, 298.

(2) 1 Chit. Arch. 300.

(3) 13 Johns. Rep. 334.

Improperly neglecting to non-suit.

evidence, in their opinion, will not authorize a jury to find a ver dict for the plaintiff, or if they would set aside a verdict, if so found, as contrary to evidence. The right of a court of record, or even of a court not of record, (1) to direct a non suit peremptorily in their discretion, is with us no longer to be questioned. This principle being clearly ascertained, a refusal to non-suit, when it ought to be granted, is equivalent to a misdirection, and will be treated as error.

In Foot v. Sabin(2) in error. A bill of exceptions was taken, stating that the plaintiff below, proved that a note then produced, made by Lemuel Holmes, Abel Wilson, and William B. Foot, was signed by L. Holmes in his own proper hand, and with his name; that the names of "Wilson and Foot, sureties," subscribed to the said note, was in the proper handwriting of the said Abel Wilson, and that the said Wilson and William B. Foot, at the time of making the said promissory note, were partners, as by the said plaintiff alleged, and there rested. The defendants had moved for a non-suit, on the ground, that the plain

tiff had not proved *the authority or consent of Foot to [*280] the making of the note. But the court were of opinion, that although the plaintiff was bound to prove the authority or consent of Foot to the making of the note, yet he had already done it, and thereupon directed the parties to proceed to the jury. Upon the point of refusing the non-suit, the court, having recognized the principle that a court of common pleas has the power to compel a non-suit, conclude thus-"On the ground, then, that the Court of Common Pleas refused to non-suit the plaintiff below, when the evidence adduced entirely failed to make out his case, the judgment must be reversed, and a venire de novo isued from this court."(3)

And the true test of the propriety of the non-suit is, that if the case had gone to the jury on the evidence, and the jury had