Giving weight to particular evidence.

his name two months before the trial, and also having seen him write five years before the trial, stating at the same time that he would not have been able to have testified to the handwriting from the fact alone of having seen him write five years ago, and expressing doubts as to a part of the signature, would scarcely be sufficient to uphold a verdict, if the question as to its suffi ciency had been properly submitted to a jury. It was also held, that where a judge, upon such evidence, in an action by the indorsees of a promissory note, charged the jury that the plaintiffs were entitled to a verdict, instead of leaving it to them, under proper instructions, to say whether the indorsement was or was not the handwriting of the party, a new trial must be granted.

And in Massachusetts, in a case where the judge, in his charge to the jury, had pronounced decisively upon the insufficiency of the testimony; Aylwin v. Ulmer.(1) Case against the defendant, as sheriff, for a false return. After the plaintiff had rested, the chief justice of the Common Pleas instructed the jury, that the same was not, upon the whole case, sufficient in law to maintain the issue for the plaintiff. Under these instructions, the jury re

turned a verdict for the defendant. The plaintiff there [*314] upon tendered *his bill of exceptions to the said direc

tions, which was allowed and sealed. Per Curiam."The charge of the chief justice of the Common Pleas was calcu lated to make the jury understand that the evidence offered was wholly insufficient. He stated correctly, that it was necessary they should be satisfied that the property was so received. But he also stated, that the evidence offered was not sufficient to maintain the action. This was undertaking to judge for the jury, and amounted to a declaration to them, that any consideration of the evidence was wholly unnecessary. They must thus have received the impression, that by law they could not, on that evidence, find a verdict for the plaintiff. And for this cause, the judgment must be reversed, and a venire facias de novo awarded."

Giving weight to particular evidence.

In Tufts v. Seabury.(1) Action in assumpsit, and verdict for defendant. There was testimony on both sides. But the judge instructed the jury, that if they believed the testimony of one Chamberlain, a witness, they ought to find for the defendant. To this charge, on the ground of misdirection, the plaintiff's excepted. And per Curiam.-"Taking the bill of exceptions as it stands, a new trial should be granted. The judge is represented to have told the jury, that if they believed Chamberlain, they ought to find for the defendant; whereas the proper instruction would have been, that they should find for the defendant, if upon the whole evidence they believed that a credit had been given. The verdict, therefore, will be set aside, though we are inclined to think that justice has been done.(2)

So in a later case, Morton v. Fairbanks. (3) Action on the case for a fraud in the performance of a special contract, as to the manufacture of a certain quantity of *shingles. [*315] 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 seve (1) 11 Pick. 140.

Giving weight to particular evidence.

The plaintiff proved labor and cash lent.

ral grounds, inconsistent and repugnant. As in Winchell v. Latham.(1) Action on a promissory note. first, that the consideration was work and 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 especially 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, [*316] that the witnesses effectually destroyed each *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 labors 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."(2)

So in Virginia. Fisher v. Duncan, (3) on appeal. One of the questions decided in this case was, how far a court may instruct

(1) 6 Cowen, 682.

(2) Vide 2 W. Blacks. 1249.

Expressing an opinion on the testimony.

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 plaintiffs 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.

*IX. Expressing an opinion on the testimony.

[*317]

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,

(1) 1 Bingham, 1.

Expressing an opinion on the testimony.

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 anything 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."(1)

In Wakeman v. Robinson.(2) 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 imme

diate act of the defendant, it was immaterial whether [318] that act was wilful or accidental. He did not direct

And

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. 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.(3) 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 ver

(1) Vide Yates v. Foot, 12 Johns. Rep. 1. (2) 1 Bingham, 213.