
    The Trustees of the Village of Penn Yan vs. Thorne.
    A justice of the peace may instruct the jury upon a question of law, but if he instruct them erroneously, the judgment will bo reversed, though the action be for a penalty and the verdict in favor of the defendant.
    •Error to the Yates C. P. The plaintiffs sued Thorne before a justice, and declared in debt for selling spirituous liquor to be drank in his house without having a license. The declaration alleged that the defendant, “ on the 15th day of May, 1842, and on divers other days and times as ivell before as afterwards, and before the commencement of this suit, at &c., sold” <fcc. On the trial, which was by jury, the plaintiffs gave evidence tending to show that the defendant had -repeatedly sold spirituous liquor before as well as after the particular day mentioned in the declaration. The jury spent considerable time in deliberating, and then came into court and said they were unable to agree—some being of opinion that they could find against the defendant upon proof of selling liquor before the 15th of May, and some that they could not. Both parties thereupon requested the justice to instruct the jury upon that point; and the justice instructed them that, as he understood the law, they could not find against the defendant upon proof of selling before the 15th of May. The jury then retired, and afterwards gave a verdict for the defendant, on which the justice rendered judgment. The common pleas affirmed the judgment on certiorari; and the plaintiffs thereupon brought error.
    
      D. B. Prosser, for the plaintiffs in error.
    
      J S. Glover, for the defendant in error.
   By the Court, Bronson, J.

That the justice was clearly wrong in his charge to the jury is not denied by the counsel; nor could it be. But it is said that the jury in a justice’s court are judges of the law as well as the fact. (McNeil v. Scoffield, 3 Johns. 456.) That is undoubtedly so where the whole matter is left to them by the. justice without instruction : but in that case, if they judge wrong upon a point of law, the error may be corrected on certiorari. But the justice may instruct the jury on questions of law, and if he errs, the judgment will be reversed.

We are referred to the Overseers of Rochester v. Lunt, (15 Wend. 565,) to prove that in a penal action a judgment will not be reversed because the verdict is against evidence. But that does not prove that the judgment can stand where the verdict resulted from an erroneous instruction to the jury on a question of law. Although the case is not in point to uphold this judgment, there are portions of it which may be read with great profit in other places besides Rochester.

Judgment reversed.  