
    * Keel & Roberts v. Herbert.
    October Term, 1793.
    Evidence — Weight-Province of Jury. — The Court has no right to instruct the Jury as to the weight of evidence, this being a subject proper only for the decision of that body.
    The appellee brought an action of indeb-itatus assumpsit, for the moiety of a vessel, sold to the appellants. Plea non assumpsit —and non assumpsit within 5 years. Replication that the defendants "did assume. Verdict for the plaintiff, that the defendants did assume, as declared against. The defendants filed a bill of exceptions, stating specially, what each witness, examined in the cause had deposed, and that not one of them, established an assumpsit within five years. This appears from the bill of exceptions to have been the case; but it does not state, that the testimony therein set forth was the whole evidence given in the cause. The court, upon the motion of the plaintiff’s counsel, instructed the jury, that the evidence produced by the plaintiff, was good and effectual in law to maintain the issue on his part. From this judgment, the defendants below, appealed to this court.
    Wickham for the appellants.
    The jury having found a general verdict, without taking notice of the second plea, have left the question arising upon that plea entirely undetermined, and the verdict is consequently inconclusive.
    But I rely principally upon this — that the court exceeded the due exercise of their powers, when they undertook to decide upon the weight of the testimony given to the jury. It was certainly their duty, to see that the evidence was proper. But in estimating its weight, the jury were exclusively the judges.
    If the defendant had demurred to the evidence, as stated in the bill of exceptions, there is no doubt but that he must have succeeded. Yet this is merely formal, and since the bill of exceptions states all the evidence, the court may with propriety decide, that the plaintiff, not supporting the issue on the second plea, ought not to have had judgment.
    
      
      Evidence — Weight— Province of Jury. — For the proposition that it is the province of the jury to decide upon the weight of the evidence, the principal case is cited and approved in Brooke v. Young, 3 Rand. 112, 114; State v. Hurst, 11 W. Va. 75; Nicholas v. Kershner, 20 W. Va. 203; Neill v. Rogers Bros. Produce Co., 38 W. Va. 231, 18 S. E. Rep. 503; foot-note to Bogle v. Sullivant, 1 Call 501, The principal case is distinguished in Austin v. Richardson, 3 Call 206. See foot-note to Ross v. Gill, 1 wash, 87; also, mono-graphic note on “Juries” appended to Chahoon v. Com. 20 Gratt. 733.
      Bills of Exception — Effect as a Demurrer to Evidence. —A hill of exceptions cannot be considered as a demurrer to the evidence. Wroe v. washinglon, 1 Wash. 362, citing Keel v. Herbert, 1 Wash. 203. The principal case is also cited for this proposition in Smith v. Segar. 3 Hen. & M. 397; Lovell v. Arnold. 2 Munf. 176; C. & O. R. Co. v. Sparrow, 98 Va. 632, 37 S. E. Rep. 302; Hollingsworths v. Dunbar, 5 Munf. 199. See monographic notes on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887, and “Demurrer to the Evidence” appended to Tutt v. Slaughter, 5 Gratt. 364.
    
   By the Court.

The District Court most certainly did wrong, in directing the jury, that the evidence was sufficient to maintain the issue..

This was a question, which belonged exclusively to the jury, and ought to have been left with them, without any such declaration, or direction, unless the court, (by a demurrer to the evidence having been filed,) had been compelled to decide upon it.

But the court mistook even upon the point which they improperly undertook to determine, for there appears no x'proof whatever, of the purchase of the sloop, by the appellants. The bill of exceptions, states an offer of ^1100 by the appellant — a demand by the appellee of £1200 — but no agreement as to the price. There is no proof of any contract, but such as is derived from the appellee himself.

The judgment must be reversed, and a new trial awarded.  