
    *Rea’s Adm’x v. Trotter & Bro.
    September Term, 1875,
    Staunton.
    Absent, Christian, J.
    i. Evidence — Witnesses — Counsel.—Tile fact that a . person ts tbe counsel in tbe cause for one of tbe parties does not render him incompetent as a witness for that party.
    a. Same—Receipts—Accounts.—In an action ,of assumpsit by T against B to recover tbe value of goods stored by T with R, the receipt of R-for the goods is competent evidence for T, and an account of tbe sales of tbe goods copied from tbe books of R with bis assent and in bis presence, and acknowledged by him to be correct, is competent evidence for T; as original and not secondary evidence.
    3. Storage of Goods—Compensation—implication.—T stores goods with R, and nothing is said as to tbe compensation which R is to receive for their storage. Tbe law implies a contract that R shall be paid a reasonable compensation therefor, unless there be something in the relation of the parties or the circumstances of the case which precludes the idea of such compensation, in which case there would be an implied agreement or understanding that no such compensation was to be paid.
    4. Instructions.—An instruction which in part is not based upon any evidence before the jury is erroneous, and is grounds for reversing the judgment.
    5. Bailees—Liability.—In assumpsit" by T, a resident of Staunton, against R to recover the value of certain manufactured tobacco which T had stored with R in Winchester in July 18S4, and which R had sold for Confederate money. If the tobacco was deposited by T with R, who received the same into his warehouse on storage for a compensation to be paid him by T, and agreed in consideration thereof to keep the same in store on account of T, and subject to his order, until T should demand the same, and then deliver it to T or his order; and if K failed to keep the tobacco and deliver it up he thereby became liable to pay to T the damages sustained by such breach of the contract; though R before demand by T sold the tobacco of T as well as his *own, because of his apprehension that the Union forces were about to occupy said town, and would search his house and seize said tobacco: and said forces did. after their occupation of said town, search R’s house for tobacco.
    6. Appeals—Erroneous Instructions in Lower Court.— When an appellate court is of opinion that an instrnction given to the jury by the court below is erroneous, the appellate court cannot undertake " to determine that the verdict, notwithstanding the erroneous instruction, is right upon the evidence, and therefore to affirm it. But the judgment must be reversed, and the cause remanded for a new trial.
    This was an action of assumpsit in the Circuit court of Frederick county," brought in September 1869 by Trotter & Brother, partners, ag-ainst William J. Rea, to recover the value of certain manufacured tobacco which the -olaintifEs had stored with Rea in July 1864. There was a trial of the cause in June 1872, when Rea was examined as a witness; but after the case had been submitted to the jury to consider of their verdict, and they had been adjourned over to the next day, one of them failed to appear, and the cause was continued. At the October term of the court the death of Rea was suggested and the suit wa? revived against his administratrix.
    The cause came on again to be heard in November 1873. The plaintiffs, to sustain their action, proposed to introduce John J. Williams as a witness; and the defendants, .objected to him, on the ground that he was the counsel of the plaintiffs." But the court overruled the objection; and the defendant excepted.
    
      In the progress of the trial the plaintiffs proved by John J. Williams, that in January 1869 he was employed by the plaintiffs, through A. D. Trotter in person, to collect their claim against William J. Rea, and was furnshed by him with the paper marked A, as evidence of the claim, which paper was in the handwriting *of Rea; and that he in person, and as attorney for the plaintiffs, presented said claim and paper A to Rea, who admitted the paper, and that he had received the tobacco therein specified; but stated, he had sold the same for Confederate money, because of the Federal troops, and did not think he was responsible for anything but that money. After this, witness went to see Rea, and asked for an account of sales of tobacco; whereupon Rea produced a book and handed it to witness, and directed his attention to the account; when witness, with Rea’s consent first asked, copied the same; and paper C is that copy, and a correct one of said book, which remained in Rea’s possession. That when, at a former trial of this cause, Rea was on the witness stand, said Williams, then counsel in the cause, handed said paper to Rea and asked him if he admitted it to be correct; to which he replied, he did: and thereupon the production of the book alluded to was dispensed with at the trial.
    587
    The paper A commences:
    Received in store on account of-
    Trotter by Wm. J. Rea, July 25th, 1864.
    It then sets out, 7 boxes Oreta Brand tobacco ; stating the weight of each box, and making together net 449 lbs. 4 boxes Fora; setting them out in the same way, and making net 243 lbs.
    The paper C was a statement of the sales of the tobacco, shewing sales for Confederate money, commencing August 2 and ending September 15—the whole amount $2,665.
    The defendant objected to the introduction of these papers as evidence: but the court overruled the objection; and the defendant excepted.
    After the evidence had been introduced the plaintiffs moved the court to give to the jury five instructions, *which the court gave, with four asked for by the defendant. To the' granting of the instructions asked for by the plaintiffs and the defendant, or any of them, the defendant objected: but the court overruled the objection; and the defendant again excepted. These exceptions are numbered from one to nine, and they are given in the opinion of the court.
    The jury found a verdict in favor of the plaintiffs for five hundred and seventy-nine dollars and seventy-five cents, with interest from July 1st, 1865. And thereupon the defendant moved the court for a new trial, on various grounds; which motion the court overruled, and rendered a judgment upon the verdict. And thereupon the defendant excepted. There was a second motion for a new trial, which was overruled; and the defendant again excepted. These exceptions are stated in the opinion of the court.
    The material facts of the case seem to be, that the plaintiffs, Trotter & Co., were the carriers of the mail in stages between Staunton and Winchester, under a contract with the Confederate government. They resided in Staunton. That they could not purchase supplies at Winchester to carry on their business with Confederate money, and they had to use other articles to get them, and among them tobacco. That, with the consent of the Confederate authorities, they, shortly prior to July 25, 1864, brought a considerable lot of tobacco to Winchester; and M. Brannon, their local agent at that place, advised them to store a part of it with a Union man and part with a Southern man, and he named John Higgins as the Southern man, and William J. Rea as the Union man. That, in consequence of this advice, plaintiffs directed Brannon to make the said arrangement with those persons for the storage of the tobacco. That, accordingly, Brannon *called upon Rea, and informed him that the plaintiffs had the tobacco, and what they had been advised to do, and that he, Rea, had been recommended to the plaintiffs as a Union man, and that he came to him by the direction of the plaintiffs, and because he was such. That Rea thereupon consented to receive the tobacco. That upon Brannon reporting that fact to the plaintiffs, A. D. Trotter, one of the plaintiffs, together with Brannon and —— Rutter, who was driving the plaintiff’s wagon on that night, about dark took the tobacco, less the part which they deposited with Higgins, to Rea’s warehouse, opening on the alley at the rear of his lot whereon was said Rea’s dwelling, and in a front room of which was his store-room, in which warehouse he, Rea, received in person the tobacco; and then and there wrote and delivered to Trotter a receipt for it, which is the paper A before mentioned. That for years before 1864 Rea had been traficking and trading, having a storeroom and back store-room in his dwelling, and a warehouse on the alley; that he continued his business through the war, and dealt in tobacco, produce, &c., and had tobacco exposed in the windows of his store at various times whilst the Union forces were in Winchester, including the year 1864.
    In addition to the evidence of Williams, as hereinbefore given, the witness gave a further statement of Rea’s testimony at the former trial, viz: That he received the tobacco in question in store without making any charge for storage, and that he never intended or expected to make any charge therefor; but that nothing passed between him and the plaintiffs on the subject of such charge at any time. That in September 1864, three or four days after the 19th, when General Sheridan of the Union forces took possession of Winchester, *Major Young, of General Sheridan’s scouts, searched Rea’s house, in which was his dwelling and store-room, as he said, for tobacco and contraband goods, and found a small piece of choice tobacco in Rea’s secretary (a piece of furniture in his dwelling), and took it, as he said, for his own use; that Rea after the tobacco was left, and before the 19th of September 1864, did meet Joseph Andrews, general stage agent for plaintiff’s line, and gave him some message about the tobacco—what the message, as stated by Rea was, the witness, Williams, could not remember; that he, Rea, sold the tobacco of plaintiffs as well as his own, because of his apprehension, after the Confederate troops burned Chambersburg, that the Union troops would be hard on Winchester.
    There is no evidence that anything was said at the time or afterwards as to the terms on which the tobacco was received by Rea. Rea proposed several times to Andrews, the general agent of the plaintiffs, to purchase the tobacco, but was told by Andrews that he had no authority to sell it. There was proof that the tobacco was sold by Rea for Confederate money and Virginia treasury notes, and that he offered the money to Trotter after the war.
    Upon the application of Rea’s administratrix a supersedeas was awarded.
    Holmes Conrad, for the appellant.
    Williams & Williams, for the appellees.
    
      
      Compensation—Implication.—in a contract for services, where there has been no agreement for compensation, tbe law will generally consider a reasonable compensation as implied. See Armstrong v. Walkup, 9 Gratt. 372; Lucas v. Ins. Co., 23 W. Va. 282; Hurst v. Hite, 20 W. Va. 205.
    
    
      
       Instructions.—Seel note on “Instructions Generally, ”• to Womack v. Circle, 29 Gratt. 192.
    
   Moncure, P.

delivered the opinion of the court.

The court is of opinion, that Mr. John J. Williams was a competent witness for the plaintiffs, notwithstanding *his relation to them as their attorney in the cause; and therefore the Circuit court did not err in overruling the defendants’ objection to the competency of said witness, and in admitting the said witness, as stated in the defendants’ bill of exceptions, No. 1.

The court is further of opinion that the Circuit court did not err in overruling the defendants’ objection to the papers marked A and C, referred to in the defendants’ bill of exceptions, No. 2, offered in evidence by the plaintiffs, through the witness, John J. Williams, in the order and connection appearing from his testimony, as stated in the certificate of facts proven, and in admitting the said papers in evidence, as stated in the said bill of exceptions. Paper A was the defendants’ receipt for the tobacco mentioned in the declaration, and was not only admissible, but was most important evidence in the case, though not all the evidence. It does not set out the terms on which the tobacco was received, which, however, appeared from the other evidence in the case in connection with the receipt. The receipt was a link in the chain of evidence, tending to prove the plaintiff’s case. Paper C was, in effect, an account rendered by the defendant to the plaintiffs of the sale made by the former of the latter’s tobacco, and was original and not secondary evidence, although it was copied from the book of Rea. The copy was made in the presence and by the consent of Rea, though made by the plaintiff’s counsel, whose act was, in effect, the act of Rea. It was an account rendered, and was no more secondary evidence, than is any other account rendered, which is almost always copied from a book. The evidence consists in the rendition of a certain account, which fact is original evidence, though the account be a copy from a book.

*The court is further of opinion, that the Circuit court did not err in giving to the jury the instruction No. 1, moved for by the plaintiff’s counsel, viz: “That they must determine from the acts, agreements, conversations and writings, circumstances and relations of the plaintiffs and William J. Rea; in short, from the whole evidence, what the contract was between said parties. ” The effect of the instruction was the same as if it had been: “the jury must determine from the whole evidence what the contract was between said parties.” Had it been in that form, the propriety of it would not have been denied.

The court is further of opinion, that the Circuit court did not err in giving to the jury the instruction No. 2, moved for by the plaintiff’s counsel, viz: “That when one receives from another goods in store; and nothing is said between the parties as to pay for such storage, the law implies a contract that the party who receives the goods in store shall be paid a reasonable compensation therefor.” Where service is performed by one, at the instance and request of another, and especially where that other is personally benefited by the service, and nothing is said between the parties as to compensation for such service, the law implies a contract, that the party who performs the service shall be paid a reasonable compensation therefor, unless there be something in the relation of the parties or the circumstances of the case which precludes the idea of such compensation; in which case there would be an implied agreement or understanding that no such compensation was to be paid. This is an undeniable principle of law, which applies to almost every case of assumpsit on a quantum meruit. The court in such case-charges, that the service was performed by the plaintiff at the special instance and request of the defendant *who, in consideration thereof, promised to pay to the plaintiff as much as he reasonably deserved to have therefor. And proof that such service was performed at such instance and request, without more, will sustain the court, and entitle the plaintiff to recover in damages whatever amount he may prove the service to be reasonably worth. If it appear from the evidence that the service was to be performed gratuitously, of course-nothing would be recovered. But in the absence of such proof, or proof of the like kind, the plaintiff’s right to recover as aforesaid is undeniable. Now the case before us is precisely such a case. To receive and keep goods in storage for another, at the latter’s special instance and request, is certainly to render him a service; that the party who renders it is not a “warehouseman,” so to speak, can make no difference. The service may, in fact, be greater on that account. A warehouseman is prepared to receive and keep goods on storage, and may do so at less inconvenience than one who is not a warehouseman, and' is not so prepared. It is not admitted that Rea was not in fact a warehouseman. The plaintiffs contended, and the evidence tended, to prove that he was. But that is immaterial to the question we are now considering, which assumes that, technically speaking, he was not.

Instruction No. 3, is in these words: ‘ ‘If the jury, in the light of the first and second instructions, believe from the evidence that William J. Rea, on the 22d of July 1864, received from the plaintiffs the tobacco sued for, and agreed for, or was entitled to compensation to keep the same in store on account of the plaintiffs and subject to their order, until they should in person, by agent or order, demand the same, and then to deliver up the same to them, their agent or order, and so ^agreed in view of the fact, that said Rea resided in the town of Winchester, and had his store-house there, and against any risk to said tobacco that might arise from the occupation of said town by the Federal forces, and that Rea said did not so keep the tobacco as agreed as aforesaid, nor deliver the same as agreed as aforesaid, but upon demand if the plaintiff’s failed to deliver the same, or to pay, or to offer to pay in money the fair value of the same at the time of such demand, then they must find for the plaintiffs, even though they may believe from the evidence, that said William J. Rea, before said demand, sold the plaintiff’s tobacco, as well as his own, because of his apprehension that the Union forces were about to' occupy said town of Winchester, and would search his house and seize said tobacco, and that said forces did, after their occupation of said town, search said Rea’s house for tobacco, and that one of them did take from the secretary (being a piece of furniture) of said Rea a small piece of choice tobacco for his own use.”

The court is of opinion, that this instruction was calculated to mislead the jury; that there was nothing in the facts proved on the trial, as certified in the record, tending to prove that the defendant warranted the tobacco against any risk that ' might arise from the occupation of said town by the Federal forces, which is. one of the facts, on the.supposed existence of which the said instruction was based, and, therefore, that the court erred in giving the said instruction, No. 3, to the jury. There would have been no substantial objection to the instruction if the words: “And against any risk to said tobacco that might arise from the occupation of said town by the Federal forces,” contained in the instruction, had been omitted. If the tobacco, as the instruction supposed, and as the evidence tended *to prove, was deposited by the plaintiffs in the hands of the said Rea, who resided in the town of Winchester, and had his store-house there, and who received the same on storage for a compensation to be paid him by the plaintiffs, and agreed in consideration thereof to keep the same in store on account of the plaintiffs, and subject to their order until they should demand the same, and then deliver it up to them or their order; and if the said Rea failed so to keep the tobacco and to deliver it up, he thereby became liable to pay to the plaintiffs the damages sustained by them from such breach of the contract, and of course the jury ought to have found for the plaintiffs. The questions for them to decide upon all the evidence were—1st. What was the contract between the parties? 2dly. Was it broken by the defendant, or rather by Rea, her intestate? And if so, 3dly, What damages did the plaintiffs sustain from such breach? Whether Rea had authority, under any circumstances, to sell the tobacco, depended upon the nature and terms of the contract, express or implied. If the tobacco was deposited in his hands for a special purpose, and with an understanding or agreement between the parties, that he was not to sell it at all under any circumstances, and especially not for Confederate money; and that the plaintiffs were fully aware of the risk to the tobacco from seizure and capture by the Union forces, and intended and agreed to incur that risk themselves; then, of course, Rea had no authority to sell it on account of any apprehension by him, however well grounded it may have been, that1 the tobacco, would otherwise have been seized and captured as aforesaid. If, on the other hand, the agreement or understanding between the parties was, that Rea should take the best care he could of the tobacco *with a view to its safety, and to preserve it from being seized and captured by the Federal forces, and should have authority to sell it for Confederate money if he had good reason to apprehend that it was necessary to do so to prevent its total loss by such seizure and capture, then if Rea did take such care of the tobacco, and did have good reason for such apprehension, he had such authority; and if he sold the tobacco accordingly, he is not liable to the plaintiffs for any damages sustained by them on account thereof. Now all these, questions depend upon the evidence, on the meaning and effect of which the jury alone had to consider and decide. Instruction No. 3, without the objectionable words aforesaid, would have sufficiently - embodied the former of ,the foregoing alternatives, and if given 'in that form would have been a good instruction, and well warranted by the evidence. The court ought therefore to have given it in that form or to that effect if any instruction at all were given on the subject.

The court is. further of opinion, that the court did err in giving instruction No. 4; “that the fact that William J. Rea’s house was searched after the 19th September 1864, is not competent evidence to show what a •contract (if such was made) of date July 26th, 1864, was.”

The court is further of opinion, that the Circuit court erred in giving instruction No. 5, for the same reason for which it erred in giving instruction No. 3 as aforesaid; that is, for the reason that there was no evidence before the jury tending to prove an agreement by the defendant to protect the tobacco from seizure and capture by the Union forces. No. S is in these words: “If the jury believe from the evidence, that the tobacco in controversy was stored with the *defendant, to be kept by him, and with an agreement to protect it from seizure and capture by the Union forces, then the court instructs the jury, that a sale of the same, because of a fear that the same would be seized by the Union forces, or because its possession would endanger the defendants’ property, was a violation of the contract under which the same was stored; the sale of the same was unauthorized, and they must find for the plaintiffs, although they may believe that the defendant sold his own tobacco about the same time for the same price and for the same reasons.”

Instruction number six is in these words: “Although the jury may find from the evidence, that Rea received Trotter’s tobacco in store, to hold subject to Trotter’s order, and that Rea, without authority from Trotter, did sell said tobacco; yet if they find that such sale was made from the peculiar necessities of the case, and to prevent total loss of said tobacco, then Rea is not liable, except for the proceeds of said sale, provided said sale was fairly made and for a reasonable price under the circumstances; unless they further find from the evidence, that said tobacco was deposited with the defendant Rea with reference to its care and keeping, in the possession of said Rea, in the event of the presence of the Federal forces in Winchester; and if the jury so further find, then they are instructed that said Rea was not authorized to sell said tobacco, and they must find for the plaintiff the value of the tobacco when demanded. But the burden of proof, as to the character of the contract, is upon the plaintiffs.” The court is of opinion, that this instruction is vague and uncertain, and was calculated to mislead the jury, and therefore ought not to have been given.

Number seven is in these words: ‘ ‘The court instructs the jury, that if they find from the evidence, *that Trotter deposited his tobacco with Rea, and that such deposit was for the benefit of Trotter alone, and without compensation to Rea, then Rea was only bound to use slight diligence, and was only answerable for gross negligence. ” Without deciding whether the Circuit court erred or not in giving this instruction, it is enough to say that the error, if any, is not to the prejudice of the plaintiff in error, who has therefore no right to complain of it.

Number eight is in these words: “If the jury believe from the evidence, that the defendant Rea received the tobacco without charge in store for Trotter, and that he, Rea, afterwards, to prevent total loss of said tobacco by a force against which he had not insured it, sold it; that then Rea is only responsible for the value of the consideration received by him for the tobacco.” That would depend upon the meaning and effect of the evidence and the purpose for which the tobacco was stored; of all which matters the jury were to judge. If the agreement and understanding of the parties was that the tobacco was to be kept by Rea until demanded by Trotter, and was not to be sold by the former, then Rea is responsible for the value of the tobacco when sold, even though it may have been received and sold under the circumstances stated in the instruction. The court therefore erred in giving this instruction; but the error was not to the prejudice of the plaintiff in error.

No. 9 is in these words: “If the jury believe from the evidence that Trotter deposited his tobacco with Rea, and that Rea, without insuring it against the Federal forces, afterwards, and before the Federal forces came in, sent word to Trotter by' Trotter’s general agent, that he, Trotter, must take the tobacco away, and that Trotter failed to do so, and that then *Rea sold said tobacco to prevent total loss thereof, then Rea is liable only for the value of the consideration received by him.”

This instruction is objectionable, on the ground, if no other, that there is no evidence tending to prove that he, Rea, sent such a message to Trotter as is stated in the instruction, which, therefore, ought not to have been given; but the error was not to the prejudice of the plaintiff in error.

The instructions given by the court on the trial are all set forth in the defendant’s bill of exceptions No. 3. Two other bills of exceptions were taken by the defendant in the case, which yet remain to be noticed, viz: Nos 4. and 5. Defendants’ bill of exceptions, No. 4, was to the action of the court in overruling the motion of the defendant to set aside the verdict and award a new trial, upon the grounds, 1st, that the jury had been misled by erroneous instructions ; 2d, that improper testimony had been allowed to go before the jury; and 3d, that the verdict was contrary to law and to the evidence. And defendants’ bill of exceptions, No. S, was to the action of the court in overruling the motion of the defendant made four days after the verdict of the jury had been rendered and recorded, to set aside the verdict and grant a new trial, on the ground that a certain paper, which was not in evidence, had been conveyed to the jury room, and read by the jury in their retirement. If the judgment in this case is to be reversed for the errors of the court in giving instructions as aforesaid, it is unnecessary to consider and decide the questions presented by the two last mentioned bills of exceptions, as they will, in. that event, become immaterial, a new trial being the necessary result of such reversal. It is contended, however, by the coun- , sel for Trotter & Bro., that even *though there be such error, it is not material, and does not require a reversal of the judgment, if, notwithstanding such error, the defendant is not thereby aggrieved, and justice has been done by the verdict and judgment. Without undertaking to decide whether justice has been done by the verdict and judgment, the court is of opinion that the judgment ought to be reversed for the errors aforesaid, and the verdict set aside, and a new trial awarded. The case seems to be governed by that of Wiley &c. v. Givens &c., 6 Gratt. 277, in which it was held by this court, that when an appellate court is of opinion that an instruction given to the jury by the court below is erroneous, the appellate court cannot undertake to determine that the verdict, notwithstanding the erroneous instruction, is right upon the evidence, and therefore to affirm it. But the judgment must be reversed, and the cause remanded for a new trial.

The court is therefore of opinion, that the judgment is erroneous for the reasons aforesaid, and ought to be reversed, and' the verdict set aside, and the cause remanded for a new trial to be had therein, in conformity with the foregoing opinion.

The judgment was as follows:

This day came again the parties by their attorneys, and the court having maturely considered the transcript of the judgment aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the Circuit court did not err in the following rulings:

1st. In overruling the defendants’ objection to the competency of John J. Williams, as a witness for the plaintiffs, notwithstanding his relation to them as their *attorney in the cause, and in admitting the said witness, as stated in the defendants’ bill of exceptions No. 1.

2ndly. In overruling the defendants’ objection to the papers marked “A” and “C,” referred to in the defendants’ bill of exceptions No. 2, and in admitting said papers in evidence, as stated in that bill of exceptions.

3rdly. In giving to the jury instructions “No 1.,” “No. 2,” and “No. 4,” set out in “defendants’ bill of exceptions No. 3.”

The court is further of opinion, that the Circuit court did not err to the prejudice of the defendant, if at all, (who has therefore no ground to complain of any such error) in giving to the jury instructions “No. 7,” “No. 8,” and “No. 9,” set out in the last mentioned bill of exceptions. The last two at least might well have been objected to by the plaintiffs: “No. 8” upon the ground that its propriety depended upon the meaning and effect of the evidence, and the purpose for which the tobacco was stored, of all which matters the jury were to judge; “No. 9” upon the ground (if no other) that there was no evidence before the jury -tending 'to-prove that-such a-message was sent by Rea to Trotter, as is stated in the instruction.

The court is further of opinion, that the Circuit court erred in giving instruction “No. 3,” on the ground that it was calculated to mislead the jury, and that there was nothing in the facts proved on the trial, as certified in the record, tending to prove that Rea warranted the tobacco against any risk that might arise from the occupation of the town of Winchester by the Federal forces; which is one of the facts on the supposed existence of which the instruction was based. There would have been no substantial objection to the instruction if the words “and against any risk to said tobacco that might arise from the occupation of said town by the Federal forces,” contained in the instruction, had been omitted.

The court is further of opinion, that the Circuit court erred in giving instruction “.No- 5,” for the same reason for which it erred in giving instruction “No. 3,” as aforesaid; that is for the reason that there was no evidence before the jury tending to prove an- agreement by Rea to protect the tobacco from seizure and -capture by the Union forces, and the instruction was calculated to mislead the jury.

The court is further of opinion, that the Circuit court erred in giving instruction “No. 6,” which is vague and uncertain, and was calculated to mislead the jury.

Thé court is further of opinion, that for the errors aforesaid, and without deciding or considering whether the Circuit court erred in overruling the motion of the defendant to set aside the verdict and award a new trial,-on the ground stated in “the defendants’ bill of exceptions No. 4,” or in overruling the motion of the defendant tó set aside the verdict and grant a new trial on the ground stated in “the defendants’ bill of exceptions No. S, ” or whether the verdict, notwithstanding the erroneous instructions aforesaid, is right upon the evi-' dence; the judgment ought to be reversed, the verdict set aside, and a new trial awarded in the case.

Therefore, it is considered by the court, that the said judgment is erroneous, and be reversed and annulled; and that the plaintiff in error recover against the defendants her costs by her expended in the prosecution of her writ of supersedeas aforesaid here; and it is ordered that the verdict of the jury be set aside, and *the cause remanded to the said Circuit court, for a new trial to be had therein in conformity with the foregoing opinion and judgment; which is ordered to be certified to the said Circuit court of Frederick county.

Judgment reversed.  