
    Riley and Another v. Watson.
    When a party, at a proper time, requests the Court to reduce its charge to the jury to writing, it is error to refuse to do so, and charge orally.
    An instruction, which refers to the jury the determination of a question of law, is erroneous.
    APPEAL from the Sullivan Common Pleas.
   Davison, J.

This was an action by Watson, wbo was tbe. plaintiff, against Itiley and Davidson; commenced before a justice of tbe peace. Tbe complaint is in this form :

“Alonzo Itiley and George Davidson to William, C. Watson, Dr.

“May, 1859, to money had. and received, for bis use, of Archibald Dixon and Alexander Barret, for returning negroes to them, 75 dollars. William C. Watson.”

Tbe justice gave judgment for tbe defendants, and tbe plaintiff appealed. In tbe Common Pleas, to which tbe cause was taken by appeal, there was a jury trial, which resulted in a verdict, in favor of tbe plaintiff, for 68 dollars. . Motion for a new trial and in arrest, denied and judgment, &c.

During tbe trial one Sterret McClelland, a witness, testified as follows: “ On tbe 10th of March, 1859, 1 was going from my bouse to the bouse of a Mr. Purcell' when I came near tbe railroad I discovered five men on tbe track, and started towards them; three of tbe men were in front and two were behind; when I got up pretty close I discovered that the three in front were tbe defendants, Alonzo Itiley and George Davidson, and tbe plaintiff, William C. Watson, and that the two behind were negroes. Just as I came up Davidson said, be believed tbe two negroes coming up were slaves; by this timé tbe negroes were up to us—Itiley then pulled out an advertisement, and told tbe negroes that be believed they were runaway slaves. He then read the advertisement, and Davidson examined tbe negroes to see if they were tbe slaves described. He discovered on tbe leg of one of them a scar, as pointed out in tbe advertisement. We all started, and went to Car-lisle, and took tbe negroes to the Railroad Depot. .In going to that place Riley took one of the negroes in bis buggy, tbe other rode Watson’s horse.” There was evidence tending to prove that the defendants, Riley and Davidson, took tbe negroes from the Carlisle depot to Henderson, Kentucky; that Watson proposed to go with them; but upon suggestion that his going would be unnecessary, and would materially increase the expense, he declined. It was also proved that Riley, Davidson and Watson, or either of them, had no power of attorney, or warrant of any kind authorizing the taking and removal of the negroes to Kentucky. And further, it was proved that, in taking them to Henderson, the defendants’ expenses amounted to 20 dollars, and that, upon the delivery of the negroes, they received a reward of 300 dollars. Of this reward the plaintiff, in the present action, claims one-third, after deducting the expenses, &c.

The evidence being closed, the defendants moved the following instructions: “1. Before the jury can find for the plaintiff they must be satisfied that the negroes were slaves. 2. To entitle the plaintiff to recover he must show that the negroes were slaves, and were arrested and returned to their owners in Kentucky agreeably to the laws of the United States and of this State. 3. If it appears from the evidence that the negroes were taken away in violation of either the laws of this State, or of the United States, the plaintiff can not recover any part of the reward for thus taking them away.”

These instructions were, severally, refused, and the defendant excepted. This exception is not well taken. The first proposed instruction virtually concedes that the plaintiff and defendants were partners in the transaction of taking and removing the negroes; and that being the case, the plaintiff, upon proof that the reward had been received by the defendants, would be entitled to recover his proportion of it. If the negroes were really not slaves, and proof to that effect was at all material, it was incumbent on the defendants, as matter of defence, to make the proof. 1 Phil. Ev., 4th Am. ed. p. 810; note 220 et seq. By the second and third instruction the jury are directed to decide a question of law, namely, whether the negroes were removed to Kentucky in accordance with the laws of this State, or of the United States. In cases of this sort the jury, as a jury, are not presumed to know the law, and are not,-therefore, the proper tribunal to decide it. These instructions, to have been effective, should have assumed, hypothetically, a state of facts pertinent to the case, which, if proved to the satisfaction of the jury, rendered the arrest and removal of the negroes illegal. As they stand they are plainly erroneous, and were correctly refused.

It appears by the record that the defendants, at the opening of the case, and before any evidence was given to the jury, requested the Court to reduce its instx’uctions to writing, but the Court refused to do so; and, after the ax’gument of the cause had been concluded, proceeded to aixd did, over the defendants’ objection, instruct the jux'y orally. The instructions, thus given, are not set forth in the record, and hence the appellee contends that the alleged error, in giving them, is not available in this Court. We think otherwise. The statute says: “ The Court shall give genex-al instructions to the jury, which shall be in wxiting and be numbered and signed by the judge, if requested by either party.” 2 R. S. p. 110. This rule of practice is plainly violated, if the Court, having been properly requested to reduce its charges to writing, proceeds to instruct the jury orally. And as we construe the statute, it renders the action of the Court, in giving the oral iixstructions, erroneous, without reference to what they may say to the jury; hence it can not be deemed important, in the decision of questioxxs such as the oixe under consideration, that instructions so given should be set forth in the x’ecox’d.

The Court in its refusal, in this instance, to reduce the instructions to writing, no doubt committed an error, for which the judgment must be reversed. 5 Ind. 375; 7 id. 187; 8 Blackf. 328.

S. Coulson, for the appellants.

J. E. McDonald and A. L. JRoache, for the appellee.

Per Curiam.

The judgment is reversed with costs. Cause remanded.  