
    Perry et al. v. Clarke.
    It is the province of the court to determine whether the evidence conduces to prove the issue.
    When the plaintiff has wholly failed to mate out his case, and there is no conflicting testimony, the court may instruct the jury to find for the defendant.
    Where it appears that justice has heen done, and that another trial would not be likely to change the result, a new trial will not be awarded by the appellate court.
    ERROR from the circuit court of the county of Hinds.
    This was an action of assumpsit in the court below, to recover the amount of money paid on an agreement for the sale of land, which it was insisted had been rescinded.
    On the trial, the agreement for the sale was proven, and that the sum sued for had been paid by plaintiffs, and that Clarke, the vendor, for the amount due and imp aid on the agreement, was about to proceed to sale under a deed of trust, when he was arrested by injunction; after the dissolution of the injunction, he was called on by Whitfield, Stokes and Cotton, the mutual friends of the parties, when Clarke said he had been very much har-rassed, but now had the parties in his power, and would make no arrangement which would give him further trouble; but said he would make a proposition in writing, which was made, by which in substance he agreed to take back the estate sold, upon the terms in the paper mentioned, one of which was, that Perry & Fox should take off of his hands, at what it cost him, an estate which he had purchased of Moore, to the amount of about thirty thousand dollars; the property having, in the interim, fallen greatly in value. The arrangement was made and carried out according to the proposition, with slight variations; the property all re-conveyed, and notes cancelled, and notes given for the estate taken which had been purchased of Moore. Nothing was said about the payments which had been made before said agreement. The effect of the agreement, it was said, was to place the estate in the same situation it was in before the purchase. And these facts were relied on as a rescisión of the contract.
    After the plaintiffs were through with their evidence, the counsel asked the court to instruct the jury, that the plaintiffs had proved nothing which conduced to show a right to recover, and that they must find for the defendant; which instruction the court gave. Verdict for the defendant. A new trial moved for and refused; and exceptions to the opinions of the court. For a more particular statement, see the case reported in vol. 4, between the same parties.
    Hughes, for plaintiff's in error.
    It is clear that the court usurped the province of the jury. See 9 Peters, 445, 568. Anderson v. Burnett, 4 Howard. The rule is that where there is a fact for the jury to find, that it is not competent for the court to take the adjudication of that fact from the jury, but where there is no dispute about the fact, the court may say to the jury, that that fact will not authorize a recovery. See 13 John. Rep. 334.
    The question to be decided by the jury was, whether there had been a rescisión of the agreement, and there being no positive evidence on the subject, the fact whether a rescisión was or was not made, Avas to be inferred from the facts proven, and this involved the intention of the parties ; these were facts upon which the jury had a right to pass, but the court instead of the jury gave the verdict.
    Again. — Whatever the practice maybe in England, or in New York, or in other countries on jury trials, it is insisted, rvhere an issue is submitted to a jury, the court can give no opinion whatever on facts. The statute on this subject is clear; it is in these words: « That for the better preservation of the sanctity of the right of trial by jury pure and uninfluenced, no judge before whom any issue of fact may hereafter be tried by a jury, shall sum up or comment on the evidence.” Laws of Miss, edition of 1838, page 407. Yet in the face of this act, it is insisted, that a judge before an issue of fact is submitted to a jury, may say to them, that there is no evidence before them to authorize a recovery. This we take to be a comment on the testimony of the strongest character. In order to do it, he sums up the testimony in his mind, compares one part with another, and then gives to the jury his opinion, whether it would support the plaintiff’s case; this the statute intended to provide against, the jury of twelve men being more competent to the task than one. On the right to recover on rescisión, see 5 John. 84. 12 John. 273. We would also refer to the case of Crane v. The Lessee of Morris, 6 Peters, 609, which is a stronger case than any read.
    Work, for defendant.
    It was urged by the learned counsel, that under the statutes and constitution of this state, no circuit judge has the right to instruct a jury to find, as in case of a non-suit, or to give the instructions which were given on the application of Clark’s counsel. That the courts of this state have such power, is decided in the case of Ewing & Co. v. Glidewell & Co,, at the January term, 1839, 3 Howard, 335.
    The motion to instruct, as in case of a non-suit, is introduced in modern practice in lieu of a demurrer to evidence, or is in the nature of a demurrer to evidence. 1 Starkie, side page, 471, last paragraph. 1 Monroe, last paragraph on page 170, McPherson v. Hickmans. 6 Monroe, 647, Clay v. Johnson.
    That the motion to instruct, as in case of a non-suit, is frequent and usual. 2 Peters, 551. Bank of the United States v. Carneal. 1 Alabama Reports, 5. 1 Bibb, 209. Galliton v. Bradford, 2 Bibb, 313. Gray v. Craig & Co. 3 J. J. Marshall, 173. 1 Marshall, 423.
    Gould on Pleading is referred to as an authority to show that this is a proper case for a demurrer to evidence, (and the motion to instruct is tantamount thereto,) page 479, sec. 47, and 50 to 54. The burden of proof was on Perry & Fox; the defendant, Clark, introduced no evidence, but moved on the evidence of the plaintiffs.
    It is respectfully insisted, that there was no evidence before the jury that showed a cause of action, and therefore the instruction of the court was correct. It appears from the bill of exceptions that Clark admitted that Perry & Fox had paid him in 1836 and ’37 certain sums of money. But this is no evidence that Clark was to repay the money. “ The fact of the payment of money by A. to B. is presumptive evidence of the payment of an. antecedent debt, and not of a loan, 3 Starkie, 1090. The paper used in evidence by Perry & Fox, and signed by Whitfield, Cotton,,and Stokes, declares- that it is “ a compromise with doctors Cotton and Stokes in relation to all matters between Perry and Fox and ■myself. They are to give me one note due 1st October, 1837, for @4,166, interest from 1st March. Second note, 1st March, 1838, @6,666, interest from 1st March. Third note, 1839, @4,316 15, to draw 10 per cent, from 1st of March last. The last one made payable to me, (Clark,) or order, at the counter of N. & J. Dick & Co., New Orleans.” “Sufficient or satisfactory securities are to sign the notes with Perry and Fox; and Perry and Fox are to have all suits in chancery now pending between us, dismissed at their cost, Fox to give a deed for his land,” &c. “ They are to reconvey to Clark, all the negroes and their increase, that they bought of him: Perry and Fox to pay A. Kirkman & Co. according to their note to me.” “ To pay Davis, Wood, & M’Call,” &c.
    The compromise took place, with slight variations, according to the writing. Cotton states that Perry and Fox also gave to Clark a deed of trust on negroes.
    The giving of three notes by Perry and Fox, with « sufficient or satisfactory securities,” and also the deed of trust, was in law an acknowledgement that they were in debt to Clark, and not that Clark owed them. “A promissory note is evidence of a debt from maker to payer,” 2 Starkie, 301.
    It is a presumption that a man will not acknowledge a debt which he is not liable to pay. 3 Starkie, 1253. It seems clear from the evidence that there was no possible foundation for a claim of Perry & Fox on Clark, for the sum sued for, or any other.
    It was in evidence that Clark had a deed of trust on Perry & Fox for ninety-three thousand dollars, for the original sale of his land and negroes to them, that he was about to sell under the deed. They enjoined and the injunction was dissolved, and the trustee, Whitfield, was about to proceed to sell again. Property had greatly fallen in price, and the witnesses saw that Clark could get back all he had sold and then have an immense debt hanging over Perry & Fox. Clark, if he had been disposed, could, no doubt, have gotten back the land and negroes for forty-three thousand dollars, and still had a debt on Perry & Fox for fifty thousand dollars, which he generously surrendered, and they are now-attempting to make him suffer for his generosity. Not one word was ever said about Clark refunding a cent either in the written compromise or in the parol evidence.
    This case has once been decided in this court. 4 Howard, 285. 13 Johnson, 334. 6 Peters, 568.
   Mr. Chief Justice Shahkey

delivered the opinion of the court.

This was an action of indebitatus assumpsit for money had and received. When the plaintiffs had closed their testimony, the counsel for the defendant, declining a cross examination, or to offer evidence, requested the court to charge the jury to find as in case of non-suit; that the plaintiffs’ evidence did not conduce to prove any cause of action, and they ought to find for defendant; and that if they found any fact for the plaintiffs which their evidence conduced to prove, still there was no cause of action, and they ought to find for the defendant.

The court charged the jury accordingly, and the plaintiffs took exceptions, and it is now insisted that the court had no power to give such a charge to the jury, because it was charging on the weight of evidence.

It is surely not competent in any case for the court to charge the jury on the weight of evidence; this must, be left to the jury to determine. But at the same time it must be the prerogative of the court to determine whether the evidence conduces to prove the issue, otherwise a party might introduce whatever matter he pleased, and the court could not object: its power would be wholly paralyzed in regard to. the introduction of evidence. A court may reject evidence if it is not pertinent, and in doing this it must necessarily judge of its tendency. This, however, is not deciding on the weight of evidence. The weight of evidence is the influence or effect which it has in establishing a fact; or in enabling the jury to draw a conclusion. The relevancy of evidence, or its conduciveness or tendency to prove the issue, is matter of' law; but this being established, its weight, or the question how far it conduces to prove the fact in dispute, is a question of fact for the jury. Gould’s Pleading, 480.

By the English practice, it seems to be a well-settled rale that if the plaintiff entirely fails to make out his case, and there is no disputed point proper for the consideration of a jury, the court will direct the jury to find for the defendant. Chitty’s Practice, 913, McBeath v. Haldimand; 1 Durnford & East, 173; 1 Starkie’s Ev. 471; 6 Barn. & Cress. 325.

The same practice prevails in most of the states in the Union, although it may not perhaps be exercised to the same extent. It has also been recognized in the Supreme Court of the United States. Thus in the case of the Bank of the United States v. Triplett, 1 Peters, 25, the court said, “ If, in any case in which testimony is offered by the plaintiff, the court ought to instruct that he had no right to recover, such instruction ought not to be given, if by any possible construction of the evidence it would support the action.” Again, in the case of the Bank of the United States v. Carneal, 3 Peters, 543, the court below had charged as in case of a non-suit; and it was said that the charge could only be maintained on the supposition that there was no contrariety of evidence as to the facts that ought to be left to the jury. The deduction is irresistible from this language,' that such a charge would be proper when the case would justify it. The authority cited from 6 Peters, only decides that a peremptory non-suit, against the will of the plaintiff, cannot be ordered, and that the court cannot charge the jury as to the weight of evidence. This is admitted.

The evident tendency of all these cases is against the exercise of such a power as that claimed in the present instance, unless in cases where there can be no room for doubt; and this is the extent to which they go. To this we yield our unqualified assent. It is a delicate power, and one which should be exercised with the greatest possible caution. If there be any room for doubt, such a charge ought not to be given.

According to the New-York practice, it is not at all uncommon to non-suit the plaintiff, if he fails to make out his case. Indeed, it is said to be the duty of the court to do so, when they would, from the evidence, set aside the verdict. Stuart v. Simpson, 1 Wendell, 376. 13 J. Rep. 334, Pratt v. Hull.

This is also the practice in other states, where there is no proof except what is introduced by the plaintiff, and that is insufficient to justify a verdict in his favor. 2 Greenleaf, 5. 3 id. 97. 2 Bailey’s Rep. 321.

In England, a peremptory non-suit could not be ordered. We have adopted the same rule. And we feel bound to approbate also the practice which there prevails, as to the power of the court to charge the jury to find for the defendant, where the plaintiff has wholly failed to make out his case, and there is no conflicting testimony which requires the intervention of a jury; unless indeed there is some statutory provision which alters the common law. Such, however, we think there is not. The statute which has been relied on does not vary the rule. .The language is, that «no judge or justice, before whom any issue or issues of fact may hereafter be tried by a jury, shall sum up or comment on the evidence properly and legally before said jury; nor shall said judge or justice charge said jury on points or principles of law, applicable to the case before them, unless the parties to such issue or issues, or the counsel, differ in opinion as to the same, or unless one of the parties to" such issue or issues shall ask the charge of said judge or justice upon some point or points of law, pertinent to such issue or issues, which shall be distinctly specified by the persons asking such charge.”

In the courts of common law it was the practice for the judge, when the evidence was concluded, to sum it up and charge the jury on points of law applicable to the case., It was no doubt thought that this practice was productive of evil consequences. To check it, this statute was passed, and it does nothing more than limit the judge’s power in this respect. Instead of charging the jury as formerly, he cannot now do so unless the counsel differ in opinion, or request a charge. But his power to judge of the tendency of evidence is not changed. It is essential to the proper administration of justice, that he should have this power. It is a power necessarily incident to k court, and if it is abused, the remedy is .plain and easy, by appeal or writ of error.

It will next be necessary to enquire whether the case made out was such as to justify the charge. And with a view to prevent the abuse of a power, which should be exercised with so much caution, and to correct the errors if any have been thus committed, the evidence has been examined with the strictest scrutiny and all its bearings particularly noticed. But in vain have we looked for any thing which tends in the most remote degree to establish an indebtedness, of any description, from Clarke to the plaintiffs. The written contract or agreement is vague and ambiguous, and lays no foundation for a recovery in this action, nor is it aided by the parol testimony. The written agreement does not appear to have been a rescisión of a previous contract, but it seems to have been intended for a compromise of difficulties, and even in that light, there is nothing which can be construed into a support of the action. As well might it apply in an action of tro-ver, detinue, or any other form of action, as it does to the present one. And if the plaintiffs could recover in this action on the evidence, they need not fear to make a second effort in a new form. With evidence so vague and unsatisfactory, and which did not conduce even in the most remote degree to sustain the action, it surely was not error in the court to tell the jury that the plaintiffs had not made out their case, and they must therefore find for the defendant. If there could have been any doubt about the evidence, this would have been Wrong, but we can perceive no room for doubt.

But suppose we have mistaken the law, and that it was wrong in the court to give the charge, does it necessarily follow that the judgment must be reversed ? If the case had gone to the jury without instructions, and they had found a verdict for the plaintiffs, can it be supposed for a moment that the verdict would have been permitted to stand ? It cannot! The court could not have hesitated in granting a new trial. Then when it is so apparent that justice has been done, — that the result must always be the same, why send the case back for a mere trivial error, which has not produced any prejudice. It is a settled rule, that where it is apparent that justice has been done, a new trial will not be granted. It is clear that justice has been done, and that the result cannot be changed by reversing the judgment, and under such circumstances we are not disposed to interrupt the verdict.

The judgment must be affirmed.  