
    Letitia Dickson vs. Edwin Moody.
    Presumptions of fact merely should he left to the exclusive consideration of the jury.
    The court is not bound to separate an enlire charge, a part of which is objectionable, but may properly refuse the whole; yet it will not be error to give a charge consisting of two members, though the first, if taken by itself, would be objectionable — provided the second so qualifies and explains it as to obviate the objection.
    This was an action' of indebitatus assumpsit for work and labor and materials furnished, brought by Edwin Moody against Letitia Dickson, to the May Term, 1838, of the circuit court of Hinds cpunty. The defendant pleaded non-assump-sit. On the trial the plaintiff read to the jury a contract under seal, dated 22d of August, 1836, specifying the terms on which certain brick-work therein mentioned was to .be done; he also read a writing, not under seal, written, on. the back of the sealed contract, which was in the following words, to wit:
    “It is farther agreed between the parties hereto, that the said Moody shall wall up the basement story of said new house, and floor the same with brick, to be charged for according to the rates and customs of charging for such work in Jackson, and the same is to be paid for as the work named in the within agreement, and is to constitute a part of said agreement, subject to its terms. “ L. Diceson.
    “ E. Moody.
    “Nov. 26th, 1836.”
    Plaintiff then proved, by H. B. M’Donald, who was the only witness examined, that he measured all the work specified in the account sued op, (the account is not set out in the record certified to this court;) and found it nearly correct; that; the prices charged were as low- as similar work could be done for then, (the time of the trial) — but witness was not in Jackson in 1836, and did not know what were the prices for such work at that time. Witness did not know by whom the work was done.
    This being all the evidence offered on either side, the court, at the request of the plaintiff’s counsel, charged the jury, as set forth in the opinion of the court and arguments of counsel. The jury found for the plaintiff. To the charge of the court the defendant’s counsel excepted, and removed the case to this court by writ of error; and now assign the following errors :
    “ 1. This action is assumpsit for work and labor, founded on an instrument under seal.
    “ 2. The finding of the jury was against the evidence in the cause.
    “ 3. The finding, of the jury was against the law.
    “4. The court, erred in giving the charge to the jury.
    “fi. The court erred in rendering judgment on the finding of the jury,
    
      William Yerger for plaintiff in error.
    This case has been heretofore argued and decided .by the court: and is now submitted upon a re-argument. The action in the court below was assumpsit for work and labor. On the trial the plaintiff introduced and read to the jury an agreement under seal, by which the defendant agreed to pay him $18 per thousand for the materials and building three chimneys to a house in Jackson. Attached to this agreement was a parol contract, by which Moody agreed “to wall up the basement story of Mrs. Dickson’s house in Jackson, and to floor the same at the prices charged for such work in Jackson.” An account was filed, but not read to the jury. One witness proved that he had measured the work specified in the account, and found it nearly correct; but it was not proved that the work specified in the agreement was done by Moody or by any one for him, nor was the value of brick-work in Jackson proved. This was all the evidence in the case. Upon this evidence, at the request of the counsel for plaintiff, the court gave the two following charges, to wit: “ Proof being made of the contract in writing to do particular work, and proof that that work Avas done according to the contract, the presumption arises that the work \yas done by the contractor.”
    “Absolute proof that the work was done, is not necessary; the jury must weigh the testimony, and form their own conclusion from that, whether it was done.”
    The judgment of the court belorv should be reversed, for three causes.
    1. Because of the variance between the declaration and proof.
    The action is indebitatus assumpsit for work and labor upon a quantum meruit; and the only evidence to sustain the action is an agreement under seal to do specific work at a fixed price. As the whole evidence on the trial is set out in the bill of exceptions, and is thus brought before the appellate court, they will grant a new trial, if the evidence Avas not sufficient to sustain the verdict, although no objection was taken to it at the trial. 4 Mass. R. 115, 245. 2 lb. 36. 7 lb. 448. 1 Wendell, 380. As to variance, see 1 Phillips on Ev. 207. 2 Ib. 1, part of CoAven & Hill’s notes, 509, note 401.
    2. There was no evidence to sustain the verdict of the jury. In actions for work and labor the plaintiff must prove the contract, the performance of the work and labor, and the value of the same. Roscoe on Civ. Evid. 221. The co.urt can only look to the bill of exceptions for the evidence, and unless the verdict of the jury be sustained by the evidence therein contained, a new trial will be granted. 2 How. 845.
    3. The court erred in the first charge given to the jury, because it thereby took upon itself to decide upon the weight and force of circumstantial evidence; and the rule is well settled, that the jury alone have the power to determine upon the precise force and effect of the circumstances proved ; and whether they are sufficient and satisfactory to warrant them in finding the fact in issue. 1 Phillips on Ev. 156. 2 H. Black. R. 297. 6 Peters R. 598. 2 Starkie on Ev. 681 to 683.
    The jury was not warranted in finding a verdict for the plaintiff upon the evidence adduced. To warrant a jury in presuming a fact to exist from circumstantial evidence, it is not sufficient that the fact to be inferred often accompanies the fact proven. It should most usually accompany it; and in the absence of all circumstances, it should rarely otherwise happen. 1 Phillips on Ev. 156. 2 Cow. & Hill’s notes to Phillips on Ev. 289, notes 297-8. 3 Hawks R. 122-3. ' 3 Barn. & Adol. 890. 1 J. J. Marsh. 447.
    In New York it has been expressly decided, that the circumstances proved in this case would not ^warrant the presumption made by the jury. 7 Johns. R. 24.
    Even though the jury might have been warranted, from the evidence, in coming to the conclusion they did, yet as the first charge given by the- court was manifestly erroneous and may have influenced their decision, a new trial must be granted. Nor is it any answer to say, that the second charge was correct and may be deemed a qualification of the former. There were evidently two charges given by the court; one is confessedly erroneous and improper^, the other is admitted to be good. The rule of law is well settled, that where improper evidence is admitted, a new trial will be granted, though the appellate court believe it ought not to have had any weight with the jury. 16 Johns. R. 89. 3 Cow. R. 612. Must not the same rule be applied to improper charges given by the court?
    In this case, two separate and distinct legal propositions were given to the jury by the circuit judge. This is manifest, even though they were not given in two separate charges. Can the revising court say what effect the erroneous charge may have had upon the jury?-or could the jury have supposed that the last member of the charge, admitting it to have been but one instruction, was intended to qualify the first proposition, which had been distinctly laid down? A new trial will be granted, where the incorrect charge of the judge may have produced the verdict, or where it had a tendency to mislead the jury. 3 Wendell, 418. 11 Wendell, 83.
    In Massachusetts, in the case of Aylioyn v. Ulmer, this point has been expressly adjudicated. There the judge gave two propositions in charge to the jury. One was correct, the other incorrect. Although one might have been deemed to be a qualification of the other,, yet a new trial was granted, because the jury may have been misled. 12 Mass. R. 24. For these reasons I think a new trial should be awarded.
    Shelton, for defendant in error.
    None but the fourth error assigned, is before this court. The first is not true in fact. This action was brought, - not to recover for the work mentioned in the covenant, but to recover for the work mentioned in the agreement of 26th November, 1836, which is not under seal; and the covenant was referred to and read, because it is recited in said agreement, and its terms constitute a part thereof. The most favorable position in which the plaintiff in error can claim to place this record is, that upon its face it is doubtful, whe'ther the action was on the covenant, or on the agreement of 26th November, 1836. If it was upon the covenant, and wrongly brought, the court below should have non-suited the plaintiff. If on the work mentioned in the agreement of the 26th November, 1836, it was correct. But in this court, all presumptions are in favor of the correctness of the judgment below; and unless the error 
      is made manifest by thé record, the judgment must be affirmed. 1 How. 162. 2 How. 774.
    But it may be urged, by plaintiff in error, that the indorsement of November 26th, constituted part of the original covenant, and therefore one action of covenant should have been brought on both. True it is, that when the indorsement relates to the same subject matter as the original agreement, but merely alters the contract, it is part of the same agreement. Thus, in an original agreement, the price of land agreed on was ten dollars per acre; afterwards, the parties indorsed on the agreement, that it should be forty dollars per aeree; held, that it was no independent contract, but a modification of the original contract. 10 J. R. 420. But where it is for a new subject matter, distinct from that of the original agreement, it is a perfectly new agreement. Esp. N. P. part 2, p. 119. 1 Bos. & Pul. 73. Such is the present case.
    If, however, the assignment were true, and assumpsit had been brought on an instrument under seal, after non-assumpsit pleaded, a jury and verdict, and without motion for non-suit, new trial, or in arrest, the defect would be cured by statute of jeofails. 2 How. 771.
    If either the 2d, 3d or 5th of the errors assigned were ever available to the defendants, it was not by bill of exceptions before the jury retired, but by motion for a new trial. These exceptions, if true, impeach no judgment of the court, but the finding of the jury, and open the whole case. There is but one way by which to bring before this court a full examination of the facts of a cause, that is, by motion for a new trial and exceptions to the disposal of that motion. See H. & H. p. 493. Except in that way a bill of exceptions bringing into question the whole controversy will not be admitted after trial on the general issue. 5 J. R. 467. 8 J. R. 507. Kirb. R. 339 and 456.
    The record, therefore-, does not bring before this court the questions raised by the 1st, 2d, 3d and 5th assignment of errors. The question raised by the 4th assignment is therefore the only one before the court.
    Is there error in the charge of the court below 1
    
    
      A presumption is an inference as to the existence of one fact from proof of the existence of some other facts. 2 Star. 679.
    There are two kinds of presumptions, legal presumptions and natural presumptions. The former are wholly artificial, and are created by law ; the latter arise from the exercise of natural reason, and are recognized by law. The former are governed by positive rules of law, the latter are the same under every system of jurisprudence, and their operations are as effectual whether the Justinian code, the common law of England, or the statute law of Mississippi is to determine the legal effect of the facts so found. Instances of the former are presumptions of payment after twenty years, presumptions of death after seven years absence, presumptions that officers do their duty. In the two first, a week or a day may make or destroy the presumption, however unreasonable the presumption may be in a particular instance, yet it exists until disproved. The exercise of reason does not create these presumptions, they are the creatures of the law, formed however upon a very reasonable policy.
    Instances of the latter are, presumptions of guilt from the recent possession of stolen goods in a trial for larceny, presumption of guilt against a man seen running from a room (where one is slain,) with a bloody sword in his hand.
    It is plain that the presumption in such cases arises not from any artificial rule of law, but from an exercise of natural reason by which the mind, by a single thought arrives at truth, and a plain man who knows nothing of law would as readily come to the proper conclusion, as would a learned lawyer.
    In the cases of legal presumption the court would charge the jury that the rule was fixed and that they must find in accordance with the presumption, unless disproved.
    In the cases of natural presumptions the court would charge the jury that they might presume thus and so from the facts proved before them, but that they must weigh the evidence and form their own conclusions, and find accordingly; the reason is obvious; the court charges the law, these legal presumptions are matters of law, and bind both court and jury and therefore the court must charge them as binding on the jury, but natural presumptions are within the discretionary power of the jury. The court therefore, will only charge that such presumptions will arise, that they may be governed by them, but must weigh all the facts proved, and draw their own conclusion. See on this subject of presumptions, 2 Stark. 684, 5, 6.
    Now the position which I take is that, although after proof of a contract in writing to do particular work, and proof that that work had been done accordingly, no legal presumption arises that the contractor did the work, yet that a natural or reasonable presumption does arise that he did the work, that this natural presumption is strengthened by the fact that the defendant below introduced no evidence disproving that presumption, that if the contract was vacated and avoided, and another did the work, it would have been easy for the defendant below to have proved that matter, and therefore the court did not improperly charge the jury that the presumption did arise; that absolute proof that Moody did the work was not necessary, but that the jury must weigh the testimony and form their own conclusion and find accordingly; this was fairly leaving the force of the presumption raised by all the facts to the jury, and that is where it should have been left, only informing them that they might presume thus and so.
    There is one case I think in point. Grote v. Grote, 10 John. Rep. 402. It was an action of assumpsit on a promissory note. At the trial it was proved that the note was delivered to A, as an escrow to be delivered to the plaintiff when he should perform a certain'agreement in writing then made between the parties. There was no evidence of the performance of the agreement, and the only'fact on which presumption of performance could be established tvas, that plaintiff had obtained possession of the note, and defendant had paid other notes left in the same situation. Court below directed a verdict for plaintiff; and verdict accordingly. Defendant moved to set aside the verdict, because there was no proof that plaintiff performed the agreement, and no proof of delivery by the defendant. On exceptions to overruling the motion, the supreme court say, “the facts well warranted the jury in presuming the note delivered by assent of the defendants, or that the contingency on which it had been deposited as an escrow had been fulfilled; ” that is, the agreement performed by the plaintiff. Here, then, was a purely natural presumption; a presumption of one fact from the establishment of another, upon a question to be determined solely by the jury; the court below assume to say, that the presumption is for the plaintiff, and direct a verdict accordingly; and the supreme court sustains the court below. Now the presumption was just such a one as is the one in question ; but the charge of the court went much further than in our case; in that case the court assumed to determine the force and effect of the presumption, and controlled the jury in their verdict; in this, the court merely tells the jury that such a presumption does arise, and'-’ by his charge tells them that they must weigh the force and effect of it. If in that case there was no error, in this there can be none.
    The cases in Massachusetts, cited by appellant’s counsel, do not apply; they were in the court of original jurisdiction, and on a motion for a new trial. See Rev. Laws of Massachusetts, p. 499, 500, 501, sec. 2, 12, 13.
    The case cited from Wendell does not apply; that was on a motion for a new trial. In the case cited from 12 Mass. R. 24, the judge took the presumption from the jury, and denied them the right of considering it. The supreme court say the court below should have allowed the jury to have considered it. The principles there decided are those for which I insist in this case.
   Chief Justice Shaheey

delivered the opinion of the court.

The only question, which is fairly presented by the record, arises out of the instructions given by the court to the jury. The action was indebitatus assumpsit, for work and labor. A written contract was introduced in evidence without objection, and it was proven that the work was done ; but no proof was offered other than the contract, to show that it was done by the plaintiff below. The court charged the jury in these words, to wit: That proof being made of the contract in writing to do particular work, and proof that that work was done according to the contract, the presumption arises that the work was done-by the contractor.” Absolute proof that the work was done, is not necessary; the jury must weigh the testimony and form their own conclusion from that whether it was done.” This instruction the defendant’s counsel took exception to, as being a-charge on the weight of evidence.

The first member of the charge, taken by itself, was surely objectionable; and had the court refused the Avhole charge, it-would have been correct, and perhaps the better course. A court is not bound to separate an entire charge, a part' of which is objectionable, but may properly refuse the whole. 3 Howard, 125. It was not the province of the court to say that from proof of certain facts, “ the presumption arises that the work was done by the contractor.” This was a presumption of fact merely, which was exclusively proper for the consideration of the jury. But did not the court obviate the error which it had committed, by the subsequent part of the charge ? We think it did. We cannot view the charge in any other light than as entire, not as two separate charges. The court told the jury,, that absolute proof was not necessary; this was certainly unobjectionable; and further, that they must weigh the testimony, and form their own conclusion whether the work was done. This was also proper, and in our opinion a sufficient explanation of that which preceded. The jury must have understood from this, that the whole matter was left to them. If their province was at first invaded, that invasion was abandoned subsequently. If an impression had been left on the minds of the jurors, the latter part of the charge was calculated to remove that impression. "If a court commit an error in a charge, may it not correct that error before the jury retires % Being an entire charge, the whole of it must be taken together, and receive a fair construction. By giving such construction we think it manifest that the court intended to leave the whole matter to the jury, and that the jury must so have understood it. In taking all the charge together, it is improbable that an improper influence could have been exerted. Let the judgment be affirmed.  