Birney v. Martin

3 Vt. 236 | Vt. | 1831

Hutchinson, C. J.,

delivered the opinion of the court. — The exceptions in this case present the single question, whether the charge of the court to the jury was correct. The first part of the charge was clearly correct; for it left to the jury the contested question, to be decided by them, upon the testimony given pertinent to the issue. Indeed, there is no dispute about that part of the charge, if the court had stopped there, without authorizing the jury to find for the defendants, if they could presume from the evidence, detailed in the case, that Timothy Birney, the plaintiff, acted as agent for Roger Birney, in which case, payment to Timothy would be payment to Roger Birney. This might have been correct, if the issue had brought such agency in question, and there had been any testimony to prove it. But there was nothing of this kind in issue. The issue was upon the assignment, not upon the payment. Had the plea set up a payment to Roger Birney, and the proof had been of payment to Timothy Birney, there might have arisen the question, whether payment to Tim- , ,, , - 11,. -Cl othy was payment to Roger; and so it would have been, a he was agent for Roger.

Hunt & Beardsley, for plaintiff. Allen & Perrigo, for dedendants.

But, let the issue have been what it might happen to be; let it be directly upon this agency; yet there was no testimony about it. The judges have stated the whole testimony in their bill of exceptions; and it is pertinent to prove the assignment, which was in issue : but there is not a sentence, which tends to prove any such agency as mentioned in the charge. It is not correct for the court to instruct the jury, that they may decide the cause upon a point not in issue. Nor is it correct to authorize them to decide in favor of the party, on whom the burden of proof lies, without some evidence tending to support the issue on his part.

The judgment is reversed and a new trial granted.