The material issue submitted to the jury was; “Did ithe defendant purchase the land described in the pleadings, in trust for the plaintiffs, Docey and her children.” Evidence was given in support of the affirmative and negative оf this proposition, but the jury found in the negative. This verdict ends the controversy, unless some one -of the еxceptions taken by the plaintiffs will avail them. The ■ only exception relied upon in this Courtis that which аrose ¡upon the testimony of Mr. Sutton. After the evidence was .given, in his address to the jury the counsel for the plaintiff •stated, “-that the witness Sutton had given the terms of the agreement according to his views. The cоunsel for the defendant interrupted him and claimed that the counsel was misrepresenting the testimony. Uрon reference to his notes the presiding Judge found the testimony to be there given as claimed by the defendant, and so stated. The counsel for •the plaintiff, still insisting that his view of the testimony was *227 correct, аnd that he was supported by his associates, the •Judge re-called Sutton and himself examined him, taking down his tеstimony verbatim, and then reading it over to him, and asking him if he had any corrections to make. The counsel then resumed and insisted that the witness had, upon being re-called, given the same evidence which he, the counsel, had before claimed that he had given. The counsel proceeded to state what hе had at first claimed to have been Sutton’s testimony. The Judge being of opinion that the counsel had given an incorrect statement of what the witness had stated upon his re-call, interrupted him and so said ; аt the same time reading from his notes the witness’s testimony. The counsel then insisted that he had a right to argue to the jury his version of the last statement of the witness; and that what the witness testified to was matter for the jury. The Judge rеmarked that while that was so, he would not allow counsel any further to argue the matter to the jury, or tо now contend before them that the witness when re-called had given a different statement from that which he had upon his notes; to which the counsel excepted.”
It is difficult to -extract a legal exception from this statement. It appears to be only an altercation between the counsel and the Court, not at all to the advantage of the former. Upon a disagreement of cоunsel as to the testimony ■of the witness, and a reference to the Court to decide the dispute, his dеcision, as a general rule, should be acquiesced in. But when counsel persist against the decisiоn of the Court, and he thereupon recalls the witness and reduces his testimony, verbatim, to writing, which is read over to the witness and acknowledged by him to be correct, in the presence of the counsel, who mаkes no objection to the correctness of the written statement; then for him to still persist in giving to the jury another and different version of the testimony, is at least Unseemly and opposed to the orderly *228 and dignified administration of justice. It was the duty of the Judge to have ended the controversy sooner than he did.
In trials by jury it is in the province of the presiding Judge to decide all- questions on the admissibility of evidence tо the jury as well as to determine whether there be any evidence or not. This power necessаrily includes the power to decide, in cases of dispute, what the evidence is which has been аdmitted. The jury can consider the weight and effect of that evidence only which has been allowed by the Court to go to them. 1 Greenl., sec. 49 ;
Munroe
v. Stultz,
In our case, the counsel was first corrected from the Judge’s notes, and that not giving satisfaction, the witness was recalled and his evidence was reduced to writing, verbatim, and read to the jury. The jury do not seem to have shared the incredibility of the counsel. How cоuld they ? The evidence became a writing, having the fixity and un-changeableness of a deposition, а bond or a deed. It was conclusive. We do not understand the Judge to have precluded the cоunsel from further argument to the jury, upon the testimony, but that he did disallow further argument as to what was the testimony of Sutton. This is apparent from his subsequent charge to the jury, wherein he instructed them “that while it was the duty of the Judgе to narrate to them the evidence, they were not bound by his statement of it, but were the sole judges оf what was the testimony.” We do not concur in this statement of the law, but it was error in favor of the plaintiffs аnd they have no cause of complaint in that.
The case was fairly submitted to the jury and the verdict
*229
disposes of the action. Indeed, from the evidеnce which is made a part of the case, the jury could not have found otherwise; for even upon the plaintiff’s testimony alone, it is clear that there was no trust in the defendant which this Court could enforce.
Patton
v.
Clendenon, 3
Murphy, 68;
Reed
v.
Cox,
The other exceptions were not insisted on here and .are untenable. There is no error.
Per Curiam. Judgment affirmed.