3 Whart. 143 | Pa. | 1838
According to the English practice, a special case is used instead of a special verdict. It is a species of special verdict. The jury find generally for either party, but subject to the opinion of the Court, on a special case (stated by the counsel on both sides, or dictated by the judge), with regard to a matter of law. Leave is sometimes given to turn it into a special verdict. But in a special case, as in a special verdict, the facts proved at the trial ought to be stated, and not merely the evidence of facts. In arguing a special case, the counsel are not permitted to go out of it, and the Court must judge upon it as stated. If it be so defective, that the Court are not able to give judgment, they will grant a new trial, in order to have it restated. 1 Tidd’s Prac. 930; 1 Arch. Prac. 3 92.
*Under our practice, a special case, or as it is usually a case has been more used. The parties, where a real contest exists, may enter an action by amicable agreement, and in that action, or in one brought by process issued, may agree to state certain facts for the opinion of the Court; and if they desire to have the benefit of a writ of error, may insert in their agreement that it shall be in nature of a special verdict. 8 Serg. & Rawle, 529. The rule, however, as to the duty of stating the facts only, and not the evidence of facts, and of submitting to the Court only questions of law, is the same here as in the English practice. Ib. 4 Watts, 312. Ad questiones facti non respondent judices. It would be a departure from established principles, and from sound policy, to allow the parties to submit to the determination of the Court, anything else than questions of law.
A presumption of one fact from others is an inference of fact. Whether in a given case the jury ought to make that presumption, is a question of law. Where, according to the rule of law, the jury are bound to make that presumption, it still remains an inference of fact. The circumstance that the jury are bound to make it, does not render it matter of law, so that the Court can draw the presumption. Erom evidence of any fact which in law is deemed conclusive, the jury are bound to infer the fact; and the Court would so instruct them, and would grant a new trial if they refused. That would not authorize the Court, in a common law suit, to usurp the province of the jury and adjudge on a special verdict or demurrer, that the statement of the evidence proving a fact was equivalent to stating the fact thus proved. So, in the cases of presumptions. After twenty years, bonds and other instruments not within the statute of limitations, are presumed or inferred to have been paid; but that is an inference which the jury must make — the Court charging as to what is the
As the making a presumption of one fact from other facts is thus a matter which belongs to the jury, so do the circumstances which go to repel that presumption; as for instance, to show that payment has not been made. And here the same division of duty occurs. Whether, in point of law, the circumstances proved are sufficient to repel the presumption, is for the Court to determine; but whether they do in fact repel it, is for the jury to find by their verdict.
I am therefore of opinion, on the case here stated, that the Court below erred in deciding on the effect of the circumstances *set forth in repelling the alleged presumption; and that it could only be done by a jury, with the 'aid of the Court, by means of a verdict; therefore the judgment below must be reversed, and the case remitted to the Court below to proceed in.
Judgment reversed.
Cited by Counsel, 2 Watts & Sergeant, 370; 5 Id. 209, 331; 9 Harris, 293; 5 P. P. Smith, 291; 2 Ashmead, 218.
Cited by the Court, 8 Watts, 288; 10 Wright, 267; 8 P. P. Smith, 463.
See also, 9 Harris, 310; 2 Grant, 35.
