77 Pa. 305 | Pa. | 1875
delivered the opinion of the court,
It was frankly conceded by the learned counsel who argued the cause for the defendant in error, that the ruling of the court in answer to the points of the plaintiffs, cannot be sustained. Our late lamented associate, Chief Justice Thompson, before whom this case was tried at Nisi Prius, was undoubtedly right in following the current of the decisions in the United States Circuit Court, but those decisions have since been reviewed in the Supreme Court of the United States, and a different rule established: Wilson v. City Bank, 17 Wall. 473.
It is now contended, however, that the uncontradicted evidence of the plaintiffs themselves showed a clear case of actual collusion, on which the court would have been justified in giving a binding direction to the jury. We cannot assent to this contention. Actual collusion, or, in other words, fraud in fact, is always a question for the jury, and however convincing may be the evidence on the subject, it would be to confound the province of the two tribunals for the court to assume the decision of it. Their only control over the matter is in the right to order a new trial, should a verdict be rendered clearly against the weight of the evidence.
Judgment reversed, and a venire facias de novo awarded.
