2 Watts 165 | Pa. | 1834
The opinion of the Court was delivered by
G-ibson, C. J.
It was accurately charged, that to constitute duresse at law, the arrest must have been originally illegal, or have become so by subsequent abuse of it. It was accurately charged too, that in the absence of proof to the contrary, the arrest must be taken to have been justifiable under the laws of Maryland, by which its legality is determinable; as a second arrest during the pendency of an action in a foreign country for the same cause is justifiable by the common law, which is the basis of the jurisprudence of that state. Yet notwithstanding the conceded absence of proof to rebut the presumption in favour of the arrest, its legality was submitted to the jury as an open question. It is doubtless the province of the jury to determine the effect of the evidence, but it is the province of the court to determine its competency; and the right to determine what is evidence and what is not, necessarily includes a right to determine whether there is any evidence to the point proposed. Nor is it an invasion of the prerogative of the jury to instruct them, in a proper case, that there are legal presumptions of fact which it is their duty to draw. By the pleadings, all that is necessary to constitute duresse was a part of the case which the defendant had taken upon himself to prove; and, failing to produce his proof, the fact was to be taken as against him ; but, instead of being instructed to that effect, the jury were directed to consider the matter at large, which had a direct tendency to mislead them as to the onus probanclv and the legal result of the proof. To submit a fact destitute of evidence, as one that may nevertheless be found, is an encouragement to err which cannot be too closely observed, or unsparingly corrected.
Of oppression by an excessive use of the process, there was no room for a pretext, in the evidence returned on the commissions; nor does
Judgment reversed, and a venire de novo awarded.