effect of the evidence was for the jury, and not for the court. But the instruction that the circumstances of the case were such as to induce the court to say that there has been no legal or actual possession shown in the plaintiffs, and that they cannot therefore recover, was a binding direction in matters of fact. The conclusion indicated might have been proper, if drawn by the jury; and as the exception points to the assumption of the powers of the jury by the court, we intimate no opinion on the principles involved in the action.

Judgment reversed, and a venire de novo awarded.