Aylwin v. Ulmer , 12 Mass. 22 ( 1815 )

Per Curiam.

The evidence offered at the trial, as it appears by the bill of exceptions, was sufficient for the jury to have founded a presumption upon, that the property, acknowledged by the defendant to be in his possession, was received by him in virtue of the execution which he once had in his hands. It was not, indeed, conclusive evidence of that fact, and it might not have satisfied the jury ; but, as it was matter for their consideration, they ought to have had opportunity to weigh it.

Now the charge of the Chief Justice of the Common Pleas was calculated to make the jury understand that the evidence offered was wholly insufficient. He stated correctly that it was necessary they should be satisfied that the property was so received. But he also stated, that the evidence offered was not sufficient to maintain the action. This was undertaking to judge for the jury, and amounted to a declaration to them, that any consideration of the evidence was wholly unnecessary. They must thus have received the impression, that by law they could not, on that evidence, find a verdict for the plaintiff. And for this cause the judgment must be reversed, and a venire facias de nova awarded.

Qaere, whether the evidence would justify a verdict for the plaintiff?