Gale v. Lincoln , 11 Vt. 152 ( 1839 )

The opinion of the court was delivered by

Collameb, J.

The proceeding, by removing a cause into the supreme court, upon exceptions, has been frequently decided to be a proceeding in error. If it appear that error in law has been committed, the judgment is reversed. If no error appears, then the judgment is affirmed. Error must be either in the admission or rejection of evidence, in the charge to the jury, or in the judgment rendered by the court. Error in law can never be committed in any opinion the court may express upon the weight of the evidence. It is a mere matter of discretion. The court is not bound to express any such opinion to the jury, and, if any is expressed, it is still a question for the jury to decide. From the exceptions, as drawn in the present case, we do not perceive that any legal question has been decided by the court. No testimony has been admitted or rejected which was objected to, no charge was given to the jury, nor does it appear that any judgment has been rendered, but on a verdict. The truth seems to be that when the plaintiff’s testimony was all in, the judge expressed an opinion on its weight unfavorable to the plaintiff-, whereupon, without going on with his case to the jury, as was his right, h'e submitted to a verdict.

If, however, this case were to receive a different construction, and the opinion of the court were to be regarded as a charge on the testimony, legally binding on the jury, we still cannot perceive that it was wrong. The case purports to set out the whole testimony. Now, the only testimony tending to prove a warranty, consisted in what the plaintiff' told his son in the presence of one of the defendants, the lattermaking no reply. There may be cases, where a man’s silence may be evidence against him. His silence, when a claim is made directly upon him, calling for a reply, may be evidence of the correctness of the claim. But id this case there is no such circumstance. The plaintiff’s statement was made to his son, not to the defendant, and therefore called for no reply. There were other defendants, who participated in making the contract, and the one defendant, in whose presence this conversation occurred, might not have considered himself sufficiently acquainted with the terms of the contract, to contradict any statement which thé plaintiff might make. It therefore was insufficient.

Judgment affirmed.