Fisher v. Kean

Per Curiam.

We have more than once spoken in terms of censure of a. practice too common in the trial of causes, of receiving counter evidence of facts, adduced to make way for the rejection of other evidence, and thus drawing the decision,- perhaps of the whole cause, from the jury to the court. There are several decisions to this effect, of which Crotzer v. Russel, 9 Serg. & Rawle 68, is an instance; notwithstanding which, we are sorry to see the practice persevered in. Our course, in all instances of it, is a plain one. Here prima facie evidence had been given of the execution of a conveyance, which, if found to be the deed of the plaintiff, made an end of the controversy; yet, this was successfully rebutted before the court, and not the jury, who were the constitutional judges of the fact on which the cause turned. On the very evidence submitted, a jury might have found in favour of the defendant. But the degree of the proof is immaterial, if it makes out a prima facie case of competency. Here a deed, apparently well executed on the face of it, acknowledged, recorded and produced by the grantee, was rejected on the faith of proof introduced to rebut the delivery; and this we are compelled to say was gross error.

Judgment reversed, and a venire de novo awarded.