term, on the ground that it decided matters coram non judice at the time. Bank of Virginia v. Craig, 6 Leigh, 399, 438-9.

Quare, whether, in case of an order made by this court, but the entry omitted by inadvertence of the court, or misprision of the clerk, such omission may be corrected at a subsequent term? Pr. Tucker, P. It seems essential that this court should exercise such power. Emory et al. v. Erskine, 7 Leigh, 267, 269.

Upon a petition for a rehearing of a cause in the court of appeals, at a term subsequent to that at which the court has entered a decree, but before that decree has been certified to the court below, on the ground that the decree was founded on a mistake in point of fact; the question was whether it was in the power of the court to allow the rehear

ing? And upon this question four judges present were equally divided in opinion. Towner v. Lane's adm'r, 9 Leigh, 262.

#

Virginia.-At a court of appeals, held at the capitol, in the city of Richmond, on Wednesday, May 3d, 1837:-The court announces to the bar, that from and after the present term, it will invariably require a clear and concise state of the case of each party, in an appeal, writ of error or supersedeas, with the points intended to be insisted on, signed by his counsel and printed, to be delivered to each of the judges of this court, time enough before the hearing, for his consideration, according to the act of assembly, passed January 9th, 1818; and it is further declared, that the court will take up no case without such statement, except in the cases indicated in the act,

1

"The constitution [Bill of Rights, § 11, (ante, p. 18, 19,)] declares, that the ancient trial by jury is preferable to any other, and ought to be held sacred.' It may be affirmed, that this mode of trial is never to be taken away by implication, or without positive words in an act of assembly. Laws for this purpose sometimes give the court an express power to proceed, without the solemnity of a jury; most usual to proceed upon motion in a summary way, by which the same thing is understood." Per Pendleton, J. in Watson et al. v. Alexander, 1 Wash. 356; and see Burke, adm'r v. Levy's ex'rs, 1 Randolph, 1. "The most usual trial of matters of fact is by twelve such [liberi et legales homines] men; for ad questionem facti non respondent judices: and in matters in law the

judges ought to decide and discuss; for ad questionem juris non respondent juratores." Co. Litt. [155 b]. In Bent v Patton et al. 1 Randolph, 37, Roane, J. remarked, that

we can never forget the great landmark, that ad questiones legis respondent judices ;" and in M'Williams v. Smith, 1 Call, 126, and Pendleton, J. in 1 Call, 517.

It is certainly the duty of the party asking an instruction, to express it with such certainty as may not mislead either the court or the jury. U. States v. Jones, 8 Peters,

415.

and fact, their verdict involves a decision on both. Yet this is not of necessity. The jury may find a special verdict, or reserve some question of law for the decision of the court. If not, the parties may by a demur. rer to the evidence, bring the whole law of the case before the court; or, may move to exclude inadmissible evidence; or, for instructions to the jury as to any point of law, arising out of the facts in the cause. But here, the court, while exercising its unquestioned privilege of declaring the law, must be very careful not to overstep the line which separates law from fact. Any assumption of a fact, as proved; any opinion as to the weight, effect, or sufficiency of the evidence submitted to the jury, will be an invasion of their province. Any application tending to elicit such opinion, should be overruled. So, if the counsel in the question submitted to the court, involve fact with law, and demand the opinion of the court on both, the motion may, without error, be overruled. Per ibid. deliv. opin. ct. and the case reversed. And see The U. Tillotson, 12 Wheat. 180; Van Ness v. Pacard, 2 Pet.

S. v.

An instruction by the court, that the facts proved are not conclusive evidence, does not amount to an instruction as to the weight of evidence, because it leaves the whole matter open to the jury. Dabney v. Taliaferro, 4 Rand. 256; Bogle v. Sullivant, 1 Call, 560. There is nothing better settled with us, than that the court cannot properly influence the judgment of the jury, as to matter of fact, by giving their opinion upon it; and that to do so, is erroneous; yet in criminal, as well as in civil cases, the court is at liberty to instruct the jury as to the intent, legally to be inferred from the facts alleged, in case the jury should be of opinion, that the facts are proved. Pr. Green, J. in Strib bling v. The Bank of the Valley, 5 Rand. 158.

Where there is no evidence tending to prove a particular fact, the court, when requested, are bound so to instruct the jury; but the court cannot legally give any instruction, which shall take from the jury the right of weighing what effect the evidence shall have. Greenleaf v. Birth, 9 Peters, 292. So to instruct the jury, and thereby decide on the sufficiency of the testimony, would violate the well established principle, that the law is referred to the court, the fact to the jury. Scott v. Lloyd, 9 Peters, 445-6; Chesapeake and Ohio Canal Co. v. Knapp & al. 9 Peters, 541, 567-8.

If the prisoner call on the court to give a specific instruction to the jury, and the court refuse to give it in the precise form asked, but give it with such modifications as the

court believe to be legal and proper, there is no error, for the court may at all times instruct the jury on any question of law arising in a cause, if, in its opinion, justice shall so require, though it be not asked by either party. Thompson Blount jr.'s case, gen'l ct. July T. 1834, 4 Leigh, 689.

The result of Mr. Hargrave's examination of the respective provinces of judge and jury, is, that the immediate and direct right of deciding upon questions of law is intrusted to the judges; that in a jury it is only incidental; that in the exercise of this incidental right, the latter are not only placed under the superintendence of the former, but are in some degree controllable by them; and therefore that in all points of law arising on a trial, juries ought to shew the most respectful deference to the advice and recommendation of judges. Co. Litt. [155 b.] (5).

And Jay, C. J. in charging the jury, in the case of The State of Georgia v. Brailsford et al. 3 Dall. 4, said—" It may not be amiss here, gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it may be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law, as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully within your power of decision." See ante, p. 125, 126, notes (xx) (zz)

The counsel, in a case of misdemeanour, (ex gr. case under the act against gambling,) has no right to argue to the jury against the opinion of the court expressed on a point of law, during the trial. The deft. thinking himself aggrieved, must resort to the court of error. The Com. v. Wm. Garth, general court, 24th Nov. 1827. Opn. court deliv'd by judge Summers. [Before the end of the term, the court agreed to reconsider this case.]

If the prisoner move the court to instruct the jury as to the law, he cannot argue the correctness of the instruction given, though it be contrary to his prayer. Alfred R. Davenport's case, gen'l court, Nov. T. 1829. Semple and May, Jus. dissenting, 1 Leigh, 588.

In a criminal case, on the trial of a question of fact before the jury, where the evidence is all on the side of the commonwealth, and unimpeached; though the court is of opinion that it is clear and distinct, as to the fact charged, and cannot be varied by argument, it cannot prevent the counsel for the accused from arguing the question of

fact before the jury. Harrison Ward's case, gen'l court, July T. 1831.

Of the weight of testimony, the jury, and not the court, are exclusively and uncontrolably, the judges. Ross v. Gill et ux. 1 Wash. 90; Keel et al. v. Herbert, 1 Wash. 203; Blincoe v. Berkeley, 1 Call, 412; Whitacre v. M'Ilhaney, 4 Munf. 313.

Proved or not proved,-is a question exclusively for the jury. Crabtree v. Horton, 4 Munf. 59; Maddox v. Jackson, Ibid. 462; Taylor v. Williams, 2 B. & Adol. 845.

Illegal, or improper evidence, ought never to be confided to the jury, however unimportant it may be to the cause; for if it should have an influence on their minds, it will mislead them; and if it should have none, it is useless, and may at least produce perplexity. Lee v. Tapscott, 2 Wash. 281; 1 Munf. 291; 2 Munf. 174. [See tit. BILLS OF EXCEPTIONS, and notes, p. 81, 82.

It is the right and the duty of a judge

sitting in a criminal trial, to instruct the jury as to the law, if he think it proper to do so; and no law prescribes any particular time at which the instruction shall be given. Gwatkin v. Com. 9 Leigh, 678.

On a trial for murder, the court instructs the jury that though they "should believe the prisoner committed the homicide under the influence of immediate intoxication, or the effects of a previous habit of intoxication upon his temper, yet if the intoxication or the effects were not such, or to such a degree as wholly to negative the legal inference of malice, implicd by law from the character and circumstances of the act, and absence of, or slightness of the provocation," they should find him guilty of murder in the second degree: Held, an instruction upon the sufficiency and weight of evidence, and error for which judgment against the prisoner must be reversed. S. c.

(a) It seems agreed, that wherever the let ter of the common or statute law requires that a juror should have a freehold, the meaning is fully satisfied, by his having the use of a freehold; and that it is not material whether he hath it in his own or his wife's right, or whether it be absolute or upon condition, or an estate of inheritance, or only for the term of one's own or another's life, so that it be in the same county, wherein the suit is brought, and actually continue in

the juror till the time when he was sworn. Haw. B. 2, c. 43, § 13, and the authorities there cited.

H. B. conveyed by deed of trust, all his real property, for the benefit of one of his creditors; the day of payment had passed, but the trustee had not sold the property, and H. B. continued in the possession and enjoyment thereof. Thus situated, is H. B. a freeholder within this section? By the gen. ct. Nov. T. 1822. In conformity

with the doctrine laid down in Co. Lit. 272 b. that though in strictness of law the freehold in the aforesaid land may be vested in the trustee of the said H. B. yet under an equitable construction of this section, he is not thereby disqualified from serving on a grand jury. Com. v. Wm. Carter, 2 Virg. Cas. 319; and see The King v. St. Michaels, 2 Doug. 631; The King v. Inhab. of Edington, 1 East. 293; 7 Wm. & Mar. c. 25.

It seems that one who has contracted by articles under seal, to sell his land, but has not yet conveyed it by deed, and therefore still holds the legal title, is a freeholder qualified to serve on a grand jury. Reynold's case, 4 Leigh, 645; and see Wm. J. Kerby's case, gen'l ct. Dec. T. 1836, a case in which vendee in possession contesting the title of vendor, held disqualified. In this case the vendee, refused to accept the deed tendered, and had injoined a judgment on his bond, on the ground of defect of title. The court held, that the juror having declined accepting the title tendered, and having instituted a suit questioning the title, could not be considered a freeholder; and that it would be inconvenient to impose on the courts the necessity of deciding in criminal causes, in a collateral way, the qualification of jurors resting on mere equitable title, when the juror was not satisfied to accept the legal title tendered to him. 7 Leigh, 747.

To indictment found in S. county, in September 1838, prisoner pleads in abatement that J. R. one of the grand jurors was not a freeholder. On the trial of the issue joined on this plea, it appears that the only land to which J. R. at the time of finding the indictment had title, was a parcel in S. containing 691 acres, formerly part of a large tract lying mostly in S. but partly in W. county; in which latter county the whole tract was offered for sale in 1815, for arrears of taxes, but was not sold, and those taxes remained unpaid on the 1st July 1838: that in 1834, the owner conveyed the whole tract to a trustee, upon trust that if certain debts specified in the deed should not be paid within 6 months, the trustee should sell the land and pay those debts; but under this deed no sale was ever made: that in 1837, the grantor in the trust deed sold and conveyed to J. R. the 691 acres, of which J. R. immediately received possession, and remained in possession at the time he was sworn as a grand juror. Verdict for commonwealth; and motion to set the verdict aside held to have been properly overruled. Moore v. Com'th, 9 Leigh, 639.

Where an indictment is found by a grand jury, one of whom is an alien, or otherwise disqualified by law, the indictment (and so with a presentment,) may be avoided by plea; and this by force of the common law.

The Com. v. Cherry, gen'l ct. Nov. T. 1815, 2 Virg. Cas. 20. That is obviously, any petit juror. Reporter's note to Cherry's case, 2 Virg. Cas. 25. See post. No. 13.

On the first day of a circuit court, a grand jury is impannelled and sworn, and proceeds in the discharge of its duties; but on the next day, it is discovered that one of the jurors wants legal qualification, on which the court discharges him, and orders another to be sworn in his place: Held, this was regular, and the grand jury duly constituted for legal action, after it had been thus perfected. The Commonwealth v. Burton, 4 Leigh, 645. A person may serve on a grand jury, in England, although he is not a freeholder, all the judges being of opinion that it was not positively required by law, that the grand jury should be freeholders. Case presented by Mr. Justice Lawrence to the twelve judges, May 31st, 1810. Russell & Ryan's Cro. Cas. 177. See stat. 22d June 1825, 6 Geo. 4, c. 50, § 1; and see The People v. Jewitt, 6 Wend. 386.

(2) A naturalized citizen of the United States, or a native citizen of any other state of the Union, domiciled in Virginia, being entitled to all the privileges of this state, is a citizen and qualified as such, to serve as grand jurors. Towle's case, 5 Leigh, 743.

The fact, that a grand juror is the owner of a mill, may be pleaded in abatement to a presentment made by the grand jury of which he was a member. And it is proper to admit such plea, although the defendant had put in a plea in abatement on which issue was joined, at the time of tendering the second plea. Com. v. B. Long, jun. gen. ct. Nov. T. 1822, 2 Virg. Cas. 319.

Pleas in ABATEMENT, ante, p. 131; Com. v. Sayers, gen'l ct. June T. 1837, 8 Leigh, 722, adj'd from cir. ct. of Tazewell. S. indicted for disturbing a congregation assembled for religious worship. S. appeared and tendered (among others,) a plea in abatement. That some of the G. J. who found the indictment, were not freeholders; the attorney for the commonwealth objected to its reception, because it was not verified by oath or affirmation. Qu. adj'd.-Ought pleas in abatement, offered in the trials for misdemeanours, to be sworn to? Opinion of the gen'l ct.-There is no ground for confining to civil cases the provision, (ante, p. 129, 130, No. 2, § 33,) that no plea in abatement shall be received, unless the party offering the same, shall prove the truth thereof, by oath or affirmation; for, by reference to the Stat. at Large it appears that this provision was taken from the § 39 of act Dec'r 1788, for establishing district courts, which act regulated the jurisdiction of those courts in both criminal and civil cases, and that said § 39, was extracted from the act of 1753, reducing into one act, &c., and established a gen'l