#### M’Rae v. Scott & Saunders.

October, 1826.

Instructions — Hatters of Fact.* — The instruction of a Court to the jury ought not to involve matters of fact as well as of law.

Appeal from the Superior Court of Chesterfield county.

Scott & Saunders, surviving partners of the late firm of Lyle, Scott & Saunders,, brought assumpsit against M’Rae, for the amount of certain goods taken up by the defendant at tne store of the plaintiffs.. The defendant *pleaded non assumpsit, and the jury rendered a verdict for the plaintiffs. Judgment was given accordingly.

At the trial, the defendant filed a bill of exceptions, stating that at the trial the defendant introduced a witness to prove, that in the latter part of the year 1812, the defendant being engaged at a game of cards, with Saunders, one of the plaintiffs, and others, he, the defendant, won of the said Saunders $215, which was then received;that all gaming ceased thereafter between the said parties, and there was no further gaming at that time between any other-persons; that some time after the gaming-between the parties was over, and they had left the card table, (about the space of a quarter of an hour,) but before the company broke, and in the same room, the said Saunders applied to the defendant for the loan of money, which the defendant positively refused; but the said Saunders replied, that it was hard that the defendant should be indebted to the firm of Lyle, Scott & Saunders, and would not lend him? nor pay them; that the defendant then *195said, he would pay to Lyle, Scott & Saunders what silver he had about him, if he. Saunders, would promise to credit him on their books; that the money, ($215,) was paid, and Saunders promised that he would enter the credit in the books of Lyle, Scott & Saunders, the next morning. CTpon this evidence, on the motion of the plaintiffs, the Court instructed the jury that the said $215 so won of, and so paid to Saunders, does not entitle the defendant to a credit therefor against the plaintiffs in this action. 1. Because this paying and receiving back the money lost by Saunders, is to be regarded in the same light as if the promise to give credit had been made direct for the money lost. 2. Because the money to received by Saunders was for his own use, and not for the concern. 3. Because the said sum of $215 might have been recovered by Saunders of the defendant; and having so received it back, he was not bound by his promise to give the credit in the ‘company’s books.

To this opinion the defendant excepted, and took an appeal.

The case was submitted.

*

Instruction — Matters of Fact. — In Richmond & D. R. Co. v. Noell, 86 Va. 24, 9 S. E. Rep. 473, it is said; “It is a fundamental m axim that the court responds to questions of law. and the jury to questions of fact. The court must decide on the admissibility of evidence, that being-a question of law: but not as to its weight after it is admitted, that being a question of fact: and the decided cases, says Mr. Conway Robinson, evince a zealous care to watch' over and protect the legitimate powers of a jury.. They show that the court must be very careful not to overstep the line which separates law from fact. They establish the doctrine that when the evidence is parol, any opinion as to the weight, effect or sufficiency of the evidence submitted to the jury, any assumption of a fact as proved, will be an invasion of the province of the jury. 1 Rob. Pr. 338; Cornett v. Rhudy, 80 Va. 710; McDowell v. Crawford, 11 Gratt. 402; Bart. Law Pr. 214; Baring v. Reeder, 1 Hen. & M. 174; Moore v. Chapman. 3 Hen. & M. 266; Whitacre v. M’Ilhaney, 4 Munf. 310; *McRae v. Scott, 4 Rand.*(Va.) 463; Davis v. Miller, 14 Gratt. 1; Hopkins v. Richardson, 9 Gratt. 485.” To the same effect the principal case is cited in Cornett v. Rhudy, 80 Va. 716; Tyler v. C. & O. R. Co., 88 Va. 394, 13 S. E. Rep. 975.

Por further information on this subject, seemonographic *note*on “Instructions” appended to Womack v. Circle, 29 Gratt. 192.

October 20.

The PRESIDENT

delivered the opinion of the Court.*

The objection to the instruction of the Judge to the jury, which is stated in the bill of exceptions, is, that it involves matter of fact which ought to have been left to the jury. Whether paying the money loet at play by Saunders, one of the plaintiffs, to the defendant, and his receiving it back, under the circumstances stated in the bill of exceptions, was to be regarded, (as was said by the judge,) in the same light as if the promise had been made directly for the money lost, was matter to be deduced or not, by the jury, from the evidence. So also, whether the money received by Saunders, was for his own use, and not for the firm. If for the firm, his promise to credit in the books, the next morning, was not a void promise, as stated by the Judge; although, as regarded the money *lost*at play, he had his remedy against the defendant, under the statute against gaming.

The judgment is therefore to be reversed, the verdict to be set aside, and further proceedings had therein; in which the instruction given is to be refused.