#### JAMES HICE *vs.*JOHN WOODARD.

If a judge omits to charge upon a point presented by the evidence, it is no error, unless he is requested to give the charge. But, if he makes a charge against law, it is error, unless it be upon a mere abstract proposition, and it is apparent upon the whole case, that it could not have misled the jury.

Appeal from the- Superior Court of Haw of Yancy County, Fall Term 1850, his Honor Judge Dick presiding.

This was trover for four cattle. The plaintiff proved, that, in 1838, the cattle were levied on and about to be sold under an execution in favor of one Ray against one Lan-ders : On the day of sale, the cattle were brought to the muster ground, (the place appointed for the sale,) by the *294wife of Landers: She sold them to the plaintiff for the price of $30 75, which he paid to the officer and satisfied the execution, and then told her, she might take them home and use them, until he called for them.

The defendant proved, that in 1843, he, as a constable, held a judgment and execution against Landers, and levied on the cattle and sold ihem; and that the cattle had remained in the possession of Landers from the time they were taken home by his wife in 1838, up to the time of the levy. He also proved by Ray, that some time after Mrs. Landers had made the sale to the plaintiff, witness said to him, “ he doubted, if he had got a good title by his purchase from Mrs. Landers ;” plaintiff replied, “ he did not care, for his money had been paid back to him, or nearly so.” He also proved by one Metcalf, that the plaintiff told him “ Lan-ders had agreed to work for him, until the money advanced was repaid, and he wished witness to tell Landers, if he did not come and work, he would take the cattle away.”

The Court charged, “that the plaintiff acquired no title to the cattle by his purchase from Mrs. Landers, unless her husband had authorised her to sell at, or before, the sale, or had subsequently assented to it: That there was no evidence that he had authorised his wife to sell, at, or before, the sale ; *nor was there any evidence, that he had said any thing on the subject, after the sale :*That, if the jury believed from the testimony of Ray and Metcalf, that the plaintiff had entered into an arrangement with Landers, subsequent to the sale, that Landers was to work for the plaintiff, until his wages amounted to the price paid for the cattle, and they iurther believed, that Landers had done the work as agreed on — the plaintiff was not entitled to recover; how that was they were to decide from-the testimony of Ray and Met-calf, and the additional fact, that Landers had been in possession of the cattle from the time they were taken home until the levy by the defendant, a period of between four and live years.”

*295Verdict for the defendant,, and the plaintiff appealed.

*J. W. Woodfm,*for the plaintiff.

*Avery,*for the defendant.

PeaRson, J.

The only difficulty we have, is.to put,a construction upon the charge. If his Honor meant there was no evidence of a ratification of a sale, clearly there js error; for the testimony of Ray and Metcalf, and the fact that the wife took the cattle home, and the husband kept them in his possession for four or five years, was the.strongest kind of evidence. The structure of the sentence favors this construction — “ the plaintiff acquired no title, unless the husband had authorised his wife to sell at, or before, the sale, or had subsequently assented to it — there is no evidence that he authorised the sale, nor is there any evidence *that he subsequently assented to it.”*This is what the order of the sentence called for, and we are at a loss to conceive, why he used the words — “ that he had said any thing on the subject after the sale,” except on the supposition, that he considered them as meaning the same thing. This must be so, unless he meant to drop “ a part of the idea” and depart from the order of the sentence.

If the meaning is, that, to constitute a subsequent absent,, it was necessary he should *have said*something on the subject, after the sale — there is error; because an assent can be implied from *acts*as well as *words.*

But taking the words literally, there is error; for, there was evidence, that he had said something on the subject, after the sale. The defendant’s own witnesses prove, that the plaintiff and Landers had been talking on the subject.

It is suggested, that, in the latter part of the charge, a ratificatioii is assumed; and thus, all objection to the former part is removed. It is true, the jury are told, if they believe there was a subsequent agreement, that Landers should repay the price in work, and he did so, then the *296plaintiff is not entitled to recover. But here the charge stops; and in any point of view, in which the. case is presented, the plaintiff is *not entitled to recover.*Usually, when the jury are charged, that, if a certain fact is established, the plaintiff is not entitled to recover, it is implied, that otherwise he is entitled to recover. But, when this alternative branch of the proposition is required to' remove a ground of objection to a preceding part of the charge, it is necessary, that it should be expressed, and not be left to implication. In this case, if his Honor had gone on to say: “But, unless the defendant hag satisfied the jury, that Lan-ders did, in fact, repay the plaintiff by work, then he is entitled to recover5’ — the objection might have been removed. As it is, we think the plaintiff has good cause to complain of the manner in which thebase was put to the jury.

If a Judge omits to charge upon a point presented by the evidence, it is no erroi', unless he is requested to give the charge. But, if he makes a charge against law, it is error, unless it be upon a mere abstract proposition, and it is apparent upon the whole case, that it could not have misled the jury.

Per Curiam.' Judgment reversed, and *venire de novo*awarded.