#### JOHN L. TERRELL vs. GIDEON WIGGINS.

If the chaTge of the Judge to the jury be correct, .or be such that the party against whom a verdict is found cannot complain of it, a misr take of the jury in finding a verdict without evidence, or against evidence, or against the law, can be corrected only by the Judge presiding at the trial, and cannot be revised by the Supreme Court upon an appeal.

■This was an action of Assumpsit, tried at Franklin, on fhe last .circuit, before his honor Judge Nash.

On the trial,- the plaintiff proved that a judgment before a justice of the peace was granted against one Brown and the defendant, who was the surety of Brown in a joint bond or note not expressing any suretyship on its face; that the plaintiff stayed the judgment, and afterwards paid the same. It also appeared, that some months after the judgment was given, and -after the stay ;was out, the now plaintiff requested the plaintiff in that judgment to give him the paper, and as he lived near Brown,, he would collect the debt out of him; Jhat several months afterwards, the judgment being applied for by a constable, in order to collect it for the plaintiff in the judgment, the now plaintiff gave it to him, but requested him to see the plaintiff in the judgment, and get him to grant indulgence to Brown until the succeding autumn, when Brown would be able to pay, observing at the same time, the plaintiff knows I am able; that about two weeks after-wards, the constable, going to make his levy on Brown’s property, was informed by the now plaintiff, that Brown had confessed a judgment to him during the interval, and he had seized Brown’s property, under the execution; that Brown’s property was accordingly sold to satisfy the now plaintiff’s demand, and that Brown had all along before that time, property enough in possession to satisfy the judgment stayed by Terrell, the now plaintiff. On this state of-facts, the defendant contended that Terrell having himself prevented the collection of the debt from'Brown, was not entitled to recover from the defendant. The plaintiff contended that he was the surety both of Brown and the defendant — that both were *173principals as to him; and that he was entitled to what he had paid to satisfy the debt of the defendant.

His Honor being of opinion that the plaintiff was the surety as well of the defendant as of Brown, instructed the jury to find for the plaintiff. The jury retired, and after some time returned into Court and asked the Judge whether fraud must be proved or might be inferred? to which his Honor replied, that the jury were at liberty to infer any thing which the facts would properly warrant; but, nevertheless, directed them that if they believed the evidence in the case, they were bound to find a verdict for the plaintiff. The jury gain retired, and after some time, returned with a verdict the defendant. A new trial was moved for, on the ground that the verdict was against law and the instructions of the court; but his Honor, holding the verdict to agree with the substantial merits of the cas.e, though apalnst^iaiariniitriictions. and the strict legal merits, declineddist^ly’t^«efect .■ The plaintiff’s counsel then objectaj| fSfetthe instrirexi®is the jury that they might infer fraud||ra|^ri^|^|^r| culated to mislead the jury, notwitf^nMingme general rection to find on the evidence for e¿yed a new trial on that ground, which Imng refused, an^’udgment given for the defendant, the plaxlTtM^t^^aíed. The case was submitted without argument by

W. H. Hayioood for the plaintiff, and

Badger for the defendant.

Ruffin, Chief Justice.

The jury could not have beep misled to the prejudice of the plaintiff; for the charge of the Judge was as explicit as if; could be, in favour of the plaintiff. There was, therefove, no error on the part of the court — . at all events, of which the plaintiff can complain. Then, as to error, or rather mistake of the jury in finding a verdict without evidence, or against evidence, or against the law; it can, if it exist, be corrected only by the Judge presiding at the trial, and as has been often, decided, is beyond the reach of this court. Goodman v. Smith, 4 Dev. 450—Bank of Newbern v. Pugh, 2 Hawks, 389.

Per Curiam. Judgment affirmed.