#### URIAH WELLS vs. W. P. CLEMENTS AND W. W. CLEMENTS.

A Judge, in instructing a jury upon the trial of a cause, has a right to tell them that there is no evidence bearing upon a question presented in the case; but he has no right to tell them that the evidence adduced, (there being some evidence,) is not sufficient to warrant them in finding one way or the other.

It is improper in a Judge below, to send up depositions containing exceptionable matter, with a statement that, “ only such parts of the said depositions were read as were admissible evidence," without designating what part he deemed admissible, and what otherwise.

This was an action of assumpsit, tried before bis Honor, Judge Hick, at the Fall Term, 1855, of Northampton Superior Court.

The plaintiff declared on a special contract in assumpsit, and also on the common counts, and the question below was whether certain mill-irons, which had been procured by one William B. Jackson from the plaintiff, and which were used on the defendants’ mill, were properly chargeable to the said Jackson, or to the defendants, the owners of the mill. The plaintiff alleged, 1st, that Jackson was the agent for the defendants in making the purchase ; 2ndly, that the goods came to the possession of the defendants, and were used by them, thereby confirming the act of Jackson. The plaintiff, in support of his case, read various depositions. That of one Morton., who proved that the defendants bought of him, through the agency of Jackson, a circular saw for the same mill, and Jackson sent word, through witness, to Wells, the plaintiff, to fit the axles he was making, to the saw. Jackson bought this saw and other materials for this mill, which were charged to the defendants and paid for by them. Witness knows that the saw .was used, (for complaint was made of it, and another sent in its jfiace,) and that Jackson worked as a millwright on defendants’ mill. That of one Lilly, proves that be was a clerk at plaintiff’s foundry, and that the articles were furnished as charged. The charge was first entered against Jackson, hut afterwards, on conversing with him, it was *169changed so as to be against the defendants. Witness applied to W. P. Clements, who referred him to his brother, W. W. Clements, as the business or managing partner, who made no objection to the bill, but said Jackson was the man to be seen about it. Jackson Avas supposed to be insolvent, and had gone to a distant country.

Two other depositions of agents of the plaintiff, prove that the orders were given for the articles by Jackson for Dr. Clements’ mill, and so entered in the order book; one of them, Poe, swears that the credit was given to the defendants, and not to Jackson.

The plaintiff, on the trial, introduced his day-book, in which it appeared that the articles were there charged to the defendants.

In the statement sent up by his Honor, is this clause, “ only such parts of said depositions Avere read as Avere admissible evidence, the defendants objecting to all other portions of the same.”

“ The Court intimated to the plaintiff’s counsel, that supposing all their evidence to be true, there was not sufficient to Avarrant the jury in finding that Jackson Avas the agent of defendants, and authorised by them to purchase the goods from the plaintiff; nor Avas there sufficient evidence that the goods ever came to the possession of the defendants, and were used by them.”

The plaintiff, in submission to this intimation, suffered a non-suit and appealed.

Attorney General, for plaintiff.

Moore, for defendants.

Battle, J.

It is a matter of regret that, from the manner in which this case comes before us, Ave cannot decide the question which was intended to be presented for our determination. That question is, whether there was any testimony given on the trial, proper to be submitted to a jury, in favor of the plaintiff’s claim. The bill of exceptions states that *170several depositions were read to the jury, and sets out the depositions in full, as part of the case; but adds, that only such parts of said depositions were read as were admissible evidence, the defendants objecting to all other portions of the same.” What parts were read, and what portions were objected to and rejected, we are not informed. The Court, however, “ intimated to the plaintiffs’ counsel, that, supposing all their evidence to be true, there was-not sufficient evidence to warrant the jury in finding that Jackson was the agent of the defendants, and authorised by them to purchase the goods from the plaintiff; nor -was there any sufficient evidence, that the goods ever came to the imssession of the defendants, and were used by them.” Whereupon the plaintiff submitted to a judgment of non-suit and appealed. Now, if there were any proper and relevant testimony to be submitted to the jury, his Honor erred in taking the case from them ; for, under the Act of 1796, (1 Rev. Stat. ch. 31, sec. 136; Rev. Code, ch. 31, sec. 130,) it was their exclusive province to pass upon its sufficiency, without any intimation of opinion thereon from the Court. The language of his Honor implies that there was some such testimony, for he does not say that there was no evidence, but only, there was no sufficient evidence. It is true, that if there were no evidence, then we might uphold the decision, upon the ground, that the word “sufficient” was used inadvertently, and could do no harm; but that cannot be, because the whole of each deposition is set out in the bill of exceptions, without any statement of what part was read and what part was rejected, except only the general allegation, that such “ parts only were read as were admissible evidence.” Now, it is clear, upon reading the depositions, there are certain portions of them, which, if permitted to be considered by the jury, would tend to establish the issue in favor of the plaintiff. If then, they had been read to the jury, with instructions from the Court, that the jury should tako into consideration such parts of them only as were competent, and must reject the residue, it would be manifestly erroneous. We think it equally objectionable and erroneous for the *171Judge to intimate to the counsel that certain portions of testimony were competent, and the residue not, without specifying what he deemed admissible, and what not. Such a course is an attempt to impose upon the apjiellate tribunal, the duty of deciding a question, without letting it know what the question is. This is an error apparent upon the bill of exceptions, for which the judgment of non-suit must be set aside, and a venire de novo awarded.

Pee Curiam.

Judgment reversed.