#### ELISHA NASH vs. EUGENE MORTON.

Where a Judge, in the trial of a cause, undertakes to state to tho jury the remarks of counsel on one side, and does so in such strong and emphatic language as to give additional force to the counsel’s positions, and afterwards says to the jury, “it is a plain case, and that if they do not agree he will •detain them until Saturday night” Held that this is such a leading of the jury to a conclusion, as to amount to a violation of the Act of 1796.

Action on tlie case for a false warranty and for a deceit in the sale of a cask of French Brandy, tried before his Honor Judge Saunders, at the Fall Term, 1855, of Pasquotank Superior Court.

On the trial, it appeared that the cask of brandy in question, had been shipped from New York for some southern port, on hoard of a vessel which was wrecked on our coast and *4sunk in the water. The cask remained several days under wrater, but was finally removed from the vessel and carried on the beach.

John Etheridge, a witness for the plaintiff, testified that when the cask was brought out of the vessel, it was leaking badly in two places, and he plugged them up. That he examined the liquor and found it so much adulterated with salt water, as to be entirely worthless. That the defendant was there several times while they were getting up the cargo, acting as agent for a company who had insured the vessel, but did not know whether he was present when the cask in question was taken out. That the witness was present at the sale of the wreck-property by the commissioner of the district when this cask was sold among the other articles saved. That it was put up, and one Spencer bid about eighty dollars, when witness said to him in an audible voice—loud enough to be heard by the by-standers, “ do not bid, the brandy is salted and good for nothing,” whereupon he stopped bidding. Soon after this, defendant remarked, “ I cannot let this article go at this price, I will sooner bid it in for the Insurance Companies,” and thereupon it was knocked off to him for seventy-three dollars. The witness could not say whether the defendant heard his remark to Sj>encer, but knew that he was in the group.

The cask was afterwards forwarded by the defendant to Elizabeth City, and sold by his agent to plaintiff, for $265 : being the New York cost, deducting 10 per cent. Plaintiff did not see or examine the brandy previously to his purchasing it.

Tlxe agexxt of defendant, who made the sale to plaintiff, thinks from looking at the bills haixded to plaintiff, that he represented it as good brandy.

Tlxe-brandy was proved to be entirely worthless. Several witnesses for the defexidant, proved that plaintiff was present oxx some of the days of this sale, but did not remember that he wras there when the cask was sold. Some of them were in the group when the cask was sold, but did not hear the remark of Etheridge as to the quality of the liquor.

*5There was evidence going to show that plaintiff was present at the sale on the beach, and had equal opportunity with the defendant of ascertaining the condition of the brandy.

The plaintiff’s right to recover was resisted:

1st. Because defendant had no knowledge of the condition of the brandy; nor reasonable ground to suppose it had been injured.

2nd. Because if he had any knowledge or information on the subject, the sources of such knowledge and information were equally open to the plaintiff, and that in point of fact, plaintiff had as much knowledge and information of this fact as the defendant,, and he contended, upon either view he was not entitled to recover.

His Honor told the jury, that if the remark made by the . witness, Etheridge, was heard by the defendant, and without disclosing- it to plaintiff, he had, by his agent, sold the brandy as good brandy, plaintiff would be entitled to recover. But that if the defendant did not hear the remark, or if he did hear it, and the plaintiff heard the same, and had all the information which the defondantpossessed, then, in either such event the defendant would be entitled to their verdict. And his Honor proceeded to say, “ It had been insisted for plaintiff that he could not have been aware of the condition of the brandy previously to the purchase, and been guilty of the folly of giving a fair price for a good article for one which was worthless. But that defendant’s counsel replied to that, ‘ do you believe defendant, either, would have been such a fool as to buy for his principal, and make himself personally liable for practising a fraud, and that too, in a matter wherein he had no interest.’ That in another form of action, had the plaintiff given notice to the defendant not to pay over the purchase money, he might have recovered, as the article purchased was without value.”

The defendant’s counsel had not used the language referred to, though he had pressed that view of the matter in argument.

The jury withdrew, and after having- been absent some *6time, two of their number came from the jury-room into Court and announced that they could not agree, nor were likely to agree. Whereupon, his Honor remarked in a strong tone of voice, “ If you cannot agree one way or the other, in as plain a state of facts as. this is, I don’t say which way, it is useless to try causes in courts of justice.” He said- further, that he-should not discharge them if they stayed till Saturday, night., (This was on Wednesday.) The- same jury had been discharged on the day before, because they could not agree in another case. The two jurors withdrew, returning to the rest 'of the panel, and after being together a. short time, they all came in •with a verdict for the defendant.. For this charge, and for the remarks on the return of the jurors,' plaintiff’s counsel excepted. Judgment for defendant and appeal.

/Smith, for plaintiff.

Pool, for defendant..

Nash, Cl J.

It is objected in this case, that his Honor,, the presiding- Judge, in Id's charge to the jury, violated the-provisions of the-Act of 1Y96. We are constrained to say that, in our opinion, the- objection is well founded. • It is of ten difficult for a Judge to avoid so- expressing himself, as not to intimate to a jury, what his opinion on the- evidence is ~ and it is extremely difficult, very often, to say where duty stops and' wrong begins. Nor is it possible to lay down, upon, the subject, any distinct rule but that contained" in the Act itself—“ to state in a full and correct manner the facts given-in evidence and to- declare and explain the law arising thereon,” Hev. Stat. ch. 31, see. 35. A charge-, therefore, which indicates to a jury what is- the opinion of the court upon the-evidence, violates the Act. We all' know how earnestly, in-general, juries, seek to- ascertain the opinion of the Judge-trying the cause, upon the controverted facts, and how willing they are to shift their responsibility from themselves to the court. The governing object of the Act was to guard against such, results—to throw upon the jurors themselves the *7responsibility of responding to the facts of the case. Nor is it proper for a Judge to lead the jury to their conclusions on the facts. In the case, the State v. Shule, 10 Ire. Rep. 153, the Court say, “ there are the same objections to leading juries as to leading witnesses, and in fact, those apply with more force. The Judge is prohibited from intimating to the jury his opinion upon a question of fact.” ¥e are not ignorant of the difficulty, under which a Judge on the circuit often labors, in charging the jury, to avoid trespassing on the Act. But it is his privilege, if he becomes satisfied that he has so trespassed, to take back what he has said, and if he cannot, by so doing, restore the parties to their rights, he ought to grant a new trial.

Upon a careful examination of the' charge in this case, we are constrained to say, the Act of 1196 was violated. To the first part of the charge there is no exception. After stating the legal points in controversy, llis Honor proceeds' to state the grounds mainly urged, both for the' plaintiff and defendant—that the plaintiff’s counsel contended that the plaintiff could not have- been aware of the condition of the brandy before he purchased, and been guilty of the folly of giving the full price of a good article for one that was worthless; “but that the defendant’s counsel replied. to> that, do you believe the defendant, either, would have keen such a fool as to buy for his principal, &c.” The case states that the defendant’s counsel did not use the language attributedjo him. Now, we do not intend to say that, in stating the argument of counsel at the bar, it is the duty of the Judge to use the very language in which it was clothed/, but he should not state it in terms stronger and more emphatic. Here such language was used by his Honor. The question propounded in the charge was not that of the counsel but of the Court, and was calculated, not to mislead, but to lead the jury—an indication of what was the opinion of the Court upon the fact then in controversy, to wit: the knowledge of the defendant as to the worthlessness of the article sold.

Again, when the two jurors came into Court and stated the *8jury could not agree, his Honor, in a loud tone of voice, observed, “ If you cannot agree one way or another in as plain a state of facts as this is, I don’t say which way, it is useless to try causes in courts of justice.” And added that, “he would not discharge them if they stayed till Saturday night.” Whether the case was a plain one or not, is not before us. His Honor had no right to tell them it was a plain one. Our enquiry is, whether he intimated in his charge, on which side it was plain. His disclaimer came too late. He had already asked the jury, if they thought the defendant such a fool, &c. In stating the argument of the plaintiff’s counsel, he used no such strong language as when stating that of the defendant. Neither counsel had used the strong word ‘fool,’ as applicable to his client Why this difference ? Was it not a clear intimation of the opinion of his Honor and was it not well calculated to lead the jury ? We think it was.

For this error there must be a vemre de novo, and the judgment is reversed.

Per Curiam.

Judgment reversed.