Brown v. Ellicott

delivered the opinion of the court.-

We discover no error in the refusal of the-county court to grant the instruction asked by the defendant.

The hypothesis of the prayer was, that the plaintiff was not entitled to recover for wharfage, because, the wharf alluded to in the proof was a public wharf, and yet it look the fact, whether it was a public wharf, from the finding of the jury.

*82We do- not deem it proper to intimate, whether or not the theory-of the prayer is correct, it being clearly defective- in the particular to whieh we-have referred. Reagan vs. Gaither, 11 Gill and Johnson, 479. In the case-of the Charleston Insurance and Trust Co. vs. Corner, 2 Gill, 426, ’7, the Court of Appeals say :• “Doubtless the jury would have found these facts according to- the testimony, but the sufficiency of evidence to satisfy a jury, or the circumstance, that it is all on one side, does not authorise the court to direct the jury that it proves the fact. They have the power to refuse their credit, and no action of the court should control the exercise of their admitted right, to weigh the credibility of evidence.” See*, also, Grove vs. Brien, Ex’cr, &c., December term, 1851.

Judgment affirmed.