Mahoney v. Ashton

I concur in opinion with the chief justice. It is necessary for the administration of justice, that the boundaries limiting the jurisdiction of the court and the power of the jury, should be preserved inviolate; and I consider it tobe the indispensable duty of a good judge not to encroach on the province of the jury, nor to suffer the power and jurisdiction of the court to be invaded or trenched on.

It is the province of the jury to find facts, and the right of the court to declare the law arising on the facts found by the jury.

Facts which relate to the question of law to be decided by the court must be expressly found in a special verdict.

Circumstances, deductions and inferences, are not facts, but may be sufficient evidence to induce the jury to find the facts.

If the court could deduce or infer a material and essential fact, from facts found, it would be in their power, by deduction and inference, under the pretext that it was a necessary one, to make the fact upon which they are to declare the law.

The essential fact in this case, upon which the claim to freedom is made, is the following: that Joice, the ancestor, was in England; and that fact must be expressly found by the jury, and cannot be made out by the court by intendment. When that fact is found the question will arise for the decision of the court, whether such fact entitles the petitioner to freedom.

Facts must be found, and not the evidence of facts.

Demand and refusal is evidence of a conversion — ■ those facts found in a special verdict would not justify the court in inferring or finding a conversion; and it might be said those facts were such as to warrant the court in intending a conversion, because they amounted to a conversion.

The case of the heriot is a strong case to' shew the court cannot intend any fact to support a verdict.

A heriot is due from the heir upon the death of the ancestor holding under the Lord of a manor — a grant *215"was made to three for their lives, and upon the death of one of them the Lord claimed a heriot. The jury find, that the custom of the manor did not warrant a grant of an estate for three lives; which by the strongest necessary inference was finding a heriot was not due, for they found the grant void. But the court decided it must be expressly found.

The case of length of possession, from which a jury may and ought to presume a deed, if found in a special verdict, would not warrant the court in intending the fact that there was a deed. .

I am of opinion that the verdict is insufficient. But it is proper that a venire facias de novo should issue,

Dtivarr, J. having been counsel for the petitioner gave no opinion.

On motion of the petitioner’s counsel, the court directed the following entry to be made on the record: “That “ the fact that Joice was in England is not sufficiently and “ expressly found in the special verdict; and for as much “ as there was sufficient evidence disclosed at the trial' “ by which the jury might have found the fact expressly, “ the court order a venire facias de novo.”

The sole question at present for the determination of the court ie, have, the jury found, *214that Joice, under whom the petitioner claims his title to freedom, was in England.

The jury must find the facts. It is the province of the court to declare the law arising upon those facts; and if sufficient facts he not found, the court must dismiss the case.

I think the fact of Joice being in England is not found. [Here he stated the verdict.] Every word of tins verdict may be time, yet Joice may never have been in England.