Anderson and others vs. The State of Georgia.

a matter of fact, rather as direction than mere opinion, that the charge should be reviewed for misdirection." See Stell, Guardian vs. Glass, 1 Kelly R. 486, 487, and the authorities there cited. The judge in this case delivered his opinion as matter of direction, and the charge ought to be reviewed. We shall not however, acting upon a well established practice of this Court, send this case back, because holding as we do, that the defendant ought to pay interest it would do him no good. We must however, pronounce this a plain case of the invasion by the court of the province of the jury. In the State vs. Casados, 1 Nott & McCord, 98, Mr. Justice Cheves comments upon the power of the court over the facts in the following striking words: "It is the right and often the duty of the judge in the examination of questions of complicated facts, to give the aid of his discrimination, experience and judgment to the jury. If he finally and distinctly submits the question of fact to the jury as a matter within their peculiar province, and on which they have a right to determine for themselves, there can be no cause for this Court to interfere. There may be extreme cases which I hope will never exist, when a judge becoming insensible to the duties of his high station, may forget that impartiality which he is sworn to practice; a quality which graces whilst it strengthens the bench. If forgetting the duty of impartiality, a judge becomes a partizan, this Court must interfere, but it must not be on very light occasions."

In the United States vs. Fourteen Packages, Gilpin D. C. R. 257, it is held, "that it is no invasion of the privileges of the jury for the court to present to them its views of the nature, bearings, tendency and weight of the evidence."

I find no where this subject more satisfactorily discussed than by the Supreme Court in McLanahan et al. vs. The Universal Insurance Company, reported in 1 Peters, 182. I shall transcribe the views of Mr. Justice Story in extenso, because of their justness, because of the ability and purity of the man, and of the commanding authority of the court. The charge of the judge in this case was not more direct and unequivocal than Judge Merriwether's. It was "that upon the whole evidence in the case, the plaintiff's are not entitled to recover, and the verdict of the jury ought to be for the defendants." Judge Merriwether instructs the jury, "that under the facts in this case, they should allow interest to the plaintiff from the time of the receipt of the money by Anderson." The similarity in the two is very remarkable. The exception to the charg

Anderson and others vs. The State of Georgia.

the court in the case in 1 Peters was sustained, Mr. Justice Story among other things determining as follows: "It is doubtless within the province of the court in the exercise of its discretion, to sum up the facts in the case to the jury, and submit them with the inferences of law deducible therefrom to the free judgment of the jury; but care should be taken in all such cases to separate the law from the facts, and to leave the latter in unequivocal terms to the jury, as their true and peculiar province. We do not understand however, that the present instruction was in fact, or was intended to be, merely in the nature of advice to the jury; it is couched in the most absolute terms, and imposed an obligation upon the jury to find a verdict for the defendant; it assumed there were no disputable facts or inferences proper for the consideration of the jury upon the merits, and that upon the unquestioned facts the plaintiffs had no legal right to recover." I concur in these just and plain principles beautifully expressed, and see no reason why the opinion of the learned justice, so strikingly alike are the two, may not apply as well to Judge Merriwether's charge as to that which he had under review.

Let the judgment of the Court below be affirmed.

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT OF THE STATE OF GEORGIA,

AT HAWKINSVILLE,

JUNE TERM, 1847.

No. 57.-RICHARD WAYNE, trustee et al. plaintiffs in error vs. AUGUSTUS MYDDLETON, defendant in error.

[1.] William Pelot conveyed by deed certain slaves to Levi S. D'Lyon, in trust, for the sole and separate use of his wife Elvina Pelot, during her life, and after her death to her children. The deed authorized the cestui que trust, Mrs. Pelot, by and with the advice and consent of her trustee, to sell and dispose of the trust estate whenever she shall deem it proper to do so, and to re-invest the proceeds upon like trusts. Mrs. Pelot purchased from Augustus Myddleton a tract of land, the growing crop thereon, and also the stock of cattle, and hired the services of three negroes belonging to Myddleton till the close of the year, to asssist in the crop, for the sum of $1,476. Two notes were given by her for the amount, which were to be secured by a mortgage on the four slaves embraced in the trust deed, and by a mortgage on the land. Held, that it was competent for Mrs. Pelot to make this contract.

This was a bill for a specific performance, instituted by the plaintiffs in error, against the defendant in error, in Chatham Superior Court, and tried before Judge FLEMING. May Term,

1847.

William Pelot conveyed by deed certain slaves to Levi S. D'Lyon, Esq. in trust, for the sole and separate use of his wife Elvina R. Pelot, during her life, and after her death to her children. There are several children in life; and the deed authorized the cestui que trust, Mrs. Pelot, by and with the advice and consent of her trustee, to sell and dispose of the trust estate whenever she shall deem it proper to do so, and to re-invest the proceeds, &c.

Wayne, Trustee and others vs. Myddleton.

upon like trusts. Mrs. Pelot, being desirous of purchasing a small farm near Savannah, contracted with Augustus Myddleton for it, with the approbation of her trustee, at the price of $800. The growing crop, stock, cattle, &c., and the hire of three negro slaves belonging to Myddleton, to assist in the crop till the close of the year, were included in the contract, and all amounted to $1,476. No cash was to be paid down, but the payment was to be secured by a mortgage on the four slaves in the trust deed, and also by a mortgage of the land. To consummate the agreement, Mrs. Pelot gave her two notes for $738 each, and also a mortgage on the four slaves owned by her as separate property, which said mortgage was also signed by her trustee. When the title to the land from Myddleton, and the mortgage from Mrs. Pelot and her trustee were exchanged, they were found to be defective; the title made by Myddleton was returned to him, and it was agreed that the title should remain in Myddleton until the notes were paid, as the mortgage which had been made to him had, by mistake, omitted the land. The crop, cattle, &c., and the services of the slaves, all valued at $676, were received by Mrs. Pelot by the consent of her trustee, and the land taken possession of by her. Upon failure to pay the first note, Myddleton foreclosed the mortgage, and sold the slaves in the manner required by law, and received therefrom the net amount of $851 89, which being insufficient to pay the debt, he commenced an action of ejectment against the tenant of Mrs. Pelot for the land. Whereupon the cestui que trust, Elvina R. Pelot, and her then trustee, the plaintiff in error, filed their bill against Myddleton, to compel him to execute titles to the land.

Upon the trial of this bill, the Court below, upon the foregoing facts, charged the jury as follows:

The charge is given entire, it having been reduced to writing by the presiding judge.

"GENTLEMEN OF THE JURY:

"The first question to which I call your attention is the question, how far the separate property of a married woman is liable for any contracts or debts created by her during her coverture. Before stating my views on this subject, however, it is perhaps proper to notice one idea that has been advanced by counsel. That idea is, that the question above stated cannot arise in this ise, inasmuch as Mrs. Pelot has no separate property under

Wayne, Trustee, and others vs. Myddleton.

the trust deed to Mr. D'Lyon-that it is the property of herself and children. On turning to that deed we find that the property is conveyed "in trust to and for the sole and separate use, benefit and behoof, of Mrs. Elvina Rosalie Pelot, and after her decease to such child or children as she may have living at the time of her death." Do not these terms convey to Mrs. Pelot a life estate in this property, and is it not by its very terms a sole and separate property? I am clear in the opinion that Mrs. Pelot had a separate property in these negroes during life, with remainder to her children living at the time of her death, and I so charge and instruct you.

"And now the question presents itself, how far this separate property is liable for any contracts or debts created by her, during her coverture. At law, gentlemen, she can make no contract binding her person or property; in equity, however, remedy may be had against her separate estate. And even in equity, remedy will not be granted unless it appear that it was her intention to charge her separate estate. But it is not necessary that this intention should be expressed upon the face of the contract; this intention may be implied from circumstances. And just here is the great difficulty in all cases in which this question arises. What are the circumstances which will be deemed sufficient proof of this intention? It has been held, and I think correctly held, that if a married wo'man, having a separate estate, executes a bond, makes a note, accepts a bill, she must be supposed to have designed a charge upon her separate estate, since in no other way could the instruments thus made by her have any validity or operation. 2 Story Eq. Jur. 776.

"If the above acts standing alone, is proof of such intention, the additional fact that she has procured the consent of her trustee, certainly does not weaken that proof, on the contrary it greatly strengthens it. And if the making of a note is proof of such intention, then surely the giving a mortgage of the trust property to secure that note, adds very much to the weight of that proof; and if the trustee gives his assent to the mortgage, it seems to me that the proof becomes irresistible and overwhelming. Your opinion of the facts in this case gentlemen, will of course control you in the application of these principles in making up your decree.

The other points made in this case by complainants' counsel, depend entirely upon the question, what was the contract between these parties? It has been argued that the trustee had no power