Hammond, D. J.
The errors assigned on this motion are that the idea of estoppel was carefully excluded from the jury; that the conclusiveness of the sworn statement was made to depend wholly upon whether or not the plaintiff had been guilty of the offence of wilful and deliberate false swearing, and the court refused to explain, as asked by the instruction, what is meant by “inconsiderately” and “by mistake” making a false statement. It seems to me that so much of the instruction as sought to explain the meaning of the words “deliberately,” “inadvertently,” and “by mistake” is asking the' court to take from the jury certain questions of fact in the case, and to determine them as a matter of law. It is certainly charging the jury upon the vreight of the testimony, and expressing an opinion by the court that, under the circumstances stated in the instruction, the sworn statement was amde deliberately, and not inconsiderately and by mis[362]*362take. The court may comment on the facts to aid the jury in reaching a just conclusion, but should be careful, in doing so, not to assume to decide the matter of fact itself. Farmers’ Bank v. Harris, 2 Humph. 311; Burdell v. Denig, 92 U. S. 716; Life Ins. Co. v. Baker, 94 U. S. 610.
The charge refused overlooks the proof for the plaintiff, and, calling the attention of the jury to the strong features in the defendant’s favor, asks the court to say to the jury that there was deliberation in making the statement, and no inadvertence or mistake. It is not competent for the court, where there is evidence tending to prove the entire issue, although it is conflicting, to give an instruction which shall take from the jury the right of weighing the evidence and determining its force and effect. Weightman v. Washington City, 1 Black, 39, 49; Greenleaf v. Birth, 9 Pet. 292; Crane v. Morris, 6 Pet. 598, at p. 617; Lucas v. Brooks, 18 Wall. 436.
It is very difficult in some cases to determine whether an instruction is on the facts or the law of a case, and its correctness must depend on the phraseology used; but where the jury is instructed as to what their verdict shall be on the particular point, it is a direction on the effect that they shall give to the evidence. Tracey v. Swartout, 10 Pet. 80.
A careful reconsideration of this charge strengthens th’e conviction I entertained at the time it was refused, that it is a partial statement of the facts, accompanied with an expression of opinion by the court as to the effect of those particular facts upon the general fact in dispute — namely, whether Mrs. Behr made her statement under oath deliberately, and without inadvertence or mistake. The charge was therefore properly refused.
The other errors assigned proceed upon the theory that the petition for divorce was an estoppel, and the court erred in not saying so to the jury. Undoubtedly the supreme court of Tennessee, in Hamilton v. Zimmerman, 5 Sneed, 40, 47, calls the principle which concludes a party by his sworn statement erroneously, I think, when applied to a’ case like this, an estoppel; and the subsequent cases, following the language of that case, continue to call it so. Cooley v. Steele, 2 Head, [363]*363605, 608; Tipton v. Powell, 2 Cald. 19, 23; McCoy v. Pearce, Thomp. Cas. 145, 148; Seay v. Ferguson, 1 Tenn. Ch. 287; Ament v. Brennan, Id. 431; Nelson v. Claybrook, (Jackson, 1880,) MSS. not yet reported.
Bat all these eases show that it is not an estoppel, because, with one accord, they say that, “if made inconsiderately or by mistake, the party ought certainly to be relieved from the consequences of his error.” Now, the distinguishing feature of an estoppel is that under no circumstances can it be averred against; it is not susceptible of explanation and often speaks against the truth, and for this reason has been regarded as odious. It was given that name “because a man’s own act' or acceptance stoppeth or closoth up his mouth to allege or plead the truth.” Bigelow, Estop. 44. Such a sworn admission may become an estoppel, as it may, whether sworn to or not, if parties act on it, or would be prejudiced by it; and, perhaps, in cases where no explanation can be given, and the party is caught in deliberately attempting to cross himself in swearing two contrary ways about the same fact, it may, in one sense, be called an estoppel to hold him to his first oath and not permit him to gainsay it. But this very ease shows that it is misleading to call it so, and because it has been done we are now asked to predicate more upon the name given than is justified by the cases so much relied on, and to extend the principle settled by them far beyond what the supremo court ever intended.
It would make a most odious estoppel to forever hold a party to a falsehood, whether any one has been injured by it or not. After all, it is only a question of the force and effect of the petition for divorce as a part of the proof, and when once it is admitted that, under any circumstances, the contrary can be showm, it cannot be called an estoppel; and it seems to me to be giving the adverse party an unfair advantage to call it so, and likely to mislead the jury to the detriment of one who may be innocent of false swearing. In deference to these cases, which have established a rule of evidence binding on this court, as well as all others in Tennessee, I charged the jury that the plaintiff here was bound [364]*364by her oath unless sbe could, show, to tbe satisfaction of the jury, that she had not wilfully made a false oath in the first instance. This is all that the cases cited mean, in my opinion, and all else that is claimed for them is based upon an inference drawn from the use of the word “estoppel.” I have found'none, and doubt if anjr cases elsewhere will support the doctrine that a man is ever bound by a false oath so that he cannot show the truth as between himself and others who are strangers, and have been neither injured nor prejudiced by the original falsehood.
The general rule elsewhere is not in accordance with the Tennessee cases. 1 Greenl. Ev. §§ 210-212. But in the charge I gave to the jury I have followed the cases strictly in all except calling the principle enunciated an estoppel. It is immaterial by which name it is called, perhaps, but more was sought to be implied from the word than the eases themselves justified, and it seemed to me necessary to discard it as misleading. In view of what was actually said to the jury on the subject, it seems to me that no error was committed of which the defendant can complain.
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Hammond, D. J.
The errors assigned on this motion are that the idea of estoppel was carefully excluded from the jury; that the conclusiveness of the sworn statement was made to depend wholly upon whether or not the plaintiff had been guilty of the offence of wilful and deliberate false swearing, and the court refused to explain, as asked by the instruction, what is meant by “inconsiderately” and “by mistake” making a false statement. It seems to me that so much of the instruction as sought to explain the meaning of the words “deliberately,” “inadvertently,” and “by mistake” is asking the' court to take from the jury certain questions of fact in the case, and to determine them as a matter of law. It is certainly charging the jury upon the vreight of the testimony, and expressing an opinion by the court that, under the circumstances stated in the instruction, the sworn statement was amde deliberately, and not inconsiderately and by mis[362]*362take. The court may comment on the facts to aid the jury in reaching a just conclusion, but should be careful, in doing so, not to assume to decide the matter of fact itself. Farmers’ Bank v. Harris, 2 Humph. 311; Burdell v. Denig, 92 U. S. 716; Life Ins. Co. v. Baker, 94 U. S. 610.
The charge refused overlooks the proof for the plaintiff, and, calling the attention of the jury to the strong features in the defendant’s favor, asks the court to say to the jury that there was deliberation in making the statement, and no inadvertence or mistake. It is not competent for the court, where there is evidence tending to prove the entire issue, although it is conflicting, to give an instruction which shall take from the jury the right of weighing the evidence and determining its force and effect. Weightman v. Washington City, 1 Black, 39, 49; Greenleaf v. Birth, 9 Pet. 292; Crane v. Morris, 6 Pet. 598, at p. 617; Lucas v. Brooks, 18 Wall. 436.
It is very difficult in some cases to determine whether an instruction is on the facts or the law of a case, and its correctness must depend on the phraseology used; but where the jury is instructed as to what their verdict shall be on the particular point, it is a direction on the effect that they shall give to the evidence. Tracey v. Swartout, 10 Pet. 80.
A careful reconsideration of this charge strengthens th’e conviction I entertained at the time it was refused, that it is a partial statement of the facts, accompanied with an expression of opinion by the court as to the effect of those particular facts upon the general fact in dispute — namely, whether Mrs. Behr made her statement under oath deliberately, and without inadvertence or mistake. The charge was therefore properly refused.
The other errors assigned proceed upon the theory that the petition for divorce was an estoppel, and the court erred in not saying so to the jury. Undoubtedly the supreme court of Tennessee, in Hamilton v. Zimmerman, 5 Sneed, 40, 47, calls the principle which concludes a party by his sworn statement erroneously, I think, when applied to a’ case like this, an estoppel; and the subsequent cases, following the language of that case, continue to call it so. Cooley v. Steele, 2 Head, [363]*363605, 608; Tipton v. Powell, 2 Cald. 19, 23; McCoy v. Pearce, Thomp. Cas. 145, 148; Seay v. Ferguson, 1 Tenn. Ch. 287; Ament v. Brennan, Id. 431; Nelson v. Claybrook, (Jackson, 1880,) MSS. not yet reported.
Bat all these eases show that it is not an estoppel, because, with one accord, they say that, “if made inconsiderately or by mistake, the party ought certainly to be relieved from the consequences of his error.” Now, the distinguishing feature of an estoppel is that under no circumstances can it be averred against; it is not susceptible of explanation and often speaks against the truth, and for this reason has been regarded as odious. It was given that name “because a man’s own act' or acceptance stoppeth or closoth up his mouth to allege or plead the truth.” Bigelow, Estop. 44. Such a sworn admission may become an estoppel, as it may, whether sworn to or not, if parties act on it, or would be prejudiced by it; and, perhaps, in cases where no explanation can be given, and the party is caught in deliberately attempting to cross himself in swearing two contrary ways about the same fact, it may, in one sense, be called an estoppel to hold him to his first oath and not permit him to gainsay it. But this very ease shows that it is misleading to call it so, and because it has been done we are now asked to predicate more upon the name given than is justified by the cases so much relied on, and to extend the principle settled by them far beyond what the supremo court ever intended.
It would make a most odious estoppel to forever hold a party to a falsehood, whether any one has been injured by it or not. After all, it is only a question of the force and effect of the petition for divorce as a part of the proof, and when once it is admitted that, under any circumstances, the contrary can be showm, it cannot be called an estoppel; and it seems to me to be giving the adverse party an unfair advantage to call it so, and likely to mislead the jury to the detriment of one who may be innocent of false swearing. In deference to these cases, which have established a rule of evidence binding on this court, as well as all others in Tennessee, I charged the jury that the plaintiff here was bound [364]*364by her oath unless sbe could, show, to tbe satisfaction of the jury, that she had not wilfully made a false oath in the first instance. This is all that the cases cited mean, in my opinion, and all else that is claimed for them is based upon an inference drawn from the use of the word “estoppel.” I have found'none, and doubt if anjr cases elsewhere will support the doctrine that a man is ever bound by a false oath so that he cannot show the truth as between himself and others who are strangers, and have been neither injured nor prejudiced by the original falsehood.
The general rule elsewhere is not in accordance with the Tennessee cases. 1 Greenl. Ev. §§ 210-212. But in the charge I gave to the jury I have followed the cases strictly in all except calling the principle enunciated an estoppel. It is immaterial by which name it is called, perhaps, but more was sought to be implied from the word than the eases themselves justified, and it seemed to me necessary to discard it as misleading. In view of what was actually said to the jury on the subject, it seems to me that no error was committed of which the defendant can complain.
The fact that the jury were told that they could not look to the proof at large unless they acquitted the plaintiff of any intentional and wilful false swearing, it is argued, called for a trial as if upon an indictment for perjury, and the jury were led to believe that they would, by finding against her» substantially fasten upon her the odium of perjury or false swearing, and were thereby led to prejudice the defendant’s case by giving more effect to the plaintiff’s proof than they should have done, and less to that of the defendant than they would have done if they had been told that they must simply determine whether she had made the oath deliberately and with full knowledge of the facts, or under circumstances showing that she made it inadvertently or by mistake.
There is much force in this objection to the charge, and it illustrates the inconvenience of applying .the analogy of estop-pel to the mere., process of weighing testimony. The cases -cited all show that there is a preliminary question to be tried, namely, whether there was an innocent mistake made. It is [365]*365to be determined whether the party shall, in obedience to public policy, be precluded from contradicting his original oath. He is not to be so precluded unless he has, deliberately and with full knowledge, taken the oath without inadvertence or mistake on his part. If he has done this he cannot contradict or offer proof of others to contradict it. It is in the nature of a penalty, and a very serious one, for false swearing. It seems to me plain that it is proper to say to the jury that, in trying this question, they must find a wilful and deliberate false swearing to justify them in inflicting it. Nothing less should work the serious consequence of closing the plaintiffs mouth, so that, although her husband had been, in fact, a drunkard for only a year, for example, she must stand by her false statement that he had been such for four years, and thereby lose a policy to which there is no defence if she could show the truth.
The charge given is a necessary result of the doctrine invoked, and the law of these cases, in my opinion, requires that this conclusiveness of the false oath shall not obtain unless the public policy against false swearing requires it. I sought to avoid the effect complained of in the charge, by telling the jury that after they liad determined the preliminary question in favor of the plaintiff, they would then look at the admission under oath as an admission of great weight, and determine the force and effect of it in behalf of the defendant. The charge is very favorable to the defendant in that respect, and I think the jury understood that after they had tried the question of wilful false swearing, they should give the petition for divorce the fullest weight it was entitled to as an admission by her going to prove the defendant’s case. I have no doubt from the proof that the plaintiff did make a mistake in swearing that her husband had been a drunkard four years, and think it is fairly proved that he was a temperate man when he took out the policy. The proof is not so clear as to the extent of his subsequent habits, lint the jury has found that they did not impair his health or produce delirium tremens, and I am satisfied with the finding, as also upon the issue of suicide.
[366]*366It is plain, therefore, that in this liase the plaintiff, in her petition for divorce, made statements which were not true, yet would defeat her recovery on this policy. It not is difficult to apply the rule of public policy, call it ap estoppel if you will, to a case where the principle of protecting the courts against 'false swearing is called for by the facts developed; but, on the other hand, when the proof tends to show an unfortunate misstatement of the facts, it becomes a matter of serious concern to so direct the jury that they shall not hold the party to the misstatement without a clear case which calls for such punishment. On the whole, I am satisfied with,the verdict, and overrule the motion for a new trial.