Fine's Adm'r v. Cockshut

6 Va. 16

• Court: Court of Appeals of Virginia
• Decided: April 15, 1806
• Status: Published

Opinions

TUCKER, Judge.

The appellant’s counsel insisted, that it was the province of the jury to decide upon the interest, and that the court had no right to instruct them concerning it. But the act of assembly is a law to both ; and M’Call v. Turner, 1 Call, 133, settles the principle on which the jury may deduct it, to wit, that the plaintiff was absent from the country, and had no agent here to whom payment could be made. Nothing of that sort, however, appears in the present case ; and, if there was any other ground upon which the deduction should have been made, the defendant ought to have shewn it. Besides, the bill of exceptions states the case inper-fectly, and therefore this court ought not to decide upon it. Barrett v. Tazewell, 1 Call, 215. I think, therefore, that the district court was right in directing the instruction to be given ; but as the county court had disregarded the former instruction, the cause ought not to have been sent back to them ; but should have been retained for trial in the district court. I am consequently of opinion, that the judgment of the district court ought to be affirmed, with a direction to retain the cause for trial before themselves.