DELANY against ROBINSON, 2 Whart. 503

Gibsojv, C. J., delivered the opinion of the court. The only error committed in the course of the trial, was the admission of any part of the defendant’s credits. Nothing can be clearer than that there was not colour of consideration for Mrs. Delany’s agreement not to exact the bond, if the property for the price of which it was given, were taken for her late husband’s debt.

The promise, being gratuitous as well as executory, could not be enforced; and the defendant cannot legitimately complain of the part exclusion of what was wholly inadmissible, The inference of payment from lapse o'f time, is a presumption of law, and a subject of legal direction. Every jurist, whether judge or text writer, treats of it as such. The rebuttal of it by circumstances left to the jury for the truth of the fact only, is also for the court. In what respect was it treated otherwise at the trial ?

The judge directed that the testimony of a particular witness, if true in •fact, rebutted the presumption of payment in point of law; and that as there was no evidence in the cause which purported to contra.dict him, the question depended on his credibility, which was left to the jury. That was undoubtedly the point presented by the testimony. The argument for a new trial seems to be rested on a supposed invasion of the jury’s province in saying what was evidence and what was not.

Tt is certainly not only the right but. the duty of the judge thus to discriminate for purposes of admission or exclusion; and it is difficult to imagine why he may not do so in summing up.

It will not be pretended that a jury may find capriciously and without the semblance of evidence, or that the court may not set aside their verdict for palpable error of fact; and if it may subsequently unravel all they have done, why may it not indicate the way to a wholesome conclusion in the first instance 1 The superior fitness of a jury to determine facts has lately been so vaunted, that for a judge to open his lips in respect to the weight of testimony, is sometimes frowned upon as a grievance: and the supposed practice of British judges in this particular, is not only put in advantageous contrast with our own; but set forward as the true exponent of the constitutional injunction, that trial by jury shall remain as heretofore.

The framers of the constitution, however, we must suppose, took for their model the trial by jury that had theretofore existed in America, without regard to the fluctuations of foreign practice. Beside, it is hazarding little to say that a British judge is not the beau-ideal of judicial delicacy in’ respect to the business of the jury ; nor can he well be when so pressed by the exigencies of despatch as to be frequently compelled to non-suit a plaintiff on his own exhibition of the facts. .

In no country, I must take leave to say, is evidence examined more cautiously, or with a nicer regard for the rights of the jury, than in our own. As to the superior qualifications of a juror for the determination of facts, it will scarce be pretended that an unpractised mind can be more accurate in its operations than one which has been trained to habits of discrimination by the comparison of circumstances, and whose experience in any other pursuit, would have led to peculiar skill.

Yet this mode of trial has decisive advantages over every other; but they are not those that are usually attributed to it by its eulogists. They consist mainly in its publicity, in the popular knowledge of the laws which it disseminates, and in the confidence inspired by popular agency in their Administration; and they are undoubtedly so great that civil liberty would not long survive it. But an arbitrary license, on the other hand, would be equally fatal to its usefulness as an instrument of justice in the particular cause.

It will be found that counsel who - aré most jealous of judicial interference, are those w'ho are most dextrous in the manipulation of evidence. It is doubtléss unpleasant to the advocate, to have the impressions made by an ingenious speech, effaced by the mechanical but accurate process of the judge who follows him; but it is to be remembered that what is lost by it to the advocate, is gained to justice, which is the superior object of. protection.

Without this process of judicial review, causes would frequently be determined, not according to their justice, but according to the comparative talents of the counsel. To hold the scales of justice even, a judge may fairly analyze the evidence, present the questions of, fact resulting from it, and express his opinion of its weight, leaving the jury, however, at full and entire liberty to decide for themselves. The judge who does no more than this, transcends not the limits of his duty. Rule discharged.