¶1The evidence given by the plaintiff to the jury was competent and pertinent to the issue; it should not have been ruled out or withdrawn from the jury. If the court, supposing it all true, were of opinion it fell short of establishing a legal right in the plaintiff to recover, it had a legal right to order a non suit. Having made such an order, it should have enforced it. The refusal of the plaintiff to submit, was a contempt of the order, and might have been punished as such; but that refusal conferred upon the court no authority to withdraw competent evidence from the jury, or to give the jury direction what facts were established by the evidence. It is the province of the jury to try facts. In this case, if the cause was submitted to the jury, it was upon their oaths to try the facts upon the evidence, ánd not to register the finding of the court on the facts. The court may express an opinion-on the facts to the jury, but has no authority to order a jury how to find facts of which they alone are the judges. If the jury were to find a verdict, the evidence should have been left to them. For this error, the judgment is reversed with costs.
¶2The argument, that there was no corporal touch, proved in the levy, is too nice for our perception.
¶3Let the cause be remanded, to be reinstated for further proceedings.