¶1The opinion of the court was delivered by
¶2The court have not been able to perceive . . how the question of variance, attempted to be raised, becomes important under the state of the pleadings presented. The court, indeed, expressed an opinion to the jury, that some such kind of contract, as that set up, was proved beyond question. This alone might lead the jury to infer that there was no necessity that the plaintiff should prove the same contract declared upon, which most undeniably would be necessary under the special counts alone.
¶3But it is to be observed, that this portion of the charge, taken in connection with the other matter submitted by the judge, would by no means justify the conclusion, that the plaintiff could recover short of proving the identical contract declared upon. And had such been the language of the charge, it would be no ground of reversing the judgment.— The declaration contained the common money counts; and the special count, as well as the proof, only tended to show that the plaintiff had advanced his money at the defendant’s request and for his benefit, upon a promise of being reimbursed in a particular manner at a day certain. That time having expired, it became on the part of the plaintiff a mere right to recover the money, and there was no necessity of declaring specially.
¶4The other portions of the charge, as originally given, do not seem to be objectionable. After the jury returned into court not agreed, the court did express to them a distinct opinion that the plaintiff was entitled to recover. But the court did not express this as matter of law. If such had been the charge, it would have been erroneous ; but the court merely gave to the jury their opinion upon the evidence, and returned them to a further consideration of the case. Whether the court express an opinion to the jury upon the weight of evidence, is always a matter of discretion, and seems to be governed, almost altogether, by practice. In many of the American states it is the constant practice for the judge to express such opinion, in the first instance, before the jury retire. Such practice, it is evident, must tend very much to bias the determination of the jury, and has not usually obtained in this state, at least, in the state courts.
¶5But that provision in our statute, by which courts are authorized to return the jury to a second and third consideration of *30the case, when the court “judge that the jury have mistaken the law, or the evidence material in the issue, or have not paid proper attention thereto,” seems to presuppose that the court may, in such cases, express to the jury their opinion upon the evidence. It is true that the jury may adhere to their first opinion, and, when they do, the verdict must be received,“and the court are prohibited by statute from granting a new trial on the ground of any difference of opinion as to matter of fact, between the court and jury.
¶6If the jury are made aware of their right and duty to pass upon the evidence, upon their own responsibility, we do not consider it sufficient ground for reversing the judgment, on writ of error or exceptions, that the judge expressed his opinion upon' the weight of evidence, either before the jury retired or after they returned into the court, “not agreed.” The latter case would seem more to justify such a course than the former. In many cases it might be the duty of the judge so to do, and we ought, perhaps, to presume such was the fact in the present case.
¶7Judgment affirmed,