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2 Md. 75

Brown v. Ellicott

Court of Appeals of Maryland

Decided June 15, 1852

Court of Appeals of Maryland · decided 1852-06-15

<p>.Instance of a prayer made to the court liable to the objection, that it took from the jury a fact which was to be found by them, and cannot be assumed by the court.</p> <p>Whether a wharf, in the city of Baltimore, was a public wharf, or not, is a question of fact, which the court ha3 no right to take for granted, although the testimony, if credited, may seem clearly to establish it.</p> <p>The cases of Regan vs. Gaither, 11 G. Sf J., 479, and Grove vs. Brien’s Exc’r, I Md. Reports, relied on as explaining the law.</p>

Decided 1852-06-15

Le Giiaxd, C. J.,

¶1delivered the opinion of the court.-

¶2We discover no error in the refusal of the-county court to grant the instruction asked by the defendant.

¶3The hypothesis of the prayer was, that the plaintiff was not entitled to recover for wharfage, because, the wharf alluded to in the proof was a public wharf, and yet it look the fact, whether it was a public wharf, from the finding of the jury.

¶4*82We do- not deem it proper to intimate, whether or not the theory-of the prayer is correct, it being clearly defective- in the particular to whieh we-have referred. Reagan vs. Gaither, 11 Gill and Johnson, 479. In the case-of the Charleston Insurance and Trust Co. vs. Corner, 2 Gill, 426, ’7, the Court of Appeals say :• “Doubtless the jury would have found these facts according to- the testimony, but the sufficiency of evidence to satisfy a jury, or the circumstance, that it is all on one side, does not authorise the court to direct the jury that it proves the fact. They have the power to refuse their credit, and no action of the court should control the exercise of their admitted right, to weigh the credibility of evidence.” See*, also, Grove vs. Brien, Ex’cr, &c., December term, 1851.

¶5 Judgment affirmed.

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