¶1The opinion of the Court was delivered by
¶2Objections are made to the record of the Circuit Court as insufficient. These objections cannot prevail. *69In the first place, they were interposed too late, having been made, in the first instance, on the hearing of the cause on the merits. An objection to the brief, or record of the Circuit Court, is a preliminary matter. Defects of that nature can only be taken advantage of by special motion, upon notice to the opposite party of the nature of such objection. In the next place, the defects claimed are not substantiated nor pointed out with sufficient distinctness to enable this Court to judge of their character, whether substantial or frivolous.
¶3The various matters presented by the brief, as the record of proceedings in the Circuit Court upon a motion there for a new trial, are unimportant here. It was not necessary that the application for a new trial, so far as it was based on matters of law aloue, should be made, in the first instance, to the Circuit Court. Such matters come properly before us by appeal without previous application to the Circuit Court. The motion before us .comes up upon the record of the proceedings upon the trial of the cause, which, in the present instance, presents the single question, whether there was error in the charge and rulings of the Judge materially prejudicial to the appellants.
¶4The charge complained of was : “ That there was no testimony to support the first cause of action.” This is objected to on two grounds : first, as in effect charging the jury upon matters of fact; and, second, that it was erroneous.
¶5The Constitution (Art. IV, Sec. 26) declares: That “Judges shall not charge juries in respect to matters of fact, but may state the testimony and declare the law.” Considering, together, the parts of this Section, it is quite clear that its sole intention was to prevent Judges from forcing upon the juries their own convictions as it regards matters of fact. The juries are the judges of such matters, and cannot properly look to the Court for a controlling view of the proper conclusions of fact, nor can the Court, on the other hand, employ its influence over the minds of jurors to force upon them its conclusions in such cases.
¶6Stating the evidence means more than repeating it. It includes the idea of placing it in its logical relation to the propositions which it is adduced to support or contradict, as well as to the principles and rules of law by which its bearing and force ought to be controlled.
¶7To say that there is no evidence bearing on an issue does not con*70flict with the duty imposed on the Judges by the Section of the Constitution just cited. On the contrary, a ruling of that character is one involving strictly matter of law. It is the province of the Court to determine whether there is any evidence bearing on an issue; the jury can only determine the force of such matters as are submitted to them by the Court as matters of evidence proper to the issue.
¶8It will not be material to look into the evidence to see whether the conclusion of the Court, that there was no evidence bearing on the first cause of action, as stated in the complaint, was correct, for that alleged cause of action, as stated, is incompetent to support a verdict or judgment. If this conclusion is correctly drawn, then the matters of the ruling'in question are wholly immaterial, and need not be considered by us.
¶9The language of the first cause of action is as follows:
¶10“ 1. That on the-day of February, 1870, the defendants injuriously and unlawfully made a distinction, on account of the color and the supposed race of the above named Julia A. Bedding, so as to damage, and actually damaging, the standing, comfort and happiness of the above named plaintiff.”
¶11This is put forth as a distinct and independent cause of action, and contains no averment in any way connecting the facts alleged with the various matters narrated under the second cause of action. It cannot be regarded as forming part of the matters stated under the second cause of action, and intended to point or aggravate the wrong there alleged, for the form of statement, and the absence of any recitals of fact that can serve as a link to connect it with the matters Set forth in the second cause of action precludes such a conclusion. It must, therefore, be considered as complete in itself, and it must be judged by its allegations independently of any other part of the complaint. The ground of injury alleged is, that defendants “ made a distinction,” as it regards color or race. In what this distinction consisted is not stated ; nor does the law attach an idea to the making of a distinction as the ground of an injury sounding in damages. The alleged damage to standing, comfort and happiness cannot, therefore, be ascribed to any injury known to the law as such. If the plaintiff were denied or disturbed in the enjoyment of any right on the ground of her color or race, constituting an actionable injury, the nature of the right, and the wrong and injury done to it, should have been stated. In the absence of *71such allegations the first cause of action presents nothing of an actionable character.
¶12The appeal must be dismissed.