¶1 There is only one question presented, for our consideration by the record in this case: The counsel for the defendant asked bis Honor to charge the jury, that the plaintiffs could not recover at all, because they had failed to • prove their readiness and ability to pay the quarter’s rent in advance at the time they were entitled to the occupation of the premises.
¶2 In questions of this character it is often a difficult matter for a Judge on the trial of a case to draw the line between defect of evidence and slight evidence; yet such a distinction exists, and should be observed as far as practicable: Cobb v. Fogleman, 1 Ire. 440. Where there is amj relevant evidence, the Judge, on the trial, should submit it to the jury, that they may pass upon its sufficiency. If he submits a material fact to the jury, as to which there is no evidence, it is erroneous; for when the law does not presume a fact, it must always be sustained by proof at the trial: Brown v. Patton, 13 Ire. 446; Wells v. Clements, 3 Jon. 168.
¶3 We have examined the record in this case with care, and concur' in the opinion of his Honor, that there was some evidence as to the question submitted, to the jury. They have found the facts to be as alleged by the plaintiffs.
¶4 The jury are the arbiters in such matters, and the judgment must be affirmed.
¶5 Pee Cueiam. Judgment affirmed.