Shewmake v. Executors of Jones

Harris, J. 1. The whole matter in this cause, arising upon the devise of a plantation and the fixing of its boundaries, being exclusively one of fact and for the determination of the jury, and such fact being found against the complainants and upon testimony enough to support the verdict, we cannot, upon either principle or precedent, be justified in interfering with this verdict by granting the new trial asked. 2. The accidental omission by the presiding Judge over the trial, to give in charge the requests made by complainants •counsel, does not furnish a sufficient grouhcl for a new trial. If the counsel making the requests, was present when the [103] jury was instructed, perceiving that his requests had not been noticed, it was his province and ¡duty to have called the attention of the Judge to the omission. Had this course been pursued and the Judge either refused or failed, then, if the request was pertinent and one to which complainant was entitled, such refusal or failure would have furnished a ground of exception. Judgment affirmed. *