Heath v. Biddle

Coulter, J. The court below answers the first three points of the plaintiff in error in the affirmative, and refer the fourth to the jury, as presenting a mixed question of law and fact. We cannot say that the evidence of abandonment was so flagrant as to justify the court in pronouncing- it such. In all cases when the circumstances leave room for doubt, the jury is the proper tribunal to decide: Forster v. McDivit, 5 W. & S. 359; and in Wilson v. Watterson, 4 Barr, 219, it is observed, by the judge who delivered the opinion of the court, “ Some cases may be so strongly and indelibly marked, either by continuous absence, and suffering the improvement to return to its wild state, or by the declarations and acts of the party, as to justify -the court in deciding as a matter of law on the question; yet in a majority of the cases which occur, there is such a mixture of motive, intent, and circumstances, as to make it a matter properly referable to the jury and the facts and circumstances disclosed by the evidence in the present ease, afforded precisely the exigencies indicating the jury as the proper forum in the two decisions referred to. On this subject of abandonment, the instruction of the court is definite and clear. [His honour here stated the charge.] We perceive no error in this instruction, and I feel quite free to say that the evidence, in my judgment, fully warranted the jury in finding a verdict under it for the defendant. Judgment affirmed.