Page:Federal Reporter, 1st Series, Volume 4.djvu/376

 363 FEDERAL EBPOBTEE. �take. The court may comment on the facts to aid the jury in reaching a just conclusion, but should be careful, in doing so, not to assume to decide the matter of fact itself. Farm- ers' Bank v. Harris, 2 Humph. 311 ; Burdell v. Denig, 92 U. S. 716; Life Ins. Co. v. Baker, 94 U. S. CIO. �The charge refused overlooks the proof for the plaintiff, and, calling the attention of the jury to the strong features in the defendant's favor, asks the court to say to the jury that there was deliberation in making the statement, and no inad- vertence or mistake. It is not competent for the court, where there is evidence tending to prove the entire issue, although it is conflicting, to give an instruction -which shall take from the jury the right of weighing the evidence and determining its force and effect. Weightman v. Washington City, 1 Black. 39, 49 ; Greenleafy. Birth, 9 Pet. 292; Crane v. Morris, 6 Pet. 698, at p. 617; Lucas v. Brooks, 18 Wall. 436. �It is very difScult in some cases to determine whether an instruction is on the facts or the law of a case, and its cor- rectnesa must depend on the phraseology used; but where the jury is instructed as to what their verdict shall be on the particular point, it is a direction on the effect that they shall give to the evidence. Tracey v. Swarto.ut, 10 Pet. 80. �A careful reconsideration of this charge strengthens the conviction I entertained at the time it was refused, that it is a partial statement of the facts, accompanied with an expres- sion of opinion by the court as to the effect of those partic- ular facts upon the general fact in dispute — namely, whether Mrs. Behr made her statement under oath deliberately, and without inadvertence or mistake. The charge was therefore properly refused. �The other errors assigned proceed upon the theory that the petition for divorce was an estoppel, and the court erred in not saying so to the jury. Undoubtedly the supreme court of Tennessee, in Hamilton v. Zimmerman, 5 Sneed, 40, 47, calls the principle which concludes a party by bis sworn statement erroneously, I think, when applied< to a case like this, an estoppel; and the subsequent cases, foUowing the language of that case, continue, to call it so. Cooley v. Steele, 2 Head, ����