Gray rs. Belden.-Opinion of Court.

ture reflection that it was not justified by sound principles even before the passage of our statute above mentioned, unless the facts were fully and distinctly admitted. And we are clearly of opinion that such mode of charging is by that statute now clearly prohibited.

The Supreme Court of Iowa, in the case of Frederick vs. Gaston, 1 Green's Reps., 403, 404, said: "It is very evident to us, that the Court instructed the jury upon questions of fact, which we think the Court ought never to interfere with in jury trials. At common law, it is true, (Say the Court,) the facts and testimony were taken up in this order by the Judge, and placed in review before the jury, and the practice was frequently carried to such an alarming extent that the jury became mere machines in the hands of the Court, to reflect back a verdict, which the Court would more than intimate, by a particular reference to and application of the facts;" and after noticing that, in many States of the Union, it is the practice of the Courts to charge the jury upon the facts, say-"But, in this State, the Legislature, to protect the people against any such interference of the Court, upon matters of fact submitted to the jury, and to secure to the parties a just and perfect trial, have passed a law, by which the Courts are confined to instructing the jury upon questions of law." The statute provides that the District Court, in charging the jury, shall only instruct them as to the law of the case, (citing Revised Statutes, page 475, sec. 35,) and adding—“The only safe rule is to confine the Courts to the law;" and in this sentiment we fully agree with that Court, and we deem it very important that the boundaries between the power of the Court and the province of the jury should be distinctly preserved. In the case of the King vs. The Dean of St. Asoph, Lord Mansfield observed, "That the fundamental definition of trial by jury depended upon the universal maxim, Ad questionem juris respondent juratores, ad questionem, facti non respondent judices;'" and his Lordship added, “Where a question can be severed by the form of the pleadings, the distinction is preserved upon the face of the record, and the jury cannot encroach. upon the jurisdiction of the Court-where, by the form of the pleadings, the two questions are blended together, and cannot be separated, upon the face of the record, this distinction is preserved by the honesty of the jury. The constitution trusts that, under the direction of a Judge, they will not usurp a jurisdiction that is not their province.

Gray vs. Belden.-Opinion of Court.

They do not know, and are presumed not to know, the law-they are not sworn to decide the law-they are not required to decide the law. It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have the power to do wrong, which is a matter entirely between God and their own consciences." 21 Howard's State Trials, 1039, 1040.

Mr. Hargrave, in a note to Coke on Litt,1551, after a dissertation on the subject, marked with his usual refined learning, states the result to be, "that the immediate and direct right of deciding upon questions of law is entrusted to the judges-that in a jury, it is only incidental—that, in the exercise of this incidental right, the latter was not only placed under the superintendence of the former, but are in some degree controlled by them, and therefore, that, on all points of law arising on a trial, juries ought to show the most respectful deference to the advice and recommendation of the judges." 2 Wynne Eunomous. Bushell's case, 6 Howard's State Trials, 999, 1008, 1013, 1014. Vaughan Rep., 135, S. C. Franklin's case, 17 Howard's State Trials, 625. The King vs. Woodfall, 5 Burrow, 2661. To all this we freely assent; but the principle here asserted by Lord Mansfield is to be taken in connection with what is said by the same learned judge and distinguished jurist viz: "That the fundamental definition of the trial by jury depends upon a universal maxim, which is without exception; though a definition or maxim without exception, it is said, is hardly to be found, yet his Lordship considered this to be a maxim without exception-Adquestionem juris non respondent juratores ad questionem facti, non respondent judices.'" Worthington on Juries, 131, 132. "That declaration in our books, Ad questionem facti, non respondent judices, ad questionem legis, non respondent juratores,' taken literally (says the author,) is true; for if it be demanded what is fact, the Judge cannot answer it." Worthington on Juries, 129, 130, 27 Law Library, 42, 43.

Our statute was doubtless passed for the same purpose as that of Iowa, to secure to the parties a full and perfect trial, without interference of the Court upon matters of fact, and preserve the purity of jury trials. We have deemed it advisable to say this much upon this subject by way of protestando ex abundanti cautela, lest, hereafter,

Strong vs. Willis.-Points decided.

at any time it should be said that we had assented to doctrines which tend to sustain a course of proceeding, not in accordance with the provisions of our statute above mentioned, which, in our opinion, governs the Courts of this State, upon the subject we have had occasion to consider. [Note.]

JASPER STRONG, APPELLANT, VS. GEORGE WILLIS, ET AL. APPEL

LEES.

A trustee cannot renounce, after having accepted the trust, but must execute the provisions of the trust deed.

A deed of trust conveying property to trustees, for the sole and separate use of the grantor's wife and children, free from the debts of the grantor, secures the property so conveyed against the debts and claims of the trustees executing the deed, and accepting the trust. A trustee executing such a deed and accepting the trust, cannot assail it as fraudulent, and subject the property to the payment of a debt due to himself from the grantor. An attempt to do so is a breach of trust-he cannot be both trustee and assailant of the trust deed.

Jasper Strong field his bill in the Circuit Court of Escambia County, against George Willis, Mary B. Dallas, Alexander J. Dallas, Jr., Byrd C. Dallas and Henrietta C. Dallas, alleging and setting forth-That, in the summer of the year 1838, he entered into a verbal contract with Alexander J. Dallas, since deceased, whereby it was agreed that he should erect and finish a dewelling house for the

NOTE-Judge Baltzell requests the Reporter to state, that the foregoing opinion was not submitted to him, nor was, it considered in conference with the Judges. Several weeks after the principal opinion was delivered by him as the judgment of the Court, the Chief Justice produced and read in open Court, the foregoing as the opinion of himself and Judge Lancaster, and this was the first time Judge B. saw it. He does not (he states) feel called upon to express his approbation of, or dissent from, the views taken, which he might have done, if the opportunity had been afforded him, according to the regular action of the Court. If the majority disagree with the sentiments or views expressed in an opinion, their course (in the opinion of Judge B.) is to recall and correct it. But they are concluded from dissent, after allowing an opinion to be read in Court as their judgment.

The Reporter would add, that there is no difference between the two opinions upon the only question in the case that is, whether the contract sued on was usurious or not.

Strong vs. Willis.--Statement of Case.

said Dallas on lot number 276, in the City of Pensacola; that he should keep an account of the expense of the work and materials furnished, and that said Dallas should pay him for the same, upon the completion thereof; that this contract and agreement were fully executed on his (complainant's) part, at an expense of upwards of six thousand dollars; that on the thirty-first day of December, 1838, a deed of trust was executed by the said Dallas, in behalf of his wife, Mary B. Dallas, and his children, the said Alexander J. Dallas, Jr., Byrd C. Dallas and Henrietta J. Dallas, whereby the said lot and building and other property were conveyed to complainant and G. Willis, (who is made a party defendant,) for the use and benefit of the said wife and children of Alexander J. Dallas; that complainant executed the deed and accepted the trust, but with no intention on his part to surrender any legal or equitable right which he might have to enforce against the property of the said Dallas the payment of his debt; that Alexander J. Dallas died in the year 1844, the debt to the complainant being due and unpaid, and that Mary B. Dallas, his widow administered upon his estate; that, in the year 1847, complainant obtained a judgment against the administratrix for the sum of four thousand one hundred and seventy-five dollars and 98-100, being the amount due him under the contract and agreement before referred to; that the execution issued on the judgment aforesaidwas levied on the lot No. 276, in the City of Pensacola, there being no personal property of the intestate in the hands of the administratrix to be administered, and no lands or tenements not conveyed by said deed of trust.

The bill then charges that the settlement attempted to be made by said deed was made upon the said wife of the intestate after marriage; and that with reference to all the beneficiaries under the said trust, it was purely voluntary and without valuable consideration; and that the complainant is not barred or precluded from the payment of the debt due to him from the said Dallas, by reason of his having been a party to the said deed of trust.

The specific relief prayed for is, that the property levied on may be sold for the satisfaction and payment of the judgment at law, and that defendants be perpetually enjoined from setting up any claim to said property.

The following is the deed of trust referred to in complainant's bill, and prayed to be taken and considered as a part thereof:—

3d Fla.-5

Strong vs. Willis.--Statement of Case.

This indenture tripartite between Alexander J. Dallas of the first part, George Willis and Jasper Strong, their heirs, executors and administrators, of the second part, Mary Byrd Dallas, wife of Alexander J. Dallas, and Alexander James Dallas., Jr., Byrd C. Dallas, and Henrietta Constantia Dallas, children of the said Alexander J. Dallas; That is to say, Alexander James Dallas, Jr., by his former wife, and Byrd C. Dallas and Henrietta Constantia Dallas, by his present wife, Mary Byrd Dallas: Whereas, the said Alexander J. Dallas is desirous of providing more effectually for the support and maintenance of his said wife Mary Byrd, and his said children: Now this indenture witnesseth, that the said Alexander J. Dallas, for and in consideration of the premises, and for and in consideration of the natural love and affection which he hath and beareth towards his said children, Alexander James, Byrd C., and Henrietta Constantia, and for the purpose of providing more effectually for the support and maintenance of his wife, Mary Byrd, during her life, and for and in consideration of the sum of ten dollars to him in hand paid by the said George Willis and Jasper Strong, the receipt of which is hereby acknowledged, he, the said Alexander J. Dallas, hath given, granted, bargained, and sold, aliened, enfeoffed, conveyed, and confirmed, and by these presents doth grant, bargain, sell, alien enfeoïî convey and confirm, unto the said George Willis and Jasper Strong, their heirs, executors, and administrators, the following pieces, parcels, or tracts of land, situated and bounded as follows, to-wit: a certain lot or parcel of land, situate, lying and being in the city of Pensacola, and know on the plan of the said city as number two hundred and seventy-six, (276,) containing eighty feet front on Intendencia street, by one hundred and seventy in depth. Also the following tracts of land, lying, situate, and being in the county of Escambia and Territory of Florida, viz: Fractional section twenty-nine, (29,) of township two, (2) range thirty, South and West containing thirtyeight acres and fifty hundreths of an acre. Also, Franctional section twenty-seven, (27) township two, (2) range thirty, (30) South and West, containing one hundred and nine acres. The aforesaid lands being in the district of lands subject to sale at Tallahassee, Florida. Also, a certain lot situated on Intendencia street in the city of Pensacola, and known and distinguished in the plan of the said city by the numbers or figures two hun