Carr, Assignee, v. Gale et al. ness, they must call him after they had opened their case to the jury, and examine him as their own witness. Subsequently he was called by the defendants and examined. The practice of Courts in this respect is not uniform. The rule in the English Courts is, that if a witness is called and sworn, though he is asked but a single question, the other party has a right to cross examine him to the whole case as a witness of the adverse party. 1 Greenleaf's Evidence, § 445. And the same practice prevails in some of the Courts in this country. In this Court the rule has been different. It has been repeatedly laid down by the late Justice Story, in the terms in which the Court ruled in the present case, and by the decision in The Philadelphia and Trenton Rail Road Co. vs. Stimpson, 14 Peters, 448, it is established as a rule of practice in the Courts of the United States. After the evidence was closed, and the arguments of counsel, the counsel for the defendants asked the Court to instruct the jury that the plaintiff could not maintain the action because there was no evidence of a conversion by either of the defendants. The Court declined to give that instruction, but instructed the jury that if they were satisfied from the evidence that in 1838, when the letter of attorney was given by Gale to Hemenway, it was given for the purpose of enabling Hemenway to do business on his own capital and for his own benefit, and was so used, the property being in fact and in truth in Hemenway, then, by force of the statute, the property became vested in the assignee of Hemenway, and that the sale by Gale under color of this disguised title was evidence of a conversion by Gale. And secondly, that if the sale was made by an arrangement and contrivance, between Hemenway and Gale, to place the property still further beyond the reach of the assignee, it was evidence of a conversion both by Gale and Hemenway. Under these instructions the jury found a verdict for the plaintiff. Carr, Assignee, v. Gale et al. It is quite certain that the Court could not give the direction asked by the defendants, because, if the jury found that the property was in Hemenway, the sale was a conversion. To maintain the action of trover, the plaintiff must prove property and the right of possession. It is not necessary to prove that he has had the actual possession and that it has been disturbed by the defendant. An executor, who has never had the possession of the goods, may maintain trover for a previous conversion of the goods of his testator.. 2 Greenleaf's Evidence, $461. The last ground, on which the defendants asked for a new trial, is that the verdict is against the weight of evidence. There was evidence on both sides, and it was the province of the jury to determine on which side the balance inclined. By the theory of the common law, they are the exclusive judges of the weight of evidence. But it is also true when the Court is satisfied that the jury, from any cause, have fallen into an error and decided against the clear preponderance of the evidence, the verdict will be set aside and the case sent to another jury. If however there is contradictory evidence, and the conclusion is dependent on the degree of credit given to the witnesses, or if the facts proved, or admitted, are such that different conclusions may be inferred from them, the Court will not disturb the verdict, unless the jury have decided against the clear preponderance of the evidence. In this case there was but little if any conflict in the testimony, that is the facts, proved by the testimony on one side, were not impugned by contradictory testimony on the other so as to bring them into doubt. The conflict was in the facts themselves. There is one series of facts proved by the defendants which, standing alone, lead directly, if not irresistibly, to one conclusion, but there is another series, part of which are equally well proved and which, if not controlled by any facts tending to a different conclusion, would lead directly to the opposite decision. When the verdict is to be deduced from opposite and conflicting analogies, it belongs Carr, Assignee, v. Gale et al. exclusively to the jury to determine the force and value of these analogies. All that the Court can do is to assist their judgment, by general observations on the nature of the evidence. It is not pretended that there were any such remarks in this case as had a tendency to preoccupy the minds of the jury by any notions adverse to the defendants. It would seem that they were rather of an opposite tendency, for one of the reasons urged for a new trial is that the verdict is against the opinion of the Court. But the Court has no authority to substitute its own judgment for that of the jury, when they have deliberately considered and decided the case. It is only when they have, from wantonness, or caprice, or negligence and inattention, rendered a verdict palpably erroneous, that the Court will interfere. And the Court will sometimes infer this want of due attention on the part of the jury, when the verdict is clearly against the weight of evidence. But to do this, when the evidence is nearly balanced, would be an encroachment on the proper province of the jury. On the whole my opinion is that judgment should be entered on the verdict. New trial refused. The Palo Alto. THE PALO ALTO. A remission of a forfeiture by the Secretary of the Treasury, under the act of March 3, 1797, ch. 13, granted before a libel or information has been filed, operates directly to revest the right of property and possession in the petitioner, and the collector, on his presenting the warrant of remission, is bound to restore it. But, after the filing of a libel or information, the property is in the custody of the law, and the collector is the keeper of the Court. The remittitur, being filed in Court, is a bar to further proceedings to enforce the forfeiture, and the Court will direct the suit to be dismissed and issue a precept to restore the property. But the property being in the custody of the Court, the collector cannot restore the possession without an order of the Court. If the remission is on the payment of costs, this is a condition precedent, and the remission is inoperative until the costs are paid. A tender of the costs, after a reasonable time allowed for taxing them, is equivalent to actual payment, to revest the right of property and possession. A neglect of the collector, seasonably to furnish the attorney with the cost of seizure and custody, will not defeat or suspend the right of the claimant to the possession of the property. The Secretary has the power, after a remittitur has been granted and communicated to the claimant, to revoke the warrant. If the remission is free and unconditional, the power of revocation continues after the remittitur is filed and an order of restoration passed, and until the precept is finally executed by a delivery of the property into the possession of the claimant. The order of restoration, made by the Court, is not properly a judicial but a ministerial act. It is the remission of the Secretary that restores the right of property and possession, and the order of the Court, carrying that into effect, may be demanded by the claimant ex debito justitia. If the remission be conditional, the Secretary has no power to revoke it after the condition has been performed, whether the possession of the goods has been delivered to the claimant or not. After the revocation has been made known to the claimant, if the Secretary revokes it, the revocation is inoperative until the knowledge of it is brought home to the claimant; and if the condition has been per L The Palo Alto. formed before he has knowledge of the revocation, the rights of the claimant become fixed, and the remission is irrevocable. In all engagements formed inter absentes by letters or messengers, an offer by one party is made, in law, at the time when it is received by the other. Before it is received it may be revoked. So the revocation, in law, is made when that is received, and has no legal existence before. If the party, to whom the offer is made, accepts and acts on the offer, the engagement will be binding on both parties, though before it is accepted another letter or messenger may have been despatched to revoke it. The exception to this rule, established by the jurisprudence of the Courts, is, that if the party making the offer dies or becomes insane before it is received and accepted, the offer is then a nullity, though accepted before his death is known. October, 1847. The manner in which this case came before the Court will appear by a recapitulation of the antecedent facts. The Palo Alto, a small vessel of 2013 tons burthen, built and licensed for the fisheries, was seized July 15, 1847, by the Collector of Wiscasset, and libelled for being engaged, while under a fishing license, in a trade other than that for which she was licensed, in violation of the act of February 18, 1792, ch. 8, $32, for Licensing and Enrolling Vessels, 1 Statutes at Large, p. 305. On the 21st of July, a claim was interposed by C. F. Barnes, and on the 23d he filed a petition confessing and praying for a remission of the forfeiture. On this petition, a summary inquiry was had into the circumstances of the case, according to the provision of the act of March 3, 1797, ch. 13, $1. 1 Statutes at Large, p. 506. A number of witnesses were examined and the following statement of facts made out and transmitted to the Secretary of the Treasury, together with a copy of the libel and the petition : "Special District Court, Portland, "And now on a summary examination into the facts of of the case (notice having been given to the attorney of the United States and the collector who made the seizure,) it has |