Mo. 267; Fletcher v. R. R. Co., Id. 484 and cases cited; Houston v. R. R. Co., 6 Cent. L. J. 132; Barton v. R. R., 52 Mo. 258.

Notwithstanding these decisions, and the general current of authority upon this question, our trial courts have been so tenderfooted and exhibited such 66 a pitiable and painful" want of backbone, that we still see them shielding themselves behind that poetic bulwark of our liberties, "trial by jury;" and submitting to juries for their solemn consideration, cases in which there is, under the evidence, no question of fact for the jury. To such an extent has this been carried, that we find our Supreme Court at every recent term saying, in some case, that the demurrer to the evidence should have been sustained; or declaring, as in Holman v. R. R., 62 Mo. 562, that, "under the case made, it was the duty of the court to declare as a matter of law that the plaintiff was not entitled to recover."

So skillful are many of our trial courts in shirking the very responsibility they are elected and paid to assume, and in throwing their own burdens upon the jury, that a lawyerling on his first circuit would be led to believe that Horne Tooke's idea of the functions of the trial judge had been incorporated into our practice act. In a case before Lord Kenyon, Tooke is reported to have said to the jury: "As for the judge and crier, they are here to preserve order; we pay them handsomely for their attendance, and, in their proper sphere, they are of some use; but they are hired as assistants only; they are not and never were intended to be the controllers of our conduct."

Morgan v. Durfee is the first case in this State in which the good common sense of the age has asserted itself in the authoritative announcement of the correct doctrine, that it is within the power of a trial court to direct a verdict for either party, "where the facts are undisputed, or where the verdict, if returned for the opposite party, would be set aside as against evidence." It goes a step further than the cases above cited. Under it a verdict may be directed for a plaintiff as well as for a defendant; trial courts will see their way clear to renounce the ancient dogma, that wherever there is some evidence, or a scintilla of evidence, it must go to the jury; and having this

authority, it is believed they will find it to be their duty to exercise it in many cases.

The doctrine stated is the well established doctrine of to-day, as will be seen by the cases cited in Proffatt on Jury Trial, §§ 351, 352, 354, and by several other cases not there referred to, which will be hereafter noticed.

It has always been and is to-day the peculiar province of the jury to find all matters of fact, and of the court to decide all questions of law arising thereon. But the jury has no right to assume the truth of any material fact without some evidence legally sufficient to establish it. It is often difficult to determine just where the province of the jury ends and that of the court begins, and it is in the application of the principle stated that trial courts most frequently err. some evidence, and there is a question as to its being sufficient in law to support a verdict, it is so much easier for the court to give the jury the benefit of the doubt, and submit the case to them, than to investigate and apply the law to the facts, that they usually let it go to the jury; making no distinction between the terms "any evidence" and " any evidence sufficient in law."

Where there is

The effect of a demurrer to the evidence and of an instruction to direct a verdict in any case, is to compel the court to apply the law to the facts proved. In making this application the court has to decide what inferences are legitimate, and whether the facts and legitimate inferences support the issue. If they do not support the issue, or make out a case that would sustain a verdict, the court must so declare as a matter of law. While it is the province of the jury to find the facts, yet it is the duty of the court before submitting such facts, to determine first whether they are sufficient in law to support a verdict; for, as has been well said, "evidence which is legally insufficient to make out a case is, quoad hoc, no evidence." Again: "If a plaintiff has no case in law, he has no business in court; and if a jury can find a verdict upon evidence that does not legally make out a case, they may find a verdict on no evidence at all." Nolan v. Shickle, 3 Mo. App. App. 300; State v. Thayer, 5 Mo App. 420. The former is a review of many of the leading cases relating to demarrers to evidence, and the conclusion is, that "the

question whether the evidence will sustain a verdict is purely a question of law-a question as to the legal effect of ascertained facts." The latter grows out of a case which strongly illustrates the beauties (?) of a trial by jury in this fast age, when the average juror flatters himself that he knows more law than the court. On the trial of the original action, the plaintiff failing to make his case, the jury were instructed that "under the pleadings and the evidence the plaintiff is not entitled to recover;" the plaintiff refused to take a nonsuit; the jury retired, but soon returned into court, under their oaths, in the exercise of their peculiar province to find the facts, a verdict for the plaintiff for $4,300! Of course the verdict was not permitted to stand, and the case is here mentioned merely as a sample of what juries will do if permitted to pass upon the facts in every case regardless of the applied law to such facts. That such verdicts are sometimes rendered, and the well known solicitude of trial courts for the preservation of the right of the jury to pass upon all facts, not less than the human weakness shown in their proneness to lighten and lessen their own responsibilities, are a sufficient guarantee that the rule laid down by Sherwood, C. J., in the principal case, in such plain, unmistakable language, will be hailed with satisfaction by all members of the bar, except that class who still insist on submitting all issues in all cases to the jury.

In Brown v. European, &c., Co., 58 Me. 389, Appleton, C. J., said: "Where the facts

Fant, 22 Wall. 122, the rule is thus stated: "If the court is satisfied that, conceding all the inferences which the jury could justifiably draw from the testimony, the evidence is insufficient to warrant a verdict for the plaintiff, the court should say so to the jury." In Wilds v. R. R. Co., 24 N. Y. 433, it is said that "cases of negligence form no exception to the rule, that it is the duty of the trial court to nonsuit, where the verdict for a plaintiff would be clearly against the evidence and no court can be guilty of the absurdity of holding, that in such a case, it would not be competent for the judge who tried the cause, either to nonsuit the plaintiff or direct a verdict in his favor as the case might have required. No legal principle compels him to allow a jury to render a merely idle verdict." In Commissioners v. Clarke, 94 U. S. 284, Mr. Justice Clifford speaking for the court said: "Judges are no longer required to submit a case to the jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the

jury to proceed in finding a verdict in favor of the party introducing such evidence. Decided cases may be found where it is held that, if there is a scintilla of evidence in support of a case, the judge is bound to leave it to the jury, but the modern decisions have established a more reasonable rule, to wit: That before the evidence is left to the jury, there is, or may be, in every case a preliminary question for the judge, not whether there is

be granted, if a verdict in favor of the plaintiff would be set aside as against evidence. It would be absurd to send a cause to a jury when a verdict, if rendered in favor of the plaintiff, would not be permitted to stand. It is no interference with the province of the jury to give judgment upon admitted facts. When the evidence fails to show any cause of action a non-suit should be ordered."

In Steves v.

R. Co., 18 N. Y. 425, the trial court, having the requisite strength in its "dorsal region," had sustained a demurrer to plaintiff's evidence, and ordered a non-suit. It is said: "It would have been the duty of the court to

set aside such a verdict as unsupported by

evidence. Upon this ground alone the nonsuit was properly granted." In Pleasants v.

upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed."

In Merchants Bank v. State Bank, 10 Wall. 637, the trial court, by an instruction, had taken the case from the jury and directed a verdict for the defendants. Mr. Justice Swayne speaking for the court said, "According to the settled practice in the courts of the struction, if it were clear the plaintiff could United States it was proper to give the innot recover, It would have been idle to proceed further when such would be the inevitaIt ble result. The practice is a wise one. saves time and costs; it gives the certainty of

applied science to the results of judicial investigation; it draws clearly the line which

separates the provinces of the judge and jury, and fixes where it belongs the responsibility which should be assumed by the courts."

H. C. McD.

WHAT IS A CALENDAR MONTH.

MIGOTTI v. COLVILLE.

English Court of Appeal, June, 1879.

One calendar month's imprisonment, when commencing on a day other than the first of the month, dates from the day of imprisonment to the corresponding numerical day, less one, in the next month in the calendar. If, owing to the shortness of the next month, there is no such corresponding day, the imprisonment will terminate on the last day of such next month.

Appeal of the plaintiff from a judgment after trial before Denman, J.

The statement of claim alleged that the plaintiff had been kept in prison by the defendant, the Governor of Coldbath Fields prison, one day longer than his sentence, and claimed damages accordingly.

The plaintiff was sentenced on October 31 to two terms of imprisonment-first, one calendar month, and second, fourteen days, to commence at the expiration of the month's imprisonment. He was liberated on December 14th. Denman, J., gave judgment for the defendant.

The plaintiff in person contended that the imprisonment for one calendar month dated from 12 P. M. on the 30th of October, and ended at 12 P. M. on the 29th of November, and that fourteen days from then would expire on December 13th, when he should have been set free.

A. L. Smith, for the defendant, was not called on. BRAMWELL, L. J.:

66

I am of opinion that this judgment must be affirmed. It is, no doubt, a plausible argument of the plaintiff's that he has been imprisoned the whole of the month of November and a day in October as constituting one calendar month." The difficulty arises from this, that really the term "one calendar month" has no application except to a particular month, and is inaccurate as applied to a period which begins in the middle or part of one calendar month, and ends in the middle or part of another calendar month. In that case "one calendar month" is made up of a portion of two calendar months, and various consequences seem to follow from that. It seems to me clear that the only sensible rule that we can lay down is, that where the imprisonment begins on a day in one month, so many days of the next month must be taken, if there are enough, as will come up to the date of the day before that day of the month on which the imprisonment commenced. That is to say, if the imprisonment commenced on the 5th of one month, you must take till the 4th of

the next month, if on the 25th of one till the 24th of the next month, and so on. You must take so many days out of the next month as have passed in the month when the imprisonment began, before the commencement of that imprisonment. If that were not so, look at the consequences. The plaintiff says, I was sent to prison in October 31, and therefore ought to have been let out on November 29, because, otherwise, I should have had a calendar month and a day of another month"; but, of course, if he had been sent to prison on October 29 he ought to have come out on November 28, and if on October 30 on November 29. The effect of his argument, therefore, is this, that whereas, if the imprisonment began on October 30 it ought to end on the 29th of November, so ought it if it began on the 31st. There is no reason for that. Suppose the plaintiff had been sentenced to two months, when would he have come out? Certainly not till December 30. If one month ends on November 29, how do you get the next month ending on December 30? That, undoubtedly, would be the case. The only way to make sense of it is to apply the rule which I have mentioned; and it seems to me that the rule will never operate to the prejudice of a prisoner. If he is sent to prison in what may be called a long month, he is a sufferer and gets thirty-one days; if sent to prison in a short month of thirty days he gets thirty days only; and if sent to prison in the shortest month of all, February, so much the better for him; for, according to the rule expressed, if a man went to prison on the 29th of January he would get out on the 28th of February; so if he went to prison on the 30th of January, and so if on the 31st, and so if on February 1st; he would have the benefit of an imprisonment which is shortened inevitably by there not being a sufficient number of days in the following month to make up for the days elapsed in the month in which he was sent to prison at the time of his imprisonment. I think in this case that, as the plaintiff was sent to prison on October 31, there were thirty days to be taken out of the next month, and as a consequence the month did not expire till the 30th of November; and if so, the fourteen days did not begin till December 1, and, therefore, the plaintiff was duly kept in prison till the 14th of December. I think that Mr. Justice Deuman was right in his judgment, and that it must be affirmed.

The expression "a calendar month" is a technical and legal phrase, and we are bound to give it a technical and legal meaning. The legal meaning of a calendar month is not a fixed number of days, but it is a month in the calendar; it is one month to be calculated by the calendar and not by counting the days; and one month according to the calendar is one month from the first day of the imprisonment to the corresponding numerical day, less one, in the next month in the calendar. In some cases there is no such corresponding numercal day in consequence of the shortness of the next month in the calendar. If so, as there is no corresponding numerical day, but a less number of

days in the month, then, in favor of the prisoner, the imprisonment is less than it otherwise would be, and must end on the last day of the short month.

COTTON, L. J.

I am also of the opinion that Mr. Justice Denman was right. I think that a great deal of the matter is disposed of by considering whether or no Mr. Justice Denman was right in himself dealing with this question as a matter of law, and I am of opinion that he was. It is not a question of measurement as a matter of fact for the jury, but for the judge to say what, under the circumstances of the case, is the proper meaning of a sentence of one calendar month's imprisonment. It is true that unless the imprisonment begins on the first day of a particular month to be found in the calendar, a person can not be imprisoned, if sentenced for one calendar month during one actual calendar month. What, then, is the meaning of "one calendar month" when imprisonment begins on a day other than the first day of the month? I think the rule to be applied is that laid down by Mr. Justice Denman and the members of this court-viz., that such a sentence must be considered as ending at twelve o'clock on the day immediately preceding the corresponding day in the next month in the calendar. The corresponding day in the next calendar month is, in my opinion, the corresponding numerical day, if there is one; if there is not one, then, in favor of the prisoner, the sentence will expire on the last day of such next month.

ten per cent. per annum after date until paid, and payable at our office. H. T. ROELLE, MATTHIAS CASSMAN.

At the time of the entry of this judgment the following indorsements appeared upon the note: This note is extended to six months, interest paid up to March 8, 1874.

Note extended for six months to March 8,1875, interest paid to September 8, 1874.

Interest paid on this note to March S, 1875, and is extended to September 8, 1875.

Interest paid on this note to September 8, 1875, and is extended to March 8, 1876.

At the next term of that court (August term 1876) Cassman moved that as to him this judgment should be vacated and set aside and that he be allowed to plead to the merits and in support of the motion filed his own affidavit, stating that he had signed the note in question merely as surety for Roelle; that he received no part of the consideration of the note and that this was known to the plaintiff; that after the note became due, the plaintiff agreed with Roelle to extend the time of payment of said note to the 8th of March, 1875; that about the 8th of March, 1875, plaintiff agreed to extend the time of the note to the 8th of September, 1875; and that on the 8th of September, 1875, plaintiff agreed with Roelle to extend the time of payment to the 8th of March, 1876; that said extensions were made upon valuable and sufficient consideration passing from Roelle to Wohlleben, to wit, upon this promise of Roelle to pay Wohlleben interest on said principal during the period of such extension at the rate of ten per cent. per annum; and the said Roelle has actually paid such interest to Wohlleben during said periods; that these several agreements were made without the knowledge or consent of affiant; that he had no knowledge of either of them until the day before the judgment was rendered; and that he had not since consented to or ratified either of them or promised to pay the note.

Affiant further says that he has a good defense to said action upon the merits of the whole of the plaintiff's demand.

The superior court overruled the motion to set aside the judgment. To this ruling Cassman excepted and brings the record here by writ of error and asks the reversal of the judgment.

DICKEY, J., delivered the opinion of the court: It is well settled that when the payee of & promissory note, executed by a principal and a security, makes a binding agreement with the principal debtor, without the consent of the security, to extend the time of payment of the note, the security is thereby discharged from his liability. The question presented here is whether the record shows that such an agreement was made in this case between the payee of the note and the principal debtor.

It is said by Reed, J., in McComb v. Kittridge, 14 Ohio 351. "It is just as competent for the principals to a note to extend the time of payment for a specified period, as it was to fix the time of payment originally. If the lender of money