Habersham vs. The State of Georgia. Inasmuch as it is possible for the judge to mistake the law or misrepresent it, the material which he supplies, or some part of it, may be erroneous. Are the jury, nevertheless, to accept it as correct, or is it subject to their revision and correction? May they, if they think it faulty, reject it, and substitute in its place something corresponding to their own convictions of what the law really is? Are the scriptures of the law an open bible; or must they be read for the laity by the priesthood of the bench? The power of overruling the judge's charge, apparently conceded to the jury by this court in most of the cases (see Hopkins' Annotated Penal Laws, section 1602,) prior to Brown's case, reported in 40 Georgia Reports, 689, is, in the latter, denied; and, by several later adjudications, the doctrine of Brown's case has become the established rule of decision: See 41 Georgia Reports, 217; 49 Ibid., 485; 52 Ibid., 82, 290, 607. It is, perhaps, too late for a single member of the court to urge his individual conviction that Brown's case was an innovation. The learned judge who delivered the opinion of the court in that and in some of the subsequent cases cited above, has declared that it was not an innovation, that it was opposed to previous dicta only, not to previous decisions. He thought the true principle of the former cases was preserved. Acquiescence in that view would, probably, at this late day, be the better line of judicial conduct for any of his successors who might be of a different opinion. The now current holding is, in effect, that, to the jury, the highest and best evidence of what the law is, is the charge of the court; indeed, that their only final access to the law is through this charge. And it is maintained that, in order to judge of the law, it is in nowise necessary that the jury should be invested with power to revise the charge and correct it. As the judge is the organ of the law itself, through whom is made known to the jury what the law is, they are to receive it as he lays it down, and not discredit him as a legal authority. In judging the law they are to pass upon what it is in the charge, not upon what it is out of the charge; and coming thus to an understanding of it, are to Habersham vs. The State of Georgia. determine what is its right and proper application to the facts in evidence, and what conclusion results from combining the two elements of law and fact. When the jury hear the charge, understand what it means, and apply it to the facts before them, they have judged of the law which the charge contains; and, as they have no proper access to any dif ferent law, there is, for them, no different law on the subject, and they cannot correct the errors of the judge if they would. Relatively to the jury, the charge stands like a volume of law published by authority-the only volume so published of which they know the contents. But none of the cases hold, or even hint, that the jury are in no sense judges of the law. If to judge the law and to follow the charge be incompatible, that is, if to accept the law as registered in the charge be a surrender of the right to judge of it, then the theory that the charge is binding must be abandoned, for the statute expressly declares that the jury shall be judges of the law as well as the fact: Code, section 4616. If we must give up one or the other of the two things, it is in vain to hesitate; the right to judge must be preserved, and the duty of conforming to the charge be no longer exacted. We have seen, however, that the two branches of the rule are believed to be reconcilable, that is, that the jury may be judges of the law without having the right to contradict the court or to reject what is delivered as law from the bench. No tribunal whatever is at liberty to refuse to recognize as law what comes to it duly vouched as such by the highest instrumentality appointed by the law to give it assurancce. If otherwise, a court, in judging of the law contained in the constitution of the United States, might deny the contents to be law, instead of merely finding out the true meaning of the instrument and applying that meaning to the case in hand. 2. In the foregoing presentation of the relative functions. of judge and jury, the subject has been contemplated in its widest range, as embracing an entire case; but the like principle of separation between the province of the judge and that of the jury is to be observed in dealing with any given sub Habersham vs. The State of Georgia. division of the case. Thus, an essential part of the offense before us is the custody alleged to have been violated. Was it a legal or an illegal custody? How are the two classes to be distinguished? By certain variations in the attendant circumstances. What circumstances will bring this particular custody within the class legal, and what will bring it within the class illegal, are questions of law; but the actual presence or absence of one set of circumstances or the other, in the particular instance, is matter of fact. Legal custody or illegal custody is, therefore, a conclusion consisting of law and fact blended; just as guilty or not guilty is a conclusion composed of the like elements. As both conclusions are of the same nature, the processes of arriving at them are similar. The law element is the material for the major premise in a special syllogism touching custody, and is to be supplied by the judge. The jury are to collect from the evidence the minor premise, compare the two, and draw the conclusion of legal custody or illegal custody. As the judge can decide no question of fact, he is not permitted to declare whether the particular custody disclosed by the evidence belongs to the one class or to the other. He, as the organ of law, can carry his voice no farther than the law goes. He can say, as the law does, that such and such custody is legal, and such and such illegal; but he cannot say that this particular custody was such or such, for that depends, not on the law, but on the evidence. Of course, too, the bare fact of whether there was any custody at all, is, also, for the jury, unless it is admitted. 3-8. The remaining points are distinctly ruled in the headnotes, and will be fully understood when read in the light of the reporter's statement. Judgment reversed. The Savannah, etc., Company vs. Grant, Alexander & Company. THE SAVANNAH, GRIFFIN AND NORTH ALABAMA RAILROAD COMPANY, plaintiff in error, vs. GRANT, ALEXANDER & COMPANY, defendants in error. (JACKSON, Judge, being related to the parties, and also having been of counsel, did not preside.) 1. As the action was not brought by the plaintiffs, as mechanics, but as partners and contractors, they were not entitled to recover a lien as mechanics. An amendment will cure this omission. 2. If the plaintiffs were mechanics, and contracted to do the work in the capacity of mechanics, they would be entitled to their lien. Aliter, if they were to do the work in the capacity of contractors. This question the jury must decide. 3. Whilst the construction of a written contract is for the court, still it is beyond its province to determine whether work done thereunder constituted parties thereto mechanics. Pleadings. Mechanic's lien. Amendment. Contracts. Charge of Court. Before Judge TOMPKINS. Spalding Superior Court. August Term, 1875. Reported in the decision. SPEER & STEWART; N. J. HAMMOND; BOYNTON & DISMUKE; C. PEEPLES, for plaintiff in error. R. F. LYON; MCCAY & TRIPPE; E. W. BECK, for defendants. WARNER, Chief Justice. This was an action brought by the plaintiffs, as partners and contractors, against the defendant, to recover an amount of money alleged to be due them by it, and also to enforce a recorded mechanic's lien under the provisions of the 1959th section of Irwin's Revised Code. There was no contest as to the amount due, but the contested question on the trial of the case was, whether the plaintiffs were entitled to a mechanic's lien on the defendant's road as claimed by them. The jury, under the charge of the court, found a verdict in favor of the plaintiffs' lien upon the defendant's road from Griffin to New The Savannah, etc., Company vs. Grant, Alexander & Company. nan. The defendant made a motion for a new trial on the several grounds therein set forth, which was overruled by the court, and the defendant excepted. It appears from the evidence in the record that on the 20th of October, 1869, the plaintiffs made a written contract with the defendant's agent to build its road from Griffin to Newnan, in the manner and upon the terms therein specified. There is nothing said in the agreement as to the plaintiffs being mechanics, or as to their having any lien on the defendant's road for the work which they contracted to do; but the plaintiffs recorded a mechanic's lien on the defendant's road on the 5th of January, 1871. John T. Grant, one of the plaintiffs, testified that he was a mechanic, had followed mechanical pursuits all his life, took contracts to build houses, bridges, etc.; that he contracted to build the bridges, and did some work on them with his own hands; would saw and mortice, and show others how to do the work; did not do a great deal of work with his own hands. When the contract was made they had two or three hundred hands under their control; Grant, Alexander & Company were partners, organized to build railroads, and other work; he had not followed the trade of a mechanic regularly for the last fifteen years; sub-let some of the work; witness' son, who was one of the company, was also a mechanic, and has, ever since he was a man, been engaged in building bridges, railroads, etc., as a business. Thomas Alexander, one of the company, sworn, stated that his trade or calling was that of a stone cutter, or mason; that a large portion of the work done on defendant's road, was stone work, some of it he did himself, and some he sub-let to others. Richard Peters, one of the company, sworn, stated, that he was some thirty years ago a civil engineer; sub-let the largest portion of the work; repaired some of the culverts himself, near Head's creek; built one with his own hands; the company worked convict labor as well as others. This is substantially the evidence in the record as to the |