William G. Beale and E S. Isham, for the motion.
John S. Cooper, in opposition.
Mr. Chief Justice FULLER.
This was an action of trespass on the case. At the conclusion of the trial, defendants moved the court to charge the jury to find the issues for defendants, which motion was granted, and the jury was directed, upon the whole case, to return a verdict for defendants, plaintiff duly excepting. Thereupon the jury returned a verdict accordingly. Plaintiff moved for a new trial, which was denied, [157 U.S. 674, 675] and judgment was given against plaintiff on the verdict. This judgment was rendered December 3, 1890. The writ of error from this court was brought November 24, 1891. The only ground relied on to sustain the jurisdiction of this court is that the case 'involves the construction or application of the constitution of the United States,' because plaintiff in error was deprived of the right of trial by jury. But it is well settled that where the trial judge is satisfied upon the evidence that the plaintiff is not entitled to recover, and that a verdict, if rendered for plaintiff, must be set aside, the court may instruct the jury to find for the defendant. Grand Chute v. Winegar, 15 Wall. 355; Marion Co. v. Clark, 94 U.S. 278 ; Herbert v. Butler, 97 U.S. 319 .
If the court errs, as matter of law, in so doing, the remedy lies in a review in the appropriate court.
Writ of error dismissed.