(dissenting). — I dissent. I am forced to confess that the authorities are divided upon the main proposition discussed in the opinion, and indeed it seems that, from such investigation as I have been able to make, the weight of authority sustains the majority decision, although there are some cases, and comparatively recent ones too, which take the *184other view. If, however, the authorities were uniform in holding that where a jury decides a question of law rightly, which had been submitted to them erroneously by the court, such rightful decision would be ground of error, I could not give my assent to such doctrine; because it seems to me to be ab.surd and opposed to the plainest principles of common sense. The only object of an appeal to this court is to enable the court to determine whether a fair trial has been accorded to the litigants below. How can it be said that an error of law has been committed, if the jury has decided the law correctly, notwithstanding the fact that it is the duty of the court to instruct the jury as to what the law is? The essential thing is that the case should be decided under the law, and if the jury decides it under the law which this court deems to be correct, then the object of -the law is met. If the court had instructed the jury, as we will presume for the purposes of this case that it did, erroneously, and the jury had followed the instructions of the court, the verdict must necessarily have been erroneous and .the case would have been reversed on appeal to this court. The respondent could not have corrected it below nor taken any exceptions to it, because it was in his favor.
It is true that, under the theory of the law generally, and under the rule laid down by our constitution in particular, the trial judges shall declare the law. The language of the constitution is “ declare the law.” But it presumes that the law shall be correctly declared, or, in other words, that the law shall be declared, and not something which is not the law, or which this court finds not to be the law. It has been the uniform announcement by this court that, where error was committed by the court in its instructions to *185the jury, if it affirmatively appeared that no other verdict could have been rendered under the law and the facts than the verdict which was rendered by the jury under the erroneous instructions, such error would be error without prejudice and would not warrant a reversal of the cause. Nay, it has often been held that, where misconduct of the jury was proven and yet it conclusively appeared that such misconduct was not responsible for the verdict or that the verdict could not under' the law and the testimony have been otherwise, such misconduct would not be error. Then, under what theory can it be held that the misconduct of the jury in a case of this kind — and I will concede it to be misconduct, and further concede that it was the duty of the jury to receive the instructions of the court as the law of the case — can be reversible error? When the case, for this alleged error, is reversed and sent back for trial, all that can be done eventually, if the case is correctly decided, is to affirm the verdict of the jury already rendered, and it simply puts the litigants to the useless expense of another trial. The logic of this kind of a ruling is that the verdict and judgment in favor of the respondent should be set aside because it does not follow the instructions of the court; and if the jury had followed the instructions of the court the judgment must necessarily have been set aside because the verdict was rendered under an erroneous instruction by the court. It seems to me too plain for argument that, where the judgment was rendered by the jury under the law, the object of the law has been attained and the parties should not be subjected to the expense and delay of another trial.
The judgment in my opinion should be affirmed.
Scott, J., concurs in dissenting opinion.