It was error to nonsuit the plaintiff and thereby take from Mm the right to have the jury pass upon the defence set up by the defendant. Under our system of procedure the tribunal for the trial of disputed allegations of fact is a jury, not a Judge. So- important and sacred is the right that it is protected by provisions in both the State and Federal Constitutions. Section 19 of the Bill of Bights (now Art. I) of the State Constitution, says, “The ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable.”
When a party upon whom rests the burden of proof fails to introduce any evidence, the Court can direct a verdict against him, or if he is the plaintiff, direct a nonsuit. But the Judge can not direct a verdict in favor of a party upon whom rests the burden of proof, for that would be a finding by the Judge that his evidence is true, which is expressly forbidden by the act of 1196 (now Code, 413) — “No Judge shall give an opinion whether a fact is fully or sufficiently proved, such matter being the true office and province of the jury.” If there is no evidence to the contrary, all the Court can do is to say to the jury that “if they believe the evidence” to find the issue in his favor. Spruill v. Ins. Co., 120 N. C., 141, with cases therein cited and a long line of cases-since citing and approving it.
Here the plaintiff introduced evidence tending, to sho-w that though there was contributory negligence upon his part, the proximate cause of the injury was the subsequent negligence of the defendant, who had the “last clear chance.” The plaintiff could not have been nonsuited upon that evidence, and it is not even contended that he could be. The defend*341ant set up in defence an alleged release, to which, the plaintiff filed a reply denying the same was signed by him for the purpose of a release, alleging fraud and mistake and that no consideration was paid.
The defendant contends that the signing of the release being proven, the burden was upon the plaintiff to prove the matters to impeach it, and that there being no evidence to do this, a nonsuit was proper. But firstly, it is alleged, and the evidence is uncontradicted, that not a penny, nor any consideration whatever, was paid the plaintiff, and indeed the release itself appropriately leaves. the consideration blank. It was therefore nudum pactum. But it is said that a seal imports a consideration. This, however, is only a presumption and liable to a rebuttal even where a consideration is recited in a deed solemnly executed and sealed. Barbee v. Barbee, 108 N. C., 581; S. C., 109 N. C., 299; Smith v. Arthur, 110 N. C., 400; Shaw v. Williams, 100 N. C., 272. In this last case (at page 281) Smith, C. J., says: “And so every release must be founded upon some consideration, otherwise fraud must be presumed. 2 Dan. Ch. Pr., 766; Story Eq. PL, sections 796, 797.”
Not only is fraud presumed from the absence of consideration, but it is alleged that the plaintiff was “misled and deceived.” There is both allegation and proof that the plaintiff is ignorant and unlettered, unable to read or sign his name, that the paper was not read over to him, that he was in physical suffering from his wounds; that the man at whose house he was staying during his confinement from his wounds, told him the paper was to enable him to get his pay from the railroad company for his taking care of plaintiff while wounded, and that, under the impression it was a paper of that kind, he signed it, but he did not know that it was a release of his claim for damages against the company, and that no consideration was ever paid him to give such release. *342It seems tbe railroad company was to pay for tbe plaintiff’s board and nursing while wounded, and tbe doctor, too, for tbe witness says “tbe superintendent told me be was going to pay tbe physician also.” It does not appear that even tbe board and nurse hire have been paid, but if they bad been, such payments might be taken into consideration in adjusting a reasonable sum to be paid to plaintiff for bis injuries if sustained by tbe negligence of defendant. Payment of tbe nurse’s bill, bad it been shown, would have been no recompense to plaintiff for injuries of tbe nature here in evidence, and which bad then detained him in bed for three months. This evidence tending to show that tbe signature, made by cross-mark, was procured by imposition or mistake, should have been submitted to a jury. Tbe scroll, made, too, by other bands than tbe plaintiff’s, following bis cross-mark, can not have tbe magical effect to shut off investigation by a jury of tbe allegation and proof offered to show that tbe release was not given fairly and knowingly by plaintiff, independently of tbe presumption of fraud which arises from tbe absence of any consideration given plaintiff for bis injuries or for tbe release. That a release is procured from a man who can not read it, without its being read over to him or explained, is itself a suspicious circumstance. It may be that defendant can prove that it was read over to plaintiff, and also that a consideration was paid. An opportunity should be given it to do so. °
This case differs from Wright v. Railroad, 125 N. C., 1, in that there tbe issue of fraud was submitted to tbe jury. Tbe release recited tbe consideration and tbe evidence proved it, and there being no evidence of fraud, this Court held that there being not a scintilla of evidence of tbe affirmative, the Judge should have directed a verdict on that issue against tbe party alleging tbe fraud. Nor is this case like Dellinger v. Gillespie, 118 N. C., 737, which properly held that tbe *343negligence of a party to a written contract in voluntarily signing it, without reading it, will not permit him to contradict its terms by parol. In that case there was a consideration, the party could read but was too careless to do so, and there was absent all the circumstances here in evidence which tend to show imposition or mistake, trick or device. The Court in that case rests the case on this feature, “it is plain that no deceit was practiced.” In the present case there was allegation to the contrary, and the proof offered in support was for the jury to pass upon, and not the Judge.
Error.