delivered the opinion of the Court:
The assignment of errors in this case questions the correctness of the third instruction given for defendant below. There is no doubt that the statements of Cobbs, called out by plaintiff, were evidence, and were properly admitted to the jury ; but what they proved, and the weight they were entitled to receive, was entirely a question for the consideration of the jury. When received, it became the duty of the jury to weigh them, in connection with all of the circumstances of the case, and the interest of the defendant to color and misrepresent the facts, as well as any conflict in his different statements, and then give the statements such weight as they believed they were entitled to receive.
The question as to how far evidence, legitimate and properly admitted, is material, is a question for the consideration of the jury. It is the province of the court to determine whether evidence is admissible, and that of the jury to determine its materiality, and what it proves, if anything. In this case the statements of defendant, when called for by the plaintiff, were competent and properly admitted, and we think it was error for the court to instruct the jury that it was immaterial whether the carriage was purchased before the note was given, as it invaded the province of the jury, and was calculated to mislead them in considering the weight that should have been given to the statements of the defendant. The fact that the note was given some three years after the purchase of the carriage, was a circumstance which the jury should have considered, and it was for them to determine whether Cobbs would have given his note, with security, when Hardin was indebted to him for the carriage. And whether, if it had not been paid for, he would have paid money to Hardin on the note, when it was satisfied by the sale of the carriage to Hardin. These, and other questions, arising out of the purchase of the barriage such a length of time before the note was given, were all proper to be considered by the jury. This the court took from their consideration by the last clause of this instruction, which we think was error.
As the case will be remanded for further proceedings, and will have to come before a jury, we deem it unnecessary to consider the question as to whether the verdict is against the weight of evidence. We will leave the question of the weight of evidence to the jury, where it belongs, as the case will be reversed upon the grounds above indicated. The judgment of the court below is reversed, and the cause remanded.
Judgment reversed.