The motion for a new trial is made upon a supposed misdirection of the Judge below; and the two last reasons may be comprised in one.
As to the first, it has been repeatedly held in this Court, that a purchaser at execution sale is not affected by the irregularity of (the advertisement, and that point may now be considered as put at rest ; and as to the other, the law very clearly is, that fraud and combination between the Sheriff and the purchaser will render void a sale, whether regularly or irregularly made: for it is not the external form and ceremony that is alone to give validity to the transaction ; but it must be accompanied with a proper motive, and not with a view to contravene the design, which the law intended from the act to be done.
And though it be true, that it belongs to the jury alone, to weigh the evidence; yet it is equally true that it is the province of the Court to determine whether the evidence offered is conducive to prove the fact. The jury are to hold the scales, but the Court must determine upon the admissibility of every thing that is to be cast into them. The eyes of the jury are exclusively confined to the beam j the eyes of the Court to the scales : the Court *368is to determine what the jury is to weigh, the jury are to pronounce what it does weigh. Whether any evidence has been given is, therefore, the peculiar province of the Court to determine.
I concur in omnibus, with the opinion of the Judge bc-low, and the rule for a new trial should be discharged.
The other Judges concurring. — Rule discharged.