Horace Gray

“ Taking all the instructions together, we are of opinion that they conform to the wellsettled law, and that there is no ground for supposing that the jury can have been misled by any of the instructions excepted to. In an action of deceit, it is true that silence as to a material fact is not necessarily, as matter of law, equivalent to a false representation. ”

“ So the clear meaning of the sixteenth instruction is that the jury were not authorized to find material misrepresentations by the defendant, unless he purposely kept silent as to material facts which it was his duty to disclose, or by language or acts purposely misled the plaintiff's agent about the number of cattle in the herd, or the number of calves branded, or, by words or silence, knowingly misled or deceived him, or knowingly permitted him to be misled or deceived, in regard to such material facts, and in one of these ways purposely produced a false impression upon his mind. ”

“ The absence of counsel, while the court is in session, at any time between the impaneling of the jury and the return of the verdict, cannot limit the power and duty of the judge to instruct the jury in open court on the law of the case as occasion may require, nor dispense with the necessity of seasonably excepting to his rulings and instructions, nor give jurisdiction to a court of error to decide questions not appearing of record. ”