Robert Cooper Grier

“ Where there is a failure of evidence in respect to any one material fact involved in the issue, the evidence is not legally sufficient to warrant the jury in finding the issue it is offered to sustain ”

“ But there is no evidence that defendant has paid over to the nation; the only evidence to that effect is found in Taylor's testimony, as follows: 'Just before I left home to come to the United States, Mr. Ross made a final settlement with the nation of all the money received for the emigration.' This does not say that he paid over to the nation the amount received on account of Parks's wagons, or that he showed any voucher of payment to Parks. He might have paid to the nation all except the amount due Parks, and said that he retained that on account of this very pending suit. ”

“ Here the proof is, he had applied the return wagon money to incidental expenses in part, and had paid over the residue to the nation.
Where a plaintiff offers no testimony, or such as is so slight and inconclusive that a rational mind cannot draw the conclusions sought to be deduced from it, it is the right of the court, and their duty, when applied to for that purpose, to instruct the jury that he is not entitled to recover. ”

“ It answers the same purpose, and should be tested by the same rules. A demurrer to evidence admits not only the facts stated therein, but also every conclusion which a jury might fairly or reasonably infer therefrom.
The question for our consideration is, therefore, whether the evidence submitted by the plaintiff in this case was sufficient to authorize the jury in finding any contract or undertaking, either express or implied, on the part of John Ross, the defendant, to pay the money demanded in the declaration. ”

“ The Cherokees were formed into thirteen detachments, and the removal commenced about the 1st of September, 1838; but in consequence of sickness amongst them, a drought in the country through which they had to pass, difficulties in crossing the Mississippi, and other embarrassments, the time of removal was extended to a much longer period than eighty days. ”

“ John Ross had a general order and power to pay the claims arising out of the emigration; he received the money and paid it out. Several years ago he paid over to the Cherokee nation $125,000, which had been saved from the expenses of the emigration ”

“ The error complained of is, that the Circuit Court did not give an opinion on a point proposed; the court was certainly bound to give an opinion, if required, upon any point relevant to the issue. Douglass v. McAlister, 3 Cr. 297. But it is equally clear, the court cannot be required to give to the jury an opinion on the truth of the testimony in any case. Smith v. Carrington, 4 Cr. 62. It is the province of the jury to weigh and decide upon the sufficiency of the evidence. Where there is no evidence to prove a material fact, the court are so bound to instruct the jury, when requested ”