3. - 1. When the judge at the trial misdirects the jury, on matters of law, material to the issue, whatever may be the nature of the case, the verdict will be set aside, and a new trial granted; 6 Mod. 242; 2 Salk. 649; 2 Wils. 269; or if such misdirection appear in the bill of exceptions or otherwise upon the record, a judgment founded on a verdict thus obtained, will be reversed. When the issue consists of a mixed question of law and fact and there is a conceded state of facts, the rest is a question for the court; 2 Wend. R. 596; and a misdirection in this respect will avoid the verdict.
4. - 2. Misdirection as to matters of fact will in some cases be sufficient to vitiate the proceedings. If, for example, the judge should undertake to dictate to the jury. When the, judge delivers, his opinion to the jury on a matter of fact, it should be delivered as mere opinion, and not as direc- tion. 12 John. R. 513. But the judge is in general allowed to very liberal discretion in charging a jury on matters of fact. 1 McCl. & Y. 286.
5. As to its effects, misdirection must be calculated to do injustice; for if justice has been done, and a new trial would produce the same result, a new trial will not be granted on that account, 2 Salk. 644, 646; 2 T. R. 4; 1 B. & P. 338; 5 Mass. R. 1; 7 Greenl. R. 442; 2 Pick. R. 310; 4 Day's R. 42; 5 Day's R. 329; 3 John. R. 528; 2 Penna. R. 325.