(after stating the case). There was but one point raised by the plaintiff on the bill of exceptions, and that was the refusal of the Court to entertain his exception to the failure of the Court to stop defendants’ counsel in the remarks made by *99him in the argument before the jury, which it was insisted was an “ abuse of privilege.”
The plaintiff’s counsel contended it was the duty of the Court to stop the counsel, and its failure to do so was error, and entitles the plaintiff to a new trial. This may be so, if the counsel of the plaintiff had made his objection to the objectional remarks in apt time, but it was made too late. In State v. Suggs, 89 N. C., 527, it was held, that “ a party complaining of the abuse of privilege by opposing counsel, must object at the time, so that the Court, when it comes to charge the jury, may correct the error, if one was committed, or the objection will be lost;” and it has been expressly held by this Court, that an objection that the Judge failed to stop counsel in improper remarks to the jury, comes too late waen made after verdict. State v. Sheets, 89 N. C., 543, and Horah v. Knox, 87 N. C., 483.
There may be cases when it would be the duty of the Judge to stop the counsel, when his remarks and conduct are in violation of all the rules of the decorum and propriety that should be observed in the administration of justice, when nothing the Judge could say in his charge to the jury could rectify the wrong or efface the prejudice produced. Such was the case of the State v. Noland, 85 N. C., 576, but that was an extreme case, such as has never before occurred in the history of our judicial proceedings, and it is to be hoped will never again occur.
It was insisted in the argument before us in behalf of the defendant, that he was entitled to a new trial, because the Judge in his charge to the jury had failed to comply with the requirements of the Act of 1796, The Code, §413, which requires the Judge to state in a plain and concise manner, the evidence given in the case, and declare and explain the law arising therefrom; and to sustain his position he cited the cases of State v. Jones, 87 N. C., 547, and State v. Rogers, 93 N. C., 524, and other cases of like import might have been cited. But all of these cases, it will be seen, were cases where questions of law were involved, which might be declared the one way or the other, according as *100the jury might find the facts to be, to which the principles of law were applicable.
The Act of 1796 is held to be declaratory of the common law, and that a Judge is not bound to charge the jury unless he chooses to do so, but if he does undertake to charge, then he must conform to the requirements of the Act. State v. Morris, 3 Hawks, 391. What is 'evidently meant by the charge to the jury, are the instructions given by the Judge, upon the law applicable to the facts of the case, but when there is no principle of law involved, he cannot be said to charge the jury in the sense of the statute.
But although a Judge is not bound to charge the jury, as Chief Justice Tayhor said in Morris’s case “no Judge would ever refuse to impart such assistance, when it is requested by a jury, nor would he withhold it in any case wherein the nature of the evidence, or the conduct of the cause, led him to believe that his aid would enable them to discharge their constitutional functions with more correctness or facility. But it must of necessity depend upon the circumstances of each case, whether the Judge believes that his aid would be of any efficacy; whether the case be not so plain and intelligible as to render his interference unnecessary, or the evidence so equally balanced as to make it unsafe.”
The object of the act of 1796, was evidently intended to be applied to those cases where questions of law arise upon the facts of the case, for the Judge is required “to declare and explain the law arising upon them.” Qai bono recapitulate the facts of a case, where there is no principle of law arising upon them, and it is a pure question of fact, lying entirely within the province of the jury ?
When, in the trial of a cause like that of the State v. Rogers, supra, and others of that class, where the witnesses are numerous, the evidence complicated and conflicting, and there are different principles of law applicable to the different aspects of the case, as presented by the opposing evidence, it is most clearly *101the duty of the Judge to comply with the requirements of the statute. To refuse to give any charge in such a case would be a gross dereliction of duty, and subject him to just public censure. But when the facts of a case are few and intelligible, and there is no question of law to be charged by the Court, we do not see the necessity of l’ecapitulating the facts, nor do we think it is the duty of a Judge to do so, unless he is requested so to do. State v. Reynolds, 87 N. C., 544, and State v. Grady, 83 N. C., 643.
In the case under consideration, there was no question of law involved. It was a simple question whether the land in controversy was included in the devise of the “Willow Branch place.” Thei’e was no request that the Judge should recapitulate the facts, and we are unable to see how his doing so could have aided the jury in coming to a determination upon the facts of the case. It wasa question of preponderance of evidence, exclusively within the province of the jui’y ; and we are of the opinion, therefore, that the charge of the Judge is not obnoxious to the objection of the defendant.
The judgment of the Court- below must be affirmed.
No error. Affirmed.