Buttram v. Jackson

JBy the Court. Jenkins,. J., delivering the opinion. If either of the grounds upon which a new trial was asked was tenable, there was error in overruling the motion. We do not think the Court below erred in admitting the fi. fas. against Harris. One of the facts in issue was the insolvency of Harris. All evidence of his indebtedness, at that time, was material to the issue. Insolvency results from the excess of indebtedness above means to pay. Hence, when that is the issue, evidence of indebtedness was just such as it behooved the party maintaining his insolvency to offer. Eor a like reason, we think, the Court erred in ruling out evidence of what was said by plaintiff in error and Harris, at the time of a settlement between them, of which there was evidence before the Court. The evidence of that settlement was to show means in the possession of Harris, to rebut the inference of insolvency, that might be drawn from the fact that there were executions open against him; but to us it seems, that to give this evidence full force, to make it entirely intelligible to the jury, those sayings should have been received. They were part of the res gestee; they went to show how much was received by Harris in that settlement, and in what received. It would have contributed to show the extent of his means, and thus aid in elucidating the question of solvency or insolvency. Error was further assigned, in the grounds of the motion for a new trial against the charge of the Court as set forth in the statement. [413] • In that charge the presiding Judge deemed it necessary, in order to facilitate the application of the law by the jury to the case, to advert to certain facts claimed by one party to have been proven, but the proof of which was denied by the other. This practice is not objectionable; indeed, it is sometimes necessary, to enable the jury to understand clearly the relation ■ existing between the law and the facts of the case; but the utmost caution should be observed to guard the jury against the inference, that .the Judge considers any disputed fact to have been proven. Juries are usually very open to influence from the Bench, and it is right that they should be so; but that influence should never be extended to their conclusions, in matters of fact. A careful analysis of the charge under review makes it apparent that the Judge put his reference to some of the facts hypothetically, as “ if the defendant told the plaintiff,” etc., “ if Harris was not good at that time,” etc., whilst his reference to other facts was in terms which assume that they were incontestably proven, as “Jackson, who was ignorant of the condition of Harris, at the time, and whose condition was hnoion to Buttram,” etc. The hypothetical is the proper form of putting facts in such cases, beeausé it distinctly puts the jury on the inquiry as to those facts; but in relation to other facts, put positively before them, put as facts ascertained in the same connection, in the same sentence, they are much less apt to feel the necessity of inquiry. Indeed, 'these different modes of treating different facts, would seem to give a double assurance, that they are relieved from the necessity of scrutinizing the evidence for the proof of some of them: 1st. Because the Judge has treated them as proven. 2d. Because he has cautiously treated, others as doubtful. We think there was error in this. Moreover, we cannot resist the conclusion that the verdict is against the weight of the evidence. The insolvency of Harris, and the knowledge of it by the plaintiff in error, at the time of the trade between the parties, are facts necessary to the support of the verdict. We think the weight of evidence is strongly and decidedly in favor of his solvency at that time, and [414] still more so against any knowledge of such insolvency by Buttram. The judgment of the Court, therefore, must be reversed and a new trial ordered. Let the judgment be reversed.