Wall v. McCrary

Harris, J.

1. There is a difficulty that this Court has to encounter very often, of passing upon the credibility of witnesses indirectly, who are utterly unknown to us, who are not sworn and' examined in our presence, — which we feel very sensibly, and which furnishes generally the reasons for acquiescence in verdicts, especially when new trials are moved and refused by the presiding Judge. But cases sometimes come up which forbid that our practice should be unalterable — not to be modified. In this case all are paper witnesses. Three swear distinctly that the Confederate notes paid by McCrary were taken conditionally, not absolutely — that is, if old Mr. "Wall could use these notes in payment of debts due by him — old man Wall being one of the three witnesses — and by them all circumstances attending the transaction are narrated. This body of testimony is really opposed only by the oath, of McCrary in a general denial. If ever a verdict was rendered against the weight of testimony, this is the case. There must be a new trial on this ground. And whilst we award a new trial on the ground stated, we deem it proper to say *64we are neither satisfied with the instructions of the Court, nor the manner of submitting them to the jury.

2. "We find nothing in the record to authorize that portion ■of the charge in reference to false representations by Wall as to the mills, and the measure of damages in such case. There are other portions which do not accord with our ideas, in the mode of submission pursued, which we forbear to remark upon, as the case goes back for a re-hearing; and if it should be returned here again, it will come back unembarrassed by admissions said to have been made by counsel in the progress of the trial, which counsel here assert were misapprehensions of what they said.

New trial ordered.