Sneed v. Creath, 8 N.C. 309, 1 Hawks 309 (1821)

June 1821 · Supreme Court of North Carolina

8 N.C. 309, 1 Hawks 309

Sneed v. Creath.

From Granville.

Under the act of 1/96, a Judg-e may say to a Jury, that a particular fací is proved, if the Jury believes the witness deposing to such fact. If a witness is proved to he a minister of the gospel, that fact may with propriety be mentioned to a Jury; but it does not necessarily, entitle his testimony to more weight, than that of another man.

This was an action of debt brought on a bond made payable to Sam’l Creath, for 251. of the currency of Virginia, executed by the Defendant on the 9th of March, 1808, and on the 23d of September, 1818, indorsed by the executrix of the original obligee to the Plaintiff. The Defendant pleaded payment, and to support the defence, introduced as a witness, his brother William Creath, a minister of the gospel, who deposed that 16 or 17 years before, the obligee of the bond now in suit, informed the witness that a final settlement of accounts had taken place between himself (the obligee) and the obligor, and shewed him the bond on which this action is founded, and also a deed of trust for a certain horse, to secure the payment of the bond; the witness also stated that he was informed by the obligee that this bond was founded ?n part upon a judgment obtained in Court, in favor of his mother. This witness also stated that the obligee had afterwards informed him, he had received partial payments on the bond, and that in 1810, the witness was present at the house of the obligee, together with the Defendant, when a final settlement took place; the bond now sued on was produced and fully satisfied, and the -witness wrote a receipt in full against it, which the obli-gor signed and the witness attested, and that he left all the papers on the table.

The executrix of the obligee was introduced by the Defendant, to prove declarations by the obligee, admitting payment of the bond. She stated that some short time before the death of the obligee, he caused her to get this bond, with the view of sending it to the obligor for payment; but that he declined afterwards sending it, and directed her to put it away, which she did, and after his death was not able to find it, until a short time before she indorsed it to the Plaintiff. While it was lost, as the witness supposed, she applied to the Defendant for payment, and was asked by him where the bond was ? She answered, it was mislaid ; and Defendant assured her he would not, in consequence of that circumstance, withhold any thing from her or her’s., This witness was present at the settlement spoken of by William Creath, and though not particularly attentive, understood it to be a settlement of accounts and transactions different from those of which he spoke. Further, she stated that she, at the time, thought the witness, Creath, was intoxicated ; that she understood the bond in question was given, in consequence of the Defendant’s having sold a horse, which the obligee owned. William Creath was then called again to explain his situation at the time of the settlement, when he stated that he was perfectly sober, and explained the circumstances and acts which had induced the belief in the last witness of his intoxication.

The Plaintiff then produced the record of the judgment spoken of by Creath; as being part of the consideration of the bond. The suit was in the name of Susannah Creath ; but the bond had been transferred to Samuel Creath, who, as agent for Susannah, managed the suit.-, The judgment had been obtained in the month of May after the date of the bond, on a bond in the penalty of 501. currency of Virginia, conditioned for the payment of 9.51. of the same currency, and the execution appeared to have regularly issued until February 1809, when it was returned, “stayed by order of Plaintiff’s agent, Samuel Creath, according to the order filed.” A witness was the® introduced,, who proved the drawing of a bond by Wynne, (the subscribing witness to the bond in suit,) for the sum of 9.51. currency of Virginia, which he understood from all parties, was in some way connected with a transaction relative to a horse. The bond sued on was in the hand-writing of Wynne, and appeared to have been written and executed at the same time.

The Judge, in his charge to the Jury, stated that the evidence of William Creath, if believed, proved a settlement of the bond on which the action was brought, that it was given in consideration of a bond in which Samuel was interested, made by John, the Defendant, payable to Susannah Creath, the mother of the witness, the Defendant, and Samuel, for the penalty of 501. conditioned for the payment of 951. That it did not appear that the witness William had any inducement to commit a perjury ; that standing in the situation of a relation to the Defendant, to Samuel the obligee, and to the individual who transferred the bond to the Plaintiff, they ought in charity to believe the witness. That there was nothing to impeach his testimony, and being a preacher, it ought to add weight to his evidence. If the Jury believed the testimony of the witness William, they should find for the Defendant.

Tiie Jury found.a verdict for the Defendant: a motion .was made for a new trial, which was refused, and .judgment rendered pursuant to verdict, from which the Plaintiff appealed.

Tateoh, Chief-Justice.

A Judge cannot, under the restraint imposed by the act of 1796, giv-e an opinion in char ¡riñe; the Jury, whether a fact is fully or sufficiently s' , ° , ,, . , „ , , proved j “ such matter,” in the language oí the act, “being tlie time office and province of the Jury and if the charge in this case had simply stated that the settlement was proved by the witness, it would have been in conflict with the law ; when, however, it proceeds to state, that the settlement is proved if the Jury believe the •witness, it explains the sense in which the word proved is used as synonimous with evidenced, in which latter ■sense it would probably be understood by the Jury, who would then feel themselves at liberty to estimate the weight of the evidence. It were to scan the instruction with too critical an exactness, to award a new trial on this ground.

As to the other point: The profession of a preacher does not necessarily invest a man with that purity of morals which renders him more scrupulous in declaring the truth than another man ; for it sometimes happens, that even the members of that sacred vocation are overpowered by the temptations to vice. That a witness is a preacher, ought, if proved, to be stated to the Jury, that they may judge how far that circumstance entitles his testimony to additional weight $ but even then a Jury would draw their conclusions from his individual character, and its correspondence with his profession, rather-than from the profession itself. The instruction given in this case can only be sanctioned by assuming the position, that a preacher ecc vi termini, denotes a person whose evidence is entitled to greater weight than that of another man : whereas, a preacher whose life and profession are at variance, is less entitled to confidence than another man, since to his other vices he adds that of hypocrisy ; and he who could impiously aim to deceive th« Deity, would not scruple to mislead his creatures. On this part' of the charge, therefore, a new trial must be awarded. >

Hah. and Henderson, Judges, concurred.