Cain v. Penix

| Ala. | Jun 15, 1856

RICE, C. J.

The charge of the court below assumes that there is an irreconcilable conflict between the testimony of the two witnesses, Hooper and Lay. In making this assumption, the court went beyond the limits assigned to it by the law, and invaded the province of the jury. Even if the testimony of these witnesses was apparently at variance, (as to which we say nothing,) it was clearly for the jury to consider and determine whether their testimony was' not in reality reconcilable, and whether there was any extrinsic reason disclosed by the evidence in the cause, for suspecting such willful and corrupt error or fraud in either of those witnesses, as to destroy his credit altogether. — 1 Starkio on Ev, 515, § 81; Moore v. Jones, 13 Ala. R. 296; Hitt v. Rush, 22 Ala. R. 563.

If the court below had properly referred to the jury the credit of these witnesses, and the reconcilableness and effect of their testimony, we cannot say that the result of the case would not have been different. There was nothing in the case to warrant the court in making it turn entirely on the question whether the jury believed the whole of the testimony of the one or the other of these witnesses. — As to escrow, see Firemen’s Ins. Co. v. McMillan, at this term; Lovett v. Adams, 3 Wend. R. 380.

As the proceedings under which the land was sold by the sheriff are not set forth, we decline to consider the questions supposed by the counsel to arise out of such sale. And without deciding any other question, we hold the charge of the court below erroneous for the reasons above stated; and for that error, we reverse its judgment, and remand the cause.