1 Leigh 340 | Va. | 1829
It was questioned at the bar, whether the bill of exceptions in this case, contained a statement of ail the evidence before the jury, or a certificate by the judge of such facts only as he considered proved. To my understanding, it is a simple detail of the evidence, drawn by the
This then, is the very question which was before the court in Bennett v. Hardaway, in which judge Roane delivering the opinion of the court, after stating the case, says, “ the question is, whether it is competent to a party, to carry all the evidence to the appellate court, by a bill of exceptions, and on the ground of it to reverse a judgment of the court below, refusing to grant a new' trial ?” He proceeds to give strong and conclusive reasons, why an appellate court, cannot upon the evidence reverse the opinion of the trying court. “ It. does not follow, (he says) that the judge believes every witness who gives evidence before him ; as he may well hesitate to do, from the manner of testifying, and other extraneous circumstances; nor can he do it, where they conflict with one another. It is evident, therefore, that, in this case, the opinion of this court might he founded on the testimony of witnesses, who were discredited both by the jury and the court below.” Notv, apply this reasoning to
But in Bennett v. Hardaway, the court after deciding the case before it, puts another, and says, that if a bill of exceptions were taken to the refusal to grant a new trial, in which bill the judge should state the facts, (contradistinguished from evidence) as they appeared in evidence to him, they would be inclined to entertain such a bill of exceptions. “ In that case, the exception is not liable to the objection existing in the case before us. The appellate court does not, in that case, depart from or overrule the decision of the trying court, as to the weight of testimony, or the credit duo to any witness. It only acts upon his own certificate and acknowledgment of his opinion upon the subject. Such an exception only states briefly the facts as they appeared
I think, then, in every aspect in which we can view the case of Bennett v. Hardaway, whether we take the case actually decided by the court, or that hypothetically put, it condemns the bill of exceptions before us.
It seems a little strange, that the defendant, knowing that he had to prove his plea, did not summon the only witness, who could have placed the fact beyond question. The subscribing witness to the bond must have known all about
Upon the whole, I do not think we can reverse this judgment, without the hazard of acting upon evidence, which the jury and court below discredited: I am therefore for affirming it.
I think the exception in this case was well taken. The effect of the case of Bennett v. Hardaway is, that it is not competent to a party, by way of an exception to the granting of or refusal to grant a new trial, to refer to the judgment of the appellate court, the credit of the witnesses; and that, therefore, the facts considered by the court as proved upon the trial, and not the evidence by which they are proved, should bo stated. If the rule there [aid down, were considered as extending further than this, and to require, that the court should not state the proved, facts from which the fact in issue might or might not be inferred, hut only the inference made by the court; then, there could be no case, in which an exception to the allowance or refusal of a new trial, could be successfully taken, (except where the court below erred in declaring the law arising from an admitted state of facts), even in a case, where the ground of the application for a new trial, is, that the verdict was contrary to the evidence. For,, if the proof of the fact in issue, was direct and contradictory, tho court must state, that the fact was proved, in its judgment, according to the credit it gave to the testimony: and to such a case the rule in Bennett v. Hardaway, applies. But, in a case in which there was no direct evidence to prove the fact in issue, but only proof of other facts from which the matter in issue might or might not bo inferred ; if the court, instead of stating the proved facts, from which such an inference might arise, were required to state its own inference, this would be, not to state tho fact or facts proved, but the judgment of the court as to their effect: and there would be nothing for the appellate court to decide.
This is such a case. The clear inference from the proved facts, was, that tire bond in question was given for a gaming consideration. Those facts are, that the parties gamed in March; and the obligee, afterwards, declared that he had then won 600 dollars of the obligor. In September, the obligee and the agent of the subsequent assignee declared, that they went to a certain place to meet the obligor, by appointment, who was then to give his bond for a gaming debt due to the obligee, a part of which had already been transferred to the subsequent assignee of the bond: not meeting the obligor at the appointed place, they afterwards, in the same month, declared, that they had obtained the bond from the obligor, for less than the original gaming debt, the obligor having compelled them to allow; credits, as a condition of giving the bond, which he would not otherwise have allowed. The bond in question, is dated the sixteenth and was assigned the eighteenth of September; and the agent of the assignee is the subscribing witness, both to the execution of the bond and the assignment. The only fact directly proved, was that of the gaming: all the rest were inferrible from the admissions of the obligee and the agent of the assignee; an agent for procuring the bond and assignment, whose declarations being a part of the res gesta, and therefore admissible, or if not, unimportant, since those of the obligee were sufficient. The court could not truly certify, that it was proved that the obligee won money of the obligor, and that he took this bond for the money so won. It could, with truth, only state, that those facts had been admitted by him, from which the existence of the facts might be fairly inferred.
It is said the evidence did not support the plea, which alleges that the bond was given for money won by unlawful gaming at cards, while the evidence is silent as to the manner of gaming. It does not appear, that this objection was taken at the trial, or upon the motion for a new trial. To allow it now to prevail, would be a surprise on the party. Suppose no inquiry was made of the witness, by either party, at the trial, as to the manner of the gaming, and this objection had been made upon the motion for a new trial: ought not the court to have inquired how the fact was, and if it found that the gaming was at cards, and there were no other objection, to have allowed a now trial, upon the ground of surprise ? I think it ought: and, as the appellee failed to make the objection in the court below, where it might have been met and obviated, it ought not to be heard here.
I think the verdict was manifestly contrary to evidence, and that both judgments should be reversed, and a new trial of the issue directed.
I am of opinion, that this is a bill of exceptions, which, according to the authority of Bennett v. Hardaway, presents a fit case for the judgment of this court on a refusal of a court below to grant a new trial, on the ground of the verdict being contrary to evidence.
There was no conflicting evidence in the case : only one witness was examined ; and the facts not proved by him, were admitted by the parties, and inserted in the bill of exceptions.
The only question, it seems to me, which the bill of exceptions before us, or one taken in the way last indicated, would present, is, whether, if the jury failed to draw the inference (which it would have been well warranted in doing) that the obligation sued on was given for a debt won at unlawful gaming, it was competent for the court, which heard the trial, to set aside the verdict as being contrary to evidence ?
It is true, that this is a case, in which the jury must infer the fact, that this was a gaming debt, and it would be incompetent for a court to do so, on a special verdict finding these facts and circumstances : hut I do not think it follows, that, if a jury improperly infer a fact, from circumstances too weak to justify the inference, or fail or refuse to infer a fact) which, in many cases, they would he as correct in inferring, as to find the fact on positive proof, it is without the power of the court to correct such improper finding. Had the court granted a new trial in this case, and an exception had been taken precisely in the words of this bill, and the verdict on the now trial had been for the defendant, could we have reversed the judgment, because, although we might agree with the court which granted the new trial, that the first verdict ought to have been the same with the last, yet the first verdict must stand, the court not having the power to set it aside ? It seems to me not. Where the evidence is not conlradictorv, where there is no contest about creed
I am of opinion, that the current of decisions in this court warrants the appellate tribunal, in a case properly made out as this is, in revising the decisions of inferior tribunals refusing to grant new trials. I am also of opinion, that the inference, from the facts proved, that this obligation was given for a gaming consideration, is too manifest and irresistible, to justify the verdict of the jury, and the refusal of the county court to set it aside. Both judgments must, therefore, be reversed, the verdict set aside, and the cause remanded for a new trial to be had.