Park v. . Exum
72 S.E. 309
N.C.
1911
Check Treatment
Hoee, J.,

after stating the case: Our statute on negotiable instruments, as applied and construed in several recent decisions of the Court, is to the effect that in order to establish the position of holder in due course, when required to shut off counterclaims and defenses otherwise available, it must be shown that the instrument is complete and regular on its face and that title thereto was acquired in good faith and for value before maturity and without knowledge or notice of fraud or other impeaching circumstance, and, except in case of instruments payable to bearer, when the indorsement is denied, the same must be proved. Myers v. Petty, 153 N. C., 462; Mayers v. McRim mon, 140 N. C., 640; Tyson v. Joyner, 139 N. C., 69.

In the present case there was allegation, with evidence on the part of defendant, tending to show that there was a breach of warranty, in the sale, on the part of these vendors.

On a perusal of the entire testimony, we think there was evidence tending to show fraud and deceit on their part, inducing the sale and causing damage, under the principles stated in Myers v. Petty, supra; Whitehurst v. Insurance Co., 149 N. C., 273; May v. Loomis, 140 N. C., 350, and cases of like import. The instrument, too, was payable to order and the indorsement was denied in the pleadings, thus putting on plaintiff, in order to shut off the defenses arising on the testimony, the burden of showing that the instrument had been indorsed and that he was otherwise a holder in due course. True; the deposition of plaintiff, introduced on the trial, contains full and direct statement, tending to show that plaintiff was indorsee for value before maturity and in all respects a holder of the note in due course, and it may be that his Honor was right in intimating that he would charge the jury “that if they found the facts to be as *231 testified to in tbe deposition there should be a verdict in plaintiff’s favor; but in this and every other case, when proof is required to establish a determinative issue, the credibility of the evidence is for the jury, and they must be allowed to consider and pass upon it themselves. We'have so held in a case on this very subject, Bank v. Fountain, 148 N. C., 590, and a new trial was granted in that case because the court erroneously invaded the province of the jury by telling them that “the prima facie case of plaintiff had been restored by the uncontradicted evidence of the president of the bank, etc.” The opinion in question quotes with approval from Bank v. Iron Works, 159 Mass., 158, as follows: “In an action on a promissory note, which was defended on the ground that the note had been fraudulently put into circulation by the P. L. Co., a Massachusetts corporation, organized for the purpose of ‘doing a brokerage business in commercial paper, stocks, bonds, and other property,’ from whom the plaintiff company acquired it, the plaintiff’s officers testified that the note was taken by them in good faith and for value, before maturity, and the defendant introduced no testimony to contradict these officers: Held, that the defendant was entitled, nevertheless, to go to the jury on the question whether the plaintiff took the note for value and without notice of fraud.”

Under the conditions stated, therefore, with the controlling issue to be determined, and involving the credibility of plaintiff’s testimony, tending to establish it, his Honor had no. right to say in the hearing of the jury, “that he would not allow a verdict to stand in favor of defendants.” The Court has been always swift to enforce obedience to our law which forbids a presiding judge to express an opinion on the disputed facts of a trial, and under numerous decisions construing the statute, we must hold this remark of his Honor, in the presence of the jury and before verdict, to be reversible error. S. v. R. R., 149 N. C., 508; Withers v. Lane, 144 N. C., 184; S. v. Dixon, 75 N. C., 275; Nash v. Morton, 48 N. C., 3. The expression objected to was undoubtedly an inadvertence. From a long, intimate, and much valued association with his Honor, when. *232 we were at the bar together and from observation of his work as a judicial officer, the writer knows of a certainty that there is no man or judge who places higher estimate on the value of the trial by jury or holds deeper conviction that it should now and always be preserved in its fullest integrity. For the error indicated, defendant is entitled to a new trial, and 'it is so ordered.

New trial.