70 N.C. 410 | N.C. | 1874
Among other defences set up in the answer are the following:
1. The plaintiff has no such interest in the note as entitled him to sue.
2. The note had been paid.
At Spring Term, 1873, of the Court below, the case was tried, and two issues were submitted to the jury;
1. ITas the plaintiff such an interest in the note as entitles him to sue ?
2. Has the note been paid ?
The j ury found both issues for the plaintiff; that he had such interest as entitles him to sue, and that the note had not been paid.
The first issue was not put to the jury in the best form; because it involves a question of law which was not for them, but for the Court.
What interest the plaintiff had in the note, was a question of fact for the jury; whether such interest entitled Mm to sue, was a question of law for the Court. It turns out, however,
We are of the opinion that his Honor was right in that charge.
Upon the second issue his Honor charged the jury that if they believed the evidence of the defendant Worrell, they should find the note paid; but if they believed the evidence offered by the plaintiff", they should find that it had not been paid.
We have frequently said that this is a very unsatisfactory way of putting a ease to the jury; and that there are very few cases where it can be allowed, and none in which it can be necessary. In this case the jury might have believed every word of Worrell’s testimony and yet not find the note paid; for he said only, that, “ according to his recollection, he had paid it.” And on the other hand they might have believed every word of the testimony offered by the plaintiff, and yet have believed that the note had been paid to the original payee, before the plaintiff got it. The proper charge would have been, that they should consider all the evidence offered on both sides, and find the fact according to their convictions.
For this .error there must be a new trial.
The foregoing are all of the exceptions to the Judge’s charge. And upon these exceptions alone, the case is now before us. It seems, however, that the case had been tried before at -Term, 1871 ; and an appeal had been taken from that trial to this Court. And at June Term, 1871, the case was remanded. And upon amended pleadings, there was a second trial in the Court below, and from that trial an appeal was taken; and that is the trial which w.e are now reviewing.
But, all that we can say is, that there is error, and that there: must be a venire de novo.
Pee. OuRiAM. Venire de novo.