Williams v. . Averitt , 10 N.C. 308 ( 1824 )

On the trial below the plaintiff proved the beating, and defendants said they had no testimony and disclosed no ground of defense. The case was put to the jury, and argued by the plaintiff's counsel as a question involving solely an inquiry into the amount of damages; and after his argument, the defendants' counsel objected that the plaintiff had neither shown property or possession in the slave, and in argument insisted on this as a defense. The counsel for the plaintiff then moved that he might be allowed to introduce one of the witnesses before examined, by whom he could prove an undisputed title to and (309) possession of the slave in the plaintiff, and that neither the defendants nor any other person claimed title or possession against the plaintiff. The witness on his examination had not been asked any question as to title, property, or possession. The court refused to allow the witness to be examined to that point, and the plaintiff submitted to a nonsuit. The case stood before this Court on a rule to show cause why a new trial should not be granted. It is evident that the merits of this case were not before the jury, and it is more than the likely that the decision in Kelly v. Goodbread, 4 N.C. 468, was the cause of it. It is very true, as is (310) said in that case, that permission to receive testimony will always be granted or withheld according to the nature of the action, the conduct of the parties, and the necessity of receiving further evidence for the advancement of justice. In that case it might be said that it was a hard and penal action, but nothing is alleged against the demeanor and conduct of the counsel, and as the law gave the action, the evidence offered to be given was indispensable for its support. For the same reason, the counsel for the plaintiff could have had no reason for withholding it. It was owing, no doubt, I think, to an oversight, of which those most attentive will sometimes be guilty. I confess I am not altogether satisfied with that case. In this case, which is very much like it, the attention of the parties litigant seems to have been called to the main point in dispute, namely, the abuse which it was alleged the negro received, the counsel for the plaintiff supposing that title in the plaintiff was admitted or not disputed. Nothing is alleged against the fair conduct of the counsel of the plaintiff. As the testimony as to title was all important to support the action, there should have been no inducement to keep it back. It must be attributed to inattention. But the loss of the suit is too great a penalty to be inflicted for it, even on the counsel. But this is not all; it spends its force upon the innocent client, at whose door there rested no fault. I attribute no blame to the defendant's counsel when I say that it is more than likely that the objection would have been made before the plaintiff's counsel made their opening speech, had they not waited until after it was made for the purpose of using it as a barrier against the introduction of testimony which the plaintiff's counsel had it in his power to offer. (I cannot bring myself to doubt but that the rule for a new trial ought to be made absolute, and I do it with the less regret because I think the error was the consequence of one committed in this Court, for which I am (311) as reprehensible as anybody else.) I cannot see that Armstrong v. Wright, 8 N.C. 93, has any direct bearing upon this case. InParish v. Fite, 6 N.C. 258, evidence was received after the jury had retired from the bar under peculiar circumstances. At the same time that I say that a new trial ought to be granted in this case for the reason before given, namely, that the judge was influenced by the case of Kelly v.Goodbread, supra, I wish it distinctly understood that I would not be for granting a new trial had the decision in that case never been made; because I hold that it is altogether discretionary with the presiding judge to receive testimony in such cases or not. He will be governed by many circumstances which it is not in the power of this Court duly to appreciate. The objection I have to the decision in Kelly v.Goodbread is that the Court undertook to decide that the judge in that case had done right in rejecting the evidence, when I think they ought to have said it was discretionary with the judge to reject it or not, as appeared to him to be right. For that reason I am for granting a new trial in this case, which I would not do did I not fear that case was considered by the judge as imperative when he rejected the evidence in this case.

The CHIEF JUSTICE concurred.

HENDERSON, J., dissented, but gave no reason.

PER CURIAM. New trial.

Cited: S. v. Rash, 34 N.C. 386.

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