#### Williams v. Averitt and others.

"j v From Washington. J

It is altogether discretionary with a judge below to receive farther testimony after the argument of a case to the jury, and this Court will not, in general, disturb the exercise of such discretion: but in a case in which the rejection of farther testimony below produced peculiar hardship, and was founded on the authority of a prior case similar in its facts, in which the rule as to discretion was not correctly laid down, and in which it had been held imperative on the judge to reject the testimony; this Court granted a new trial, because the prior case had prevented the exercise of any judicial discretion in this instance.

This was an action of trespass for beating a slave, the property of the plaintiff.

On the trial below the plaintiff proved the beating, and defendants said they had no testimony and disclosed no ground of defence; 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 defence: the Counsel for the plaintiff then moved that he might be al*309lowed to introduce one of the witnesses before examined, by whom he could prove an undisputed title to and 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.

Hogg,

in support of the rule, argued that this Court was bound to do what should have been done below, and that the case here stood in precisely the same situation as to the facts in which it stood in the Court below, and referred to and commented on the case of Kelly v. Good-bread’s executors, (JV“. C. Term Rep. 28.)

Ruffin,

contra, said, that the Court below had discretionary powers as to permitting the witness to be reexamined; that the point was one which it belonged to the Court below exclusively to decide on; and that having exercised that discretion, this Court would not interfere. It might with as much propriety be asked of this Court to reverse decisions made below on questions of amendment, &c. This Court refuses, on the ground that the discretionary power of the Court is vested in the inferior tribunal, and this, an appellate Court, (not being able to see all the circumstances,) will not revise the exercise of that discretion. Armstrong v. WHght, (1 Hawks 93.) Kelly v. Goodbread, (JV*. G. Term. R. 28.) Parish v. Fite, (1 Law Repos. 238.) Regularly no evidence ,can be heard after the argument is opened, much less after it is closed: and certainly there can be no error, technically speaking, in the Court preserving order and prohibiting an irregularity in practice.

Haul, Judge.'

It is evident that the merits of this, case were not before the jury; and it is more than likely that *310the decision in Kelly v. Goodbread’s Exrs., (N. C. Term Rep. 28.) was the cause of it. It is very true as is said in that case, that permission to receive testimony will a}wayS be granted or withheld according to the nature of the action, the conduct of the parties, and the necessity of receiving farther 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 would 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 *311consequence of one committed in this Court, for which I am as reprehensible as any body else.) I cannot see that Armstrong v. Wright has any direct bearing upon this case. In Parish v. Fite, 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’s executors, I wish it distinctly understood that I would not be for granting a new tidal had the decison 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 of the case of Kelly v. Goodbread’s executors, 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 v as considered by the judge as imperative, when he rejected the evidence in this case.

The Chief Justice concurred.

Judge Henderson dissented, hut gave no reasons.