{ "id": 8661089, "name": "CUTLER v. ROANOKE RAILROAD AND LUMBER CO.", "name_abbreviation": "Cutler v. Roanoke Railroad & Lumber Co.", "decision_date": "1901-06-05", "docket_number": "", "first_page": "477", "last_page": "497", "citations": [ { "type": "official", "cite": "128 N.C. 477" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "24 N. C., 32", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683820 ], "opinion_index": 0, "case_paths": [ "/nc/24/0032-01" ] }, { "cite": "48 N. C., 222", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2086751 ], "opinion_index": 0, "case_paths": [ "/nc/48/0222-01" ] }, { "cite": "55 Am. Dec., 408", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": 0 }, { "cite": "34 N. C., 254", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8690053 ], "opinion_index": 0, "case_paths": [ "/nc/34/0254-01" ] }, { "cite": "61 N. C., 317", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2090142 ], "opinion_index": 0, "case_paths": [ "/nc/61/0317-01" ] }, { "cite": "115 N. C., 260", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651789 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nc/115/0260-01" ] }, { "cite": "38 Am. St. Rep., 841", "category": "reporters:state", "reporter": "Am. St. Rep.", "pin_cites": [ { "page": "844" } ], "opinion_index": 1 }, { "cite": "158 Pa. St., 204", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 848193 ], "pin_cites": [ { "page": "218" } ], "opinion_index": 1, "case_paths": [ "/pa/158/0204-01" ] }, { "cite": "109 N. C. 664", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651291 ], "pin_cites": [ { "page": "669" } ], "opinion_index": 1, "case_paths": [ "/nc/109/0664-01" ] }, { "cite": "118 N. C., 737", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653906 ], "opinion_index": 1, "case_paths": [ "/nc/118/0737-01" ] }, { "cite": "118 N. C., 737", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653906 ], "opinion_index": 2, "case_paths": [ "/nc/118/0737-01" ] }, { "cite": "118 N. C., 737", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653906 ], "opinion_index": 3, "case_paths": [ "/nc/118/0737-01" ] }, { "cite": "61 N. C., 317", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2090142 ], "opinion_index": 3, "case_paths": [ "/nc/61/0317-01" ] } ], "analysis": { "cardinality": 1385, "char_count": 38631, "ocr_confidence": 0.345, "pagerank": { "raw": 1.7857177049112308e-07, "percentile": 0.7141760002224068 }, "sha256": "5a0323cba649ca3f70a870c1411a9a074000c8393ae7d600b163d1b6bb7eff80", "simhash": "1:920a64f089f28f06", "word_count": 7002 }, "last_updated": "2023-07-14T15:44:14.013877+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CUTLER v. ROANOKE RAILROAD AND LUMBER CO." ], "opinions": [ { "text": "Furct-ies, 0. J.\nTbis is an action to recover damages for trespass by defendant on the land of tlie plaintiff, for timber cu'fc and removed from siaid land and to vacate a deed dated tbe 17th of March, 1899, or to have it corrected.\nIt appeared on tbe trial and Was admitted by ail parties, that the plaintiff bad conveyed all tire timber on tbe land embraced in tbe deed of \u2018the 17th of March, 1899, to tbe defendant, by deed dated 28th February, 1887, of a size above 13 inches diameter at the stump; iamd that the time in which defendant was to cut and remove said timber bad not expired by some months. Tbe \u2022allegation of the plaintiff is that on the 17th of March, 1899, one Freeman, agent of the defendant came to Mm in the store of one Bowen, and stated to him that since the date of the first deed, 28th February, 1887, other timber on tbe land bad grown to thirteen inches and proposed to buy that growth; or, in other words, toi buy all the timber on said land above 13 inches'; that defendant did not want any further time in which to get said timber off tbe land \u25a0 \u2014 said that it would all be taken off by June,which was within the time named in the original deed. Tbe original deed of February, 1887, authorized tire defendant to put such tram-roads on said land as might be necessary to remove the timber therefrom.\nThe plaintiff alleges that the contrae was to sell defendant the growth of the timber since the date of tbe first deed, to 13 inches, for $25.00, and that- tbis was 'the only contract that was made. Tbe case rests on the plaintiff\u2019s testimony, which is as follows:\n\u201cThe bargain between me and Mr. Freeman, the defendant\u2019s agent, for tbe sale of \u2018the timber under the deed of March 17, 1899, was made at Horace Bowen\u2019s store. Freeman said that- tbe company would out tbe timber I bad sold to it by deed o\u00ed June 13, 1887 (wbicb was same sold in last deed before tbe time went out on June 13, 1899), and that tbe company didn\u2019t want any more time, but that there was a lot of timber on tbe land that bad grown up over thirteen inches at stump since that deed was executed, that they could not cut under that deed, and that- the company wanted to buy tbe growth that had grown up- slinlce June 13, 1887. I thought they Would break it to pieces in cutting the other, so I agreed to sell it. I told him I Would not sell him any more \u25a0time on the other\u2019 timber because be wouldn\u2019t offer me as much as he Was offering others in -the neighborhood. He said all right be didn\u2019t want anything but the growth, as be already bad tiie balance. When we bargained, I went home to get my wife to sign the deed. It was about one-balf or three-fourths of a mile. He went along with me to where the log was across the path, where he could not pass. He was in a buggy. I walked. I left him at the log hoi write the deed while I went to tbe house for my wife. When I got back he had the deed written. It was late in the evening, tbe sun was about an hour high. Hi's horse was so- restless be Wouldn\u2019t be still a. minute. He said to me, \u2018Make baste and sign it; it is late and I am in a great burry. I\u2019ve got to go to Washington to-night. This h'orse hasn\u2019t got sense enough to stand still.\u2019 My son was off some distance cutting wood. He handed me the deed to sign, and asked me if I wanted to read it. I told Mm that if it was like the bargain be made it was all right. He said it was just as the bargain was. That be would have all tbe 'timber cut off by June and before. I thought he was telling me the truth, and I trusted to Ms honesty. He paid me only $25.00 for the timber passed in this deed and didn\u2019t read it. I can not read good. I didn\u2019t have my glasses and when I tried to read without 'them tibe lines ran together. I can read print better than writing. Tbe timber is described in tbe printed part of tbe deed. I can read tbe words of tbe printed part, of tbe deed as tbe counsel mwes bis pencil to them, bait tbe lines, aA ornee run together when lie stops (council here took the deed, pointing\u2019 with his pencil to portion of it and witness\u2019s statements were in reference to tbe principal portions of the paper). Freeman was Notary and took my acknowledgment and exiamination of wife.\n\u201cI thought when I signed the deed it did not convey all my timber, and was misled and induced to sign it by tbe statement of Freeman that it was as we bargained.\u201d\nTbe Court thought 'this testimony sufficient evidence of fraud to submit tbe question to. the jury, and this is tbe question presented by the appeal.\nFrauds affecting\u2019 the validity of deeds are of tiwoi kinds'\u2014 fraud in the facitium, and fraud in tbe treaty. This distinction, though not as material nioiw as formerly, is still material in some ciases. Medlin v. Buford, 115 N. C., 260. Besides the importance of the distinction pointed out in Medlin v. Buford; it was important before the junction of legal and equitable jurisdiction in tire sianie Court, to. determine the jurisdiction, as courts of law -had jurisdiction of frauds in the factum., but not of frauds in the treaty which were cognizable alone in courts of equity. This made it important to- determine, before commencing the action, whether it was fraud in the fadtimi or fraud in the treaty, 'as 'the proper Court in which to bring the action depended on this distinction. And while the distinction is important, it is not of that importance that it formerly was^ as one is sure now to get into the right Court, if there is fraud whether in the factum or in 'the 'treaty. In this, case, while there- may he some slight evidence of fraud in -the fiacbum \u2014 such as the unsuitable place where the deed was executed, the apparent haste with which it was done, the remarks of defendant\u2019s agent to burry and sign the deed \u2014 that bis horse did not have sense enough to stand; thait. it was then l'ate and he had to go to Washing-ton that night, a distance of 18 miles. Besides, it see-ms to us that Freeman was doing a little too much. He was agent of the defendant company and an officer of the law. When 'the deed was signd he moved \u201cthe previous question\u201d and by taking the acknowledgment and privy examination, undertook to \u201clay the matter on the table.\u201d We do not say 'that lie could not in llarw take this acknowledgment and privy examination, but these things, taken in connection with the fact that 'the- deed was not read to the parties making it-, is some evidence we think of fraud in the faetmn.\nBut leaving out of the case these suspicious circumstances we have just stated, it seems to ns to be a dase thait should have gone to the jury upon the evidence of fraud iu the treaty. In the dase of McArthur v. Johnson, 61 N. C., 317, the Court held that plaintiff could not recover, and thait was a case very much like this, except there wlas no question in that case but what the plaintiff could read. In this case the evidence leaves the question whether plaintiff could read in doubt. And if this was a material question in the ease it should have been left to the jury. The case of McArthur v. Johnson was brought in the Superior Court of law before it had equitable jurisdiction, and 'the Court held that it was n'ot a case of fraud in the factum, and the plaintiff could not recover. But in the discussion of the case the Court lays down the distinction between fraud in the factum and fraud in the treaty; and while the Court did not. decide that that case was a case of fraud in the treaty it seems to us that tire definition given in the discussion of the case shows thait. it was. And the same doctrine is held in Gant v. Hunsucker, 34 N. C., 254; 55 Am. Dec., 408, while the more recent case of Medlin v. Buford, 115 N. C., 260, which seems to he putt largely on Mc- Arthur v. Johnson, clearly shows that this. Cas\u00e9 is one of fraud in. the treaty, if plaintiff\u2019s evidence is to be believed; and we have nothing' to do with that, as it is purely a question for the jury.\nIn Medlin v. Buford, the plaintiff signed a paper upon the representation of Davis that it was a power of attorney authorizing him to raise $1,000, to invest for her benefit, at a profit of $2o per month. The plaintiff in that case could read, but did not read the deed; was imposed upon by the false representation of Davis as to the contents of the deed, and the Court held thlat this was not a fraud in the factum, and as third parties Who were innocent of the fraud had become interested, the plaintiff could not recover. But it is distinctly held that it was a fraud in the treaty, and would be declared void as to Davis, and also as to Mrs. Buford, if she or her-attorney (Mr. Cuitler) had knowledge of the fraud.\nThe distinction between fraud in the factum and fraud in the 'treaty seems to be very narrow, but still it exists and it seems still important thalt it should be observed as in the case of Medlin v. Buford.\nWhile it is important to- observe t\u00edrese ancienlfc landmlarks and to give force and validity to the doctrine of fraud as applied to executed contracts \u2014 to deads \u2014 it should not be lightly done. Misrepresentations in the treaty as to location, boundaries, quality, value, etc., of which the other party had notice, or might have had knowledge by reasonable diligence, will noit be heard by courts of law or equity to invalidate deeds. If this were so, it would seem that no man\u2019s title would be safe. Parties entering into solemn contracts, such as deeds, must use ordinary prudence \u2014 must examine matters open to them at tire time of executing their deeds, or they will not be heard to complain. Lytle v. Bird, 48 N. C., 222; Saunders v. Hatterman, 24 N. C., 32; 37 Am. Dec.,404.\nIn this case it appears from the deed of the 28th of Pebru-ary, 1887, that plaintiff sold and conveyed to defendant all the timber on a certain tracit of land containing ninety acres, above 13 inches at the stump, with, the privilege of establishing tram-road across said land to be used in removing said timber. In the deed of '.the 17th of March, 1899, he conveys all the timber above 12 inches at the stump and conveys the fee-simple in all \u00a1the land covered by these roads'. And extends the time to remove the timber to one year from the 17-th of March, -which would have been out at an earlier period.\nIf the plaintiff\u2019\u00bb statement of the contract of the 17th of March, 1899, be true, the changes contained in the deed as drawn by Freeman and signed by plaintiff are materially different; and as this deed was not read by plaintiff (as he says) because -he could not read it without his spectacles, which he did not have, but -was signed by him, relying on the statements- of Freeman \u201cthat it wiais drawn just as the contract was,\u201d was a fraud in the treaty upon -the plaintiff and should have been submitted to the jury.\nIf the plaintiff had required iifc to be read and Freeman had read it falsely iit would have been a fraud in the factum. McArthur v. Johnson, Medlin v. Buford, supra.\nThere were objections to the plaintiff\u2019s evidence as to the terms of the contract, upon the ground -that 'they tended to vary and contradict the deed. This would -have been so if the deed had been established as- the- deed of the plaintiff But when that was the very question at issue, and When it was necessary to do so to establish tire alleged fraud, it was- competent for that purpose. And after a careful examination, we find no substantial error, and the judgment is\nAffirmed.", "type": "majority", "author": "Furct-ies, 0. J." }, { "text": "Douglas, J.,\nconcurring.\nI can not concur in the contention of the: defendant, that because two men are at ami\u2019s length, as all men generally ara, unless they occupy some fiduciary relation to' each other, one can safely perpetrate a fraud upon the other. This rather novel doctrine seems to be based upon the idea of contributory negligence on the part of the plaintiff, which, concurring with that of the defendant, becomes tire procsimate cause of the fraudulent result. This -application of tire doctrine of contributory negligence is new to me; but even if it were admissible, it could not be a defence in tire present action, because actual .fraud is always wilful. Even in actions sounding in damages tire defense of contributory negligence is never available against wilful injury. Then why should it be a defence against wilful fraud ? I will readily admit that if tire negligence of tire plaintiff hiad enabled tire defendant to perpetrate a fraud upon a third party who was himself innocent of fraud or negligence, he could not recover from such innocent party. Such a case is far different from tire one presented to us in the opinion of tire Court.\nA man might be negligent in walking in the middle- of the street on a -dark night, 'and such negligence might excuse the driver of a wagon for unintentionally running into him, but it wiould be no excuse- for robbery. The doctrine that mere negligence puts a man beyond tire pale of tire law, can never receive nry assent.\nThe- defendant relies upon the case- of Dellinger v. Gillespie, 118 N. C., 737, tire essential point in which was- the fact that tire defendant discovered, the alleged fraud before the work was commenced, and yet permitted tire plaintiff to proceed and put up the lightning rods without objection. The Court said that such conduct wias a waiver of tire alleged fraud if it ever' existed; and that equity would not permit a man to accept work performed after he lrlad full knowledge of -all 'the facts, and then refuse to- pay for it.\nIt is true in that case tire Court also said that the defendant was guilty of negligence, ancl cited Boyden v. Clark, 109 N. C. 664, 669, a case which, I respectfully submit, furnishes no foundation whatever for Ih\u00a9 contention of the defendant in 'the case ait bar. Some- isolated sentences in the opinion, considered without regard to the ess-e-nitiial facts of tli\u00a9 ciase, might offer some show of authority; but the case itself, taken as a whole, fails to do so-. The defendant, Clarke, bought the equitable interest- of one Sherrill, who- held a bond for title from Janies Harper. Olarke subsequently paid Harper the remainder of the- purchase-money, and took a deed from him. The plaintiff, Boyden, who- had bought an adjoining tract, sought to hold Clarke- responsible for alleged representations of Sherrill, although C'l-arke was an innocent purchaser, for a valuable cionsider-altion, without notice, and held title- under Harp-e-r, and not under Sherrill. The Court says (109 N. O., page 667) : \u201cIt w-ould be giving very great latitude- to the doctrine of estoppel in pais if the .mistaken or fraudulent statements of a vendee, occupying land under a contract of sale, were allowed to- have the effect of establishing -title by estoppel, as against .the original vendor and the assignee of the original vendee, after the vendor had performed his contract b-y conveying to 'the assignee, both grantor and grantee being ignorant of the fact that any misrepresentation had been made.\"\nThat case as- thus stated in the opinion itself furnishes no authority for the doctrine- now contended for by the- defendant, that, as between the- original parties, mere neg\u2019li-genc is a defense for wilful fraud.\nTo tlile- contrary may be cited a practically unbroken line of authorities. Eetter on Equity, s-ele. 87, page 136, says: \u201cBut no obligation rests on him to investigate- or- verify the representations, to the truth of which the other party to the- contract, with full means of knowledge, has deliberately pledged Ms faith. In a Court of Equity no- miau can complain that another ha\u00bb too implicitly relied on the truth of what he himself has stated.\u201d\nBeach on Mod. Eq. Jur., sec. 95, says: \u201cA false representation of one of the parties to a contract does not put the other on inquiry as to ite truth. Every contracting party has an absolute right to rely on the express statement of an existing fact, the tiruJth of which is known to the opposite party and unknown to Mm, as the basis of a mutual agreement ; and he is under no obligation to investigate and verify statements to the trulth of which the other party to the contract, with full metas of knowledge, has deliberately pledged his faith.\u201d\nStory\u2019s Eq. Jur., sec. 154, says: \u201cThe danger of setting aside the solemn engagements of parties when reduced to writing, by the introduction of parol evidence, substituting other material terms 'and stipulations, is sufficiently obvious. But what shall be said where those terms and stipulations are suppressed or Omitted by fraud or imposition ? Shall the guilty party be allowed to avail himself of such a triumph over innocence and credulity to' accomplish his own base designs? That would be to' allow a rule introduced to suppress fraud to be the most effectual promotion and encouragement of it. Anid hence courts of equity blave niot hesitated to entertain jurisdiction to reform. all contracts where a fraudulent suppression, omission, or insertion of a material stipulation exis'te, notwithstanding to' some extent it breaks in upon the uniformity of the rule as to the exclusion of parol evidence to vary or control contracts; wisely deeming such cases to he a proper exception to the rule, and proving ite general soundness.\u201d\nBisphlam Prin. Eq., sec. 202, says: \u201cThere is, indeed, a distinction between deeds and oitber instruments which a man intends to execute, though his intention may be brought about by fraudulent means, and those which he 'has no intent ton to execute, but executes under the impression tfoalt tOue instrument is of a different character from what it actually is, or, in other words, executes the wrong paper. In the latter case the instrument is absolutely void, and the law above stated in relation -to voidable instrumente would, in general, not apply.\u201d\nAgain the learned author says, in section 207: \u201cA man who is dealing with another has a right to. rest upon an assertion of a fad made by the latter; but he has no right to rely upon the latter\u2019s opinion, unless, indeed, he is an expert, in which case the parties do- not deal upon equal terms, an'd the ordinary rule does not apply.\u201d\nNeither space nOr time will permit an examination of the numerous authorities cited by these different authors. I will quote but two:\nIn Redgrave v. Hurd, 20 Ch. Div. 1, the celebrated Sir George Jessel, Master of the Rollsj says: \u201cNothing ciato be plainer, I take it, on 'the authorities in equity, thlan that the effect of false representation is not got rid of on the ground that the person bo whom, it was mad\u00a9 was guilty of negligence.\u201d\nIn Sutton v. Morgan, 158 Pa. St., 204, 218; 38 Am. St. Rep., 841, 844, tire Court says: \u201cIt is said, that Williams should have inquired for \u2018himself, and that his opportunities of obtaining information were just as good as those of Morgan. This may he. Prudence should have led him and hi\u2019s 'financial m\u00edan\u2019 -Sutton bo \u00a1test the truth of the glowing statements made by Morgan 'and Gloss, but it did not. They fell easily into the- trap which was set., with some skill and some effrontery, for them; but their neglect, or w!ant of prudence, cam. not justify the falsehood or fraud of those who practiced upon their credulity. The doctrine of contributory negligence can molt be invoked by the defendants- to save them from liability for misleading their victim. They must stand or fall on 'title truth, and good faith, of the representations that led to tlie sale.\u201d This opinion is particularly striking' on account of its conclusion. While granting the prayer of the plaintiff for the rescission of the contract, the return of the money paid amd the cancellation of the mortgage, if concludes as follows: \u201cFor his gross carelessness the plaintiff ought to lose his costs. No bill of costs will be taxed for the plaintiff.\u201d\nThere is an essential difference between aott\u00edal misrepresentation and the mere concealment of material facts of which both parties had equal opportunities of information; but the latter principle I am not now discussing. A common instance of correcting a written instrument which bcth parties might have read, is where a deed absolute in form is construed to be a mortgage.\nIt seems to me that every principle of equity that would grant relief from fraud in the treaty, would apply with even greater force tot fraud the factum.\nWhether there was sufficient evidence of fraud, in the case at bar to go- to the jury, is an entirely different question; but even on that I concur with the Court.", "type": "concurrence", "author": "Douglas, J.," }, { "text": "Clark, f what was agreed to be paid.\nThe defendant aisfced the following special instructions, which were given with the modification below recited:\n1. That if the jury find from the testimony that the plaintiff, J. M. Cutler, when he executed the deed to defendant, on March 17, 1899, could have read it, if he had so desired, and failed to do SO, then he is bound by it and can not be heard to say thlaJfc a fraud was practiced upon him by defendant\u2019s agent, S. E. Ereemlan, by inserting in said deed more timber than said Outier thought was therein, and more than said Freeman told him was conveyed by iit. And if he could by reasonable diligence have ascertained the contents of said deed, it was his duty to' do so.; 'and if yon find that he failed to do so, by not refeuding it, you will answer the first issue \u201cNo.\u201d\n2. That from all 'the evidence-, if believed, the plaintiff, J. M. Cutler, could 'have read 'the deed of March 17, 1899, before signing it, and could have ascertained thereby what timber it conveyed and his failure- to do so, if he did fail, does not relieve him from the operation of said deed, and you will answer the first issue \u201cNo.\u201d\n3. That the deed of June 13, 1887, conveyed all the timber on the land -described in the complaint down to 13 inches o-n tire stomp to the defendant in fee^simpie, and the deed of March 17, 1899, by the plaintiffs admission, conveys the timber on said 'land down to- 12 inches-, which h'ad grown to that size since June 13, 1887, and the legal effect of these deeds is to convey all the timber on siaid land toi defendant, and to give defendant the right to- enter -and cut and remove the sarnie, and you will answer the second issue \u201cNothing.\u201d\nThese charges were given with this modification to each:\nWith this modification: \u201cUnless- you shall find from the evidence that the company, by its agents, m-ade a false representation as to 'the contents of the deed, and in reliance on this statement or representation, the agent knowing it to be false, be (plaintiff) signed, 'tbe deed, and was defrauded thereby in tibe respect complained of.\u201d\n(To this modification 'tire defendant excepts.)\nThose instructions were asked by defendant and were the strangest passible presentation of defendant\u2019s ease. The modification was eminently proper to be submitted to the jury in view of the uncontradicted evidence that plaintiff could not re\u2019ad without his glasses; that Freeman was urging to hurry him up and sign, that Ms horse would not stand, etc., 'the evidence tending tie show gross inadequacy in price, and that the deed was written differently from agreement, and Freeman\u2019s misrepresentation that it was written as agreed. Without holding iit illegal, it is proper to say that for the defendant\u2019s agent Who* procured the execution of the deed to take the acknowledgment of the grantor, and the privy examination of 'his wife, is a practice to be avoided, not followed.\nDellinger v. Gillespie, 118 N. C., 737, was correctly decided. It holds 'thlat where a grantor negligently fails to read a deed, no fraud or deceit being shown, he can not he allowed to contradict its terms by parol evidence by showing that he intended something else.\nBnt here tbe very gravamen of tbe complaint is fraud in tbe factum, tbe taking advantage of plaintiff\u2019s inability to re'ad, the writing it differently from the wlay iit was agreed to he written, the urging plaintiff to\u2019 hurry up and sign it, knowing he could not read it without, going to his house a half-mile off on foot to get his spectacles.\nWhile every presumption is in favor of the \u201cwritten word,\u201d no deed is prolof against frlandL Whether this evidence proved fraud was a matter which only a, jnry could piass upon. In submitting it to that tribunal, which the Cbnstitution says is \u201cone of the best securities of tbe rights of the people and ought to remain sacred and inviolable \u201d his Honor did only bis duty. There being disputed matters of fact, tibe plaintiff bad an inalienable rigb't to have the truth of the evidence passed upon by a jury of his peers. The misrepresentations here axe not as 'to mlatiters in the treaty, as to which both parties had equal opportunity for examination, but as to the contents of a deed drawn by one of them, which the other could not read without Ms glasses, and who at the. same time was \u25a0urged to sign ait once without going for his glasses. I't was exactly as if the same advantage had been taken of a blind man, if plaintiffs evidence is- to be believed, and whether it was to be believed or not, no one could decide- save a jury, to whom therefore the Court properly submitted it.\nJuries may sometimes be prejudiced, but knowing that Judges are \u201cmen of like passions,\u201d the wisdom of the ages lias properly provided that disputed facts shall be passed upon by twelve impartial men drawn from the body of the people, and at once returning to- them, with unlimited challenge for favor and a reasonable number' of challenges without cause assigned. Besides, if the verdict shows bias, or mistake, or is upon insufficient evidence, the Judge can set it aside without- assigning cause. Hardy v. Hardy, at this term. There is thus every protection. But if the Judges take to deciding the facts, there is no- protection against bias, or negligence, or incompetence, -and no power to set aside tfa-edr verdict. Every consideration therefore demands that the evidence should be submitted to the jury, unless it is clear \u2019that there is not a scintilla in favor of him upon whom rests the burden, and that upon the evidence only one conclusion (amid 'that adverse to \"the plaintiff) can be drawn. The Judge below bad power to set the verdict aside if be doubted the sufficiency of the evidence, and submit the issue to another jury. Thlait is the proper remedy. It is not for this C\u2019ourt upon this evidence, to adjudge that the evidence was not sufficient to prove fraud, and thus deprive the plaintiff altogether of a right to trial by jury.", "type": "concurrence", "author": "Clark,