#### FAULKNER v. KING.

(Filed June 13, 1902.)

1. EVIDENCE — Opinion on Evidence — Judge—The Code, Sec. 403.

In an action of claim and delivery for a horse, an instruction toy the trial judge that in passing upon the credibility of the plaintiff as a witness, the jury should consider the fact that he had §50 of money of defendant in his pocket and refused to give it to him, and that he is insolvent, amounts to an expression of an opinion upon the facts.

2. EVIDENCE —Record—Justices of the Peace — Former Proceeding.

The record of an action between the same parties and about the same property is competent in a subsequent action.

ActioN by J. E. Faulkner against J. N. King and another, heard by Judge W. S. O’B. Robinson and a jury, at October Term, 1901, of the Superior Court of Wake County. From a judgment for the defendants, the plaintiff appealed.

B. G. Beckwith, for the plaintiff.

No counsel for the defendant.

Clark, J.

This was an action to recover a horse. The defense was that the matter had been litigated in a former action by this defendant against this plaintiff before a Justice of the Peace, in which the present defendant had recovered judgment and the present plaintiff had surrendered the horse, and did not appeal. The present plaintiff, the defendant in the former action, testified that he surrendered the horse and did not appeal because the Justice had threatened to put him in jail if he did otherwise, and the nest day when he offered to appeal and tendered the 30 cents fee for the return to the appeal, the Justice refused to send up the appeal. This is denied, except that the Justice stated he did not send the appeal up because he considered the case at an end.

*495It would seem tbat tbe Justice erred in not sending tbe case up, for tbe Court above should have passed upon tbe validity of tbe appeal, and tbat tbe plaintiff, after tbe refusal of tbe Justice, erred in not applying to tbe next term of tbe Superior Court for a writ of recordarbut these points are not before us, because it is tbe plaintiff, not tbe defendant, who is appealing, and tbe plea of res judicata and its validity are not presented.

Tbe Judge charged tbe jury: “There is but one thing for you to consider in this matter, and tbat is — did tbe plaintiff voluntarily surrender tbe horse to Mills % — if be did, then you will answer tbe issue ‘No.’ If he did not voluntarily surrender tbe horse, but was coerced or intimidated by tbe threats at tbe trial before Nichols, tbe Justice of tbe Peace, into giving him up, you will answer tbe issue ‘Yes.’ But you should consider, in passing upon tbe plaintiff’s credibility as a witness, tbe fact tbat be has fifty dollars of defendant’s money in bis pocket and refuses to give it to tbe owner, tbat be is insolvent.”

Tbe plaintiff excepts to this as an intimation of an opinion upon tbe facts, prohibited by tbe act of 1796, now Code, Sec. 413. We think tbe point is well taken. Tbe former action bad been brought for tbe horse by tbe present defendant, on the ground tbat be bad paid tbe plaintiff fifty dollars for a black horse, which be bad lost by reason of the title proving defective, and tbat this plaintiff bad admitted be bad used forty dollars of tbat money in buying tbe sorrel horse, which was tbe subject of tbat suit and of this. Tbe plaintiff bad denied tbat admission on tbe witness-stand, but the Court, in effect, intimated to tbe jury tbat as plaintiff owed tbe defendant, they might find tbat defendant bad a right to retain tbe sorrel horse by finding in bis favor tbe issue just submitted, whether tbe plaintiff bad voluntarily surrendered tbe horse or bad been coerced and intimidated into surrendering him.

*496It was also error to exclude tbe record in tbe former action Hodges v. Wilkinson, 111 N. C., 56, 17 L. R. A., 545.

Error.