#### JOHN J REED vs. NATHAN MOORE.

Although it is erroneous to submit to the jury an enquiry of fact, as to which there is no evidence; yet this Court will suppose the evidence, as staled in the.case brought up from the Court below, to have been stated only in reference to the objections there raised, and will not grant a new trial, where an exception, as to the total want of evidence, does not appear to have been taken, either on the trial or on a motion for a new trial.

Where matters might have been offered in evidence on the trial, but wore not, they form no ground for granting a now trial.

In an action at law against the maker of a deed, which he impeaches for fraud, the only fraud he can allege must he in procuring the execution of the deed ; and therefore evidence that he was imposed upon by the other party in a contract, the performance of which this deed, subsequently executed, was intended to secui-e, is irrelevant and admissible.

The cases of Long' v Gantly, 4 Dev. <& Bat. 313. Terrell v Wiggins, I Ired. 172, and Gibson v Partee, 2 Dev. & Bat. 530, cited and approved.

June 1843

Appeal from the Superior Court of Rockingham County, *311at Spring Term, 1843, his Honor Judge Battle presiding.

This was an action of detinue tor a slave. Plea, the general issue. The plaintiff produced in evidence a deed in trust for the slave in question to. the plaintiff, professing to be given to secure the payment of certain debts, which were acknowledged to be due to John and Anselm Reed. The plaintiff then called Melvin Moore, a subscribing witness, who stated, that, on the day of the date of the deed, he went to a store at Troublesome Old Iron Works, in Rockingham county, and was invited from the store to the dwelling house across the road, in which Absalom Reed, a brother of the plaintiff, lived, to witness a paper — that he there found the plaintiff, and John and Absalom Reed, and the defendant — . that the deed lay upon a table in the room in which the parties were, when the witness enquired what it was — that John Reed replied it did not matter, that the parties all agreed to it — that the witness then wrote his name as an attesting witness — .that he is a nephew of the defendant — that the defendant was then sober, and, a few minutes after, went to the store, which had before belonged to the said John and Absalom Reed, and sold coffee and other goods to the witness — that, some five or six days afterwards, the witness asked the defendant what he signed, ('this question was objected to by plaintiff’s counsel). — that the defendant replied, he hardly knew himself, but reckoned it was a trust; that the Reeds had taken advantage of him when he was drunk or something else was the matter with him. This witness also stated upon cross-examination, that he did not remember whether the names of the defendant and other parties had been subscribed to this deed or not, when he signed; but presumed they were or he would not have signed it. The defendant’s counsel asked the witness, whether the defendant was not an illiterate man, with but little education, unable to make entries and keep books, as merchants ordinarily do, and unfitted to carry on that business himself. This was objected to by the plaintiff’s counsel, remarking that there was a suit in Equity, in which these matters were in contest, but the question was allowed by the court to be put. *312The witness answered, that his education was limited — that he could write his name, but could not write well enough to ^ceeP books, and was not suited to the mercantile business, but had traded considerably, having bought a negro woman and children shortly before. The plaintiff also called Reuben Johnson, the other subscribing witness, who testified, that he went to the store about 10 or 11 o’clock in the morning — that soon afterwards he was asked by Absalom Reed into the house to witness the deed, "and stated the same as to its attestation that Melvin Moore had done — that he could not remember whether the names of the parties had been subscribed, when he signed, but presumed they were or he would not have signed it — that he is acquainted with the hand-writing of the defendant, and believes'his signature to the deed to be genuine. He also testified, that the defendant was “ pretty groggy” the evening before at sun-set, when, he attested, the defendant was sober; that he went into the store in a short time and began to sell goods, and in the course of four or five days employed the witness as a clerk in the said store — that the witness continued some weeks, until a son of the defendant’s returned from the lower part of the State, when they kept the store together, until the witness left the store in the possession of the son. — . The plaintiff also proved a demand of the store, after the expiration of the time allowed for payment in the trust deed and before this action was brought — also that the defendant some twelve months before, had applied to a merchant to take his son as a clerk, saying he desired him to become acquainted with his business. The defendant called no witnesses. His counsel insisted that the deed did not pass the property in the slave for want of a pecuniary consideration, that there wps not sufficient evidence of the delivery of the deed, and that the defendant was drunk or fraudulently imposed on at the time of delivery, if he delivered it at all.

The Court held, that the deed, being a sealed instrument, was good to transfer the property in the slave, without the insertion of a pecuniary consideration, and instructed the jury, that it was incumbent on the plaintiff to prove the due execution and delivery of the deed — -that if execution and *313delivoiy were shown, it was binding on the defendant, less they were satisfied from the evidence that he was so' drunk at the time or had something else the matter with him, so that he knew not what he was doing, or was fraudulently imposed upon by having been induced to sign one paper when he supposed he was signing another.

The jury found a verdict for the defendant. The plaintiff moved for a new trial, first, because of the admission of improper evidence; secondly, because the verdict was against the evidence and law ; thirdly, that in the defendant’s bill in Equity, heretofore filed, he had admitted the delivery of the deed and prayed relief in that Court, as the only forum with power to relieve. His Honor overruled the motion, remarking, as to the third point, that the plaintiff should have offered the bill of the defendant in evidence, if he had wished to derive any benefit from it, and, after risking the case without it, he had no right to urge it as a reason for a new trial. Judgment being rendered for the defendant, the plaintiff appealed,

Graham for the plaintiff.

Morehcad for the defendant.

Rulfin, C. J.

For the plaintiff it has been argued, that the-Court erred in leaving it to the jury, without evidence, to find that the defendant was so drunk at the time he executed the deed, as not to know what he was doing, or was fraudulently imposed on by having been induced to sign one paper, when he supposed he was signing another. The Court has looked through the evidence stated in the case, and, if that be all that was given on the trial, we own that we should entertain doubts whether it amounted to any evidence upon those points, and certainly, if any, it is, after the clear testimony of the subscribing witnesses to the facts of the execution and delivery .of the deed and the defendant’s capacity to contract, so very feeble, as to render it somewhat surprizing, that the jury should have given a verdict on it.— *314gut in the state of this case, we cannot interfere with the verdict oil this objection. It has been repeatedly declared, that this Court cannot correct the errors of the jury in finding a verdict without or against evidence, or against law, but must leave it to the discretion of the judge, who tiied the case. Long v Gantly, 4 Dev. &. Bat. 313. Terrell v Wiggins, 1 Ired. 172. We can deal only with the errors of the judge; and,.it is t-rue,' it is-erroneous to submit an en-quiry of fact to-the jury, to which there is no evidence in the case. But, as to that we have to say in this case, that the plaintiff took no exception at the trial nor on Iris motion for a new trial; and, consequently, we cannot suppose the evidence to have been stated but with a view to the objections raised. The plaintiff’s motion for a new trial was on the ground, that the verdict was against- evidence and law, and not because the Court left a point to them without evidence-.

We likewise think his Honor properly refused'to act on the statements contained in the bill in the Court of Equity, filed by the present defendant; and that for several reasons. But it is sufficient to say, that the plaintiff did not offer it upon the trial, but brought it forward first on the motion for a new trial. Gibson v Partee, 2 Dev. & Bat. 530.

Upon the question of evidence, however, our opinion doe3 not concur with that of his Honor. After objection a witness was allowed-to state, that the defendant’s education was so defective, that he could not write well enough to keep mercantile books, and. was not suited’ to carry on mercantile business. It seems to us,, that evidence was irrelevant to any enquiry before the jury, and- tended to mislead that body. The defence was rested on the points, that the defendant was so drunk as not to know that he executed the deed, or. was fraudulently deceived- by having one paper imposed on him, when he thought he was executing another.— It may. be supposed, now, that there was evidence to raise those points; yet, we think, that the evidence objected to does not at all tend to establish them, and was therefore improperly. received. The instrument, which the defendant *315executed, was a deed of trust, whereby he corcveyeddo the plaintiff, among other things, the slave for which this action is brought, for the purpose of securing the payment oí a debt of g!475, therein acknowledged to be owing by the defendant to J. and A. Reed. It is not distinctly stated, how that debt arose; and, nothing being said to the contrary, it is to be deemed a just debt. It certainly will not, in the opinion of any person, impeach a security for a just debt, that the person giving the security is neither a 'Competent accountant nor a skilful merchant. But, as the witnesses stated, that, immediately after the execution oí the deed, the defendant began to sell goods from the shop, which had before belonged to J. and A. Reed, we suppose the truth of the case to be,-that the debt in question arose out of a purchase by the defendant from J..& A. Reed of that establishment, in which the defendant, as alleged by him, was drawn into a disadvantageous bargain, in respect to the price of the goods, and induced to embark in a business for which he was not qualified. As tending to establish a fraud of that kind, the evidence under consideration would have been pertinent and proper, and, accompanied by other proofs of the actual inequality of the bargain, and of a contrivance of the other party to draw the defendant into it, might afford a proper ground for relief in another forum, in which the deed of trust, subsequently made by the defendant, though held valid because executed voluntarily by one having capacity to contract, would be sustained as a security only for what the defendant ought-really to pay. But that is a distinct species of fraud, and one calling for a different kind of redress, from that which- was the subject of enquiry before the jury in this caso. The fraud here alleged, and the only fraud that could be alleged in this action, was in procuring from the defendant the execution of the deed ; and to that point it was immaterial, whether there was or was not imposition on the defendant in the original contract of sale.— And the evidence was not only irrelevant, but tended to perplex the jury as to the true point for their consideration ; which was, the defendant’s capacity to contract when he ex*316ecuted the deed of trust and his knowledge of the instrument he was executing, and not the equality or inequality of the prior purchase. A jury does not readily, and, perhaps, is not naturally inclined to distinguish between the two species of fraud, and is apt to import an undue advantage, taken in one part of a transaction, into their consideration of a subsequent and distinct part of it, however, fair, in itself, the latter may be. But it is manifest, that the purposes of justice require, that they should be kept asunder, and, therefore, that evidence tending to confound them ought not to be given to the jury. For nothing could be more unjust, than to hold this deed void upon the ground merely of imposition in the original contract of sale of the goods ; since the effect would be, that the defendant would keep the goods bought by him, and, probably, now disposed of, and at the same time get clear of the security for the price, which ho subsequently and voluntarily executed.

Per Curiam. Judgment reversed and new trial awarded.