#### R. E. REIVES et al v. D. A. POINDEXTER.

Where A swears that B, O and D had an important conversation together, and D swears that no such conversation took place, it was held that the rule giving preference to affirmative, over negative, testimony, does not apply, for there being a direct contradiction, the jury must be guided by other tests in ascertaining the truth.

. This was an action on the case for a deceit in the sale of a horse, tried before Dick, J., at the last Pall Term of Surry Superior Court.

• The plaintiff proved by a witness, who was present at the trade, that the defendant told plaintiff the horse’s eyes were good '; that he would not warrant the horse, but that his eyes were good ; that at one particular time, which he mentioned, there was something the matter with his eyes, or they were hurt, but they had got well and were good, and that he would not take a cent less for the animal on account of his eyes. It was proved that, at the time of the trade, the horse’s eyes were unsound, and that the defendant knew it; though the eyes, at that time, looked well. It was also proved that a short time after the trade, the horse became totally blind. The defendant introduced two witnesses, who swore that they were present at the trade, and that they heard the defendant, in the course of the conversation between the parties, about *309the horse, tell the plaintiff that the horse’s eyes were unsound, that they were subject to bad spells, and he would not warrant them ; that if the plaintiff took the horse, he must do so at his own risk. These witnesses, for the defendant, swore that the witness for the plaintiff, mentioned above, participated in this conversation about the horse’s eyes. The witness for the plaintiff was then recalled, and swore that he was present all the time ; that he did not hear any such- conversation as to the unsoundness of the horse’s eyes, as deposed to by defendant’s two witnesses; that he did not believe it occurred ; that if it had occurred, he thought he would have heard and recollected it, and that he did not participate in any conversation of the character stated by these witnesses.

His Honor, in response to a request for special instructions from the defendant’s counsel as to this testimony, said, “ it was a rule of law, that where two witnesses, of equal respectability, testified as to a fact — one that he heard or saw a thing, and the other, who was present, that he did not see or hear such thing, that the testimony of the witness who testified affirmatively was to be preferred.” To this part of his Honor’s charge the plaintiffs’ counsel excepted.

Verdict and judgment for defendant. Appeal by. plaintiff.

Orimypler, for the plaintiffs.

JBoyden, for the defendant.

Manly, J.

"Waiving any discussion as to the terms, in which the rule is laid down by the Judge below, we think that the rule, itself, was not properly applicable to the facts before the Court. According to the interpretation, which we put upon them, they do not raise the question between affirmative and negative, but between contradictory witnesses. And the true question was, which class of witnesses, judging of the testimony of each by the ordinary tests, the jury would believe. With respect to the rule, it is clear that its applicability to any state of facts, must depend upon whether the negative testimony can be attributed to inattention, error, or *310defect of memory; 1 Stark. 517. If two persons admit they were in a room together, and one swears that while there, he heard a clock in the room strike, and the other swears he did not hear it, it is a case for the application of the rule, according to all elementary writers. But in the case supposed, if two persons were placed in a room where a clock was, for the express purpose of ascertaining by their senses, whether it would strike or not, a variance between their testimony could not be well attributed to mistake or inattention, and the real question would be as to the credit of the witnesses. In the case before us, the defendant proves by a witness, that the parties held a certain conversation, in which a witness, previously introduced by the plaintiff, pcvrticvpated, and plaintiffs’ witness, being recalled, denies that any such conversation was held; this is not a question between affirmative and negative testimony, wherein the latter may be ascribed to inattention, but it is a question between witnesses who contradict each other, and the question is, to which side, under all the circumstances, is credit due. It is the duty of a jury to reconcile testimony, if possible; especially if it come from credible sources. Hence, when one declares, under oath, that he heard a thing, and another, who was present, that he did not hear it, if the matter, in question, occurred under such circumstances as to account for the negative testimony upon the theory of inattention, the jury will be able to reconcile the two, and both being credited, it will be taken that the matter occurred, and was heard by one and not by the other.

This is the basis of the maxim, that affirmative testimony is entitled to more weight than negative. At the last term of this Court, the maxim was recognised and approved in its application to a state of facts, somewhat like the case last sup* posed : A class of witnesses swore that a slave had been seen by them on crutches and limping; another class, with only the same opportunities of observation, for ought that appeared, swore that they had not seen him on crutches or limping; instructions that the positive were entitled to more weight than the negative, were approved. Both being equally cred*311ible, they were thus reconciled; Henderson v. Crouse, 7 Jones, 623.

But in our case, the witnesses are not reconcilable, A swears that B, C and D, held a conversation together. D swears that no such conversation was held. The negadme cannot be accounted for, on the score of a want of observation, any more than the jpositive. The witnesses are in contradiction, and their credibility must decide it.

There should be a reversal of the j udgment, and a venire de novo.

Per Curiam,

Judgment reversed.