
    F. Burt, and others, against Joseph Stackney.
    Where the Jury fíe tJSSSy of t«Sr''ri10* ^ wMe&wkey;ta» trial.
    This Mras an action of trover, to recover . toages for the con-version by the defendant to ms own use, of a negro boy Dick, the property the plaintiffs, who were the heirs at law of Thomas Miles, deceased, to whom, in his life time, the negro had belonged.
    The case was tried before Mr. Justice Smith, at Abbeville, in--Term, 18 — .
    The witnesses, on the part of the plaintiffs, stated, that the negro in question had been hired to one Cook, by Miles, on or before the year 1S02, or 1803. That the defendant, at the time, had the management of Cook's affairs, and the custody of this negro. That the defendant, in the year 1802, or 1803, carried him off, and sold him, between Charleston and Savannah, for 500 dollars. These facts were proved principally by William Fuller and his wife. Although the transaction took place in 1802, or 1803, they did not disclose the facts until about 18 months before they were sworn as witnesses in this cause, and until after an occasion, when the defendant had indicted Fuller for stealing a wedge. Mrs. Fuller swore, that on the night the defendant went awray with the negro, she heard some person crossing a bridge at some distance from her house. That she got up and looked over the top of the door, and saw the defendant; that he looked about and saw there was no light, and spoke, to Dick, and said, “ D — n you, you are asleep,” That this was about eleven or twelve o’clock at night; and that she saw the negro’s face very plainly. A number of respectable persons proved these witnesses to be of bad general character, for veracity; and swore, that they would not believe them on oath. A feeble, but an unsuccessful attempt was made to sustain their characters. The brief states, that a motion was made at the trial for a nonsuit, on the ground, that the plaintiffs had not proved such property and possession, or right of immediate possession, as are necessary to maintain this action; but the presiding Judge takes no notice of this motion in his report. After stating the evidence, and the verdict, which was for the plaintiffs, he says, “ The Jury were a very well informed Jury. I thought myself, that the circumstances of this case being so strangely related by Fuller, and his wife, and at so long a time after the fact, and not till after Fuller had been indicted by Stackney for stealing a wedge, together with so many respectable witnesses swearing they were not to be believed on oath, would have, on the whole, made it almost impossible for the Jury to believe them; 1 did not believe a wrord they said myself, but the Jury had a right to differ with me, and they did so.”
    A new trial is now moved for,
    1st. Because Fuller, and his wife, on whose testimony alone the plaintiffs’ claim rested, are unworthy of credit.
    A motion is also made to set aside the verdict, and grant a nonsuit.
   The opinion of the Court was delivered by

Mr. Justice Cheves.

The Court is not disposed to grant the last motion,* bat it is of opinion a new trial ought to be granted. It has no disposition to withdraw from the Jury any part of their peculiar jurisdiction over facts; but the power of Juries over matters of fact, is in civil cases, to be exercised under the superintendance of the Court, whose duty it is to see that this power has been exercised with discretion, and with some regard to the weight of evidence, the credibility of testimony, the probability of circumstances, and just principles of induction; and when the Court has very strong reasons to believe the Jury has erred, either capriciously or ignorantly, in any of these points, it will not hesitate to set aside a verdict, and send the case back for a new trial. As it is the object of the Court to send the case down with as little prejudice attached to it, from any impressions it may entertain, as possible; it will be only necessary to say, that it is the opinion of this Court, that it is a fit case for another trial ,* and they are the more assured of the propriety of this course, from the presiding Judge’s opinion, who had all the advantages the Jury enjoyed in forming an opinion of the character, and weight of test).-1 mony.

--Crnrofcé, JVoii, Gantt, and Johnson, J. concurred.

Colcock, J.

The grounds for a nonsuit being abandoned, we are to determine on those, on which the motion for a new trial rests.

1st. Because the testimony of Fuller, and his wife, ought to be rejected.

2d. Because the presiding Judge was dissatisfied with the verdict.

The testimony of Fuller, and his wife, is attacked on two grounds :

1st. That the circumstances which they proved were improbable in themselves, and that they prove they participated in the fraud.

2d. That some respectable witnesses proved them unworthy of credit.

I am aware that it is difficult to resist the impressions which are made on the mind, against a witness who appears to have been actuated by resentment, to disclose facts which he had so long concealed; and I readily admit, that where they are such facts as are disclosed on the present occasion, they furnish incontestible evidence of the baseness of the witness; but it is equally true, that such witnesses may nevertheless speak the truth. While their testimony is admitted with caution, it should be examined with impartiality; public justice and policy require it; for if the evidence of such is always to be rejected, injuries, both of a public and a private nature, would remain unredressed. The testimony of an approver, who is an acknowledged particeps criminis, when corroborated by circumstances, will affect the life of his associate; and in this case it does appear, that the testimony of Fuller, and his wife, is corroborated by some strong circumstances. In the first place it appears, that the negro was lost about the time mentioned by them; that the circumstance of concealment is supported by the testimony of the blacksmith.

It is also in evidence, that the defendant was in the employment of the person who had hired* the negro, at that very time; nor can I conceive it an impossible thing that a negro might be carried off in this manner.

As to the second ground of objection to the testimony of Fuller and his wife, I take it to be the rule, in such cases, that the witness who impeaches the credit of another, show first, that the witness attacked is of a general bad character ; and then, that he is unworthy of belief when on oath. This does not appear to have been done by the witnesses produced to destroy the credit of Fuller and his wife; and, on their part, witnesses of credit and respectability were produced, who said, that they had never before heard any thing against their credit.

These considerations, no' doubt, presented themselves to the Jury, and the presiding Judge saJs» they were intelligent men. The case went them with more than a caution as to witnesses ; for he gave it as his opinion, that they were unworthy of belief, yet the Jury thought proper to credit them* Although I would not hesitate to grant a new trial, when the verdict was against evidence, or without, I feel no disposition when there has been evidence on both sides, and fairly submitted to the Jury, to interfere with the verdict. I cannot but think, in such a case, it is their exclusive privilege to decide.

As to the second ground, while I feel the greatest respect for the opinion of the presiding Judge, and, in all cases, would suffer it to have great weight, I cannot think, in this case, it ought to outweigh the verdict of the Jury; that opinion was expressed to them before they made up their minds, and no doubt had its weight. I rely much on the superior advantages which a Jury possesses in arriving at the truth, by a knowledge of the parties and witnesses, and well know that respect is paid to the opinion of the presiding Judge. If then, under all these circumstances, an intelligent Jury have thought proper to find a verdiet for the plaintiff I feel no disposition to disturb it. I am against the motion.

Bay, J. I concur with my brother Colcoclc.  