#### Esther Armsworthy *v.*Aquilla Cheshire.

An answer which is responsivo to the bill, and contains a clear, precise and positive denial of it, must bo disproved by more evidence than the testimony of one witness, to entitle the plaintiff to a decree.

This bill was filed at February term, *1-817,*of tim Court of Equity, for the county of Rowan, by *John Jlrms'toorlhij*and *Esther*his wife, against, *iquilla Cheshire, Letha Call, Julia Cheshire*and *Turner Jarvis,*and having been dismissed as .to all the defendants, but .the one first named, the controversy between the plaintiifs and the defendant lias been narro wed down to the matter *457in dispute between them. In relation to this matter, the plaintiffs set forth in their bill, that *Burch Cheshire*died in. testat(5}jn tiic month of February,! 81G, and that administration on his estate was, at the August term, 1816,of the County Court, duly granted to the plaintiff, *Esther;*that the deceased at the time of his deatli was upwards of eighty years of age, and for many years before his death, from age and infirmity, his mental faculties bad become greatly impaired, so as to render hirn incapable of attending to the management of his own affairs ; that the defendant *Jlquilla*lived in the same house with the intestate, and had acquired great influence over him, that the said defendant some short time before the intestate’s death did contrive to deceive the intestate into the execution of a deed for several of his slaves, by representing to the intestate that the deed presented for his signature, was a conveyance for some of his stock and household furniture only; and that upon the death of the intestate, the defendant, under the fraudulent deed thus obtained, took the said negroes into his possession, and yet holds the same. Upon those allegations the plaintiff prayed that the deed might be set aside as fraudulent,and thatthe defendant might be compelled to surrender the negroes, and to ancount for their hire, and for general relief._ The defendant answered at April term, 1817, and in his answer set forth tliatliewasthegrandson of the intestate, had from infancy lived in his family, and for many years before his death managed his concerns; that the deed in question,together with other deeds for other objects of the intestate’s bounty, was executed in the summer of 1815; that at the time of their execution the intestate was of sound and disposing mind, and perfectly knew their contents and their operation; that they not only were read to him, but were often read by himself í that they liad been written at the intestate’s request, by one *Brax-ton Bryant,*a schoolmaster of the 'neighborhood ; that after they had been written, the execution of tlic-m was postponed by the intestate for two weeks or more, in order to have them attested by one *Jlrlhur Smith*& *Tho*
      *458
      *mas Ilainline,*btit that not being able to get tbe said *Smith, David Sheets,*and said *Ilainline*were requested to become tbe witnesses : that tbe deeds were executed in tbe night, before early bed time, that tbe defendant *Bryant, Mainlin*and *Sheets,were*returning from *a*muster, and did not get to tbe bouse of tbe intestate until after candle light; that soon after their arrival the intestate and *Bryant*were alone in a room where as lie was informed and believed that the deeds were again examined, and tbe intestate having determined to execute them at that time, they were executed and witnessed by tbe said *Sheets*and *Ilainline;*and that the- whole transaction was without circumvention or deceit of'any kind. In answer to an interrogatory respecting the connexion between him and the subscribing witnesses, he added that *Sheets*was the brother of his wife, and that *Ilainline*w'as ilsc brother of bis wife’s former husband.

At October Term. *1817,*the death of *John Jlrmsworthy,*the husband of the plaintiff, *Esther,*was suggested, and the suit ordered *to*be carried on in Iier name.

This answer having been replied to, by tbe defendant *Esther,*the parties proceeded to take their proofs. Tbe most important deposition on-tbe part of the plaintiff was that of *Braxton Bryant.*This witness’ deposition was taken on the 17th September 1817.— In it be stated, that be bad been applied to by tbe deceased to write bis will, and was furnished tbe proper me-moranda wherewith to prepare it. That after this will was written, tiie intestate consulted him on the propriety of giving away a portion of bis property by deeds of gift, because bis son-in-law, one of the plaintiffs, threatened to sue him on account of some moneys which were alleged to belong to the estate of a deceased son of the intestate. That the witness was requested to write four deeds of gift, one to the defendant ¿Iquilla,*and one to each of the other original defendants, which deeds were to comprehend respectively the same property as w'as bequeathed to them in the will *•,*that the defendant who bad also requested him to w’rite tbe said deeds, prevailed on the witness to prepare also a fifth deed, which should contain four negroes in addition to the property *459intended for him by his grandfather, and promised to reward the witness’s services in this respect, by a gift of one hundred dollars to the witness’s daughter — that accordingly, besides the four which he was instructed to prepare by the intestate, he fabricated a fifth, conforming to this request of the defendant — that the old man had previously read the first four deeds, and that on the night when the execution of them was about to take place, he, the witness, slipped the fifth and false one in the place of that which the intestate supposed lie was to execute in favor of the defendant, and thus this deed was fraudulently executed, and, after being executed was attested by the subscribing witnesses. He further declared, that the four negroes, included in this spurious deed, were, by the old man’s instructions, not to be inserted in any of the deeds, but to be permitted to go to his lawful children. That this imposition was practised at the instance of the defendant, and that he believed at the time it was done, he, the witness, slipped into tho defendant’s hands the paper which was to have been, but which was not executed.

The subscribing witnesses were examined on the part of the defendant. *David Sheets*only stated that at the request of the defendant lie went with *Bryan, Mainline*and others to the house of the deceased, and ivas requested to witness some instruments of writing which he understood to be deeds for portions of the old man’s property to the defendant and others, and that these ■deeds were either executed, or the execution of them acknowledged in his presence — that he supposed from the manner in which the transaction was done that it had been well considered of, and the old man aware of what was doing, and that the witnesses were requested by him not to say any thing respecting the transaction during his life, as he was unwilling to causean altercation in his family.

The other witness, *Mainline,*was more circumstantial. He stated that he was twice requested by the defendant-to attend at the house of tho intestate,to witness a-deed of gift — that'ho failed to attend on the first invi*460tation, but went upon the second — that he reached the house of the old gentleman in the night, about two hours after dark — that some time after his arrival, at the request of the defendant, the intestate was left alone with *Baxfon Bryant*— that when he and *Sheets*went again'into the room, (at whose call he did not state,) the old man signed in his presence, and delivered to the defendant *Jlquüla,*the several instruments of writing which, were attested *by himself and Sheets*— that when the old man delivered the papers he used these words: “I deliver these for the purposes therein expressed,” and all appeared tobe done deliberately and of his free will— that it was one or two hours, after the witness arrived at the house before the business was done — that when it was done, *Bryant*asked the old man if he wished to have the affair kept secret, and he replied that he did.

A vast number of other depositions were filed, of which it is not necessary to take a particular notice.— From these examinations it appeared that the intestate was more than eighty years of age when he died — that he had been a man of ordinary education, able and accustomed to read and write — that at the time of the transaction in question, his sense of hearing was much impaired — that he was yet able to read with the aid of glasses — that his understanding was weakened by age and infirmities; but he was yet competent for the rational disposition of his property. He had three legitimate children living, who were his next of kin, the plaintiff *Esther, Elizabeth,*married to *Bichará Williams,and Nelly,*the wife, of *Benjamin B. Walker.*The defendant *iquilla*was the illegitimate son, and *Lethe Call*the illegitimate-daughter of *Sarah*a deceased child. *Julia Cheshire*was the illegitimate child of *Latty,*another deceased daughter of the intestate, and *Fanny Jarvis*was the child of *Ruth,*a daughter of *Elizabeth Williams, horn*out of wedlock, it did not appear whether any of these descendants, legitimate or illegitimate, lived in his family, except the defendant *.iquilla,*who had the active superintendence of his affairs, and was greatly trusted by him»

*461Gaston, Judge.

After stating the pleadings and proofs as above, proceeded :

Many of the depositions give the opinion of the witnesses as to the general character of *Buxton Bryant,*for truth on oath, and are in this respect directly at points with each other. Some of the witnesses relate conversations with him apparently confidential, and soon after the transaction, concurring with the account which he afterwards gave on his examination, and others depose to conversations with the same witness in which his statements were at variance with that to which he after-wards testified. According to all of the witnesses, he appears to have been a man of talents and education, who once sustained a fair character, who afterwards became intemperate and indulged in- excessive drinking, and finally fell a victim to that vice. At what step he stood in this descending scale when the transaction took place, or when his deposition was taken, it is not easy from the testimony of the witnesses to determine.

The original deed to the defendant is not upon file, but a copy is produced, accompanied with an affidavit from the defendant that the original had been placed in the hands of his counsel, Mr. *Henderson,*and since the death of that gentleman, he has not been able to procure it.— From this copy it appears to have been executed on 4th August, 181"5, and to have been exhibited for probate at May Term, 1816, the term succeeding that at which administration on the estate of the intestate was granted to the plaintiff. The will mentioned as having been prepared for him by the witness *Bryant*is not produced, nor. any account given of it. If in existence, it. would have been a very important paper to conform or counteract *Bryant9s*statements — and if in existence, it must be presumed, from the control which the defendant had over the affairs of the intestate, to be in his possession.'

After all the testimony had been taken, and these exhibits filed, the cause was set down for hearing and came on to be heard before the Judge of the Court of Equity for the county of Rowan, at the April term 1825, of said Court, when his honor was pleased to direct an issue in *462the following words to be submitted tó a Jury: “Was the deed of gift mentioned in the .plaintiff’s bill from *Burch Cheshire*to *¿quilla Cheshire*fairly or fraudulently obtained?” And a jury being charged with the trial of said issue, returned a verdict that the said deed was fraudulently obtained. A rule for a new trial was granted, which was held over until October term, 1826, when it was made absolute. The cause was continued until October term, 1828, when by consent of parties, it was removed to the court of the adjoining couuty of Da* vidson. In that court, at the April term, 1830, the same issue was again submitted to a jury, who also returned a verdict that the deed of gift mentioned in the plaintiff's bill, from *Burch Cheshire*to *¿quilla Cheshire*was not fairly, buit fraudulently obtained. Thereupon the court ordered that the defendant should enter into a bond with good surety, payable to the plaintiff, in the sum of $500, for securing the payment of the hire of the negroes in contest; and that on his failing to do so, the sheriff should take the said negroes-into his custody, and hire tfiem out until the next term', taking bond and surety for the forthcoming of the negroes. It does not appear that any motion was made for a new trial of the issue, or for any order of the court to set aside the verdict; but at the next term, the same issue was again submitted to a jury, and they also found that the said deed of gift mentioned in the plaintiff's bill,from *Burch Cheshire*to *¿quilla Cheshire*was not fairly, but fraudulently obtained. Upon the trial of this issue it appears from the transcript, that the Judge instructed the jury that they were not at liberty to find the same against the defendant,upon the testimony of a single witness,unsupported by circumstances furnished by the testimony of other witnesses — that the defendant, after the last mentioned verdict was rendered, moved to have it set aside, and to have a new trial awarded, because the said verdict w'as contrary to the weight of evidence — that this motion was overruled — that the defendant thereupon insisted that the plaintiff's bill ought to be dismissed because the testimony of the only witness relied upon to *463prove the fraud, was not supported by circumstances furnished by the testimony of any other witness. That this objection was overruled and thereupon the presiding Judge did declare and decree that the deed made by *Burch Cheshire*to the defendant *Jlquilla,*bearing date the 4 th of August, 1815, for the negro slaves *Sam, Den. nis, Rachael*and *Rachael the younger, was*obtained by fraud, and that the said defendant do surrender the same to the clerk of this court, to be cancelled — that the defendant do deliver up to the plaintiff *Dennis*and *Rachael*the only survivors of these slaves, and Baal,the offspring of the other *Rachael,*on the plaintiff entering into bond and surety to have them and their issue forthcoming to answer the final decree of the court, and to pay their hires to the defendant in ease the final decision of the court should be in his favor — that the clerk and master should ascertain and report the value of the hire of the slaves since they have been in the defendant’s possession — whether any, and if any, which have died— whether they have had increase, and if so, the names and ages of such increase — whether the defendant is entitled to any credits, and if so, the amount thereof; and that the cause be held over for furtherproceedings; and it was further ordered that the master take an account of the value of the other property contained in the said fraudulent deed. Several other interlocutory orders, which it is not necessary particularly to recite, were subsequently passed, respecting the safe custody of the property. A petition was then filed to re-hear the order made at the April term, 1825, directing an issue of fact to be submitted to the jury; also to re-hear the decision of the Judge on the motion for a new trial of the issue at the October term, 1830 ; and the declaration and decree of Lis Honor at the said term, pronouncing the deed to be fraudulent, as herein before stated. This, petition was granted, and a report having been also made by the clerk, and exceptions taken thereunto, the •cause has been removed into this court for a final adjudication.

On behalf of the defendant, it has been insisted on *464the re-heaping, that the interlocutory order for submitting an issue to a jury was contrary to the established rules of a Court of Equity, it is urged that according to these rules, wherever the defendant’s answer positively denies the allegations in the plaintiff’s bill, and these allegations are supported only by the testimony of a single witness, the court will neither make a decree against the defendant, nor send the case to be tried at law"— that in this case there was nothing more than the positive assertion of one witness, and a positive denial by the defendant: and that the witness whose assertion is the sole foundation of the plaintiff’s cause, shews himself by his own statement, wholly destitute of that integrity which should give him a claim to credit.. Of the first part of this proposition we entertain no doubt.— Where the denial of a defendant responsive to the plaintiff’s charge is clear, precise and positive, and it is met by the assertion of one witness only, equally clear, precise and positive, the court will not make a decree for the plaintiff, unless circumstances appear, shewing, no.t indeed absolutely, that the truth is with the witness, but that there is a strong moral probability that his statement is true. With regard to the next part of this proposition, we find much contradiction in the books, and some difficulty in extracting from them a distinct rule for regulating the discretion of a court in awarding an issue, On the one hand it seems to us th.at tiie rule not to decree against the answer upon the unsupported tes-, timony of a single witness, would be broken down, if whenever such a conflict existed, it could be left to a jury to decide whether greater credit should be given to the witness oi* to the party. But on the other hand, to order an issue only where the circumstances attaching credit to the assertion of the witness, clearly overbalance the credit due to the denial of the party, is calling on a jury where the Chancellor needs not its assistance, hut has sufficient matter whereon to found a decree. Perhaps it is impossible to lay down a rule in precise terms, and some latitude must be allowed for. the exercise of a sound discretion. It may be enough to *465gay that there ought to be some circumstances giving a preponderance to the testimony of the witness, independently of the suspicion against the answer, arising from t|ie interest of the party, before an issue should he award - cd/ but it is not necessary that these circumstance should he sufficient to producen clear Conviction on the mind of the Chancellor against the answer. If his inclination Upon these circumstances be in favor of the witness,but his conscience is still in doubt, he may with propriety order art issue,or tender one to the defendant, who may accept or decline at his peril, In this case there were circumstances tending strongly to confirm the testimony of the witness, fully sufficient, nay demanding a decision in conformity to that testimony, but for the admitted participation of the witness in the base fraud charged. I shall name but a few that seem to us natural.— The others, though also much insisted on in argument, Were not regarded as of much weight. The hour at Which the transaction took place, is calculated *to*give support to the narrative of the witness. According to tli’e testimony of *Mainline,*it must have been between 11 artd 12 o’clock at night, long after the period at which it is customary fin1 the plain farmers of our country, to retire to repose, and long after old age and infirmity arc Won't to seek in sleep for relief from weariness and care. The parties did not arrive at the house until two hours after dark, and front one to two hours elapsed afterwards before the witnesses were Called in to see the execution óf the instruments. Tiic time was peculiarly fitted for playing off the infamous trick Stated by *Bryant,*upon a man of eighty years of age, of weak sight, and infirm health, and no reason is given, if the purpose was an honest One, for selecting an hour so unusual for the transaction of business. This circumstance derives more W eiglit from its being in direct contradiction to the defendant’s answer, ivho aware of the suspicion it ought to excite, untruly states that the deeds were executed before early bed time. But the other circumstances stated by *Mainline*are far more strong. This witness and *Sheets¡*according to the defendant’s answer, were *466the very persons selected by the old gentleman to be the witnesses of this transaction. Yet after their arrival at the hotise, the defendant himself who had brought them thither, in pursuance of the intestate9!? request, and for the very purpose of attesting what should take place, asks them out of the room, in order that the old man might be left *alone*with *Bryant,*and they do not return for an hour or two, nor until they are wanted, for the purpose of seeing or hearing acknowledged the formal execution of the papers. If *Bryant’s*statement be true, we see at once an adequate motive for these witnesses being out of the way, while he shuffled off one of the papers, and substituted another in its place. If his statement be not true and the transaction was fair, the proceeding is wholly Unaccounted for, and unaccountable. There is no proof that there was any other individual in the house, except the old man, *Bryant,*the defendant, and these two witnesses; all, according to the defendant’s account, intended to be fully cognisant of what should take place, and relied upon to keep it a secret so long as he should live, in order to prevent an interruption among his children. The difficulty therefore in ascertaining the truth of the controverted matter of fact, did not arise from the want of circumstances to support the positive evidence of *Bryant,*but solely in deciding what degree of credit was due to the witness himself. As an acknowledged accomplice in the criminal act, lie was of 'course obnoxious to strong suspicions. Yet he was a Competent, witness, and his tale rendered highly probable by corroborating facts, testified to by witnesses above suspicion. We think that the court acted right in leaving it to a jury, knowing the witness, and knowing the defendant whose answer was relied on to pass upon the credit which, under all circumstances, was due to the testimony o'f the one, and the denial of the other.

*464An issue should H.ot 5)8 directed ^answeriscon-tradicted t>y one

Nor where the **¡^1 -stances which, ^"^credit the denial of the

Bntoneispro-theWwitnessWand the answer, eir-evjaence create an 'nc35"the^for1 m®r, without e*ti. maingfeemterest or the defendant,

*466We arc by no means satisfied with the general terms in which this issue was expressed. When a Judge wishes his conscience informed upon any matter of fact, the issue should bo so framed, as to present that fact precisely to the jury. Whether a deed has been fairly or *467fraudulently obtained, is a general and indefinite issue, which might involve matter of law as well as of fact.— jju£ Qn 200]t{ng into the instructions given by the Judge to the jury, on the last trial of the issue, and into the motion to dismiss the bill, we cannot but see, that however vague may have been the terms of the issue, it was treated by all, as one specific in its nature, and embracing the naked fact in dispute.

The court therefore,does not reverse, but on the contrary, affirms the interlocutory order for the issue, nor does it see any reason to disapprove of the decision of the Judge, refusing a new trial. Three verdicts had been rendered all one way, and all founded upon sufficient proof, if *Bryant*ivas entitled to credit, and after thirty-six disinterested freeholders, selected by the parties, had *on*their oath declared that they believed him, it could not have been permitted to the Judge, to ask more for the satisfaction of his conscience, in this respect.

As to the interlocutory order which was made at October term, 1850, so far as the same declared the deed obtained by the defendant, to have been obtained by fraud, and decreed the delivery of the negroes, and directed the master to take an account, the court doth approve thereof. (His Honor then proceeded to correct some miscalculations in the report, which it is unnecessary to state.)

Pee Cueiam. — Judgment aittemed.