#### THE STATE TO THE USE OF JAVAN TRAMMELL *vs.*ROBERT THOMAS & OTHERS.

Where a judge told the jury in his charge, that they must find for' one of the parties, unless they believed his witness liad committed perjury, the charge was erroneous, because the credit of the witness was a matter for the jury, not for the Court, and the witness might have been mistaken, and not guilty of perjury.

Appeal from the Superior Court of Law of Henderson ComPy, at a Special Term, in June 1S46, his Honor Judge Battle presiding.

This was an action of debt upon the bond of the defendant, Thomas, as Sheriff of Henderson County, in which the breaches assigned were, that one Clayton had, as the deputy of Thomas, failed to collect a claim against one Hunter, which he had in his hands and might, by due diligence, have collected, and for failing to make a due return of a *ca. sa.*which he had taken against the said Hunter. Pleas, conditions performed ' and not broken. Upon the trial the plaintiff had made a *prima facie*case. The defendants, after a release by Thomas to his deputy, introduced him as a witness. He testified distinctly and positively, and repeated it upon his cross-examination, that, when the plaintiff placed the claim- against Hunter in his hands for collection, which was in the year 1842, he told him he looked upon it as a doubtful claim, and he wished him to do what he could, to collect or at least to secure it; that thereupon, he, the witness, after being unable to find any property of Hunter, upon which he could levy a *fi.fa.*at the instance of the plaintiff, sued out a *ca. sa.*and under it arrested the defendant therein, Hunter, who gave bond with security to appear at the succeeding term of the County Court, and take the benefit of the Act for the relief of insolvent debtors ; that he, the *384witness, had the papers at that term and would have returned them, had not the plaintiff.requested him to keep them until he could endeavor to arrange the debt with Hunter, and that, on the second or third day of the term, the plaintiff applied to him and took the *ca. sa.*and other papers from his hands, and had never returned them to him. He stated that this took place in the presence of several persons, and that the defendant in the execution, Hunter, was, as he believed, present, blunter was then asked, if he was present and saw the papers returned to the plaintiff, and he stated that he had no recollection of the transaction, and, moreover, that he had remained at Court all the week, awaiting the return of the *ca. sa.*into Court,

. The Court instructed the jury, that the plaintiff was entitled to recover, unless they believed the witness, Clayton, but that the testimony of that witness, if believed, formed a complete defence to the action: that the statement of Clayton was such, as precluded the idea of a mistake ; and, if it were false, it must be within his own knowledge ; and that the jury must believe he had committed perjury, before they could find a verdict for the plaintiff; and the charge was closed with directions to the jury, about the duty of reconciling testimony, &c.

The jury returned a verdict for the defendants, and the plaintiff’s counsel moved for a new trial, upon the sole ground, that the Court had instructed the jury, that they must believe thslt Clayton had committed perjury, before they could find a verdict for the plaintiff. That motion was over-ruled, and, judgment being rendered for the defendants, the plaintiff appealed. .

*Baxter*and *Francis,*for the plaintiff

*N. W. Woodfin*and *J. W. Woodfin,*for the defendants.

Daniel, J.

The plaintiff moved for a new trial, because the .Judge charged the jury, that the witness, Clay*385ton, could not be mistaken in his testimony, and that they must believe he had committed perjury, before they could find a verdict for the plaintiif. We think that the charge was erroneous. The credit, which is to be given to the testimony of a witness, is not a matter of law for the Court to decide upon, but a matter of fact, to be ascertained by a jury, without the assistance of the Court. That Clayton might have been mistaken in what he stated, was within the range of possibility whereas, to make him guilty of perjury, he must have sworn to material facts in the cause, which he knew at the time to be false. The Judge did not permit the jury to inquire, whether Clayton was innocently mistaken in his. testimony ; but he took it upon himself to pronounce, that the jury must believe him, unless they were of opinion, that he was perjured, that is, that he had sworn falsely, knowingly, wilfully, and corruptly. We think that his Honor went a little farther in his charge, than the law authorized.

Per Curiam. Judgment reversed and new trial awarded.