#### George Shegog *ads.*Richard Shegog.

Tried before his Honor Judge Axsoir,City Court, January Term, 1837.

This was an action of assumpsit on a promissory note, given by George to Richard Shegog.

Edmund O’Neal, sworn, proved the hand-writing of defendant, and his residence within the jurisdiction of the court.

Here the plaintiff closed his case.

The defence stated, was, that the plaintiff had written the note over the name of the defendant, which had been signed to a letter.

Charles Durham, Robert Jones, and Edmund ¡Jones, of Ruther-*271for;! county, N. C., were examined, by commission, a short abstract of whose testimony, which I made at the trial, as their depositions were read, is as follows, viz :

Charles Durham : Knows both parties ; Richard Shegog for twelve years, defendant for three years. Defendant had a good store in Rutherford, punctual in his contracts ; had money enough. Plaintiff is a drinking "man ; never made money ; his farm was not sufficient to support his family. Defendant told witness to let plaintiff have'things from his store for his family, which he did, and defenda: t paid him twenty dollars. Plaintiff does not follow business, he follows drinking. Defendant gave notice to his creditors to present their demands before he quit Rutherford ; thinks plaintiff must have seen it.

Robert Jones : Knows plaintiff eighteen or nineteen years, defendant eight or nine years. Defendant staid at Rutherford three' or four years. Plaintiff had no money. Told witness he depended on defendant for the support of bis family ; don’t believe defendant owed him a cent; don’t think from the situation of the family, that he could have owed him any thing; believes that plaintiff was instrumental in breaking up defendant. It was generally known that defendant was about to leave Rutherford twelve months before he did.

Edmund Jones : Defendant resided in Rutherford two or three' years, was as punctual as any man he ever knew. Plaintiff gets-money by cheating and begging. Since the defendant has quit Rutherford plaintiff has had great difficulty in supporting his family. Knows defendant advertised for creditors ; thinks he saw a notice at *Sandy Run,*where witness resides.

The evidence of these witnesses in detail, will appear by the commission.

Joseph Shegog, a witness produced and sworn, deposed, that-the note, the subject of this suit, was sent to A. Y. Walton *&*Ctí, for collection ; believes it was sent back; does not know what was done with it; believes the writing in the body of the note, is the hand writing of plaintiff. Defendant was living with' witness, in Charleston, at the date of the note. Don’t think defendant could have been indebted, in any manner, to plaintiff. The Jersey wagon, the price of which is credited on the note, was purchased by witness, to send plaintiff home. Plaintiff had no reason to give defendant credit for it, as witness has a charge against him for it. Plaintiff has always been in bad circumstances, and supported by the rest of the family. Defendant is a punctual man in meeting his engagements ; every body that knows him will say so.

On his cross-examination, witness said defendant was from Charleston, in Rutherford, four years, and during] lived with plaintiff. On his return from Rutherford to defendant was not a married man. Defendant purchased gon (by the directions of witness,) with the knowledge of itóaijriRff. Defendant is a clerk of witness. Defendant has seen the/'"* knows the credit for the wagon is given.

In reply, he said he never knew of any demand from ;

*272any debt from defendant, until the note was presented. *Both*plaintiff and defendant were in Charleston, at the date of the note.

Here the case closed.-

1 charged the jury, that the note was proved, and the plaintiff entitled to a verdict, unless the defendant had proved there was no consideration, or that there was *fraud.*

That the note, itself, famished evidence of a considerador, unless (he contrary appeared ; that *fraud*could *not*bo presumed, but must be pioved by positive evidence, or such testimony as left no doubt on their minds. That the defence, if true, would fix upon the plaintiff the. crime of forgery ; and if they thought the evidence offered was not sufficiently conclusivo to authorize them to convict the plaintiff of that offence, were he upon his trial, I thought they ought to support the note.

.•viler laying down diese principles, as to the character of the evidence, w.iich, in my opinion, they ought to require, I told the jury, ih..t n v as a question of fact, exclusively for them, recapitu-lad' the » jo, and kit it to their decision. They found a ver-¿bol fix- !h>i nkbüíl'.

V:>e Oofondaui'd couusel furnished me with the annexed grounds of appeal.

JACOB AXSON, *Recorder.*

*Grounds of Appeal.*

1. That, his Honor charged the jury, that fraud cannot be presumed, but must be proved by positive evidence ; whereas, it is respectfully submitted, that fraud may be proved by circumstances.

:i. Because the verdict is contrary to law and evidence.

PETIGRU & LESESNE, *Defendant's Attorneys.*

Mr. Justice O’Neall

delivered the opinion of the court.

The general rule is, that fraud cannot be presumed. But by that, I do not understand that it may not be established by presumptive evidence. Such facts as will satisfy a reasonable mind of its existence, are all which the law requires. The rule means no more, than that fraud shall not be presumed without evidence. In stating to the jury the general rule, it seems to us that the recorder laid it down without sufficiently qualifying it, or shewing its appropriate application.

For, from his report, it would seem, that the jury might have con. eluded from his instructions, that something more than the usual evidence in a civil case, was necessary to support the defendant’s defence. But this is not so. For although fraud, like crime, often dé ponds upon intention, yet it does not follow, that its establishment is guarded against, with the same merciful cautions, which are used to prevent a conviction for crime, which would subject the party to *273punishment. It is to be proved arid judged of like any other fact~ between party and party. The jury ought to be satisfied of its truth : but when so satisfied, they have no right to loqk beyond th~ case, for consequences which may, or may not flow from the act~ It is true, that the legal presumption is, that every man is innocent of a fraud until the contrary appears: and a jury ought to have this legal presumption clearly rebutted by evidence, which places the matter beyond a reasonable doubt.

Filed 14th February, 1837.

PETIGBU & LESESNE, for motion.

SEY~roun, contra.

The motion for a new trial is granted.

JOHN B. O'NEALL1

We concur,

RICHARD GANTT, JOSIAh J. EVANS,

3. S. RICHARDSON, A, P. BUTLER.