Freund v. Paten , 10 Abb. N. Cas. 311 ( 1882 )

Beach, J.

Under the Bankruptcy Act (U. S. R. S. § 507), it is provided that “ no debt created by the fraud of the bankrupt .... shall be discharged by proceedings in bankruptcy.” This issue was clearly raised by the plaintiff’s reply, and even without that pleading, he would have been entitled to prove it, on the trial, in answer to the discharge, without any allegation in his complaint, it being no part of his cause of action, but an affirmative defense to the promissory notes upon which he declared (Argall v. Jacobs, Court of Appeals, MSS. opinion).

Upon the trial the learned judge charged the jury, if they should be in doubt whether the defendant made the representations charged against him, they'must give the benefit of such doubt to defendant and find a verdict in his favor. And further, if the jury should be in doubt whether defendant intended to cheat and defraud plaintiff, the benefit of such doubt must be given to defendant, and a verdict found in .his favor. To these instructions exceptions were taken, and in my opinion should be sustained.

In civil cases the jury should decide issues of fact according to the weight of evidence, and it is sufficient if the evidence on the whole agrees with and supports the hypothesis which it is offered to prove. In criminal cases it must produce a moral certainty of guilt and exclude any other reasonable hypothesis (Stark. Evid., 813, 816; Johnson v. Agricultural Ins. Co., 13 Week. Dig. 144; People v. Schryver, 42 N. Y. 1). It is said in Starkie on Evidence, supra, that in some contests as to civil rights a mere preponderance of evidence may be insufficient, where it falls short of fully disproving a legal right once admitted or established, or of rebutting a presumption of law. Other exceptional cases are actions of libel or slander wherein the charge is the commission of a criminal offense. A plea of justification requires the same de-. gree of evidence as would be necessary to convict the plaintiff in a criminal prosecution for the same offense (Townshend on Libel, 674; Woodbeck v. Keller, 6 Cow. 118).

The instructions given the jury were plainly not in accord with the legal rule, and more strongly marked by the omission of the term “ reasonable ” in qualification of “ doubt.” The plaintiff’s counsel, by excepting to the court’s charge of legal propositions, did all needful to present the question. Under such circumstances counsel are not called upon to suggest amendments or changes to the court, but may rely upon the exception (Goldman v. Abraham, 10 Week. Dig. 108; Allis v. Leonard, 58 N. Y. 291).

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Van Brunt, P. J.

I concur in the result of tlie foregoing opinion; but I do not concur in it so far as it seems to assume that if the judge in the court below had used the words “ reasonable doubt ” his charge would have been correct. No party to a civil action is bound to make out his case beyond a reasonable doubt, unless in order to make out his case it is necessary to prove a felony. An issue in a civil action is made out when there is a preponderance of evidence in favor of the party supporting the issue. If there are fewer doubts in the minds of the jury upon that side of the case than upon the other, then such party is entitled to a verdict because a preponderance of evidence exists.

Judgment reversed and new trial ordered, with costs to abide event.