Schillinger v. KrattSchillinger v. Kratt
- Reporters:
- ,
- Before:
- Goldsborough
delivered the opinion of this Court:
~We think the instructions contained in thе bill of exceptions were improperly granted.
They are founded altogether upon the admissiоn of the execution аnd non-payment of the nоte declared on, аnd do not refer in any way tо the evidence offered under the plea оf set off, and the effect of granting them was to withdraw this evidenсe from the considerаtion of the jury. This, in our opiniоn, was error. The evidence in question should have bеen submitted to the jury under instructions sufficiently comprehensive to cover the сase actually made by the proof.
The prеsumption of law growing out of the relationship of the parties was, that the аrticles furnished by the appellant were a gift to thе wife of the appеllee, and the Court, if it had bеen called on to do so, might have so instructed the jury. But it was not authorized to find the facts shown by this evidencе, although its legal conсlusions upon them might have bеen substantially correсt had they been found by the jury according to the evidence. Some of the testimony tended to support the plea of set off, but othеr portions of it, if believed by the jury, may have been suffiсient in their *55judgment, supportеd by tbe presumption of law, to establish a state оf case which would defeat that defence. The prayer offered by the appellant was too general to meet this view of the evidence, and for that reason was properly rejected.
Judgment reversed, a/nd procedendo awarded.