delivered the opinion of this Court:
~We think the instructions contained in the bill of exceptions were improperly granted.
They are founded altogether upon the admission of the execution and non-payment of the note declared on, and do not refer in any way to the evidence offered under the plea of set off, and the effect of granting them was to withdraw this evidence from the consideration of the jury. This, in our opinion, was error. The evidence in question should have been submitted to the jury under instructions sufficiently comprehensive to cover the case actually made by the proof.
The presumption of law growing out of the relationship of the parties was, that the articles furnished by the appellant were a gift to the wife of the appellee, and the Court, if it had been called on to do so, might have so instructed the jury. But it was not authorized to find the facts shown by this evidence, although its legal conclusions upon them might have been substantially correct had they been found by the jury according to the evidence. Some of the testimony tended to support the plea of set off, but other portions of it, if believed by the jury, may have been sufficient in their
Judgment reversed, a/nd procedendo awarded.