Fain v. Cornett

By the Court. Lumpkin J. delivering the opinion. " This was an action brought by a son-in-law, to recover of the widow and legal representative of his father-in-law, afamily of negroes, alleged to have been given to the plaintiff and his wife, by the defendant’s intestate. Considerable testimony was offered on both sides of this case. The verdict was for the defendant, and there was a motion for a new trial upon two grounds. First, because the verdict w;as contrary to evidence; second, on account of the misdirection of the Court in its charge to the jury. As we intend sending this case back, we forbear to express any opinion upon the proof, as we do not wish to influence the finding of the jury upon the proof, upon the next trial. The Court charged the jury, that if they * believed from the testimony that a gift of the negroes had been made by [186] U. D. Cornett” (the father-in-law,) cito the plaintiff, they should find for the plaintiff; but still, if there was testimony rebutting the proof that a gift of the negroes had been made, they should find for the defendant.” The word “ rebutting” has a two-fold signification, both in common and legal parlance. It sometimes means contradictory evidence only; at other times conclusive or overcoming testimony. It is possible, nay probable, that the* Judge, in his charge, intended to use it in the latter sense; and if we were sure he was so understood by the jury, we would not disturb the verdict. Indeed, had the word rebutting but one meaning, we should feel bound to hold that the Judge was properly understood by the jury. But seeing that it has a more restricted definition and use, viz: countervailing or opposing, as well as overcoming proof, and fearing that the juay might have believed that the Court designed to instruct them that if there was any opposing proof, they should find for the defendant, we feel constrained to send this case back for a re-hearing. Judgment reversed.