Hightower v. Walker

Lumpkin, Justice. Irrespective of other questions made in the record, there must be another trial of this case, for the reason that the presiding judge charged the jury: “If the husband bought goods of the plaintiff, and the wife got the benefit of them, and the husband was insolvent, then she would be liable for them.” We are quite sure that our brother of the circuit bench has never, since his admission to the bar, believed that the above proposition, just as it stands, is a correct exposition of the law upon the subject with which he was dealing in the present case. Giving this instruction to the jury was manifestly the result of inadvertence on his part. The error thus committed would doubtless have been corrected by the granting of a new trial by the presiding judge, had he not evidently entertained the opinion that the evidence demanded the verdict. In the argument before this court, counsel for the defendant in error very properly conceded that the charge above quoted was erroneous, but insisted upon an affirmance of the judgment below, on the ground that the error thus [753] committed was harmless, as the verdict rendered was the ■only outcome from the evidence legally possible. "We have therefore directed our attention particularly to the brief of ■evidence sent up in the record. After a careful examination and consideration of the same, we are unable to sustain ■counsel in this conclusion. Without expressing any opinion as to what the verdict ought to be, we feel constrained to order a resubmission of the case to a jury. Judgment reversed.