DePoister v. Gilmer

SOMERVILLE, J. — The evidence tended to show, and from it the jury were authorized to infer, that the plaintiff was in the actual occupancy of the land in controversy, through his agent; and the testimony also tended to identify this land as being the same with the tract called “the Morgan S. Gilmer land,” which is shown to have been trespassed on by the defendant. The general affirmative charge, therefore, requested in behalf of the defendant, which was equivalent to a demurrer to the evidence, was properly refused by the court, because it infringed on the prerogative of the jury. Affirmed.