William v. Kirkman

Turney, J., delivered the opinion of the court. The pleadings make no question on the validity of the judgment, and we can therefore take no notice of objections made in argument. The issues tendered are perhaps in some respects repetitions, but all contain facts necessary to the theory of the bill, and are therefore material. Upon these issues questions of fact were submitted to a jury. The Chancellor charged the jury: “The rule of law requires greater weight to be given to positive 'than to negative testimony. For example, all other things being equal, if A swears positively that [511] ■a certain fact occurred and B swears it did not occur, tbe swearing of A is positive and that of B negative, and the greater weight, therefore, is to be given to the positive testimony of A. But if B swears positively to the existence or occurrence of any other fact which is wholly inconsistent and cannot be reconciled with the fact sworn to by A, then the testimony of B becomes positive and is entitled to as ' much weight as the testimony of A,- and their testimony would be ■equally balanced.” This was error, because it assumes that positive testimony can only be to the affirmative of a fact or occurrence; whereas, on the contrary, positive testimony may as well deny the existence of a fact as assert its ■existence; as if two persons said to be parties to a transaction and the one compelled to know as much of it if it ever existed as the other, and being called ■on to testify, the one. swears positively that it did transpire, and the other as positively that it did not, the testimony of each is positive, and the question then to be determined is one of credit, the rule of law as to positive and negative testimony does not apply. For example, it is claimed by one witness that he bought of or sold to another an article of property, and he swears to the sale and its terms; the other swears that no such sale or purchase was ever made; the testimony of each is positive, and neither negative in the sense of the rule. .Reverse the decree and remand the cause.