Ferguson's Adm'r v. Kouns ( 1880 )

Opinion by

Judge Hines :

The following instruction should not have been given:

“If the jury believe from the evidence that after rendering of the services charged in the first two items of the account Dr. Ferguson and defendant had a settlement, and that upon such settlement Ferguson fell in debt to defendant, then the presumption of the law is that these items were embraced in such settlement.”

From the fact of a settlement the jury might have inferred that the items mentioned were embraced in the account, but the presumption that they were so embraced is by no means conclusive. Instead of leaving the fact for the consideration of the jury and permitting them to give it such weight as they might deem it entitled to, they were in effect told that if they found that the settlement was made they must then find that these items were embraced in it. Lawhorn v. Carter, 11 Bush 7.

L. T. Moore, for appellant.

Judgment reversed and cause remanded.