Fuller v. Fuller

         JUDGES: Baldwin, J. delivered the opinion of the Court. Field, C. J. concurring.

         OPINION

          BALDWIN, Judge

         On petition for rehearing, Baldwin, J. delivered the opinion of the Court--Field, C. J. concurring.

         We have gone over the testimony again in this case. It would subserve no useful purpose to recapitulate it, nor to comment on it. Both that of the plaintiff and of the defendant was precisely of that character which could only be satisfactorily passed on by a jury. The counsel is altogether mistaken in saying that there is no conflict in the proofs of the recriminatory charges of defendant. The testimony of Welch, which is the main proof in this respect, was mainly circumstantial, and much would depend upon the manner, bearing, and character of the witness, as well as the peculiar nature of his disclosures. He was not unimpeached, both directly and by circumstances, and even if not impeached, we could not on such an issue usurp the province of the jury by assigning conclusive force to the testimony of such a witness.

         The questions were peculiarly issues of fact for a jury, and we should be reversing our whole course of decision, if we interfered with their finding in opposition to the ruling of the learned Jndge who heard the proofs.

         Rehearing denied.