Cunningham v. The State, 5 Tex. 440

Lipscomb, J. The only material question on which this case depends is as to the evidence, on which the jury returned a verdict in relation to the age of Williams, tinder whom the plaintiff claimed, at the date of the Declaration of Independence. If he was seventeen years of age and upwards, his title to the headright certificate does not seem to he controverted. Two witnesses swore as positively as could reasonably be required that they knew him well, and that he was seventeen years of age at that time. No witness swore positively that he was not, and only one that could throw any doubt on the subject.

Under such evidence it seems that the jury ought to have found a verdict for the plaintiff; and in not doing so they found contrary to the evidence. One positive witness whose testimony is not impeached is worth more than half a dozen who are not certain as to a given fact. Had the testimony been positive on both sides, the verdict ought not to be disturbed, no matter to which side they may have accorded belief. The judgment ought therefore to be reversed and the cause remanded. Judgment reversed.