Burnham v. Toothaker

¶1It is no part of our duty, under these exceptions, to determine the correctness of the finding of the jury, upon the evidence adduced. The question submitted to our revision is, whether the instructions of the presiding Judge were erroneous in point of law. He left it to the jury to decide, whether at the time the defendant bought the swine in question of Staples, the property was in him, which they found in the affirmative. If there was no evidence leading to this conclusion, the cause ought not to have been so left. But it does appear to us, that there was such evidence'. The case finds, that Staples requested the plaintiff to buy a hog for him, proposing to pay the plaintiff therefor in lumber, or in some other way, that the plaintiff thereupon bought two sows, of which the swine in controversy were the increase, and put them into the hands of Staples. The request was to buy one, but two were purchased and received, and if the testimony stopped there, it might fairly be insisted, that only one was intended for Staples. But it was in proof that the plaintiff often spoke of having bought both the sows for him. If such was the fact, which the jury must have found, his subsequent possession was evidence of property. The circumstances of that possession and the connexion between Staples and the plaintiff, were before the jury. Mere possession, as Staples was carrying on the plaintiff’s mill on shares, would have weighed little or nothing in the scale, if the plaintiff had not declared, that he purchased the swine for Staples. We do not perceive any sufficient legal ground, upon which to declare the instructions of the Judge erroneous. Exceptions overruled.