Elsey v. Metcalf

Per Curiam. We cannot upon this motion determine upon the validity of the proceedings upon the attachment against L. Whitcomb. The circuit judge decided against the objections to them now taken, and thus prevented the defendant from giving other evidence, which perhaps he might have furnished if these objections had prevailed. To deny him a new trial on account of erroneous decisions in his favor might work injustice. The rule is to examine the decisions made by the circuit judge against the party who has lost the verdict, and to grant or refuse a new trial according as we find them erroneous or otherwise. If the point ruled against a party who has succeeded, at the circuit when rightly determined, presents an obstacle which it is impossible to overcome, then, and only in that case, can it be relied on to prevent a new trial. In this case the difficulties though apparently formidable may possibly be surmounted. We'think the judge erred-in holding that the deed afforded prima facie evidence that the day inserted for its date was the time of its delivery. Since the revised statutes this is not the rule as to a deed not acknowledged or proved and having no subscribing witness. But the presumption never prevails against direct evidence. Here, there is affirmative proof that some time after the date of this deed it was in the hands of the grantor. This destroys the presumption of a delivery at its date. It is urged that the sending it in a letter to O. Y. Whitcomb was a delivery, or if not, that the depositing it in the clerk’s office by him had that effect. This might have been so if it had been shewn that it was so sen t or deposited for the use of [327] the grantee ; but the character of O. Y. Whitcomb’s agency is wholly unexplained, and for aught that appears he received and deposited it for the use of the grantor, who may have retained the control of it until it was committed to the plaintiff’s counsel, to produce at the trial. There must be a new trial at which these difficulties may be explained. New trial granted.