Nichols v. Alsop

Bissell, J. Two questions have been raised upon this . j. , r * ■-, the one regarding the admissibility of the evidence 0ffere¿ an¿ admitted in the court below ; the other respecting the correctness of the charge. 1. The evidence offered and objected to, was a paper, purporting to be the account current of Bull Sp Nichols with the schooner Gipsey. The testimony was not objected to, on the ground that it was irrelevant; but on the ground that the paper was not properly authenticated, not being signed by Bull Sp Nichols. But it purported to be their account, and was in the hand-writing of one of the partners. This is sufficient ; and the objection has not here been much insisted on. It is however said, that there was no evidence going to show, that the account was rendered by Bull Sp Nichols ; or that it Came lawfully into the hands oí the defendant. To this it is sufficient to observe, that the possession of the account, by the defendant, raises a presumption, hot only that it was rendered, but that it came properly into his hands. And this presumption must prevail, unless repelled. And it may be further remarked, that the presumption arising from the possession of the paper, was corroborated, by the other testimony offered on the trial; and the whole was properly submitted to the jury. There is, then, no foundation for the objection to the evidence; and there is as little for that against the charge, on the facts which were in issue, in the court below. ^Two questions were presented to the consideration of the jury : 1st, whether Bull Sp Nichols were indebted to the defendant, as stated in his plea and notice ? and 2ndly, whether the understanding and agreement mentioned therein, were proved? These questions were distinctly put to the jury, by the charge : and have been answered, by the verdict. It is, however, insisted upon here, that the principles asserted in the charge, with regard to the lien of the builders of the schooner Gipsey, for their labour arid disbursements, are incorrect. For it is said, that/by the terms of the building contract, which makes a part of the case, no such lien could have existed. It is a sufficient answer to this claim, that it is here made, for the first time. No such question was either made or adjudicated upon, in the court below. Hayden & al. v. Nott & al. 9 Conn. Rep. 367. Indeed, the existence of the lien, so far from being denied⅜ [269] was impliedly admitted; for it was contended, that Bull Sf Nichols having taken possession of the vessel, previous to the execution of their bill of sale, the lien of the builders was thereby discharged. But the inquiry whether the builders had a lien upon this vessel, would seem to be very immaterial; it being admitted, that she remained in their hands, and was eventually sold by them ; and it being further admitted, that she was sold for no more than enough to cover her building expenses. The question then was, what was the interest of Bull Sf Nichols in this vessel, at the time of the sale to the defendant ? And here it is sufficient to observe, that this precise question was determined, and every principle laid down in the charge fully sanctioned, by the Supreme Court, on a former trial of this case. 6 Conn. Rep. 477. 479. Again; it has been urged, that the defendant never paid 1500 dollars, nor any other sum, for Bull Sf Nichols' interest in this vessel; and that the question of payment was not properly left to the jury. It is very difficult to see on what foundation this objection rests. There is no pretence, that this was a bargain of hazard ; and a recurrence to the charge will satisfactorily show, that the jury must have found, not only that the consideration was paid by the defendant, but also an agreement between him and Bull Nichols, that the difference between the consideration so paid, and their actual interest in the vessel, should be applied in extinguishment of their demand. The rule must be discharged. The other Judges were of the same opinion, except Peters, J., who was absent. New trial not to be granted.