Lamb v. Fairbanks

The opinion of the court was delivered by Pierpoint, Ch. J. -The only question before us in this case is, whether or not the County Court erred in ordering the issue of what is called a certified execution. In cases of this kind, all questions of fact are to be determined by the County Court; and all facts found by that court that the evidence tends to prove, are conclusive, and those findings cannot be revised in this court. The decision of the County Court upon all matters resting in the discretion of that court, cannot be revised here. Whether upon the facts found, that court had the legal power to grant the certificate, is a question of law that may be revised by this court. So, too, as to the legal admissibility of the evidence on which the facts are found, and the question as to where the burden of proof lies to establish the facts necessary to entitle the- party to the certificate, or to show that he is not entitled to it. Upon the facts found by the County Court, it appears, and was conceded upon the trial, that the plaintiff was entitled to a certificate unless ho had given the defendant permission to use the money which had been placed in his hands, and which he hold in a fiduciary capacity, in his own business. Upon a fair construction of the bill of exceptions, we think the County Court decided, and acted upon the decision, that the burden of proving that the plaintiff gave such permission rested upon the defendant, and in this we think there was no error. The defendant taking [521] and holding the plaintiff’s money in a fiduciary capacity, without authority to appropriate it to his own use, if he does thereafter so appropriate it, he must show that the plaintiff gave him such permission, or submit to the consequences resulting from the issuing of a certified execution. Judgment affirmed.