De Rochebrune v. Southeimer

By the Goim't McMillan, J. The record in this case discloses no exception to the proceedings, either in the District Court or Justice’s Court. The only question which is presented in the case, is the sufficiency of the evidence to sustain the verdict of the jury in the Justice’s Court. Wo entirely concur with the remark of the Judge of the District Court that “ the evidence upon which the verdict in this case was based, is extremely weak, but there is nevertheless some testimony tending to show that there was some difference in quality between the pipes in the possession of the defendant, and those tendered by the plaintiff. ” Where there is any testimony to sustain the Ending on the facts, the judgment of the Justice’s Court will not be set aside on certiorari. Stryker vs. Berger, 15 Wend. 492, and mothorities cited. The justice in his amended return to the writ of certiorari states that “the pipes produced by the plaintiff were similar in quality and sort to those of defendant; that there was some difference in the mouth pieces of all four pipes, but it was only such difference as is peculiar to amber mouth pieces in pipes of similar quality. ” These are conclusions of fact, to be determined from the evidence, and the cause having been [80] tried by jury, were within the exclusive jurisdiction of the jury empanneled in the case, and from the verdict and judgment, the presumption is adverse to these conclusions. This portion of the return is not embraced in the terms of the writ, and is therefore to be disregarded. Lawton vs. Comm's of Cambridge, 2 Caine's Rep., 181. The judgment should be affirmed.