Johnson v. Hebard , 13 Conn. 337 ( 1839 )

Huntington, J.

The evidence reported to us establishes the fact that an arrangement was perfected between Swift and Bingham, by which the entire controul of the execution in favour of Bingham, was given to Swift. The nature and terms of that arrangement did not appear, by any direct testimony, but were to be ascertained from the facts and circumstances proved at the trial, which were left to the jury, with instructions to return a verdict for the jftaintiff, if they should find that this execution had been paid in full, and satisfied by Swift, before the levy of the plaintiff’s execution was made. They did so find; and althougNwe might perhaps have come to a different conclusion, we cannot say that the verdict is without ev^encc> or so clearly against the weight of evidence as to justify us in sending the cause to another jury. The point in dispute was left in some doubt upon the testimony. There was no fact proved inconsistent with the supposition, that Swift, who was one of the debtor’s in the execution, and legally bound to pay it, did in fact pay it. The jury might have inferred, that Bingham, who had entire security for his debt, and to whom an offer had been made by the plaintiff, to pay the execution in money, would not conclude an arrangement with Swift, less beneficial than actual payment ; and consequently, that the one which was completed, was of that character. The whole case was before them, with the advantage derived from the examination of the witnesses in court. It was their peculiar province to decide upon the weight of evidence, and to draw from it such inferences as they deemed to be just. This they have done; and we do not feel ourselves, as a court of law, and acting according to the rules by which courts of law are usually governed in similar cases, at liberty to disturb their verdict.

A new trial is, therefore, refused.

In this opinion the other Judges concurred.

New trial not to be granted.