Russell v. Buckley ( 1857 )

Ames, C. J.

There must be a new trial in this case on the ground of misdirection 'to the jury. It is true, that if a miscarriage of the letters enclosing money, sworn to have been mailed by the defendant, had been proved, in the absence of proof of authority from the plaintiff or his wife thus to remit to them, the loss by the miscarriage must have fallen upon the defendant. In the posture of the case, however, exhibited by the bill of exceptions, the defendant was entitled to the direction in substance requested by him ; — that if the jury believed from the testimony that the defendant had mailed letters enclosing money, as he swore, they were authorized, in the absence of proof to the contrary, to presume that they were received by the plaintiff’s wife. Such a presumption is in accordance with and is founded upon common experience, and is therefore known to the law as a presumption from the ordinary course of business. Farther proof of the receipt of a letter than what is derived from proof of the proper direction and mailing of it would be wholly unnecessary, always difficult, and often impossible.

New trial granted, to be had at the next term of the court of common pleas for the county of Newport.