Bailey v. Kimball

26 N.H. 351

• Court: Superior Court of New Hampshire
• Decided: July 15, 1853
• Status: Published

Opinion

Woods, J.

Upon the question whether the court may order a nonsuit in a case opened to the jury, the authorities are not uniform. But the great weight of authority and the practice that has prevailed in this State, are in .favor of that course, when no sufficient evidence has been adduced by the plaintiff to justify the jury in finding a verdict in his favor. In Stickney v. Stickney, 1 Foster’s Rep. 61, the power is not only recognized, but the court was holden to have erred in not exercising it in that case. It was one in which there was a variance between the declaration and the written evidence offered in support of it. A motion for a nonsuit was made, which the court denied, and submitted the evidence to the jury, who found for the plaintiff.

Whether the nonsuit was properly ordered in the present case, depends of course upon the question whether there was competent evidence before the jury upon which a verdict might have been legally returned in favor of the plaintiff. And on this point the only question is, whether there was competent evidence that he made, on the 7th of June, the attachment under which he claims. For such attachment, if legally made, constitutes a title to the property in question sufficient, until defeated by some better claim of the defendant, to enable him to maintain his action.

Much evidence, on this point, appears in the case, which it is not necessary to consider, because the plaintiff’s own return upon the Writ of Thomas Webster must, in the absence of fraud, be regarded as conclusive evidence that the attachment was made at the time therein stated. Undoubtedly there is a diversity of opinion as to the character of this kind of evidence, but the cases of Brown v. Davis, 9 N. H. Rep. 76, and Parker v. Guillow, 10 N. H. Rep. 103, have fully established, in this State, the principle which gives it conclusive effect. In the case of Brown v. Davis the return showed that the property was attached on Saturday; and the court held that evidence was inadmissible to show that the attachment was not perfected by the actual possession of the property until the day following. In the present ease, the return shows that the property in question was attached on the 7th, and should have been submitted to the jury as not only competent but conclusive evidence of that fact and of the plaintiff’s title, so far as it depended upon it. The nonsuit was, therefore, improperly directed, and must be set aside.

Nonsuit set aside.