
    John Wait versus Archibald M’Neil.
    A verdict is not to be set aside, although it be given against the positive testimony of a witness not impeached, where there are circumstances in evidence tending to lessen the probability that such testimony is true.
    Assumpsit for goods sold and delivered. On a trial of the gen eral issue before Parker, J., at the last November term in this county, the plaintiff proved a delivery of the articles to the defendant, and a regular charge in his books, as of goods sold in the usual course oi ousiness.
    The defence was, that McNeil and Wait had engaged as partners in the manufacture of certain carriage-boxes ; in which business the plaintiff was to advance all the stock, and the defendant to pay for all the labor; and the boxes, when made, were to be [ * 262 ] sold by the plaintiff on the joint account, * and the profits to be divided. To prove this statement, Archibald M’Neil, jun. was sworn, who testified that before the articles were received by his father, he saw the latter and the plaintiff together. and heard it stated and assented to, that the business aforesaid was to be carried on in the manner above stated; that when the boxes were finished, the witness carried and delivered them at the plaintiff’s store ; and that the plaintiff was frequently at the manufactory, to see how the work went on. This latter fact was also testified to by other witnesses. The plaintiff swore several witnesses to prove that there had been no partnership ; and among others his son, who was clerk in the store of his father, and had the management of his business, and had never heard of a partnership existing. Another witness testified that when the boxes were left at the plaintiff’s store, neither he nor his son were present, and that nothing was said as to the cause of their being left there, and that afterwards they were taken away by the same person who left them; and it appeared that they were sent to auction by some person acting under the defendant’s directions, and were there sold.
    The judge instructed the jury, that as the goods, for which pay ment was demanded, were proved to have been delivered to the defendant in the ordinary course of business, the onus was on him to show that he was not accountable for them in this action; that if they believed the facts to be as stated by young M’Neil, their verdict ought to be for the defendant; otherwise for the plaintiff. They found for the plaintiff, and the defendant moved for a new trial, as upon a verdict against evidence.
    
      Whitman, in support of the motion,
    urged that juries ought by the Court to be restrained and kept within the proper and established rules of the law of evidence ; and when they overleap these bounds, their verdict ought not to avail. In the case at bar, the jury must have rejected the testimony of a witness who stood uncontradicted and unimpeached, and whom therefore they were bound to believe. * It is true that juries have a right to esti- [ * 363 ] mate the credibility of a witness, upon whose testimony they are to find their verdict. But they are to do this according to settled established rules of evidence. They are not to act whimsically and capriciously in the matter; and unless a witness testifies plainly against truth, against other credible evidence, or in such a manner as shows he has no regard to what he is saying; or, unless the facts to which he testifies are so very unnatural or incredible as that it is next to impossible to believe him, they are bound to give him credit.
    
      Thatcher, for the plaintiff,
    contended that, the cause being left to the jury expressly upon the credibility of the only witness, whose testimony went to question the plaintiff’s right to recover; and they being the sole judges established by the law to determine that point, and having determined it according to their best discretion, there was no ground to send the cause to another jury for a rehearing. The motion is not grounded on any of the known rules for granting a new trial, and the plaintiff is by the law of the land entitled to judgment on the verdict which the jury have rendered in his favor.
   The opinion of the Court (absente Parsons, C. J.) was delivered as follows, by

Sedgwick, J.

The objection in this case is, that the verdict, is against evidence; and if it be clearly and manifestly so, it certainly ought to be set aside. The plaintiff at the trial having proved his case, the only positive evidence against him was the testimony of the defendant’s son. The Court will pay all due respect to the testimony of a witness, who stands uncon tradicted and unimpeached; but the credit of every witness must be taken into the consideration of the jury ; and this is peculiarly and emphatically within their province.

In this case there was little to corroborate the testimony of the witness. That the boxes, for the manufacture of which it [ * 864 ] is understood the goods charged to the defendant *were delivered, were, when finished, carried and delivered at the plaintiff’s store, is a circumstance relied upon for the defendant ; but to this it may be answered, that, as the plaintiff kept a store in Boston, the boxes might have been brought there to have been disposed of, although the plaintiff had no interest in them, further than from the proceeds of the sale to obtain payment of the debt due to him from the defendant; and it may be added, that this circumstance is stripped of all its weight by the opposing fact, that the boxes were afterwards taken away from the plaintiff’s store, by the same person who carried them there, without any consent, that appears, from the plaintiff. The only other fact, which appears in any degree to corroborate young M’Neil's testimony, is, that the plaintiff frequently went to see how the work went on during its progress. This he certainly might have done (although he was not interested as a partner) either from curiosity, or to enable him to form a judgment as to the probability of the goods manufactured affording a reasonable prospect of security for the payment of the debt, which the defendant owed him.

On the other hand, there were circumstances before the jury, and proper for their consideration, whether full credit ought to be given to the witness. He was the son of the defendant. The nature of the transaction itself afforded some ground for hesitation. It is certainly not common that partnerships exist without the terms being reduced to writing ; and it certainly could hardly be expected, although there was a partnership without any writing, yet that it should be known only to one witness, and that witness the son of one of the parties. There was also another fact of no inconsiderable weight before the jury ; the supposed partnership property was sold at auction by the sole order of the defendant, without the knowledge of the plaintiff, and without notice to him.

As the burden of proof, respecting the partnership, was on the defendant, if the jury did not pay full credit to * young M’Neil’s testimony, they did right in the verdict [ * 265 ] which thsy returned. On the whole, we are all of opinion that we cannot say that this verdict was so against evidence that it ought to be set aside. There must, therefore, be judgment ren dered for the plaintiff upon it. 
      
      
         [The true question is, whether there was any thing in the case to justify the jury in disbelieving the witness of the defendant. It would seem, that there was not And an arbitrary finding should not be allowed. — En.j
     