32 Mich. 104 | Mich. | 1875
There are a number of assignments of error in this case-. As the judgment must be reversed and a new trial ordered for reasons hereafter appearing, we have deemed it best to notice such questions only as are likely to arise upon a retrial.
The action was -assumpsit upon a promissory note and due-bill.
TJpon the trial plaintiff called defendant on rebuttal as a witness, requested him to produce his book, and called his attention to an entry therein of January 1st, 1868, for the purpose of showing that the testimony of defendant’s witnesses did noi> apply to the Jane Lewis note in suit, dated May 4th, 1868, the entry in the book having been made anterior to the existence of the note in suit. This was objected to by defendant’s counsel because the entry did not apply to the note in controversy and had nothing to do with the case. This evidence was' admissible for the purpose for which it v'as offered.
After the plaintiff had called defendant’s attention to this entry, and proved by him that it was in his handwriting, defendant’s counsel then sought upon cross-examination to inquire about the different questions involved in the case, which was objected to as not proper cross-examination, and the objection was sustained. In this ruling there was no
It appeared upon the trial, and the fact was not disputed, that the due-bill was the property of, and belonged to the plaintiff’s wife. The plaintiff, Brown, testified that it “belonged to his wife, and wras given for her money, that she got it from Alexander Blue, ' and it was given to plaintiff' just before the commencement of this'suit, and up to that time had been in his wife’s possession.” His wife, on being afterwards called, testified that it then belonged to her.
Defendant’s counsel requested the court to charge the jury that under the testimony in the case the plaintiff was not entitled to recover .upon this due-bill, it not being his property. This the court refused, and defendant’s counsel-excepted.
The plaintiff claimed to recover in his own right and for his own use and benefit. In Hovey v. Sebring, 24 Mich., 232, it was held that the possession of a promissory note-payable to bearer, by the plaintiff, and his producing it on the trial, was prima facie evidence of his title and right to sue upon it, and that he need not be the real or beneficial owner to entitle him to recover. His right to recover in that case, however, was based upon the legal presumption of ownership springing from his possession, and its negotiable character. This presumption took the place of proof to a. like effect. Had it not been for thi's presumption in that case the plaintiff could not have recovered. Here is a case-of a more due-bill, not payable to bearer and not negotiable,
The court refused to instruct the jury that if they found certain statements to have been made, they would tend very strongly to prove that the plaintiff had no just or legal claim against the defendant. The court refused to charge that such would be very strong proof, but left all such questions to the jury, instructing them to give such weight to the testimony as they thought it entitled to. This was proper. What certain statements tend to prove, or the weight to be-given them, are proper questions for the jury, and the court cannot instruct them as to the we'glit- or importance to attach to any particular part of the testimony. To do so would be but usurping the proper province of the jury.—Perrott v. Shearer, 17 Mich., 48; Abell v. Munson, 18
The judgment must be reversed, with costs, and a new trial granted.