55 N.H. 448 | N.H. | 1875
Lead Opinion
Trespass — Evidence. The plaintiff charged that the defendants' horses had eaten hay from one or more of seven mows in the plaintiff's barn, not including the two which had been sold, namely, one to the defendants and another to Meserve. The defendants denied this, and, in support and proof of their denial, undertook to show that whatever hay was taken from the plaintiff's other mows was taken by others, and not by themselves or their horses. They were therefore permitted to show that the plaintiff gave permission to Meserve to take hay from "off the next mow or mows," that is, from either of the other seven mows.
The evidence was clearly competent, as tending to account for the missing hay in a manner consistent with the defendants' assertion of their innocence.
The evidence objected to was offered for the further purpose of showing "the quality of the hay purchased by them." This was not a *450 question in issue. It was quality of the hay not purchased by them which was material upon the question of the amount of damage sustained by the plaintiff from the alleged trespass; but the jury, having found that neither the defendants nor their horses took the plaintiff's hay, the admission of the testimony, which was competent on other grounds, cannot in any way have prejudiced the the plaintiff.
Concurrence Opinion
The evidence of Meserve tended to show that he took away, by consent of the plaintiff, the hay which the defendants were charged with taking from the top of the other mows, and was admissible for that purpose. No reason is apparent to me why the whole that was said by Brown should not be heard. The verdict being for the defendants, the plaintiff could not be prejudiced by any influence that part of the testimony might have had upon the damages.
LADD. J., concurred.
The exception is overruled, and there must be
Judgment on the verdict.
