10 Ill. 506 | Ill. | 1849
The Opinion of the Court was delivered by
The plaintiff was bound to show that he was the owner of the land on which the trespass was committed. Wright v. Bennett, 3 Scam. 258; Whiteside v. Divers, 4 do. 336; Jarrot v. Vaughn, 2 Gilm. 132. The defendants permitted him to prove it in his own way, and without objection. The bill of exceptions does not set forth the evidence in detail, but states generally, in relation to this part of the case, that two witnesses testified that the land belonged to the plaintiff. If the testimony given by them would have been competent in any state of the case to prove the ownership, then the Circuit Court committed no error either in refusing to give the instruction or grant a new trigl. The question is not whether the proof was the best which the nature of the case admitted of, but whether it was relevant and tended to establish the fact of ownership.
The defendants by their silence, dispensed with the production of higher evidence, and allowed the plaintiff to prove this branch of his case by any legitimate testimony, although it might be of an inferior character. If they desired to hold the plaintiff to strict proof of title, they should have objected to the evidence when offered. By permitting it to be received they could not afterwards call upon the Court to exclude it or direct the jury to disregard it, unless it was manifestly irrelevant or incompetent. If it clearly appeared from the bill of exceptions that the testimony actually given by the witnesses was incompetent, then the allegation of ownership was not made out, and the defendants were entitled to a new trial. Pittman v. Gaty, (ante 186.) This, however, does not affirmatively appear. The precise character of the evidence is not given. It may have been proper. We can readily conceive how the plaintiff may have shown title to the land by the oral statements of the witnesses. Proof by them that he had the actual possession of the premises under claim of title would authorize the presumption that he was the owner.
The witnesses may have stated from recollection the contents of documentary evidence of title. Such proof, admitted without objection, would not be improper, because in a certain contingency — the loss of the original- — the recollection of witnesses might be the only evidence capable of being produced. The generality of the bill of exceptions, the phraseology of the instruction asked, and the reason assigned by the Court for refusing to give it, render it not improbable, that the testimony, though of an inferior grade, was not purely incompetent.
The" judgment of the Circuit Court is affirmed with costs.
Judgment affirmed*