French v. Merrill

| Superior Court of New Hampshire | Dec 15, 1833

UriT.\M, J.

The ground taken by the defendants’ counsel in the motion in arrest of judgment is, that when property is taken in the intestate’s life time, it becomes a mere chose in action, for which the executor, or administrator must bring his action, in his representative capacity ; but when the conversion is subsequent to the intestate’s decease, an action accrues to the repre-senlative in his own right, and that it is a misjoinder to unite both causes of action. But this ground is not sustained by the authorities.

The general rule as laid down, is, that whenever money would be assetts in the hands of the executor, or administrator, he may sue for it in, his representative capacity. And if such be the case, it is immaterial whether the» conversion of properly be before, or after the intestate’s decease ; it is equally the property of the estate, and may be sued for as such, and the conversion alleged in either or both ways, as is most convenient. This position is sustained in 1 Ch. Pl., 202, 3 & 4, and the authorities there cited. And in 2 Chit. 374, is a count in behalf of the executor for trover and conversion after the death of the testator.

The motion in arrest does not prevail.

’■ There is a farther exception, as to the admission of improper testimony. On the trial of this case, the defendants, with a view to discredit the testimony of the plaintiff’s witness, proved that the witness had given, on other occasions, and within a week or ten days after the time of the transaction of which he testified, a very different account from what he had stated on the stand ; and the defendants contended that the testimony given by the witness on trial, was a new fabrication, got up by him since the suit; to rebut which, the plaintiff offered to prove that the witness had given the same account of the transaction the next morning after it had happened, as lie had given in his testimony on the .trial.

The doctrine seems to be recognized, that under special circumstances, evidence to the extent contended for may be admitted.

It is a general rule, that the declarations of a witness are not admissible to corroborate his statements made on oath. But to this rule,[there are exceptions. It is said by Phillips that where the counsel impute a design in the witness to misrepresent from some motive of interest or relationship, it is proper, in order to repel such an irn-potation, to show that the witness made a similar statement, at a time when the supposed motive did not exist ; or, when motives of interest would have prompted him to make a different .statement of the facts. Phil. Ev. 1, 231.

The case is put by Starkie, as within an exception, that in a contradiction of evidence tending to show that the account given by the witness, is a fabrication of late date, it is admissible to show that the same account had been given by the witness before its ultimate effect and operation arising from a change of circumstances could have been foreseen. Stark. Ev. 1, 149.

What weight is to be given to the testimony of a witness making such contradictory declarations, is for the jury to determine ; but we cannot reasonably doubt the right of the. plaintiff to sustain his witness thus far, and it is so held to be law. Declarations of the witness, subsequent to those given in evidence by the defendant, would not be admissible, but such is not within the principle here contended for, or within the facts of this case. ■Our opinion is, that the testimony offered was competent for the purposes for which it was admitted, and does not furnish .ground for a new trial. There will therefore be

Judgment on the verdict.