9 N.C. 183 | N.C. | 1822
Lead Opinion
The question in controversy between these parties was whether the horse belonged to the plaintiff or to the witness, Thomas Bailey, under whom the defendant claims, and this depended on the fact whether the plaintiff and Bailey had made an absolute or conditional sale. For the purpose of proving that the contract was of the latter description, Bailey was called on as a witness for the plaintiff. To destroy the effect of his testimony Austin and McNeilly are introduced on the other side, who testify to declarations made by Bailey, tending to show that the exchange was absolute, which declarations, if believed, go to impair the credibility of Bailey. It is, therefore, perfectly regular for the plaintiff in reply to this evidence to show other declarations made by the witness in affirmance of what he has now sworn, and that he is still consistent with himself. Gilb. Ev., 135. It is admissible in another point of view: The defendant claims under Bailey, and what he said concerning the title while he was in possession is evidence against the defendant. Guy v. Hall,
Addendum
This case seems to have been fairly left to the jury under the charge of the court; evidence was offered on both sides, and the jury were the proper judges of it, and I cannot see any objection to the verdict they have found.
But it has been objected that the testimony of Austin ought not to have been received when he related a conversation between himself and the plaintiff, and also a conversation which had taken place at another time between himself and the witness Bailey. It must be kept in view that at the time when both these conversations took place the title to the horse was either in the plaintiff or in the witness Bailey, and that it was subsequent to that time that any claim was set up to the horse by the defendant. Under these circumstances, it was as proper that those conversations should be given in evidence, as any contract made at that time by the plaintiff and that witness. Evidence of those conversations may not be so strong to fix the title of the horse as a contract made by the parties, but it is evidence tending to the same end.
I therefore think the rule for a new trial should be discharged.
HENDERSON, J., concurred.
PER CURIAM. No error.
Cited: Hoke v. Fleming,
(186)
