Reed v. Rice

| Vt. | Feb 15, 1853

The opinion of the court was delivered by

Redfield, Ch. J.

Questions in regard to the rejection of witnesses, by reason of interest, have not been much favored of late, in courts where the trial of actions is had. In Shipton v. Thornton, 9 A. & E. 327, Lord Ch. J. Denman says, and very justly we think, “ objections on the score of interest are not to be favored. The safe rule is, to admit the witness, whenever there is doubt of the fact.”

But in a court of error, after the trial is closed, and the witness has been rejected, or his testimony excluded, the rule of presumption is somewhat changed. It is then incumbent upon the excepting party to show that error‘has intervened. The presumption is then in favor of the regularity of the proceedings in the court below.

And it seems to us, that the'rejection pf Harwood is not shown to have been erroneous. It would seem, that the result of a verdict for defendant, in the case, which the witness sought to establish by his own testimony, would be to confirm the sale of the cattle made by defendant upon Brown’s debt, and thereby to impose upon Brown the duty of applying the value of the cattle upon his debt against Harwood & Edgerton, arid his release to them will not affect the question, either way. And their release to him was not executed until, after the testimony was taken. So that the witness was clearly interested in favor of the defendant, and properly ex-' eluded, unless there was some countervailing interest in favor of the plaintiff.

That would be so, where the case turned upon some question of title, when the witness was bound to answer for the defect. But here the effort was to show, that Isaac Reed had not performed the condition of the sale to him, and that Harwood had not waived it, or consented to the sale to the plaintiff; and this being established, either way, imposed no obligation on the witness to make good the title to plaintiff. And the witness would stand very much as in cases of alleged fraudulent sales of his property, which is subsequently attaohed by his creditors. He is regarded as competent to testify for the fraudulent purchaser, because such purchaser can have no action against the fraudulent vendor to make good the title, the vendor and vendee being in pari delicto. Seymour v. Beach et al. 4 Vt. 493" court="Vt." date_filed="1832-01-15" href="https://app.midpage.ai/document/administrator-of-seymour-v-beach-6571441?utm_source=webapp" opinion_id="6571441">4 Vt. 493. So that, here being no countervailing interest on behalf of the plaintiff, the witness is incompetent by reason of his bias for the defendant.

In regard to the other question made in this case, it seems to us, not to come within the principle of the rule laid down in Carpenter v. Hollister, 13 Vt. 552" court="Vt." date_filed="1841-03-15" href="https://app.midpage.ai/document/carpenter-v-hollister-6572525?utm_source=webapp" opinion_id="6572525">13 Vt. 552, and the other cases, in this state, which have professed to follow that case.

The declarations of Harwood, which were allowed to be proved in the case, are not declarations in regard to the title of the cattle, while he owned them; but mainly after he had parted with them, as to the mode of his disposing of them.

But it seems to the court, they were admissible, as showing an admission of Harwood, which would bind himself and Edgerton, as to their claim on the cattle. The only controversy in regard to plaintiff’s title to the cattle, so far as we leam from the ease, arose upon the point of Isaac Reed having paid the price secured by the condition in the sale, i. e. $60. And this admission went directly to show, that the condition had been fulfilled, or waived, by the cattle going to the plaintiff for $45, and fifteen dollars being charged to Isaac Reed. The only question then is, whether it was competent to make out this point, by showing such declarations.

It was held by this court, in Gilson v. Gilson, 16 Vt. 464" court="Vt." date_filed="1844-02-15" href="https://app.midpage.ai/document/gilson-v-gilson-6572915?utm_source=webapp" opinion_id="6572915">16 Vt. 464, that it was competent to show payments to a third person, not party or privy in the suit, by producing the written receipt of such third person. A receipt is nothing more than the admission or declaration of the person, and explainable, or liable to disproof as much as a verbal declaration. And one being proof, the other is equally so. And perhaps there is no good reason why both should not be. If it is important in a trial to show a payment to some third person, perhaps there is no good reason why proof, which would be good against that party, should not be received, to establish such payment. If so, his admissions are sufficient, as was held in Gilson v. Gilson. We do not feel disposed to question the soundness of that decision, and it is a full authority for this part of the case.

Judgment affirmed.

Note. It has sometimes been said, that you cannot show the admissions or declarations of a party, who is himself a competent witness to the case, but must call him as a witness. But we apprehend there is no soundness in this declaration. If the admissions of a person are competent evidence in a ease, it is not important how they are shown. It may be by mating, under the hand of the party, or by a witness, who heard them made, or both, or the party himself may be called. And if called, and does not recollect the admissions, or if he denies making them, they may still be shown by other testimony. All that can in any case be made out of the party omitting to call the person, making the admissions, to prove them, is merely one of presumption or argument. The omission to call the very person making .the admissions, when he is a competent witness, is always liable to remark, and will weigh more or less, according to circumstances. But this is all which can be justly objected against, such course. If the admissions are themselves evidence, it matters not how they are shown, so it be satisfactory to the triers, to show they were in fact made.