Strickland v. Hudson

55 Miss. 235 | Miss. | 1877

Campbell, J.,

delivered the opinion of the court.

• The plaintiff in error, having had two new trials in this case, is not entitled to any benefit from his bill of exceptions tendered on the overruling of his motion for a new trial, and must be confined to his bill of exceptions to the ruling of the .court upon the admission and exclusion of evidence, as that is all that is embraced in the special bill of exceptions tendered: before the jury retired from the bar. Bowers, Admr., v. Ross,, ante, 213, and cases there cited.

It was proper to'admit the evidence of what Mrs. Hudson,, who had since died,.testified in a former trial. 1 Greenl. on Ev., sec. 163. The plaintiff having introduced evidence off what Mrs. Hudson had testified in this case on a former trial, Strickland should have been admitted to testify to the matters covered by her evidence. His exclusion was within the letter,, but not the spirit and intent, of the statute on the subject of parties testifying. Qui hceret in litera, Jmret in cortice. Mumon, Admr., v. Owens, 2 Dill. 675; Monroe v. Napier et al., 52 Ga. 385; Jacks et al. v. Bridewell et ux., 51 Miss. 881.

It would be most unjust to permit the testimony of one off the parties to a transaction to go to the jury and exclude that of the other, and such a result is not within the contemplation of the law. The principle is that the living party shall not be heard to give his version of a transaction about which, death has sealed the lips of the other; but when the testimony of the deceased party is made available in the controversy, it would shock justice to deny the right of the living party to-be heard as to the matters covered by that testimony.

The evidence of Strickland, which was offered and rejected,, could not properly exert any influence on the jury. It was. directed to but two points, viz., the rent of his house, ancL the fact that he had not personally received any of the money sued for. According to his statement, he had no legal claim on Mrs. Hudson for rent, because she had occupied his house-at his request, and he does not say that anything ever occurred afterwards between him and Mrs. Hudson, in reference to-the occupancy of the house, from which any claim for rent could arise against her. Although Strickland did not receive from Carney any of the money he had procured to be delivered to him, he was answerable to Mrs. Hudson as though he-had received it, because he had assumed to act for her in directing the payment of her money to Carney, and she had the right to ratify Ms action, and to hold him responsible for what he received by his agent, as if he had received it himself. Qui facit per alium, facit per se. Carney’s receipt of the money was his receipt of it.

As we are not authorized to look at the evidence contained in the bill of exceptions taken to the overruling of the motion for a new trial, and none of the instructions can be said not to be proper in any state of case, we must assume that that state of case existed which made them proper; but, apart from this, we do not perceive any error in the instructions, as applied to so much of the case as is presented to us by the bill of exceptions.

Judgment affirmed.