White v. Morton

22 Vt. 15 | Vt. | 1849

The opinion of the court was delivered by

Royce, Ch. J.

This was trover for a quantity of straw, hay and grain, which the defendant, as deputy sheriff, attached and sold on process against one David White and as his property. The plaintiff claimed, that he was a joint owner of the property with ©avid White, on the ground of having raised it Upon the farm of David White, while he, plaintiff, carried on the farm upon shares,, or at the halves, in the season of 1846. And to prove that he was so carrying on the farm, when these crops grew upon it, the pMntiff offered in evidence the declarations of David White, that such was the fact. From the statement in the bill of exceptions and the charge of the judge, we must understand the jury to' have found, that these declarations were made in the season of 1846, in the presence of the plaintiff, and were assented to by him; or else, that they were made iii that season, “ in connection with some act of David White in carrying on the farm,” — it appearing, that he labored upon the farm with the plaintiff.

We consider, that this evidence was admissible, either as- showing a mutual recognition by David White and the plaintiff of the terms on which the plaintiff was cultivating the farm, — or as proving declarations of David White properly constituting part of the res gestee. We have no occasion to decide, whether á mere isolated admission of David White, during that period, would be admissible to affect the defendant, as S party claiming under him; for the ruling of the county Court did hot go to that extent. And for this reason, if for no other, the case is distinguishable from that of Hines et al. v. Soule, 14 Vt. 99, Carpenter v. Hollister, 13 Vt. 652, and Warner v. Mc Gary, 4 Vt. 507. It was as' admissions, merely, that the declarations offered in those cases were held n'ot to be admissible. See, also, 1 Stark. Ev. 47, et seq.; Pool v. Bridges, 4 Pick. 378; Boyden v. Moore, 11 Pick. 362 ; Elkins v. Hamilton, 20 Vt. 627.

The' other decisions at the trial, — as that David White was not an admissible witness for the defendant, and that trover Would lie for the plaintiff’s undivided moiety of the crop's, when the'defendant had sold the whole upon the execution, — have not been questioned in the argument. It is sufficient to say, that both of these decisions are sustained by repeated determinations of this court. Judgment affirmed.