Keedy v. Newcomer

²⁵⁰ The opinion of the court was delivered by Le Grand, C. J. We discover error in the ruling of the county court, in regard to the sixth and seventh exceptions, but in nothing else. After giving, testimony to show that Barnes had property, both personal and real, sufficient to enable the sheriff to have satisfied out of it the fieri facias issued by the plaintiff, the latter proposed to give in evidence a judgment of Beale and Kealhofer against Barnes, and a fi. fa., issued thereon on the 4th day of May 1839, and returnable to November term 1839, which was returned, “Made.” To the admissibility of this testimony, the defendant objected, and the court sustained the objection; and it is this action of the county court which constitutes the first exception. The fieri facias, the return to which constitutes the cause of action in this case, was issued on the 19th day of December 1838, and returnable on the 4th Monday of March 1839. An examination of the record will show that the fieri facias was not returnable at the time stated in the offer.

It was issued the 4th day of May 1839, and made returnable on the 4th Monday of March thereafter. According to the case of O’Hara vs. Hammond, 2 Harris and Gill, 111, whenever the offer in its description of a paper proposed to be given in evidence differs from the paper, the paper itself must determine whether it be admissible. This being so, the writ offered in evidence was not returnable until a year after the fieri facias sued out by the plaintiff. It might very well be, that a person should have property in March 1840, sufficient to satisfy a writ, and yet, wholly without any in March 1839.

The vicissitudes of life, and especially of that of men extensively engaged in business, make such testimony very unsafe data on which to predicate the conclusion sought to be arrived at in this case. The period is entirely too remote, and, therefore, we think the court did right in rejecting it. The second exception is founded on the refusal of the court to allow the plaintiff to prove a conversation between George Kealhofer and his former partner, Ross Beale, in regard to an ²⁵¹ execution which they had caused to be issued against Barnes. It is not pretended the defendant was present at this conversation, but merely that his deceased partner told witness that he had communicated their wishes to the sheriff.

To have admitted such testimony, would have been to disregard every rule of evidence. The refusal of the court to reject several