Smith v. Wood

Brent, J., delivered the opinion of the Court. This is an action of replevin brought by the appellee in his own right, to recover certain goods .and chattels from the appellant. The pleas are non cepit, property in the defendant as administrator of William Smith, deceased, and property in William Smith in his lifetime. The verdict and judgment being against the defendant, he prosecuted his appeal to this Court.

In the course of the trial an unusual number of exceptions was taken, and as we are required by a special law to decide all questions raised upon an appeal, we will ²⁹⁶ express our opinion upon each point presented by this very Voluminous record. Tbe first, tenth, and fifteenth exceptions present questions which come within the discretion of the Court below. Under the repeated decisions of this Court, they are not matters subject to review upon an appeal. The second exception is to the competency of the plaintiff as a witness.

He is clearly not within the prohibition of the 2d section of the Act of 1864, ch. 109. The defendant is not sued as administrator or executor, but thq action is brought against him individually for tortiously taking and holding the property of the plaintiff. Although a contract between the plaintiff and his deceased partner may incidentally arise, it is not the subject-matter of the suit, and there is no reason, under the section alluded to, why the plaintiff is not a competent witness. The testimony objected to in the third, fourth, eleventh, and fourteenth exceptions was admissible, as tending to show the plaintiff’s right to the possession of the property replevied.

The fact that he was cultivating land in partnership with William Smith in his lifetime, is a íink in the evidence to establish such an ownership in the property replevied as would entitle him to its possession as surviving partner. It is not of so light and trivial a character, and so immaterial to the issues in the case as would have required or authorized its rejection by the' Court below. We see no error in admitting the testimony objected to in the fifth and sixth bills of exceptions. The defendant, upon his cross-examination of the Sheriff, gave in proof that the plaintiff being present at the time the property was taken under the writ of replevin, “ claimed the property, and pointed out the goods and chattels which were replevied.” This certainly entitled the other party to offer in evidence all that was said by the plaintiff at the time, in reference to his claim of the property.

The offer ²⁹⁷ in testimony of a part of a statement or conversation, upon a well-established rule of evidence, always gives to the opposite party the right to have the whole. The seventh exception presents a question wholly immaterial. The testimony excepted to is the statement of the plaintiff, that he had received from the Sheriff the property mentioned in the schedule. It may not have been admissible under the issues, but it is without the slightest injury to the appellant.

The eighth and ninth exceptions are taken to the offer to prove by the plaintiff as a witness, that all the property mentioned in the schedule was his property, upon the ground “ that it was not permissible to the plaintiff” to prove title to all the goods and chattels in the schedule mentioned, in gross, but that he must prove title to each of said goods and chattels severally.” We see no force in the objection. If the counsel for the appellant had a reason for requiring the witness to speak of each item of property separately, he could have accomplished his purpose upon cross-examination. The eleventh exception is to the offer of the plaintiff” to prove by the witness, Hamilton, “ that William Smith, deceased, had told the witness that he, said Smith and the plaintiff, were farming the Webster place together as partners, in the spring of 1865.” The Court below was clearly in error in permitting this testimony to be given. It is within the rule of hearsay evidence, and should have been rejected.

Smith was not a party to the suit, and the defendant had not offered any proof that he claimed under him, nor was his title the question at issue. The plea of the defendant “ of property in William Smith,” did not involve his title to the goods replevied, but had the effect only of casting upon the plaintiff the burden of proving his own title. Warfield vs. Walter, 11 G. & J., 80 ; Cumberland Coal Co. vs. Tilghman, 13 Md., 74 . The twelfth and fourteenth exceptions present objections ²⁹⁸ to evidence, a portion of which was admissible.

The statements testified to of Smith and the plaintiff are inadmissible, because hearsay; but the orders of Wood about stock, -and the circumstance of his being engaged together with Smith in ploughing in oats on the Webster place, are facts properly admissible as tending to establish a partnership.' The law is well settled, that if a portion of the evidence excepted to is admissible, the party excepting loses the advantage of his objection. Waters vs. Dashiell, 1 Md., 455 ; Emory vs. Owens, 3 Md., 178 ; Hatton vs. McClish, 6 Md., 407 . The testimony objected to in the thirteenth exception does not come within the rule of hearsay evidence. The orders and directions of the plaintiff, testified to by the witness, are acts of ownership over the property in dispute, and as such, were properly admitted by the Court.

The sixteenth exception was very properly abandoned. The seventeenth and eighteenth exceptions present the question of the admissibility of the assessors’ books. The Court was right in rejecting the testimony under the decision in the case of Chew vs. Beall, 13 Md., 349 , which is decisive upon the point. The testimony offered by the defendant in the nineteenth exception was wholly immaterial, as tending to any issue in this case, and therefore inadmissible.

We cannot perceive how the amount of debts exhibited in the Orphans’ Court against a party deceased, can have any tendency to prove the amount and description of property he owned in his lifetime. The testimony offered in the twentieth, twenty-first and twenty-second exceptions, and rejected by the Court, is hearsay. It was an offer to prove what Smith had said, in his lifetime, to the several witnesses, and was inadmissible under the plainest rules of evidence. The first prayer of the defendant, in the twenty-third exception, presents the question, whether the plaintiff can ²⁹⁹ recover in this action