Barbour v. Archer

9 Ky. 9

• Court: Court of Appeals of Kentucky
• Decided: October 5, 1819
• Status: Published

Opinion

Judge Owsley

delivered the opinion of the court.

*

This action was brought by Archer against the heirs of Barbour, upon a deed of covenant, executed by their ancestor.

The declaration makes no profert of the deed; but as an excuse for not doing so, alledges it to be in the possession of one of the heirs.

An issue was made up on the fact of possession, and a jury called;—and on the trial, notwithstanding the objections of the heirs, Archer was permitted to read in evidence, from the printed report, for the purpose of proving the fact therein recited, the opinion of this court, delivered in the case of Barbour’s administrator against Archer.

The printed report, we are of opinion, should not have been used in evidence;

1. Because the record itself, or a transcript thereof, and not the printed report, is the best evidence of the facts therein contained. And,

2. Because, if admissible between the same parties, yet as there is nothing in the present case shewing the heir of Barbour and his administrator to be the same person, upon the plain principle of a record not being evidence against those, neither parties nor privies, the printed report should not have been admitted.

Bibb for appellant, Littell for appellee.

The judgment must therefore be reversed with cost, the cause remanded, and further proceedings had not inconsistent with this opinion.

Absent, Judge Rowan.