Barker v. Hamilton

3 Colo. 291

• Court: Supreme Court of Colorado
• Decided: April 15, 1877
• Status: Published

Opinion

Wells, J.

The court below permitted the defendant, for the purpose of impeaching the trust asserted by the plaintiff, to give in evidence the admissions of the infant beneficiary, implied from her conduct. In this there was certainly error. The infant was incapable of an admission which should affect her own rights ; much less can her admissions be used against a third person, who assumes to stand as her trustee.

This error is reviewable here, even though we should hold the exception, which the plaintiff reserved to the finding, insufficient to take the case out of the doctrine of Phelps v. Spruance, 1 Col. 414, and even if we examine the whole record •— as for this purpose, according to the case of Patton v. The Coen & Ten Broeke Co., we may do, it is impossible to say with confidence that the testimony so improperly received has not affected the result.

Judgment reversed with costs, and cause remanded for a new trial.

Reversed.