Burns v. Stuart

46 N.E. 399, 168 Mass. 19, 1897 Mass. LEXIS 141

• Court: Massachusetts Supreme Judicial Court
• Decided: February 26, 1897
• Status: Published

Opinion

Holmes, J.

This was an action of tort for the bite of a dog. The dog which bit the plaintiff was described in the testimony as a bull terrier or bull dog, weighing about fourteen pounds, and of a light color with a spot. The defendant denied that he owned the dog described, and testified that the only dog which he ever owned was a fox terrier weighing about ten pounds, white, without a spot; that he owned this dog while living in Somerville, as he had done until about two weeks before, and that he had had it licensed there. He identified and offered the license. It was excluded,' and the defendant excepted.

Presumably the description of the dog in the license was given to the city clerk by the defendant. There might be circumstances where the fact that he had made such a declaration before the existence of the present interest would be material. See Murchie v. Cornell, 155 Mass. 60, 63, 64. But, so far as appears in the exceptions, his testimony under oath would have gained no legal corroboration from his having said the same thing when not sworn and not subject to cross-examination. See Sewall v. Sewall, 122 Mass. 156, 163.

Exceptions overruled.