Chesley v. Clair

1 N.H. 189

Opinion

Richardson-, C. J.

The question is, whether in an action of trover, brought by the bailee of a chattel against a stranger, the bailor is a competent witness for the bailee to prove the general property in himself ? There is such a privity between the bailor and the bailee of chattels, that a recovery by one in an action of trespass or trover against a stranger for taking the goods, is, in general, a bar to an action by the other.

Footnotes

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(1) And a recovery by the bailee in trespass or ver against a third person operates as a transfer of the erty or chattel to such third person.(2) Solutio pretii emp-tionis loco habetur. It seems to follow that whatever be recovered in such a suit by a bailee, must be recovered to the use of the bailor, as much as if it were recovered upon a contract of sale of the chattel by the bailee, with the assent of the bailor. And it has been held that a verdict in favorjjf the bailee may be used in evidence in an action by the bailor against the bailee.(1) If this be law, it is clear that Hodgdon was an incompetent witness.

It is very clear that a recovery by the bailee betters the situation of the bailor, because it settles the question of property ; and this has been held sufficient to exclude a witness. (2)

There may be cases, however, in which the bailor will be a competent witness for the bailee. Thus if the goods are wrongfully taken from the bailee, and he obtains possession of them again, or if the bailors release the property to the trespasser, and the bailee bring trespass to recover the damages lie may have sustained by being deprived of the possession, as it seems he may,(3) in such case there seems to be no reason why the bailor should not be a witness for the bailee ; for it is clear that he can have no interest in the recovery.

In the present case, as the object of the suit is to recover the value of the property, and as the only question between the parties is, whether the property belonged to Hodgdon or the defendant, we are of opinion that Hodgdon was an incompetent witness for the plaintiff, and that the verdict must be set aside and a new trial granted.

47>

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ein.^Tej, 8S'

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!) Bullers N. P. '243.— I L. liaym. 74-1. — Phillips’ Ev. 232.

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5 D. &. E. 578, Buckland vs. Tankard.— 2 Day 399, Owen vs. Mann.

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2 Rol!. Ah. 569, ii. 20. — 11 IÍ. 4, 23, pi. 46.