Price v. Eckles

1 Tapp. Rep. 242

• Court: Stark County Court of Common Pleas
• Decided: March 15, 1818
• Status: Published

Opinion

President.

-It is unnecessary to prove what is agreed between the parties; it is averred on the record, by both parties to this suit, that a certain trial was had before justice Coontz. In every circumstance but one, the time of the trial, they agree. So far then, as they have agreed, no evidence need be given; there might, however, have been two trials and it would seem, from the difference as to time, that there had been; if so, the declaration and plea cannot be considered as agreeing to one fact. The defendant’s counsel claim a right to introduce this evidence on another ground, which is that the plaintiff by giving parol evidence of the same kind, has waived and precluded himself from objecting to this. Certainly consent of parties may render that admissible evidence, which, without such consent, would not be. Parties to a suit and persons otherwise interested, are made competent witnesses by consent, in the same way evidence which presupposes better behind, and in the power of the party producing it, becomes unexceptionable. The production of evidence to the court and jury by one party, without objection from the other, is uniformly taken as proof of mutual consent to its admission; and while this is confined to evidence which is relevant to the issue, it is not the duty of the court to interfere; evidence so admitted, gives a right to the opposite party of rebuttal; and I incline to think, that it gives the right of proving similar facts by the like evidence, and that, in fair construction, it should be considered that, in that particular case, such evidence was competent and proper; for where one party had had an advantage, from an agreement of that kind, the other seems entitled to an equal advantage. (Harris informed the court that both the declaration and plea related to the same'trial.)

The witness was examined, and stated that there was but one trial between those parties; and that the trial before him was in the spring, 1817; in the plea, it was averred to be 1st Jan. 1817.

The counsel for the plaintiff objected to the evidence, on account of the variance.

President — It is argued that the averment in the plea, that the court was holden on the 1st Jan. 1817, by the rules of evidence, is proveable only by the record; and that when any date is averred, the proof of which rests in written evidence, the proof must agree with the allegation, or it is not to be admitted. However correct this position may be, it does not apply here; lor it is agreed that there was a certain suit tried by and before the witness, in which the plaintiff in this action was sworn and examined. It is in evidence, that there was but one suit between those parties; it is, then, wholly immaterial when it was. The time when, is a fact not necessary to be proven. Objection overruled.

The plea averred, that the plaintiff was “sworn on the j10iy Gospels of God,” and the plaintiff’s counsel contended ^hat the def’t. should be held to prove that he was sworn in £]jaj; mo¿e.

President — The words “on the holy gospels of God” in this plea, may be rejected as surplusage, and therefore need not be proven; it is wholly unnecessary and useless, to state the manner of swearing.

Verdict for plaintiff, damages $5.