Webb v. Danforth

1 Day 301

Opinion

The judgment veas reversed.

By the Court.

It appears by the bill of exceptions, that the defendants claimed, that Danforih, the vendee of the vessel, at a time subsequent to his purchase, constituted Kinne ⅛? Park, the vendors, from whom he derived his title, his agents, or factors, to sell and dispose of the vessel, and left the same in their possession, for that purpose. Such was the agreement, which the defendants claim was entered into. Proof that such agreement was made, or that such authority was given, and executed, though derived from the original vendor, does not impugn the title derived from the vendor. It only shews, that the title so derived has been divested, by his subsequent consent, through the medium of his agent, or factor. The facts disclosed exhibit' the witness as acting, in the first instance, in his own behalf, as the owner and seller of an article, and transferring a right or title to his purchaser ; and, afterwards, as acting, by the subsequent .appointment of the purchaser, as his agent, authorized to transfer the same article, and, by virtue of his agency, to divest the title originally derived from him. It is a known rule, that an agent or attorney may be sworn as a witness, to testify cither lor, or against, his principal. The testimony required war.of this species. Nor is the rule varied, from the circumstance, that the witness offered has conveyed the article in question to one of the parties. Neither the agreement alleged, nor the acts claimed to have been done, by Kin-tie ⅛? Park, in pursuance of the agreement, went to invalidate the title derived from them. The objection to Kinne as a witness should not, therefore, have been allowed. Tt is on this ground, that the judgment of the Superior Court is reversed.

The second point

Footnotes

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(w) may ¡¡ave been urged on the issue to the jury. It does not, however, appear by the record, to have come under the consideration of the Superior Court. It is a general rule, that one tenant in common cannot maintain trover against his co-tenant. It is, however, contended, that there are exceptions to this rule. This question does not appear to have received the decision of the Superior Court, to which this cause is remanded for further proceedings ; and it is, of course, needless, that this Court express any opinion on that point.

This was the uir-'í-'hi Ihe erfrument.