Harrington v. Wadsworth

Carpenter, J. If T. was possessed of no attachable property, and had been guilty of no fraud, he was entitled to take the poor debtor’s oath (Gr. L., e. 241, ss. 3, 6, 7), and the damages caused to the plaintiff by the defendant’s neglect of duty were merely nominal. It is difficult to see what bearing T.’s intention to apply, or even his actual application, to take the oath could have upon the question whether he was entitled to take it; but if the evidence might properly have been received, it was so remote that no exception lies to its exclusion. State v. Railroad, 58 N. H. 410. The plaintiff’s loss by reason of the defendant’s failure to perform his duty could not exceed the amount of her judgment against T., of which the record is the only competent evidence. The defendant being neither a party nor privy to the judgment, it is evidence against him of the fact of its rendition and of the amount for which it was rendered (1 Gr. Ev., s. 527), but not of the facts which were in issue between the parties to it. Between these parties it is no more evidence of the conversion or possession of property by T., or of the value of any property by him converted, than would be a like judgment against him to which both the plaintiff and the defendant were strangers. Permitting the plaintiff’s counsel to comment to the jury upon the judgment as tending to show property in the hands of T, and as fixing the value of the notes, was equivalent to a ruling that the judgment was competent evidence of those facts, and was erroneous. .Exceptions sustained. Allen, J., did not sit: the others concurred.