The question in controversy between these parties was whether the horse belonged to the plaintiff or to the witness, Thomas Bailey, under whom the defendant claims, and this depended on the fact whether the plaintiff and Bailey had made an absolute or conditional sale. For the purpose of proving that the contract was of the latter description, Bailey was called on as a witness for the plaintiff.
To destroy the effect of his testimony Austin and McNeilly are introduced on the other side, who testify to declarations made by Bailey, tending to show that the exchange was absolute, which declarations, if believed, go to impair the credibility of Bailey. It is, therefore, perfectly regular for the plaintiff in reply to this evidence to show other declarations made by the witness in affirmance of what he has now sworn, and that he is still consistent with himself. Gilb. Ev., 135.
It is admissible in another point of view: The defendant claims under Bailey, and what he said concerning the title while he was in possession is evidence against the defendant. Guy v. Hall, 7 N.C. 150. *Page 104
Loading…