Gray v. Burk

Wheeler, J. This case involved a single inquiry of fact— a mere question of the identity of the animal. That was the sole matter of dispute. There can be no doubt that each of the parties owned an animal of the description of the one in controversy, and so nearly resembling, that it would be difficult to distinguish them. Their similarity is the cause, doubtless, of this unfortunate litigation. Each party adduced ample proof, unrebutted, of title in himself. The only question for the jury to decide, therefore, was, whether this was the plaintiff’s or the defendant’s steer; and the Court very properly so instructed them. The instructions asked by the defendant-were uncalled for by the facts of the case; and were very properly refused. The giving of them could have had no tendency to aid the jury in coming to a right conclusion, but rather the contrary. Where the Court has sufficiently instructed the jury upon the law of the case, it is proper to re fuse instructions applicable to isolated facts, or parts of the evidence, which, though correct in point of law, would have [233] the effect to give the matters to which they relate an undue prominence in the minds of the jury. The only ground urged for a reversal of the judgment, which seems deserving of notice, is the refusal of the Court to arrest the comments of counsel upon the failure of the defendant to introduce, as a witness upon the trial, his vendor. And in this there was no error. It undoubtedly was a circumstance which admitted of an inference unfavorable to the party ; and was, therefore, the proper subject of observation by counsel. It is true, the warrantor of title to property which is in controversy, is generally incompetent as a witness for his vendee. If he is bound to make good the title to his vendee against the claim of the adverse party, he cannot be a witness for him. But there can be no pretence of any such liability over in this case. There was no question of the goodness of the title of the defendant’s vendor ; and he could have been a competent witness for the defendant. But if not, he might Have been rendered competent by a release. There was, therefore, no error in the ruling complained of. There is no error in the judgment; and it is well that this unfortunate controversy about a steer worth fifteen dollars, which will probably have cost the successful party more than ten times the value, and which has interrupted the offices of good neighborhood, and engendered lasting animosities, perhaps, between honest men and good citizens, is now ended. It had been much better, had it never been begun ; or, when begun, had such counsels prevailed as to have put an end to it at once. Judgment affirmed.