Fellows v. Van Hyring

By the court, James, Justice. The evidence was ample to warrant the jury in finding that the mortgage to the defendants was void as having been obtained of Earl while under duress, as hush-money to cease a prosecution for felony; still, the papers transferred to Clute the nominal legal title to the mortgage, and as such owner he had perfect authority to act under it, and to avail himself of all its provisions. The.proof is undisputed that Clute took the colt from Earl, and nothing appears in the case to connect the defendants, or either of them, with that act before or at the time, or with the property since. In fact, Clute testifies “ that he took the colt on his own responsibility, and without any authority from the defendants-.” There is no [233] sufficient proof to connect the defendants with that taking, or to make them responsible for Clute’s acts. The verdict was therefore against evidence, not against the weight of evidence simply; but there is no evidence to support it. For this reason the judgment should be reversed. The justice also erred in receiving in evidence the certified copy of what purported to be a chattel mortgage, as introduced by the plaintiff. There was no proof that an original of said mortgage, executed by Earl the alleged mortgagor, ever existed. Until it was affirmatively established that there was such original, a pretended copy was not admissible in evidence for any purpose whatever. The town clerk’s certificate did not aid the plaintiff, nor give to his pretended copy any additional force or effect until the original was legally proved, and then the certified copy was admissible in evidence as proof that such instrument or copy was received and filed according to the indorsement of the clerk thereon. (2 R. S., 71, 2d ed.) The other questions it is not necessary to consider. Judgment of the justice reversed.