Jenner v. Joliffe

■Thompson, J. delivered the opinion of the court. That the timber was the property of the plaintiff, is not denied. It was taken out of his possession by a person professing to act as bailiff, under process of attachment, in a suit brought by the defendant, against the plaintiff. It was proved, by several witnesses, that the defendant acknowledged, that he was in possession of the timber ; and it was further proved, that while the timber was thus held, a storm came and carried away about four thousand feet of it, which was wholly lost. The liability of the defendant must, therefore, depend upon the validity of the authority under which he took the possession. The only evidence of the existence of the attachment, is that which. arises from the confession of' the plaintiff; that his raft was attached by a bailiff, at the suit of the defendant. If the loss of the timber happened while it was held under the attachment, and without the negligence of the officer, the defendant ought not to be responsible for it. The loss was occasioned 'by a peril, the consequences of which the law would not cast upon the defendant. The property was in the custody of the la\y. But the proof of the existence of the attachment, I think, ought not to have been admitted, nor deemed sufficient to establish the fact. It was matter of record, and capable of higher and more satisfactory proof. The confessions of a party have never been considered competent evidence of the execution of a specialty, and much less ought they to be admitted as proof of mat [13] ters of record. The seizure under the attachment was , . . . , set up by way of justification, and the defendant was bound to furnish the highest evidence the nature of the case would admit, of the existence and legality of the attachment. Some difficulty arises, however, in the case, in consequence of the manner in which it was conducted, and the ground taken by the jury. The objection appears to have been made to the competency of the evidence, when it was introduced. After the testimony was closed, the plaintiff’s counsel objected, that there was not sufficient proof that the timber had been attached ; that it was necessary to produce a record of the proceedings. No opinion of the judge, on the question, appears to have been given, except in the charge to the jury. The defendant, therefore, had no opportunity to produce other testimony, even if he had it in his possession; and such production was rendered unnecessary, by the direction of the judge to the jury, that the defendant had already sufficiently established the attachment. Under this direction, the defendant had a right to take it foigranted, that the verdict would be in his favour. And if the judge Was incorrect, as to the sufficiency of the proof, and a new trial should be granted, he would then have an opportunity of producing the record. The jury, however, it appears, founded their verdict upon an entirely different point, to wit, that the timber was in the possession of the defendant, and not in the custody of the law. The defendant, therefore, by the course the cause took, is altogether precluded from an opportunity of producing the record of the proceedings under the attachment. The judge considered the confessions of the plaintiff competent evidence of the attachment, and sufficient to exonerate the defendant. The jury have put the proceedings under the attachment, [14] altogether out of view, and have given a verdict aga~nst the defendant, merely on the gro~ind of his having possession of the plaintiff’s property* Had the jury pursued the directions of the judge, with respect to the proof of the attachment, the verdict must have been for the defendant. The case being involved in considerable difficulty and obscurity, we think the end of justice will be best advanced, by sending the cause back for another trial. The motion is, therefore, granted, on payment of costs. New trial granted*