Miller v. Frazier

The opinion of the Court was delivered by Kennedy, J. The first error assigned is the rejection, by the court below, of the notice sent by the plaintiff below to the defendant, and the reply of the latter thereto; which were offered in evidence by the defendant. This notice, it must be remembered, was given after the commencement of this action, and contains no admission on the part of the plaintiff of any fact that I can perceive which would have been material to the issue in any way, or have tended either to defeat or to diminish the plaintiff’s claim to damages; I therefore think the court was right in rejecting it. The second error is, that the court decided that Christopher Orr, who was offered as a witness by the defendant below, was interested in the event of the suit, and therefore incompetent. Christopher Orr was the special bail of the defendant in a subsequent action brought against him by the plaintiff for a continuance of the nuisance, for the erection of which this action was brought. Now it cannot well be questioned but the verdict and judgment given in this case would be evidence in the subsequent one, in which Christopher Orr is special bail, and would be decisive of it either in favour of the plaintiff or the defendant, as the verdict and judgment in this should happen to be for the one or the other. If in favour of the defendant below, then it would amount to an acquittal of him from all liability in the second action; because if it had been determined in this that no nuisance had been erected by the defendant, it would have followed of ’ necessary- consequence, that the defendant could not be guilty of continuing it. For it is utterly impossible that any thing of the kind can be continued in existence which never had one. Christopher Orr being offered then as a witness, generally, on behalf of the defendant below, with a view to procure By his testimony a verdict in favour of the defendant, was literally offered to establish that [459] which would have discharged him from his responsibility as special bail in the subsequent action for the continuance of the nuisance. This would have been in effect the same as if this latter suit itself had been on trial, and Orr had been offered as a witness on behalf of the defendant, wherein it is admitted that he could not have been properly admitted. It appears to me that it may safely be laid down as a general rule, that whenever the verdict and judgment which the person offered as a witness is to bring about by his testimony, will necessarily either lessen or discharge him from his obligation or responsibility, he is incompetent, and cannot be admitted to testify. And here it appears to me that the necessary effect of a verdict and judgment in favour of the defendant would have been to have released Christopher Orr from his responsibility as special bail, because such verdict and judgment would have barred the plaintiff’s recovery in the second action for the continuance of the nuisance wherein Orr was bail. I therefore think the court decided correctly as to this point. The third matter assigned for error is, that the court refused to admit Jacob Miller to testify as a witness on behalf of the defendant. Some time after the commencement of this action, Jacob Miller became the owner of the land on which the nuisance was alleged to have been erected, and succeeded to the right of the defendant in the possession thereof. Having thus become privy in estate to the defendant in this action, it necessarily follows that a recovery therein by the plaintiff for the erection of the nuisance might have been given in evidence in an action brought thereafter against him for a continuance of it, and it would be conclusive against him, unless he were to show that the nuisance had been abated previously to bringing the action. Hence he was directly interested in the event of the trial of this suit, and was offered as a witness to prove that the defendant had done nothing more than what he had a right to do, in erecting a dam across the stream for the purpose of obtaining the more advantageous use of the water, and by this means to procure a verdict for the defendant, which, if confirmed by the court, would have been conclusive evidence in favour of his exercising the same right and continuing the dam as the defendant had it. Conceiving then that Jacob Miller was interested in procuring a verdict for the defendant in this action, I think the court was right in rejecting his evidence. The fourth and last error is, that the court permitted the plaintiff, on the trial of the cause, after the testimony was closed on both sides, to amend his declaration by adding and filing a count for a continuance of the nuisance. The objection to this is, that the continuance of the nuisance was a totally different cause of action from the erection of it, and therefore not authorized by the act of assembly of 1806, which directs courts to permit any informality in the declaration or plea to be amended either before or on the trial of the cause, whenever it may be necessary, in order to have it decided according [460] to its merits. Now it is most likely that on the trial of this causé, after both parties had given their evidence, it appeared to the court that the defendant had erected a nuisance, but whether it was not the same for which a former recovery was shown to have been obtained against him, may have seemed somewhat doubtful, and therefore in order to free the case from embarrassment and all doubt, and at the same time to insure a trial and decision of the real matter in controversy between the parties, according to the merits thereof, it may have been necessary to permit the second count to be added to the declaration and filed in the cause. If the defendant had thought himself taken by surprise in this permission being granted by the court, and had been of opinion that he was not then as well prepared to meet the trial of the cause, under this new' aspect, as he could be at any subsequent term, he had a right to demand a discharge, of the jury from the trial of the cause, and a continuance of it to the next term; ;but having made no application to the court for this purpose, we are bound to conclude that he was as well prepared to encounter the trial of the cause then, in the altered form that was given to it by the amendment, as he could be at any subsequent term or time. Nothing is more common, I believe, than to file a declaration in such an action as the present, in the first instance, containing in it two counts; that is, one for erecting a nuisance and the second for continuing it. The subject matter of both may be said to be the same, and they certainly both grow out of the same transaction, so that it cannot well be said that the latter count is so different from the first as to be without the mischief that was intended to be remedied by the provisions of the act in this behalf.- . Judgment affirmed.