Treat v. Curtis

Endicott, J. The tenants, upon cross-examination of the demandant, made inquiries respecting the proceedings before the [352] auditor, and the finding of the auditor in the original action, apparently for the purpose of showing that one item was improperly charged, and was not allowed by the auditor. This evidence was immaterial and irrelevant to the issue on trial; but it was introduced by the tenants, and it was clearly within the discretion of the presiding judge tc allow the demandant to put in the auditor’s report, to meet any inference which might be drawn from the cross-examination. The introduction or exclusion of immaterial evidence to meet immaterial evidence is within the discretion of the court. Brooks v. Acton, 117 Mass. 204. Hathaway v. Evans, 113 Mass. 264. The report having been thus admitted, there is no ground for exception, unless the presiding judge refused to limit its application. It does not appear that he did, or that any instructions on this point were requested, and we must presume that proper instructions were given. It appears from the bill of exceptions that John Curtis conveyed, on December 5, 1870, the land in controversy to his brother, Lawrence Curtis, who the next day conveyed it to Bridget Curtis, the wife of John. To discharge the attachment on the land, she borrowed $700 from her friends, and $1500 from McLaughlin, giving him a note for that amount, secured by a mortgage on the land. John Curtis afterwards borrowed $500 from his brother Lawrence, which he paid to McLaughlin, and on December 14,1870, gave to McLaughlin a mortgage on his personal property, to secure his note for $1000. McLaughlin thereupon discharged the mortgage on the land, given him by Bridget Curtis, and gave up the note for $1500, which that mortgage was given to secure. Bridget Curtis was present when this mortgage was made and delivered. The only consideration, therefore, which Bridget Curtis paid for the conveyance of the land to her was the sum of $700, which she had borrowed from her friends, and the chattel mortgage was admissible for the purpose of contradicting her claim that she had paid full consideration for the conveyance to her. Bxceptions overruled.