Son & Son v. Hays

SOMERYILLE, J. The issues in this case arose on a contest by the plaintiffs of defendant’s claim of exemption to certain personal property. — Code, 1886, § 2525 et seq. It was competent, under the provisions of the statute, to show that the defendant had other personal property not embraced in the inventory filed by him on the demand of the plaintiff. — Code, §§ 2530-31. The plaintiff proposed to prove that the defendant “had a large bank account” with [565] a certain named banker, in the spring of 1887 — which was about two and a half years before the present claim of exemption was made. The trial court excluded the evidence, as too remote to be relevant to the issue in dispute. In this ruling, we think, the court erred. There was no presumption of law that a large sum of money, on deposit in a bank, had been spent without acquiring a quid pro quo for it in return, by reason of this lapse of time, nor that whatever may have been thus acquired had been consumed in its using. These facts, if true, should have been proved by affirmative testimony. So, likewise, as to the defendant’s alleged investment of the $2,500 to $3,000 in money, which he admitted having on hand within three weeks prior to the trial. He testified to the fact that he had invested this sum in lands. The plaintiffs proposed, on cross-examination, to ask the defendant “where said lands were located,” and “if any deeds were executed to him to said lands.” The court, on objection of defendant’s counsel, refused to permit these questions to be propounded. This was clearly erroneous. The questions were pertinent to test the truth of the defendant’s explanation, as to the alleged investment of the money in question. If the power of cross-examination could be thus curtailed, there would be no efficacious means available for the exposure of artful fabrications of falsehood by witnesses in our courts of justice. The first charge given by the court is capable of being so interpreted as to be free from error. The second charge is misleading, if not positively erroneous, in describing the degree of weight to be given the testimony by the jury. The phrase “full weight,” incorporated in this charge, should be substituted by the words, the weight to which, in their opinion, such testimony is jtistly entitled.