Treat v. Barber

Hosmer, Ch. J. 1. The admission of the testimony of James Treat raises the first question in the case. The presence of Amos Treat I lay out of the question. The plaintiff was under no obligation to rely on his testimony, but had a right to resort to any other, conducing to prove the existence of the debt. As against the defendants, neither the books of the company, nor the testimony of James Treat, was legal evidence. It stands on no higher ground than mere hearsay. A case may be supposed, in which the above-mentioned books would be good evidence against Amos Treat and the Industry Manufacturing Company, as being their recognized act and declaration. - Eut as against a third person, the books are no more admissible than the parol declarations of the company or oi Treat. They are res inter alios acta. It is almost superfluous to say, that those books are not public records, to serve as the memorial of facts ; but they are the private entries of the company. The testimony of James Treat, except to identify the books, was likewise inadmissible, even if they were legally competent. They must speak lor themselves; and evidence of what appeared on their pages, could not come from the mouth of a witness. 2. It was next made an objection by the defendant, that the court refused to admit as evidence a note and mortgage, given by Arnos Treat to the plaintiff, after the time when it was claimed the debt for which the goods were sold, accrued. Whether some inference might not arise out of this transaction bearing on the matter of controversy, is the question ; and I am inclined to think, that, although remote, it was of this tendency ; and that the facts should have been laid before the jury. Gibson & al. v. hunter, 2 H. Bla. 187. The proof, st is true, would not rise high ; but if u conduced to evince any thing in issue, it ought to have been received. 3. Some of the witnesses testified, that the goods in question were of higher value than that which was assigned to them in the plaintiff’s declaration ; and the defendant prayed the court to instruct the jury, that in the estimate of damages they could not go beyond the value by the plaintiff alleged; but on this head the court omitted to charge them. The plaintiff, if he obtain judgment, can only recover secun-dum allegata, unless his allegation is entirely superfluous. It is correctly said by Starkie : “ It seems, indeed, an universal [279] rule, that a plaintiff or prosecutor shall, in no case, be allowed to transgress those limits, which, in point of description, limitation and extent, he has prescribed for himself; he selects his own terms, in order to express the nature and extent of his charge or claim ; he cannot, therefore, justly complain, that he is limited by them.” 3 Stark. Ev. 1531. The affixing of a value to goods, in an action of trespass, is necessary and not superfluous, although an omission to make this allegation, is cured by verdict. Strode v. Hunt, 2 Lev. 230. Bertie v. Pickering & ux. 4 Burr. 2455. Wood v. Smith, Cro. Jac. 129 Usher v. Bushel, 1 Sid. 39. The court should have charged the jury, that beyond the allegation of value affixed in the declaration they could not allow damages, whatever might be the actual value of the goods. 4. At fhetime of the trespass committed,the defendants opened a chest belonging to the plaintiff, and made use of language in relation to the contents of it, that wounded her feelings ; and the facts having been proved, an increase of damages was demanded on this account. The defendants prayed the court to charge the jury,that they could not augment the damages on this ground ; but the judge omitted to give them any instruction on this subject. “ It is always the practice,” said Le Blanc, J. in Bracegirdle v. Orford, 2 Mau. & Selw. 79. “ to give in evidence the circumstances, which accompany and give a character to a trespass ;” and that is the case relative to the evidence before us. The jury are not bound down to give the mere pecuniary loss sustained by the plaintiff, but may award damages for the malice and insult attending a trespass. In an action for breaking and entering the plaintiff’s close, and searching for game, he was permitted to prove, that the defendant, on being warned off the plaintiff’s land, used very intemperate language, and threatened to commit him ; (Merest v. Harvey, 5 Taun. 442.) and yet no matter of aggravation was alleged. The same principle was recognized, by this court, in Edwards v. Beach, 3 Day 447. and in Churchill v. Watson, 5 Day 140. There are instances where the damages do not necessarily arise from, or accompany, the act complained of, which, notwithstanding, are allowable, but which, in order to prevent surprise on the defendant, must be particularly alleged in the declaration. 1 Chitt. Plead. 386, 7, 8. The abuse to the plaintiff, however, [280] by searching her chest, and indulging in improper remark, at t}le t¡me an(j ¡n manner mentioned, was an aggravation of the trespass coetaneously existing with it, and serving to shew ^ie mal'ce’ with which her legal rights were violated. 5. The plaintiff, at Ihe time the goods before-mentioned were attached, claimed all that was in her possession, and refused to make a selection between what were really hers, and what were attachable by the defendant Barber. This intermingling of the goods that belonged to the plaintiff with those that she held in fraud of creditors, it is contended, justified the defendants in their transgression, as they were incapable of making a separation. The doctrine of confusion of goods, derived from the civil law, has been referred to, as sanctioning the objection ; but it is not applicable. Confusion, as it is termed, is a mixture of liquids, as wine and wine, or wine and honey, or melted silver and gold. Woods Inst. 158. And within the same reason is the intermixture of money, or coin, or hay, that forms one un-distinguishable mass. 2 Bla. Comm. 404. But the placing of crockery, china or other articles resembling each other, on the same shelf, is not a confusion of them, within the meaning of the law. Were it so, the defendant Barber might have held all the property taken by his attachment, if there were a fraudulent intermixture, as being the goods of his debtor. If, however, the plaintiff fraudulently, and with the intention of frustrating the defendant’s attachment, had caused her goods and those of Amos Treat to be intermingled, so as to be inseparable by the attaching creditor, the defendant might justify the taking of them. 2 Rol. Abr. 566. l. 15. 2 Bulstr. 323. Ward v. Ayre, Cro. Jac. 366. Gordon v. Jenney, 16 Mass. Rep. 465. 470. Otherwise, the plaintiff would derive an advantage from her own wrong. But nothing of this kind appears in the present case. The intermingling, for aught that is stated, was casual or accidental, and without any design of covering the goods. The specific objection is, that the plaintiff would not make the requested discrimination. As a matter of courtesy, if she had admitted, that part of the goods were not her property, she ought to have done it; and I think she would be under a moral obligation to do so. But she claimed the whole, and probably thought she had a valid title. The omission to give the requisite information, was neither a fraud, nor the vi [281] olation of any obligation by law put upon her. Under the circumstances of the case, the defendants acted at their peril; and the omission to charge the jury, is not the subject of complaint. On the whole, for the errors specified in the three first objections, a new trial must be granted. The other Judges were of the same opinion, except Brain-ard, J., who was absent. New trial to be granted.