Davis v. Buchanan

Start, J. In the court below, the principal issue of fact was whether a mortgage given by Appleton S. Perkins to the plaintiff was a valid incumbrance on the horse in question at the time it was taken and sold by the defendant upon an execution as the property of Perkins. Upon this issue and the question of damages, the plaintiff introduced in evidence the deposition of Perkins, the mortgagor, and called one Martin and offered to show by him, that, after the horse was sold by the defendant, Perkins admitted to him that a part of the notes [69] had been paid, but two were still unpaid. This testimony was excluded and the plaintiff excepted. It does not appear that it was claimed by the plaintiff in the court below that the examination of the deponent by che defendant’s counsel was not proper cross-examination, or that the deponent was called as a witness for the defendant, or that the evidence was offered on either of these grounds. On the contrary the exceptions indicate that the plaintiff sought to impeach the deponent on the ground that he was hostile to the plaintiff, but the court found that he was not a hostile witness. The court having so found, the evidence was not admissible for the purpose of impeaching the deponent. V. S. 1247, State v. Slack and Clough, 69 Vt. 486. This evidence was also offered for the purpose of rendering probable the fact that something was due on the mortgage, and as a declaration of one having a property interest, against his interest. For this purpose, the evidence was also properly excluded. The declaration was made after the horse had been attached and sold by the defendant to satisfy a debt against Perkins, and at a time when he had no interest in the horse. Proof of declarations made by him at the time would be hearsay testimony and inadmissible for either of the purposes for which the evidence was offered. Hayward Rubber Co. v. Dunklee, 30 Vt. 29; Judevine v. Weeks, 47 Vt. 278; Huse v. Preston, 51 Vt. 245. Judgment affirmed.