Levy v. Holberg

Woods, J., delivered the opinion of the court. The action of the trial court in setting aside the verdict of the jury and in awarding a new hearing, was not erroneous. The testimony of Phelps, the express company’s agent at Macon, was incompetent. He showed that his entry of the •money on his books in the name of M. Holberg, was his own act, done without direction or suggestion from M. Holberg, or any one representing him. To fix title, or to attempt to fix title to the horses in M. Holberg by Phelps’ action, was manifestly inadmissible, and this the court’s action tended to do on the first trial. But, moreover, the overwhelming weight of the evidence preponderated in favor of Mrs. Holberg’s claim of ownership. The opposing evidence consisted of a few inconclusive circumstances, and was not sufficient to support the verdict. We find no reversible error in any of the rulings of the court on the final trial. The testimony of J. A. Tyson was properly excluded. The witness only offered to show what the book of entries of the fair association showed as to the entry of one of the [69] horses in the name of M. Holberg. He did not offer to show that M. Holberg had any instrumentality in having that entry made, and the evidence was properly ruled out. The testimony of F. T. Scott was admissible. It showed the declarations of M. Holberg as to the title to the horses; and these declarations, thus made by the husband while the horses were in his possession, or rather in the possession of himself and his wife, as to the ownership of the- property, are admissible against him and against those claiming under him. They were declarations against his own interest, made by the husband when in possession of the property now sought to be subjected to payment of his debts as his property. Clearly, the declarations would have been admissible against M. Holberg himself; and to us it seems equally clear that they were properly admitted against his creditors — those claiming under him. Sharp v. Maxwell, 30 Miss., 589. The action of the court on the charges was correct. The modifications of the fourth and fifth charges of plaintiff were harmless; and the refusal of the sixth and seventh charges of plaintiff was not error. It was simply a refusal of the court to point out and emphasize segregated pieces of evidence, and this we have more than once pronounced commendable. Affirmed.