Healy v. Russell ( 1868 )

Park, J.

We think the court of forcible entry and detainer erred in admitting the evidence objected to in this case, and therefore there is error in the judgment of the Superior Court approving the proceedings of the inferior court. It was a material and important question before the inferior court whether the complainant was in possession of the premises in controversy with the knowledge and consent of the defendant in that action, or otherwise. In order to show that the defendant knew that he was occupying the premises, the complainant offered his son (who was living with him) as a witness, who testified that on one occasion he got some potatoes of the defendant, and borrowed a basket of him in which he took them to the premises in dispute. The evidence was objected to by the defendant as irrelevant to the issue, but the court admitted it, and found in relation to it, that it did not appear that the defendant knew who the son was or where he took the potatoes. This is equivalent to finding that the defendant did not know, for the complainant was bound to satisfy the court affirmatively, by direct or circumstantial evidence, of the knowledge of the defendant. After all that could be offered upon the subject by the complainant the court finds as a fact in the case, and so puts it upon the record, that it did not appear that the defendant did know who the son was, or where he took the potatoes. The fact should therefore have been taken that the defendant did not know. It is easy to see that no inference could be drawn from the statement, unless it appeared that the defendant had this knowledge. Without it the statement was irrelevant to the issue.

There is manifest error in the judgment complained of.

In this opinion the other judges concurred.