Lothrop v. Muzzy , 5 Me. 450 ( 1828 )

The opinion of the Court was read at the sittings after term, m September following, as drawn up by

Mellen C. J.

The only question specially presented on the exceptions filed in the court below7, and' to which the arguments of the counsel have been directed, is whether John Jones was a competent witness, and properly admitted. The cases cited from the New York and New Hampshire Reports, to shew that the vendor of a chattel, by the very act of soiling it as his own, becomes a warrantor, without any special warranty, and that he is therefore an interested and incompetent witness in support of the title of the vendee, seem to be inapplicable to the case under consideration. Jones, the witness, does not stand in the character of a vendor oí the hay. He never sold it to Muzzy, nor to any one else ; of course he has never subjected himself to the obligations of an express or implied warranty. Whatever property he once had in the hay, has been devested by an adversary process, valid and binding on him without and against his consent. On this ground, therefore, he fcannot be considered as an incompetent witness. A grantor or vendor without warranty is always a good witness. Busby v. Greenslate 1. Str. 445. Twombly v. Henley 4. Mass. 441. It lias been urged, however, that Jones was Interested on another ground ; namely, that if Tíldenos judgment and -execution were not legally discharged xby Williamson, as his attorney, then Jones was interested to establish the ownership of the hay in himself, at the time of its seizure and sale, on execution, so as by means of such sale to satisfy the execution; and if the judgment and execution were discharged by the attorney then the damages recovered by 'Muzzy would in fact belong to Jones, and he could recover them of him on the ground of his being a mere trustee of Jones to the amount of such damages. This argument rests on the assumed principle that the verdict in the present action would be legal evidence, by which Jones in any future action between other parties might realize and secure to himself all the advantages and rights which he anticipates and expects. But would such be the cáse ? Should Loth-op sue Tilden and Muzzy, in an action of trespass for taking and disposing of the hay, the verdict in this action would be no evidence in that; or should he sue Jones alone, or jointly with Tilden and Muzzy, or with either of them, in such action of trespass; in either case the law would be the same. So if Jones should sue Muzzy, on the ground of his holding the damages recovered, as his trustee, the verdict in this case could not be legal evidence lor him. In all the cases above supposed, the parties would be different from those now before the court. It is a general rule, that a verdict is evidence only between the same parties, or such as claim under the same parties. And Ch. B. Gilbert lays it down, “ that nobody can take benefit by a verdict, who had not been prejudiced by it, had it gone contrary.” And a stranger cannot give a verdict in evidence, even against one who was a.party to the former suit. 1. Phil. Evid. 249. 250. Burgess v. Lane & al. 3. Greenl. 165. It is perfectly clear that Jones cannot in any manner be. prejudiced by the verdict in the case at bar. It is true that he m¿y have testified under the influence of wishes, and perhaps of strong feelings, in favor of the original plain-tiffj and cu that account his testimony might have been liable to suspicion and doubt ; but this was a proper subject for the consideration of the jury, and could not operate to exclude him as incompetent. In tiie view we have taken, no further allusion is necessary to the several releases executed at the trial.

We perceive no error in the record and proceedings before us ; and accordingly the judgment is affirmed, with costs for the defend - ant in error.