Gage v. Wilson , 17 Me. 378 ( 1840 )

The opinion of the Court was drawn up by

Weston C. J.

The plaintiff was bound to prove property in the chattels in controversy in himself, before he could be entitled to a verdict. He relie,d upon a sale from William I. Thomas, the original owner. The .evidence of that yyas ip writing. It was a single transaction, of which the written ipstrurnent was the appointed and legal proof. It was given as the proper evidence of title, and as such held by the plaintiff. It was the best evidence, which he \yas therefore bound to produce. And when produced, it was incumbent op him to prove it.

It had two subscribing witnesses. One of them had deceased ; but tBe testimony of the other might have been obtained. Secón? dpry- evidence of its .execution was inadmissible; and the instrument \yas properly excluded. But this did not entitle the plaintiff tq adduce paro} evidence pf the sale. It was inferior in its character to the written eyidence, which was executed fpr the purpose of fix? ing and ascertaining what had been agreed. We are opinion then, that the testimony of Thomas as to the sale, which was obr jected to, was not legally admissible.

It is contended, that by the testimony of Conner, a witness for the defendant, proving the sale, that fact is established from testimony, to which he is not at liberty to object. His legal objection to the evidence of sale being overruled, the defendant was under the necessity of resorting to repelling testimony, and attempted to prove by Conner, that the sale was fraudulent. This evidence, thus introduced, ought not to have the effect to preclude him from questioning the plaintiff’s title, which he had failed to prove by competent testimony.

As the case is presented, the competency of William 1. Thomas, as a witness for the plaintiff, may well be questioned. He was the plaintiff’s vendor, interested to sustain his title. Unless it is balanced by an equal interest on the other side, he is incompetent. It would have been, if Irving, who is represented by the defendant, had been his creditor. This is so far from being established by proof, that a verdict has been rendered against him ; but whether rightfully or not, is yet to be determined.

Exceptions sustained.