61 Ala. 468 (Ala. 1878), Turner v. McFee

Citation:61 Ala. 468
Opinion Judge:MANNING, J.
Party Name:Turner v. McFee.
Court:Supreme Court of Alabama
 
FREE EXCERPT

Page 468

61 Ala. 468 (Ala. 1878)

Turner

v.

McFee.

Supreme Court of Alabama

December Term, 1878

Trover for Conversion of Horse.

APPEAL from Circuit Court of St. Clair.

Tried before Hon. W. L. WHITLOCK.

MANNING, J.

This was an action of trover by a mortgagee for a horse claimed as a part of the property conveyed by a mortgage-deed of one Collins to him. Ramsey, a subscribing witness to the mortgage, which was made five or six years before, testified that he believed the horse in controversy was the same animal described in that instrument as an iron grey colt; that he could not state of his own knowledge that it was the same horse; that the horse had no marks or distinct features in the way of color whereby he could recognize him from any other grey horse, but he believed him to be the same iron grey colt or horse described in the mortgage, and was satisfied he was the same. Exception was taken to the refusal of the court to rule out this evidence.

We think the court did not err. A considerable time had probably elapsed since the witness had seen the horse, for which reason he may have been reluctant to be positive in affirming that about which it was possible he might be mistaken. The subject of his testimony, the identity of a horse--was one requiring the exercise of both judgment and memory. If appellant's counsel distrusted the witness, they ought to have cross-examined him to make it apparent, if the fact was so, that he spoke at random. We well know that though a horse may have "no marks, or distinct features in the way of color, whereby a person could recognize him from any other grey horse"--yet there is a carriage, an action, a style about such animals, by which those of the same color may be known from one another, though the differences can not be very intelligibly described to a jury. As it is generally easy for a defendant who has such an animal, to show from whom he got him--and from whence he came, such evidence as that given by this witness, ought not to have been ruled out without something more being elicted, to show that he was ignorant of the matter he testified about.

The same observations are applicable to the evidence of Robinson, "who testified that he knew the grey horse mentioned in the mortgage, and thought it was the same horse now in the possession of defendant." There being no cross-examination, nothing elicited from, or...

To continue reading

FREE SIGN UP