Talbot v. Talbot's Representatives

• Decision Date: 20 June 1829
• Citation: 25 Ky. 3
• Parties: Talbot v. Talbot's Representatives.
• Court: Kentucky Court of Appeals

25 Ky. 3

Talbot v. Talbot's Representatives.

Court of Appeals of Kentucky.

June 20, 1829

Practice. New trial. Evidence. Statute.

APPEAL FROM THE JESSAMINE CIRCUIT; W. L. KELLY, JUDGE.

Wickliffe for appellant.

Daviess for appellees.

OPINION

ROBERTSON JUDGE:

In 1824, Presley Talbot bought a cow and a negro boy named Henry, and delivered them to his son William M. Talbot, who had settled on his farm, and who retained the use and possession of them until his death in 1826. After the death of William, Presley Ttlbot took into his own possession and retained as his property, the boy Henry and the cow, and her increase. Whereupon, Archibald Logan as administrator, and Nancy Talbot, as administratrix of the estate of Wm. M Talbot, brought an action of detinue against Presley Talbot, for the boy and the cattle. The jury found a verdict for the plaintiffs for the boy; but said nothing about the cattle, and the court rendered a judgment in the usual form on the verdict; from which Presley Talbot has appealed.

The errors assigned are various, but may be reduced to a twofold classification. 1st. Such as grow out of the supposed errors of the court, in opinions given during the trial. 2d. Such as are involved in the refusal to grant a new trial.

In the first class, three errors as complained of. The first is the refusal of the court to permit the appellant to interrogate the witnesses. There is no error in this. A party has the right to appear " in propria persona, " or by counsel. This right is alternative. A party has no right to appear both by himself and counsel. It would be irregular and very inconvenient to permit him, " ex gratia, " to do so. The appellant was represented by counsel; consequently he could not ask leave as a matter of right, to appear also in his own person.

A party may appear in person. He has no right to appear both by attorney and in person.

The second error of the first class, is, that the court refused to permit the appellant to prove, that he had entered the boy Henry, for taxation during the time when he was in William's possession. We can not reverse the judgment on this ground; because, the fact rejected could have only tended, and in a very slight degree, to prove that the appellant claimed Henry. This was indisputably proved by stronger and more direct evidence, and it was also proved that William admitted the claim. Therefore, as it is plain that the introduction of this isolated fact, intended only to lead to a presumption of another fact which had been abundantly proved by better testimony, would not have benefitted the appellant, its rejection could not have prejudiced his defence. William had no control over his father's conduct. He could not prevent his listing the boy for taxation. Upon the whole, we are unwilling to set aside the verdict for this cause alone.

To exclude evidence of a fact, only tending to create a presumption, when the conclusion is more strongly induced by other proof, is not sufficient to reverse a judgment.

The third error assigned in the first class is, like the second but of less consequence. A witness swore that wishing to exchange for Henry, he applied to Wm. M. Talbot, who told him that Henry belonged to his father, and advised him to propose the exchange to him. He also swore, that he did make the application to the appellant, who replied that he would not make the exchange, " that it would not suit him to exchange the boy for a man." The court on motion rejected the response of the appellant as inadmissible, and this is the error complained of. There is no error in this, for two reasons. 1st. The reply, which was not admitted as evidence, could not have strengthened the presumption of title in the appellant which would arise from the admission by Wm. M. Talbot. 2. To have admitted this declaration, would have been permitting the appellant to give or to make testimony for himself. The conversation by the witness with W. M. Talbot, was all that was relevant to the issue. The subsequent conversation between the witness and the appellant, ought to have been excluded in toto. If it had been right to admit the proposition made by the witness to the appellant, and the proof of that alone without the reply, could have possibly...