Travis v. Barkhurst

• Decision Date: 30 May 1853
• Citation: 4 Ind. 171
• Parties: Travis v. Barkhurst
• Court: Indiana Supreme Court

4 Ind. 171

Travis v. Barkhurst

Supreme Court of Indiana

May 30, 1853

ERROR to the Tippecanoe Circuit Court.

The judgment is reversed with costs. Cause remanded.

R Jones, for the plaintiff.

J Pettit and S. A. Huff, for the defendant.

OPINION

Perkins J.

Replevin by Barkhurst against Travis for a bay mare. Pleas, the general issue, and property in the defendant. Issues of fact. Jury trial, and verdict for the plaintiff. Motion for a new trial overruled, and judgment on the verdict.

It is claimed that said judgment should be reversed:

1. Because of the refusal of the Circuit Court to grant a new trial on account of the defendant having been surprised by the testimony of certain of the plaintiff's witnesses. As a general rule, such surprise is not a sufficient ground for a new trial; and we see nothing in the record satisfying us that the court erred in the present case in this particular. See Graeter v. Fowler, 7 Blackf 554.;--Cummins v. Walden, 4 id. 307;--and 2 Swan's Pr. 924, where the law can be found on this point.

2. Because of the refusal of the Circuit Court to permit the defendant to give certain evidence.

The mare replevied by the plaintiff, L. Barkhurst, got into the possession of the defendant, Travis, through a purchase of her by him from one Daniel Bugher, who had her in possession; and on the trial said defendant offered to prove what he and said Bugher said about the trade soon after it had been consummated, but the Court would not permit him to do so.

Had it been proved that Bugher was acting in the trade as the agent of said L. Barkhurst, then his declarations "at the very time of the contract," would have been admissible in evidence as a part of the res gestoe. Without such proof, his declarations would have been mere hearsay. Story on Agency, p. 153.--Caldwell v. Williams, 1 Ind. R. 405.--Bland v. The State, 2 id. 608. If a man steal a horse and sell it, his declarations, even while having the property in possession, cannot, certainly, be given in evidence in bar of the right of the real owner. See Collis v. Bowen, 8 Blackf. 262.

3. Because the Courrt gave an erroneous instruction to the jury.

The defendant introduced testimony, on the trial, to impeach one of the plaintiff's witnesses, viz., Nathan Barkhurst. Several witnesses swore that his character was bad, and that they could not believe him on oath. The first one testifying to this effect, and whose testimony was given just before an adjournment of the Court, was Charles Vanhorn. He swore that he had "known witness Barkhurst a long time; was acquainted with his character for truth and veracity; it was bad, and from that character, he would not be willing to believe him on oath; but he had not lived near him for three or four years, and did not know what his character for truth and veracity was at that time, in the neighborhood where he was living."

On the adjournment of the Court, said Barkhurst assaulted and beat witness Vanhorn, for giving the testimony above set out, and, in his closing address to the jury trying the cause, the counsel for the plaintiff was permitted to use the fact of such beating as an argument to show that said Ba...