Elkins v. Hamilton

•The declarations of a person, when made in connection with his acts, which become controverted matters upon the trial of a case, may be proved, as part of the res gestee. But where a person was laboring upon a farm, and a question arose, whether he had such an interest in the farm as to render the hay raised upon it attachable for his debts, it was held, that his declarations, made while he was purchasing seed corn at a place two miles from the farm, that he had hired the farm and was going to carry it on, were not competent evidence upon the issue, as part of the res gestae, in a suit between the attaching creditor and another person, who claimed to be the real owner of the hay. So it was held, that the declarations of such person, while laboring in another place, four miles from the farm, that he was carrying on the farm, and as to the quality of the hay raised upon it, were not admissible, as evidence in such suit.

Trespass for taking a quantity of hay. Plea, the general issue, with notice of special matter of defence, and trial by jury, June Term, 1847, — Davis, J., presiding. On trial the plaintiff gave ' evidence tending to prove, that one Bradley Sanborn hired of one Upton, February 22, 1844, a farm in Jay, called the Burt farm, and took a written lease for one year ; that Sanborn then leased the house and garden upon the farm to one Putnam, .who occupied them until late in the autumn of 1844, as tenant under Sanborn; that in March, 1844, Bradley Sanborn hired one Enoch Sanborn to carry on the farm, find the seed and team, and sow and harvest the crops, for sixty dollars, to be paid to him in produce in the course of the season; that Enoch Sanborn accordingly carried on the farm, under this contract, and cut the hay, which grew thereon, and placed it in a barn upon the premises ; that Bradley Sanborn afterwards, on the fourth of February, 1845, sold the hay in question to the plaintiff; and that the defendants, on the 18th of March, 1845, took away the hay and converted it to their own use. The defendants proved, that in December, 1844, the hay in question was attached by the defendant Hamilton, as deputy sheriff, as the property of Enoch Sanborn, by virtue of a writ of attachment against him, and that the hay was duly sold by Hamilton, at sheriff’s sale, February 22, 1845, and was afterwards removed by the defendants, in pursuance of the sale. The defendants then offered to prove, that in the spring of 1844 Enoch Sanborn applied to one Perkins, at his house, about two miles from the Burt farm, to purchase some seed corn, and that he then told Perkins, that he had hired 'the Burt farm and was going to carry it on. The plaintiff objected to any evidence of _the declarations of Enoch Sanborn, in relation to carrying on the farm, unless the plaintiff was in some way connected with them. The court decided, that Sanborn’s naked declarations, unconnected with his acts, and not in the presence of or sanctioned by the plaintiff, were inadmissible; but that what he said, as to the usé intended to be made of the seed corn and the manner of carrying on the farm, at the time of buying the seed corn, was proper evidence. The defendants also offered to prove, that Enoch Sanborn, in the summer of 1844, while laboring upon another farm, about four miles from the Burt farm, said that he was carrying on the Burt farm, but did not say on what terms, or how, and that he said he had cut some very good hay there, which would be good enough to feed his or any body’s oxen upon the next spring, — neither the plaintiff nor Bradley Sanborn being present. To this evidence the plaintiff objected; but it was admitted by the court. The defendants then offered to prove, that Enoch Sanborn, after the sale of the hay by Bradley Sanborn to the plaintiff, called upon several persons and requested them to bid off the hay at the sale by the defendant Hamilton, and let him, the said Enoch, have the hay; and that he did induce one person to attend the sale, for the purpose of bidding off the hay for him. This evidence, also, was objected to by the plaintiff, as being the sayings of Enoch San-born, but was admitted by the court. It did not appear, that the plaintiff had knowledge of these facts. The defendants then offered to prove, that Enoch Sanborn, while he was cutting the hay, and afterwards in the autumn of 1844, drew away from the farm, or from the barn thereon, one or more loads of hay ; and that, without the knowledge of the plaintiff, he applied to a justice of the peace, after the removal of the hay by the defendants, and requested him to sign a writ in favor of the plaintiff for taking away said hay. To this evidence the plaintiff also objected; but it was admitted by the court. The plaintiff requested the court to charge the jury, that the declarations of Enoch Sanborn, made in the absence of Bradley San-born and'the plaintifij and without their knowledge or assent, were not evidence against the plaintiff But the court instructed the jury, that they might consider the evidence before them of the acts and declarations of Enoch Sanborn, in connection with the other circumstances, as tending to show, that Enoch Sanborn did in fact own the hay. Verdict for defendants. Exceptions by plaintiff.