Opinion
November Term, 1848
J.H. Weeks, for the plaintiff in error.
C.W. Swift, for the defendant in error.
It may be inferred from the facts proved, that prior to April or May, 1846, Gridley was the owner of the land on which the trespass is alleged to have been committed by the defendant, and that while thus being the owner, Brower had occupied the premises as his tenant until some three months prior to May, and had sowed it with rye; to whom the crop belonged at the time Gridley sold and delivered possession of the premises in April or May to Parmelee. It does not seem, from the justice's return, that Parmelee claimed to have become the owner of the rye as purchaser of the land on which it was then growing. But he, as well as Worrall, respectively claimed the crop as purchasers from Brower. Parmelee showed that prior to and at the time of the alleged trespass he was in the actual possession of the premises, that the defendant entered upon the land, cut and carried away the rye, of the value of from $30 to $40; and then rested; having clearly shown a prima facie right to recover for the injury sustained.
The defendant then attempted, in his defence, to show that he was the owner of the rye by purchase from Brower. To do this he proposed to give in evidence the declarations of Brower to that effect. The plaintiff objected to such evidence as incompetent; but the justice overruled the objection and admitted the evidence. The defendant then proved by two witnesses that Brower on two different occasions in effect said that he had sold the rye to the defendant, and then rested his defence. The plaintiff introduced Brower as a witness, who testified that the bargain which he made with the defendant for the sale of the rye, was a conditional one, that is, he was to pay him a certain sum for it the first of May, which he failed to do, and had not at any time paid him; that after the first of May he sold the rye to the plaintiff, who paid him for it.
The decision of the justice upon the objection taken to the admission of the evidence of Brower's declarations, was clearly erroneous. Such evidence is nothing more than hearsay. ( Paige v. Cagwin, 7 Hill, 361; Beach v. Wise, 1 id. 612.)
But it is insisted in behalf of the defendant, that the plaintiff waived his objection to such evidence, by introducing Brower as a witness in the cause; upon the principle that the case shows that there is enough, exclusive of the illegal evidence, to sustain the judgment of the justice. There are many cases which hold that an error in the court below, which on its face and by legal necessity, could do no injury, is not cause for a reversal of the judgment. But where the error is in the admission of illegal evidence which bears in the least degree on the question in issue, it cannot be disregarded. ( The People v. Wiley, 3 Hill, 194, 214.) So also where the sole question on a bill of exceptions turned on the competency of a witness produced to testify to a fact fully proved by two other witnesses, it was held that the court could not reject the evidence of such witness as unnecessary, on the ground that it was impossible to say that the jury disregarded it; and the witness being adjudged incompetent, the judgment in the court below was reversed. ( Marquand v. Webb, 16 John. 90.) And to the same effect is the case of Osgood v. The President and Directors of the Manhattan Co. (3 Cowen, 612.) The judgment of the supreme court should be affirmed.
Judgment affirmed.