Renaudet v. Crocken — 1 Cai. 166

Majority

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Renaudet against Crocken.

Headnote

If a trespass be committed in a town, which before action brought is subdivided, the trespass may be laid as in the original township. A surveyor acting under an appointment by an attorney, may testify without producing the power. An agent who has promised to refund money, reeeiyed on account of his principal in case a verdict pass against him in any particular suit, is a good witness in that very cause.

This was an action of trespass quetre clausum fregit, tried at the May circuit for the county of Saratoga, in the year 1803, before Mr. Justice Kent. The only questions raised for the determination of the court were,

1. Whether, if a trespass he committed in a part of a town, which, by a division made before the commencement of the action, is annexed to another township, the plaintiff can declare as for a trespass committed in the township where the locus in quo was originally situated ?

2. Whether a surveyor, acting under the authority of a

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person appointed by virtue of a power of substitution in a letter of attorney, ought to be admitted to testify to tho facts of such survey, without showing the letter of attorney, though it was acknowledged to exist?

*3. Whether an agent, having received several [*168] sums of money on account of trespasses alleged to have been committed on the lands of his principal, and which he promised to refund if he did not recover in the present action, was a competent witness.

The fourth was merely as to the weight of testimony.

delivered the opinion of the court. 1. The trespass having been committed in 1797, at a place then within the town of Saratoga, the plaintiff had a right to allege it was done in that town, according to the truth of the case, without regard to its subsequent division. The j ndge, therefore, properly overruled this objection.

2. It was not necessary to produce the plaintiff’s letter of attorney to Beriah Palmer. The object of Baldwin’s testimony was to show that Jacobs lived on a lot of the plaintiff’s, and acknowledged his right; that it was then regarded as the plaintiff’s, taken care of as his, and possessed under him; whether this had been done under a power or not, was immaterial. The ownership and possession of, or under him were the important facts to be established.

3. Beriah Palmer was a competent witness,^[1] notwithstanding the agreement he may have made to refund the moneys he had received from other trespassers, in case the plaintiff failed in this suit. Such moneys/ must have been received for the plaintiff; and he only, and not the witness, would be affected by such refunding.

4. If the jury believed the plaintiff’s witnesses, and w'e

(a) (a) The witness was equally liable to both parties; to the plaintiff, in case of a recovery, for money received to his use; on the other hand, to the trespassers in the same form of action, if the verdict was against him. See Mil ward v. Hallett, 2 Caines’ Rep. 84 , n. See New York Code of Procedure, secs. 398, 399.

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are to presume they did, the verdict is not against evidence and ought not to be disturbed.

Judgment for the plaintiff.