Harrington v. Tremblay , 61 N.H. 413 ( 1881 )

The first and most important exception presented by the case is that of the admissibility of the plaintiff as a witness. The suit is against the defendant in his private capacity, but inasmuch as he included the property constituting the subject-matter of the suit in the inventory returned by him as administrator of his intestate's estate, it is contended in his behalf that the estate is the real party in interest, and consequently that the plaintiff was debarred as a witness by s. 18, c. 228, Gen. Laws, which provides that "when either party of record is not the party in interest, and the party whose interest is represented by such party of record is an executor, administrator, or insane, the adverse party shall not testify, unless the executor, administrator, or guardian of the insane person elects to testify himself, or to offer the testimony of such party of record."

But in respect to the notes and the money, the facts do not bring the case within the statute. A wrong-doer who, without color of title or warrant of authority, forcibly seizes and carries away chattels in the possession of another, cannot, in a suit against him for their conversion, shield himself, and exclude the other party as a witness, by causing them to be included in the inventory of a deceased person to whom they once belonged, and of whose estate he is subsequently appointed administrator, and then electing not to testify. The statutory design of equality between parties cannot be evaded or thwarted in any such manner. The defendant must stand or fall upon his rights to the chattels at the time of their conversion. The rights of the parties as they then existed furnish the decisive test, and hence it is not of the slightest consequence that the defendant has since transferred the possession and dominion of the property from himself as an individual to himself as administrator. The original issue between the parties has not thereby been changed. Having converted the property in his private capacity, the defendant can justify its conversion in that capacity, and in no other.

In this view, the plaintiff was, of course, a competent witness generally; but in any view she was a competent witness to show the defendant's acts in respect to the property, of which the deceased could not possibly have had knowledge, and was therefore rightly permitted to testify that the defendant forcibly took away the notes and money against her consent, and never returned either. This of itself was sufficient to entitle her to a recovery Bartlett v. Hoyt, 29 N.H. 317, 321; 1 Ch. Pl. (13th Am. ed.) 148; note (3); Cooley Torts 445, and cases cited. The presumption of law is, that the person who has the possession of personalty has the property also; against a wrong-doer possession is title; and it is therefore immaterial whether the plaintiff's possession was rightful or wrongful as against the defendant, who apparently had no title whatever, and was a mere naked trespasser at the time he seized, carried away, and converted the pocket-book and its contents.

The further contention that Dr. Tremblay was the true owner does not aid the defendant. Upon the reported facts the legal presumption is otherwise; and if it were not, it is no defence to the maintenance of the plaintiff's action, because a defendant in trover cannot set up property in a third person without showing some right, title, or interest in himself derived from such person. Cool. Torts 444, and cases cited.

As to the piano, a very different case is presented. The conversion of it by the defendant was in his official capacity. The plaintiff was therefore excluded by the statute, and the objection to her testimony should have been sustained. Nor are we prepared to hold that her testimony discloses other than an unexecuted contract in respect of it. But it is useless to consider this question.

The verdict to the extent of $67.50 is set aside, and the plaintiff has judgment for the balance of it.

Judgment accordingly.

CLARK, J., did not sit: the others concurred.