Thornton v. Hook
Before: Sanderson
Synopsis
Appeal from the District Court, Fifth Judicial District, San Joaquin County.
Bogart was the owner of a team, consisting of horses, wagon, and harness. He was at the same time indebted to Fisher & Fisher in the sum of about six hundred dollars. Bogart met one Hichols at Virginia City, in the State of Hevada, to which place Bogart had been hauling goods from Sacramento. This was in June, 1864. Bogart informed Hichols that he was afraid his creditors would attach his team if he returned to Sacramento; and it was then agreed between him and Hichols that a fictitious sale of the property should be made to Hichols in order to keep it out of the hands of creditors; and such sale having been made, the team was taken back to Sacramento. At Sacramento, Hichols made a sale of the property to Thornton, the plaintiff. The Fishers having commenced suit against Bogart, procured an attachment and attached the property in the hands of Thornton, who then commenced this action against Hook, the Sheriff, to recover damages.
On the trial the plaintiff called as a witness A. Borland, and proved by him that in July, 1864, he was living on a ranch, and the plaintiff then placed in his possession the property in controversy, and that while he was keeping it for the plaintiff it was attached and carried away by the Sheriff.
On cross examination of this witness, the defendant’s attorney asked him if he knew where Thornton procured the possession of the property, and if he knew whether before the property was put in his possession by Thornton it had ever belonged to Bogart, or was ever in Ms possession. The Court, on objection of the plaintiff’s attorney, refused to allow the questions to be put. The plaintiff then rested.
The defendant then introduced testimony upon the issues • and upon the question whether Thornton, when he purchased of Nichols, knew of the fraud on the part uf Bogart and Nichols; and on this point the testimony was conflicting. There was also testimony as to the consideration paid by Thornton, the plaintiff.
The defendant asked the Court to give the jury the following instruction, which was refused; to which refusal he excepted:
“If the jury find from the evidence that Thornton procured his title to the property from Nichols, and that Nichols procured his title and possession fraudulently from the Bogarts, and with the intent to defraud their creditors, that then the said creditors would have the legal right to follow and attach the property in his hands, except he has proved to the satisfaction of the jury that he was a bona fide purchaser for a valuable consideration, and the burden of proof to show that part is on him. To constitute Thornton a bona fide purchaser for value, he must not only have had no notice of the fraud of Nichols in procuring the possession, but he must also have paid some new consideration for the property prior to his discovery of said fraud. If Thornton only relinquished an antecedent debt due him from Nichols of five hundred dollars as a part payment of the purchase, and if he did not actually pay Borland the one hundred dollars which he assumed to pay for Nichols, until after the discovery of the fraud by which Nichols acquired possession, that then neither or both of said pretended payments are sufficient in law to clothe Thornton with the character of a bona fide purchaser for valuable consideration, and they will find a verdict for the defendant.”
By the Court, Sanderson, J. : It is not always easy to determine the precise point beyond which a cross examination should not be allowed to proceed. The general rules upon the subject are plain enough; but [228]the difficulty lies in the just application of them to given cases. Thus it is well settled that a witness cannot be cross examined, if objection is made, except as to facts and circumstances connected with matters testified to by him on his direct examination. But it is sometimes difficult to say whether a given fact or circumstance is connected with a matter previously stated by him in the sense of this rule. If the broadest latitude be given to the rule, a cross examination might extend to the whole case, for all the facts of a case may be said to have a certain connection with each other. This rule is, therefore, qualified by another, which is equally well settled. It is, that a party who has not yet opened his own case cannot be allowed to introduce it by a cross examination of the witness of his adversary. In most cases, doubtless, guided by these rules, a Court will be able to prescribe with accuracy the limits to a cross examination; yet it frequently happens that both sides of a case stand, in part, upon common territory, or are founded in part upon the same or cognate facts. In such cases it is impossible to adhere strictly to the one rule without violating the other, for the question put may apply equally to new matter and to matter already stated, or at least it may be difficult to decide whether it does or does not. Of this class of cases the present is an example. The questions put to the witnesses Borland and Greer, on cross examination, had they been allowed by the Court, would, doubtless, have elicited matter connected with the plaintiff’s possession of the property in question, and therefore his title to it, within the meaning of the rule first noticed; but it is equally certain that the matter so elicited would have been connected with the defendant’s case within the meaning of the rule last noticed. Where such are the conditions, the course to be pursued must inevitably be left to the discretion of the Judge below, and his ruling cannot be regarded as a legitimate subject for a bill of exceptions. (Ellmaker v. Buckley, 16 S. and R. 72; Burke v. Miller, 7 Cush. 547, 550; 1 Greenl. Ev., Secs. 445, 446, 447.)
[229]
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