William Wilcox vs. Joseph K. Green and another

William Wilcox vs. Joseph K. Green and another. On a motion for a hew trial, no questions will be allowed to be raised which were not made, or whieb were waived, on the trial in the court below. Where an objection has been taken, in the court below, merely to the mod? of proving a certain fact, the question of the admissibility of the fact itself can not be made on a motion for a new trial. The declarations of a person may be proved by any competent witness who heard them, as well as by the person himself who made them, although the latter be a competent witness and within reach of process. Trespass de bonis asportatis. The plaintiff claimed to be the owner of certain live stock and farm produce, which the defendants had attached as the property of one John Brown, whom they claimed to be the owner thereof, and on the trial it became an important question whether Brown, who had been the plaintiff’s farm tenant and had had an interest in the stock and produce of the farm, had at the time of the attachment relinquished his interest to the plaintiff and abandoned the occupancy of the farm, (though still living in the dwelling-house upon the farm,) the plaintiff claiming and the defendants denying that such was the fact. The plaintiff, to prove that Brown had abandoned the cultivation and tenancy of the farm, offered the testimony of one Hill, that soon after the time of the alleged abandonment, Brown applied to him for a dwelling-house, to be occupied at once by himself and his family, and stated that he wanted it for the purpose of going into the business of peddling fish and clams. To the admission of this evidence the defendants objected, on the ground that Brown was living, and within reach of process, and could have been called ás a witness ; but the court admitted it. The jury having returned a verdict for the plaintiff, the defendants moved for a new trial. Cleveland and Martin, in support of the motion. 1. The declarations of Brown were not admissible. 1 Greenl. Ev., §§ 110, 128, 124. 1 Stark. Ev., 34. Enos v. Tuttle, 3 Conn., 247. Haynes v. Rutter, 24 Pick., 242. *2. If admissible, they should have been proved [ *573 ] by the testimony of Brown himself, who was a competent witness, and within reach of process. Nichols v. Hotchkiss, 2 Day, 121. 1 Greenl. Ev., § 124. 1 Stark Ev., 38. Fitch v. Chapman, 10 Conn., 8. Baker v. Briggs, 8 Pick., 121. Penrose, contra. 1. The declarations were admissible, as accompanying and explaining the act of applying for the house. 1 Greenl. Ev., § 108. Enos v. Tuttle, 3 Conn., 247. Cook v. Swan, 5 id., 140. Avery v. Clemons, 18 id., 306. Russell v. Frisbie, 19 id., 205. 2. The declarations could be proved by any witness who heard them, as well as by Brown himself. 1 Greenl, Ev., § 82. Commonwealth v. Kinison, 4 Mass., 646. Waterman v. Robinson, 5 id., 303. 3. If the declarations were in themselves inadmissible, yet the objection taken in the court below was solely to Ihe mode of proof, and not to the substance of the evidence. [MAJORITY — Storks, C. J.] Storks, C. J. It is a well settled rule of this court, first declared in 1826, and re-established in 1847, and to which we have tenaciously adhered, that, on a motion for a new trial, no questions shall be allowed to be raised or discussed which were not made or which were waived on the trial in the court below. As remarked in Torry v. Holmes, (10 Conn., 499,) this rule has been found essential to the preservation of the rights of parties and to the due administration of justice, and we are still disposed-to adhere rigidly to it. Under this rule the defendant in this case can not be allowed to avail himself of the question first endeavored to be raised by him before us, whether it was competent for the plaintiff to prove the declarations made by Brown to Hill. No objection was made on the trial to the admissibility of those declarations, but the precise objection was to the nature of the proof by which they were proposed to be shown. It was o'nly insisted by the defendant that they, could not be proved by the testimony of Hill to whom they [ *574 ] were made, *but must be proved by the testimony of Brown alone who made them. Not only, therefore, was the admissibility of those declarations, if properly proved,, not a point raised by the defendant, but the objection to the character merely of the testimony offered to prove them was impliedly a waiver of any objection to their admissibility. A reference to the cases of Nichols v. Alsop, (10 Conn., 263,) and Flint v. Clark, (13 Conn., 361,) the latter of which is very similar to the present, will show that we have applied the rule which has been adverted to, more rigorously than would be requisite to preclude the objection of the defendant which we are now considering. Of that point, therefore, we take no further notice, and the only question left for us to consider on this motion is, whether it was competent for the plaintiff to prove those declarations by the testimony of Hill, who was present and heard them. We are not aware of any rule which confines the proof of declarations by a person in a conversation, to the person by or to whom they were made, or precludes proof of them by any person who heard them. The hearer had the same opportunity to know what those declarations were as the speaker, ánd is therefore equally competent to testify to them. The evidence of the latter might, perhaps, be more satisfactory, but legally it is no better evidence than that of any other person who was present and heard the declarations. The ruling on this point was therefore correct, and a new trial is not advised. In this opinion the other judges concurred. New trial not advised.