Williams v. Chadbourne

Mr. Chief Justice Murray delivered the opinion of the Court. Mr. Justice Terry concurred. The first error relied on by the appellant is the exclusion of the deposition of E. H. Stone. Its introduction was objected to on two grounds, first, that it was taken before the County Clerk, and not the County Judge, as specified in the notice to the defendant; and, second, that it was not certified by the Clerk that said deposition had been read to the witness before signing thereof. The first objection, we think, untenable. The statute does not require that the noticie should specify the officer before whom the deposition is to be taken, and public convenience would seem to demand that in the sickness or absence of the officer designated, any other empowered by law might be substituted. Notice of the time and place having been given, it would certainly be a matter of small importance who should take the deposition, particularly in view of the inconvenience and delay which would result from a different rule. On the second point of objection, we are satisfied that the deposition was properly excluded; the certificate was insufficient. It should have set out an actual compliance with all the requirements of the statute. The second error assigned is the admissions of Moses Chadbourne in evidence. This does not appear to be error, as it was admitted by both parties that the hay in question was the same that was sold to Great-house, and that the plaintiff was entitled to a credit for one-half of it. The third error assigned is the instructions given by the Court." The first was correct; first, because there was no evidence of a sale of the mule by the plaintiff to the defendant; and, second, because there is no count in the plaintiff’s declaration for money had and received. The second and third instructions were correct. If the parties were tenants in common, and the defendant had sold the chattels or appro- b' printed them to his own use, the remedy of the plaintiff was in trover,j< or by an action for money had and received, instead of which the de [562] duration is for goods, wares and merchandise, sold and delivered, and will not support a judgment on the evidence. Judgment affirmed.