East v. Pace

STONE, J. 1. The commissioner who took the deposition of Thomas G-. Atkins committed an error in altering and eori’ecting the name of the witness specified in the commission. The commission was an official paper, issued by the clerk, and, whether right or wrong, should have been allowed to remain as it was. But inasmuch as no motion was made524 to suppress the entire deposition, we need not inquire what •effect such irregularity would have on the admissibility of the evidence, if the question was before us. We only mention the irregularity to express our condemnation of it. Section ■3081 of the Code of 1876 declares when such motion must be made. 2. Several objections were filed, at the proper time, to parts of interrogatories in chief propounded to this witness. We think those filed to parts of interrogatories 2 and 3, .and to the entire interrogatory 4, were well taken. Each of them was leading.—See Blunt v. Strong, at present term. But none of the leading features of these objectionable interrogatories elicited any information, except the first clause of interrogatory 2. The answer to that was suppressed by the Circuit Court; and hence no injury was done by the leading interrogatories. No matter how objectionable a question may be in form, if it fails to call out information -deemed material and relevant to the case, and responsive to the inquiry, no injury is done by the leading form of the question. It has accomplished nothing. 3. The testimony tended to show that the mule, for whose value this suit was brought, was tortiously removed by the defendant, or through his procurement, and without plaintiff's consent or knowledge, from Alabama to Georgia, that he might there be levied on, under process, issued by a justice of the peace of the latter State, against the plaintiff below; and that the mule was accordingly so levied on and sold in -Georgia. It was objected that the witness was allowed to say he had taken the mule under process, without producing the process, or a certified or examined copy of it. There was nothing in this objection. The gravamén of the suit was the tortious removal of the mule from Alabama to •Georgia, thereby converting him. The purpose in doing so, and the manner of disposing of him afterwards, were but incidental or collateral matters, which do not fall within the rule requiring the highest and best evidence.—Graham v. Lockhart, 8 Ala. 9, 25; Spears v. Wilson, 4 Cranch, 398; Duffie v. Phillips, 31 Ala. 571; Dixon v. Barclay, 22 Ala. 370; 1 Brick. Dig. 856, §§ 752-3. 4. The Circuit Court did not err in refusing to give the first charge asked. The defendant committed a trespass in .acquiring the property, and it is against the policy of the law to allow a person, who thus takes the law into his own .hands, to depend on any title he may have, or make any .profit by his lawlessness. In Folmar v. Brantley, (in this [525] volume,) we said: “ Ownership is ho defense to a forcible seizure, or ejection, mamo forti, of one who is in possession, though wrongfully;” and, although the present action is trover, which is an equitable action, and usually lets in equitable defenses, yet, “ this rule does not apply, when the-party making the defense has obtained the possession tortiously.” 5. We think the failure of the defendant, who was present in court, to testify in his own behalf, on the disputed question of the agency by which the mule was carried from Alabama to Georgia, was a legitimate subject of comment before the jury, and that the Circuit Court did-not err in refusing-to give the second charge asked. Affirmed.