Haskins v. Smith

[268] The opinion, of the court was delivered by Williams, Ch. J. In this case there are exceptions to the decisions of the county court upon the trial, and there is also a petition for a new trial. The first exception is, that the county court improperly excluded the depositions of Eunice Vail and Eunice V. Vail. The decision was conformable to the decision of this court in the case of Dupy v. Wickwire, 1 D. Ch. 237, and also in the case of Swift v. Cobb, 10 Vt. 282. Indeed the latter is almost identical with the one at bar. In the caption to a deposition the parties must be' correctly described, and, in order to this, the Christian and sirnames of the parties, both plaintiff and defendant, must be set forth. It is neither a correct, nor accurate, description of the parties defendants, to name them “ Seneca Smith and others.” A judgment rendered in the name of a firm and an execution issuing thereon were adjudged void in the case of Gray, Drew & Co. v. Parker, 16 Vt. 652. The second exception is, that the court excluded George O. Vail as a witness. It appeared that the property of the defendants in this suit was attached, and the witness offered receipted it to the officer making the attachment. The usual course, when property is thus attached, is, that it goes back to the defendant, and the receiptor becomes a surety for him for the value of the same; and the presumption is always conformable to this usage, until the contrary is shown. The party introducing a witness, situated like the one in question, could, if such was the fact, show affirmatively that the property attached remained in the hands of the receiptor. The party opposing the introduction of the witness could not show the contrary, unless he resorted to the testimony of the witness himself, on his voir dire. This he is under no obligation to do. The witness offered was apparently interested in behalf of the party, and was properly rejected. A question is then raised, whether the court should, on the offer made by the counsel for the defendant to bring the sum of eight hundred dollars into court, have discharged the attachment, released > the officer from his responsibility, and admitted the witness to testify. W.e app.rehend it was not within the legitimate and appropri [269] ate power or duty of the court below to discharge the attachment, or release the officer from his responsibility, or interfere in the contract between him and his receiptor. It is not the appropriate business of the clerk to receive and take care of property attached, or' of money deposited in lieu thereof. The plaintiff, if he recover, may in such a case resort to the officer attaching, and his sureties, and is not to call on the clerk or officer of this court for money, which it is not his official duty to keep, and for the safety of which his official sureties are not responsible. This was the only offer made, and the only decision excepted to, and the only one of which this court can take notice. The remark which is brought into the bill of exceptions, that the Court had no power to give any other relief, can be considered as only applicable to the case then presented; and on that we have already considered that the court could not grant any relief. If any thing farther was meant, or intended, by that expression in the exceptions, I have only to say, that it would have been improper for the counsel to ask the court how they could render the witness admissible, or for the court to decide that under no possible circumstances they could admit him. It is sufficient to say, that, under the circumstances presented to the court below, and the offer made, the court correctly decided that they could not discharge the attachment, or give any other relief to the defendants. What powers the courts of Great Britain have in discharging bail, or substituting other security, is of no consequence in this case. In all the cases read the bail were, by order of court, absolutely discharged, and their names stricken from the bail piece; and a similar power is exercised in this State in relation to changing bail. But no such power is ever exercised here in relation to attachments, and, from the nature of the case, cannot be. We can neither increase the amount of a receipt, nor change the receiptor to make him a witness. The cases in Massachusetts, from Pickering, decide only this, that, when the receiptor has received of the party a sum in money equal to the value of the property receipted, he stands in the same situation as though he had the goods in his custody. It did not enter into the minds of the counsel for the defendants to adopt this course, and entrust the receiptor with the [270] money with a view to make him a witness, and the court was not called on to decide, whether, under such a state of facts, the witness would have been competent. The decision of the county court was right on all the questions raised by the bill of exceptions. The petition for a new trial is presented for three causes. 1. New discovered evidence. This is now abandoned. 3. For that the agent of the plaintiff practised with the jury. This, also, is abandoned, and no evidence has been taken to sustain it. A charge of this kind ought not to be made and placed on the records, when there is no attempt to support it by proof. The charge is of a grave and serious nature; and, unless the party has some proof, or pre-tence, for making it, it ought not to be inserted in the petition. 3. Surprise in rejecting the testimony of Vail, and also in not putting in evidence certain notes. This ground of an application for a new trial, viz. surprise, is scarcely ever tenable; and, indeed, it is not laid down as a reason for granting a new trial in any of the modern authorities. In this case there is no foundation whatever for this allegation of surprise. Vail was interested, — was, as it is said, an important witness; the defendants could not with safety expect, or believe, that the plaintiff would not avail himself of the objection ; nor could the objection to the witness, or the decision of the court, be unexpected. In relation to the notes, the party had no reason to suppose them in evidence, when they were not offered, or read, and no note was taken of them. Courts are usually liberal in granting continuances on trial, on such terms as they deem expedient. The defendants did not move for a continuance for this cause, but took the chance of a verdict in their favor on the testimony introduced. The notes and the indorsements contained but little evidence of any importance. To have admitted them on the argument would have operated injuriously to the plaintiff, who said he had had witnesses in attendance to disprove the indorsements. An appeal on the part of the plaintiff for a new trial on the ground of surprise, if the verdict had been against him, would have presented a stronger appeal to our discretion than is now presented. [271] In the exercise of our discretion we think we ought not to open this case for another trial, when there has been such a multiplicity of testimony, and so many trials, and when the case has been so greatly contested. The judgment of the county court is therefore affirmed, and the petition for a new trial is dismissed.