Crane v. Thayer

[168] The opinion of the court was delivered by Kellogg, J. The depositions of Caroline Butler and Ann Maria Appley were properly admitted in evidence to the jury. They appear to have been taken in the state of Illinois, by a justice of the peace of that state, whose official capacity is duly shown by the certificate of the clerk of the court for the same county, to which is affixed the seal of the court. But we attach no importance to the fact, that the depositions were accompanied by the seal of the court and the clerk’s certificate, inasmuch as it is now the settled practice in this state, to receive depositions, taken in any of the United States, provided they purport to have been taken by competent authority, which is not impeached. The court will presume the officer taking the testimony to be lawfully entitled to the official character, which he assumes, and to' have competent authority to take the depositions, until the contrary appears. In Jasper et al. v. Porter et al., 2 McLean, 579, it was held, “ that the court would receive the certificate of the magistrate, as prima facie evidence of his right to take the deposition, without the certificate of the clerk and the seal of the court, or any other evidence of his official character.” Nothing having been shown to impeach the_ authority of the magistrate to take the depositions, they were properly admitted. It is farther urged, that the county court erred in rejecting the testimony offered, to prove that Adonijah Crane, a witness introduced by the plaintiff, had the reputation of being a notorious counterfeiter. This testimony was offered for the purpose of impeaching the character of Crane for truth, and we think it was properly re7 jected. It is a well settled general rule, that evidence to impugn the character of a witness should be confined to his general character for veracity, and that inquiries as to particular instances of moral delinquency are not admissible. 3 Pick. 196. 13 Johns. 505. This rule has been uniformly adhered to in this state, and we see no sufficient reason for departing from it. In Spears v. Forrest, 15 Vt. 435, the court held, that evidence, that the witness was a common prostitute, was inadmissible; and yet we apprehend there would be quite as much propriety in admitting such .'evidence, as impeachment of the general character for truth, as in admitting evidence that the witness was a counterfeiter. But it has been urged, that a “ notorious counterfeiter is, ex vi termini, a notorious liar.” [169] If this proposition be true, there would seem to be no necessity for a relaxation of the general rule, which confines the inquiry to the general character of the witness for truth and veracity; for in that event the reputation of the counterfeiter for truth and veracity must necessarily be bad. We are all clearly of opinion that this evidence was properly excluded. It is farther insisted in the argument, that the court below mis-directed the jury in the charge relative to the fifty acres of land, conveyed by the plaintiff to the defendant. The defendant endeavors to sustain this objection upon the ground, that the land was conveyed to him as security, to indemnify him for entering into a recognizance for the plaintiff, and that he held it intrust, and not as a purchaser, and consequently, that he would only be liable upon his refusal, on request, to re-convey the land. This, as a general proposition, would be readily conceded, where the property is conveyed in trust, and the trustee has conducted fairly, treating the property as trust property. But it must be borne in mind, that the deed was not in terms a trust deed, but an absolute, unconditional conveyance ; that the defendant used and treated the property as his own, and not as trust property ; that he claimed, and insisted at the trial, and gave evidence tending to prove, that he paid for the land when it was conveyed to him; and that he did 'not sell the land, when a favorable opportunity offered, and apply the avails, as well as the avails of the hay and other property, in discharge of the recognizance. After this claim of absolute ownership of the property, and consequent denial of his liability to account for it, he is not to be allowed'to set up the trust character .of the transaction, to shield him from responsibility in this suit. We think, therefore,' that the charge of the court, upon this part of the case, was unexceptionable. It is also objected, that the court, in their instructions to the jury, erred in their construction of the bill of sale of the hay and the receipt, or written acknowledgement, executed by the defendant at the same time. The bill of sale does not purport to give the quantiiy with certainty, but says “ about 25 tons,” being the whole in the barns and a stack, for four dollars per ton, being one hundred dollars. This, standing alone, w'ould undoubtedly be conclusive upon the party as to the price per ton, and perhaps one hundred dollars would be regarded as the amount to be paid for the whole; but when [170] we consider this in connection with the written acknowledgment of the defendant, made at the same time, we think it evident, that the bill was simply to furnish the defendant evidence of the sale of the hay to him, and that he was to make the best disposition of it he could, and account for the avails. We are therefore entirely satisfied with the construction put upon these instruments by the county court. The defendant having applied the avails of the hay and the use and income of the. fifty acre lot to his own use, instead of applying it to the discharge of the bond of recognizance, as he ought to have done, it was a gross and fraudulent misapplication of the funds. The county court were therefore right in their directions to the jury upon the subject of interest. Judgment of the county court affirmed.