Downer v. Rowell

By the Court. 1. It is objected, that the court erred in refusing to charge the jury, that selling the sheep or part of them to the plaintiff, he knowing them, at the time, to be the same sheep he had leased to defendant, was a conversion of the sheep so sold. But we think this portion of the charge was correct. A sale ex vi termini implies the consent of both parties, the aggregate mentium, as much as any other contract. It could not, therefore, be fairly said, that this property, by the very act of sale to plaintiff, was converted from his use and to the use of defendant, which is necessary to maintain this action. 2. The testimony of Mr. Tracy is not fully detailed, but the excepting party is bound to state any defect in the case, upon which he relies, fully. The manner of Mr. Tracy’s taking minutes, or his confidence in their accuracy, is not stated. As we are ' bound to make reasonable presumptions in favor of the proceedings below, we must suppose the minutes of Mr. Tracy were kept in the usual mode, that is, that they contained the substance of all the testimony of the witness, in the very words of the witness, and that the witness knew this to be the fact, either from recollection or from his usual mode of taking minutes. If that was the case, it will bring the minutes within the rule laid down in the cases in this State. Marsh v. Jones, 21 Vt. 378. And the consideration, that the witness could not swear from memory, is not, at present, regarded as important. All that is [347] required is, that the witness shall be able to state, that the memorandum is correct. He may then read it, as well as repeat it. The certainty of its contents being the truth is not affected hy that, either way. Where a transaction is remote, out of pind, or consists of a multiplicity of facts, a detail of dates, sums, &c., or a long narrative, like the testimony of a .witness, where certainty is desirable, nothing could he satisfactory but minutes made at the time. Hence the old rule, that the witness must he able to swear from memory, is now pretty much exploded. Judgment affirmed.