Hauxhurst v. Hovey

The opinion of the court was delivered by Isham, J. The deposition of Mr. Mott was not inadmissible, for any objections taken to the signature of the commissioner. The certificate and caption of the deposition, are not in strict conformity to the form prescribed by statute, as that contemplates separate signatures by the commissioner; one to the jurat or certificate, and the other to the caption. In this case, the certificate and the caption were drawn together, and form a connected statement of facts. When the commissioner, however, affixed his official signature to that statement, he as fully certified to the truth of all the facts required in the certificate and caption, as if they had been separately drawn, and his signature had been placed to each. In this respect, the case is unlike that of Shed v. Leslie, 22 Vt. 498. The deposition in that case was rejected, as the certificate and caption were separately drawn, and required distinct and separate signatures of the magistrate, in order that the facts stated in each, should be certified by him. When the magistrate certified the facts stated in the caption, leaving the blank unfilled for the certificate, there was wanting, on the face of the deposition, evidence that the oath was administered by the magistrate to the deponent. For that reason the deposition was rejected. In this case no such difficulty exists. The fact that the proper oath was administered to the witness, and that those facts exist, which authorized the taking of the deposition, are as fully certified by the [547] commissioner, and are made to appear with as much certainty, as if a separate and distinct caption and certiñcaté had been drawn, and each had the signature of the commissioner. The objection, we think, was properly overruled. We think, however, there was error in the allowance of interest on the plaintiff’s account, previous to the I9th of August, 1852. Interest is allowed whenever a contract to that effect has been made by the parties either express or implied; or where it appears from the case, that the party is legally in default. In such case, compensation in damages, equal to the^value of the money, which is the legal interest on the same, may be allowed. 1 Amer. Lead. Cas. 498, and cases referred to. Evarts v. Nason’s Estate, 11 Vt. 122. The money for which this suit is brought, was received by the defendant as agent for the plaintiff in the sale of certain lands. An agent, receiving money under such circumstances, is not liable for interest before a demand is made, unless he has received special instructions to remit the same-as fast as ' collected, or is in default in neglecting to render an account. 1 Amer. Lead. Cas. 513. The same rule applies to an attorney, who has collected money for his client. There is nothing stated in the case, that places the defendant in default, in not paying over this money, until after the adjustment of the balance due, on the 19th of August, 1852. No demand appears to have been previously made for the money, or instructions given to remit the same; nor was there any refusal to render an account when requested. - Under -such circumstances interest ought not to have been allowed .against him. When that adjustment was made on the 19th of August, 1852, and a balance, of $881,46, was found due to the plaintiff, the defendant knew precisely what sum he was to pay, and that amount was due immediately. From that time he is properly chargeable with interest, so long as the principal remains unpaid. The result is, that the judgment of the county court must be reversed, and judgment rendered for the plaintiff, for the sum of $881,46, and interest thereon from the 19th of August, 1852.