Lewis v. Morse

Waite, J. The objection to the admission of the deposition, is, that the certificate of the magistrate, does not state, that the deponent signed the deposition. That, in our opinion, is not required by the statute. Certain matters, however, must be embraced in the certificate. It must state, that the deponent was sworn, the reason for taking the deposition, and whether the adverse party, or his agent, was present. These facts would not otherwise appear. But the signature of the deponent is a fact apparent from inspection; and it can hardly be supposed, in the absence of [216] express words to that effect, that the legislature intended to require the certificate of a fact, from a magistrate, when that fact must neeessarly appear from the instrument itself. The deposition, in the present case, purports to have been given by Hart, and to have been signed by him ; and the magistrate has certified, that Hart was examined, cautioned, and sworn, agreeable to law. This, we think, is sufficient, without the aid of any parol testimony. 2. The defendant, by taking the wagon out of the plaintiff’s possession, and converting it to his own use, rendered himself liable, in an action of trover, provided he was not the owner of the property. After that conversion, the plaintiff had a right to treat the wagon as the property of the defendant, and attach it as such. The effect of the attachment, was not to restore the property to the plaintiff, or estop him from asserting his previous ownership. By the attachment, the wagon was taken into the custody of the law, and upon the termination of the suit, it would be the duty of the officer to treat it as any other property of the defendant, seized under the same process. The defendant, at any time, might regain possession of the wagon, by a writ of replevin. And so long as it was holden under the attachment, it is immaterial in what place it is kept by the officer. The mere circumstance that it was placed for safe keeping upon the plaintiff’s premises, makes no difference, as it was still in the custody of the law. Had it appeared, that the plaintiff, availing himself of the situation of the property, had resumed his possession, the defendant might have waived his title under the conversion, and shown, in mitigation of damages, that the properly had gone back into the plaintiff’s possession. But that does not appear to have been done. 3. The objection to the testimony of Atwood came entirely too late. The true rule upon this subject is, that a party against whom an interested witness is called, must make his objection as soon as the interest is discovered and he has an opportunity of doing it. Failing to do this, he will be considered as having waived the objection. He has his election, either to admit the testimony of an interested witness, or have it excluded. But he has no right to speculate upon the result-let it be received~ and if he finds [217] it to operate in his favour, waive his objection-if against him, then call upon the court to exclude it. The election-must be made as soon as he is apprised of the interest, and can make the objection. See 1 Greenl. Ev. § 421. and the cases there cited. In the present case, the interest of the witness was disclosed at the commencement of his examination ; and there is no claim that the defendant, at the time, laboured under any mistake in relation to the interest of the witness, which might have authorised the court, in the exercise of its discretion, to relax the operation of the rule to prevent injustice. 4. The general rule in relation to damages in an action of trover, is the value of the property, at the time of the conversion, with interest from that time. In this case, it appears, that the jury have included, in their verdict, not only the value of the property, but damages for detaining it, both before and subsequent to the attachment. Both, clearly, cannot be allowed. Had the property been in fact restored to the plaintiff, the proper damages would have been those occasioned by the taking and detention merely. But as there was no evidence of any such restoration of the property, we see not why the plaintiff is not entitled to a verdict for its value. To this might be added the interest from the time of the conversion, had the jury found when that was. But as that does not sufficiently appear, we think the plaintiff must be content to have judgment entered for the value of the property, or a new trial must be granted. And we do so advise the superior court. In this opinion the other Judges concurred. New trial to be granted nisi.