Bemis v. Morrill

The opinion of the court was delivered by Aldis, J. To maintain trover the plaintiff must show his ownership of the chattel alleged to have been converted. In this case the defendant contends, that the plaintiff’s title to the heifer fails because the sale was not perfected by delivery. [155] As between the parties to a sale of a .chattel the title may pass without delivery. If all the other elements of a valid sale exist, viz : the mutual agreement of competent parties upon a legal consideration for a sale ; and if nothing more is to be done by them to complete their contract, then the title will pass without delivery. It is only when the rights of other persons are affected that delivery becomes essential. In this case the jury must have found, that by the contract between the plaintiff and defendant the heifer was sold to the plaintiff by the defendant; that the defendant received the price ; that nothing more was to be done between the parties in order to change the title, and that the keeping of the animal by the defendant till foddering time was not a condition that affected the title, but only an obligation upon the defendant which the plaintiff might insist upon, or might waive at any time at his pleasure. The plaintiff’s title to the heifer was therefore established. As to the rejection of the deposition. It was taken to be used in two cases, the one at bar, and the case of Morrill v. Bemis. It would therefore by the rules of court be filed in both eases and subject to the control and inspection of the parties and counsel in both, — be used in both. If anything in the deposition was admissible in one case and not admissible in the other, the inadmissible portions would have to be erased so as not to be legible before it could go to the jury. Such a deposition as-this, taken without consent to be used in dif-5 ferent cases, we have never seen before.! We think it is the first appearance of the practice in our courts. It is obviously against the intent of the statute, which intends that the witness shall be sworn in each case, and that a separate deposition, certificate and caption, shall be made for each. It is a bad precedent, leading to looseness and irregularity of practice. If we adopt it where the parties in the different suits are the same, why not in different suits where the subject matter is the same and the parties are different? Upon this ground it was properly rejected. The other ground of objection to it was that it was taken in term time, when by the custom of the court parties in court and the attornies, as ofiieers of the court, may not be required to attend the [156] taking of depositions. This custom is not a strict rule of law, binding in all cases, as if enacted by statute. On the contrary it is a rule of the courts established for convenience. It may be dispensed with if a reasonable necessity for disregarding it exists. Perhaps the most proper course is, when such necessity exists, to apply to the court for leave in the case to take the deposition; and' upon due notice and sufficient cause shown the court will grant the application. Here no such leave was granted; the plaintiff’s counsel objected, and appeared under protest. By such appearance he did not waive his right to object to the deposition. On the trial when the deposition was offered he objected to its admission. It was then for the court to consider the circumstances under which it was taken, and under which the plaintiff appeared to cross-examine, and to determine whether the objection was reasonable. This was a matter strictly within the discretion of the county court. They rejected the deposition, and their decision we cannot revise. Judgment affirmed.