Blackie v. Cooney

By the Court, Whitman, J.: In this action for the recovery of personal property, tried before the court, judgment was had, under the statute, for the property or its value in default of restitution; and legal interest was allowed from date of taking. It is objected that the court erred in finding the value of the property without proof. The value was alleged in the complaint as five hundred and seventy dollars, United States gold coin, to which there was this denial on part of the defendant: “ He denies that the property in the complaint described is or was, on the said 22d day of June, 1870, of the value of five hundred and seventy dollars, U. S. gold coin.” Under this, there.can be no doubt that the court, in the absence of further proof, could, upon the pleadings, [46] have found, for any sum less than five hundred and seventy dollars. If by finding the exact amount, error occurs, it is of that infinitesimal character which can do no injury. Again, it is said that interest should not have been allowed. In actions similar to the present, upon the question of rule of damages, it is held that legal interest may always be given as damages, without proof of special damage. Beals v. Guernsey, 8 J. R. 446; Hyde v. Stone, 7 Wend. 354; Burrill v. Hopkins, 4 Cow. 53; Devereux v. Burgmin, 11 Iredell, 490; McDonnell v. North, 47 Barb. 530; Ripley v. Davis, 15 Mich. 75; Robinson v. Burrows, 48 Me. 186; Oriatt v. Pond, 29 Conn. 479; Derby v. Gallup, 5 Minn. 119. Certain depositions were admitted against the objections of appellant, as follows : “That the said depositions are neither of them authenticated by proper certificates, showing that they were taken before the proper officer authorized to take the same, or that the signature of the person purporting to have taken the same is genuine.” “ That the certificates to the said depositions do not show that said depositions, or either of them, were corrected by the said witnesses, or either of them, or that they had an opportunity to do so, before signing the same; that the words, ‘ the same having-been previously read over to him by me,’ were interlined in the certificate to the deposition of David Hemphill, and the words ‘ and that I read over the same to him before he signed the same,’ in the certificate to the deposition of Andrew Blackie, were interlined therein in a different colored ink from that with which the balance of said certificates and the said depositions were written, and that no explanation of such interlineation was contained in said certificates, or otherwise shown.” These depositions were taken under this stipulation: “In the above cause it is hereby stipulated and agreed that the depositions of Andrew Blackie and David Hemphill, two of the plaintiffs in the above cause, may be taken before L. P. Fisher, a justice of the peace at Woodstock, in the county of Carleton, in the province of New Brunswick * '* * ” This stipulation certainly concedes that there is a person [47] named L. P. Eisher, occupying the official station of justice of the peace at the place named; and was an agreement, under the statute, upon that person to take the deposition. This is the statute quoted so f^r. as is necessary for illustration. “ Sec. 412. The deposition of a witness out of this State shall be taken upon commission issued from the court, under the seal of the court, upon an order of the judge or court, on the application of either party, upon five days’ previous notice to the other. It shall be issued to a person agreed upon by the parties, or if they do not agree, to any judge or justice of'the peace selected by the officer granting the commission, or to a commissioner appointed by the Governor of this State to take affidavits and depositions in other States or territories. ” “ Sec. 414. The commission shall authorize the commissioner to administer an oath to the witness, and to take his deposition in answer to interrogatories, or when the examination.is to be without interrogatories in respect to the question in dispute, and to certify the deposition to the court, in a sealed envelopé directed to the clerk or other person designed or agreed upon, and forwarded to him by mail or other usual channel of conveyance. ” Stats. 1869, p. 260. Referring to the citation it’will be seen that no method of identification is provided; that any person, whether judge, justice of the peace, or (Commissioner is, for the nonce, the officer and commissioner o'f the court whence the commission issues. One thus certifying himself must, therefore, be deemed to have shown prima facie that he is the person designated. It is not suggested here that the deposition was not in fact taken by the party named; but that such taking is not proven under the following certificate, substantially the same in each deposition: “ The execution of the commission to examine Andrew Blackie and David Hemphill, directed to me, issued out of said court on the eighth day of the month of May, will appear by the papers hereto annexed. Given under my hand and seal, in town of Woodstock, county of [48] Carleton, province of New Brunswick, dominion of Canada, this twenty-ninth day of May, A. D. 1871. [seal'.] ' LEWIS P. EISHER, J. P., C. Go: X X • * * X- X X On the twenty-ninth day of May, in the year of our Lord one thousand eight hundred and seventy-one, at the town of Woodstock, in the county of Carleton, province of New Brunswick, dominion of Canada, came David Hemphill, the aforesaid witness, and deponent, who being by me first carefully examined and sworn to testify the truth, and answer each and every of the interrogatories and cross-interrogatories annexed to the commission hereto affixed, gave the several answers above and within written, which were reduced to writing by me, and by him subscribed in my presence, pursuant to the authority contained in said commission, the same having been previously read over to him by me. All which I hereby certify. L. P. FISHER, Mayor of said town of Woodstock, county of Carleton, and a justice of the peace in and for the same.” In the view taken of the statute, this certificate is prima facie sufficient; so the objection cannot stand. Sargeant v. Collins, 3 Nev. 266; Ruggles v. Bucknor, 1 Paine, C. C. 359. The interlineations were of nothing material, as the statute does not prescribe any form of certificate as to depositions taken out of the State, nor any matter to be specially set forth therein, save as it is to be gathered from section 414, before quoted ; which would be satisfied by the certificate of the commissioner that he had administered an oath to the witness, and taken his deposition in answer to the interrogatories; or when the examination was without interrogatories, in respect to the question in dispute. Again, it is not pretended that the interlineations were not in the handwriting of the remainder of the certificates; nor that the depositions were not properly returned to the clerk of the court, and by him securely kept until opened by counsel in [49] his presence, as by statute provided; so there would seem to be no more call for explanation upon one party than the other; the paper having been continually, except when absolutely in transitu, in keeping of the court’s own officer. No harm followed from the exclusion of the execution; in view of the proofs previously made, it was immaterial. That the evidence is insufficient to warrant the judgment can not be maintained, as there is substantial testimony for its support. In fact, the case seems to have been fairly tried and properly decided, both in fact and law. The order and judgment appealed from are affirmed. Garber, J., did not participate in the foregoing decision.