Barron v. Pettes

18 Vt. 385 | Vt. | 1846

The opinion of the court was delivered by

Redfield, J.

The first question in the case is in regard to the admission of the deposition of Roswell Marsh. Saying nothing of other objections to this deposition, the cause of taking, certified by the magistrate, is, “ The deponent being (instead of living) more than thirty miles from the place of trial.” This has always been held fatal; and the defect cannot be supplied by conjecture, or intendment, nor by the body of the deposition; but the fact of residence must be certified by the magistrate. “Being” and “ living,” are words of very different import, with reference to this subject.

But we do not think, that this deposition is at all important to the determination of the case. Since the decision by this court, in Danforth v. Reynolds, 1 Vt. 259, that the authority of the magistrate to take depositions and the fact that a deposition was taken according to the law of the place of taking might be determined by the court upon their own knowledge, or upon the introduction of parol evidence upon the point, or in any other way, which satisfies the court, the practice has been to consider the act of the magistrate as prima facie evidence, both of his official character and of the regularity of the proceedings. This is no more, than we are compelled to do in regard, to many documents from other States, when produced in our courts. A judgment rendered in a foreign State is always presumed to have been rendered according to the law of that State; and we also presume, that the judges of the court were properly appointed and sworn. Similar presumptions are constantly made, in order to receive and act upon the judicial proceedings of the other American States. If a different course were pursued, it would lead to inextricable confusion ; and questions of this kind would be differently decided, according to the different degrees of knowledge of different judges, of the laws of other states.

The certificate of the oath varies only in mere matter of form from that prescribed by the statute. We do not think it important, whether the deponent is sworn before he gives his evidence, as is the practice in chancery, and in many of the States as to all depositions, or whether he swears to the deposition after it is made up by the magistrate.

The evidence of a demand of the money of the defendant’s deputy appears to be ample. The plaintiff’s agent, in fact, made the demand; and the deputy did not doubt his agency, but, on the contrary, expressly recognized it, and promised to pay the money the next week, and so wrote to the plaintiff. We think, that the charge of the court, upon this point, was correct, that, after this, “it was too late for the defendant to object to the sufficiency of the demand,” upon the ground that he had no assurance of the agent’s authority.

When a demand is made of a person, he may remain'silent; and that will not amount to a waiver of any objection, which he may be able to show to the demand at the trial. But if he assign any excuse, that will usually be considered a waiver of any other objections, — which might have been obviated, if they had been insisted upon. But in this case the deputy expressly waived all objections by promising to pay. The charge, we think, puts the case upon this ground. If what was said by the judge as to the defendant’s being liable to pay the money and fifteen per cent, interest, if, when demanded, he refused to pay it, without assigning a good reason, had been all that was said by the court, it might have been calculated to mislead the jury ; but, taken in connection with what was said before and the testimony in the case, it could have no such effect, although, perhaps, not well expressed. It was rather stating the law in general, than with reference to this particular case ; for in this case there was no evidence tending to show, that any excuse was made by the deputy.

Judgment affirmed.

Note by Red field, J. After the opinion of the. court was delivered, a motion was made by the counsel for the plaintiff, that the clerk should be directed to add interest to the judgment of the county court at the rate of fifteen per cent. I expressed myself, at the time, averse to the allowance of any such rate of interest upon judgments of the county court, where execution had been stayed by order of that court. But the other members of the court, although hesitating at first, finally made an order, that the clerk should cast interest at the rate of fifteen per cent, on so much of the judgment below, as was for money detained, and at the rate of six per cent. upon the residue of the judgment. Accordingly a formal order was made to that effect, which, for conformity, I consented to sign, and which, I suppose, may be esteemed a decision of this court; but, being made without argument, and without consultation, so far as I know, I cannot but regret, that it was ever made, arid trust that it will not be followed as a precedent. It appears to me, that the statute settles this matter, by providing that “ interest shall be added to the judgment of the county court ” in general terms ; the law fixes the rate at six per cent.; and the effect is the same, as if both statutes had formed but one, as they were both passed at the same session. The absurdity of a contrary decision is made sufficiently apparent by the necessity, which was felt in this case, of going back of the judgment in the county court and casting interest at different rates upon different portions of the entire judgment. I can only say, that I wholly dissent from this portion of the decision.