40 Vt. 611 | Vt. | 1868
The opinion of the court was delivered by
The evidence introduced by the plaintiff to prove what the defendant testified to, at the former trial, was admissible. It is a well settled rule of law that the declarations or admissions, oral or written, or both, of' a party to the record, are, as against such party, admissible in evidence. Greeuleaf’s Ev. §§ 171-201 and 203. Phillips’ Ev. 98, 389 and notes. The object of the party using such declarations or admissions against the party who made them, is only to ascertain that which he conceded against himself, yet, unless the whole is received and considered, the true meaning and import of the part which is evidence against him cannot be ascertained. It is, therefore, a rule of evidence that the whole declaration or admission of the party made atone time, shall be taken together, but the jury are at liberty to believe a portion and disbelieve the other, as they are of all evidence. The testimony of a witness given at a former trial may be proved from the Judge’s minutes properly'verified, or by the minutes which have been taken by any other person who will swear to their accuracy, or the former evidence may be proved by any person who will swear from his memory to its having been given. 5 Vt. 175; Marsh v. Jones, 21 Vt. 378; 39 Vt. 469. In the case at bar the minutes of the defendant’s testimony were intro- ' duced- in connection with legal proof of • their accuracy, that they
II. The remaining question relates to the charge of the court as to what would constitute a conversion of the property. The plaintiff ’s evidence tended to prove, among other things, that the defendant found, took and disposed of the watch, or that some other person found and disposed of the same, with an understanding that the defendant was to share in its avails. That part of the charge to which the defendant excepts, is as follows, “ or if it was disposed of by somebody else upon an understanding with the defendant that he, the defendant, was to share in the avails, and he did so,” he would be liable in this action. It is clear that the facts detailed in the charge above quoted constitute a conversion of the watch. 2 Green. Ev. sec. 642. Tinker v. Morrill et al., 39 Vt. 477. 6 Bac. Abr. 677. Hill, on Torts. 245. It is claimed by the defendant’s counsel that from this part of the-charge, the jury would understand that it was not necessary that the defendant by himself or through another should have had anything whatever to do with the watch, but only that he should have had some expectation of some benefit from the watch and have received it. But the language of the charge does not warrant the defendant’s constrzzction of it. If the jury found the watch was disposed of by somebody else upon an undet standing with the defendant that he was to share in the avails, they must also have found that the understanding between the person who disposed of the watch and the defendant, was entered into befoz’e or at the time the watch was disposed of, therefore the understanding related to the disposition of the watch as well as to the sharing in the avails.
The judgment of the county court is affirmed.