18 Cal. 315 | Cal. | 1861
Field, C. J. concurring.
The complaint in this case charges the defendants Scannell and Crowther, with the seizure and conversion of certain goods and chattels belonging to the plaintiff and one McCombe. McCombe, refusing to unite with the plaintiff in bringing the suit, was made a defendant, in accordance with the fourteenth section of the Practice Act. The trespass is charged to have been committed willfully and with malicious motives, and various matters are set forth in the complaint as grounds of' special relief. The complaint states, among other things, that the plaintiff and McCombe were merchants, and that the property taken constituted their stock in trade; that
On the trial of the case, the plaintiff, in proving the damages, was allowed by the Court to give in evidence the retail value of the goods; the defendants objecting in general terms to the introduction of this evidence. The action of the Court in that respect is assigned as error; but the plaintiff claims that if an error was committed,'the defendants are not in a situation to take advantage of it. He contends that a general objection is not sufficient to support the assignment, and that in all c.ases a specification of the grounds of an objection is necessary to render it effectual. The defendants claim that the evidence was not admissible for any purpose, and that a statement of the grounds upon which it was objected to would have been superfluous, and was not therefore required. This view is based upon what appears to us to be the proper rule in such cases, and we see no good result to be accomplished by holding parties to a more strict and rigid practice in these matters. The Practice Act provides that where an objection is made and an exception taken, the point of the exception shall be stated; but it does not follow that a general objection to the admission of incompetent evidence is not sufficient. On the contrary, the incompetency of the evidence sufficiently indicates the ground of the objection, and the point of the exception is as clearly perceptible as if it were expressed in words. We do not understand the provision referred to as requiring anything more than that the point of the exception shall be so stated as to be apparent to the Court; and whether it be stated in express terms or appear by necessary implication from the nature and subject matter of the objection is immaterial. There is no doubt that a general objection to the introduction of evidence will not be available, unless the evidence objected to is absolutely incompetent; but where that is the case, we do not see upon what principle such an objection could be held to be insufficient. Nothing more is required to put the adverse party upon notice that the competency of the evidence is called in
The defendants are sued as joint trespassers, and the same circumstances of aggravation are charged against both. Their defense is, that the property belonged to one Rosanna Gilbert, and that they took it under an attachment against her in favor of Orowther; Scannell being the officer who executed the writ. It is admitted that the evidence complained of would not have been competent, if the case had been free from circumstances entitling the
We are of opinion that the instruction asked in regard to the re-caption of the goods should have been given. The recapture by McCombe inured to the benefit of the plaintiff to the extent of his interest, and damages for the value should not have been allowed.
Judgment reversed and cause remanded for a new trial.