29 Cal. 619 | Cal. | 1866
There was no error in admitting the depositions of Hanson, Bullis and Taylor. Section four hundred and twenty-eight of the Practice Act provides that testimony may be taken by deposition, where the witness is a party to the action. Hanson and Taylor were defendants to the action. The section also provides that the testimony may be taken by deposition when the witness resides out of the county in which his testimony is to be used. All of those witnesses resided out of the county in which the action was tried.
The Court found that Denos and Van Allen, for whose benefit the property in suit was deposited by the plaintiff with Taylor, released and discharged all claim upon the property, and directed Taylor to deliver the same to the plaintiff, and that on the 9th of February, and before the commencement of this action, the plaintiff presented said release and directions to Taylor, and demanded the delivery of the property, and that Taylor refused to deliver it to him. It is objected"to this demand that it was insufficient, because at that time there was in full force a judgment upon the recognizance executed by the plaintiff and Denos and Van Allen; and that at that time Taylor was liable to turn over the property to the People, according to the conditions of the instrument by which the property was placed in his hands. The recognizance was executed upon the order of the examining magistrate admitting Walter Skidmore to bail, and was in full force when the property was deposited with Taylor by the plaintiff. It was not intended that the property should stand in lieu of the recognizance,,even if such a proceeding was authorized by the statute ; nor were the People parties to the bailment; but, so far as they were concerned, it was entirely gratuitous; and for that reason, and for the further reason that such a transaction is not authorized by the statute regulating proceedings in criminal cases, the People had no claim on the property deposited, as was the case here, by one surety to indemnify his co-sureties.
When the demand was made of Taylor, the property was in his possession, and it would be useless to inquire what remedy, if any, the plaintiff would have possessed, if Taylor had appropriated the property to the satisfaction of the judgment on the recognizance; but the release and demand terminated the trust, leaving incumbent on the bailee only the duty to return to the bailor the property deposited.
Judgment affirmed.
Neither Mr. Chief Justice Currey nor Mr. Justice Sawyer expressed any. opinion.
