| Me. | May 15, 1842
The opinion of the Court was drawn up by
— The Judge instructed the jury that it was not incumbent on the plaintiff, when he put the cask of wine on board the vessel at Bath, to take from the master a bill of lading, or to advise the defendant by letter of what he had done. Whatever may be the usages of factors and general commercial agents in this respect, when they make shipment of goods to their principals, we are not satisfied that the plaintiff here failed in his duty. His agency was of a special character, consisting of power to do a single act, and the jury have found that he did all, which the terms used by the defendant in his directions required. But had it been otherwise, we do not perceive, how the exceptions to this part of the Judge’s charge can be sustained.
This action is to recover the consideration paid by the plaintiff for an article of merchandize, which he never received, but instead thereof, one entirely different and inferior in value, and which he did riot use. This the defendant admitted, saying, “it was not the wine he intended to send.” It was then the property of the defendant, and he was liable for the amount received for that which he never delivered, and this liability did not depend upon condition, that the wine actually sent was to be returned, for no such condition was alluded to, when the defendant acknowledged the mistake made by him. How then can the rights of the plaintiff, as involved in this action, depend upon- the performance of his
Exceptions are also taken, that the deposition of Jacob Stanwood, a witness, who had been in attendance at the term of the Court when the action was tried, and wishing to leave the State, was excluded. This deposition was taken under a commission issued by the Court with the express reservation, that it should be subject to the discretion of the Court. The right of a party to use depositions depends upon the statute and the rules of Court. If he bring himself within either, the Court have not the power to exclude them, for they arc bound equally with parties by both. Did either authorize the taking and using the deposition in question ? The cause certified is, that “ the deponent was about leaving the State.” Is this a cause for which the statute permits the use of a deposition ? By the Revised Statutes, one cause is, when {he deponent “ is about to go out of the State by sea or land, before the session of the Court,” Rev. St. c. 133, § 4. The language of the statute of 1821, c. 85, <§> 1, is, “ or be about to go out of the State and not to return in time for the trial.” The terms used in the Rev. Statutes, which are plain and unequivocal, will not embrace this deposition ; and as the new law is a revision of the old, we cannot doubt that the alteration was intended. We do not see, that a deposition of one about to go out of the State after the session of the Court commences, can be used with any more propriety, then if taken for a cause not mentioned in the statute.
The 19th rule of the District Court, for the Middle District provides, “ that depositions may be taken for the causes and in the manner by law prescribed in term time, as well as in vacation.” Here no authority additional to what the law contains, as to the cause, is given. Doubts may be entertained whether the Court had the power to admit this deposition, if objected to.
Exceptions overruled„