Thompson v. Stewart , 3 Conn. 171 ( 1819 )

Hosmer, Ch. J.

The prescriptions of law concerning depositions, should be strictly required in respect of every thing essential. This principle, however, is inapplicable to matters of mere form, which cannot affect the interests of justice. The objections made to the admission of the deposition by Evers, fall within this description. The direction of it, though not literally correct, was perfectly intelligible ; and no doubt exists that it was intended to be used at the superior court in the case of Thompson v. Stewart. The letters “ J. P.” subjoined to the name of the person who took the deposition, when coupled with the accompanying certificate of the-clérk, most obviously denote his official capacity ; and so evidently were intended for the words justice of the peace, that no person would hesitate to decypher them by this expression. Although it is usual to assign a reason for the caption, it is not made necessary by the law relative to affidavits; and within my knowledge, the omission to do it has frequently been the subject of an objection, and as frequently has been over-ruled. .,-^,The contents of the deposition constitute no objection to its admissibility. The witness swore, positively to fact, and not to hearsay or opinion. If, from the nature of the subject, he could not have had knowledge of the matter to which he testified, this constitutes no exception to the admissibility of his testimony. It is a fair presumption that the jury placed no reliance upon it. In ray judgment, the objections to the deposition were correctly over-ruled. ,

The decree of vice-admiralty, admitted by the judge, purported to be under the seal of the court, and to be certified by the deputy-registrar. It is contended by the defendant; that the record was not duly authenticated. I aim of a different opinion. The decisions relative to the adjudications of foreign municipal courts, must be laid out of the question. The seals of such courts are never judicially recognized, but must be proved. Anon. 9 Mod. 66. Henry v. Adey, 3 East, 221. Collins v. Ld. Viscount Mathew, 5 East, 473. The cases of Delafield v. Hand, 3 Johns. Rep. 310. and Church v. Hubbart, 2 Crunch. 187. are also of this description.

By common consent and general usage, the seal of a court of admiralty has been considered as sufficiently authenticating its records. No objection has prevailed against the reception of the decree of a court acting on the-law of nations, when established by its seal. The seal is deemed to be evidence of itself, because such courts are considered as courts of the whole civilized world, and every person interested as a party. Green v. Waller, 2 Ld. Ray. 893. Peake’s Ev. 74. Swift’s Ev. 7. The Maria, 1 Rob. Adm. Rep. 296. The case of Yeaton v. Fry, 5 Cranch, 335. is not adverse to this proposition. The seal of the vice-admiralty court, was not proved by extrinsic evidence. No stress could have been put on the testimony of a witness, that he had once received from his proctor a copy of the proceedings in the said court, under a similar seal, or that similar papers had, by insurers and others, been considered authentic. Such evidence was too feeble to establish the fact for which it was adduced, on any reasonable foundation. The seal, then, proved its own authenticity. “ Assuming the seal to be genuine,” said Gould J. in Griswold v. Pitcairne. 2 Conn. Rep. 91. “ the fact, (that it was affixed by a proper officer,) must of course be presumed, unless the contrary is shown. For any higher evidence of the fact, appearing upon the face of the record, than the seal itself imports, is impossible; and to require extrinsic evidence of it, would be to subvert the rule itself, that a national seal is the highest proof of authenticity.” These remarks are applicable to the seal of a court bf admiralty ; and for this obvious reason, because, equally with a national seal, it proves itself. As to Gardere v. Col. Ins. Co. 7 Johns. Rep. 519. it professedly Waives the question before the court. Thd seal, in that case, had been proved by extrinsic testimony. “ It is therefore,” said Yates J., who delivered the opinion of the court, “ unnecessary to notice the distinction urged in the argument, between foreign municipal tribunals, and courts of admiralty.”

The décision of the judge, that the admiralty documents, in connexion with the facts proved, were evidence not only of the restoration of the vessel and cargo, but proof, prima facie, of property in Elbers, is unobjectionable. The cargo was originally consigned to Stewart, and he assumed to act, and did act, as the agent of Elbers. Under the influence of this relation, he gave bonds for the vessel and cargo, and received them into his custody. The vessel he sent to Elbers, as the owner; and having disposed of the cargó, his conduct by the same person was ratified and approved. These and other facts of a similar tendency, appearing in the case, amount to a recognition, that the property belonged to Elbers, and that the defendant held it in the character of agent.

It has been contended, that no evidence should have been admitted, until the testimony of Stewart had first been received. This assertion is gratuitous. Other evidence than that of the defendant, the plaintiff may adduce to show his indebtedness ; and, although not required, the garnishee has the privilege of testifying. Dewit v. Baldwin, 1 Root 138. Vaughn v. Sherwood, 1 Root 507. But the order in which the testimony shall be received, is prescribed by no law. It must be regulated by the judge, to effectuate, in the best manner possible, the attainment of justice.

It is agreed, that the defendant disposed of the cargo committed to his charge, for bills drawn on persons in England, by John Dempster and William Banks. This transaction was afterwards approved by Elbers ; et omnis ratihabitio retrotrahitur, et mandato equiparatur. _ Without the knowledge or assent of Elbers, the defendant disposed of the bills for a cargo of flour, with a view, (as he says,) to promote the interest of his principal, and shipped it to one. Jllman; the avails of which cargo have never been realized. Subsequent to this, on the 31 st of May, 1815, the vessel and cargo of Elbers, were finally acquitted. On the 10th oiNov ember, 1815, the plaintiff instituted his action, by foreign attachment, and left a copy with Stewart, as the debtor of Elbers. The cargo had been delivered to Stewart, to indemnify him as the bondsman of El-bers in the court of vice-admiralty ; and neither notice nor knowledge of the acquittal at Bermuda, had been received by him, until sometime posterior to the attachment. The jury were instructed, that the copy left with Stewart, notwithstanding the above want of notice or knowledge, secured to the at* taching creditor, the avails of the caigo. The judge likewise submitted to the jury, whether, in the preceding transaction, the defendant had acted as a faithful agent within the powers vested in him; and the verdict, by necessary implication, finds that he had not. To the charge, on the part of the defend-ánt, there can exist no legal objection. Had the lien of Stewart remained at the moment when the copy was left with him, I should consider the attachment to be valid. He was accountable for the property entrusted to his agency. The lien he had upon it, was merely an incumbrance, which suspended the remedy of Elbers, and eventually might defeat his claim; but in the mean time, Stewart was his debtor. It did not render his liability contingent, or operate as a condition precedent to any indebtedness or accountability. The lien, however, was dissolved, previous to the attachment; and the only assignable reason why Stewart was not immediately obliged to account with his principal, was, that he had not received information of the preceding fact. Until he had knowledge that his lien had -terminated, he was not bound to relinquish his hold on the property. This, however, did not affect his indebtedness to Elbers, although it suspended the remedy of Elbers against him.

The verdict shows, that Stewart did not act as a faithful agent in the disposal of the bills ; and this fact establishes his responsibility for their value. In the flour purchased, Elbers had no interest; for, by the transfer of the bills, he had lost all right to their avails. His property in them was annihilated, and the flour belonged, exclusively, to Stewart. It would have been correct for the judge to have charged the jury, that by the disposal of the bills, without the assent of Elbers, the defendant had transcended his authority, and was responsible for their amount. This is the law on the facts admitted. Stewart had no authority to sell the bills ; nor could his intention to promote the interest of his principal, clothe him with legal ppwer, An agent, constituted for a particular purpose, and under a power limited and circumscribed, cannot bind his principal, by any act in which he exceeds his authority. It would involve this principle, that one person may bind another against his consent. Fenn v. Harrison, 3 Term Rep. 757. Wiltshire v. Sims, 1 Campb. Rep. 258. The point is too clear for argument. It is no less extravagant to assert, that an agent may enlarge his authority, than that he can originate it.

The enquiry relative to the bills transferred by the defendant, so far as it has been pursued, is of no importance. Whether the defendant, by reason of the non-payment of any of jjas become responsible for them, or is delivered from a]l responsibility, by reason of the laches of the holders, can be of no avail, as to any question arising on the record. If, from any facts, or series of facts, had appeared, that the bills were of less value than their nominal amount, it would have presented an interesting question. But as nothing of this nature has been pretended, any opinion expressed would be merely obiter, and entitled to no consideration.

The protested bills, purchased of Minium & Champlin and of Davis, infer no liability on Elbers. In absence of proof, it is legally presumed, that he had funds in the hand sof the drawees, and that, by the omission of due notice, he was exonerated from any possible indebtedness, by reason of that transaction.

Thus far there exists no ground for granting a new trial. There remains one point to be considered, rn which, in my judgment, the charge to the jury is exceptionable.

The jury were instructed, that the plaintiff was entitled to interest from the time when the defendant employed the funds of Elbers in the purchase of flour. Amidst the multiplicity of matter before the court, it probably was not suggested, and did not occur, that these funds were deposited in the hands of Stewart, to indemnify him from his bond given in the court of admiralty; and that his lien on the property had not terminated, when the bills were transferred for the flour. Elbers had, at that time, no right to demand them, or their avails. Until after the decree restoring the property, the lien of Stewart was not dissolved; nor was he under any legal obligation to account with his principal. Had it become the duty of the defendant to pay the money to his principal; if, through wrong or neglect, he had detained it; it would be reasonable, that interest for the detention should be allowed. Mitchell v. Reynolds, 1 P. Wms. 196. Tew v. Earl of Winterton, 1 Ves. jun. 452. Newton v. Bennett, 1 Bro. Ch. Ca. 359. Codd v. Woden, 3 Bro. Ch. Ca. 73. This principle was recognized in Selleck v. French, 1 Conn. Rep. 32. “ Where one has received money for the use of another, and it was his duty to pay it over, interest is recoverable for the time of the delay ; but, if the holder of money for another, is guilty of no neglect or delay, he will not be chargeable with Ínteres^.”

It Would be equally just, that the defendant should pay interest, if he'had received interest, or had made a private advantage to himself out of the property. Ratcliffe v. Graves, 1 Vern. Ch. Rep. 197. Lee v. Lee, 2 Vern. Ch. Rep. 548. Piety v. Stace, 4 Ves. 620. Fox v. Wilcocks, 1 Binn. 199. But where an agent, with the consent of his principal, retains money for his indemnity, no interest is payable. Com. Dig. tit. Chancery, 3 S. 4. Chan. Rep. 264.

It has been contended, that inasmuch as the defendant sold the bills in violation of his trust, he ought to pay interest; but this consequence by no means follows. Undoubtedly, he is responsible for the property disposed of; and, so far as concerns the question of interest, ought to be considered as placing himself in the same condition as if he had received the money for the bills. If such had been the fact, the defendant would have had a lien on it; and while that lien subsisted, it would have been no part of his duty to have paid it to Elbers.

For the misdirection on the point regarding interest, I would advise a new trial.

The pl^er judges were of the same opinion.

New trial to be granted.