Campbell v. Thompson , 16 Me. 117 ( 1839 )

The opinion of the Court was drawn up by

Weston C. J.

The prosecution criminally of the witness, Lewis Barker, did not render him incompetent in this suit. That prosecution is not liable to be affected by the result of this action. The witness has no claim to be acquitted, because the justice may not be able to sustain bis justification here. Another objection to the witness, was based upon what was said at the trial, by the opening counsel for the plaintiff. What that statement was, does not appear. After the objections were overruled, and the witness admitted, he testified, that he was hired by the plaintiffs by the month, and was to be paid in proportion to his earnings. If it was believed by the counsel for the defendant, that this fact rendered the witness incompetent, he should have renewed his objection, and requested the judge to rule distinctly upon this point.

Objections of this sort, if not taken at the trial, are considered as waived, because if taken, they may often be obviated and removed. But if now open, no interest in the witness is proved. It does not appear, that his compensation was to depend upon the profits, the plaintiffs might ultimately realize in this branch of their business. Whether he earned more or less, would more obviously depend upon his diligence and fidelity. He did not undertake to be responsible for losses, to which the plaintiffs might be subjected by exposing their property to legal forfeiture. To exclude the witness, the interest should be shown affirmatively; and in our judgment it has not been proved, that the compensation of the witness is subject to be increased or diminished, by the judgment, which may be rendered in this action. It may further be matter of grave consideration, whether the results of a traffic, carried on in violation of law, can furnish the basis of an action for either against the other.

The jury have found, that the seizure of the plaintiffs’ ware by the defendant, was prior to any complaint being made to him on oath. We entertain no doubt it was a fact properly submitted to their consideration, although the seizure and the complaint were made on the same day. Proof of the priority of the seizure, does not contradict the complaint or warrant. Where criminal prosecutions originate upon complaint, one made under oath or affirmation is implied. This may fairly be understood as a part of the technical meaning of the term, whenever used in a statute, providing for the prosecution of an offence in that mode. By art. 1, sec. 5, of the constitution, no warrant can issue to seize either person or thing, unless upon complaint, supported by oath or affirmation. The right to seize depended entirely upon the statute, and it is authorized only upon complaint. In Crowell et al. v. McFaden, 8 Cranch, 94, the collector was justified in detaining a vessel, if in his judg-inent, there was an intention to evade the embargo laws. This course of proceeding was not there, as it is here, made to depend upon a previous complaint.

As to the point taken, that the action is brought in the wrong county, the statute of 21, James 1, c. 12, upon which it is founded, is not in force here. Pearce v. Atwood, 13 Mass. R. 324.

Judgment on the verdict.

With regard to the motion for a new trial, because the defendant could get no postponement on account of the absence of a witness, it rested in the discretion of the Judge, and does not present a ground for our interference.

Motion overruled.