Wight v. Stiles , 29 Me. 164 ( 1848 )

Tenney, J.

—The Judge before whom the action was tried allowed the plaintiffs to amend their writ, by striking out of the account annexed a part of the charges thereon, and also the credits, which by the bill were applied to reduce the charges, so stricken out, against the objection of the defendant. This was an amendment, which it was competent for the Court to authorize in the exercise of his discretion, and is not a subject of revision on exceptions.

By the statute of 1821, chap. 85, sect. 3, it was required that deponents, should be cautioned and sworn to testify the truth, the whole truth, and nothing but the truth, before they should give their testimony. Rev. Stat, chap. 133, sect. 15, contains a similar provision. The chapter of the statutes of 1821 referred to, sect. 6, provides that “all depositions taken out of the State, before any justice of the peace, public notary, or other person legally empowered to take depositions in the State or county, where such depositions shall be taken and certified, may be admitted as evidence in any civil action, or rejected at the discretion of the court.” It was decided by this Court in 1839, that a deposition taken out of the State, could be used under this provision, notwithstanding the oath was not administered to the deponent before giving his testimony. Blake v. Blossom, 15 Maine R. 394. In Rev. Stat. chap. 133, sect. 22, there is a provision similar to that in the statute of 1821, chap. 85, sect. 6, in very nearly the same language. The construction of the Court of the statute of 1821, by a well settled rule, is regarded as adopted by the Legislature, when they re-enacted the same provision in the Revised Statutes.

The defendant’s counsel requested the Court to instruct the jury, that to maintain the action, the plaintiffs must prove that the goods were either sold and delivered to the defendant, or if shipped to him, that he actually received them, and that they were sold to be paid for on demand ; that the contract was made with the plaintiffs as a partnership, and that they were such at the time of the sale of the goods. The Court thereupon instructed the jury, that if they believed the testimony in the deposition introduced, the case was perfectly made out. By this evidence the goods were purchased by the defendant of the plaintiffs as a partnership, known by the name of Wight, Reed & Company; that a bill of the goods was made out and delivered to the defendant, who fully examined the same, and made no objection thereto; and that the goods were delivered on board a vessel which he had designated, as the place where he requested them to be delivered. If this evidence was true it was sufficient to authorize a verdict for the plaintiffs.

It is objected, that the Court erred in restricting the jury to the consideration of testimony contained in the deposition. If there was conflicting evidence for the jury to weigh, there would have been some foundation for the .objection. But the case does not show that any other evidence was adduced; consequently from that alone the jury were required to judge concerning the facts.

Two items of the account were for goods delivered less than six months before the date oí the writ, and interest thereon, and from the bill it might have been inferred, that a credit of that time was given. The case discloses no ruling or instruction in reference to this part of the claim, and there was no ground for exceptions on that account.

Exceptions overruled.