Morrill v. Moulton , 40 Vt. 242 ( 1867 )

The opinion of the court was delivered by

Steele, J.

I. By the verdict and exceptions we are required to decide the question of conversion upon the assumption, first, that the fleece in dispute, which the defendant sold, was the property of the plaintiff; secondly, that the sale was made without any authority from the plaintiff; thirdly, that the sale was made with a conviction on the part of the defendant that the wool was higjawn, and a further conviction that the plaintiff had abandoned all claim to it.

A sale made under such circumstances, though not as morally censurable as one made with a corrupt design, was still an actual conversion, by the defendant to his own use, of the plaintiff’s property, without right. That being the case, it is immaterial, in trover, whether the original taking was lawful or unlawful; whether the purpose of the conversion was honest or corrupt; whether the suit was preceded by a demand and refusal or commenced without any demand of the defendant. A demand of the fleece by the plaintiff, and a refusal to restore it by the defendant, would have been evidence of a conversion. The sale of it. by the defendant was conversion itself. The ruling of the court on this subject was, therefore, correct. ,

II. The objection to the deposition raises the question whether the adverse party notified to be present at the taking of the deposition, has two hours after the time named in the citation within which to make his appearance. The statute limits the right of the magistrate to proceed to the condition of his being present within two hours of the appointed time. The evident object of this provision is to fix some time after which the adverse party may safely leave if the magistrate does not appear. The statute makes no provision requiring the magistrate to delay for the party. There may be good reasons to urge why it should, but reasoning as to what the statute ought to be has very little force unless the language of the statute is doubtful or susceptible of different constructions.

The deposition was properly received.

Judgment affirmed.