Phelps v. Gilchrist

30 N.H. 171

• Court: Superior Court of New Hampshire
• Decided: July 15, 1855
• Status: Published

Opinion

Woods, C. J.

No valid objection appears against the competency of Little to testify in the case. He has no interest in the result of the case, nor any interest in the subject matter of his own testimony, beyond what any agent called to make a statement of his own acts, in the discharge of his agency, has. And that is merely an interest to show that he has acted faithfully and with prudence under it. This has never been holden to disqualify him as a witness, or to deprive any party of the benefit of his knowledge on matters which, as falling within the scope of his agency, may well be supposed to be better known to him than to strangers. Starkie Ev. 767.

The demand made first in the order of time mentioned in the case, having been the subject of a previous adjudication, may be laid out of the case. 8 Foster’s Rep. 266.

On the 9th of July, 1852, a demand was made, which appears not to have been open to the objections which prevailed against the former, and which appears to have been sufficient. The terms of the bailment were, that the chattels were to be delivered to the plaintiff on demand. That was the only safe and proper form for the officer to adopt, because he was answerable for the safe keeping of the property, in certain contingencies, to both parties to the action in which he had attached it. If the plaintiff prevailed, he was bound to apply the property, if required, to the payment of the debts, and if the defendant prevailed, he was entitled to look to the officer for a restoration of his goods; for there is no evidence in the case that they have, since the attachment, gone back into his possession.

We say that the demand, on July 9th, was sufficient. It was in conformity with the general requisitions of a demand in such cases, as laid down in the former case referred to. It was attended with a full explanation of the character and capacity in which the witness acted in making it, and with an exhibition of the receipt. It was also a personal demand.

It was, moreover, followed by such disclosures, on the part of the defendant, as tended to show a conversion of the property by him. He said that the property was partly disposed of, and could not be produced. This seems to be a conversion of at least a part of it. How much of it was so disposed of, is a question with regard to which very liberal presumptions, in odio spoliatoris, are to be*formed against the defendant, who does not offer to show the truth.

But if this alone would not authorize a jury to find for the whole sum in damages, the omission to comply with the demand made at that time, would. For the right of the officer was to receive the whole property, in order that he might be in a position to account for it to the parties concerned. There must, therefore, be

Judgment on the verdict.