Salisbury v. Gourgas

Hubbard, J.

In regard to the admission of the declarations of the defendant at the time the case of Kingsbury against Salisbury was called on for trial, we are of opinion that, subject to the limitation stated by the judge, they were properly received. The defendant, who was an officer of the court, was •the attorney of record of the defendant. The case had been marked for trial and was called up in its order; and we think it was the duty of the defendant to state to the court why he did not defend the action, in justification of his own conduct as attorney of record in the suit. What he so stated was a fact of which we think he was entitled to the benefit, to show that it was not through carelessness and negligence on his part, at the time the cause was called on for trial, that the defendant was defaulted. But the declarations were not admitted by the presiding judge as evidence of the truth of the statement; and consequently if the cause had necessarily turned upon the proof of the truth of the facts stated by the defendant, and no other evidence establishing it had been offered by him, the plaintiff would have been entitled to a recovery against him. But we are not to presume that the jury overlooked or disregarded the directions of the judge, in the weight to be given to the evidence and the qualifications and limitations under which it was received. Here the declarations bore on a particular point, to wit, the denial of the charge of negligence in court, and to that point they were admissible, and the distinction attempted to be enforced between the declarations accompanying the transaction and those which were a recital of past transactions is not applicable. The whole statement constituted one transaction, so far as related to the simple charge of negligence in court.

The other point to which the ruling of the judge is objected to is, that in the original action of Kingsbury, assignee, against the present plaintiff, Salisbury, the assignee, in order to maintain his action, must have proved a demand and refusal.

In support of this objection, it has been argued that the sale by Torrey to Salisbury was not void either by our statutes of insolvency or at common law; and a reference is made to the case of the Oriental Bank v. Haskins, 3 Met. 332. But in answer to this position, it is sufficient to say that the learned judge instructed the jury that the present defendant must prove that the supposed sale was fraudulent, and that both Salisbury and Torrey were united in the fraud. The court in fact required that the defendant should prove that the present plaintiff could not have been benefitted by a trial of the suit with the assignee; herein adopting the opinion of the court in the case of Godefroy v. Jay, 7 Bing. 413, and 5 Moore & Payne, 284, which was cited by the plaintiff.

If the ruling of the judge was correct in requiring the defendant to prove that the plaintiff had not suffered by the default of his action, as was required in Godefroy v. Jay, then, if a demand and refusal were essential to be proved by the assignee in the case against Salisbury, to entitle him to a recovery in the action, the objection taken by the plaintiff’s counsel is sustained by the case of Nixon v. Jenkins, 2 H. B. 135. But we think that the presiding judge was correct in ruling that a demand and refusal constituted one mode, but not the only mode, of proving a conversion of property. That is a question dependent upon the nature of the taking and the mode of use. In the case of Nixon v. Jenkins, the court held that the action could not be maintained without a demand and refusal, because, when the sale was made, the parties were competent to contract, and there was no unlawful taking of the goods, though the transaction might be impeached by the assignees. But the law is well settled, that where there is an actual conversion, no demand is necessary. 2 Saund. 47 b. Lovell v. Martin, 4 Taunt. 801. And it is also clearly established, that a tortious taking is a conversion. Beckwith v. Elsey, Clayt. 112. Summersett v. Jarvis, 3 Brod. & Bing. 2. Woodbury v. Long, 8 Pick. 543. Thurston v. Blanchard, and Blanchard v. Coolidge, 22 Pick. 18, 151.

In the present case, the jury, by returning a verdict for the defendant, have in fact found that, in the transaction between Torrey and Salisbury, there was a conversion of the goods claimed by the assignee; and as the evidence is not reported, we cannot now say that such finding was wrong, and that there should have been no recovery without proof of a demand and refusal in the original action.

Whatever were the merits of the transaction between the original parties, or whether Salisbury might have made a successful defence, or not, in the suit of the assignee against him, if it had been tried on evidence which he might have produced, we cannot judge. But upon the facts, as disclosed in the present action, we see no evidence of negligence on the part of the defendant, or that the judge ruled too favorably for him on the several questions which arose in the case.

Exceptions overruled.