WIGHTMAN, plaintiff in error, vs. THE PEOPLE, defendants in error.

A prisoner under indictment can admit, as testimony to be considered by the jury, on the trial, depositions of non-resident witnesses, taken prior to the trial, or de bene esse, by his consent and in his presence.

Where the prisoner, both before and at the trial, consented that depositions so taken should be read in evidence on the trial; held that such consent was a waiver of more formal proof, and was binding upon the prisoner.

ER

RROR to the Court of General Sessions of the city and county of New York, to review a judgment of conviction for grand larceny.

By the Court, BRADY, J. The plaintiff in error was indicted for grand larceny, and convicted. On the trial the only exception taken was to the following question : "State whether the prisoner, Wightman, said anything to you as to being in company with David C. Hill at Cortland street on the night in question?" This inquiry was in rebuttal, the plaintiff in error having sworn that he was not at the ferry at the foot of Cortland street where the crime was alleged to have been committed; and it is conceded that if that be any evidence in the case imputing crime to him the exception is valueless. The evidence upon which the people mainly relied was that of David C. Hill and Richard S. Wilson, both of whom were examined prior to the trial, or de bene esse, and whose depositions were taken before Roswell W. Jerome, a notary public of this city. The examination of these witnesses was thus taken because they were not residents of this state. It was conducted in the presence of the plaintiff in error, and a cross-examination of one made on his behalf. It is insisted that these depositions could not be received as evidence, although it was agreed that they should be read at the trial, and notwithstanding that at the trial they were read by consent of the counsel of the plaintiff in error and, of course, in the presence of the latter. It is supposed that the ruling

Wightman v. The People.

in the case of The People v. Cancemi (18 N. Y., 128) has some bearing upon this question, but it has not. The objection there was to the constitutional organization of the court by which the prisoner was tried, and it was determined that there being but eleven jurors there was a failure of jurisdiction, which could not be supplied by the consent of the prisoner. He could not confer it. In the case of Maurer v. The People (43 N. Y., 1) it was held that instructions given to the jury by the presiding justice, in the absence of the prisoner, was error, although his counsel was present consenting; but it was upon the ground that the statute declares. that no person indicted for any felony can be tried unless he be personally present during such trial, and that "during such trial" embraced all the incidents of such a proceeding, including the charge of the justice to the jury and the instructions given them subsequently. The court had not the jurisdiction, therefore, which authorized the act complained of to be done. In the case of Cancemi it was said, however, that by consent objections to jurors might be waived; the court might be substituted for triors to dispose of challenges to jurors; secondary in place of primary evidence might be received; admissions of facts allowed, and in similar particulars as well as in relation to mere formal proceedings generally, consent would render valid what without it would be erroneous. And it was further suggested that a plea of guilty, whatever the grade or degree of crime, would be received and acted upon if it is made clearly to appear that the nature and effect of it are understood by the prisoner. All these concessions involve the waiver of rights, but do not conflict with positive statutory enactments, or prohibitions of the constitution. If the prisoner can admit facts, or secondary in place of primary evidence, he can admit the deposition of a witness taken on his consent as testimony to be considered by the jury. The depositions

Wightman v. The People.

herein were, however, taken before a notary by consent, in the presence of the prisoner, and at the trial read by his consent. There is no prohibition of such a proceeding. The legislature has provided for the taking of the evidence, de bene esse, of witnesses who do not reside in this state, (Laws 1844, p. 476, § 11; People v. Hadden, 3 Denio, 220,) and the examinations under consideration were no doubt initiated under its provisions, but the formal compliance with its details dispensed with as a matter of convenience, for all parties. There is nothing, therefore, in principle against this mode of procedure, and no authority against its use has been produced. The de bene esse examination of witnesses is often very essential to the administration of criminal justice, and when done without compliance with the details of the statute, but by consent of the prisoner, it should not be disregarded. He may insist upon his rights, or waive them in this respect, if not before, certainly at the trial. On an indictment for perjury, it appeared that the attorneys on both sides had agreed that the formal proof should be dispensed with and part of the prosecutor's case admitted, but Lord Abinger said: "I cannot allow any admission to be made on the part of the defendant, unless it is made at the trial by the defendant or his counsel." (R. v. Thornhill, 8 C. & P., 575.) In this case, as already shown, the consent was both before and at the trial, and doubtless in reference to the statute by which such a proceeding could have been taken. Whether, however, the statute was in contemplation or not, the consent was a waiver of more formal proof, and was binding upon the plaintiff in

error.

For these reasons the judgment should be affirmed.

Judgment affirmed.

[FIRST DEPARTMENT, GENERAL TERM at New York, November, 1873. Ingraham and Brady, Justices.]

CRANE vs. ONDERDONK and others.

Although an agent, for nonfeasance and omissions of duty, is not liable, except to his principal, the rule is otherwise when the act complained of is misfeasance. In all such cases, he is personally responsible, whether he did the wrong intentionally, or ignorantly by the authority of his principal; for the principal could not confer on him any authority to commit a tort upon the rights or property of another.

The plaintiff, at the solicitation of S., who was the owner of certain stock which he had transferred to V., to secure a debt, had agreed to furnish the money required to discharge such debt, and had made the necessary arrangements for an advance of the money to him by W. & S., and deposited with them securities for their protection. Held that this was a sufficient consideration for an agreement between him and V. by which the plaintiff was to pay him the amount of his claim against S., and that, upon such payment V. should assign the stook to the plaintiff, and transmit the certificates to some third person, who should deliver the same to the plaintiff on receiving from him payment of the amount due V.

V. transmitted such certificates to O., with the proper power of attorney, to transfer the stock to the plaintiff, and constituting O. his "agent and attorney in fact" to deliver such stock to the plaintiff on receiving payment of the amount due V. Subsequently, O. without the knowledge or consent of the other parties, caused a portion of such stock to be transferred to himself, and the remainder to F. The plaintiff tendered to O. the amount claimed by V., and requested a transfer of the stock to him. O. refused to accept the money and make the transfer, claiming that he and F. were the owers of the stock. Held that the plaintiff was the assignee of S.'s right of redemption, and that being ready to perform the duties devolving upon him, as such, he was pro hac vice, the owner, and possessed of all the rights of S. and entitled to enforce them.

Held, also, that O. having received the stock for the purpose of transferring it to such person as S. should designate, had, in causing the same to be transferred to himself and F. without the consent of S. or his appointee, transcended the power conferred upon him, and was guilty of misfeasance towards the owner of or person entitled to its possession.

Held, further, that O. being a wrongdoer, was not in a position either to dispute, or to interfere with, the plaintiff's rights. That he could not take advantage of any assumed defect in the plaintiff's title or interest; and that he having wrongfully converted the stock, and acted in contravention of his trust to V. and his quasi trust to S. and to the plaintiff whose interests he knew and disregarded, the plaintiff was entitled to relief against him; and that a judgment dismissing the complaint was erroneous.

A

PPEAL, by the plaintiff, from a judgment en

tered at a Special Term, dismissing the complaint.

Crane v. Onderdonk.

This action was tried at a Special Term of this court, in October, 1872, before Justice BARRETT. The defendants Onderdonk and Field are the only ones who answered or contested the action. No testimony was introduced by them on the trial.

The complaint alleges, and the plaintiff proved, the following among other facts: That in the month of February, 1871, one John Van Dyke, then residing at Wabasha, in the state of Minnesota, held 600 shares of the capital stock of the Ebervale Coal Company, of the par and actual value of $30,000, as collateral security for balance of an indebtedness to him from Augustus T. Stout of New York city of about $12,000, which stock Stout had a right to redeem; that Stout entered into an arrangement with the plaintiff Crane, by which he gave up to him this right to redeem said stock and take it up; that Crane arranged with the firm of Van Wickle & Stout, (composed of Van Wickle and G. Lee Stout,) for the money necessary to make such redemption; that Crane constituted the said Augustus T. Stout his agent to negotiate and arrange with Van Dyke for the redemption of the stock; that Crane, through his agent, Stout, arranged and agreed with Van Dyke, that he, Crane, should pay him the amount of his claim, and Van Dyke agreed that he would thereupon transfer said stock to Crane.

All the parties except Van Dyke resided in or near New York city. The negotiations for the above arrangement were carried on, and the agreement was made, by written correspondence with Van Dyke. Several letters relating to the transaction passed between himself and Stout and Onderdonk. Van Dyke's testimony was taken by commission, and he produced many of the letters written by or to him.

At the request of Crane's agent, Van Dyke agreed to, and did, transmit the certificates of stock to the defendant Onderdonk, for Crane, to be given to him on his