repeated what the witness had said. Here we are told that the plaintiff only said, "I submit that there is no case against me," which is nothing like an adoption of all that the witnesses have said. And even at the trial at the assizes or sessions of the same matter, which is the subject of the charge, no part of the depositions is ever given in evidence, except the party's own statement, or something else that he adopts, and in effect makes part of his statement. --- Platt. Here are certain statements made in the hearing of the plaintiff to which he has the opportunity of making an answer, and to which he does make an answer. Now, whenever or wherever a statement is made to a party, and he makes an answer to it, both the statement made in his presence and his answer are receivable in evidence. What the effect of the evidence may be when given may much depend on what the party himself says. Lord DENMAN, C. J.-In criminal cases, we never receive more of the depositions than what is stated by the prisoner; but here, it appears, that all that is contained in the depositions was said in the presence of the plaintiff, and he is called upon to answer it, and he makes an answer to it. I think that the depositions must be read, and the answer the plaintiff made to them; but the depositions are not any evidence of the truth of that which is stated in them. Mr. Wells, the clerk of the Reading borough magistrates, proved that he took the depositions against the plaintiff on the charge of embezzlement, and that the plaintiff and his solicitor were both present, and heard all that was said, and that the former, when asked if he had any thing to say in answer to the charge, said, "I submit that there is no case against me;" which statement was then taken down by him, (Mr. Wells), and signed by the plaintiff. 1844. JONES v. MORRELL. 1844. JONES v. MORRELL. The depositions, and the above-mentioned statement of the plaintiff, were read. It was proved, by the superintendent of police at Reading, that, at the time of the examination before the mayor of Reading, he delivered to the governor of the borough gaol the sovereign he received from the officer Holland; but no further evidence was given respecting it. Lord DENMAN, C. J., (in summing up).—With respect to the taking of the sovereign, I think that that must be considered as the act of the defendant, as the officer would not have taken it from the box but for the charge made by the defendant, and it was taken by the officer in the defendant's presence. The plaintiff is therefore, I think, entitled to a verdict for that, and for no more than that, if you think that the defendant has made out his pleas of justification; it being incumbent on the defendant, on those pleas, to satisfy you that the plaintiff, while in his service, embezzled money he received on account of the defendant. This brings us to the main question in the cause, which is, whether the defendant has proved to your satisfaction, that the plaintiff was guilty of embezzlement. Upon that part of the case you have heard the evidence. I also thought it right that the depositions taken against the plaintiff should be read, that you should hear the answer that the plaintiff made to them. However, those depositions are, of themselves, no evidence whatever of the truth of any matter stated in them, except in so much as the present plaintiff may have admitted them to be true by any thing that he himself has said. Now, all that he says, on hearing these depositions read, is, "I submit that there is no case against me;" an observation that does not appear to me at all to convey an idea that he admits all the statements to be correct, but rather puts it, that, "assuming every thing to be as stated, it does not amount to a case against me." And I think, on reading the deposi tions, that the observation is well founded, and that, assuming every thing there stated to be true, they shew no case of embezzlement against the plaintiff; indeed, I think it is very possible that the observation was suggested to the plaintiff by his solicitor, who appears to have been present. Verdict for the plaintiff, damages £51; being £1 for the taking of the sovereign, and the Erle and Carrington, for the plaintiff. Platt and Petersdorff, for the defendant. [Attornies-R. C. Robson, and Rhodes.] 1844. JONES v. MORRELL. Sittings at Westminster after Easter Term, 1844. BEFORE LORD DENMAN, C. J. LOCKIER, Executrix of DANIEL LOCKIER, V. PATERSON and Another. May 13th. TRESPASS. The declaration stated that the defendant, A. had his goods distrain ed on for rent (no rent being due) and was obliged to pay in the lifetime of Daniel Lockier, seized, took, and distrained certain goods and chattels of the said D. L., to wit, ten mahogany cigar boxes [specifying the goods] and detained them till the said D. L. was forced to pay divers 97. 138. to prosums amounting to 91. 13s., "whereby the personal estate tress to be a sum of cure the dis withdrawn. A. died, and his executrix brought trespass for the taking of the goods, and the declaration stated that the goods were detained till A. paid 97. 138., whereby his personal estate was diminished :-Held, that on this declaration the executrix could only recover damages to the amount of 97. 13s. ; and semble, that the executrix could not have received any greater amount if the declaration had been in any other form. 1844. LOCKIER v. PATERSON. of the said D. L. in his lifetime, and of the plaintiff as executrix as aforesaid since his decease, was and is greatly diminished and injured, to wit, to the amount of £50, and other wrongs to the said D. L. in his lifetime the defendant then did" &c. Plea, not guilty "by statute." It appeared from the evidence given on the part of the plaintiff that she was the widow and executrix of Daniel Lockier, and that the testator had rented a shop, a kitchen, and an attic of the defendant Paterson; and that, in the lifetime of the testator, the defendant Paterson had distrained on the goods of the testator mentioned in the declaration for 91. 5s. for nine weeks' rent in arrear, which sum, together with 8s. for expenses, the testator was obliged to pay to procure the distress to be withdrawn. On the part of the plaintiff it was contended that no rent was due, as the rent was payable quarterly. The defence was, that the rent was reserved weekly, and evidence was given with a view of shewing that it was so. Platt, for the plaintiff, in reply.-Upon the balance of evidence this is clearly a quarterly holding, and the plaintiff is entitled to a verdict; and as the plaintiff, as executrix, is entitled to bring this action instead of her husband, the testator, I apprehend that for the putting in of this wrongful distress you are not limited to giving a verdict for the mere sum paid to redeem the goods. Lord DENMAN, C. J.-The declaration merely states that the personal estate of the testator was diminished, and does not state any special damage. Platt.-If the action had been in trover the sum paid might have been the measure of the damages, but it being in trespass, I should submit that the jury may give such damages as they think proper, on consideration of the whole of the facts of the case (a). Lord DENMAN, C. J. (in summing up).-If the rent was reserved weekly, the defendants were clearly entitled to dis (a) By the stat. 4 Edw. 3, c. 7, after reciting, that "whereas in times past executors have not had actions for trespasses done to their testators, as of the goods and chattels of the same testators carried away in their life, and so such trespasses have hitherto remained unpunished," "It is accorded, that the executors in such cases shall have an action against the trespassers, to recover damages in like manner as they whose executors they be should have had if they were in life." This provision was extended to the executors of executors by the stat. 15 Edw. 3, c. 5; and it is laid down in Mr. Serjeant Williams's Saunders, (edit. by Mr. Justice Patteson and Mr. E. V.Williams), vol. 1, p. 217, n. (b), that, the stat. 4 Edw. 3 being a remedial law, it has always been expounded largely, and though it makes use of the word "trespasses" only, has been extended to other cases within the intent of the statute. "Therefore, by an equitable construction of the statute, an executor or administrator shall now have the same actions for any injury done to the personal estate of the testator in his lifetime, whereby it has become less beneficial to the executor, as the testator himself might have had, whatever the form of the action may be, Latch, 168; so that he may now have trespass or tro ver, 5 Rep. 27 (a), Russell's case, Sir W.Jones, 174, action for a false return, 4 Mod. 403, Williams v. Cary, for an escape, 2 Ld. Raym. 973, Berwick v. Andrews, debt on a judgment against an executor suggesting a devastavit, 1 Salk 314, action for removing goods taken in execution before the testator (the landlord) was paid a year's rent, 1 Str. 212, Palgrave v. Windham, and other actions of the like kind, for injuries done to the personal estate of the testator in his life-time." But the statute of Edw. 3 does not extend to injuries done to the person or to the freehold of the testator. But, with respect to injuries to the real estate of any person deceased, committed in his lifetime, and with respect to certain wrongs done by a person deceased to another in respect of his property real or personal, it is, by the stat. 3 & 4 Will. 4, c. 42, s. 2, enacted, " that an action of trespass, or trespass on the case, as the case may be, may be maintained by the executors or administrators of any person deceased for any injury to the real estate of such person, committed in his lifetime, for which an action might have been maintained by such person, so as such injury shall have been committed within six calendar months before the death of such deceased person, and provided such action shall be brought within one year N. P. 1844. LOCKIER v. PATERSON. |