Schrader v. Wolflin. that the title to the property would have vested in the plaintiff, and the contract thereby have been discharged. There was no error in excluding the evidence as offered. The defendant further offered to prove, that, immediately after he got possession of the property on the writ of replevin, he advertised the same for sale at public auction, and thus sold the same in good faith, and the price for which the same was sold, and the costs attending the sale; but this evidence was also rejected. In this ruling we think no error was committed. The price at which the defendant sold the goods was not the criterion for the measure of damages. The value of the goods would ordinarily form the proper criterion of measuring damages for their non-delivery. In this case, the property in the hands of the sheriff was subject to the lein of Schrader, by virtue of his mortgage. Had the levy not been made, Schrader might undoubtedly have sold the property on his mortgage; but he could not, by making such sale, prejudice the rights of the execution plaintiff. Had the property been sold on the executions, it might have brought more than at the sale as made by Schrader. It seems to us, that the defendant can not complain of the rule of damages adopted in this case, which was, as we gather it from the facts that appear, to estimate the property at its value, deducting therefrom the amount of the debt secured to Schrader by his mortgage, giving the plaintiff the overplus, which was less than the executions on which the levy was made. Per Curiam.-The judgment is affirmed, with costs, and 1 per cent. damages. James E. Blythe and P. Maier, for the appellant. Asa Iglehart, for the appellee. Raymond v. Williams et al. RAYMOND V. WILLIAMS et al. DEPOSITIONS.-Depositions can not be taken during the term of the Court in which the cause is pending without the agreement of the parties, and, if taken without such agreement, they may be suppressed. SAME. Where a notice to take depositions recites that the taking will be commenced on a certain day, and continued from day to day thereafter until completed, an adjournment for a longer time will be unauthorized, and will subject the depositions so taken to suppression, unless the opposite party appear and waive such objection. APPEAL from the Wayne Circuit Court. DAVISON, J.-The appellees, who were the plaintiffs, sued Raymond upon a note, for the payment of 304 dollars. The note was payable to George Murphy, who, by indorsement, assigned it to the plaintiffs, by the style of "Williams, Murphy and Benedict." The Court tried the issues, and found for the plaintiffs, and, having refused a new trial, rendered judgment, &c. It appears, in the record, that the plaintiffs notified the defendant that they would, on the 29th of January, 1863, between the hours of 9, A. M. and 4, P. M., at the office of William C. Ward, No. 29 Wall street, in the city of New York, proceed to take the depositions of George Murphy and others, and continue from day to day until all were taken, &c. On the 29th of January, the day named in the notice, the plaintiffs proceeded at the place designated, before a notary public, to take the depositions, and, having continued therein for some time, the further taking was adjourned to the 2d of February, when it was completed. The defendant was not present on any of the above named days. The defendant moved to suppress the depositions thus taken, on two grounds: VOL. XXI.-16. Raymond v. Williams et al. 1. The depositions were taken during term of the Wayne Circuit Court, without the agreement of the defendant. 2. The examination of witnesses was not continued from day to day, but adjourned from the 29th of January, 1863, to the 2d of February. The code says: "In all actions, depositions may be taken by either party in vacation, immediately after the service of the summons, without any order of the Court, and in term time, by the agreement of the parties." 2 R. S. G. & H. p. 175, sec. 250. Here the depositions were taken on the 2d day-first Monday—of February, 1863, which was during the term of the Court in which this action was pending; and no agreement, that they might be taken in term time, existed between the parties. It is, therefore, evident, that the taking of these depositions, without such agreement, was in conflict with an essential requirement of the statute. The second ground of objection is equally well taken. The plaintiffs, having notified the defendant that they would continue from day to day, were bound to comply with the terms of the notice; and the adjournment, in this instance, from the 29th of January to the 2d of February, being unauthorized, the depositions were inadmissible as evidence in the The motion to suppress should have been sustained. Per Curiam.-The judgment is reversed, with costs. Cause remanded. cause. Develin & Johnson, for the appellant. Peelle & Wilson, for the appellees. Fromm v. Leonard. FROMM V. LEONARD. PRACTICE. Where the general verdict is not materially inconsistent with the special findings of the jury, and the latter are responsive to the interrogatories, the Court should render judgment upon the verdict. APPEAL from the Carroll Common Pleas. WORDEN, J.-This was an action by Leonard against Fromm, to recover an account for several years boarding and lodging. The amount claimed by the plaintiff was 836 dollars. The defendant pleaded, amongst other things, a set-off, amounting to 552 dollars and 37 cents. There is no controversy as to the correctness of the set-off. The cause was tried by a jury, who returned the following answers to questions propounded, together with a general verdict, viz: Questions propounded to the jury: 1. "State at what time defendant commenced boarding at plaintiff's, and the time he quit. 2. "State what the boarding was worth at the time the defendant commenced boarding. 3. "State whether there was a contract between the parties at any time during the defendant's stay with the plaintiff, that the defendant should pay a higher price at any subsequent time than what board was worth at the time he commenced boarding; if so, state the price agreed upon. 4. "State how long a time the defendant was absent in the year from the boarding house, every year during the time he stayed with plaintiff, and also state the deduction he is entitled to for absent time. 5. "State what credit the defendant is entitled to, and what amount he proved in his set-off." Answers of jury: Fromm v. Leonard. "Ans. to question 1. August 20th, 1850. Quit June 25th, 1856. "Ans. to question 2. 2 dollars and 25 cents per week. "Ans. to question 3. No contract. "Ans to question 4. Two and a half months per year. Deduction 2 dollars and 25 cents per week. Whole deduction........... Defendant's account............. Plaintiff's account.. Balance due defendant... $135 00 552 37 $687 37 682 50 $4 87 "We the jury, find for the defendant, and that he is entitled to, the sum of 4 dollars and 87 cents. "J. C. TODD, Foreman." On this finding, the Court, on motion, rendered judgment in favor of the plaintiff for the sum of 124 dollars and 73 cents. Exception was duly taken. We are unable to discover any ground on which the judgment can be sustained. The general verdict is not, in any manner, inconsistent with the special findings. Boarding, from August 20th, 1850, to June 25th, 1856, at the rate determined by the jury, would perhaps amount to a dollar or two more than the amount computed by the jury. So would the deduction to be made from that time, estimating it two and a half months per year, amount to more than the sum computed by the jury. If any error occurred in the computation, it consisted in finding too small a sum as the balance due the defendant. But the computation was correct enough for all practical purposes. Per Curiam.-The judgment below is reversed, with costs, and the cause remanded, with instructions to the Court below |