Speck v. Hoyt

         Non-joinder by tenants in common can only be pleaded in abatement. (1 Chit. Pl. 66, and notes; 6 T. R. 766; 7 Ib. 279; 2 Com. Law Rep. 54.)

         If the objection is not taken by demurrer, it is waived. (See 17th sec. Pr. Act, and sec. 45.)

         This Court will not disturb the finding of a jury on evidence, when the Judge who tried the cause is satisfied with the finding.

         The only issues below are conversion and values plaintiff's ownership is expressly admitted by defendant's answer. There was no evidence to show any right in defendant to dispose of the property.

         Moffit was a good witness even at common law. But our statute, sec. 393, Pr. Act, makes interest in the event go to the credibility.

         The additional affidavits were not filed in time. The witness Southorne, as to the matter of the paper, was defendant's witness, and of course could not be impeached by him. (2 Den. 109; 4 Johns. 425; 5 Johns. 248; 14 Johns. 186; 10 Wend. 285; 1 Con. 359.)

         The appeal is for delay.

         JUDGES: Heydenfeldt, Justice, delivered the opinion of the Court.

         OPINION

          HEYDENFELDT, Judge

         There is in this case no conflict of evidence whatever. It matters not that the defendant, for his own security, had verbally stopped the freight-money. This seems to have given much offence to the plaintiff and his part-owner; and they therefore appeared to decline the proper care and responsibility which belonged to them as owners.

         The act of Hoyt, in receiving the hire from Southorne, and giving his consent for the vessel to make a trip to Angel Island, was no trespass. Taken in connection with the fact that he had stopped the freight-money previously, it amounted to a waiver of his design for this one occasion; and therefore it was no authority to Southorne to take the vessel without the consent, or otherwise, than acting under the direction of the plaintiff and Moffit. So it was evidently understood by Southerne, because we find him applying to them for their consent, notwithstanding he had obtained the plaintiff's. It was an easy matter for them to have prevented any interference with their property, by simply objecting; but they made no effort to do so, for although they did not affirmatively consent, they did not prohibit Southorne; but on the contrary, acting under a mistake as to their legal right and remedy, they implied a consent by saying that they held Hoyt responsible.

         The Court below charged the jury properly as to all the points which are here considered. The only error, therefore, to be passed upon is the refusal to grant a new trial, and relieve the defendant from the strange and unaccountable verdict of the jury.

         We have invariably held that refusing or granting a new trial would not be disturbed, except when there was a gross abuse of discretion; nor when the decision of the Court is upon mere questions of fact.

         In this case, however, as a question of law, it is beyond dispute that the defendant is not liable. The Court might well have granted a nonsuit, or instructed the jury to bring in a verdict for the defendant. It is the least, then, it could have done to grant a new trial; and the refusal to do so is such an improper use of its discretion as calls for the exercise of the revisory power of this Court.

         The judgment is reversed, and the cause remanded.

         [Note.--A petition was filed for a rehearing in the above case by respondent, on the 13th December, on which is endorsed, per Murray, Chief Justice: " Let a stay of proceedings be entered, until the further order of this Court." ]