Rogers vs. Huie, 1 Cal. 429

By the Court, Bennett, J. The first point which I shall consider is, whether a new trial should have been granted; and this depends upon the question whether the affidavits on the part of the defendant, presented to the consideration of the district judge sufficient facts to require him to grant a new trial. The application ought not to have been granted, unless the defendant had used due diligence in endeavoring to procure the attendance of his witnesses. Did he use such diligence'? I think not. His witnesses had not been snbpcenaed, as appears from his own affidavit.

Did he make reasonable efforts to have them subpoenaed ? I think not. He made no attempt to subpoena them, until the morning of the day on which the tidal was to take place, and actually did take place. This was not using due diligence. For this reason alone the court properly denied the motion for a new trial. There is also another defect in the papers upon which the motion for a new trial was made. The affidavits do not state the facts which the defendant expected to be able to prove by his absent witnesses.

In all cases in which a new trial is moved for, on the ground of surprise, or on the ground of newdy discovered evidence, the evidence which the party moving expects to be able to produce on the second trial, should be fully and distinctly set forth in the affidavits on which the application is based, in order that the court may see whether the testimony, if given, could have any legal effect on the result of the controversy.

And, as a general rule, the party ought not to rely on his owm single and unsupported statement, but should, if possible, by the exercise of due diligence, procure the affidavits of the persons whose testimony he deems material, so that the court may be satisfied as to what facts they will testify. (Ruggies v. Hall, 14 J. R. 112; Hollingsworth v. Napier, 3 Cai. R. 182; Kendrick v. Delafield, 2 Cai. R. 67; Denn v. Morrel, 1 Hall, 382.) In the case at bar it does not appear that the witnesses who were absent could have testified to any state of facts which would have influenced the result.

The same reasoning also applies to that portion of the defendant’s affidavit, in which he states that he has a good and substantial defense. He does not set'forth specifically wherein that defense consisted. A new trial should never be granted on such a general statement. If this practice were to be sanctioned, there would be no limit to applications for new trials. The court properly denied the motion. An auctioneer who receives and sells stolen property, is liable for the conversion to the same extent as any other merchant or individual. This is so both upon principle and authority.

Upon principle, there is no reason why. he should be exempted from liability. The person to whom he sells, and who has paid the amount of the purchase money, would be compelled to deliver the property to the true owner or pay him its full value ; and there is no more hardship in recpiiring the auctioneer to account for the value of the goods, than there would be in compelling the right owner to lose them, or the purchaser from the auctioneer to pay for them.

As a general rule any person who assumes and exercises a control over the property of another, without right or authority, must respond in damages to the value of the property; and I see no principle of policy for the encouragement of trade, or for convenience in the transaction of commercial business, under which an auctioneer should be permitted to claim an exemption from the general rule. J Upon authority the case is clear. The very point was decided in Hoffman v. Carew, (20 Wend. 21; and 22 Wend. 285, S.

C.) That case is in all respects analogous to the case at bar, and both the supreme court and the court of errors held the auctioneer liable.

Senator Yerplanclc, in the court of errors, (22 Wend. 319,) speaking of the policy of the rule, uses the following language: “ In this instance, the ruin falls hardly upon in- “ nocent and honorable men ; but looking to general considera- “ tions of legal policy, I cannot conceive a more salutary regula- “ tion than that of obliging the auctioneer to look well to the title “ of the goods which he sells, and, in case of feloniously obtained “ property, to hold him responsible to the buyer or the true owner, “ as the one or the other may happen to suffer.

Were our law “ otherwise in this respect, it would afford a facility for The sale “ of stolen or feloniously obtained goods, which could he remedied “ in no way so effectually as by a statute regulating sales at aue- “ tion, on the principles of the law as we now hold it.” Does the common law protect the defendant from an action, on the ground that the thief has not been prosecuted and convicted ?

In some of the American cases, the rule that a felony suspends all right of private redress, is said to rest on a salutary principle of public policy, being designed to stimulate to the prosecution of offenders. (Foster v. Tucker et al., 3 Greenl. 458; Boody v. Keating, 4 id. 164.) In other cases it is treated as a technical rule, and it is doubted whether it exists at all in this country, or at least to more tiran a very limited extent. (Man. and Mech. Bank v. Gore, 15 Mass. 78; Boardman v. Gore, id. 331, 335, et seq.; Pettingill v. Rideout, 6 N. H. 454; Allison v. Bank, 6 Randolph, 204, 223; Piscataqua Bank v.

Turnley, 1 Miles, 312; Plummer v. Webb, Ware, 78.) But this is not a ease in which the common law doctrine that the civil action is merged in the felony, is applicable. The action is not against the thief himself, but against a third person, who, although innocently and in good faith, yet without right, has assumed to exercise a control over the property of the plaintiff. In Stone v.

Marsh, (6 Barn. & Cress. 564,) Lord Tenterden says, “ There is, indeed, another rule of the law of England, viz., that a man shall not be allowed to make a felony the “foundation of a civil action ; not that he shall not maintain a “ civil action to recover from a third and innocent person that “ which has been feloniously taken from him; for this he may do “if there has not been a sale in market overt, but that he shall “ not sue the felon.” In White v. Spettigen, (13 Mees. & Wels. 602,) the doctrine of Lord Tenterden was carried into an express adjudication.

It was there held that an action of trover was maintainable to recover the value of goods which had been stolen from the plaintiff, and which the defendant had innocently purchased, although no steps had been taken to bring the thief to justice, on the ground that the obligation which the law imposed on a person to prosecute the party who has stolen his goods, did not apply where the action was against a third party, innocent of the felony. Pollock, C.B., says, “The court of king’s bench correctly “ explained the law in the case of Stone v.

Marsh, and the rule of “ public policy which prevents the assertion of a civil right, in re- “ spect of which a felony has been committed, applies only to “proceedings between the plaintiff and the felon himself, or, at “ the most, the felon and those with whom he must be sued, and “ does not apply to a case like the present, where the action is “ brought against a third party, who is innocent of the felonious “ transaction.” All the other judges expressed opinions the same in substance as that declared by Pollock, O. B. That case is decisive upon the point under consideration.

It only remains to add that no such thing as market overt is known to our laws. The judgment should be affirmed. Ordered accordingly.