DILL, Guardian, &c., vs. CAMP, 22 Ala. 249

GIBBONS, J. The objection to the admission of the deposition of the witness Mackey cannot prevail.

The act of 1850 prescribes, that, when a deposition is taken, “ the commissioner shall, under his hand and seal, below the testimony, or on some convenient place in the papers, certify to the clerk of the proper court, or to the justice, that the evidence of the witness or witnesses was taken down under oath, and subscribed by him in his presence, at a time and place appointed by him, (specifying them,) if by interrogatories, if without, at the time and place specified in the commission; then enclose the whole in a compact form, sealed with three seals, with his (or their) name written across each; state the names of the parties or the cause on the outside of the envelope, and address the package to the clerk, or the justice aforesaid, and forward it; if by mail, mark it on the outside, mailed, and the date; if by private disinterested conveyance, mark on the outside by whom, and in either case the date, and sign his name.

The clerk or justice, on receiving it, shall mark on the back how and when received, and file it; and the testimony thus received and regularly opened, shall be read in evidence.” From this recital of the statute it will be perceived, that it is not required of the commissioner to date his own certificate; be is required to certify that the testimony, if taken without interrogatories, was taken at the time and place specified in the commission.

This the commissioner does in the present case; and if we were to hold that he must also add a date to the certificate, we should be superadding to the statute a requirement not placed there by the legislature. Neither can the objection prevail, that “the person who received the deposition from the commissioner, does not swear that he is a disinterested person.” It appears that, when the above named deposition was delivered to the clerk, it came by the hands of one Samuel D. Lassiter, and the cleric on its receipt administered to him an oath as follows: “ Came before me, Samuel D.

Lassiter, and made oath that he received this package from the hands of the commissioner, and that it has not been out of his possession since he received it, nor undergone any alterations or erasures.” We have only to remark, that we see no requirement of such an affidavit in the act aboved cited.

This act seems to recognize two modes of conveying depositions from the commissioner to the place where they are to be used: one by mail, and the other by private disinterested conveyance; but this clause of the act we regard as directory merely, and it is not to be construed to mean that the party offering a deposition should show, as a condition precedent to its competency, when the deposition has been returned by private conveyance, that the bearer of it was a disinterested person.

If the proper construction of the statute was, that when the deposition was returned by private conveyance, it must be by a disinterested person and none other, we should hold that this would be presumed, until the contrary appeared. Otherwise, it might often be extremely embarrassing for the party offering a deposition to pave the way for its competency. It might be returned to the clerk by an entire stranger to the party, and in that case, in addition to requiring him to prove a negative, he would bo called upon to prove one in reference to a person of whom he knew nothing.

The showing made in the present case, we consider ample for the admission of the deposition. The objection that there was no evidence of notice to the opposite party, of the time and place of taking the deposition, cannot be here considered, as it was not. made in the court below. An objection of this kind cannot be made in this court for the first time. The decision of the questions in relation to the deposition of the witness, Mackey, necessarily disposes of the same objections made to the reading of the deposition of Lassiter.

But it was further objected to the reading of the latter deposition, that a list of interrogatories appears therein, a copy of which was not served on the plaintiff or his attorney. These interrogatories do not appear to have been filed in the clerk’s office before the commission issued, nor does it appear ■who framed them. They are not signed by counsel or by any one else, and must be regarded as mere memoranda made by the commissioner, or by some other person for his use. However this may be, they afford no good reason for excluding the deposition.

The commission was issued to take the deposition of the witness cle bene esse, a time and place specified to execute it, and the plaintiff notified according to the order of the clerk. It was the plaintiff’s privilege to be present at the taking of the deposition; and if he chose to waive his rights and not attend, he cannot exclude it, unless he shows something clearly illegal in its execution. The objection to the reading of the deposition of Polly Rodgers is, that the office of the commissioner had expired before the deposition was taken.

The commission was issued on the 4th day of April, 1851, and was returnable to the next term of the court to be held on the first Monday of May thereafter. The deposition purports to have been taken on the 9th of May, 1851. In the case of Herndon v. Givens, 16 Ala. 261, it was decided, that a deposition taken on the second day of the term of a court to which the commission was returnable, could not be read, as the authority delegated to the commissioner to take it had then expired. On the other hand, in Jordan v.

Jordan, in 17 Ala, 466, a deposition taken on the first day of the term to which the commission was returnable, was held good, on the ground that the authority to the commissioner had not then expired. Of these two decisions we prefer the latter, as we apprehend the true rule to be, that, under a commission returnable at a particular term of a court, a deposition may be taken at any time during the term, before the case in which the testimony is to be used is called for trial. Under this rule, tbe objection to the deposition under consideration fails, and it was properly admitted.

It is undoubtedly true, that when two parties contract together and one defrauds the other, the party defrauded has the right to rescind the contract. A rescission in such a case may be effected by operation of law, if he who seeks it does what the law requires of him. When a contract is thus rescinded, the parties, in contemplation of law, are placed in statu quo, aud the law will not operate a rescission unless this can be done. The party seeking a rescission for fraud, therefore, should act with vigilance and promptness.

As soon as he discovers the fraud, he should immediately act upon it, and take those measures which the law makes it his duty to take, in order to put an end to the contract. Barnett v. Stanton & Pollard, 2 Ala. 181.

In the case cited, says chief justice Collier: “ But the vendee in such case must act with promptness, and upon discovering that the subject is not such as was contemplated, he must offer to return it.” Again, he says in the same case: “But a contract cannot be rescinded without mutual consent, where circumstances have been so altered by a part execution, that the parties cannot be put in statu quo, for if it be rescinded at all, it must be rescinded in. toto.” Hunt v.

Sylk, 5 Mast 449. “ If the vendee neglect to return goods immediately upon discovering a breach of warranty or fraud, but keep them and treat them as his own, by putting them up to sale, or exercising other acts of ownership over them, he cannot afterwards reject the contract.” Parker v. Palmer, 4 B. & A. R. 387. Again, in Burton v.

Stewart, 3 Wendell 236, it is said, that “fraud in the sale of a chattel cannot be set up in bar of a recovery of the amount of a note given on such sale, unless the vendee, on the discovery of the fraud, return the articles purchased to the vendor, or show them to be entirely destitute of value. If the vendee retain the property, he cannot treat the sale as void.” It is the vendor’s right to know at as early a daj^ as practicable, consistently with ordinary vigilant and prompt action, whether the vendee intends to retain the

article or not. He has a right to know this, because, if the contract is to be rescinded, the parties are to be placed in statu quo; and the vendor is not to be kept out of the possession of his property, the title to which necessarily goes back to him when the contract is rescinded. Again, it is said: “ An offer to return the chattel in a reasonable time, on the breach of a warranty, or where a fraud has been practiced on the purchaser, is equivalent, in its effect upon the remedy, to an offer accepted bj^ the seller, and the contract is rescinded.” Barnett v. Stanton & Pollard, supra.

This is undoubtedly true in a great variety of cases, and would be true in all, if by offer to return was meant an actual tender of the property back; for the vendee cannot force the vendor to receive the property, even though he tender it to him, and when he makes the tender, he does all that the law requires of him. But when the parties reside in close proximity to each other, and when the property is susceptible of easy transportation, we apprehend that the law requires something more than a mere offer to return the chattel unaccompanied by a tender of it.

The law contemplates in such cases an actual re-delivery of the property to the vendor, or a tender of it with a view to re-delivery. Where the parties reside at a distance from each other, a simple offer to return would doubtless be all that the law requires. But in all cases where the offer to return the property is made with a view to a rescission of the contract, the vendor must be apprised that the title has re-vested in him, and that the property is subjected thenceforward to his order and control.

A party cannot in a court of law rescind a contract, and yet retain the possession and use of the subject matter of it, as if it were still his. In cases where parties reside at a distance, after the rescission has been effected by an offer merely to return the property, the vendee, if he retains the possession, can only do so as the bailee of the vendor, until he can receive the orders of the latter as to what disposition he shall make of it. But he can exercise no control or dominion over the property himself, as being the rightful owner.

So, where the contracting parties reside in the same neighborhood, the vendee, if he would avoid the contract, after he has tendered the property .back, must avoid the use or employment of it in any manner inconsistent with the rights of the vendor. There may be cases where' the vendee’s possession of the property, after suob rescission, may be consistent with the title of the vendor.

Such cases arise when the vendor has refused to receive it, on its being tendered to him, and when it would be inhumane or greatly prejudicial to the interests of the parties concerned entirely to abandon it; or where, on an offer to return without a tender, the vendor has notified the vendee that he would not receive the property back and rescind the contract. This would be a waiver on his part of the tender, and the law will not require the vendee to do a useless thing, as an actual tender of the property would be, after he was thus notified that it would be useless.

The rules which we have thus laid down are those which obtain mostly in reference to sales, but we apprehend that the same will apply with equal force to contracts for hire. We have deemed it necessary to be thus explicit in stating these rules of law, in order to arrive at the proper tests by which to determine the correctness of the charges of the court below to the jury.

In the first, the court asserted, in effect, that if there was fraud in the hiring of the negroes to the defendant, in falsely representing them to be what they were not, and if the defendant offered to rescind the contract in due time, and that offer was refused, then the plaintiff could not recover. We cannot say that this charge contains any positive error for which we feel bound to reverse the case. It certainly would have been more accurate, and better calculated to have reached the justice of the case, if it had been more specific.

We observe of this, as ■well as of the second charge, that the question of due time is left entirely to the determination of the jury. The question as to what is a reasonable time within wbicb to make tbe offer to rescind, or tender back and restore tbe property, is one necessarily compounded of law and fact; of law, so far as regards laying down tbe rule governing tbe particular facts in evidence; of fact, so far as regards tbe question whether the particular facts fall within the rule laid down.

It would undoubtedly have been more accurate if the court had instructed the jury as to what was due time; as for instance, that the defendaut was required to act with vigilance and promptness on the discovery of the fraud, and then left them to say whether the facts brought the case within tbe rule or not. In that case, there would or would not have been a rescission, according as the jury should have found. But the charge as it stands asserts no false proposition; the objection to it is its generality.

It was the plaintiff’s privilege to have had a more specific charge given, and if he had wished it, should have prayed one more appropriate. So in reference to that part of the charge relating to the offer to rescind; although extremely vague and indefinite, still, we cannot say that it contains positive error. Whether it meets the weight of evidence in the case or not, as shown in the bill of exceptions, is a very different question.

We are not authorized to construe the charge with direct reference to the weight of evidence, but are limited in our examination to the propositions of law contained in the charge in reference to the subject matter of the evidence, looking only to see if there is any evidence to support it. If the plaintiff does not ask the charges more appropriate to the proof, and leaves the affirmative charges to stand alone before the jury, although he may except to them, still, we cannot revise the case, unless the charges announce some erroneous proposition of law.

This view of the first charge necessarily disposes of the second, so far as regards the question as to the offer to rescind and the time when it was made. This charge seems to have been given with a view to meet a set of facts not covered by the first, tending to show an interference on the part of Groodwin, the ward of the plaintiff, in preventing the boy, Carter, from returning to the service of the defendant. In this part of the charge there was no error. If the plaintiff chose to abandon the matter to the control of Groodwin, he thereby made him his agent, and became liable for his acts.

If Goodwin harbored the boy, Carter, and prevented him from returning to the defendant, and this interference on his part was with the consent or permission of the plaintiflj he would be chargeable with it; and the defendant, in that case, would have the right, without any offer to rescind, to consider the contract at an end, so far as this boy was concerned, from the time such interference commenced. This, however, as an entire, independent and affirmative charge, cannot, in our opinion, be sustained.

The jury are told, that if they believe, from the evidence, that the boy, Alexander, was not a good plough boy; that Goodwin, with the consent or permission of the plaintiff, harbored the boy, Carter, and prevented him from returning to the defendant’s service; and that an offer to rescind was made in due time, and refused, then the plaintiff cannot recover. Here the entire defence is made to depend upon three facts only, viz : that Alexander was not a good plow boy; that Goodwin interfered to keep the boy, Carter, away; and the offer and refusal to rescind.

In this charge, the entire question of fraud in the contract, on which the whole defence, so far as it seeks a total defeat of a recovery, rests, is omitted. Independent of any question of fraud in the contract, the jury are told, if they find the three facts above named to exist, then there can be no recovery. This, in reference to the evidence, is an erroneous charge. We have no doubt that the court, in giving the charge, intended to be understood as including in it the question of fraud, as it had in the first charge; but the jury may not so have understood it.

The charge, to say the least of it, falls within that class obviously tending to mislead the jury, and which the court will not sustain. Nabors v. Camp, 14 Ala. 460; Toulmin v. Lesesne & Edmondson, 2 Ala. 359; Cothran v. Moore, 1 Ala. 423; Sims v. Sims, 8 Porter 449. For this error, the judgment of the court below is reversed, and the cause remanded.