2 Mart. (N.S.) 267 | La. | 1824
delivered the opinion of the court. This action was brought to settle the boundaries of two adjoining tracts of land in the parish of Feliciana, owned by the parties
On this last trial, a bill of exceptions was taken to the decision of the judge a quo, admitting to be read in evidence the depositions of Joseph Book and David Wattman.
The objection to the first was grounded on the witness not having signed the deposition. nor made his ordinary mark to it.
The document, found in the record, which purports to be the testimony of the witness, does appear to have the mark of the deponent affixed to it. The difficulty arises from the form of the commissioner's certificate. It is in these words, " I certify that the foregoing deposition of Joseth Book, after being duly sworn, was taken before we at my office in the parish of Avoyeles, on the 11th day of October, 1823, between the hours of nine and twelve o'clock, the defendant attending in person, and no person appearing for the plaintiff".
We are of opinion that the expression in the certificate "that the foregoing deposition was taken in the presence of the magistrate," furnishes
In addition to this objection,the counsel for the plaintiff opposed the reading of the testimony,on the ground that it was irrelevant and illegal. What were the particular reasons or facts, on which this general allegation was made,we are uninformed, and if we were, we would not notice them. We have already decided that the party objecting to evidence, must, at the time of trial, state the particular ground, on which he resists its introduction-in the language of the authorities, that he must lay his finger on the objectionable part, in order that his adversary may have an opportunity to see if it is in his power to remove the difficulty. Any other practice would enable one party to lay snares and entrap the other. 10 Martin, 637, Bernard vs. Vignaud.
The deposition of David Wattman was objected to, because.no notice of the time and place of taking it, was given to the opposite party, except furnishing the attorney with a copy of the interrogatories, several months be
The defendant here offered to read a copy of a rule of court, in order to show that the evidence was taken regularly. This rule does not appear in evidence on the record, and we cannot judicially notice it. These particular regulations of the inferior tribunals are not laws, which this court is presumed to know and
It has been strongly urged on us, that even rejecting this evidence, there is still enough on the record to enable us to affirm the verdict. This position brings directly, before us the question, whether, in eases of this kind, which are emphatically proper to be tried by a jury of the vicinage; this court ran with propriety take on it to decide the cause on other evidence, than that, o nwhich the jury passed. The weight, which h properly attached to a verdict in such cases seems to forbid us doing so. The plaintiff had a right to demand, and did in fact, pray for a jury in the court below, and he had of course, a right that they should pass on his case on legal evidence alone, so that he might have the benefit, when his cause came here, of that presumption tin bis favor, which a verdict would have created It follow s then, that if the chance to obtain this advantage has been taken from hint, by the act
It is therefore ordered, adjudged and decreed that the judgment of the district court be annulled; avoided and reversed, and that this cause be remanded for a new trial, the appellee paying costs of appeal.