Brewer v. Beckwith, 35 Miss. 467

Brewer v. Beckwith

35 Miss. 467 | Miss. | 1858

Handy, J.,

delivered the opinion of the court.

This was an action for mesne profits of a tract of land, for the years 1853 and 1854, which the declaration alleges, had been recovered by the plaintiff from the defendant, in.December, 1854, in an action instituted for that purpose.

Upon the trial, the plaintiff offered in evidence the record of the judgment of December, 1854; the defendant objected generally to its introduction as incompetent evidence, but the objection was overruled, and the record was permitted to be read in evidence to the jury. The defendant excepted; and that ruling of the court is the first error assigned.

The ground of the objection is, that, in the record of the judg*471ment offered in evidence, there was no demise laid in the declaration, showing that the plaintiff’s right of possession therein adjudged, embraced the years 1853 and 1854, embraced in this action, and that the judgment therein was not recovered until December 11th, 1854 ; and it is contended that the evidence was incompetent, by reason of the common law rule, that the record in ejectment is not competent to prove the plaintiff’s title, in an action for profits anterior to the demise laid in the action of ejectment.

But this rule is not applicable to the record in question. It was an action brought under the Act of 1850, in relation to pleadings in actions at law, claiming title to the lands sued for, and delivery of possession to him; and is freed, in virtue of the statute, from the technical rules peculiar to the action of ejectment. It was brought in May, 1853, and claimed title in the plaintiff to the lands at that time; and the judgment, though not rendered until December, 1854, had reference to the time of the institution of the suit, and was an adjudication in favor of the plaintiff’s title, as of that date. The judgment was, therefore, competent as between these parties, who were also the parties to the previous suit, to show title in the plaintiff to the premises in the years 1853 and 1854.

Again, the defendant offered in evidence the deposition of one Creighton, taken in the State of Alabama, under a commission from the court, upon the ground of the non-residence of the witness. The plaintiff objected to its introduction, on the ground that the witness was, at the time of the trial, and for several months previous, had continued to be, a resident of the county in which the court was sitting, and living with the defendant; and these facts were proved to the court by a competent witness. And thereupon the court sustained the objection, and refused to permit the deposition to be read; and the defendant excepted.

This presents the question, whether the deposition of a witness, taken in consequence of his non-residence at the time it was taken, is admissible in evidence, where it is shown that the witness is within the power of the court at the time of the trial, and might have been produced as a witness, by the party who seeks to introduce his deposition.

*472This question is not positively settled by the terms of the statute. The statute simply gives the power, in general terms, to take the deposition of a witness who is beyond the jurisdiction of the court: Hutch. Code, 862, § 116 ; but this power is given upon the manifest reason that the witness is so situated, that his personal attendance at the trial cannot be coerced by the court. The statute provides a m’ode of obtaining the testimony of such a witness, arising from the necessity of the case; but it should not receive a construction beyond its reason, or the necessity which gave rise to it. It proceeds upon the principle, that the deposition of the witness should be taken as evidence, as a substitute for his personal testimony, when that could not be obtained, by reason of his non-residence in the State; and when this reason ceases, and the personal attendance of the witness can be obtained, the mode of taking his testimony authorized by the statute should not be allowed.

This mode of taking testimony is extraordinary, and in derogation of the right of a party to have a witness against him produced, and submitted to the view of the jury, in order that they may observe his look and manner, his willingness to testify, his feeling for either party, and the degree of his intelligence. These are important aids in enabling a jury to give to the testimony of -a witness its due weight and credit; and the cases are not unfre-quent, where the most positive statements of a witness, taken in writing, and read to a jury in his absence, would be received with entire credit; but if made before the jury in person, where his manner, and feeling, and intelligence could be observed, would receive no credit whatever. The right of a party, therefore, to have a witness subjected to the personal view of the jury, is a valuable right, of which he should not be deprived, and of which it is not to be supposed the legislature intended to deprive him, except by necessity. And that necessity ceases whenever the witness is within the power of the court, and may be produced upon the trial.

The ruling of the court was in accordance with this view, and we consider it a sound and just rule of practice.

Thirdly. The defendant offered a witness, to prove that he was in possession of the lands in question, as the tenant of a third party who claimed title to them, upon a contract that he was to retain *473possession, and improve the lands, but was to pay no rent. This was objected to by the plaintiff, and the objection sustained. This was clearly correct. The prior judgment was conclusive, as between these parties, of the plaintiff’s title; and if the defendant relied upon an outstanding title in a stranger, he should have set up that defence in the former action.

It is further objected, that it was not shown that the plaintiff went into possession, or was put in possession after the judgment in the prior action.

That was unnecessary in order to maintain this action. The title was adjudged to him in that action, and possession was awarded to him. His right to recover mesne profits did not depend upon his having actual possession of the premises, but was complete when the title was adjudged to be in him, and when it was shown that the defendant was wrongfully in possession.

Let the judgment be affirmed.