Carmalt v. Post

| Pa. | Jul 15, 1839

The opinion of the Court was delivered by

Gibson, C. J.

The rule to take depositions was irregularly executed. It is, to say the least, unusual, and productive of uncertainty, to assign two days for the attendance of the opposite party, though they be consecutive; and its regularity can be sustained only by subjecting the magistrate to the burthen of keeping the examination open during all the indicated time, or at least till the opposite party appear, or send in cross interrogatories to be propounded where there is a rule for it. It is much better to give notice only of the period of commencement, leaving the party on the other side to take notice of the periods of adjournment. The notice was deficient, also, in the omission of the examiner’s name, which ought to have been inserted to enable the plaintiff to transmit cross interrogatories to him in a sealed envelope. To have transmitted them to any one else, would have availed but little, as the custody of them in the mean time ought to be secret and confidential, to give them the abruptness of a cross-examination. Were it necessary to decide it, however, we might, perhaps, find that the plaintiff had waived the irregularity of it, by having allowed his interrogatories to be subsequently answered out of time. But the magistrate made a fatal mistake in the previous delivery of them to witness.

. It was an unanswerable objection to the deposition, also, that it was not taken in such a course of examination as is pointed out in Armstrong v. Burrows. It would be vain to object to an irregular deposition, if the contents of it might be copied out upon a subsequent examination, and reproduced without an alteration even of its form. The -testimony was decisively inadmissible, because it was not orally delivered before the examiner in a regular course of judicial examination, and reduced to writing by him, or some proper person with his authority.

But to pass from the manner of it—did it contain evidence of satisfaction to be left to a jury? The first item of which the witness spoke, was his subscription to the Susquehanna academy, alleged to have been paid for him by the terre-tenant while the witness was the owner of the mortgage; in relation to which he thought it probable that the terre-tenant was authorized to discharge it; it was the witness’s impression that he was. Of sundry orders and accounts, he could not state positively whether the terre-tenant.was authorized to apply them to the mortgage in question;- but it was his impression that he was authorized to apply whatever he had of the sort to any debt due by him to the witness.. And in relation to another account, he repeated that.,he had no recollection of the items, but that he had great confidence in the representations of the terre-tenant, and that whatever the terre-tenant was entitled to, he was entitled to apply to any debt due by him to the witness. In ‘all this, which comprises the whole evidence on the point, there is not a word about actual application by the joint act of the parties.

Had not these demands been, excluded by time, they might have been set off against the plaintiff on the authority of Matthews v. Wallwyn, 4 Ves. 118; Williams v. Sorrel, Ibid. 389, and Chambers v. Goldwin, 9 Ves. 254. Though the assignee of a mortgage, being invested with the legal title to the land as a security, may have a scire facias on our statute in his own name, the mortgage debt is the principal in equity, and a chose inaction not legally assignable; consequently a mortgagor who has not concurred in the assignment, is not bound by the amount apparently due on the face of the mortgage. He may, therefore, set off demands due by the mortgagee at the time of the assignment, or defalcate payments before notice from the assignee, who stands in the place of the mortgagee. But the cross demands, in the case before us, had long been barred by the statute of limitations; and the question is whether the testimony affords a spark of proof that they had formerly been settled and allowed. Now there could be no such thing as payment without mutual extinction of debts, and that could not be had without an application of them to each other by the concurrent act of the parties. In the syllabus of The Commonwealth v. Clarkson, 1 Rawle 391, it is contained as a general rule laid down by the court, that mutual demands extinguish each other by operation of law, and without actual defalcation by the parties: a position not indicated by the text which contains no more than specific exceptions from a general rule to the contrary. These exceptions may depend on various circumstances, such as the intervening rights of creditors under the intestate laws, and a concurrence of the rights of debtor and creditor in the same person; to which was added, in that case, the intervening right of the commonwealth to tax fees actually in the hands of its officer. Now, though it was testified in the case before us, that the terre-tenant had a right to apply his cross demands, what could that avail him without an actual application of them? It could work no extinguishment by the act of the law, and there was certainly no proof of it by the act of the parties. It was an invitation to err, therefore, to leave the fact, without a show of proof of it, to the jury.

But there was no proof, even, of an unexecuted authority. The witness alleged, not that he had any knowledge or recollection of the fact, but that he had an impression of it. Now, though a witness is not required to swear positively, and though in questions of identity and personal skill he may testify to a belief not founded in knowledge, the rule is otherwise in respect to facts which are supposed to lie within the compass of his memory. Gerh. Starkie 153. It is not sufficient that he has found an.impression resting on his mind, so faint, perhaps, as scarce to be discernible, without being able to tell what made it or how it came there; for a jury would inevitably fall into error had they no other guide than the dim footsteps of an exhausted recollection. In the present instance, the witness did not. say he believed that the terre-tenant had an authority: he only thought it probable that he had. But a jury are not to determine by the light of probabilities. The general rule of the earlier text-writers, that a witness shall not say he thinks, or believes, or persuades himself, certainly has its exceptions; but it would be extremely dangerous to receive, as testimony of a fact susceptible of direct proof, a witness’s naked impression. In every respect, then, the evidence was deficient.

Judgment reversed, and a venire de novo awarded.