Chamberlain v. Sands

27 Me. 458 | Me. | 1847

The opinion of the Court was drawn up by

Shepley J.

The suit is upon a bond made by debtors with sureties to their creditor in conformity to the provisions of the statute c. 148.

A certificate made by two justices of the peace and of the quorum, in the form prescribed, was introduced to prove performance of one of the conditions of the bond. The plaintiff called one of them as a witness and proposed to place in his hands a letter addressed to him by the plaintiff’s attorney, purporting to state the facts, as they occured on August 24, 1844, being the day of the date of the certificate, to refresh his recollection. An objection was interposed. The counsel being called upon for his reasons, stated, that it was drawn up by him when the facts were fresh in his recollection, and was examined by the witness, when the facts were fresh in the recollection of the witness, and that it was admitted by him to be correct.

1. It is contended, that the presiding Judge incorrectly decided, that the document could not be properly used by the witness for that purpose. If it had been recognized by the witness as containing a correct statement of the facts as they were '.known to him at the time, when it was first presented to him, ¡he might have been permitted to use it for that purpose, although it had been drawn up by another person more than twenty days after the events transpired. This does not appear ; nor is it apparent,- that the witness desired to have the use of it. The counsel appears to have rested the right to ¡have the witness use it, not upon an examination of the witness as to his knowledge of its accuracy,, but upon his own ‘Statement respecting it. This may be explained by subsequent ¡events. The facts stated in that paper were introduced in ■evidence by the testimony of the attorney. The witness had '¡before been partially examined, and he was subsequently further examined, and he thus appears to have had an opportunity to have known the contents of the paper before his testimony was finally closed and before it was too late to have ¡corrected any error made in the former part of it. As he did .not do it, the plaintiff afterwards proposed to prove, that he .had made declarations at variance with his own testimony and in accordance with the statements contained in that paper. Upon examination of all the proceedings at the trial as exhibited in the bill of exceptions, the paper does not appear, except from remarks of counsel, at any time to have been recognized by the witness as containing a correct account of the transactions; but rather to have been pressed upon his consideration to influence his mind during his examination. The decision of the Court under such circumstances cannot be considered as affording just cause of complaint.

2. The next objection is made to the exclusion of testimony to prove, that the witness thus called by the plaintiff had on two different occasions, made declarations at variance with his testimony. To the general rule, that a party cannot be permitted to discredit his own witness, an exception was admitted, in the case of Dennet v. Dow, 17 Maine R. 19, that he might do so, when he was obliged to call an attesting witness. Otherwise the rule was affirmed. The present case comes within the rule, and not within the exception.

0. The next error alleged is the admission as evidence of the document, called a record, made at the time and signed by the justices. They testified, that it contained the only record of their proceedings and that they had no desire to make any correction or alteration of it. The statute does not in words require the justices to keep a record of their proceedings ; but it authorizes them in certain cases to award costs, to issue an execution for them, and to do other acts, necessarily implying the existence of such a record. The paper signed by them is quite informal, and if it must rather be regarded as a paper containing minutes, from which a more extended and formal record could be made, it might, in accordance with decided cases, be received in evidence before such formal record had been made. Davidson v. Slocomb, 18 Pick. 464; Pruden v. Alden, 23 Pick. 184.

4. It is insisted, that an erroneous construction of that document was made by the presiding Judge in his remarks upon it to the jury. The counsel for the plaintiff contended, that the language of that record authorized the conclusion, that he had appointed one of the justices to take the disclosure of one of the debtors only. The jury were otherwise instructed. It is stated in the bill of exceptions, “ that there were two citations by the same debtors to the same creditor on different bonds made out at the same time and returnable at the same time.” The paper called a record states, that the plaintiff’s attorney appointed “ one of the justices to act on each citation.” Each contained a notice to the creditor, that all the debtors were to make a disclosure at the same time. To act upon each citation is to act upon all the cases named in it, and to do all acts respecting it, which the law required to be done.

5. The record further states, that one of the debtors, “ Sands, appeared only and disclosed on each about eleven. After Sands’ disclosure was partially completed, Wallace, surety on the bond, appeared and requested an adjournment to two P. M., which was done ; at that hour each and all appeared, disclosed, and were discharged and took the oath.” It is insisted, that all their proceedings after eleven o’clock were void. Acting in obedience to their instructions the jurors must have found that the justices had been duly selected by the parties, and that they were at the place designated “ within the time at which the plaintiff was cited to appear.” One of the debtors was also there, and the attorney of the creditor. The tribunal thus correctly organized in due season, had jurisdiction of the case. The sixth section of the statute gave them a discretionary power, “ to adjourn from time to time, as they see cause.” They might proceed to take the disclosure of the one present; and for their own convenience, or at the suggestion of one appearing in behalf of the absent debtors, might adjourn.

6. It is also insisted, that the instructions were erroneous in stating, “ that although two of the debtors did not personally appear till the afternoon, yet that fact did not take from them their jurisdiction,” nor authorize the plaintiff’s attorney to withdraw the authority vested in one of the justices by his appointment. If the former clause of these instructions were not correct, the jurisdiction of the justices must depend upon the personal presence of all the debtors before an adjournment could take place. Such a construction would deprive the one who was present of the right to proceed in the absence of the others, and to obtain a legal discharge.

It would also prevent a debtor, who, by illness, mistake or casualty, should fail to be present at the appointed time, from performing the condition of his bond, unless there were time for a new notice. That neither party can revoke the authority of one of the justices, and thus interrupt the proceedings of the tribunal, after it has been duly organized and has entered upon the performance of its duties, was determined in the case of Ayer v. Woodman, 24 Maine R. 196.

7. It is further insisted, that one of the justices was not legally selected by the debtors, because he was requested to act in that capacity, when they signed the citation to the creditor. The statute does not prescribe a time within which the selection shall be made. It is not perceived, that the rights of a creditor can be impaired by a selection made by a debtor, at any time after the citation has been prepared, and before the tribunal has been organized. There does not appear to be any period of limitation so appropriate, as that between the commencement of the proceedings and their completion, for the final action of the tribunal. Exceptions overruled,