119 A. 327 | N.H. | 1922
"For the purpose of avoiding collusion in libels for divorce and petitions affecting the marriage relation, no evidence contained in depositions will be received unless taken before a commissioner appointed by the court." Rules of Court, No. 128, January, 1918,
In the taking of a deposition all matters may be inquired into which may become competent, i. e., be presented as evidence at the trial, but if the answers to any inquiries cannot be evidence at the trial "it would be the duty of the magistrate, upon objection by the witness, to refuse to put such questions." Boston Maine R. R. v. State,
The hearing of libels for divorce upon oral testimony at the trial terms was authorized by chapter 2, section 1, Laws of 1870. Such is now the universal practice. Since that date, it has been understood by the bar, it is believed, that depositions could not be taken for use in divorce trials except through permission from the court. The application of the libelee for the appointment of a commissioner is evidence of such understanding. At the trial of these motions his counsel contended for the statutory right to take depositions at will without regard to the rule. The orders excepted to were made because it was held they were required by the statute. The only question presented by the case, therefore, is whether the statute relied upon was intended to regulate practice in divorce cases.
The provision is: "The deposition of any witness in a civil cause may be taken and used at the trial unless the adverse party procures him to attend, so that he may be called to testify when the deposition is offered." P. S., c. 225, s. 1. Other sections of the chapter define the procedure for such taking. The question is whether a libel for divorce is a "civil cause" within the meaning of the term as used in this chapter.
"Retrospective laws are highly injurious, oppressive, and unjust. No such laws, therefore, should be made, either for the decision of *464
civil causes or the punishment of offenses." Const., Part I, art. 23. The language makes only two classes of causes, civil and those for the punishment of offenses. It is plain the common law division of causes into civil, equitable and ecclesiastical is not here in mind. Because a retrospective law for a divorce operates oppressively and unjustly, such a law is held within the condemnation of the constitution in Clark v. Clark,
"The occasion for the statute was found in the inability of courts of law to authorize depositions to be taken de bene esse and used in trials before them. It was the right of the parties to have all witnesses produced and examined viva voce before the jury. If the personal attendance of the witness could not be secured, without the consent of the other party the evidence could not be obtained except by resort to equity and an auxiliary proceeding in aid of the suit at law." Boston Maine R. R. v. State,
All the detail of the procedure in divorce proceedings before 1870, which must now be little more than a tradition in the bar, cannot perhaps be accurately settled. Up to that time libels for divorce were entered at the law term and heard upon depositions. Laws 1855, c. 1659, s. 11. Spaulding's Appeal,
At an earlier date, cases appear to have been determined upon voluntary affidavits, those of the parties being required. Smith v. Smith,
In England before the Revolution, all causes concerning marriage and the marital status were tried in the ecclesiastical courts. In a narrow sense these were not common law courts, but they administered the unwritten law of the realm upon those subjects. To ascertain this law as to suits for nullity and other matters relating to the marriage relation recourse must be had to the decisions of *466
those courts. Foote v. Nickerson,
Whether the procedure adopted was influenced by what was known of the practice before the ecclesiastical courts in England or the procedure in securing a legislative divorce, is mere speculation. It is certain that this jurisdiction, unknown to the common law, was exercised in modes unknown to that law both as to the admission of evidence and in other ways. Although parties could not testify at common law, their evidence appears to have always been received in divorce cases. The trial has never been governed by the strict rules of evidence, but the court has always exercised a broad discretion in the admission and exclusion of evidence and in other respects as well. Carpenter v. Carpenter,
From the foregoing it appears that, when the words civil cause were originally used in the statute upon which reliance is placed, no court here or elsewhere had power to decree or hear a petition for absolute divorce, that the act was passed to correct a defect in strictly common law administration and its authors could not have had in view procedure then unknown and not created for over three quarters of a century thereafter; that procedure at trials under this jurisdiction has been regulated by the court without interference from the legislature, a procedure to which the rules of strictly common-law practice had no application. In it the doctrines of default, review and the incompetency of parties as witnesses had no place. The procedure has been limited only by the wise judgment of the court whose rule for nearly three quarters of a century has prohibited the taking of depositions except under the direction of the court.
It is, therefore, beyond question that chapter 225, P. S. "Depositions" has no reference to depositions in divorce cases. In Whipple v. Whipple,
The exception is sustained because the rule of law upon which the orders made are stated to be based is found to be erroneous, and the orders made are set aside.
Under the rule or without it, the court has power to make such order as justice under the exigencies of the case requires, either permitting or prohibiting the taking of Mrs. Clough's deposition.
Case discharged.
All concurred. *468