8 Conn. 168 | Conn. | 1830
Lead Opinion
This motion is founded on the supposed errors of the judge in the admission of testimony, and in his charge to the jury.
The action is on a promissory note, made by the defendant to the plaintiff and Ward Atwater, now deceased, and which became due on the 30th of August, 1802. The defendant has pleaded full payment, in several different forms. This difference in the-forms of pleading may be laid out of the case; for it is agreed the principles are the same. The only question on the merits, is, was this note fully paid when the suit was brought? This is the position to be sustained, by the defendant; and in support of it, he relies on two sources of proof; first, the lapse of twenty years before the action was instituted; secondly, the deposition of Joshua L. Church.
It appears in this case, that the defendant removed out of this state into the state of New-York, in April 1806, and resided in the state of New-York until the middle of November 1825, when he returned to this state, and continued here till the suit was brought, in May 1827. During this period, he had been in the state twice, for a day or two each time. Thus he has been without the jurisdiction of the courts of this state, the whole time since the date of the note, excepting the period of about five years.
It was also proved, that in 1819, he was a bankrupt: and there was no proof, that at any time he was a man of property. These facts may be laid out of the case; for there is nothing sufficiently definite with respect to his ability to pay, since 1819, on which to found an opinion.
The question recurs, is the fact of the absence of the defendant from the state, sufficient to warrant the jury to consider the presumption of payment rebutted? The court charged the jury to that effect. Was the charge correct?
In the case of Lynde v. Denison, 3 Conn. Rep. 396. the Court say, that twenty years must have elapsed to let in the presumption ; and during that whole time, the plaintiff must have had the power of prosecuting his claim. According to Boardman v. De Forest, 5 Conn. Rep. 1. the absence of the debtor abroad constitutes such an impediment to the recovery of the debt, as repels the presumption. To the same point is Newman v. Newman, 1 Stark. Ca. 101. (2 Serg. & Lowb. 314.) 1 Phill. Ev. 119.
Thus, the neglect of the plaintiff to sue is accounted for, and
It is however insisted, that as the defendant resided in a state bordering on Connecticut, the plaintiff might have there prosecuted his suit, and taken the benefit of its laws and courts, to enforce payment. The Court, however, believe, that no laches are imputable to the plaintiff on this account. The courts and jurisdiction of New-York, are foreign courts, and a foreign jurisdiction, in respect of the citizens of Connecticut. Hempstead v. Read, 6 Conn. Rep. 480. The only difference is, that a judgment rendered in a neighbouring state, where the parties appeared and were heard, is conclusive. This is a provision of the constitution of the United States. Art. 4. sect. 1.
But the Court cannot vary the rule, as the state is more or less remote. If the defendant had been absent in the state of Kentucky or Louisiana, would the plaintiff have been guilty of neglect? And shall he lose his debt, because he did not follow him there? This impediment created by the defendant, whose duty it was to have paid the debt in New-Haven, where it was contracted, sufficiently rebuts the presumption of payment. The charge therefore was correct.
2. The deposition of Hepburn was not relevant; and therefore, ought not to have been received. It was admitted, by the court, to show a reluctance on the part of Church, to testify for the plaintiff, and a bias and prejudice in favour of the defendant. Taken in connection with the facts admitted by the motion, I have no doubt that this deposition was proper evidence for the purpose for which it was admitted. Surely, the deponent Church, had he been present as a witness, might have been cross-examined on all those points; and had he denied the facts, proof of them might have been received to weaken his testimony. This doctrine is too familiar to require much illustration. “By this means,” (a cross-examination,) says a learned commentator, “ the situation of the witness with respect to the parties, and the subject of litigation, his interest, his motives, his inclination and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, are fully investigated and ascertained, and submitted to the consideration of the jury, who have an opportunity of observing the manner and demeanor of the witness—circumstances, which are often of as high importance as the answers
But it is said, that as he was not present, and could not have been cross-examined, the plaintiff cannot be permitted to show, by competent testimony, these facts. This would be strange indeed! Is it to be endured, that the deposition of a man interested, biassed and prejudiced, is to be read, and no suspicion created, because the defendant has seen fit to resort to this mode of proof, rather than by causing the witness to appear to testify orally, and thus be subjected to a cross-examination? Surely not.
3. But there is another objection. This deposition ought not to have been admitted, because the defendant was cited to appear before a magistrate not authorized to take depositions, and the deposition was taken before another magistrate, who was duly authorized. A majority of the Court sustain this objection. They are of the opinion, that a practice so loose, might tend to countenance fraud in taking depositions, and that there cannot be any necessity, nor even convenience, in tolerating it. I am of opinion, that as the statute (p. 47. tit. 2. sect. 44.) provides only “ reasonable notice,” and that depositions may be taken by any justice of the peace, it was not material, in the view of the legislature, that the justice of the peace should be named; and that as the motion finds, neither that the defendant knew, nor that he did not know, that the magistrate was authorized to take depositions, he ought to have appeared ; and as he did not, that he cannot now make the objection. The court further agree, that if the citation had mentioned the magistrate by name, or some other proper authority, it would have been good, according to our practice. These two objections are thus stated and examined, not because it is absolutely necessary that they should be decided in this case; but as this subject is of frequent occurrence at trials, a decision upon them may prevent future litigation.
4. The Court unanimously deny the motion, on the ground that it sufficiently appears, that there is no evidence in the defendant’s testimony of any just defence to this suit. It is found by the court below, and we think correctly, that the testimony, without the deposition of Hepburn, is wholly insufficient to sustain the defence of full payment. It is supported only by the single deposition of Joshua L. Church. It appears by the case, that this Church had given a deposition in a for
Concurrence Opinion
concurred on all the points, except in relation to the taking of Hepburn’s deposition. They were of opinion, that a notice to appear before a person not authorized to take a deposition, might be treated as a nullity ; and consequently, that the deposition of Hepburn, taken without legal notice, ought to have been rejected. This, however, for the reason suggested by Judge Daggett, would, in their view, make no difference in the result.
New trial not to be granted.
