Elgin v. Hill, 27 Cal. 372

Elgin v. Hill

27 Cal. 372 | Cal. | 1865

By the Court, Sanderson, C. J.

The Court below did not err in admitting the deposition of W. H. James. The omission of the Commissioner before whom it was taken to append a date to his final certificate, was of *374no consequence. At the end of the deposition there is a certificate signed by the Commissioner, in the ordinary form to the effect that the deposition was sworn to and subscribed by the witness on the 5th day of March, 1863. Then follows immediately thereafter, without further date, a further certificate as to a compliance with the provisions of the four hundred and thirtieth Section of the Practice Act, which directs the Commissioner to read the deposition to the witness, in order that he may have an opportunity to correct it if any mistake has been made. The two are to be read together, and if it was important to have the date at which the deposition was taken appear, it is clearly and sufficiently shown by the first certificate, and a repetition of the date in the last was wholly unnecessary. But, independent of the foregoing, the date was a matter of no consequence. The deposition, as appears upon its face, was taken pursuant to settled interrogatories direct and cross, and a stipulation between the parties annexed thereto, in which there is no mention of any date at which the same should be taken. The date, doubtless, was designedly omitted, in order that the deposition might be taken at such time as might suit the convenience of the witness and the Commissioner. Such being the case, we are unable to perceive how the date could have been of any consequence to either party, or how its absence from the certificate, had such been the fact, could affect any question as to the admissibility of the deposition.

Nor was the witness James incompetent on the ground of interest. As we understand the evidence the plaintiff received the note in suit in payment of a debt due to him from the firms of W. H. James & Co. and L. H. Murray & Co., of both of which the witness was a member. His interest, therefore, if he had any, was equally balanced between the plaintiff and defendant. If his testimony tended to discharge him from liability to the defendant, it also tended to charge him with liability to the plaintiff, and vice versa.

The deposition of James being in, the correctness of the verdict does not admit of debate.’ The jury could not have *375found otherwise without a total disregard of the evidence. The note was paid long before it came into the hands of the plaintiff, and there can be but little doubt but that he knew it had been paid when he received it. But, be that as it may, the note was long past due when he became the holder, and he therefore took it subject to all existing defenses.

The exceptions to some of the instructions upon the ground that they were irrelevant and calculated to mislead the jury, are not well taken.

Judgment affirmed.