60 N.Y. 518 | NY | 1875
The general cross-interrogatory must be answered as well as the particular ones, and if it is not put and answered the deposition taken on commission will, in general, be suppressed. (Kimball v. Davis, 19 Wend., 437.) The reason given for this requirement is this, that unless it is done, it is impossible to say that the witness has told the whole truth. (S.C. in error, 25 Wend., 259, 268.)
In the case before us, as appears from the printed book, there were sixteen cross-interrogatories, the sixteenth being the general one. They were, beyond doubt, answered seriatim up to and including the fifteenth, each cross-interrogatory appearing to have been put separately and answered separately as the cross-interrogatories appear, each by itself, and each followed immediately by the answer intended for it. And the answer thus given to the fifteenth is full and complete, without the phrase "and deponent further knoweth not," which immediately precedes the signature of the witness. In the printed case this phrase appears attached closely *521 to the answer to the fifteenth cross-interrogatory as part of one sentence. Then follows the name of the witness as if signed by him, and then follows the sixteenth cross-interrogatory, the general one. In the original deposition, which was produced before us on the argument, it does not thus appear. The cross-interrogatories are together, in order, as they were attached to the commission when it was issued. Interposed between them and the answers to them, are the answers to the interrogatories in chief, in order and regularly numbered. Then come the answers to the cross-interrogatories in order, and regularly numbered, up to and including the fifteenth. Then follows the phrase above quoted, "and deponent further knoweth not." This phrase is not joined to the answer to the fifteenth cross-interrogatory, as part of the same sentence, as it appears in the printed case. It is disjoined from it, a punctuating period intervenes, and some space of clear paper also. And then comes the signature of his name by the witness. And there the deposition, so far as the witness is concerned, ends. There does not follow, as in the printed case, the sixteenth or general cross-interrogatory, after the name of the witness, and with no answer succeeding it. There has been some blunder of copyist, or printer, or some one else, by which the printed case does not truly present the fact. Now if that phrase, "and deponent further knoweth not," had appeared beyond dispute to have been uttered by the witness in response to the general cross-interrogatory, it would, beyond dispute, have been a sufficient answer to it. It is the answer which such an interrogatory usually obtains. It lacks nothing to indicate it as given in response to that cross-interrogatory, which is had by any answer in the deposition to any other cross-interrogatory attached to the commission, save that it is not numbered as are the other answers. Prefix to it the number "sixteen," and there would not be a shadow of reason for saying that it was not in fact a response to the sixteenth cross-interrogatory. Is it less an answer for that lack? As before remarked, the object of insisting upon an answer to such a cross-interrogatory, is that the witness shall tell, and *522 shall be known to have told, the whole truth. But when, after detailed answers have been given to specific cross-interrogatories, he further says upon his oath, "and further deponent says not," has not his knowledge been searched and his conscience touched to reveal his knowledge? And are we to assume that it has not, because it is not in every minutia apparent that the test of this general cross-interrogatory was at the instant applied to him? We think it apparent, from the original deposition, that the answer embodied in the phrase above given was uttered in reply to the general cross-interrogatory, under the effect of that cross-interrogatory applied to the mind of the witness immediately preceding the giving of the answer, and that all the purposes of such an interrogatory have been fulfilled. The objection made at the trial to the reading of the deposition in evidence, was not well taken.
No place of payment was named in the note. In such case, demand of payment at the usual place of business of the maker, though he be absent, is sufficient; or at his residence; or to him in person. (Holtz v. Boppe,
It is contended by the appellant that the paper sent to him by mail, intended as a notice of demand and refusal of payment of the note, and of protest therefor, was insufficient for that purpose. It is positive and explicit enough as to the fact of the presentment of the note for payment; as to the *527
day on which, the place where and the person to whom, the presentment was made; as to the refusal to pay; as to the protest for non-payment against the maker and indorser. The only direct description it gives of the note is, that it was a note of Bassett, Beecher Co., dated May 31, 1870, for $800. It contained the names of the makers of the note, which is the most descriptive feature of a note. So says DENIO, J., in Home Ins.Co. v. Green (
The point is not well taken that the case was not submitted to the jury. The case shows that the appellant informed the court that he did not wish to go to the jury on any question. This means more, in the connection in which it is found, than that he did not wish to address the jury. It means that there is no question of fact upon which there is chance for difference.
The judgment appealed from should be affirmed, with costs.
All concur.
Judgment affirmed.