6 Ga. 178 | Ga. | 1849
By the Court.
delivering the opinion.
Wm. J. and John McBride brought their action of assumpsit in the Superior Court of Talbot County, to charge Hope H. Hammock, as executor in his own wrong, of Caleb Adams, deceased, with the payment of their debt. Testimony was offered, to prove a fraudulent combination between the defendant, Didema Adams, the sister of the decedent, and others, to defeat the creditors of Caleb Adams; and among other things, to show that sundry Ji. fas. issuing from the Justice’s Court, in favor of Didema Adams, against her brother, and under which two of the negroes of the estate were sold and bid in by Hammock, were fraudulent and void; and that Hammock was a party to the collusion. This evidence was objected to, on the ground that the Magistrate’s Court executions could not be attacked in this collateral way; but the objection was overruled and the proof admitted; and this is the first error complained of in the bill of exceptions.
And this is right. The law abhors fraud, and all the avenues which lead to its detection and defeat, should not only be thrown wide open, but be kept free from the interposition of bars and estoppels of every kind. A sale effected by, and affected toith fraud, is no sale, and can produce no change whatever in the rights of innocent persons; it is just the same as if no such attempt to alien had been made; and it is the privilege and duty of any and every Court, so to declare; for I repeat, that fraud is cognizable
It is the opinion of this Court, that interrogatories cannot be used on the trial of a cause, where the witness has resided within the County a sufficient time previous to the trial, for his personal attendance to be coerced by process of subprena, provided it is made satisfactorily to appear, that the party seeking their introduction, had timely notice, actual or constructive, of such residence.
It is true, that where any witness resides out of the State, or out of any County in which his testimony may be required in any cause, his testimony may be taken by interrogatories, and the examination read at the trial, on motion of either party. Prince, 425. But this is an exception to the general law upon the subject. That declares that where the attendance of any person shall be required, as a witness, in any cause depending in any of the Courts of this State, that it shall be the duty of the Clerk, on application, to issue writs of subpoena, directed to the person whose attendance shall be required, where such persons reside within the County in which such cause may he depending, and shall he served on such witnesses, at least five days before the Court to xohich it shall he returnable. And further, it is provided, that attachments shall issue against defaulting witnesses, and they are made liable to a fine not exceeding three hundred dollars, for their nonattendance ; and also, to an action for damages, at the instance of the person at whose suit they were summoned. Prince, 424, ’5.
"Why, I would respectfully inquire, should not the Statute include a residence of four months, as well as four years ? Or can it be gravely insisted, that because the witness was once in the category contemplated by the Act, that it should legitimate his
There is one view of this subject which would seem to be conclusive. The Legislature, in 1806, authorized the testimony of witnesses going beyond seas or remaining without the jurisdiction of the State, and aged and infirm persons, to be taken by commission. The Act, however, declares, “ That in case the person or persons, whose testimony shall have been so taken, return or he able to attend the Court, that then and in that case, such mitten testimony shall not be received or read.” Clayton's Comp. of Laws, 323, 324. Would it not be unreasonable to hold,, that the removal of the disability, to-wit: the non-residence of the witness, should exclude the testimony previously taken by commission in the one case, and not in the other ?
I have examined the case of Phœnix vs. Baldwin, (14 Wend. 62,) read from the Digest in the course of the argument, and the marginal reading certainly sustains, to the fullest extent, the judgment of the Court below. The Supreme Court of New York there, seem to hold that a defendant, who has procured the testimony of a witness residing abroad, to be taken under a commission, is not bound on the trial of the cause, upon the requisition of the adverse party, to call the witness, tvho is then in Court, and examine him viva voce, but may read his deposition as taken under the commission.
We cannot subscribe to this decision. Indeed, the Court, in its opinion, which is only five lines in length, do not advert at all to this point in the case, although it was fairly made in the record, and embodied in the head notes, by the Reporter. And what is still more singular, the case of Fisher vs. Dale, (17 Johns. R. 344,) is cited as authority in support of the principle, which is rather a precedent for the other side. There, the depositions of a witness residing abroad, were taken under commission, and read on the trial. There being no verdict, application was made to' allow a second commission to issue ; to which the Court said they saw no solid objection. “ The examination of witnesses in a Court of Chancery,” continues the Court, “ is private ; and the proceedings of that Court, in relation to the manner of taking testimony, is so different from that of Courts of Law, that the reasons on which the practice in Chancery is founded, do not apply here. Suppose a witness has not answered some of the interrogatories,
I would add, that the cases of Doe ex dem. Sergeant vs. Adams, (1 Tyler, 197,) and Stiles vs. Bradford, (4 Rawle, 374,) maintain directly, that a deposition cannot be read in evidence, when the deponent is in Court and capable of being examined. And many respectable authorities may be cited from other States, to show that where depositions are taken under a rule of Court, or Act of the Legislature, that they cannot be read, if the witness be within the jurisdiction of the Court, or reach of its process. Tompkins vs. Wiley, 6 Rand. 242. Read vs. Bertrand, 4 Wash, C. C. R. 558. Rogers vs. Raborg, 2 Gill. & Johns. 54. Darnall vs. Goodwin, 1 Har. & J. 282. Ib. 264.
When it is recollected that depositions are admitted, only from the necessity of the case; that they are an unsatisfactory species-of evidence not known to the Common Law, and in derogation of it ; that it is but of a secondary character, and is therefore subject to the rule of law which forbids such evidence when better evidence exists, and is in the power of the parties ; that the oral testimony of the witness, in the presence of the Court and Jury,, is much better evidence than his deposition can be ; we feel constrained to rule, that whenever it is in the power of the party, he is bound to resort to it, and that he will not be allowed to substitute a kind of proof inferior in its nature.
Neither witnesses, however, nor the commissioners who take their testimony, are always dictionary-makers, and it will not do, therefore, to subject this testimony to so severe a test. Language must be construed in its ordinary import, and it will be found that persons usually employ the word presume, to admit or affirm, modestly or hesitatingly, a positive fact within their knowledge, and about which they are interrogated. Who ever answers yes to the question put to them, as to their candidature for office, their approaching nuptials or their participation in a usurious contract ? The respondent, seeking a veil to conceal his confusion, falteringly the thing is or may be so. Such, we have no doubt, was the meaning of this witness. The note was payable to himself, he had renewed it, and consequently knew positively whether it was or was not usurious. Butunwilling to face the transaction without disguise, and to admit that he had broken the first law made for mankind, after the fall, which was, that in the sweat of their own face, they should eat their bread, and not in the sweat of other people’s ; and still more' reluctant, perhaps, to testify to his own undoing, frankly to admit facts which would forfeit all interest on the original sum loaned; and yet, resolved not to testify falsely, the witness states that he “ presumes the note was renewed at 16 per cent, per annum, but will not (he does not say he cannot) state positively ; and that if renewed at all, (he had already sworn that it was,) “it,” that is, the usurious interest, “ was added in the note.”
Our conviction is, that this testimony should have been submitted to the Jury. The judgment is therefore reversed, and the cause remanded for firrther proceedings.
Note. — See Craft vs. Jackson, Adm’r, 4 Ga. R. 360. — [Rep.]