Jackson ex dem. Potter v. Bailey
2 Johns. 17
N.Y. Sup. Ct.
1806
Check Treatment

Lead Opinion

Thompson,

J. It seems to be well settled, and indeed, is not denied by the plaintiff’s counsel, that where a person who gave evidence on a former trial, between the same parties, in the usual and ordinary course of proceedings jn courts of justice, be dead, upon due proof of such trial, and the death of the witness, it is competent to prove what such witness had formerly sworn-* But it is said, that this rule ought not to be extended to téstimony taken before the Onondaga commissioners. 1 am unable however to discover any substan-*iftI reason f°r the distinction. These commissioners were duly constituted a tribunal, to hear and determine *20disputes, relative to the very land in question, and to administer an oath to witnesses. Oportunity was given for cross-examining witnesses ; and it appears that the title now in question, was actually litigated before the commissioners. I understand it to be admitted by the case, that a trial was finding at the time the witnesses were sworn, and that no objection was made respecting the mode of proving, that such trial was pending. The objection only went to the admissibility of proof, as to what the witnesses had sworn. What a deceased witness testified on a former trial, is only to be ascertained by the testimony of some person present, who was under circumstances to know and remember his evidence, no records being kept of what witnesses swear in courts of law. This species of evidence is admitted, eoc necessitate, and must be left to the sound discretion of a jury, under the direction of the court, to give it such weight as it merits. The general rule is, that when any matter, sworn at a'former trial, is given in evidence, it must be between the same parties, otherwise, no opportunity would be given for cross-examining the witness. The present case falls strictly within this rule. But even the want of an opportunity for cross-examination, has not been deemed sufficient to exclude this kind of evidence. For it has been ruled, that if witnesses who were examined on a coroner’s inquest, be dead, or beyond sea, their depositions may be read ; for the coroner is an officer, on behalf the public, to make inquiry about the matters within his jurisdiction ; and therefore the law will presume the depositions before him, to be fairly and impartially taken. (1 Lev. 180, Buller, N. P. 224.

My opinion, therefore, is, that the testimony offered was competent, and ought to have been received, and that a new trial must be awarded, with costs to abide the event.

Kent, C. J. Spences, J. and Tompkins, J. concur*21rej.

1 Strange 162. 3 Burr 1255. 2 Lord Raym. 1166. 2 P. Wms. 563. 2 Shower 47. Lit. Ab. 765.



Dissenting Opinion

Livingston, J.

I dissent from the opinion iust r . _ r / delivered. In cases where evidence has been received 0f what a witness, since dead, testified on a former occa-1 si on, it seems not only necessary to show a lis pendens, but, that no other proof will be allowed of this fact, short of the verdict, or at least, the postea ; it is even said, that there must have been a decision, and that the testimony offered must be in support of it. What proof it was intended to give of trial, in this case, or whether any determination was made by the commissioners, does not appear. But, without inquiring when, or how, such evidence be admissible, after a regular trial at law, and a decision by a jury, on the fact litigated, or whether ore tetms examinations before a board, thus organized, can ever become evidence on a subsequent trial, or, attempting to lay down general rules, applicable to cases of this nature, which is always dangerous, I see no reason for changing the opinion given at the circuit.

It must be admitted, that receiving information of the declarations ofa witness, not reduced to writing and signed by him, from any person present, Whether one of the court or not, can never be very satisfactory. Who can be supposed so much interested in what is going on at a trial, as not only to attend minutely to all that witnesses say, but to take the trouble of committing it so well to memory, as to be able to give a faithful relation of it, at any time, however distant ? With a memory ever so well exercised, some part may escape which did not appear material, and yet may have been essentially so. If notes were taken, which, though it does not appear was probably done in this instance, they must be incorrect, or imperfect, since error is almost unavoidable in the hurry of a trial. . After all, who can say what -effect the testimony, if faithfully detailed, ought to have, if taken in connexion with the other evidence, that may have *22been produced on the former hearing, and which may not now he in the power of the opposite party? Suppose the character of the witness to be bad, would it not be an akward, if not a novel thing, to go into that inquiry, after he had been for years in his grave ? It must already bo perceived, that objections to this .species of teS* timony are sufficiently strong to justify a rejection of it, even where there has been a regular trial, whenever it does not appear absolutely necessary to prove the particular fact for which it is offered. • Here the infancy of Ephraim Blowers was the fact to be established. His mother was living in an adjoining state, and her testimony could have been obtained, under a commission, iii less than a fortnight. Now, a mother must generally be a better witness of the age of a child than an uncle or aunt $ and while living, and so easily examined, a party should never be permitted to resort to inferior testimony, which might be a temptation to keep the living witness out of the way. Withont imputing any design to the defendant, it is somewhat singular, that a witness, so very important to him,, if she could really establish the infancy of her son, when he executed the deed in question, was not produced or examined under a commission. I am of opinion, therefore, that the postea ought to be delivered to the plaintiff.

New trial granted.