Kimball & Rowe v. Davis & Brown, 19 Wend. 437

Kimball & Rowe v. Davis & Brown

19 Wend. 437 | N.Y. Sup. Ct. | 1838

By the Court,

Nelson, Ch. J.

It is contended that some of the depositions taken under the commission executed in the case were improperly admitted, for the reason that it does not appear that the last general cross-interrogatory proposed by the defendants was answered by the .witnesses. The statute, 2 R. S. 394, § 16, gives no directions in this respect, but there are respectable authorities which consider the objection fatal, 3 Wash. C. C. R. 108; 4 id. 324; and the reason assigned is, that unless all the interrogatories are substantially answered, it is impossible to say that the witness has told the whole truth. It is, perhaps, the safest crule to require the return of the commission to show affirmatively the answers to all the interrogatories ; though, I apprehend, in most cases, the omission in respect to this general interrogatory, means only that the witnesses had nothing further to relate. But assuming the omission prima facie to be a fatal defect, the fact that the omission was executed in the presence of the counsel of the parties, cured it, because then the inference is but reasonable that all the answers considered by the counsel material for the defendant were put down. If not, and improperly withheld, the counsel should have made a motion to quash the return to the commission for the irregularity, and not take his adversary by surprise on the trial. . The point may be said to stand somewhat on the familiar principle in regard to the trial of causes, where, if a defendant does not appear and défend, he is presumed to take all legal exceptions; but if *440he appear in person or by counsel, none are usually regarded |)ut tjlose ma(je at t¡me ; an(j especially none which might have been removed if taken.

The counsel for the defendants proposed to prove declarations of some of the deponents in the commission, made since the execution of it, contradicting material facts therein affirmed by them, which were rejected by the judge. The Queen's case, I think, is decisive upon this point. 2 Brod. & Bing. 129. It was there determined by all the judges, that when a witness in support of a prosecution has been examined in chief, and had not been asked on cross-examination as to any declarations made or acts done by him to procure persons corruptly to give evidence in support of the prosecution, it is not competent for the party accused to examine witnesses in his defence, to prove such declarations or acts without first calling back such witness examined in chief, to be examined or cross-examined as to the fact whether he ever made such declarations or did such acts ; and the rule is equally applicable where the counsel discovered the evidence thus proposed after the cross-examination of the witness, and where he had departed the court and could not be brought back. Ch. Justice Abbott, who delivered the opinion of all the judges, observed, that the practice at nisi prius, and without any exception known to the judges, was this: if it be intended to bring the credit of a witness into question, by proof of any thing that he may have said or declared touching the cause, the witness is first asked upon his cross-examination, whether or not he has said or declared that which is intended to be proved. The learned chief justice argued strongly in favor of the practice, on the ground that it affords the witness an opportunity of giving such explanation or exculpation of his conduct, if any there be, as the particular circumstances of the transaction may happen to furnish, and thus the whole matter is brought before the court at once ; that it tends to prevent surprise as otherwise the evidence in contradiction might be produced after the witness had left court and when the opportunity for explanation had been lost, which would be unjust both to witness and party. See also p. 301 of same volume, and *4411 Starkie’s Ev. 183, 4th Phila. ed. 1834. This rule of evideuce has been since applied with even more strictness than as laid down in the Queen’s case; for in Angus v. Smith, 1 Mood. & Malk. 473, Tindall, Ch. J. observed, “ that before you can contradict a witness by showing he has, at some other time, said something inconsistent with his present evidence, you must ask him as to the time, place and person, involved in the supposed contradiction,” and this with a view to bring distinctly to his recollection the circumstances, and thereby enable him to explain what he had formerly said. The reporters add, in a note, that although the rule in the Queen’s case was not laid down thus strictly, the practice at the circuits has ever since been in conformity to the doctrine above stated.

I am aware it may be said, that in the case of depositions taken under a com mission there is no opportunity to call the attention of the witness to the inconsistent declarations or acts, and that therefore it should be made an exception to the general rule; but I do not perceive any reason for a distinction between this and the case where the discovery of the evidence occurred after the cross-examination was ended, and the witness had left court and could not be brought back. All the judges in the Queen’s case refused to make this an exception. 1 Starkie's Ev, 184, Phila. ed. 1834. 2 Brod. & Bing. 212. There is an additional reason for the application of the rule in a case like this, as otherwise a strong temptation would exist to tamper with witnesses to pervert of manufacture conversations, after the execution of the commission and when explanation would be impossible. Neither is there any particular hardship in the application of it, because, if the proof is material, it is always in the power of the party to renew the commission and comply with the rule. The case of The People v. Moore, 15 Wendell, 419, was referred to on this point, as favoring the views of the defendants ; but it will be seen on examination, that there this particular objection was not raised to the evidence discrediting the witness ; and if so, it is to be considered as- waived.

*442It is contended that some proof of identity of the patentee Legge and the grantor of the same name, to Rowe, should have been given. The law, I think, was otherwise established in the case of Jackson v. King, 5 Cowen, 237, and which was there supposed to have been previously settled in Jackson v. Goes, 13 Johns. R. 518, and by the uniform practice of the court. In Jackson v. King, the lessors of the plaintiff sought to recover a tract of land as the heirs of one William Apple. They produced an ancient patent from the government to a person of that name, and then traced" their pedigree back to William Apple, by the production of the records of the Dutch Church in the city of New York, extending to a. time a little anterior to • the date of the patent. The judge at the circuit nonsuited the plain»tiff assigning as a reason that William Apple, the ancestor, was not sufficiently 'identified with the patentee of the same name. The court granted a new trial on the ground that the identity of name was prima facie sufficient, and that it devolved on the defendant to rebut the inference by showing another of corresponding name, age, &c. or in some other way. It appears to me impossible to distinguish the two cases in principle, as their substantial features in respect to this point are alike, the suit being brought in the one case by the grantee, and in the other by the heir. The identity of the ancestor with the patentee was just as material as that of the grantor with him here, in order to vest the title in the plaintiff—and in both cases it is to be inferred, prima facie, from the identity, of name. Indeed, it may fairly be argued that the inference is the strongest in this case, because, in .addition to the identity of name, is the presumption that the subscribing witness would not have attested the execution by any other person than the one described in the deed: that happens to contain evidence of identity. Even an acknowledgment of a deed under the statute, 1 R. S. 758, § 9, does not usually prove the identity which was required to be shown in this case ; for there it is only material to certify that the officer knew or had satisfactory evidence that the person who appeared was the grantor described in the deed.

*443There need not be given in the deed such a description as would identify this person with a patentee of the same name, or any other person. It seems to me, if proof of the signature of the witness amounts to any thing, it must be carried, in the first instance, as far as an acknowledgment goes ; otherwise it affords no evidence of the execution at all; because so much is essential to make out what the face of the deed purports, or any proof of the execution ,by the grantor. Lord Ellenborough goes this length in Milward v. Temple, 1 Camp. 375, and the same doctrine was held by Buller, J. in Adams v. Kers, 1 Bos. & Pul. 360, I.

Whether proof of the identity of the grantor or obligor, in addition to the signature of the subscribing witness, is necessary or not, is a point very much afloat in England. The cases of Parkins v. Hawkshaw, 2 Stark. R. 223, Nelson v. Whittall, 1 Barn. & Aid. 19, Middleton v. Sanford, 4 Camp. 24, Mancot v. Bates, Bull. N. P. 171, and Whitlock v. Musgrove, 1 Cromp. & M. 511, are in favor; and Adams v. Kers, 1 Bos. & Pul. 360, Gough v. Cecil, 1 Selw. N. P. 467, n., Milward v. Temple, 1 Camp. 375, Page v. Mann, 1 Mood. & Malk. 79, Mitchell v. Johnson, id. 176, Kay v. Brookman, 3 Carr. & Payne, 555, Doe, ex dem. Wheddon, v. Paul, id. 613, against the necessity of the evidence of identity. In the case of Mitchell v. Johnson, Lord Chief Justice Abbott held proof of the signature of the subscribing witness sufficient, even where the obligor had signed with his mark. In Kay v. Brookman, Campbell, for defendant, said the point was vexata questio, Mr. Justice Bayley holding one way and Lord Ch. J. Tenterden the other; but Best, Ch. J. presiding, said that he had great respect for his brother Bayley, but he felt bound to act as his predecessors had done ; that the uniform practice had been only to prove the hand-writing of the attesting witness. Such, I think I may add, has been the uniform practice in this state since the case of Mott v. Doughty, 1 Johns. Cas. 230, and Sluby v. Champlin, 4 Johns. R. 461.

New trial denied.