Lisbon v. Bath

23 N.H. 1 | Superior Court of New Hampshire | 1851

Bell, J.

A question to one of the plaintiffs’ witnesses was objected to as leading, at the caption, and again at the trial in the court of compaon pleas. The verdict being against the defendant, lie furnished a note of the exceptions, on which'he based his motion for a new trial, and did not include this exception, nor in any way insist upon it. If a party is silent at the taking of a deposition, when an objectionable question is put, or an inadmissible answer is given ; or if he is silent, when such a deposition is offered as proof to a jury, it is well settled that the exception can never be taken afterward. It is waived ; and once waived, it is gone forever.

In this case the exception being taken at the trial, the defendant might have insisted upon it, and it would then probably have been transferred with the other questions to the superior court and decided. But he did nob insist upon it, nor ask that the question relative to it might be transferred. We think this a waiver of the exception, for a waiver is but a neglect or designed omission to insist upon a matter, of which a party may take advantage, at the time when it ought to be done, so that it must operate as a trap to the other party to revive and insist upon it afterwards. If a defect of any kind in the evidence is seasonably urged and insisted upon, the party has, in most cases, an opportunity to retake or supply his evidence, and thus remedy the difficulty. The silence of his opponent defeats and prevents any effort to do this, and it is unreasonable that a man should take advantage of a defect which he may be deemed thus indirectly to have occasioned.

The objection to the witness’ answer, that he did not testify from recollection, does not seem to us to be well founded in fact. A very exact analysis of the force of the expression, “ I have the impression,” shows that it does not necessarily imply recollection, but such impression may be matter of inference. But we understand this expression to be used familiarly and colloquially as equivalent to this, “ I have an indistinct recollection.” We think it is ordinarily used in this sense, by persons not well educated or attentive to their modes of speech, and is ordinarily so understood by every body. If a party supposes this phrase is used with a different sense by the witness, it is for him to show how the fact is, by proper inquiries ; otherwise the court may well suppose the jury understand it, as with our knowledge of the common nse of the words, we suppose the witness to have meant. This objection was waived, at the taking of the deposition by the neglect to object to it. If tbe objection bad then been made, tbe plaintiff might bave then removed all doubt by further questions. In bis answer to one of tbe questions proposed by tbe defendants, tbe witness gives bis probable meaning in tbe former answer, “ I recollect tbe tax paid to Lang more definitely than tbe taxes of other years,” &e. It would seem that tbe ground taken at tbe trial by tbe plaintiff, as it is now in tbe argument, was that the whole tax was in fact paid by tbe pauper in this way, tbe collector was uncertain whether tbe tax was a little over.or a little under three dollars, and be said if tbe pauper would pay three dollars be would discharge or cross out tbe tax; and that was in substance and effect, that if tbe tax was over three dollars be would pay tbe balance for him; and that when tbe collector paid over tbe residue of tbe tax, be paid this little balance, as be had agreed to do. Tbe evidence bearing upon this point, taken in connection with tbe proof, that tbe defendants bad not long after, and while tbe transaction was recent, relieved tbe pauper for two years, as a person who bad bis settlement in Bath, was clearly sufficient to justify tbe jury in finding tbe fact to be so, if that seemed to them to be tbe fair result of tbe evidence, tbe balance of tbe probabilities in tbe case.

It is not that clear and apparent case of an erroneous or wrongful verdict which calls upon tbe court to set it aside as against evidence; but, on tbe contrary, if tbe question upon tbe precise evidence given in this case bad arisen between tbe collector and tbe pauper, upon an attempt by tbe former to enforce tbe collection of tbe balance, there would probably bave been but one result in any body’s mind : namely, that tbe tax was paid. Tbe court will not set aside a verdict as against tbe evidence, merely because they might, upon an examination of tbe evidence, have arrived at a result different from that found by tbe jury ; nor will they set it aside on this ground, where tbe credibility of witnesses is to be considered, presumptions are to be made, and inferences to be 'drawn; and where tbe nature of tbe evidence is sucb, that different persons might reasonably have different impressions concerning it. Wendell v. Safford, 12 N. H. Rep., 171.

Judgment on the Verdict.