Martin v. Farnham

| Superior Court of New Hampshire | Jul 15, 1852

Bell, J.

The evidence of Boynton seems to us admissible. It tends to contradict the witness, Martin, as to the material fact of an actual and real transfer of the note in question to the plaintiff. Martin’s testimony was admissible only on the ground that the note had been so transferred. A formal transfer had been made; but any circumstance which tended to satisfy the jury that the transfer and apparent payment of the consideration for it was mere form, was calculated to destroy the weight of the witness’s evidence, both by the contradiction, and by showing a secret interest to misrepresent. In terms, there is no contradiction, but in effect, such evidence tends to satisfy a jury that the whole account of the transfer is substantially a falsehood and deception. That the account given by the witness is substantially inconsistent with that given upon the stand, is all which is required to render the evidence admissible on the ground of contradiction. The discovery of such a falsehood in substance, or of such an interest, artfully concealed, in the result of the suit, would naturally go far to destroy all the credit to which the witness might seem otherwise entitled.

The evidence on this subject was in no way affected by the release. The release was made by the plaintiff to • the witness, and discharged any claim which the plaintiff might have against him; but the tendency of the proof was to show that the transfer of the note was not real, and that the plaintiff, instead of having in any event a claim against the witness, was 'himself a mere trustee for the witness, holding and prosecuting the note for his benefit, and liable to account to him for whatever might be recovered in the action. To discharge such a claim, a release would rather be required from the witness to the plaintiff. The evidence to show such accountability of the plaintiff, and interest in the witness, was not rendered any the less material by the fact that the plaintiff had made a release to him.

The evidence of this witness also tends to show that the witness, Martin, had heretofore given an account of his situation and relation to this case, substantially different from and inconsistent with that he now gives upon the witness stand. He now represents himself to the jury as having no interest in these notes, or in the result of the suit; in effect, that he was absolutely disinterested; while he had stated to this witness that though he had let his son have the note, yet if it was lost, his son would not lose it — of course he should have to lose it, and meant to save what he could. This statement seemed to show that he must still have nearly as strong feelings in the case, and must testify under nearly as strong a bias, as if he were in fact and in law the party in interest.

It is always a material question, what is the state of feeling of a witness towards one or both of the parties. It is always proper upon a cross-examination, if there is supposed to be any occasion for it, to inquire whether the relations of a witness are those of a dependent or friend to one of the parties, or whether he has any#bias, or prejudice, or hostility, which might affect his testimony, or induce a jury to distrust his statements, or weigh them with care. The statements made, in answer to such inquiries, by the witness, are always regarded as material, and may be contradicted directly; or it may be shown that the witness has himself made representations substantially different. This principle is clearly established by the authorities cited for the defendant, particularly the case of Titus v. Ash.

In this view, and because the testimony of Boynton was calculated to affect the credit of Martin, by showing that in his own opinion he would be the person who would lose the note in case the action should fail, we think the evidence was properly admitted.

The objection to the deposition is not well founded. The objection is not that the deposition was taken after the Tuesday next preceding the commencement of the term, contrary to the general rule of the court. If such an objection could have been taken, it must now be held to have been waived. The exception is, that the term of the court is not properly described. The Revised Statutes, chap. 188, § 20, provide that the magistrate taking any deposition shall certify such oath, with the time, place and cause of taking the same, and the case and court in which it is to be used, &e. And the question is, if the court is sufficiently described. The language of the certificate is, “ to be heard, &c., at the court of common pleas to be holden at P., in the eastern judicial district of the county of G., on the fourth Tuesday of January, 1851.” Here the court is accurately described by its title, and the time when it was in fact to be holden at an adjourned term. No mistake is possible as to the court intended. The courts of common pleas are bound judicially to take notice of their own terms, both' general and special, and they must officially know that a term was to be holden on the fourth Tuesday of January, 1851. It might be more accurate to describe the court as to be holden by adjournment from its stated session, but the designation given, if not the best, is yet clear and unambiguous, and every purpose of the statute is effectually answered, and there is a sufficient compliance with its terms.

If the time of holding the court had been entirely omitted in the caption, there could hardly be a doubt of the court at which the evidence was to be used.

Judgment on the verdict.