Mott v. . RamsayMott v. . Ramsay
- Reporters:
- Before:
- Merrimon
In this case it was referred to a referee, the defendant objecting, to tаke and state and report an account of frequent and complicated money transactions between the plaintiff and defendant. Before the coming in of the report of the referee, the Court submitted to the jury an issuе of fact.
On the trial of this issue, the plaintiff offered in evidence a minute in writing of the testimony of a witness examined before the referee. To this the defendаnt objected. The Court overruled the objection and the defendant exсepted. We think the exception must be sustained. The minute of the testimony was nоt a deposition in the sense of the statute providing for the taking of depositions to be read as evidence on trials in the courts, in the cases allowed by law, nor is there any statute or general principle of law that makеs such minutes evidence on such trials. Referees are required generally to note and report the evidence received by *153 tliem in matters referrеd to them, but this is matter of practice, .and it is required with a view to a review by the Cоurt of their finding of facts in some cases, and in others, to enable the Court to dеcide upon exceptions that may be made to the report. The loose, .sometimes careless and imperfect, minutes of the testimony of a witness taken by a referee would give the jury a very unsatisfactory accоunt of what he really testified to before him. Unless by consent, such minutes are not competent as evidence in jury trials.
It may be said, that the objecting party wаs present and cross-examined the witness before the referee, and sо he may have done, but not with the view to take his deposition; he examined him оnly for the purpose of the reference and before a tribunal very different from a jury.
There is neither statute, nor principle, nor practice that warrants the admission of such minutes as evidence in jury trials.
The case settled upon appeal for this Court, states that, “the plaintiff offered in evidencе certain paper-writings, as and for exemplifications from the Treasury Department of the United States, copies of which are hereto aрpended, marked B., C. and D., as part of this case.-”
The defendant objectеd to the admission in evidence of these paper-writings. The court overruled the objection, and the defendant excepted.
We have not been favored with an argument in favor of the appellee, and, unaided by cоunsel, we are wholly unable to discover any, the slightest, authentication of thе papers thus objected to. We find upon a careful examination of them, that they purport to be copies of correspondence between officers of the Treasury Department of the United States in resрect to parts of the Internal Revenue Service in this State. They embody facts that may be very material on the trial of the cause; but they are not authenticated at all; they simply purport to be copies of officiаl correspondence wholy unauthenticated. It does not appear from the record before us, that they were in evidence before the referee; *154 but, if they were, this did not make them competent on the trial of thе issue of fact, submitted to the jury, unless by consent of parties.
No question seems tо have been made as to the competency of the papеr-writings as evidence, if they had been properly authenticated, and we еxpress no opinion in that respect. As they appear to us, they were not authenticated at all, and the exceqition must be sustained.
The appellant is plainly entitled to a venire de novo and we so. adjudge. Let this opinion be certified to the Superior Court according to law.
Venire de novo.