| Vt. | Feb 15, 1826
For the purposes of correct and regular proceeding, and as far as possible, of placing the claims of parties upon equal footing, in the trial of causes, all courts are presumed to have adopted certain rules, applicable to the order in which testimony shall be given. The rule is, that the party on whom rests the burden of proving any fact, shall first proceed with evidence for that purpose, and if no testimony is given, tending to disprove the fact thus attempted to be established, no farther testimony will be received upon that point. A departure, however, from this course, in the county court, has never been held by the Supreme Court, cause for reversing judgment, and unless the order of proceeding shall have been such as is evidently calculated to give an undue advantage, it would not be the duty of this Court to interfere.
The record shows, that the defendant below offered to give evidence of a contract or agreement, between himself and the corporation, that if he would not oppose the passing of the act of 1822, the defendant, and all the inhabitants of Mountholly, should pass the gate toll-free. Whether the testimony was rejected on the ground, that defendant did not desist, or that he procured the conditions to be annexed to the act, without the consent of the corporation, or that the contract was against sound policy, does not appear; but that such contract is against sound policy, prejudicial to correct and just legislation, and of course void, is not to be questioned.
Depositions are, by our statute, admitted as evidence contrary to the rules of common law, and they are a kind of testimony, not highly favoured. A strict and literal compliance with the statute is necessary, and the courts have refused to permit parties to avail themselves of such testimony, although the forms required may have been strictly pursued, where there has been any deceit or fraud practiced in the taking.
It is insisted, that the certificate of the magistrate is conclusive ; this is not agreeable to the practice in this Court, nor is it correct. If the certificate is defective, parol testimony is not admitted to supply the omission.
The magistrate, in taking testimony to be improved in court, is acting in the character of an agent of the court, and no deceit practiced by him, or upon him, will be sanctioned.
If the cause certified, for taking the deposition, is the sickness of the deponent, or that he is going out of the state, would hot the Court hear testimony of his being present in court at the time of trial? or-would they permit a deposition, taken in Woodstock, to be read, though certified to be more than thirty miles from the place of trial ?
The withdrawing the deposition, and improving the deponent afterwards, as a witness upon the stand, might perhaps cure the error, if the case showed the oral testimony to have been the same as contained in the deposition. But in recurring to the record, it appears, that the testimony given on the stand, was in addition to the facts contained in the deposition, and the judge, in Charge, refers the jury to the deposstion, as testimony : we are not, however, inclined to rest the opinion wholly upon this point.
The defendant below was, by reason of his employment at the time he passed the gate, exempt by the statute from the payment of toll. The mannertbf passing in the morning, as appears from the case, was unquestionably such as to subject a person to the penalty for forcibly passing the gate, who was subject to pay toll. It was the duty of the defendant to have given notice of his exemption; and the toll-gatherer would have been justified in resisting forcibly, without such notice.
But we consider the penalty does not attach to any one who is not liable to pay toll. If a person has paid toll, he has a right to open the ghte and pass, so that he does not commit a breach of the peace/and if he breaks the peace, although the law will inflict punishment upon hirn, yet not by imposing the penalty given by this statute. A conviction under the statute would be no bar to a prosecution for breach of the peace. The same principle will apply to the person who has commuted for a given period, and must also to a person who is exempt from toll by the proviso to the third section of the statute.
There is, therefore, error in the judgment, &c. and the same is reversed.