10 Ill. 186 | Ill. | 1848
The Opinion "of the Court was delivered by
This was an action of ejectment commenced by Gaty and others against Pittman. The plaintiffs claimed title to the premises by virtue of a plaintiff’s deed founded on a judgment in attachment against Meacham. The writ of attachment was levied on the 31st of December, 1841. The defendant claimed title by virtue of an unrecorded deed from Meacham, executed on the 22d of December, 1841. At the time of the levy of the attachment, one Mallows was in possession of the premises. The principal question on the trial was whether Mallows was the tenant of the defendant. If such tenant, his possession was constructive notice to the attaching creditors of the defendant’s unregistered deed. This state of case appears from the bill of exceptions, although it does not purport to contain all the evidence.
The Court refused an instruction asked by the defendant in these words : “That hearsay is not competent evidence upon which to found a verdict, and if the jury believe, that any portion of the deposition of-Johnson is mere hearsay of third persons disconnected with the suit, they will disregard such portions of said depositions.”
The deposition referred to in the instruction is not incorporated into the bill of exceptions, but enough of the case is reported to show clearly that no question arose on the trial, which would have justified the introduction of mere hearsay evidence. Ás a general rule, such evidence is wholly inadmissible. The exceptions to the rule are few and confined chiefly to questions of pedigree. When evidence which is irrelevant, or incompetent in any event to establish a fact, gets into a case in the shape of depositions or otherwise, it is the duty of the Court when required, at any stage of the trial, to exclude it, or direct the jury to disregard it. There is a clear distinction between this sort of proof and secondary evidence. The former is never admissible ; the latter always is, when the primary proof cannot be produced, and if admitted without objection, it becomes a part of the case, and cannot afterwards be excluded, because, though not the best evidence, it is still relevant, and tends to elucidate the question in issue. The party, by permitting it to be introduced, dispenses with the production of the superior evidence.
It is insisted that the instruction was inapplicable to the facts of the case, and therefore properly refused. If withheld on that ground, the bill of exceptions should so state; or the deposition should be sent up to enable this Court to determine whether the instruction was pertinent or not. Where the Judge states in the bill of exceptions that an instruction is refused because inapplicable, this Court will no.t further inquire into the propriety of the decision, unless the evidence is reported to which the instruction is claimed to apply. But where, as in this case, an instruction asserts a correct legal principle, and points directly to evidence in the case, unless it affirmatively appears from the bill of exceptions, that it was considered inapplicable, it is but fair to conclude that it was refused because the Court believed it to be erroneous.
It is further insisted, that the question whether the deposition contained improper evidence should have been referred directly to the Court for its decision. It is true, that might have been done; but we can see no objection to a direction to the jury to disregard the statements of the witness, if they found that he had testified from information derived from third persons, and not of facts within his own knowledge. In many cases, there is a manifest propriety in this practice. Whether the evidence is lawful or not, may often depend on the proper conclusion to be drawn from a complicated state of facts, which the jury are, at least, as competent to arrive at as the Court. In this case, the evidence in connection with the deposition may have left it doubtful whether the witness spoke of matters on his own knowledge, or on information received from others; and that question should have been referred to the jury, to be determined as every other question of fact, under the instructions of the Court.
The judgment of the Circuit Court is reversed with costs, and the cause is remanded for further proceedings.
Judgment reversed.