Rich v. Trimble

2 Tyl. 349 | Vt. | 1803

Tyler, Assistant Judge.

The State statutes provide for the taking the depositions of witnesses out of the State, to be used in the Judicial Courts within it, and the deposition of the subscribing witness might have been taken in this case.

The term " process f as commonly applied, intends that proceeding by which a party is called into Court, but it has a more enlarged signification, arid includes all the proceedings of the Court from the beginning to the end of a suit, and is defined in the books, “ processus ; a procedendo ab initio usque ad finem.” And in this view all proceedings which may be had to bring testimony into Court, whether viva voce or in writing, may be considered to be within the process of the Court.

Jacob, Assistant Judge. I agree with my brother Tyler. There are two modes of obtaining testimony to be used in Court; one by bringing the witness into Court by process of subpoena ad testificandum, or in case of wilful neglect of appearancby capias; the other by taking the deposition of the witness, by the aid of government if the deponent lives within the State, and upon the party’s own aplication if the witness resides in another State or dominion; but when the deposition is returned into Court, it is incorporated with the proceedings or process of the Court. I am therefore for not admitting the execution of the alleged release to be proved by comparison cf hand-writing, as within the case of Pearl v. Allen.

Chief Judge. Whether the case cited is in point, and the rejection of the comparison of hand-writing in this case can be included in that case or not, I am against the admission of comparison of hand-writings, to show the execution of this release. I consider that our statute has made ample provision for the taking of depositions in civil causes. That when a question arises whether the presence or the deposition of a witness shall be supplied by a comparison of hand-writing, or other lesser evidence, in case the witness lives beyond the territorial lines of the State, the inquiry must be, whether the place of his residence is known with precision, and whether it is within such reasonable distance as that the party might procure his deposition ? In this case I consider, that the place of residence of the subscribing witness being ascertained, and within reasonable distance, the defendant might readily have obtained his deposition, and therefore I agree with the assistant Judges, that a comparison of hand-writing to prove the plaintiff Lucretia’s signature to the release, cannot be admitted.

Samuel Miller and Moses Strong, for plaintiffs. W. C. Harrington and Amos Marsh, for defendant.

Evidence not admitted.

Verdict for plaintiffs, 200 dollars.