14 N.J.L. 487 | N.J. | 1834
This case was brought before the court on an application to set aside a verdict which had been rendered for the plaintiff, and grant a new trial. On the argument of the case at the last term, an opinion was intimated by the judge who tried the cause, that a new trial ought to be had; as one matter of fact important to be ascertained, before any judgment should be given for the plaintiff, had not been submitted to the jury, or their attention not properly directed thereto, by the counsel or the court.
Without expressing any opinion on that point, I assent to the propriety of granting a new trial; as the cause is important, and there are upon the whole case, reasonable grounds to apprehend, that justice has not been done; or at least, that the matters are worthy of a further investigation.
Having come to this conclusion, there is perhaps, no strict necessity of pursuing the subject further. But as the case is to be brought again to trial, and several points which have been here fully discussed, may arise at the circuit, it would seem to be best for all parties concerned, now to express an opinion on those points, so far as fairly up before the court.
The first and great question involved in the case, and which strikes at once at the foundation 011 which the verdict rests, is the admissibility of the written deposition of Hannah Strong. This deposition was intended to be taken and given in evidence, under the statute of this state, to be found in Rev. Laws, 488-9, sec. 5, 6, 9. It sufficiently appeared on the trial, that Hannah Strong, was then out of the state. Nor was any question made as to the sufficiency of the reasons for, or notice of, the taking of the deposition or examination. But it was objected that the deposition was not wholly reduced to writing
Again, it is objected, that it does not appear, either by the certificate of the magistrate, or otherwise, that the .deposition was reduced to writing by him, or the witness in his presence. That I think this material, already appears, or may be inferred from what has been said. It has also been so decided in the case of Bell v. Morrison, 1 Peters, 352, upon a like statute. But in this particular case, it is insisted the objection is not sustained by facts. That the certificate is silent on the subject, is true; nor does the report of the trial speak one way or the other. But as the magistrate who took the deposition, was examined as a witness, on the trial, both with regard to the manner of talcing and transmitting it, it must have been well understood by the
But the objection most strenuously insisted upon, was, that the deposition was not retained by the magistrate in his own possession, till he transmitted it to the court, under his seal, by a proper messenger, or delivered it with his own hand. The inspection of it would have led to the conclusion, that it had been regularly kept, transmitted and filed. But a different history of its progress was shown by the examination of witnesses before it was read in evidence. In this way it was made to appear, that it was handed, duly sealed up, to A, to deliver to B, to carry it to the coiirt. But it was not then directed to be filed, because B, who brought it, could not swear, that he received it from the magistrate himself. B carried it home, and kept it with his other papers, and after some time had elapsed, transmitted it, by the party at whose instance it was taken, to the magistrate. He testified, that when sent from him, it was enclosed, sealed up, his name written over the seal, and directed to the judges of the Supreme Court; and when returned to him it appeared to be in the same condition; and that there was no appearance of the seal having been violated. It
An objection was also taken to a certain part of the testimony of Charles H. Halsey, esquire. The objection was placed on two grounds; first, that it was the allegation merely, of the party offering the evidence; and secondly, that it was a confidential conversation between him and his counsel, with a view to an action, the witness being, at the time, the counsel’s clerk. I am inclined to think the first reason ought to have prevailed. I have not been able, either on the argument, or since, to discover any reason sufficient to except this from the general principle, that a party's own allegations are not evidence for him ; though, perhaps, there is room for doubt, under the peculiar aspect presented by the question, resulting from the facts in the cause. The other branch of the objection, that it was a communication which the law will not permit to be revealed, rests on no solid foundation. The protection is in favor of the client, who may waive it, as he may any other privilege. The doctrine of mutuality, which was set up, does not apply. The eases are innumerable, where an allegation or admission may be given in evidence by one party, when it cannot be by the other.
The defendant further offered to prove, by Aaron Johnson,
I deem it not improper to remark, that one of the counsel, in the argument of this cause, insisted that they were prepared, on the trial, (as he then supposed, and took for true, on the discussion,) to prove by the written examination itself, what was or was not contained therein. This, however, was not admitted by the adverse counsel, and it does not so appear by the case as reported, or agreed upon. If the examination had been shown, and what was proposed to be proved, had not in any form appeared therein, a different question would arise.
It was further objected, that the defendant was improperly refused liberty to prove, that about the time the supposed bond bore date, the supposed obligor frequently declared that he did not intend to give his son Anthony, the plaintiff, any thing; that he had had his share of the estate. But I can find no er. ror herein. The attempt to draw an analogy between this bond and a testament and last will, was not successful to my mind. A will imports a bounty; a bond, a duty. To let in this evidence would be to enable a party by his own declarations to defeat his own solbmn contract; a thing iinheard of. Nor am I satisfied that the evidence would have been admissible on a question of will or no will. No authority was cited in its support. In the case of Den v. Vancleve, in 2 South, somewhat similar evidence was held admissible in support of a will, by the opinions of two judges against one. A somewhat different view of the same question, on .the same will, was taken in the Circuit Court of the United States. 4 Wash. C. R. 262, Stevens & wife v. Vancleve. In this conflict of opinion, I deem it imprudent to express any.
It would now be wholly useless, if not prejudicial, to express any opinion on the question of newly discovered evidence, or the weight of evidence, beyond what has already been said. And as the objection to the validity of the bond, is, in my view, apiparent on the record, I prefer leaving it to be decided, when necessary, on a different motion. I think it ought not to embarrass the trial of the fact at the circuit. At least, I am not so clear that the bond is invalid, as to warrant me, under my
My difficulty on this part of the case, was intimated on the-argument. It is now repeated, rather with a view to inquiry, and of calling the attention of counsel to it, than to its present decision, which is not really necessary.
But upon some of the other matters, involved in this case, I am of opinion, as above intimated, that the verdict should beset aside, and a new trial granted. The costs of the former-trial, to abide the event of the suit.
Ford, J. concurred.
New trial granted..