7 Pa. 433 | Pa. | 1848
The narr. originally filed is framed on the pi’omissory note endorsed by the defendants to the plaintiffs, in payment of goods sold by the latter to the former. Under this declaration the cause was arbitrated, and an award made in favour of the plaintiffs, from which the defendants appealed. On the
The second specification of error, too, is well founded. The fact that Alexander Cor jell was a resident of the state of New Jersey constituted no valid objection to his deposition. It is the constant practice to take the testimony of persons residing without the Commonwealth, under rules granted for that purpose, in order to avoid the expense, delay, and difficulty attending the execution of a commission; and witnesses who come temporarily within the jurisdiction with a view of having their testimony put in the shape of a deposition, are to be regarded as going witnesses, within the meaning of the rule adopted on that subject by most of the courts of this state. Nor is any obstacle to the reception of the deposition rejected, afforded by the subsequent execution of the commission under which the testimony of the same witness was taken; Hoffman v. Kissinger, 1 Watts & Serg. 277. As is shown by this instance, the memory of the witness may become imperfect -as to the particular transaction in the interval between the first and second deposition, or he may be tampered with by the adversary, and it would not be fair to subject the party seeking to use the evidence to these contingencies, though their existence would certainly afford ground for legitimate remark before a jury.
Though, strictly speaking, the notarial certificate of protest might have been received on the faith of the seal of the notary, who is an officer said to be recognised by the whole commercial world, (Mullen v. Morris, 2 Barr, 85,) and in an action on foreign bills of exchange, ought to have been received to prove the essential fact of protest, yet, in this instance, its rejection was immaterial. Being the work of a foreign notary, it was no evidence of demand on the maker, or notice of non-payment to the endorsers; and as protest of a promissory note is superfluous, the introduction of the protest as proof of this would not have helped the plaintiff’s case; Fitler v. Morris, 6 Whart. 406; Etting v. Schuylkill Bank, 2 Barr, 357. Had the first deposition of the notary been received, his certificate, in accordance with it, might have been admissible as corroborative; but as the case stood, its rejection furnished no ground for reversing the judgment.
The remaining portions of the charge of the court in which error is assigned, not already noticed, may be considered together, and will be comprehended in a few general remarks. As the case was presented below, the court was right in saying there was no proof
Judgment reversed, and a venire de novo awarded.