3 Binn. 130 | Pa. | 1810
Lead Opinion
In this case there are two bills of exceptions. The first was to part of the deposition of Richard Dean. Tire bill appears to have been drawn in great haste, and is not as intelligible as could be wished. I shall adopt the construction put upon it by the counsel for the plaintiff in error, which is, that the only parts excepted to, were the first and third interrogatories and the answers to them. If that part of the deposition which precedes the interrogatories had been excepted to, I should have had great doubt on it; because it seems to have led to the disclosure of matter, which may be the subject of another action.
The objection to the first interrogatory is, that it is a leading one. I do not think the question was properly put; but the defendant should have objected to it at the time; he was present and cross-examined the witness. If it had been objected to, it might have been waived. It was too late to make the objection at the trial.
As to the third interrogatory, and the answer to it, there is nothing improper in either. I need say nothing on that subject, as nothing has been said in the argument.
The second bill of exceptions was taken on the rejection of the depositions of John Gresson and Peter Debow. They were rejected, because the notice of taking them was not sufficiently certain. It only mentions that they were to be taken »n the 20th February, “ at the house of Thomas Fan- “ negan in Bedford county.” This is certainly a very vague description of time and place. I am not for tying up the party to unnecessary strictness. It is usual to mention certain hours, between which the deposition is to be taken. I give no opinion however on that defect. But it appears to me, that the bare mention of the county is too-loose a description of place. If the township had been mentioned, or any place of notoriety in the neighbourhood of which the house was, where the deposition was to be taken, it might have done.
Upon the whole case, my opinion is, that the judgment be affirmed.
It is a satisfactory answer to the objectionnow made to the leading question proposed to Dean the witness, that it was not taken at the time; and so also as to what passed respecting the overloading of the furnace. If the judge on being appealed to, had declared that the latter conversation was evidence in this cause, I should have thought it erroneous; for another suit might be brought for this act, and damages would thus in such a case be twice recovered for the same misconduct.
I know of no other general rule, which has been adopted as to the form of a notice to take depositions, except this, that it .should contain convenient certainty, as to the time and place of taking them. Different gentlemen practise with more or less precision in this particular. The. court will not expect the same exactness in these cases, as in a notice to attend the execution of a writ of inquiry of damages; but they will avoid a laxity, which may tend to defeat the benefit of a cross-examination by the adverse party. The notice on the face of it should be sufficiently correct, to inform the party ■when and -where he should attend, without hunting through a whole county for information.
I consider the notice of the 4th of February to attend at the house of Thomas Fannegan in Bedford county on the 20th February, as too loose. It does not appear, that this house was a place of public notoriety; on the contrary, it is admitted, that Fannegan was a newly created justice of the peace, and esquire was not added to his name. The uncertainty is augmented by the notice of 1st February to take depositions before Amos Evans esq., without naming any place, on the same 20th of February.
I concur that the depositions were properly overruled in
Concurrence Opinion
I Goncur in the opinion of the Chief Justice in all respects.
Judgment affirmed.
