Shepherd v. Thompson, 4 N.H. 213

4 N.H. 213 | Superior Court of New Hampshire | 1827

Richardson, C. J.

Several exceptions have been taken to the evidence, which was submitted to the jury in this case. In the first place, it is objected that the defendant was permitted to offer to the jury the declarations of persons deceased, who at the time were in possession of the land he claims, that the oak to which he claims was the true boundary between the lots. The true rule on this subject is stated by Philips in his treatise on Evidence, 182. “ In questions, upon a boundary, &c. declarations, as to the common opinion of the place, made by deceased persons, who from their situation had the, means of knowledge and no interest to misrepresent, have been generally considered as admissible.” *

This rule is supported by many authorities, which show the extent to which it has been applied and also its limitations. 10 Johns. 377, Jackson v. M'Call; 4 Mass. Rep. 702, Bartlett v. Delprat; 6 Johns. 19, Jackson v. Shearman; 4 ditto, 230, Jackson v. Bard; 15 ditto, 234, Jackson v. M’Vey; 5 B. & A. 223, Doe v. Pettett; 2 Pick. 536, West Cambridge v. Lexington; 1 Camp. 367; 1 Johns. 339, Waring v. Warren and 159, Jackson v. Vredenburgh; 15 East, 32 Doe v. Robson; 14 ditto, 323, Doe v. Thomas; 1 ditto, 279, Roe v. Rawlings; 2 D. & E. 53, Davies v. Pierce; Cowper, 621, Doe v. Williams.

In the case now before us, it does not appear whether those whose declarations were admitted were in possession as ‘ owners or as occupants under others ; nor is it material. For whether they were the one or the other, it must be presumed to. have been their interest to extend the boundaries of the lot, and their declarations in favor of their interest were clearly not evidence. We are therefore of opinion that this testimony was inadmissible.

Another objection to the evidence introduced by the defendant, relates to the deposition taken under a commission in the state of New York. There is a rule of this court that “ the clerk of the court in the county where any action is pending, may issue a commission to take depositions in the vacation, which commission shall be directed to any justice of the peace, notary public, or other officer legally empowered to take depositions or affidavits in the state or county where the deposition is to he taken.” Now it is in the first place objected to the deposition that it does not appear that the person who took the same was a justice of the peace, notary public, or any other officer empowered to take depositions in New York. And we think that this objection is well founded. It has always been the uniform practice of the court to require evidence that the person who took the deposition was duly qualified, whether it were taken under our statute, or under a commission. Slight evidence has often been deemed sufficient, but no deposition taken abroad has ever been received, unless by consent of the opposite party, without such proof.

In the next place it is objected, that no legal notice of the time of taking the deposition was given. Our statute regulating the taking of affidavits out of court, provides that in the notice shall be expressed “the day, hour, and place of taking the same.” We have no doubt that in all cases some particular hour should be named. The form of the notice in this instance is not according to the usual practice, and seems to have nothing in it to recommend it to our favorable consideration. If such a notice can be deemed legal, a party may be kept in attendance upon the person before whom be is notified to appear, from nine in the morning until five in the afternoon, before any thing is done. This is neither convenient nor reasonable, and cannot receive the sanction of the court.

One further objection to the defendant’s evidence is, that some of it went to the jury in his depositions intermixed with testimony which was clearly incompetent, and which the court had ordered to be erased. This objection is in our opinion well founded. Depositions arc often taken in a manner that deserves the severest reprehension. Magistrates are often employed for the purpose, who are wholly incompetent to discharge the duty ; and the attornies, under whose directions depositions are taken not unfrequently seem to have no conception whatever of the points in issue between the parties. And thus sheet after sheet of questions and answers are produced, nine tenths of which are either impertinent, irrelevant, or incompetent testimony. Depositions thus taken deserve no credit whatever, and ought to have no weight in the decision of a cause.

And the court feels itself bound, when it has ordered improper testimony to be struck from a deposition, to hold the party to a strict compliance with the order. In this case testimony which the court had ordered to be erased went to the jury. What weight it may have had with them we cannot say ; but we do not feel ourselves at liberty to presume that it could have had no weight. •

For the several reasons before stated, we are of opinion that the verdict in this case must be set aside and

J1 new trial granted.