Smith v. Morgan

38 Me. 468 | Me. | 1853

Tenney, J.

— The note in suit was turned out, indorsed by one Hyde, to the plaintiff, on a disclosure which he made at the time he took the poor debtor’s oath, and appraised at the sum of one hundred dollars. Bakeman, the payee of the note, testified for the defendant, the plaintiff objecting, that at or about the time that the note became payable, it was fully paid by the maker, and given up, with the indorsement of Bakeman upon it. Hyde, on the other hand, testified to facts, tending to show, that he received the note for a valuable consideration of the payee. A witness for the defendant, against the objection of the plaintiff, was allowed to testify, that being present at the disclosure, “ Hyde, the debtor, manifested surprise at finding such a note in his papers, but could not recollect what he said.”

Bakeman was competent to testify that the note was paid and taken up by the maker. Davis v. Sawtelle, 30 Maine, 389.

No evidence being reported in the case, that the note came to the hands of Hyde before its maturity, it was a material question, whether it was or was not paid by the maker to the payee, who at the time was the holder thereof. According to the finding of the case, the evidence of Hyde’s surprise was too indefinite and uncertain to be admissible. It •Was suited to mislead the jury. It should have been excluded on the ground that it did not sufficiently appear that it was competent. The witness does not say that he saw Hyde examine his papers when he found the note; but that he was at the disclosure, and Hyde manifested surprise at finding the note in his papers. The surprise spoken of may have been manifested at the disclosure, in a statement of Hyde, that such was the case, although the papers may have been previously examined and the note found. Again, it does not appear, that the surprise was indicated by verbal expressions, which the witness had forgotten, or by appearance and acts j if the surprise was made known to the witness by the former, it is proper that the Court should have known what they were; and also, in order to ascertain, whether they were a part of the res gesta, it should be proved, that they were made, when Hyde first found the note in his papers°7 at any other time, they would have been inadmissible, there being no act, which such expressions were suited to explain. If surprise was manifested by appearance and acts of Hyde, it is very difficult to perceive, how surprise shown in that mode, especially if it were not at the'time when the note was found, could be attributed with any degree of certainty to the cause assigned by the witness.

Hyde having said nothing in his deposition on the subject of his surprise at finding the note, the testimony of the witness on this subject, has no tendency to contradict his statements therein.

The disclosure of Hyde was offered by the plaintiff, to prove what Hyde did say concerning the note, at the time of the disclosure, and all he said about it, but it was held inadmissible. The only effect, which this disclosure could have had, so far as we can perceive, was to corroborate the testimony of Hyde given in his deposition. The only corroboration which it would afford was, that on a former occasion he made statements, not inconsistent with those made in his' deposition and by the plaintiff in this case. On no principle is such evidence for such a purpose admissible.

Exceptions sustained.

Shepley, C. J., and Rice and Hathaway, J. J., concurred.