Spear v. Richardson
37 N.H. 23
N.H.
1858
Check Treatment
Sawyer, J.

The question proposed to Azariah "Williams did not exceed the proper limits of a cross-examination. On the direct examination, in answer to the plaintiff’s inquiries, he had testified that the horse had a cough for about two years in the foddering season, when kept on hay. Whether other horses were or not affected in the same manner, under similar circumstances, was proper to be considered by the jury, in determining the nature and character of the cough. Besides, the defendant was at liberty to test the extent and accuracy of the witness’ observation and knowledge on the subject of horses’ being affected with a cough under the circumstances stated. No precise rule can be laid down as to the latitude to be allowed on cross-examination, the aim of which is to test the intelligence or integrity of the witness. That must be left in a great measure to the discretion of the presiding judge. It does not appear to have been improperly exercised in this case, in permitting the question to be put.

The cross-interrogatories in the deposition of John W. Morse were properly ruled out. They were all based upon the statement made by the witness in answer to questions proposed on the direct examination, that the *30horse had a touch of the heaves, as the witness inferred from his breathing, which was ruled out. If any doubt can arise upon this point, in reference to any of these interrogatories, it must be in relation to the 69th and 86th. The 69th: "What called your attention to the way he breathed? may perhaps be considered unobjectionable, so far as the question is concerned, as being proper erossexamination upon that part of the direct testimony which was admitted, namely: “ he breathed differently from the other horse;” but the answer to this is clearly inadmissible, on the ground that it is not a proper form of answering the question. The answer is, “ Because he breathed like a horse that had a touch of the heaves.” If the witness had been upon the stand, and his statement, on the direct examination, that the horse had a touch of the heaves, had been objected to and ruled out, as it was when offered in the deposition, he would have been required, in answer to the 69th interrogatory, to describe the appearances in the breathing of the horse which he understood to be like the breathing of a horse that had the heaves, instead of stating that his breathing was like it. It is to be supposed that the answer, as given in the deposition, was submitted to by the plaintiff’s counsel, without objection to the form in which it was made, only because, on the direct examination, the deponent had stated the same thing — that the horse had a touch of the heaves. "When that was excluded, the answer, in the same form and to the same effect to a question on cross-examination, which did not necessarily require that kind of answer, was properly excluded with it.

The 86th : “ Did he breathe so that any person unskilled in detecting these defects, would at once discover it ?” manifestly refers to the statement on the direct examination which was excluded. The defect intended by the question must have been understood by the witness and the jury to be the touch of the heaves, indicated, as the *31witness stated, by the breathing. This question and the answer to it were, therefore, properly ruled out, as cross-examination, on the subject matter of that part of the direct examination which was excluded.

The whole object of the 5th interrogatory, on the direct examination of Chas. E. Aldrich, would seem to have been, so far as it relates to what was said between the witness and the defendant, to lay before the jury the statement of the witness, that, on hearing the horse cough, he asked the defendant if he had not got the heaves, or a heave-cough, and thus produced the impression that something in the appearance of the animal indicated to his mind that he was thus diseased. The effect of the answer is clearly to give that impression; and no other part of the conversation has any bearing on the case, in any way favorable to the plaintiff. It was competent for the defendant to remove that impression, if he might, by the 15th cross-interrogatory, whether the witness saw any thing about the horse that indicated the heaves, from the way he breathed ? taking the risk, of course, of an affirmative answer.

The interrogatory in the deposition of Jacob B. Elliot, objected to as leading, is not open to that objection. The form in which it is put, looking to the whole question, is not such as to instruct the witness which way to answer it. If, from the first branch, “ Did he ever have a cough, to your knowledge ?” it could be gathered that a negative answer to that part of the question was desired, the addition of the other branch, “ and if so, when and what kind of a cough was it ?” would seem to indicate that an affirmative was expected. The form of the question, “ Did he ever have a cough ?” is no more suggestive of a negative than an affirmative answer, when considered without reference to the subject matter of the inquiry; at least, no more so than the form, “ Did he or not ever have a cough ?” and in that form the question would not be considered as leading.

*32The statute which, requires depositions to be sealed up by tbe magistrate, and so delivered into court, bas, by a long and well settled practice, received tbe construction that a delivery of tbe deposition, sealed, to tbe attorney in tbe cause, is such a delivery into court as tbe statute contemplates. For this purpose be is held to be tbe proper officer of tbe court to receive and open tbe deposition. It would be requiring an idle ceremony to bold that tbe depositions must be placed in tbe bands of tbe clerk, that be may break the seal, and then permit him to pass it to tbe attorney, without recording, or copying, or any like proceeding, to secure it against improper alteration; and it would be quite as idle to sustain tbe objection that it bad not been banded to tbe clerk before tbe seal was broken, when tbe only effect would be to subject tbe party to tbe trouble of having it re-sealed by tbe magistrate, and so delivered to tbe clerk, to be immediately opened by him. It is stated to be within tbe recollection of members of tbe bar, now living, that tbe late Cb. J. Smith was accustomed to administer reproof to counsel because they bad not opened their depositions immediately upon receiving them, instead of waiting to file them with tbe clerk and thus cause delay in tbe preparation for trial. Tbe statutes of February 9, 1791, and of December 31,1828, contained tbe same provision on tbe subject as tbe present act, and tbe practice under all of them bas been nearly if not quite uniform. No sound reason is perceived for changing it. Tbe deposition of Amos C. Elliot, and tbe other depositions to wbicb this objection was taken, were, therefore, properly admitted.

Other exceptions are taken to portions of Elliot’s deposition. In answer to interrogatory 8, proposed on tbe direct examination by tbe defendant, inquiring bow much the deponent knew of tbe horse while owned by L. W. Richardson, be testified that be knew him all tbe time Richardson owned him, and added: “ I told him about tbe *33horse, and advised him to get him.” This last statement is objected to by the plaintiff. The facts stated, however, have no materiality in the case. They are entirely immaterial, and it cannot be seen how they can in any way have prejudiced the plaintiff.

Objection was also taken to a portion of the answer to cross-interrogatory 43, that it is not responsive to the question, and that it was drawn from the deponent by a suggestion from the defendant’s counsel. The interrogatory is, whether the deponent would be willing to swear, from his knowledge of the horse, that he did not cough while "Williams or the Kichardsons owned him. The witness was not bound to answer the question categorically — yes or no. He was at liberty to state to what extent he could swear positively, and to quality his answer in accordance with the knowledge he had upon the subject of the inquiry. His answer is, that he should be willing to swear he never heard him cough; that horses and colts are subject to have the horse-distemper and cough, and that he could not state that he never did cough. Thus far the answer is not objected to, but he adds: “I should say, from his appearance, he never had a cough;” and this is objected to, as not responsive to the question. If the statement were to be understood as meaning that the witness, judging from the appearance of the horse at auy particular time, then formed the opinion that he had never before that had a cough, it would be open to the objection taken. It is obvious that this was not his meaning, but that he intended to be understood, and was understood by the jury as meaning only that as he had always known the horse while the Richardsons owned him, and he had never known him to cough, but he had always appeared free from such disease. He could testify upon this ground that he never had a cough. So understood, the part of the answer objected to is strictly responsive to the question. The objection that it was drawn from the witness *34by a suggestion from tbe defendant’s counsel, is not sustained by any thing appearing in the case.

The testimony of P. W. Hastings, introduced by the defendant to contradict Williams, might properly be considered by the jury as having such tendency. The statement made by Williams, as testified to by Hastings, that the horse was sound, may have been intended by Williams, and properly understood by the jury, as meaning that he was free from any such disease as the cough to which he testified. It was proper to be submitted to the jury for them to determine, under the circumstances, what was meant by Williams in saying the horse was sound. If they found that he meant, by saying he was sound, that he was free from every thing of the nature of the cough testified to by him, it clearly went to contradict him.

The ex parte affidavit of E. B. Parker was properly admitted, to impeach his testimony. The account given by him, in the affidavit of the bills of sale and warranty, and of his recollection upon those subjects, is inconsistent with and contradictory to that which he gave upon the stand. When the witness has given such contradictory and inconsistent account upon a former occasion, thus varying from that given at the trial, it may be proved, for the purpose of impeaching him and casting discredit upon his testimony.

The question proposed to Dr. Dadd, as an expert, was competent. The opinions of such witnesses are admissible in evidence, though they are founded, not upon personal observation, but on the facts shown by the proof at the trial. It is indeed improper to ask an expert, who has heard the evidence, what his opinion may be upon the case, as shown upon the proof, but he may be asked to give his opinion upon a state of facts such as the evidence tends to establish, hypothetically stated. 1 Greenl. Ev., sec. 440. This was the form of inquiry adopted in this case. A *35long and, it is believed, uniform practice in this State, as elsewhere, has recognized it as correct.

All tbe exceptions taken to tbe proceedings at tbe trial being overruled, there must be

Judgment on the verdict.