39 S.C. 410 | S.C. | 1893
The opinion of the court was delivered by
Mr. Justice Pope. S. W. Travers, of Richmond, Virginia, dealing in commercial fertilizers, had shipped $1,702 of fertilizers to W. A. Jennings, J. S. Setzer, James A. Thomasson and John H. Austin, doing business as merchants in the city of Greenville, S. C., under the firm name of Jennings, Setzer & Co., in the early months of 1891, in pursuance of a contract for that purpose between such parties. Two notes, each for $851, maturing respectively the 1st and 15th days of December, 1891, were executed by such firm to the plaintiff, Travers, therefor. J. S. Setzer retired from said firm say on the 14th April, 1891, the remaining partners assuming all the liabilities of the firm of Jennings, Setzer & Co. The firm assumed the name of Jenniugs & Co. Default was made in the payment of the two notes as they matured respectively. An assignment was made by Jennings & Co.
The contention between the parties to this suit does not arise as to the debt represented by the two notes, but grows out of a palpable contradiction between the parties as to the contract in relation to the commercial fertilizers shipped by the plaintiff to the defendants; it being alleged by Travers, the plaintiff,
Testimony of S. W. Travel’s and E. Thomas Orgain, witnesses residing in Richmond, Virginia, was taken by commission in that city, under the act of the General Assembly of this State. 18 Stat., 373-375. When this testimony was offered, its reception was objected to, because the envelope was not sealed with the seal of the notary public before whom it was taken, and who had forwarded the same by mail. The Circuit Judge (Judge James Aldrich) admitted the testimony. Quite a number of witnesses were examined. After a verdict of the jury upon the two issues submitted to them, the Circuit Judge filed a decree in favor of the plaintiff on every issue. The three defendants, Jennings, Thomasson, and Austin, now appeal on six grounds, but as, in the view of this court, it will be only proper for us to pass on one, we will not reproduce any others:
“1. That his honor, the Circuit Judge, erred in admitting in evidence, against the objection of defendants, the testimony of Travers and Orgain taken before a notary public in Richmond, Virginia, the envelope containing the same not being-sealed with the seal of the notary, as required by law.”
The respondent suggests that the sealing of the envelope, in which the deposition is enclosed, means the closing of the parts of the envelope so that they will firmly adhere together; it might be with sealing wax, or wafers, or any other tenaceous substance; that mucilage or gum having been used in this instance, so that the package appeared closed up until opened
Applying this test to the matter now under consideration, has the notary chosen any symbol or other substitution iu lieu of an actual seal? The act of the legislature states that the officer before whom the deposition is made shall seal up the same, and also, that it shall remain under his seal until opened in court. Does not this statute require some act on the part of the notary by which he shall evince that the package sent to the court is his work? If he had used sealing wax and had stamped thereon his notarial seal, or had used sealing wax and had written his name across the same, or if he had written his name across the flap of the envelope after he had caused it to adhere to the body of the envelope, it seems to us that any one of these methods would have answered the demands of the statute in this respect. While in this particular case no harm might have resulted to the cause of justice if the depositions were declared legal, yet we ought always to remember that it is very dangerous for courts of justice to recognize methods that may lead to mischief, or that methods of doubtful form once recognized may carry concealed in their folds the seed of evil which may sap or destroy right and justice. Such being our views, we cannot hesitate as to our duty in the premises. Probably it is due to the parties to this cause to state that we have not announced our views upon the other grounds of appeal here presented, because we have thought, as a new trial must be ordered on the first ground if it alone had been presented, it were better that all the questions in the case should be considered anew without any expression of opinion from us thereon. It is the judgment of this court, that the judgment of the Cir