The opinion of the Court was drawn up by
This is аn action against the defendant as an indorser. To prove notice, the plaintiffs introduced the notarial records of Nathaniel Badger, a notary public, and called said Badger, who testified that he made out notices to the defendant, a copy of which was in his book of records and was in due form; that he gave them to Benja
From the voluminous testimony of Swift, it appeared that' he was in the habit of delivering notices for Badger; that, he had no definite recollection of doing it in this particular instаnce; that, all notices finally handed him for delivery, he seasonably delivered.to the persons to be notified; that, after this was done, he'informed Badger what he had done; that, thе information thus given was true; that, he made out the notarial records in controversy at the time, and that they were signed by Badger.
The defendant, though present in Court, was not a witness, and, though notified, did not produce the notice alleged to have been delivered him.
The presiding Judge in his instructions to the jury remarked that, "it was a matter for their consideration, if Swift coрied the record in this case, on the same day, whether he did not know that the matters therein stated were true.” This was a very natural suggestion, in the utterance of which nothing objectiоnable is perceived. Swift’s memory must have egregiously failed, if he did -not know the truth or the falsehood of the record, he was then making.
The objection mainly relied upon is found in the remark "that the fact that the defendant did not appear to testify in the case was a matter they might consider and give such weight to it as they thought it might deserve.”
This presents a question of much importance, and which, as parties are now witnesses, will or may not unfrequently arise, in the trial of causes.
It is' to be observed, that the Judge called the attention of
If the jury regarded the defendant’s omission to testify as an immaterial and unimportant fact, or if they drew from it an inference favorable to the defendant, he would have no ground of complaint. Certainly not, in case they regarded it as immaterial and unimportant.
They might, however, though not so specifically instructed, have deemed the defendant’s absence from the stand as a circumstance entitled to some weight, (and of that weight they were the special judges,) and as tending to strengthen, in a greater or lesser degree, the case against him. If they did so, would the defendant have just cause of exception?
How stood the case? There was evidence proving, or tending to prove, that a notice of demand and non-payment had been given the defendant. He had been notified to produce it and did not. He was present and was not a witness. If he had never received such notice, he knew it, and, knowing it, would be little likely to omit an opportunity of stating a fact thus conclusively in his favor. The evidence tended strongly to charge him. A -word from his lips might exonerate him from all liability. The prеssure of adverse testimony seemed to demand the negation of all notice, if none had been given. If notice had been received, and the defendant knew it, he might well be silent. The utterance of the truth would establish the plaintiffs’ claim. His only defence would be in the failure of proof on the part of his adversary. If he were a witness, he must either state the truth or a falsehood. If he testified truly, his hope of a successful defence was at an end. The defendant does not offer his own testimony. He prefers the adverse inferences, which he cannot but perceive may be drawn therefrom, to any statements he could truly give, or to any ex
The fact of not testifying was obvious to the jury. They could not fаil to perceive that here was evidence tending to charge the defendant as indorser — that, if in fact no notice was received, here was an opportunity to dеny its reception — yet the defendant failed to make such denial. A witness on the stand, if he answer evasively, would not the jury regard such evasion as a discrediting circumstance ? If a рarty is silent when interrogated, is not such silence tantamount to confession ? ' Habes confitentem reum. Here the party declined to become a witness, and to exonerate himself from liability. If he truly cоuld, would he not have been likely to do it ?
No Court could perceive such a fact, without attaching some degree of importance — more or less — to its existence, аccording to the necessity of the testimony and the emergencies of the defence. No Judge exists, who would not, if the trial had been before him, regard this as a fact bearing on his decision. To direct a jury to disregard it, would be to direct them to disregard a fact existent, material and probative. However much so directed, they could not fail to perceive, and, perceiving, could not avoid regarding it.
The importance of any given fact or circumstance is ever varying — according to the ever changing facts and circumstances with which it is surrounded. The presiding Judge gave no specific directions as to the effect of this fact on the issue or of the inferences to be drawn therefrom. He merely adverted to it, leaving its significance to be measured and determined by the jury. Of all this, the defendant assuredly cannot complain.
In Tufts v. Hathaway, 4 Allen, (N. B.,) 63, the defendant might have been callеd as a witness, he knowing all the facts, but he was not. The presiding Judge instructed the jury, that they might infer, if the defendant had been call
It is allowable to permit a notary to state his usual course of proceeding and his customary habits of business. In Miller v. Hackley,
" This evidence was sufficient, in the first instance, to sup
Of a similar tenor are the remarks of Shaw, C. J., in Stone v. Wiley,
It is not necessary to notice particularly the objections to certain interrogatories and answers, in the deposition of Swift, to whiсh exceptions have been taken, as, upon examination, we are satisfied they are entirely without foundation.
. A careful perusal of the evidence in the cause leaves no reasonable doubt on our minds, that the defendant had due notice. The motion, for a new trial, must therefore be overruled. Exceptions and motion overruled.