Viles v. Moulton

13 Vt. 510 | Vt. | 1841

The opinion of the court was delivered by

Williams, Ch. J.

Two questions are presented for the consideration of the court in this case. The first, only, is decided. The court are not unanimous as to the second^ question, and when the court is holden by three judges only, all must concur in the decision.

The first question is, whether the court below was-correct in admitting secondary evidence of the contents of the note . ^ „ declared on, from the evidence before them of the loss or the original. It is evidently a question of considerable importance to determine in what cases, on the trial of causes where a written instrument is declared on, the production of the instrument may be dispensed with, and evidence given' of its contents. Such instruments frequently afford evidence of importance to the defendant, and it may be for the interest of the plaintiff to suppress them, as when there are in-dorsements or alterations or erasures made, and, as to negotiable promissory notes, such ample proof should be given of their loss, that no danger might be apprehended of their being put in circulation, to the injury of the makers. It is a question addressed to the court, whether sufficient evidence of the loss is produced to warrant the introduction of secondary evidence, and hence it has been urged in this case that the decision of the county court, on this question, is not to be reviewed here. For the reasons already suggested, it is highly desirable that this court should be authorized to review the decision of the county court on this point. It is true the decision of the county court, upon a mere question of fact, cannot be re-examiried here, and although they may find a fact upon evidence which to us is unsatisfactory, yet, it is no ground for reversing their decision. But if the county court are not justified in drawing a conclusion without evidence of further facts, or if they form their decision upon improper testimony, it will be erroneous. Thus, in the case before us, if no evidence was directly given as to the loss, but it was as likely that the note might be in either of the places named, a search in all of them would be necessary, before the court would be authorized to find the fact of the loss, and let the party into secondary evidence. This was decided when this case was before us in 1839, 11th Vt. R. 470. It became necessary in the case, for the party, in order to be let in to introduce secondary evidence, to prove that an examination had been made of the papers which belonged to Denison Smith, as it was highly probable the note would be found there. To prove this, the plaintiffs offered the ex parte affidavits of Alvan Carter and Jeremiah Ellis, which were objected to, and admitted by the court. We °pini°n that this evidence was improperly admitted, Ex parte affidavits, where there is no opportunity to cross-examine the persons making them, are neither legal nor competent testimony to prove any fact in issue on a trial before a court or jury. No case has been found to warrant their admission, nor has any practice prevailed which would authorize it. The case from Massachusetts was the affidavits of the parties, and no decision in this state has yet established that the affidavits of the party are competent to prove either the loss or contents of a written instrument. It would undoubtedly be a salutary rule, after sufficient proof by other testimony is in, to warrant the introduction of the secondary evidence, to require the party, also, to make an affidavit, to repel all presumption of his having destroyed or suppressed it purposely. We are not prepared to say that the affidavit of the party is admissible for any other purpose, but are prepared to say that ex parte affidavits from others are inadmissible. The consequence is, the judgment must be reversed.

On the other point, the court are not agreed. The evidence offered on the part of the defendant constituted a sufficient defence to this action, if he was at liberty to introduce it. This has been twice decided in this case. A majority of us are of opinion that, giving to the decree in chancery the conclusive effect claimed for it, the plaintiffs could not prevent the defendant from proving their defence, by the introduction of the decree, out of time. That the defendant was entitled to prove his defence, and if the plaintiffs could cut it down or destroy it by the introduction of the decree, he could only do it after the defendant had made out his de-fence. If the decree had been already in evidence, it might be competent for a party to object to any evidence to controvert it, as was the case of Morris v. Rosser, 3 East, 15. In this case, a majority of us are of opinion that the evidence should have gone to the jury, under proper instructions from the court.

Neither áre we prepared to say that the effect of the decree in chancery is as conclusive as it is claimed to be, or whether the facts found by the court, as stated in the decree, are any thing more than prima facie evidence of the same facts in this suit. In the case of Betts v. Starr, 5 Conn. 550, the learned judge seemed to consider that, although a judgment was conclusive, a verdict was never more than evidence of the facts found. In the case of Hopkins v. Lee, 6 Wheaton, 409, the judge considers that the facts found by a master, in a suit in chancery, are to have the same effect as a verdict in a suit at law, and it was only decided that the decree was prima facie evidence. I am willing to consider this decree as prima facie evidence of the facts found ; but whether it is to have any further effect, is left for future adjudication.

Judgment reversed.

Collamer, J., having been of counsel for the plaintiffs, did not sit on the trial of this case.