Walker v. Walker

Aug 15, 1853
No. 34
Reporters:
Before:
Lumpkin

*249 JBy the Court.

Lumpkin, J.,

delivering the opinion.

[1.] The first error assigned in this caso is, in permitting the Caveators to prove what Elijah Thompson swore to, on the former trial of this сause, he being dead; by using his testimony as incorporated in the brief of evidence agreed upon, on the motion for а new trial in the same cause.

It is insisted that the rule of evidence requires that a witness should be produced who heard the deceased swear on the former trial; and that this is not only the best, but the only proof that the Court is authorized to receive.

[2.] This species of testimony constitutes an exception to the rule rejecting hearsay evidence ; and is founded in the necessity -of the case. Its allowance is permissive only: that is to say, the evidence need not be lost; but a person may be called to prove what the deceased witness testified to, on the former trial. But the practice is by no means so restrictive as is supposed. And ‍​‌‌​​​​​‌​‌​​‌​‌‌‌​​​​‌‌‌​​​​​‌​‌​‌‌​​​‌‌​‌​​‌​‌‍it must yield of course to the paramount rule, which requires the best evidence to be аdduced, which the nature of the case will admit of.

[3.] Can it be doubted that the proof taken down in writing and agreed on as true, under the eye and sanction of the Court, is better than the recollection of any body as to Avhat the deceased witness did swеar ? So far from excluding this testimony, we should seriously doubt whether the Court would not have erred, had it admitted the other, which is inferior, while the higher proof was in existence, and in the power of the party to produce.

[4.] The next complaint is, in suffering the depositions of Mrs. Cherry to be read to the jury, when she had failed to answer fully the third cross interrogatory.

The contest in this casе was as to the testamentary capacity ‍​‌‌​​​​​‌​‌​​‌​‌‌‌​​​​‌‌‌​​​​​‌​‌​‌‌​​​‌‌​‌​​‌​‌‍of Mrs. Charity Walker. Mrs. Cheny was asked, “ Bid any one aid or assist her in malting contracts ? And while you lived near her did she not manage entirely her sales of butter and eggs ?”

The answer was, “ iShe did in part only.”

*250The response is short, but it is expressive; and aрplies to both branches of the inquiry. It instructs the jury as to tho matter about which they were desirous to be informed, namely: that the Tеstatrix attended only in part to making¿contracts and the management of her affairs ; and in part was assisted by others. This is the sum аnd substance of the answer; and it is sufficient, we think, to prevent the testimony from being rejected on tho trial in the last resort — especially as the interrogatories had been in office for a length of time and no objections had been filed to their return or execution.

[5.] The next objection is as to the admissibility of the testimony of John J. Grant. First, In allowing him to be offered in sur-rebuttal, when he should have been examined in reply. And Secondly, In suffering him to come in tho next morning after the case had been closed the over-night, and explain his evidence as given in, the previous day.

The rule of practice in tho introduction of tеstimony is, that tho plaintiff shall first bring forward all the testimony that goes to establish his claim ; the defendant shall then introduce his proof uрon matters of defence, and his testimony, rebutting the proof, adduced by the plaintiff; then the plaintiff by his proof rebutting that of thе defendant. And after the plaintiff has introduced his proof, establishing ‍​‌‌​​​​​‌​‌​​‌​‌‌‌​​​​‌‌‌​​​​​‌​‌​‌‌​​​‌‌​‌​​‌​‌‍his case; and the testimony of the defendant has been heard, the plaintiff is not entitled, as a matter of right, to introduce additional proof in chief. The Court, however, has the discretionary power to relax the practice, where justico requires that it should be done: and the judgment of the Court will not be reversed for the relaxation of the rule, or refusal to relax it, unless tho error be gross and palpable.

[6.] I am aware that to prevent delay or unnecessary waste of time, that rules of practice have to be adopted in all Courts of justice. And while they are not so binding as those establishing rights, they, nevertheless, should not bo departed from for trivial cаuses. And among these rules is that which regulates the order of examining witnesses — one of great importance, and without which jury trials would be interminable and intol*251erable. Still I must say, that so much averse am I to withholing testimony, that I can hardly conceive of а case so gross and palpable that I should feel constrained to control the discretion of the Circuit Judge, from receiving at any time additional confirmatory, cumulative and corroborative evidence of facts previously provеd, or which tends to strengthen, add force or probability to such evidence.

[7.] And as to the privilege of explanation whiсh was afforded the Avitness, the next morning, a doubt or hesitation to allow this, would have deserved the rebuke of this and every other ‘tribunal. A witness through forgetfulness, or inadvertence, misstates a fact: upon reflection, he discovers the mistake, and seeks to rectify it. Would it not be monstrous ‍​‌‌​​​​​‌​‌​​‌​‌‌‌​​​​‌‌‌​​​​​‌​‌​‌‌​​​‌‌​‌​​‌​‌‍to deny him the privilege ? Is it not due to him, apart from any other consideration ? Should he fail to make the application so soon as he detects the error, he would be guilty, undoubtedly, of moral, if not of legal рeijray. And for the Court to refuse him permission to make the correction, would be to transfer the guilt from his consciencе to theirs.

[8.] The next class of errors may be considered together.— It consists in allowing the testimony of John Brown, Mrs. Cheney, Elisha Perryman and Mary Barron. And the main objection to these Ayitnessos is, although minor matters are specified, that they were suffered tо give their opinion as to the sanity of Mrs. Walker, Avithout furnishing the facts upon which their respective opinions were predicated.

It ayould be an unnecessary consumption of time to examine separately the depositions of these several witnesses. Wo have done so carefully, and there is not one of- them that does not state some fact оr circumstance relative to the conduct, conversation or condition of the Testatrix, which would justify the expression of their opinion, according to the rulo prescribed by this Court in the case of Potts et al. vs. House, Ex’r. (6 Geo. Rep. 324.) Our opinion, therefore, is, that this excеption is not avoII taken.

There have been tivo verdicts against this Avill. We see nothing, ‍​‌‌​​​​​‌​‌​​‌​‌‌‌​​​​‌‌‌​​​​​‌​‌​‌‌​​​‌‌​‌​​‌​‌‍either in the testimony or the various rulings of the *252Court, which makes it a duty, on our part, to send this case back.

Judgment affirmed.