31 N.H. 485 | Superior Court of New Hampshire | 1855
The objection of the defendant to the testimony of Dewey, and the instructions of the court relative to it, does not seem to us well founded. The phrase, “ a man they said was James M. Quimby,” seems to us a colloquial expression, equivalent to a man called James M. Quimby. It seems to us to have none of the qualities of hearsay evidence. The recital of a person as to a past transaction, when repeated by a witness, is hearsay; while what is said by persons present at a transaction, which is calculated to throw light upon it, and give character to it, is admissible as part of the transaction. The only knowledge men generally have of the names of others, is derived from the fact that they hear them so called. To have heard a man so called
II. The evidence tending to show the plaintiff and A. Quimby were trying the horses in question, was properly admitted, and the instruction relative to it proper. Admitting the facts that A. & J. were partners, and owners of this horse, and that there were circumstances tending to show a negotiation for an exchange between them and the plaintiff, it was a circumstance proper to be considered and weighed by the jury.
III. We are unable to perceive in the. second interrogatory to A. Quimby, any thing of the character of a leading question. “ Leading questions” are defined by Phillips (Ev. 401) to be “ such as instruct a witness how to answer on material points;” and he says, “ Questions are objectionable as leading, not only when they directly suggest the answer which is desirable, but also when they embody a material fact, and admit of an answer by a simple negative or affirmative, though neither the one nor the other is directly suggested.” Starkie (Ev. 123,) and Greenleaf (1 Ev. 481,) give similar definitions. This question seems to us not to fall within either branch of the definition. It does not suggest the answer desired; it embodies no fact; and does not admit of a simple negative or affirmative answer. It seems, therefore, to have been erroneously rejected. No objection was taken at the time to the omission of that part of the answer which did not seem responsive to the question, and no objection can now be taken. It seems to be assumed that if the evidence given by the witness is not properly an answer to the interrogatory proposed, it is to be rejected, but we are aware of no such rule. By the 22d rule of Practice, depositions “ are to be taken only upon answers to written interrogatories;” but it by no means follows that if a witness states, when inquired of, facts which are material to the case, they are to be omitted or rejected, because they are not properly in answer to the question. The questions
The answers of a defendant in equity are not evidence in his favor, unless they are responsive to the bill. 2 Dan. Ch. Prac. 984, note. But the testimony of a witness as to matters material in a cause, is none the less evidence to be weighed, because it was not properly given in answer to questions either verbal or written. This question arose in the case of Streeter v. Sawyer, 8 Foster’s Rep. 555, and the decision in that case is conclusive as to this matter.
IV. The answer which was rejected,' because it did not appear that the witness was an expert, it seems to us should have been received. As to matters of fact, any witness may testify, but opinions of witnesses are not evidence. Experts alone can testify as to their opinions, so far as they relate to matters of the science, skill or trade in which they are conversant. Railroad v. Greely, 3 Foster’s Rep. 243. If the substance of the answer, then, is an opinion upon a matter of science and skill, it was properly rejected. If it was in substance a statement of a matter of fact, open to the observation of common men, it was clearly admissible. That a horse’s feet are diseased, and that he is unsound in his feet, is a matter of fact in some cases clearly open to the observation of every one, whether an expert or not. When, then, a witness testifies that a horse’s feet appeared diseased, it appears to us a reasonable understanding of his meaning, to suppose he states what he saw, and not what he inferred as matter of skill and science from uncertain symptoms and indications.
The party who thinks an objection lies against the testimony of a witness, because it is matter of opinion merely,
V. The sixth interrogatory, objected to as leading, seems to us to have been rightly rejected. To introduce a question with the words, ivhether or not, is a very common course to avoid the objection that the question is leading, and in most instances this alternative form will obviate the objection, but there is no virtue in this form, if the question assumes such a form in other respects as to direct the witness to the answer desired, or if it embodies a fact so as to make yes or no a sufficient answer. The question in this case does both. It points to an affirmative answer as the one desired, and yes is all the answer required.
Two of the defendant’s exceptions being sustained, there must be
A new trial.-