Wilbur v. Selden

Curia, per Savage, Ch. Justice. The only question is, as to the competency of the testimony objected to. The books of a deceased notary have been received in evidence, when the entries were made by the notary himself; but when they are made by a clerk, the hotary does not attest to them; and in that case the evidence of the clerk is higher. And indeed the book, unaccompanied by his testimony, would prove nothing. (20 John. 172-3, and the cases there cited ) The rule as to admitting what a witness swore upon a former trial, is supposed to be this : That to render such testimony admissible, it must be between the same parties, and the point in issue the same ; and the words Of the witness must be given, not what is supposed to be the substance of his testimony. The witness must also be dead. (1 Phil. Ev. 215. Bull. N. P. 243. 4 T. R. 290. 14 Mass. Rep. 234. 4 Serg. & Rawle's Rep. 203.) In this case, the parties are substantially the same ; the cause of action is the same, and the point in issue the same. But the witness, Scott, is not dead. He is absent, in the state of Pennsylvania; and, possibly, upon inquiry there, he may be found, and examined upon commission. It is urged by the plaintiff's counsel that the case is analogous to one of a subscribing witness to a bond, whose signature may be proved, if he be absent; and the proof of which establishes the execution of the bond, without prool of the signature of the obligor. That rule rests upon the presumption that the parties have selected 'the witness to [165] testify to the execution ; and, therefore, proof of his signature, is proof that the bond was executed in his presence. The rule is certainly a very dangerous one ; but too well established to be now controverted. (5 Cranch, 13. 3 Bin. 192. A John. 467.) It is hoi, however, at all analogous in principle to the one contended for in this case. No special confidence can be charged upon the defendants. They could not control the bank in the selection of its notary ; nor the notary in the selection of his clerks. The witness, Scott, was never selected by the parties to testify between them; nor was he called to testify to their acts, but his own. In Le Baron v. Crombie, (14 Mass. Rep. 36,) the supreme court of Massachusetts refused to hear what had been sworn to by a witness who, though naturally alive, was civilly dead, having been cohvicted of felony. They say the rule in England is limited to the case where the principal witness is dead. If, however, the death of the witness were not an indispensable circumstance, there is yet another difficulty. Mr. Sedgwick could not state the words of the absent witness; but only the substance of his testimony. He produced the notes which he took as counsel on the former trial; but whether he testified from these or from recollection, does not appear in the case. The rule laid down by Lord Kenyon, (4 T. R. 290,) is, that the words must be given, and not the effect of them ; and the reason is, because the jury are to judge of the effect of the testimony, and not the witness. In Lightner v. Wike, (4 Serg. & Rawle's Rep. 203,) chief justice Tilghman shews, very satisfactorily, the reason of the rule; and also that notes of counsel should not be relied on, as it is not their practice to take the words, but the substance, as they understand it. And he remarks, that during a trial, the ideas of counsel pass through a medium which diverts them from a right line. The case of Doncaster v. Day, (3 Taunt. 261,) does not contradict the rule, that the words must be given; but holds that they may be given from notes or memory, provided the accuracy be sworn to. [166] I am of opinion that this evidence was improperly admitted, and that a new trial should be granted. New trial granted.