Crozer v. Leland

The opinion of the Court was delivered by Gibson, C. J. — The rejected witness was not only interested as a corporator, but nominally a party on the record. The decision in Harman v. Drinkwater, (1 Greenleaf, 27,) cited in support of his claim to competency, is sustainable on the principle of necessity; but what necessity is there-here? The corporation might have employed a servant for the particular business; and if it has failed to provide the evidence of it which the law requires, it has no reason to complain of the consequences. It is said, however, that- a party to the action, is always competent to swear to the service of notice. He may be so where the fact is collateral to the issue, and proof of it is to be made to the Court; not where it is a part of the issue, and proof of it is to be made to the jury. A plaintiff would, for instance, not be allowed to swear to notice of the dishonour of a bill — as may be collected from Bank v. Porter, (2 Watts, 141.) The only instance in which this distinction has been overleaped, is to be found in Kidd v. Riddell, (2 Yeates, 444) — a Nisi Prius case, inconsiderately decided, and imperfectly reported. It was better preserved in Davies v. Houston, (Id. 290,) where it was accurately said, that a party may [16] be examined to a collateral point; and notice of an impending action against a justice of the peace, is certainly not a collateral point, but like notice to quit, a part of the title. The direction on the first of tne plaintiff’s points was incontestably right, as the act of incorporation explicitly requires that the corporators be called on to work out their assessments before they are called on to pay; and on the second of them, it accorded with the prayer. The direction on the third, was that the plaintiff had failed in proving notice to work, or a waiver of it. It is not alleged that there was evidence of notice; and what has been called evidence of waiver is proof of work actually done for the first year included in the declaration, as well as the defendant’s omission to insist on want of notice in a conversation which he had with a third person, or in the course of a hearing when-the cause was before arbitrators. I lay the first of these out of the case; for the plaintiff could not, by including an assessment which was satisfied, and in respect to which the defendant had actually received notice, affect him as to the assessments in contest; and his omission to state all his objections in conversation with a person who had no right to interrogate him, stands on no better footing. He can waive nothing-to one who can demand nothing,, and to whom he is not bound to speak out. Nor is the case stronger against him in respect to his omission to make want of notice a point of defence before the justice or the arbitrators. For the particular occasion, a party is taken to admit what he does not deny: but he is not restricted to the same defence at a subsequent trial. He may not have been apprised of all his grounds of resistance; or he may have thought his main point so impregnable as to .require no assistance from any other. It has been held, in M'Lughan v. Bovard, (4 Watts, 308,) that a case made, but subsequently withdrawn, is not evidence of the facts stated in it; and it cannot be doubted that exceptions to a deposition, a deed, or the competency of a witness, would not be precluded by an. omission to take it at a former trial. A party has a right to change his plea; and a fortiori he has a right to shift his ground where it does not involve a matter of pleading. There was therefore no evidence of waiver to be left to the jury. Judgment affirmed.