Danforth v. Reynolds

Hutchinson J. delivered the opinion of the court. This case presents a question in which the court have met with no difficulty; and yet itis of some importance, in point ofpractice. Depositions are very frequently taken in the neighboring states to be used in this state ; and, when the form of caption required by our statute is not sent to be used as a guide, they will not be apt to conform to'it, and must be rejected,unless taken according; to the laws of the state where taken; and, in that case, die party producing the deposition is under the necessity of showing to the court what ihe law is, to which he says he has conformed. That is, it must sufficiently appear to the court, in some way, that the caption conforms either to our own'statute, or diat of the state from which the deposition comes. It would be a sufficient disposal of the exception in this action, to notice that the statute of Massachusetts being now produced, this caption is in the most strict conformity to that statute. It has even copied a grammatical inaccuracy, using an adjective instead of an adverb in the expression “examined, cautioned and sworn agreeable to law.” Whether the grounds of the decision of the County Court were right or wrong, their decision was correct. In such a case the court never grant a new trial and drive the party to take a different course, and arrive at the same result; to present different grounds to the court to induce them to make the same decision. When an in correct decision of' the County Court may probably have produced a wrong determination of the cause, a new trial must be granted. But when it is certain that the decision has no such effect, but that justice has been done in the action, and that if a new trial were granted, the [265] same deposition must be”admitted, and the cause be determined the same way, it wouldffre injurious to both tire parties to set the cause open for . another trial. Probably the defendant’s counsel did not expect .to meet this statute which thus obviates the difficulty of the plaintiffs’ recovery. And he has urged the objection in the shape in which it appeared in the court below. He urges that the statute of Massachusetts, being a matter of record there, must be proved by the record, like other matters of récord in a sister state. ■ This would be correct, upon principles of strict law, if the action were to be decided wholly upon the statute $ or* if the contract were made in that state, and the defence urged was, that the contract was void by force of that statute. But this strict law is so far dispensed with by a course of decisions in this and the neighboring states, as to admit the ’’ statute books of another state, published by the authority of such state, and used in her courts, as evidence of such statutes. Such are considered good evidence here. It is for the convenience of all parties that such should be the decisions. There is very little danger of any mistake in such printed books 5 and should there be a mistake, a resort to the record would disclose and correct it. Not only is it a hardship to the parly, wishing to use such a statute, to be at the trouble and expense of a regularly certified copy of the same,but it may be a hardship to the opposite party to have the expense taxed against him in the bill of cost. To this may be added-, that, in very few cases only are objections raised to require this proof; and it would be hard indeed for a suitor who would not wish to raise such an objection, still to be obliged to pay for the expense of guarding against it. But, it must be observed in the case before the court, that no right upon which the jury were to decide depended upon this statute. The proof was to the court merely. The deposition was fairly taken, and the opposite party was present, and the plaintiff needed only to convince the court that the form of the caption conformed to the statute of Massachusetts. The certificate of the magistrate, so apparently regular, furnishes some evidence that he was doing the business as he understood the law to be• yet this would not be sufficient of itself, for the court could not know that [266] -his .doings were strictly correct. But -the testimony of a witness who-swears tobas -acquaintance with the statute .of the state, where the deposition was taken, and that the caption in question conforms thereto, is abundantly sufficient. If the same fact is known to the court themselves,they may decide such a point upon their own knowledge without further proof. And if a mistake should occur, the fact correctly appearing, all would be set right by a new trial. Church, for plaintiffs. Isham, for defendant. -But it is urged that the witness only 'testified to -his knowledge of the statute in .the year 1814, and that so long a time after, an alteration of the -law might be presumed. An alteration of such a statute, in daily use, is so improbable, we think the most , fair presumption is, as the fact turns out to be, that it continues in force. On the whole, the decision of the county court, admitting the testimony of the witness, and admitting the deposition, was correct in itself, and founded upon principles both correct and salutary in practice. Wherefore, the judgment of the County Court is affirmed.