Town of Randolph v. Town of Woodstock

Poland, Ch. J. The deposition of Eliza Billings was pro* perly admitted to be read in evidence. By allowing the deposition to be read in evidence on the former trial without objection, the defendants waived-their right to object to it, on the ground that the magistrate taking it was an inhabitant and tax payer in Randolph, and therefore disqual* ified to take the deposition. It must be assumed, that this fact was known to the agent of Woodstock, who attended the taking, and we think that by allowing a deposition to be read once without objection, the party waives all objections to any informality or irregularity in the taking,- of which he has knowledge, and that thereafter he can only raise objections to the competency of the witness, or the subject matter of the deposition. When a deposition has thus been allowed to be once used without objection, the party taking it has the right to consider all objections relative to the taking waived, and may allow his witness to go out of the country, or not produce him on another trial, or take the risk of his decease, relying upon having secured his testimony, and to allow the opposite party afterwards to insist upon some informality or irregularity in the taking, would operate as a direct fraud. The defendants insist that such waiver only applies to defects in the caption and certificate, and not to any informality in the taking not thus apparent. But in the case of Walsh et al. v. Pierce 12 Vt. 130, and Perry v. Whitney, 30 Vt. 390, irregulari [295] ties in the taking, not apparent on the face of the caption and certificate, were held to be waived by once allowing the deposition to be read without objection. When a legal cause exists for taking a deposition when taken, the cause is presumed to exist, and the deposition continues to be admissible, at any subsequent time, unless the cause be shown to have ceased, by the party objecting. Whether the evidence offered by the defendant in this case, to show a removal of the cause, was sufficient for that purpose or not, presented a question of fact for the determination of the county court, and their decision of such question is conclusive, unless it appear that they in some way misapplied the law to the facts proved. In this case we can not say there was any error in judging npon the evidence, or in the application of the law to the facts proved. We think there was no error committed in the court below, in allowing the question to be asked on cross-examination of the defendants’ witness Burr, whether he did not in his letter to Eounds, state differently from what he testified. We fully recognize the rule that the contents of any writing can not be proved by parol, except when it be shown that the writr ing is lost, or for some other reason can not be produced. But here the question -was wholly collateral; the whole inquiry was for the mere purpose of affecting the credit of the witness, and not to prove any fact in issue in the case. It does not appear that the plaintiffs had any knowledge that such witness was to be produced at the trial, or that the plaintiffs had any knowledge that, he ever wrote a letter to Eounds, Until the witness stated it on the stand, and of course they could not be expected to have possession of the letter, or be able to produce it. It is now well settled that a witness can not be impeached or contradicted by evidence of his statements out of court, differing from his statements in court, unless he be first enquired of as to the statement, and afforded an opportunity to make any explanation he chooses in reference to it, and we are not aware that any distinction has been made between verbal and written statements. If there is not, then the plaintiffs were- bound to first. [296] ask the witness before they would be allowed to contradict him? even by producing the letter. The plaintiffs must of course take the witness’ statement as to what he wrote, unless they were prepared to contradict him by producing the letter, and could not prove its contents by witnesses without showing its loss. We are aware that on this question there is some conflict of authority in reported eases, and in elementary books, but the practice in this state has always been in accordance with the decision below. While witnesses were excluded from testifying if interested in the cause, in all preliminary inquiries of witnesses on the voirk, dire, in reference to their interest, it was alwajs allowed to examine them in reference to the contents of any writings that might affect their interest, and this was allowed on the ground that the party might not know what witnesses were to be produced against him, and of course could not be expected to be prepared to produce such writings. This rule is fully recognized by all the writers on the law of evidence, and is very analogous to the question here raised. But however the rule might be, there would not seem to be any room for the defendants to complain, for the plaintiffs failed to draw from the witness, that his letter contained any thing different from his testimony on the stand. We can not accept the view of .the defendants’ counsel, that a judgment must be reversed, if an improper question is allowed to be asked, though no improper evidence be obtained by his answer. Suppose a party offers to prove by a witness some fact, which is clearly improper and inadmissible, and the offer is objected to, but the inquiry is allowed, and the witness answers that he has no knowledge on the subject, is this error for which the party objecting is entitled to a new trial? We think not. The admission of improper evidence is ground of error, but merely because the court would have admitted it, if the party had it to give, is not. The statement of the witness^ Mrs. Bigelow, as to what Miss Ashley said, Was not admitted as evidence. The court decided that it was not admissible evidence, but the witness in the course of her testimony stated it. The court took the precaution to counteract.it, by stating to 'the jury, it was not .proper evidence. [297] It can not be said this was admitted by the court as evidence, and though stated by the witness, against the decision of the court, the county court were not bound to treat it as evidence, or to stop the trial. If every trial, in the course of which some witness, either by ignorance or design, makes some remark which is not proper evidence, must be regarded as a mistrial, very few verdicts could stand. With the extreme caution exercised by the court in this instance, we think there,is not the slightest ground to believe the defendants were prejudiced by the witness’ statement, but if they were, it can not be treated as an error of the court which can be revised here. The judgment is affirmed.