Camp v. Averill

The opinion of the court was delivered by Ross, J. I. The deposition of Albert S. Southworth was properly admitted. The law allows the taking of the deposition of a witness called as an expert, for the same causes and under the same circumstances, that it allows the taking of the deposition of any other witness. The statute in this respect, makes no distinction between witnesses called to testify as experts and other witnesses. R. L. s. 1019. II. No exception was taken to granting leave to the plaintiff to omit reading a part of the deposition. Hence, whatever the right of a party against whom a deposition is read, to have the whole deposition read, if any of it is, there was no error in the action of the court in this respect. It is not true that either party has the right to have immaterial, or inadmissible, matter read, because it has been inserted into a deposition at the instance of the other party. The omitted part of Southworth’s deposition related to matter immaterial to, and outside the issue on trial, and for that reason, if admitted, and read, at the solicitation of the defendant, would not have laid the foundation for contradicting or impeaching the witness. No rule is better established, than that a' witness ■ can only be contradicted, or impeached, upon a subject-matter material to the issue on trial. III. The court properly excluded evidence offered to show that the signatures of C. C. Leonard, J. S. Collins and H. C. Leonard upon the note were forgeries. The genuineness of these signatures was not involved in the issue on trial. That issue involved only the genuineness of the signature of the defendant upon the note. There was no offer to connect the former signatures with the latter, as by showing that they were written by the same hand, or at the same time, or with the same pen and ink, by, at, or with which the signature of the defendant was written. The offer included the trial of issues, independent of, and not [324] connected with, nor a part of, the issue on trial, and was properly-rejected. This holding rendered the reserved portion of South-worth’s deposition inadmissible also, if offered by the plaintiff in rebuttal. IV. After the inadmissible portion of Southwo'rth’s deposition was effectually obliterated, there could be no more objection to allowing it to go to the jury, than to allowing any deposition to go to the jury. It has been the almost universal practice, unless there was some rule of court prohibiting it, to allow the jury to take the depositions used on the trial, with the other papers in the case, when they retire to make up their verdict. There was no error in the action of the County Court in this respect. V. The parties were at issue in their evidence as to what took place between them March 7th, or shortly, thereafter. “The plaintiff testified that he did not see H. C. Leonard March 7th, and did not tell the defendant that Leonard denied signing the nóte.” The defendant testified that the plaintiff told him that he saw H. C. Leonard on that day, and that he denied signing the note. The defendant to support his side of the issue offered to show by H. C. Leonard that the plaintiff did see him March 7, and that he asked him about the note, and he, Leonard, denied signing it. The court allowed him to testify that the plaintiff did see him March 7. This was proper, as it contradicted the plaintiff’s testimony and tended to impeach him. But the court excluded the remaining part of the offered testimony, and we think correctly. The fact that the plaintiff asked Leonard, on that-occasion, about the note, and he denied signing it, had no legitimate tendency to show that the plaintiff told the defendant so. It would have been legitimate upon this issue in the evidence, for the plaintiff to have established that he did not ask Leonard about the note, and Leonard did not deny signing it; inasmuch as, it would be improbable that the plaintiff would tell the defendant, what he did not know, and what, in fact, did not exist. But there is no legitimate probability that a witness communicates to another a fact, simply because that fact is known to him. While, if truth [325] ful, he cannot communicate what he does not know, he may, or may not, communicate what he does know ; but the probability that he did communicate a fact simply because he knew it, is too speculative and remote to have a place, as legitimate evidence, in a jury trial. This disposes of all the exceptions brought to our attention by the defendant. The result is, that we find no error in the proceedings and judgment of the County Court, and that judgment is affirmed.