Semmens v. Walters

OetoN, J. 1. The depositions were returned to tbe commissioner in Canada for correction by signing bis name as a commissioner instead of consul of the United States. This was not error. 2 Wait’s Pr., 707; Keeler v. Vanderpool, 1 Code R. (N. S.), 289; Creamer v. Jackson, 4 Abb. Pr., 413. It is suggested, but not decided, that the statute authorizing commissions, contemplates their issue to unofficial persons not otherwise authorized to take depositions, and the issue of commissions only to persons in another state or territory of the Union. Consuls of the United States are authorized to take depositions without a commission, and a commission is needless. 2 R. S. of U. S. (2d ed.), § 1750; Herman v. Herman, 4 Wash. C. C., 555. And it is questionable whether the strict rules of taking depositions by commissioners ought to be applied in such a case, where the proper notice, as in this case, was given of the examination of certain witnesses whose residence is given in the notice before a consul of the United States in one of the provinces of Canada, and the time and place are also given in the notice. 2. The residences of the witnesses were not stated in the caption of the interrogatories, but were stated in the notice accompanying them, or a copy of them. This was certainly a substantial compliance with the statute. Sec. 4114, E. S. Defects and irregularities in taking depositions, and in the examination of witnesses thereon, will be disregarded if they are merely formal, and do not affect the rights of the parties. Hewlett v. Wood, 67 N. Y., 394; Forrest v. Kissam, 7 Hill, 463; Rust v. Eckler, 41 N. Y., 488; Kimball v. Davis, 19 Wend., 437. And it is a matter of discretion to admit or suppress depositions taken under a commission, even where there has been an irregularity in examination of witnesses. Wanzer v. Hardy, 4 Wis., 229. 3. The last general interrogatory was not answered. The strict rule laid down by some authorities, that if this last interrogatory is not answered the deposition will in general [682] be suppressed, as in Kimball v. Davis, supra, must rest upon the other rule that it must appear that by such an omission the opposite party might have been prejudiced. It is doubtful if there is no appearance on the other side, and no cross interrogatories, whether the opposite party can complain of the omission. The reason given for the strict rule is that unless this last general interrogatory is answered, it is impossible to say that the witness has told the whole truth. Where it is clearly apparent, as in this case, that the witness could not have testified to anything further unless to contradict her evidence in answer to the specific interrogatories, which certainly is not to be presumed, the omission was harmless. The witness was the party plaintiff, and it is not probable she would have testified to anything favorable to the other side, and especially in contradiction of her other testimony. The testimony of the witness is so full, not only as to the general fact that the money which went into the mortgage was her separate property, but also as to the minute particulars of the manner in which she acquired it, that we may well say that the general interrogatory had already been fully answered; and that is sufficient. Fassin v. Hubbard,, 55 N. Y., 471. If the deposition had been suppressed for any cause, there was still evidence in this case of the separate property of the plaintiff in the testimony of Thomas Par-melee, the cashier of the bank, and the draft of $913.80, which was made payable to her by indorsement. But, we think, the depositions were properly allowed. 4. The correspondence with divers persons in England, referred to in the deposition and made a part thereof, as original or positive evidence perhaps was not admissible, and the circuit court did not admit it on that ground, but only as explanatory of the testimony of the plaintiff that the money was hers. These letters are given to show how she came by it, and this was not necessary or strictly proper, except on [683] cross examination. The fact that the money was hers was the only material one, and this she testified to positively, and the letters were merely in explanation or corroboration of her testimony relating to this fact. It is by no means sure that the letters were not admissible as a part of her deposition. They were called for by the interrogatories, without objection or cross interrogatories. But it is sufficient that the testimony of the plaintiff made a prwna faoie case ■without the correspondence, and the verdict should and probably would have been the same if they had been rejected. 5. "What took place on the opening of the plaintiff’s case to the jury by her counsel is not preserved in the bill of exceptions, and the certificate of the judge who signed the bill of exceptions can give this court na right to consider anything outside of the record. The record must consist of that which is record without it, and that which is made a part of it by a bill of exceptions. We do not think we have a right to consider the reporter’s notes or any fact thereto, although the certificate of. the learned judge gives us leave to do so when such notes are not made a part of the bill of exceptions. 6. The learned counsel of the appellant seems not to understand or to misapprehend the general language of the opinions in some late cases in this court, and to infer that the general rule which places the burthen of. showing fraud upon the party alleging it has been reversed in such cases. The general language of the opinions, which is also used in the instructions asked, must be construed and understood in connection with that used in other cases, where it is clear and explicit, touching the precise questions raised. When these opinions speak about the onus of showing the Iona fides or good faith of her purchase from her husband being cast upon the wife, reference is had to the question of the consideration as her separate property, upon which the presumption of the law is against her. These facts clearly [684] established by her, the question of whether the conveyance or mortgage from her husband was taken in good faith, or with the intent to defraud, rests upon the same general principle as between other parties, and the burthen of showing the fraud is upon the party alleging it. The onus of proving the fraud being thus upon the party attacking the conveyance or mortgage on that ground, and the onus of showing that the consideration thereof arose from some other source than her husband, and consisted of her separate estate being cast upon her, then the principle laid down in Hoxie v. Price, 31 Wis., 82, that, on account of their peculiar relationship, “ the transactions should be closely examined and scrutinized to see that they are fair and honest,” may have full force. To illustrate, the language of the statute in respect to cases where the defendant is an officer alleging fraud in the mortgage by which the plaintiff claims the property levied on or attached, sec. 2319, R. S., is, “then the burden of proof shall be upon the plaintiff to show that such mortgage was given in good faith, and to secure an actual indebtedness and the amount thereof.” In respect to this statute Mr. Justice Taylou. says, in James v. Duyn, 45 Wis., 512: “ We do not think the statute was intended to put upon the plaintiff the burden of proof throughout the whole case, and compel him to prove affirmatively that his mortgage was not in fact fraudulent and void as to creditors. Where the mortgagee has proved that the mortgage was given to secure an actual indebtedness and the amount thereof, he has in fact established prima facie that it was given m good faith, unless there be something on the face of the mortgage which shows it to be fraudulent.” So, wherever general language is used in any opinion, which associates good faith or bona fides with the fact of consideration or separate property, as the burden of proof which is thrown upon the wife, proof of her separate property, and that it constituted the consideration of the conveyance or mort [685] gage, is proof of the good faith and lona fides used in this sense. With this understanding of the language of the instructions asked, it was proper to give them, and it was also proper for the court to give the jury further or additional instructions, which would embrace more fully the whole law upon the subject. The instructions were not changed or modified so much as extended and explained, and there appears to be no error in such additional instructions, viewed in this light. By the Gourt.— The judgment of the circuit court is affirmed.