Bliss v. Paine

Martin Ch. J.: This action was tried by the Court without a jury. The declaration is in assumpsit upon the common counts, and underwritten and endorsed upon the declaration was a notice that, upon the trial of the cause, a note — a copy of which was given and referred to in the notice — would be read in evidence under the money counts. This notice was given under the provisions of sections 4161 and 4426 of the Compiled Laws, which declare substantially that the plaintiff may give in evidence under the money counts such bills of exchange and promissory notes as he shall notify the defendant that he intends to claim judgment upon, if copies be served upon the defendant, and filed with the declaration. In the present case it is not pretended but that a copy of the note was filed with the declaration, but it is claimed that none was served upon the defendant. I can not so read the sheriff’s return of service. That is to the effect that he served upon the plaintiff in error (whom for perspicuity I shall hereafter denominate the defendant) a copy of the declaration and notice, and this necessarily implies service of the copy of the note, as it was an essential part of the notice, without which it was no notice. No other construction of the return would be reasonable, and so we must construe it, as, in the language of my brother Campbell in Burkam v. Trowbridge, 9 Mich. 209, and which I adopt and apply in the consideration of the subsequent questions arising in this case, “ no Court is at liberty to strain the meaning of terms” (and certainly not words) “ so as to render them senseless and nugatory, when a sensible meaning is reasonably apparent.” The note offered to be read in evidence was the original, of which a copy was endorsed upon the — 98 — declaration and referred to in the notice, and was therefore properly allowed to be read as evidence of the defendant’s liability. Gardner Spring, Jr., a witness residing in the city of New York, was examined upon written interrogatories, and it is assigned as error that the Court allowed his answers to the third and fourth interrogatories to be read. The questions were clearly relevant and proper, but the answers it is insisted are not competent testimony. The counsel for the defendant does not regard them as evasive, but in substance rests his objection upon the ground that the writing can only be used to refresh the recollection of the witness, who mu3t still testify from recollection, but who does not testify that the memorandum was made by himself; and also upon the non-production of the memorandum for inspection and cross-examination. These being his objections, are the only grounds of error I can consider; if an objection is not good without a reason given, it is not good for any but those given. I can discover no error in the ruling of the Court. Whether the answers of themselves are sufficient to authorize the judgment is one question, and one with which we have no concern; but that they are competent as far as they go, is another. These answers are responsive to the interrogatories, and in my view are in the precise usual language in which such a witness would make them. See Burkam v. Trowbridge, 9 Mich. 209. He was a Notary Public residing in the city of New York, and kept an official registry of his acts as such notary. The note in question came into his hands for demand, and, if necessary, protest. Under circumstances like those in which he appears to have been placed, it can not be reasonably expected that he could retain a distinct recollection of each and every official act ofliis, and of the protest of this particular note. He had no immediate interest in the subject matter, and the duty of presenting and protesting the note, and of giving notices' — 99 — of non-payment, was within the general scope of his official duties, and not a special employment upon which his attention would be in any degree fixed, or which he would be likely or probable to fix in his recollection* This common experience teaches; and the law does not require a distinct recollection of every official notarial act, for it does not require impossibilities. Reading the answers in a reasonable light, we must infer that he performed the acts which he says were noted in his register, and that he made the entry at the time of.the performance. We should “strain the meaning of terms” so as to destroy a “sensible meaning” were we to hold otherwise. The law does not require that such official acts be proven from the recollection of a witness, but permits him to testify from memoranda made at or near the time, if he knows they are genuine and has no doubt of their truth: — See 1 Greenl. Ev. §§ 436, 437. This is a rule of general convenience and public necessity, and all rules, says Mr. Greenleaf, “ are adopted for practical purposes 'in the administration of justice, and must be so applied as to promote the ends for which they were designed.” Giving to the language of the witness a reasonable construction, I .am satisfied that his testimony is not evasive, but the true, honest statement of his official acts, and it is to me much more satisfactory than if he had pretended to a recollection awakened by reference to this memorandum of a long forgotten transaction. The objections of the defendant to this testimony go altogether to its sufficiency, and would be well taken, if, after a cross-examination, it should be found that the Witness had no knowledge of the memorandum, nor of the transaction, or refused to produce the memorandum for his inspection, and for cross - examination in respect to it. But no rule of law requires a deponent to fortify his testimony by anticipating every possible inquiry which might be made upon cross-examination, nor to produce — 100 — before the commissioner his register of memoranda for the purpose of inspection when there is no party present to inspect, and no interrogatory jn’opounded relating to it. If the defendant was dissatisfied with the answers given, he should have taken steps to obtain a further examination, and not permitted the cause to go to trial in the expectation of excluding competent, although perhaps insufficient or unsatisfactory, evidence. Depositions would be valueless, and only conduce to injustice under any other rule. But independent of these considerations, as the case was tried by the Court without a jury, the errors as to the allowance of the reading of the testimony are not, I think, assignable. In the case of a trial by jury, the J udge may and must inspect the answer, and determine whether it may go to the jury or not, and upon his ruling error may be assigned; but when he acts in the double character of court and jury, it is equally a matter of necessity that he should inspect the answer, and the question for him to determine is, whether any or what weight shall be given to it, and whether it shall be received as evidence so as to become an element of the judgment. I can not well see how he can commit error by permitting testimony to be read to himself upon the relevancy or admissibility-of which he is called to decide. If the question be conrpetent he must receive the answer, although he may exclude it from consideration in making up the judgment. It appears to me that by requiring the Judge to find the facts, and his rulings of law, in writing, the Legislature intended to meet this very class - of cases, and to preserve to a party, by allowing.him to take exceptions to such findings and rulings, his remedy when illegal testimony, although necessarily exhibited to the Judge, is improperly considered by him. In the case of a trial by jury, when testimony considered to be incompetent may be absolutely withheld from them, the presumption of law is that all the evidence suffered to go to them becomes an element in their verdict, — 101 — but no such presumption arises in a trial by the Court. What evidence he considered, and what he rejected upon deliberation and examination, can not be. known except from inspection of his written rulings and findings, or by his determination, manifested in some way, either to consider or reject it, always after he has read or heard it. In this case the bill of exceptions does not profess to recite the whole testimony, and we can not know upon What or whose testimony he grounded his judgment, nor have we the rulings and findings of the Court; and the impropriety of allowing exceptions to the interlocutory rulings of the Judge is here made very manifest. The only way in which these questions can be safely or properly reviewed, is upon a case made, or exceptions taken after judgment rendered, as provided by the statute; for until that event we have no means of knowing whether the judgment is based upon legal or illegal testimony, and a party can always protect himself by requiring distinct rulings upon all the objections taken by him in the progress of the trial. I think the judgment should be affirmed. Campbell J.: The note in controversy was we think properly admitted under the pleadings, for the reasons given by the Chief Justice. But we think the Court erred in receiving that portion of the deposition of Spring which was objected to. Inasmuch as the suit was brought to charge Bliss as indorser, it became incumbent to prove the presentment for payment and the refusal or neglect to pay, as well as notice of the dishonor. This it was sought to do by the witness Spring, who is shown by his deposition to have executed an instrument of protest. His testimony was taken on commission, on questions settled by consent of counsel. Cross-examining questions Were waived, and manifestly would have been unnecessary — 102 — under a fair expectation that he would have answered the very precise and accurate direct interrogatories, whereby he was distinctly required to state whether the acts necessary to charge the indorser were done by him personally. Instead of answering these pointed inquiries he contented himself with evading all of them, and stating that it appeared from entries in his register that the note was presented and dishonored, and that notice was sent by mail to certain parties. The answer was not in any proper sense a response to the questions, which clearly directed his mind to the necessity of disclosing his own personal acts and nothing else. We do not doubt but that it would have been, entirely proper for him, if he could not remember without, to refresh his recollection by reference to his own entries made at the time; but he must, either with or without the aid of such entries, be enabled to swear, and must swear, that the necessary steps were taken by himself at the proper time. There is nothing in his testimony which tends to show who presented the note, who made the entries, or who gave the notice. And, inasmuch as his attention was called to this very matter, it would be contrary to all rule to infer that which he has studiously avoided to state. If it clearly appeared from the bill of exceptions, that these omissions had been supplied by other testimony, the improper reception of the evidence in a trial before the Court without a jury might not have prejudiced the case. But we can make no such presumption in this case. Mr. Spring appears distinctly to be the Notary who protested the paper. The action relied upon must have been within his knowledge, if taken at all, and he is naturally to be looked to for the information. When the Court below decided that his deposition as to this action was admissible, we are necessarily bound to infer that it was received as sufficient proof, and acted upon. The answer of a witness under a commission is not — 103 — admissible unless it would have been admitted had he been examined in open Court on the stand. The statute expressly provides that objections of competency may be made at the trial: — 2 Comp. L. §4257. The judgment below must be reversed, with costs, and a new trial granted. Manning and Christiancy JJ. concurred with Campbell J. Judgment reversed.