Carpenter v. Dame

Perkins, J. Suit to' compel the specific performance of a bond .for the conveyance of real estate. The bond is alleged to have been given by John Carpenter to Benjamin O. .Carpenter. The suit is by the hens of Benjamin, deceased, against John. The bond upon which it is instituted had been destroyed, and a new one executed in place of it, to the widow and heirs of Benjamin O. Carpenter. It is alleged that John Carpenter, the obligee, fraudulently protíured the destruction of the original bond, and substituted for it one differing in its terms. The widow of Benjamin released all her interest in the lands named in the bond to her children, the heirs. Answer and replication filed. Trial by jury, who returned a verdict as follows: “ We, the jury, find for the plaintiffs, and assess their damages at 500 dollars; and we further find that the plaintiffs, who are heirs at law of Benjamin O. Carpenter, deceased, are entitled to a conveyance of the undivided one-third of the lands described in the complaint as lying in Tippecanoe county, Indiana.” The appellant filed a motion for a new trial, assigning — 127 — the -usual causes, which the Court overruled, and rendered judgment in accordance with the verdict. As there is some evidence tending to support the verdict, this Court must accept it as conclusive of the merits, if the Court below committed no error in its rulings during the course of its proceedings resulting in that verdict. Gatling v. Newell, 9 Ind. R. 572. Among the depositions filed in the cause by the appellant, was that of Matthew Gilfillan. It was one of a number of depositions, taken by him at the same time and place, and upon the same notice. The appellees moved to suppress all of the depositions thus taken, except that of Gilfillcm, for want of sufficient notice, and the Court sustained the motion. The appellant then moved to suppress that of Gilfillan for the^aaK reason, and the Court overruled the motion. Each deposition was an independent pap One might be legal, another not; and the one would not necessarily be dependent upc sion of another. And as the deposition oi taken by the appellant, the want of notice party could be no ground of 'objection on the pa? who took the deposition. The suppression of his other depositions, on the motion of the appellees, might have furnished him ground for a motion to continue. After the motion to suppress was overruled, the appellant asked leave to withdraw the deposition, but leave was refused. This was a matter in the discretion of the Court —a rule of Court might regulate the practice on this point. It may have done so in this case, for aught that appears of record. The Court then permitted the appellees to give the deposition in evidence. The giving in evidence does not seem to be objected to, but the time at which it was permitted to be done. Counsel say: “The second error complained of is: The Court permitted the appellees to read the deposition of Gilfillan, taken by the appellant, in evidence before the appellant had given any evidence in his defense. — 128 — “ Even if the Court ruled correctly in refusing to quash this deposition, that ruling did not make the deposition part of the appellees’ evidence, and the Court should have given to the appellant the privilege of marshaling his evidence in his own way, provided in so doing he violated no rule of practice.” There is not enough appearing of record to enable us to say that the Court abused its discretion on the question of time of reading the depositions. • The record states that the plaintiffs (the appellees), on the trial of the cause, “ produced Matilda Carpenter as a witness in their behalf, who testified that she was the widow of Benjamin O. Carpenter, deceased, and the mother of the plaintiffs; and thereupon the plaintiffs offered to prove by her the contents of the lost bond on which the suit was founded, and which bond plaintiffs alleged'was given by the defendant, to said Benjamin O. Carpenter, during the coverture of said Matilda; and also to prove the execution and delivery of said bond, and its destruction; to the, making of which proof by said witness the defendant objected, but the Court overruled the objection, and permitted her to testify,” &c. As Mrs. Matilda Carpenter had released all her interest in the land sued for, she was not a necessary party to the suit. Shaw et al. v. Hoadley, 8 Blackf. 165. Her deceased husband was not, either actually, or within the spirit and meaning of the statute, a party. Riser et al. v. Snoddy, 7 Ind. R. 442. She could not be excluded, then, as a witness, on account of being a party; for she was not such, and the judgment rendered would in no manner accrue to her benefit. She could not be excluded from interest; for even if it existed, it did not disqualify. Jack v. Russey, 8 Ind. R. 180. She was not called to testify for or against her husband; for he was not a party to the suit. Her exclusion, therefore, could not be placed upon this ground. Could it be put upon the ground that she was offered for the purpose of disclosing communications between her and her husband, made during coverture? Without here attempting to define with precision what are to be considered, in all cases, such communica — 129 — tions, we will say that we do not think the definition should be broad enough, when given, to embrace the testimony of Mrs. Carpenter in this case. This is very like the case of Jack v. Russey, supra, by which we think the ruling below, now under consideration, is justified. The Court sustained a challenge to a juror. The record states that “ Charles Stockton, a talesman, was called as a juror; that during his preliminary examination under oath, as to competency, he was asked whether he was a householder, to' which question he answered that he was a married man, and owned a farm in the county; that he rented his farm and house on it, but by an arrangement since the lease, with his tenant, he holds a part of his house, and claims possession of it, has his household goods in it, considers it his home, keeps a post-office in the house which he tends to himself, or by deputy; that he is pot there more than one-eighth of his time, and since the renting of his house, his wife has been visiting among friends in the county. Upon these facts the Court sustained a challenge to said Stockton-, as a competent juror, for cause. The ruling was excepted to. The correctness of the ruling depends upon the scope to be assigned to the word, householder. Did the legislature intend, by using that term, to render incompetent a freeholder who was not also a householder? Or did they use it merely to express a less degree of property, meaning thereby to diminish the qualification required. Did they mean to concede that a freeholder would be competent, of course, and, by the use of the word householder, to extend the qualification to those possessed of a leasehold interest?.1 We think this is not the interpretation. The language' wall not justify it. A man may be a large owner of lots, and lands — a freeholder, but there may be no house' upon the freehold. And had the legislature intended to have rendered competent both freeholders and householders,, it is reasonable to suppose they would have said so. They did say so in the code of 1843. See p. 951, § 2.. But in the code of 1852, the word freeholder is dropped,, and the qual — 130 — ification of householder required in all cases. 2 R. S. p. 24, § 1. The next inquiry is, in what sense, as to qualifications, is the word householder used in the statute? Does it mean simply that he must be a holder in fee, or a leaseholder of a house, or does it mean that he must be a housekeeper— the head of a family occupying a house? The word, in statutes, seems generally to be used in this latter sense. See a collection of English cases on the word housekeeper, in 3 Petersdorff, pp. 103 to 106. It is so used in our statute exempting property from execution. Wharton, in his Law Dictionary, defines a householder, to be the master of a family. It would seem that the legislature held that a man was not qualified to discharge the duties of a juror till he had had the experiences, and felt the sympathies and responsibilties of the head of a family; nor unless he continued to live with his family. If such be the construction of the statute, it is certainly very doubtful whether Stockton, in this case, had the qualifications of a juror; but we need not decide the point here, for the record does not show that any intended unfairness was practiced in the selection of the juiy, nor but that a perfectly impartial and satisfactory one was obtained to try the cause. The People v. Ransom, 7 Wend. 417.—The King v. Hunt, 4 B. and A. 430. The appellant offered to prove to the jury, that Matthew Gilfillan was not of sound memory; but the Court refused permission. In this, it is claimed by the appellant that the Court erred; while the appellees contend that it was not a question to be tried by the jury, but by the Court, before the evidence of the witness was submitted to the jury. Matter that goes to the competency of a witness, is for the Court, that which goes to his credibility, for the jury. Most matters which formerly went to the competency, now, by statute, in this state, go to the credibility of witnesses. It may be proved that a witness is interested, has been convicted of a crime, is not of good moral character, does not believe in the existence of a Supreme God, or in the chris — 131 — tian religion. And, finally, section 243,2 R. S. p. 83, enacts that “ any fact which might heretofore be shown to render a witness incompetent, may be hereafter shown to affect his credibiíity.” The want of mental capacity, however, by the statute, goes to the competency of a witness (2 R. S. p. 81); and where he was introduced in Court to be sworn to testify, the Court, on the objection being raised, would satisfy itself, by an examination of the proposed witness, or by hearing evidence, of the validity of the objection, before it permitted the witness to testify. Whether, if the Court should hold the witness competent, and he should testify, the opposite party might be permitted to prove actual incompetency, or a weakness in a given faculty, or in all the faculties, to affect the credibility of, though it did not exist in a sufficient degree to exclude, the witness, we do not decide, though such would seem to be inferable from the above quoted statute. In cases of written instruments offered in evidence, but objected to as invalid in their execution, &c., the Court first decides upon the objection, but it is again open to the jury. See note to 1 Greenl. Ev. p. 714. But in this case the witness was not introduced in Couit —the Court had no opportunity to test the capacity of the witness; and the officer who took his deposition fiad no right to decide upon legal questions, if raised at the taking. He was not a Court. It was his duty to take down all the testimony of the witnesses produced, and forward it to the Court in which it was designed to be used. In that Court, all objections would be raised, heard, and decided. The objection in this case, might, at the proper time, and by the proper party, have been made to the Court, in the first instance ; and if the Court had held the deponent competent, and his deposition admissible, we do not say the question might not have been opened again before the jury. We do not feel called upon to decide the point here, for we think, in this case, there are other considerations which will sustain the ruling of the Court below. It appears that the appellees had taken Gilfittan’s deposition which had been read in evidence at a previous, inde — 132 — cisive trial; that it remained on file to be, and was, again used on the trial resulting in the judgment appealed from, and that no objection had been raised to it. Between the two trials the appellant took Gfilfillan’s- deposition, and still claimed it to be a part of his evidence. The witness lived in Ohio, where evidence would have to be sought to sustain his mental capacity, if impeached, and could not, of course, be produced at the trial then in progress. Under these circumstances, we think the Court wis.ely exercised its discretion in refusing to permit the attempted impeachment. The Court refused to give the following instruction: “ That a written copy of a bond made fifteen years ago, sworn to by the person who wrote and witnessed it, is better evidence of the contents of the original, than verbal evidence given from memory only, if the witnesses are equally credible.” Whether the Court refused this instruction because it did not consider it strictly applicable to the evidence; or did not consider it to be law; or considered that, if law, the appellant, having himself destroyed the original bond, had not a right to the benefit of the rule, — we are not advised. But it seems that the better opinion now is, that there are no degrees, as a general rule, in secondary evidence. 1 Greenl. Ev.p. 738. See 1 Greenl. Ev. p. 159, note; 3 Wend. Black. Com. p. 368, note 28; Doe v. Ross, 7 M. & W. 102, and note on p. 108. The case of Coman et al. v. The State, 4 Blackf. 241, cannot be applied as law to the case now before the Court. A difference may be created by statute. The Court did not instruct the jury that interest must be considered in weighing the testimony of a witness, but doubtless would, if such an instruction had been asked. See Spivey v. The State, 8 Ind. R. 405. We are unable to discover any error in the ruling of the Court below, sufficient to justify a reversal of the judgment. Per Curiam. — The judgment is affirmed, with 1 per cent, damages and costs. J. M. La Rue, W. C. Wilson and J. Pettit, for the appellant (1). Z. Baird, R. C. Gregory and R. Jones, for the appellees (2).