Garrott v. Johnson

Stephen, J., delivered the opinion of this court. We do not think, that there is any error in the judgment of the court below, from which this appeal has been taken. Two [182] bills of exceptions are contained in the record, upon points of evidence, which this court have to decide. We think that the evidence of James E. Wood, as to the facts sworn to, by the deceased witness at the former trial, between the same parties, where the appellant was plaintiff, and the appellee w'as defendant, was admissible to go to the jury in this case. There is nothing we think in the record given in evidence by the plaintiff below, to prove, that in the former action between these parties, the corn now in controversy, and for which this suit has been brought, was allowed to the plaintiff on account of his purchase of the negro man, for the price of whom that suit was instituted. The bills of exceptions shewing that the plaintiff’s recovery in that case, for the purchase money of the negro sold, may have been barred upon other grounds, and not upon the ground of the defendant’s set off; nor is there any thing in the record to shew, that the plaintiff in that action had any other claim against the defendant supported by proof, to which the corn as a set off could be applied; moreover, it appears to be a principle of law, well established, that to make a record evidence to conclude any matter, it should appear by the record, or by other proof, that the matter was in issue, and decided in that suit. As therefore, there was nothing to shew, that the plaintiff in this action, had been allowed for the com in the former suit, we think the evidence in the first bill of exceptions, was by the eourt below properly admitted to go to jury; more especially, as the defendant in this case, had the full benefit of a cross examination of the deceased witness, at the first trial; and such testimony is admitted upon the ground of necessity, to prevent a failure of justice, which in many cases might take place by its exclusion. We are also of opinion, that the court below were right in suffering the testimony of Wood to go to the jury, as stated in the second bill of exceptions. There is some contrariety in the decisions, as to the manner in which the testimony of a deceased witness is to be proved, in cases similar to the present. In England the rule seems to be, that the very words of the [183] deceased witness must be proved, or the testimony is not admissible. In some of our sister States, the substance is admitted, and it is held that the very words are not indispensable. We are of opinion that the rule as established in England is too rigid, and exclusive for the purposes of justice; and would in most cases, considering the frailty of the human memory, lead to a total rejection of all such testimony. On the contrary it may, we think with reason and propriety be objected,'that to admit the substance, would be too great a relaxation of the English rule, and open too wide a door for a safe and due administration of justice. In such cases, we are not disposed to adopt or give our assent to either rule; but to adopt a principle, which while it would be sufficiently protec* tive of the rights of juries to draw inferences, and decide upon the effect of testimony, which seems to be the reason of the rule in England, would not be so lax in its operation, as to admit evidence with too much facility on the one hand, or to reject it with too great rigour on the other. We think that for all the purposes of truth and a safe administration of justice, it may be held, that where it is necessary to prove what a deceased witness swore upon a former trial between the same parties, where the issue or matter in controversy was the same, as the one then pending, it is sufficient for the living witness who is called to testify, to prove facts, that is to say, that the witness who is dead, in giving in his testimony deposed to certain facts. Such a rule would be sufhciently restrictive, to exclude the opinion and construction of the witness on the one hand, and not so rigid, as to deprive a party in many instances of the benefit of such testimony on the other. Testing the admissibility of the witness’s testimony in this case, as to what was sworn by the deceased witness upon the former trial by this rule, and we think it legally competent and admissible. The witness could not undertake to state the words, or the precise language of the deceased witness in giving his testimony; but it is clear, that in that testimony, as proved by the living witness, nothing is stated to have been [184] proved by him, but what was strictly a matter of fact, and although there was some' uncertainty in the testimony of the deceased witness, as to the quantity of corn sold, his testimony as detailed by the living witness, was still matter of fact only, and the effect of it there as here, was for the jury. It could not, we think, with any semblance of legal propriety be contended, that if the deceased witness had himself been in the court, and given the testimony which Wood gave, it could have been objected to, as incompetent; simply upon the ground, that he swore with doubt and hesitation;] and if not, it is not readily to be perceived, upon what ground such proof would be inadmissible, because given by another who was present when he delivered it, as matter of fact within his own knowledge. We think that the case in 5 Harr. & John. 231, sanctions the rule of evidence, which we are disposed to adopt upon the present occasion. In that case, the court say the evidence given to the jury by the deceased witness, must be proved, and it will not be sufficient, that the witness should give his own inferences, or depose to the legal effect, as the jury alone are competent to draw conclusions of fact from testimony. In that case the defendant below, offered to prove by a competent and legal witness, that when a jury was formerly empannelled to try the case, Evers field Bowie, who had been examined on the survey, who is since dead, and who had been sworn in court on the said trial, proved that the land had been in the possession of, and cultivated by Fielder Bowie, for a number of years, and that as far as the witness could remember, he died in the seizin and possession thereof; the court then say, it is most evident then, that the witness was not produced for the purpose of proving the effect of the testimony given by the deceased witness but, to declare on oath, what he did actually prove. In that case it appears he vras called to prove, that the deceased witness swore, that the land had been in the possession of, and cultivated by Felder Bowie for a number of years, and that as far as the witness could recollect, he died in the seizin and possession thereof. The living witness in that case, as in this, it is most [185] apparent, was called to prove facts, and not to give bis own inferences, and in proving such facts, to declare on oath as the court say, what the deceased witness did actually prove. By the proof of these facts then, the court thought his testimony would not have been obnoxious to the objection of being inferential merely, or only proof of the effect of the evidence, but it would have amounted to testimony of what the deceased witness actually did prove; and if it could be considered as amounting to evidence, of what the deceased witness actually did prove, it would have been clearly competent and admissible. Perceiving no error in the opinion of the court below, we affirm their judgment. JUDGMENT AFFIRMED.