Bowman v. Sanborn & Harper

Eastman, J. The question which has been most fully discussed by the counsel in this case, relates to the correctness of the ruling of the court in excluding the deposition of Henderson; and to this question we will first turn our attention. It appears that two depositions of the witness had been taken; one, ex pcvrte; and the other, upon appearance. The one taken ex parte was first offered, and was objected to on the ground that it had been improperly taken. This ob — 103 — jection was sustained by the court upon the facts which then appeared. The other deposition was then read and used by the plaintiff without objection. Has the party sustained any injury by the ruling by which the deposition was excluded ? In arriving at a solution of this question, several principles connected with the taking of depositions may properly enough be alluded to. They are said to be an unsatisfactory species of evidence, unknown to the common law, and that courts have no authority to cause them to be taken except where the power is given by statute ; and that when taken, the statutes giving the power must be strictly complied with. Bell v. Morrison, 1 Peters’ Rep. 351; Bradstreet v. Baldwin, 11 Mass. Rep. 229; Evans v. Eaton, 7 Wheaton’s Rep. 356; Frye v. Barker, 2 Pick. Rep. 65; Winooskie Turnpike Co. v. Ridley, 8 Vermont Rep. 404. Depositions must not only be taken according to strict statutory requirements, but they must be properly, fairly and impartially taken. This is a matter familiar to the bar of this State. Thus, if it appear that the opposite party was notified to attend the caption at a time when he must necessarily be absent, or engaged in important business requiring his personal attention, and this was known to the party giving the notice, the deposition will be rejected. Ela v. Rand, 4 N. H. Rep. 54. So a deposition taken before one who has acted as agent of the party in the same cause, is inadmissible. Smith v. Smith, 4 Greenl. Rep. 408. Or before a justice who has appeared in behalf of a party at the taking of a deposition to be used in the cause, and examined the witness. Whicher v. Whicher, 11 N. H. Rep. 348. And a deposition taken before an uncle of one of the parties to the suit, is inadmissible for such party. Bean v. Quimby, 5 N. H. Rep. 94. In Shepard v. Thompson, 5 N. H. Rep. 95, a deposition was ruled inadmissible where a party had noted a part of the testimony of the witness on a slate, although it was — 104 — afterwards reduced to writing by the justice. So it is a valid objection to a deposition that it was dictated or writ-|en by an attorney in the cause. King v. Dale, 1 Scam. Rep. 513. In Dana v. Underwood, 19 Pick. Rep. 99, it was held that a deposition taken by a party, in which he has embodied, by way of interrogatory, a copy of a deposition of the same witness, previously taken in the same action by the other party, but which this other party did not see fit to use, was inadmissible. In Pennsylvania, a deposition written by a witness previously to his examination before the justice, the caption being prefixed to it in the handwriting of the justice, is incompetent evidence. McEntire v. Henderson, 1 Penn. State Rep. 402. To the same effect is the case of the United States v. Smith, 4 Day’s Rep. 121. And with us it has been held, that if a deposition be copied in a material part from an affidavit previously sworn to by the deponent, but drawn up by the party taking the deposition, it will be rejected. Clement v. Hadlock, 13 N. H. Rep. 185. We have not gone so far as in Pennsylvania, to hold it a sufficient objection to a deposition that the- body of it is drawn up by the deponent, before coming to the place of caption, but the late learned chief justice, in delivering the opinion in the last case cited, says, in substance, that there are objections to this practice, as it gives facilities for copying the depositions from papers furnished by the party, and for undue influence in relation to the mode of drawing up the testimony. The doctrine of this case no doubt is, that if it should be made to appear that any portion of a deposition was copied from a paper or book furnished by the party, or that any undue influence had been used in drawing it up, the deposition would be rejected. These and other authorities that might be cited, all show that courts look with much scrutiny into the manner in which depositions are taken, and reject them whenever any impropriety or unfairness in the caption shall be made to appear. — 105 — It is obvious that improprieties and unfairness in the taking of depositions may be proved by evidence aliunde, disconnected from anything that appears upon the depositions themselves. Another matter well settled is, that papers and exhibits referred to in depositions, cannot, as a general rule, be read, unless they are identified and annexed to the depositions and enclosed in them. Petriken v. Collier, 7 Watts and Serg. 392; Jackson v. Shepard, 6 Cowen’s Rep. 444; Humphreys v. Powell, 1 Breese’s Rep. 231; Cray v. Canadine, 4 Pike 216. If they are public records so that the originals cannot be removed, the same strictness is not required. So if the papers are not within the legal custody of the party or witness. Perhaps, too, if they are so referred to in the deposition as to make it clear that they are the papers, they may be read if not annexed. It is also believed to be a principle well established, that wheb an inferior court, without the intervention of a jury, undertakes to settle and does settle a question of fact proper and legal for them to decide, their decision is final, and not open to review or reversal by a superior court. In Higbee v. Bacon, 11 Pick. Rep. 428, chief justice Shaw says, “ the decision of a court held by a single judge must be deemed conclusive upon all questions of fact.” This principle is sustained by other authorities. Stearns v. Fiske, 18 Pick. Rep. 24; Crenshaw v. Jackson, 6 Geo. Rep. 509; Pelletreau v. Jackson, 7 Wendell’s Rep. 471; Nash v. Harrington, 1 Aiken’s Rep. 39; Hall v. Reed, 17 Ohio Rep. 498; Field v. United States, 9 Peters’ Rep. 182; Strong v. Barnes, 11 Vermont Rep. 221; Kirby v. Mayo, 13 Vermont Rep. 103. This rule is not varied unless the court below undertake expressly to send up the question of fact. It cannot be reviewed any more than questions arising upon their discretion. And matters within the discretion of an inferior tribunal are not grounds of exception and cannot be re-ex — 106 — amined in a superior court. Clapp v. Hanson, 3 Shepl. Rep. 345; Jenkins v. Brown, 21 Wendell’s Rep. 454; Feneley v. Mahoney, 21 Pick. Rep. 212; Cummings v. Fullum, 13 Vermont Rep. 459; Com. v. Sackett, 22 Pick. Rep. 394; Cutter v. Grover, 3 Shepl. Rep. 159; Sandford Manuf. Co. v. Wiggin, 14 N. H. Rep. 441. Another principle, which, by analogy, has a bearing upon this question, is, that a court will not interfere with the verdict of a jury where competent evidence has been laid before them, unless it appears that they have been guilty of fraud or some gross error. Wendell v. Safford, 12 N. H. Rep. 171; Lisbon v. Bath, 1 Foster’s Rep. 319. And if a verdict will not be set aside as against evidence unless the court are satisfied that it was procured by corruption or by manifest mistake in the consideration and application of the evidence, the decision of the court below upon a matter of fact proper for them to decide, will not be interfered With, when this court can see that that tribunal had competent evidence to act upon. With these propositions we will proceed to the facts in this case. The deposition of Henderson was offered, and was objected to upon the ground that the dates and material facts contained therein were collected from a memorandum book of the witness, and were not testified to from his recollection. This ground of objection, if true, would be fatal to the admission of the deposition. It is no other than this, that the substance of the deposition — all the material facts contained therein — were not the testimony of the witness, but a copy from a memorandum book. If the witness had been upon the stand and had testified that he had no distinct recollection of the facts connected with the case, but could read them from a memorandum book, his testimony would at once have been rejected, unless he could state sufficient to make the book itself competent evidence upon the principle laid down in Haven v. Wendell & al., 11 N. H. Rep. 112. And if he had stated in his deposition — 107 — that he took all the material facts from a memorandum book, and did not testify from recollection, the deposition could not be received unless he had also stated that he committed the matters in the book to writing soon after they transpired, that he knew they were then correct and should have sworn to them at that time from recollection, and had then returned the book with his deposition so as to make it a part of it. The deposition, without the statements to bring it within the principle of Haven v. Wendell, would contain within itself evidence of its entire illegality and incompetency. And such was the purport of the decision in the case of Hall v. Ray, Hillsborough, July Term, 1846. But here the deposition does not show of itself that it was improperly and illegally taken. It does not say that it is in substance a copy from a memorandum book, and that the witness did not testify from recollection; but evidence was submitted to the court below from which they found that the dates and material facts were thus collected. A portion of this evidence is sent to this court, that we may see whether or not there was competent evidence for that court to consider. Other evidence was undoubtedly before them. They had the deposition itself, from which they could see that it related to occurrences which transpired some twelve years before the caption; and that it was taken ex parte, in the State of New York. They had the fact that another deposition of the same witness had been subsequently taken, upon appearance, and was then in the hands of the plaintiff; which deposition was afterwards used upon the trial without objection. And from all the evidence then before the court they decided the question of fact, that the deposition offered was, in all its material parts, copied from a memorandum book, and was not founded upon the recollection of the witness himself. This question of fact decided by the court below, is not sent here for revision. It was examined and passed upon by that court, and the evidence sent up is not here that we — 108 — may review the question of fact, for it is apparent that we have not before us all the evidence which that court had; but it is sent up that we may see that there was competent evidence for the court below to consider and act upon. And the question of fact having been decided by that court upon evidence competent for them to consider, and not being expressly sent h.ere for revision, this court will not, upon the principles above laid down, enter into any discussion as to what might have been their conclusions upon the same evidence. It was within the province of the common pleas to decide the question, and they having decided it, this court will not review the correctness of that decision. The question then for us to pass upon is this: can a deposition, taken ex parte, which is made up of facts collected from a memorandum book, and not from the recollection of the witness, be held to be admissible ? Is such a deposition properly takeñ ? If depositions are an unsatisfactory species of evidence at best; if the statutes by which they are authorized to be taken must be followed with strictness ; if courts look wilh jealousy upon every thing' that tends to throw suspicion upon the fairness or propriety in the taking of depositions, and reject them if cbpied from papers or if undue influence is used, it appears to us quite clear that a deposition, all the material facts of which are taken from a memorandum book, and are not the recollection of the witness, must be rejected as improperly taken. But even if the deposition was erroneously rejected, the plaintiff has suffered nothing by the ruling. In Clough v. Bowman, 15 N. H. Rep. 504, it was held that if the deposition of a witness be erroneously rejected and the party subsequently procures the attendance of the witness and avails himself of the benefit of his testimony upon the trial, the rejection of the deposition will not furnish ground for a new trial. The very learned chief justice, in delivering the opinion of the court in that case, says : <( As the plaintiff — 109 — bad the benefit of the testimony of the witness, his exception comes to this, that by the rejection of the deposition be was put to the trouble and expense of procuring the attendance of the witness. But this would not entitle him to a new trial, even if it were in consequence of the erroneous ruling of the court. If a party takes an exception to a deficiency of evidence on the part of his adversary, which is, in fact, well founded, but is erroneously overruled, and he afterwards supplies that deficiency by testimony produced by himself, he thereby waives or overrules his exception.” In this case the party had two depositions of the same witness; one taken ex parte, and the other subsequently upon notice. An examination of the depositions shows the latter to be much more full than the former, as would naturally be the ease. He offered the one taken ex parte, and the court ruled it out as improperly taken. Instead of resting upon that ruling and testing its accuracy in this court, be proceeded and offered the other deposition, and it wras used without exception. He thus had the benefit of the testimony of the witness; and upon the principle of Clough v. Bowman, waived or overruled his exception by the use of the second deposition. We pass now to the consideration of the second question raised in the case, and that is, whether the testimony of Mr. Minot was competent to be submitted to the jury as tending to prove the hand-writing of the book. The book purported to be that of Bowman and Sanborn, and it became material for the defendants to show the entries therein to be in the hand-writing of Matthews and Henderson, who were clerks of Bowman and Sanborn at that time. There is undoubtedly much conflict in the decisions in regard to the evidence necessary to prove private writings, and particularly as to the comparison of hands. And we do not propose to go into an examination of the different — 110 — rules recognized by the authorities, but simply to state what we understand the rule to be in our own courts. If a witness has any knowledge of the hand-writing of the person in question, which has been derived from seeing him write, though it be but once, he may give his opinion as to the genuineness of the signature or writing in dispute. And if his knowledge has been derived from having seen genuine signatures or writings of the person, either in transacting business with him, so that the papers have been acted upon and recognized by him as genuine, or by an intimate acquaintance with signatures which have been adopted into the ordinary business transactions of life, he may give his opinion of the hand-writing. The State v. Carr, 5 N. H. Rep. 367; Myers v. Toscan, 3 N. H. Rep. 47; Furber v. Hilliard, 2 N. H. Rep. 480. Where papers are already in evidence for other purposes, and about whose genuineness there is no dispute, the jury may make a comparison between them and the writing in question; or an expert may make a comparison and testify as to his opinion in the matter. But the practice with us has no doubt generally been, not to rely upon the comparison till evidence of belief in the hand-writing, derived from a knowledge of the same, has been introduced; and this course has been pursued upon the authority of Myers v. Toscan, before cited. It will be observed, however, that the decision in that case is this, that “ it cannot be left to a jury to determine the genuineness of a signature to a paper, merely by comparing it with other signatures proved to be genuine.” And the facts stated in the case show that the comparison there made was between the signature in dispute and a paper introduced in evidence for the sole purpose of making the comparison. The court do not say that a comparison may not be made between the signature in dispute and papers already in evidence in the cause whose genuineness is not in controversy, but the purport of the decision is, that papers cannot be introduced into the — 111 — cause which are irrelevant to the issue, for the sole purpose of making the comparison, until some evidence of knowledge has been first introduced. Understood in this manner, the decision does not conflict with the principle of allowing a comparison to be made by the jury, without previous evidence of opinion being laid before them, either with or without the aid of experts, between papers already in the case and admitted to be genuine, and the hand-writing in question. And whatever doubts may have heretofore been entertained by the profession as to the true rule in this respect, we think it should be considered as established, that a party may rely upon a comparison thus made, without being first required to introduce evidence of belief founded upon knowledge of the hand-writing. We think, too, that equally as much if not more reliance can be placed upon such a comparison, than upon the mere opinion of a witness who has seen the individual write but once. It is seldom that we have a juryman upon a panel who is not capable of comparing and judging with a good degree of correctness, and very many of our jurymen are able to make a comparison with skill and accuracy. We have not gone so far as to hold that writings may be proved solely by introducing papers and documents irrelevant to the issue, and then leaving it to the jury or an expert to institute a comparison between the documents thus introduced and the hand-writing in dispute. Our practice in such cases is to introduce evidence of belief founded upon knowledge, and then to allow specimens to be laid before the jury which are admitted to be genuine, and a comparison to be thus made. If there is any controversy as to the genuineness of the specimens, they are excluded, and for the obvious reason that collateral issues would at once be raised upon them, should a different course be taken. In the case before us, the papers with which the comparison was made had already been read to the jury by the plaintiff himself without objection. They 'were put into — 112 — the case by him, on cross-examination it is true, but in connexion with the evidence which went to establish his claim. "We must, therefore, consider the papers as in the case for other purposes than a mere comparison, and to be genuine; and such being the fact, the expert might well enough make the comparison and give bis opinion in regard to the same. The weight of the evidence would be for the jury, who could also make the comparison for themselves. The question as to the admissibility of notarial copies like those used in this case, has been considered in two of our States, Louisiana and New York, and probably more. In Louisiana, in the case of Las Caygas v. Larionda’s Syndics, 4 Martin’s Rep. 283, the principle of the lex loci was pretty fully adopted. It was there held that the copies might be received in the same manner as in the local courts, with this qualification only, that the courts of Louisiana were not bound to take judicial notice of the official character and signature of the notary. In New York, in the case of Mauri v. Hefferman, 13 Johns. Rep. 38, the question as to the extent to which the lex loci ought to prevail was not definitely decided. The court were inclined to think that the copies were not evidence per se, but that they were admissible as forming a part of the inferior evidence to be resorted to instead of the originals. As to the credit due specifically to such copies, the .court say: “ It appears to be a part of the official duty of the notary to give copies; he is especially entrusted with that power; and in giving such copies he acts under his oath of office. The instrument is executed before him in his official capacity, and an official certified copy necessarily implies that he saw the instrument executed. In what respect does this differ from an examination upon a commission ? He can only swear that he saw the instrument executed, and that the copy furnished lay him is under oath. Besides, we ought to be cautious in declaring that we will receive nothing short of the examination of the notary, under a commission, as there is no mode — 113 — of enforcing such examination; nor is a sworn copy, proved by a person who has compared it with the original, any higher or better evidence than that furnished by the notary, which is a copy under his oath of office.” It appears to us that there is much in the suggestion that we ought to be cautious in declaring that we will receive nothing short of the examination of the notary. By the law of Canada, the original instruments cannot be withdrawn from the custody of the notary, or prothonotary, in case of the death of the former. They have the sole and exclusive custody of the documents, and it is their duty to give and certify copies; but there is no law to compel them to give copies under oath, by way of deposition. How, then, could a party make his proof, in case the notary should refuse to give a deposition, and the court should hold that a certified copy, duly authenticated, was not competent? But we need pursue this inquiry no further; neither is it necessary to define the extent to which the lex loci should prevail in cases of this kind, since we hold these copies to have been properly received as secondary evidence. They were copies duly certified and proved, where the originals could not be had. The evidence as to the law of Canada, taken in connexion with the production of the copies, showed that the originals must have had an existence, and that they could not be produced. Where an original deed is lost, or is beyond the power of the party to produce, a copy duly authenticated may be used as a substitute. This is the doctrine of Southerin v. Mendum, 5 N. H. Rep. 420, in which it was held that where a deed of land is lost, or out of the reach of a party who claims under it, a copy from the register’s office may be used as evidence. To the same effect is Poignard v. Smith, 8 Pick. Rep. 272, which was an action upon a mortgage; and it was there decided that if diligent search and inquiry are made for the mortgage deed by the demandant, and it cannot be found, he may give a copy from the registry in evidence. — 114 — The only remaining question in the case relates to the ruling of Ifche court in excluding the deposition of Day; and in regard to that we entertain-no doubt. The deposition contains a conversation between the witness and the plaintiff, and was offered not for the purpose of rebutting any evidence that had been introduced by the defendants, but to meet an argument which it was anticipated would be made, founded upon the surrounding circumstances of the case. Had the defendants introduced any evidence upon the point, so that an answer might have seemed called for, perhaps the deposition would have been admissible; though as a general rule a party cannot put in evidence his own statements relative to the matters in controversy. Judgment on the verdict.