Petriken v. Collier , 7 Watts & Serg. 392 ( 1844 )

The opinion of the Court was delivered by

Rogers, J.

It does not strike me that the interrogatories mentioned in the first bill can be considered as leading, for there is nothing to indicate the answer expected from the witness; and this is the test, as is ruled rn 9 Watts 164.

But the answer to the sixth interrogatory is objected to because the exhibit referred to, w/,.. the due-b'ill on which the suit is brought, is not attached to the deposition or commission as returned by the commissioners. This is a fatal exception; for unless the exhibit is identified with much niore precision than has been observed here, it would lead to deception and fraud. It is impossible to know, with any degree of certainty, whether the due-bill offered in evidence is the same as proved by the witness. The only identification is by its date, and the name? of the defendants, and the handwriting of one of them, James Madden. If, in addition, it contained the name of the person to whom it is made payable, and the amount due, there would be less force in the objection ; but even then, it is better to attach it to the deposition or commission, or authenticate it by some mark put upon it by the commissioner or justice. In Chancery, the. mode of authentication is by making the following endorsement on the document proved by the witness. Gressly’s Eq. Ev. 81.

“ In Chancery, between J. K., plaintiff v. L. M., defendant.— At the execution of a commission for the examination of witnesses in this cause, this paper (a parchment) writing was produced and shown to N. M., a witness sworn and examined, and by him deposed unto at the time of the examination, in the complainant’s (or defendant’s) behalf.

^ g

c.’ d!”

When a deposition refers to books of account, copies of them, at least, should be produced, properly authenticated, to entitle the whole deposition to be read. 2 Yeates 205.

And, to guard against deception, it has ever been held, that although exhibits come in the same envelope with the commission, if they are not identified by marks or references, they ought not to be received. 4 Wash. C. C. R. 323.

The cause of action is defectively set out in the declaration, but if there was nothing else, we would not reverse the judgment for that reason, as, after verdict, we would hold it good as a statement. Vide the Act of 1806.

Judgment reversed, and venire de novo awarded.