M'Intyre v. Ledyard, Hatter, & Co. , 1 S. & M. 91 ( 1844 )

By the Chancellor.

The practice i.n such cases is, to note the exception taken to the deposition, at the time when the deposition is offered, and have it entered upon the minutes of the Court, in which event, the objection is reserved for the final hearing of the case ; when, if convinced of any error in my decision, of sufficient importance to affect the finding of the jury, it will be set aside, and a new issue awarded ; or, I would proceed to decide the case myself. Should I find no error in my opinion, the party feeling himself aggrieved would then have the benefit of the exception, upon an appeal.

On behalf of the complainants, Messrs. Hutchinson and Foote argued the questions of law, upon excluding the depositions of Angus M’lntyre, and the oral proof offered.

Messrs. Mayes and Clifton, for the defendants.

The Chancellor made the following decision : I cannot hesitate about excluding the deposition of Angus M’lntyre. He is a party to the record, as administrator to the original complainant, who has died since the institution.of the suit. If this case should be decided against him, and in every case where an administrator is a party, there is the possibility of that contingency, unless this Court will certify ££ that there were probable grounds for instituting, prosecuting, or defending the action,” as the statute requires, the administrator will be directly liable for costs. He is, of course, then, interested, at least to the extent of the costs, in the case, and his testimony would, in law, necessarily be affected by that direct and immediate interest, and would, on that account alone, have to be excluded.

But the other ground is also well taken. He is the son of his intestate ; if, by his testimony, he succeeds in discharging his ancestor from the debt, with which it is sought to charge him, he swells his own distributive portion of the intestate’s estate, and reaps the reward of, perhaps, his own iniquity. Such temptation to the commission of perjury, can never be held out by this Court; an interest so direct and palpable, so full of inducement to sway the integrity of the witness from the path of truth, must forever exclude him.

With reference to the admission of the oral testimony, to prove the relationship of the female witnesses to the complainant’s intestate, and to attack their credibility, I am equally clear. It cannot be admitted, without a violation of well settled rules of equitable practice.

Depositions, to be admitted upon the trial, either of an issue, or in chief, must be in ivriting, taken upon notice to the opposite party, after a strict compliance with the prescribed rules on that subject. To establish a different practice, would be the introduction of endless confusion, and work the greatest injustice. That this is so, will be at once apparent from the consideration of the application in this case. It is proposed, for the first time, to impeach, by the introduction of oral proof, the character of the witnesses, whose testimony taken upon due notice, and in due form, has been filed in the case. The parties to this controversy, and the witnesses, all live in a distant county. To permit such a question to be sprung upon them here, away from the means, perhaps, of sustaining their credibility, or at least combatting and counteracting by other evidence, the proof now attempted to be introduced, ignorant of the intended attack, without notice and without preparation, would be to countenance, what it is apparent, at the first blush, would work the greatest injustice. Especially when it is taken into consideration, that the party now offering to introduce this proof, had the fullest opportunity, in the usual mode, of accomplishing his end. These very witnesses, when under examination, might have been asked one of the questions it is proposed to propound to the witness, in open Court.

The more I reflect upon the propriety of the rule, the more I am satisfied that it should be inflexible.

Had these objections appeared of record, if they exist at all, I should not hesitate to exclude the depositions : as it is, however, they must be admitted.