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taken in perpetuam, and that it was the request of Mr. Jones, that it should be so taken. The deponent did not refuse to testify, nor did the parties in interest object for this cause. As they waived this objection, and as the notice and certificate are in ample form, I should not reject the deposition for this cause. Possessing all intrinsic evidence, that the deponent appeared, and gave his deposition according to law, if it had been offered in evidence before ninety days had elapsed from the taking, it could not have been rejected on the ground, that it had not been recorded ; because the time had not arrived for the ceremony of recording, and the law would presume that it would be recorded within the proper time. It is not like a deed of land, which cannot be used in evidence of the title of the grantee, or of any one claiming under him, until it has been put on record. R. S. ch. 59, sec. 1. The 37th section of the 94th chapter of the revised statutes requires, that “the deposition, with the certificate, and also the written statement of the party, at whose request it was taken, shall, within minety days after the taking thereof, be recorded in the registry of deeds, in the county where the land lies, if the deposition relates to real estate, otherwise, in the county where the parties or some of them reside.” The oral testimony of a witness in court, in presence of both parties, is the best evidence at the common law in all cases where it can be obtained. But from the necessity of the case, the rule has been relaxed, where the deponent cannot attend personally; and his deposition may be used, when taken under the observance of such forms as the statute requires. But where these forms have not been literally observed, the deposition cannot be used. Therefore it is, that it has been settled, that a deposition in perpetuam is not admissible in evidence after the expiration of three months, unless it shall have been recorded within that time. The act of 1797, ch. 35, enacts, respecting a deposition taken in perpetuam, “that the same deposition and caption shall, within ninety days, be recorded in the office of the register of deeds in the county where the land lies, if the deposition respected real estate ; and if the same respected personal estate, then in the said office of the county where the person lives for whose use such deposition was taken : and such certificate shall be certified on the deposition, and the same deposition so certified, or a copy of the said record, may, in the case of the death of such deponent, or of his absence out of the state, or inability to attend the court as aforesaid, be used as evidence in any cause to which it may relate.” In the case of Bradstreet v. Baldwin, (11 Mass. R. 229,) a deposition which had been taken in perpetuam had been used at the trial, although it was objected by the defendant, that it had not been recorded within ninety days, and although it was recorded a few days after. The supreme judicial court say, “that the statute respecting depositions taken in perpetuam was not punctually observed; and the deposition admitted at the trial not having been recorded within the term prescribed, was not in that authentic form which the statute requires,”—and, therefore, they ordered the verdict to be set aside, and granted a new trial. And in the case of Braintree v. Hingham, (1 Pick. R. 245,) the supreme judicial court say, “that a deposition in perpetuam was properly rejected, because it had not been recorded according to the statute.” Why does the statute require, that a deposition in perpetuam should be recorded ? It is to preserve its purity and integrity, as well as the testimony itself. The record is a publication, and serves to make it known, as well as remembered. If it should contain errors or falsehoods, the parties in interest will have an opportunity to guard against them in season, either by taking the deposition de novo, or by putting on record the testimony of others, to contradict or explain its contents. If this deposition had been recorded in due season, the record would have been open to the deponent as well as to others. If he had found, that through inadvertence he had testified what was false or incorrect, it would, or at least it might, have been in his power to correct his testimony, and to show, that it was not a wilful perjury. But as this deposition was not recorded, it has become a dead letter, and no legal consequences can flow from it. It can now do neither good nor harm to the parties in interest. And as he for whose use it was taken, and who was most interested
in the thing, has failed to cause its existence to be perpetuated ; I am of opinion, that it ought not now to be used to prove that it was originally taken according to the form of law, or as evidence of the error or fault of the witness in his relation of the facts :and it is therefore rejected. Aurelius D. Parker, Esq. was then called and sworn. He testified that he was a justice of the peace, and a counsellor at law; and that he was engaged with Joseph Willard, Esq. in taking the deposition of the defendant in perpetuam; but, that Mr. Willard reduced it to writing. The witness was present during part of the time, and the oath was administered in his presence. He could not identify the person of the defendant. Joseph Willard, Esq. was sworn as a witness, and was asked by the attorney for the commonwealth, what answers were given by the defendant to certain questions put to him at the time that he gave the deposition. But the counsel for the defendant were permitted to ask the witness, before he replied to the question, whether the answers of the defendant were reduced to writing, and signed and sworn to by him at the time. The witness said, that they were reduced to writing, and subscribed and sworn to by the defendant at that time. They then objected, that oral evidence of the contents of the deposition was inadmissible, while the writing was in existence. After hearing the counsel for the parties, the court said— The indictment, after setting forth the interrogatories and answers, and all the forms observed in taking the deposition on which the accusation rests, concludes as follows, namely—“as by his said answers to said interrogatories written in said deposition remaining, will among other things appear.” Now, this requires the production of the record of the deposition;–but as none such remains of record which can be read in evidence, the commonwealth cannot be permitted to supply the deficiency by parol or written testimony. Thereupon, the attorney for the commonwealth gave up the prosecution, and offered to enter a nolo prosequi. But the defendant claimed his right to a verdict, and the jury returned one of not guilty.
CRITIC A. L NOTICES.
1.—A Treatise on the Law of Erecutors and Administrators. By Edward WAUGHAN WILLIAMs, Barrister at Law, with notes and references to the decisions of the courts of this country. By FRANcis J. Troubat. Second American, from the second and last London edition. In two volumes. Philadelphia: R. H. Small, 1841.
WHEN the first edition of this work was published, in 1832, it was favorably received by the profession, and noticed in a complimentary manner by the law journals. This judgment was confirmed by the only test, which can be relied upon to determine the merits of such a work, namely, every day use ; and a second edition became necessary, and was published within the last year or two, with the additions and alterations demanded by the lapse of time. This second American is reprinted from the second English edition. Of this last, as well as of his own labors, Mr. Troubat speaks thus: “The present impression of this able treatise, on a most important and extensive branch of the law, has been revised by its learned author with the utmost care, and greatly enlarged and improved. So ample, indeed, have been his additions to almost every chapter, that it has become augmented, nearly, if not quite, a third in bulk. This circumstance, in connexion with the consideration that those additions have very much enhanced the previously high value and utility of the work, seemed to warn the editor of the necessity of not being too profuse of annotations, lest these volumes, under his hands, might become cumbrous. Accordingly, he has, while careful not to omit any American case of importance, confined himself to a selection of those that might illustrate the text by the originality or the interest of their doctrines. Whatever may be the value of his contributions, the editor fearlessly asserts that this production of the English author, while on its first appearance it threw into the shade the books of prior writers on the same title, has ever since continued without a rival, and in its renovated form is still more likely to challenge successful competition.” In the compilation of his work, Mr. Williams has evidently bestowed great care; but he does little more than state the result of the decisions; and, in a work of such a size, this is all that one could reasonably expect of the author, or, indeed, which could be of any use to the practitioner. Mr. Troubat's notes to Williams, like his notes to other books, add greatly to the value and practical utility of the work. Having already reviewed this treatise, at considerable length, and expressed our hearty commendations of it, on the occasion of the publication of the first American edition (also edited by Mr. Troubat), we shall content ourselves at this time with referring our readers to the ninth volume of this journal, in which that criticism was published.
2.—A Treatise on the Law of Sales of Personal Property. By FRANCIs HILLIARD, author of an abridgment of the American Law of Real Property. New York: Halsted & Woohries, 1841.
Dr. Johnson defines the word treatise to mean a “ discourse ; written tractate :”—and, the word tractate,_“a treatisè ; a tract; a small book;” the long and the short of which seems to be, that a treatise is a written small book;-not manuscript, indeed, but written in contradistinction to spoken. The dictionary of the French academy defines the corresponding word traité as “a work in which some art, science, or particular matter, is treated of.” The publication before us comes within Johnson's definition of a treatise, inasmuch as it is “a written [that is, printed] small book,” being a thin octavo of less than four hundred pages; but, it does not answer to the French definition, inasmuch as it is not a