Earl v. Hurd

Blackford, J.

This is a motion by the defendant to suppress certain depositions of the complainant.

The depositions of Wiley and Lane were taken under a dedimus directed “to any justice of the peace in Washtenaw county, state of Michiganthe name of the justice not being stated. The depositions are certified by Chauncey' Knapp, stating himself to be a justice of the peace of the county and state mentioned in the dedimus. The objection is, that it does not sufficiently appear that Knapp is a justice. The statute says, “that when a dedimus potestatem shall issue from any Court in this state, directed to any justice of the peace in any other state, authorizing him to take depositions to be read in evidence in any suit depending in said Court, the certificate of such justice, officially certifying the taking of the same, shall be a sufficient authentication.” R. Stat. 1838, p. 452. We consider the dedimus in this case, though it does not state the name of the justice, to be authorized by the statute; and the authentication, which is such as the statute prescribes, must be sufficient.

The deposition of Whiteman is objected to on the ground that it was taken before the suit was certified to this Court. We think that whatever depositions were admissible in the Circuit Court, whilst the suit was pending there, may be read here. The objection is without foundation.

*249 It is stated in the depositions of Johnson and Liston, that the deponents were present at the trial of a suit, in which one Vaughan was plaintiff, and the present complainant, Earl, was defendant, and that Yerrington was a witness in that cause; and the depositions state the testimony of that witness respecting a partnership between the parties in the present suit. Yerrington was dead when the depositions were taken. These depositions are objected to as hearsay testimony. Their admission is advocated on the ground, that Yerrington's statements were under oath, and that he is dead. Evidence of what a deceased witness had sworn to on a former trial, is only admissible where that trial was between the same parties who are concerned in the subsequent suit. One good reason for thus restricting this rule of evidence is, that the party against whom the testimony is offered, should have had an opportunity to cross-examine the witness. 1 Phill. Ev. 230. Here, in a suit against Hurd, Earl offers depositions as to the testimony given by a witness in a former suit, though Hurd not being a party to that suit, had no opportunity to examine the witness. The depositions respecting the testimony of Yerrington are therefore suppressed.

The other depositions objected to tend to prove, by reputation, the existence of a partnership between the parties. We are of opinion that such testimony is inadmissible to prove a partnership. There are a few matters, such as pedigree, that may be proved by reputation; but the fact of a partnership is not within the exceptions to the rule against the admission of hearsay evidence. The objection to these depositions is sustained (1) .

Accord. Bryden v. Taylor, 2 Harr. & Johns. 396. —Brown v. Crandall, 11 Conn. R. 92. —Scott v. Blood, 16 Maine R. 192. —Halliday v. M'Dougall, 20 Wend. 81 . S. C. 22 Wend. 264 .