Bryant v. Ingraham , 16 Ala. 116 ( 1849 )

DARGAN, J.

As it was shown that Pearson, vyho acted as the commissioner in taking the testimony of the witness, Thomas, was the brother-in-law of the plaintiff, the deposition was properly rejected. The mode of taking testimony by deposition is open to the objection, that a designing commissioner can readily pervert the meaning of the witness. Indeed, the witness may be made to speak what he did not intend to say. The court should, therefore, throw around evidence, thus taken, all proper guards to secure it from imposition; and it is not an unreasonable guard or precaution, to hold that one so nearly related as a brother-in-law is incompetent to act as a commissioner, at the instance of his relative, unless the opposite party assent thereto. It is true that Pearson, the commissioner, was shown to be a man of good character, but we cannot en-graft on the rule an exception, founded on character; it would often lead to unnecessary investigation, and we think it the safer rule to hold that the commisssioncr who, pro hac vice, acts in the stead of the judge, like him, should be above all exception. This is the rule that has been adopted in courts of chancery, from which the practice was borrowed; and as' our statutes, permitting the testimony of witnesses to be taken by deposition and read as evidence in suits at law, do not prescribe any rule, by which the competency of the commission shall be tested, we think it better to adopt, in this particular, the rule that has obtained in courts of chancery.

2. We think the court, also, properly suppressed the depositions of those witnesses, whose testimony was reduced to writing by the brother of the plaintiff. In the case of Steele v. Dart & Co., the deposition was reduced to writing by the party himself, at whose instance it was taken, and this court held, that it was properly rejected, and in the opinion delivered, it is said, “ that in the case of an illiterate or a willing witness, the party to the suit, in reducing the deposition to writing, could, shape it to suit his own views.” 6 Ala. R. 800. Any other person, who reduces the deposition to writing; can, with the same facility, pervert the meaning of the witness, and ■ thus impose on the court evidence that he would not give if fairly examined. . We cannot presume, that the feelings of a brother are altogether free from bias and partiality, and it is, therefore, the safer rule, to hold him incompetent to reduce the testimony to Avriting.

3. But it is contended, that the motion to reject Ihe depositions came too late, as it was not made until the trial. It is true, that objections to particular interrogatories must be made, before they are answered by the witness, or the objections come too late, and should be disregarded. Kyle & Gunter v. Bostwick et al. 10 Ala. Rep. 591; 2 Ala. 378; and in the case of Cullum v. Smith & Conklin, 6 Ala. Rep. 627, this court said, “ that the court may suppress a deposition, even when regularly taken, if, under the peculiar circumstances of the case, injustice would probably result from using it; but when the deposition is taken in conformity to the rules of law, the motion to suppress it is addressed to the discretion of the court, and must be made before the trial.” But it is very clear, that a motion to suppress a deposition, not taken in conformity with law, is not addressed to the discretion of the court; for it is not legal evidence, and a motion to reject it may be made when it is offered to be read. In the case of Steele v. Dart & Co., before referred to, the motion to reject the deposition was made at the trial, when it was offered to be read, and this court held, that the motion was properly granted. The distinction that, seems to be recognised by the cases of Cullum v. Smith & Conklin, and Steele v. Dart & Co., is this: if the deposition is regularly taken, in conformity with the rules of law, but under circumstances that would induce the court to think that injustice would be done by using it, the court, in its discretion, may suppress it, but should not do it, if a motion for that purpose is not made before the deposition is offered to be read; but if the deposition be not taken in conformity with the rules of law, it is then illegal evidence, and must be rejected when offered, if a motion for that purpose is made. Indeed, it would seem unnecessary to move to reject illegal evidence before it was offered to be read, and strange that a failure to move to suppress it, in advance of an effort to use it, should legalise illegal testimony.

4. It is true, that a witness to a will, whether he be a man of medical skill or not, is permitted to give his opinion as to the sanity of the testator, at the time of executing it — McCurry v. Hooper, 12 Ala. 828; but we do not perceive what influence the question of the sanity of the testator, at the time of executing the will, had, or legally could have, on the title of the plaintiff. He does not claim under the will, but by a gift inter vivos. If his title by gift was perfect, it is superior to any title derived under the will; but if he failed to. establish a title by gift, he could not recover the slave, whether the testator was sane or insane, at the time of executing the will. The testimony, therefore, which was offered, tending to open the inquiry of the sanity of the testator, was properly rejected as irrelevant.

5. In order to perfect a parol gift of a chattel, to pass the title from the donor to the donee, the donor must part with the possession and control of it, and the possession must be delivered to the donee, or to some one for him. Sims v. Sims, 2 Ala. 117; Sewell v. Glidden, 1 Ala. 52. The mere declaration by one, that he would give or had given a chattel to another, when it is shown that the donor or owner never parted with the. possession or control of it, would not be sufficient to establish a title by gift. The charge requested of the court, that such declaration, connected with the further statement, that the owner said he had hired the slave of his donee, would perfect the gift, although there had been no actual delivery of the same, was correctly refused; for if parting with the possession and control is necessary to perfect a parol gift, mere declarations by the donor cannot supersede the necessity of this act. It is the act of delivery, accompanied with the intention to give, lhat perfects a parol gift.

There is no error in the ruling of the court, and the judgment is affirmed..

ChiltoN, J., not sitting.