Mather v. Goddard , 7 Conn. 304 ( 1828 )

Daggett, J.

The counsel for the defendant, in support of ^he motion, insist, that the deposition of Samuel B. Williams was improperly admitted. The objection to it is, that it des-cr^)es a ¡jj]] 0f laf]¡ng, and professes to state its contents ; and t|iat therefore, the bill of lading should have been produced. It is certainly incorrect to permit a deposition, or oral testimony, to state the contents of a paper, which can be shown to the court; for an inspection of the paper itself would be the more satisfactory evidence, and thus the better evidence would be withholden; which is opposed to a very salutary rule of law, viz. that the best evidence which the nature of the case will admit of, shall be produced. On looking at this deposition, it appears to refer directly, and in terms, to the bill of lading, as the evidence of the shipment of this money, “ as per bill of lading,” &c. Had the bill of lading been lost, or beyond the reach of the plaintiffs and the deponent, a different view-might have been taken of the testimony; but this same deposition proves, that it was, on the day of the taking of the deposition, within the power of the plaintiffs ; and it is not suggested, that there was any notice given, or attempt made to produce it. The deposition, therefore, ought to have been rejected ; and of this opinion, it seems, was the judge, at a subsequent stage of the trial; for, at the instance of the plaintiffs, in his charge to the jury, he instructed them to lay out of their consideration what was said therein in relation to the bill of lading. This course, however, was so far from correcting the error, that it rendered it more apparent and injurious; for it gives fo the deposition a force and effect to which it would, otherwise, not have been entitled. It makes the deponent say, of his own knowledge, what by the terms of the deposition he might have known only by the bill of lading ; and, besides, as he had sworn to the existence of a paper, from which he gained his information, the court had now proof of a fact, sufficient, of itself, to exclude the testimony ; and it could not, therefore, be proper to admit illegal testimony, by excluding testimony which rendered it such. On this ground, therefore, there must be a new trial.

2. It is also urged, that the charge was erroneous, because the jury were instructed, that if the notice to the defendant alleged in the declaration, was not proved, still they might find a verdict for the plaintiffs. This brings into view a question about which there are some nice distinctions; and as it need not be decided, to dispose of this motion, the consideration of it is waived.

Peters and Lanman, Js. were of the same opinion. Hosmer, Ch. J. and Brainard, J. were absent.

New trial to be granted.