Ector v. Welsh , 29 Ga. 443 ( 1859 )

— Stephens J.

By the Court.

delivering the opinion.

[1.] We are all agreed that there ought to be a new trial in this case, but we differ as to the ground on which it ought to be placed. A majority of the Court place it upon the rejection of Duncan’s answer (to written interrogatories) respecting the sayings of Sharp and of Mr. and Mrs. Welsh; the objection to the testimony having been taken only after the case had been submitted to the jury. My own opinion is, that this evidence ought to have been excluded, but that the testimony of Sharp, (also written depositions) respecting the sayings of Duncan, was illegally admitted. We all agree that both pieces of evidence are in the same predicament— are simple hearsay. My colleagues think both pieces ought to have been admitted, and the error they find is that one was rejected. I think both ought to have been excluded, and the error I find is that one was admitted. They are both confessedly inadmissible, unless they were required to be' admitted by our statute of 1854. See the <ftcts of 1S53-54, page 49. The title of that Act, so far as the title relates to this question, is “ to regulate the admission of testimony in certain cases.” The title, therefore, leads me to expect no creation of evidence, but only a regulation of the admission of what was evidence before. The words of the Act are : “ That (on all appeal ?) trials or other trials in the last resort all exceptions to interrogatories, the execution of commissions} [commissioners,] or answer of witnesses examined under commission, when the commission has been duly returned and the same ordered or consented to be opened, and been for one day subject to inspection, shall be taken and determined before the caséis submitted to the jury, otherwise the testimony shall be received, subject only to the objections that may be made for irrelevancy.” The old law was, that the whole deposition of a witness could be ruled out whenever offered, for want of conformity with any statutory requirement in relation to testimony taken under commission The mischief was, that a party was sometimes obliged to proceed with his case (having submitted it to the jury) with the loss of valuable legal evidence, which could manifestly be saved by a re-execution of the commission. The remedy is to require all exceptions founded on curable defects, to be determined before the case is submitted to the jury, so that the party, if the exceptions are well grounded, may continue the case when it is called, and have an opportunity to cure the defects in his evidence. The whole provision of the statute relates, in my view of it, to only such exceptions as are curable. They are to be determined before the case is submitted to the jury for no possible good reason except that they may be cured if they can be cured, by a re-execution of the commission. Why give time to cure what is incapable of being cured? The object is to give time for procuring evidence which cannot now be received. But why give time to procure evidence which never will be received if objection is made to it? Can it be supposed that written depositions, with all the abuses and defects inseparably inherent in this sort of testimony, was ever intended to be placed on a more favorable ground than the statements of the witness from the stand? Yet this consequence follows, if his written report of hearsay or gossip must be received, when his oral statement of the same thing would be rejected. Again, can it be supposed that it was intended to introduce so radical a change into the law of evidence, as to allow mere gossip — “ an old wife’s story” — without a known author, and dependent for its passage on down to the witness, upon untold rehearsals to be forced on the consideration of a jury against the objection and protestation of the opposite party? Was it intended that the jury should consider evidence coming without the sanction of an oath or any other of the legal sanctions importing verity? And especially, was it intended to introduce this radical change, not from any conviction of its propriety as a rule of evidence, but as a mere compliment to that vehicle of evidence, which is confessedly the most defective and the least to be favored ? But my colleagues s.ay, in .answer to all this, that they áre constrained by the letter of the statute, which says the “testimony shall be subject only to objections on account of irrelevancy.” They say that whatever relates to the point in issue, whether it come from a reliable or a worthless source, is relevant, and must be admitted. Such may be the strict technical meaning of the term, but surely it admits of a popular use more in harmony with the general intent of this statute. It is common for one of two persons discussing their own affairs, to tell the other that what another person may have said about the affair, is “neither here nor there,” is out of place, is irrelevant. That which is unworthy of consideration, may well be called immaterial or irrelevant, but that all mere hearsay is unworthy, the common law emphatically declares, and this statute certainly does not declare to the contrary as a general principle. I do not, therefore, give the force that my colleagues do, to this one word which admits of a far less mischievous sense, and which, if far less flexible, would be overborne, I think, by the abundant evidence of a different and much more reasonable general intent. It is a case, I think, where the letter ought to yield to the manifest spirit. Qui hmret in litera, hmret in cortice.

[2.] It is undoubtedly good abstract law, as charged by the Court, that the wife’s interest in an estate is not subject to her husband’s debts, if he dies without ever having reduced it into his possession, leaving her surviving him. The only doubt is whether the evidence authorized such a charge. The evidence is all concurrent, that Welsh did have a certain possession of his wife’s interest, but whether that was his possession for himself, or a possession for his wife’s daughter, ■depends, we think, upon the question whether or not the ■ joint deed of gift of himself and wife, conveying that interest to his step-daughter before it had come into his occupancy,’ was a valid deed against Welsh’s creditors, who were such when the deed of gift was made. It was said in argument that it was valid (though voluntary) as a settlement of the wife’s equity; that it is such as a Court of Equity will sanction though it has not ordered it. The question rvith me, ■and I believe with all of us, is whethera Court of Equity will order or sanction any settlement which excludes from ■its benefits both the wife and the fruit of the marriage. Is ■not the husband himself interested in having a support secured to his wife, and would a Court of Equity order him to make any settlement which excludes her ? If not, then will it sanction a settlement which it would never have directed ? If the settlement was not a good one, then the possession which he afterwards got was his own and not his step-daughter’s. We are not satisfied as to this charge, and decide nothing as to it. We only throw out the points in it on which we would like to see authority, if the case should ever come before us again.

[3.] We think there was no error in charging that the single fact of the donor’s retainingpossession of the thing given, is sufficiently explained by showing that the donee lives with him and is a minor, being his child, or standing in the place of his child. This we think is good law; but I must remark that it is not applicable to this case, unless the deed of gift would be valid without the difficulty from failure of change of possession from donor to donee; that is to say, unless the deed would be valid if the possession under it had gone directly into the donee, instead of into the donor for her.

[4.] We do not think that admissions by parties are to be regarded as an inferior kind of evidence; for, on the contrary, when satisfactorily proven, they constitute a ground of belief on which the mind justly reposes with strong confidence.

But, it is true, that the proof of the fact that admissions Were made, and of the terms in which they were made, ought tobe cautiously scanned. We do not all of us think there was distinct error in this charge as given, but for myself I do think so. I do not perceive what reason there is for pronouncing a sentence of degradation on this sort of evidence.

Judgment reversed.