Smith v. Castles , 67 Mass. 108 ( 1854 )

Dewey, J.

The objections taken to the deposition of Mark H. Bryan furnish no sufficient ground for setting aside the verdict. The variance in the description of the place of residence of the deponent, as stated in the interrogatories on which the commission issued, and in the caption of the deposition, is susceptible of explanation upon the ground of a change of residence of the party after the filing of the interrogatories; and as to that and the alleged variance of the occupation of the deponent, they are immaterial, if it appears, as we think it does, that there is no question as to the identity of the person, and that the same individual was described in the interrogatories and the deposition.

2. The attaching of the original notes to the deposition of this deponent, and his testimony as to such notes, although not called for by the interrogatories, were not, under the circumstances of the present case, a ground for setting aside the verdict, inasmuch as there was no question between the parties as to, the genuineness of the notes, or their actual signature by the persons whose names were borne on them; the only question being as to the time when the signatures of the various parties were placed there.

3. The objections to certain interrogatories, contained in the deposition of John C. Farrell, are of a more serious character. Great latitude is allowed in the cross examination of a witness, and many inquiries, as to matters collateral merely, may be put to the witness, to exhibit him more fully to the jury, that they may be the better able properly to estimate the weight of his testimony. But, as it seems to us, they were carried too far in the present case. The interrogatories here put are not inquiries as to his places of residence, his ordinary pursuits in life, and the like, but inquiries having for their object to show to the jury, that he had been put on trial before the court of common pleas, upon certain charges of misconduct made against him, for the purpose of having his name taken from the roll of attorneys. Their object was to prove his expulsion from the office of an attorney, by his statement to that effect, and to show in the same manner that the cause of his expulsion was perjury committed by him. They proposed to inquire of the deponent, not only as to these matters generally, but further whether a certain justice off the court of common pleas had not intimated to the deponent that he had sworn falsely. To these interrogatories objections were taken, before the commission issued, and again on the trial of the case, before they were read to the jury. In the opinion of the court they ought to have been stricken out of the deposition, and for this cause the verdict must be set aside and a New trial granted.

After the delivery of the foregoing opinion, Willey suggested to the court that the case had already been tried twice, at considerable length, in the court of common pleas, and that both parties were desirous that the new trial should be had in this court; and that, if the case should be remanded to the court of common pleas, as the ad damnum, in the writ was over $600, the parties might, by consent, at any time before the commencement of the trial, bring the case to this court, under St. 1844, c. 162.

He also moved for an indorser, on the ground that the surviving plaintiff had gone to California, which had first come to the knowledge of the defendant at this term. Browne resisted this motion, because it was not made at the first term after the occurrence of the fact relied on as the ground of the motion.

By the Court.

This case, having been already tried in the court of common pleas, is not within the provision of St. 1844, c. 162, that any action, entered in the court of common pleas, where the ad damnum in the writ exceeds a certain sum, “ after the first tdrm, may be carried to the supreme judicial court, by the consent of both parties, provided it be done before the trial commences in the court of common pleas.” The application is therefore addressed to the discretion of the court; and as this is a very suitable case to be tried in the court of common pleas, and an earlier trial can be had there than in this court, let the case be remanded to that court.

As both of the plaintiffs were inhabitants of this state when this action was brought, no indorser is required by the statute. Rev. Sts. c. 90, § 10. The policy of the law is obvious — that an inhabitant of the state shall not, as a condition precedent to his right to maintain an action, be obliged to give security for costs; for he and his property will be liable to be taken on execution on any judgment recovered against him. But the legislature, foreseeing that it would be impossible to provide for all cases, vested a discretionary power in the court, to require an indorser, “ in all cases, when it shall appear to them reasonable.” When the plaintiff, while the action is pending, removes out of the reach of the process of the court, it is clearly within the policy of the law that an indorser should be required.

Indorser to be furnished.