Bliss v. Shuman , 47 Me. 248 ( 1859 )

The opinion of the Court was drawn up by

Appleton, J.

In Gourts of common law, witnesses are orally examined or cross-examined before a jury; or their depositions taken upon oral or written interrogatories, in pursuance of statutory regulations upon the subject, are received as evidence. When motions are addressed to the Court, the testimony of witnesses, offered in the form of ex parte affidavits, is heard and acted upon.

In England, the Chancellor never hears oral testimony, but his judicial action is entirely based upon the depositions of witnesses, reduced to writing in an examiner’s office. In this country, unless by the express provisions of some statute, the evidence of witnesses is received in chancery in the form of depositions. Orally delivered testimony is unknown in English Equity Courts, or in Courts of Equity in this country in which the English type of procedure has been adopted.

A witness is “ one who, being sworn or affirmed according to law, deposes as to his knowledge of facts in issue between the parties in the cause.” 1 JBouviér’s Law Die., 658. Johnson defines the word as- “ one who gives testimony;” Richardson, as “ one who witeth or knows, one who tells what he knows, sees, or has seen, who gives evidence or testimony.”

“Deponent, witness,— one who gives information on oath or affirmation respecting some fact known to him, before a magistrate; he who makes a deposition.” 1 Bouv., 4Ó6. Richardson, in his Dictionary, defines depose or, as the Scotch say, depone, “ to give evidence, bear witness or testimony.” He defines deponent, “ one who gives evidence, bears witness or testimony;” so called, says Skinner, “because the witness depones, (deponit,) places his hand upon the book of the Holy Evangelists, while he is bound by the obligation of an oath.” It is thus seen that the word depone, from which is derived deponent, has relation to the mode in which the oath is administered, and not as to whether the testimony is delivered orally or reduced to writing. 'So the word depose is used in the forms of indictment for perjury, in the allegations of the commission of that offence, as that he (the person accused) “ falsely, wickedly, knowingly, wilfully and corruptly did say, depose, swear and give evidence to said court and jury,”' &g.

The modes in which testimony is extracted may vary — as by affidavit, upon oral or written interrogatories, or on the stand, but in each case the person testifying is a witness, and subject to the punishment incident to false testimony. All writers on the law of evidence, without exception, treat of affiants, or deponents, as witnesses, in discussing the admissibility of testimony.

The word witness is a most general term, including all persons, from whose lips testimony is extracted to be used in any judicial proceeding. ' It embraces deponents, as the term is used with us, and affiants equally with persons delivering oral testimony before a jury. The affiant, or deponent, is always a witness, but a witness is not necessarily an affiant or deponent.

It is enacted by R. S., 1857, c. 82, § 78, that “no person shall be excused or excluded from being a witness in any civil suit or proceeding, at law or in equity, by reason of his interest in the event of the same, as a party or otherwise, except as is hereinafter provided; but such interest may be shown for the purpose of affecting his credibility.”

The language of this' section is most general. The term witness, in specific terms, is made applicable to a party, and he is to testify in all cases “ except as is hereinafter provided Those cases are found enumerated in subsequent sections and do not affect the present inquiry.

The party being, by the express provisions of the statute, a witness, the provisions of R. S., 1857, c. 107, relating to depositions, are as applicable to him as to any other witness. The term witness is as equally predicable of him as of any other witness.

By that chapter provision is made for the taking of depositions. The statute regards the deponent as a witness, and the term deponent or witness is indiscriminately applied to all persons giving their testimony. A witness may be compelled to attend and give his deposition, by § 11. Objections to the competency of the witness, or to the answers, may be made when the deposition is produced, as if the witness testified on the trial, by § 18. The deponent is none the less a witness because his testimony has been reduced to writing. The statute regulating the taking of depositions is applicable to all who are witnesses, whether their number be increased or diminished by legislation. When interest ceased to be a ground for disqualification, the depositions of those interested fell within the provisions of this chapter. The deposition of the defendant was properly received.

It was determined in Parsons v. Huff, 38 Maine, 137, that it was a matter of discretion on the part of the presiding Justice, whether leading questions should be proposed or not. It was held in Cope v. Sibley, 12 Barb., 521, that the same discretion exists on the part of the Court to receive or reject the answers to leading questions in a deposition as in an oral examination at the trial. In the present case, if the interrogatory to Mink, to which exceptions were taken, had been direct, it would hardly justify setting aside a verdict for such cause. But, as the inquiry was made upon cross-examination, it is difficult to perceive any well grounded objection to it. Indeed, it would seem to be substantially within the very mode pointed out as proper, in Phillips v. Kingfield, 19 Maine, 375. Exceptions overruled.

Tenney, C. J., and Rice, Cutting, May, and Goodenow, JJ., concurred.