Wood v. American Life Insurance & Trust Co. , 8 Miss. 609 ( 1843 )

Mr. Chief Justice Sharkey

delivered the opinion of the court.

The plaintiffs in error, Wood, Pentecost & Co., and Alonzo Wattles and Noah Barlow, were sued in a joint action as the makers and indorsers of a promissory note, by the defendants in error. They all joined in pleading the general issue. On the first trial, the case having been twice tried, Wood, Pentecost & Co., the makers, withdrew their plea and suffered a default, but the issue was tried as to the indorsers, and they had a verdict in their favor. A new trial was applied for by the plaintiffs below, which was granted, and resulted in a verdict in their favor, and the case is brought up by writ of error to reverse the judgment rendered on the second verdict.

In assigning errors, the counsel for the plaintiff in error embrace the proceedings had on both trials, and contend that the court erred in granting the new trial, for which error the judgment ought to be reversed, and judgment rendered for them on the first verdict, they having taken a bill of exceptions to the granting of the same, which embodies all the testimony and points made. The several errors assigned are in substance the following, to wit:

1. That the court below erred in permitting the plaintiffs below to introduce as evidence the notarial certificate or record of James K. Cook, certifying the protest of the note, and that notices were served on the indorsers.

2. That the court erred in setting aside the verdict and in granting a new trial.

3. That the court erred upon the second trial in overruling the objection to the note as evidence, and in allowing the notarial record to be read as evidence.

4. That the court erred in sustaining objections to questions asked of Con nelly, a witness.

5. That the court erred on the second trial in refusing to allow the notarial record to be impeached. And,

6. That the court erred in refusing to give the instructions asked for by the counsel of Wattles and Barlow.

In taking a retrospect of the record, we are first naturally led to inquire into the regularity of the proceedings on the first trial; we may therefore take up the second error assigned, and investigate it first. This, indeed, necessarily embraces the first, the admissibility of the notarial record, which if it was an error at all, extends through both trials, as it was the only evidence offered to charge the indorsers.

The reasons assigned for a new trial are: 1. That the verdict was contrary'to law and evidence. 2. That the court erred in permitting the notarial record of Cook, to be impeached by proof of particular facts in no way connected with the case. And, 3. That the court erred in permitting the blank affidavits to be read in evidence. These reasons make it necessary that we should look into the testimony, and determine on the admissibility of that portion of it which is said to have been improperly admitted.

The plaintiffs’ counsel read the note sued on, and then a notarial record contained in a volume of notarial records of protests, purporting to be a protest of the note sued on, in which the protest is set out at large, and at the bottom are two memoranda, stating when and how the notices were served: By one of them it appears that the notices were served on the 4th of November, and by the other that they were served on the 6th, (the 5th being Sunday.) Attached to this by wafers is the certificate, of Cook, the notary, in which he states the foregoing to be a full, true and perfect record of his proceedings. Following this is the certificate of Louis Robetaille, a justice of the peace, certifying that Cook had made oath to the truth of the certificate. Then comes the impeaching testimony from the other side, the defendant’s having objected to the introduction of this record generally.

Samuel Wood testified that these words in the notarial certificate, to wit, “at their store, Noah Barlow at his store,” were in a hand writing different from that of the preceding part of the certificate, and were written with different ink and a different .pen, the words quoted being in Cook’s hand writing. He also stated that the certificate that the notices were served on the 4th of November, was all in Cook’s hand writing. Louis Robetaille, the justice, stated that he was the justice before whom Cook made the affidavit which had been read. That Cook’s general manner of preparing the affidavits to be attached to his records or certificates, was to have sheets of them printed with suitable blanks, such as the one introduced shows, which were brought by Cook to the witness, he the witness afterwards signing his name and dating them at his leisure. That afterwards Cook and the witness went over the volumes of notarial records together, said Cook having previously at his leisure added his signature to the affidavits, but not in presence of the witness. The witness and Cook then compared the affidavits with the protests, and attached them to the leaf containing the protest by ‘wafers, sometimes one wafering and sometimes the other, and after they had gone through the volume, in this way, the witness administered to Cook one general oath to the whole volume, or to so much of it as they had prepared, without reference to any particular case, and that Cook was not sworn to the affidavits otherwise than by this general oath; except in particular instances, where affidavits were wanting by particular persons, I suppose before the volume was ready for general use. Such affidavits, however, were not embraced in the book. These affidavits were sometimes in possession of Cook, and sometimes in possession of the witness. Several of these blank affidavits, signed by Cook and the witness, were exhibited to him, and he admitted that they were such as he had mentioned. These affidavits are also spread upon the record, being entirely ready for use, with the exception of a blank for the amount of the note and a blank for the description of the instrument, to be filled up with the words “bill of exchange” or “note,” as the case might require.

Potter, sworn as a witness, stated that he handed the blank affidavits above mentioned to the counsel, to be used if deemed necessary ; that they had been found by his partner at a previous term of the court, in the court house, either in a book of notarial records, or on the floor.

Aylett Buckner was next sworn, and stated that he held for collection a note for fifty thousand dollars, which had been protested by Cook, to whom he applied to know how Terry, an indorser, had been notified ; and was informed that the notice was sent to Port Gibson, the notary having learned on inquiry that that was the proper post office. Witness stated to him that such a notice was insufficient, and whether he added that Rodney was the proper place, he does not recollect, but Cook afterwards stated that he had also sent a notice to Rodney, and thereupon gave a certificate that he had so directed notices. The witness understood from him that these were the only notices which had been given. The witness afterwards learned that Fayette was Terry’s post office, and informed Cook of this, and stated to him that he was liable for the amount of the note in consequence of his neglect; and Cook thereupon stated that he could furnish, or would testify to a notice to Fayette.

J. H. Van Hosen was also sworn, who stated that he had previously held a note which had been protested by Cook, to whom he applied two or three years after the protest, to learn the facts, deeming the protest defective. Cook proposed to alter the protest by inserting “ the Planters’ Bank of the state of Mississippi,” instead of “ the Bank at Natchez,” and when objected to by witness, he stated that he thought he had a right to correct his records in any case.

As rebutting testimony, the plaintiffs offered several witnesses, who proved Cook’s good character for truth and veracity, and the testimony closed, and on this evidence the jury found for defendants as before stated.

As regards this impeaching testimony, two questions present themselves under the reasons assigned for a new trial; 1. Was the notarial record liable to be impeached ; and 2. If so, was it competent to impeach it by enquiring into or proving the particular facts disclosed in the testimony ?

We cannot doubt but what the veracity of these notarial records may be attacked. The statute which makes them evidence does not profess to elevate them to the dignity of records, and they can be entitled to n<5 weight which they do not derive from the statute. The provision referred to is contained in the act of 1833, How. & Hutch. Digest, 609, sec. 33. The section begins by declaring that when it shall be necessary to have the evidence of a notary touching the protest of a note or bill, the official act of such notary, certified under his hand and official seal, shall be deemed conclusive evidence of the protest. This portion of the statute makes nothing conclusive but the mere protest. Then follows the provision which directs the notary to make a record of what has been done, including the giving of notices and every other fact, and declares that when his record is so made, being certified under oath,

“ it shall have the same validity, force and effect in all courts of record within this state as if the said notary were personally present and interrogated in court.” This is precisely the office of a deposition taken in the ordinary way. It is in no respect placed on higher ground. It is but a new mode of taking a deposition, founded in convenience. The statute gives it' only such credit as the witness would be entitled to, if present. Being present, his testimony would be liable to impeachment. That a deposition may also be impeached is clear, and it may be done too by proving relevant facts, such as would be admissible if the witness were present. 2 Cowen and Hill’s notes to Phillips’ Evidence, 728, (note 509,) Id. 766; 6 Serg. &. Rawle, 324; 5 Watts, 32.

In the next place, was it competent to discredit the notarial certificate by proof of particular facts? As a general rule, it is' true that the veracity of a witness cannot be attacked by proof of particular acts. You cannot prove that he has been guilty of certain, crimes; but this rule applies only to his general credit; when particular credit is concerned, particular inquiries are proper. 2 Cow. &• Hill’s notes to Phil. 764. The authors comment on and illustrate the distinction at some length, and fully show, by authority, that the distinction is tenable.

If you wish to destroy the general credibility of a witness, you cannot inquire into particular acts, but must prove generally that he is unworthy of credit. And there is a test by which to determine the propriety of the proof of particular facts. And to determine, say the authors, whether the inquiry would be proper, would the answer, in any possible shape, or in the slightest degree, affect any question of fact which can be raised in the cause; if it may, the inquiry is relevant. Ibid. 726, note 509. Tried by this test, the impeaching testimony was clearly proper. It is quite apparent that the object of defendants was to destroy the effect of Cook’s record, and the necessary tendency of the evidence was to that point, it tended to show how all of his records of this particular kind were made out. The inference followed that this was also made out in that way. Indeed, the proof was next to positive that it was one of those described or spoken of. Robetaille stated that his volumes of records were made out in the way he mentioned; that certificates and affidavits in particular cases, furnished particular persons, were riot included in the volumes. This was in a volume, and it follows that it must have been certified and sworn to as the others were. The testimony, then, in some shape, and to a considerable degree, affected the question of fact then before the court. The object was to show a disregard of duty, and by strong inference to apply such breach of duty to the particular case. The cases given by the authors referred to will clearly show that this testimony falls within the rule. The testimony of Robetaille, the justice, who was the most material Witness, might have rested on questionable ground, if it had been objected to; but, on the first trial, no objection seems to have been made to it; at least the bill of exceptions is silent on the subject; and thus we must infer that there was no objection, and the objection was an after-thought. But, even on the motion for a new trial, the objection was placed on the wrong foundation. I say it might have stood on questionable ground, but still I incline to think it would have been admissible, even if an objection had been made at the proper time and on the proper ground. A justice of the peace probably could not be allowed to falsify his own certificate, for this would be to show his own mal-conduct, and to deny an accredited act; but when he is called to explain the manner in which his certificate was given, the question is different. The justice seems to have acted under a misconception as to the legal effect of the act. He does not deny his certificate, or say that it was falsely given, but he states the mode adopted, the necessary effect of which is to destroy its validity.

In the case Jackson v. Wyckoff, 1 J. R. 498, it was held competent for a judge to state how he'had given the certificate of the proof of a deed, the necessary effect of which was to destroy the validity of his certificate. But there was no objection to Robetaille, consequently his competency cannot now be questioned; for, if it had been ’ at the proper time, the difficulty might have been removed by substituting other evidence of the same facts testified to by him. I think it has been shown, then, that it was competent for the defendants below to attack the notarial record, and that it was also competent for them to have done so by proof of the particular facts disclosed by the testimony, especially as no objection seems to have been made to any of the witnesses, except a general one to the relevancy of Buckner’s testimony. An objection, however, to all of the testimony, on the ground of relevancy only, would not have been well founded. As a consequence, from what has been said, it follows that the court erred in supposing that illegal testimony had been admitted, on the first trial, to impeach the record. Was the verdict contrary to law and evidence? In connection with this inquiry, it is proper that we should examine somewhat into the plaintiffs’ evidence.

Cook’s record was objected to generally, and such an objection made to the admissibility of a written instrument will reach every defect apparent on its face; objections dehors the instrument must be specified, or the court cannot know them. It is insisted in argument, that Cook’s certificate was inadmissible, because he was a citizen of the county. This objection is undoubtedly a good one; but on a first view of the subject I was inclined to think that this also was an objection which should have been raised at the time it was admitted and specified particularly, as it might then have been removed by introducing Cook. Further reflection has induced me to think that this view of the subject was incorrect. This is written evidence, substituted for the presence of the witness in certain cases, but only in certain cases. The law is not changed, where the notary resides in the county. Depositions can never be used, unless it be shown that the witness is not within the jurisdiction of the court, or from other special cause is unable to attend. “ It is, says Starkie, an incontrovertible rule, that when the witness himself may be produced, his deposition cannot be read, for it is not the best evidence.” 1 Starkie, 261. In the application of this rule it is uniformly necessary for the party introducing a deposition, to lay a proper foundation by showing that the party is not within the jurisdiction of the court, or being within it, that diligence has been used to procure his attendance, Id. 264. Now if a deposition has been read in the court below, without a specific objection on the ground mentioned, it would be a fair presumption that the proper foundation for its introduction had been laid, or that it had been waived. But when it appears upon the face of the record, and indeed by the deposition itself, as it does in this instance, then it may be regarded as a patent defect which is reached by a general objection to its admissibility. The law, for instance, has only allowed Cook’s notarial record to be read out of the county of his residence; he shows by his protest that he is a resident officer in the county where the suit was tried. This is affirmatively showing the incompetency of his record in that county, and is reached by a general objection to its competency in that county. If it had been read without any objection, then of course we would not listen to such an objection as that mentioned, made for the first time in this court. Then the plaintiffs below made out their case by incompetent evidence, and this is an additional reason why the verdict should not have been set aside. Independent of the minor objections made to the certificate, it was incompetent ; but even admitting that it had been competent, what was the effect of the testimony on the other side. It was to destroy its legal validity. If the jury believed that the certificate had been made out and sworn to in the manner mentioned by Robetaille, and they could not well have believed otherwise, then it was no better than blank paper; it was evidence of nothing. Not only then did the plaintiff fail to make competent proof to charge the defendants, but even their incompetent proof was successfully destroyed. In any legal aspect of the case, then, the verdict was right. Legally it could not have been different. Now as to the propriety of reversing the judgment rendered on the last verdict, and restoring the parties to their condition on the first verdict. At common law the granting or refusing a new trial was matter of discretion, of which error could not be assigned, but a new rule is introduced by statute. The act of 1830, How. & Hutch, Dig. 493, sec. 52, authorizes either party to except to the granting or refusing to grant a new trial, and it may be assigned as error that the judge improperly granted or refused a new trial. This must have been designed to operate mutually as well for the party against whom the new trial was granted, as for the party against whom it might be improperly refused. The remedy was designed to correct a mischief, or to prevent it, in granting new trials against verdicts obviously supported by law and evidence. The case before us comes within the very terms of the statute. Here was a verdict set aside, which was obviously right on the law and evidence, and the party in -whose favor it was rendered assigns the granting of the new trial as error. His case is within the very letter and spirit of the statute, and we have no alternative but to sustain him. In general I should feel great reluctance in sustaining such an assignment of error for the defendant, or for either party, when on the second trial a verdict had been found for the opposite party, and perhaps such an application might with some propriety be refused, when the second verdict is found on the same evidence given on the first trial; but in this instance.it was not, and therefore 1 feel the less reluctance in reversing the judgment for this error. On the second trial, the plaintiffs relied on the evidence of Cook’s record alone to charge the indorsers; this we have said was improperly admitted. The defendant’s evidence was improperly ruled out, having shown, as we think, that it was competent. The second verdict, then, is not sustained either by competent evidence or law, whilst the first is sustained by both. We must therefore reverse the judgment, and reinstate the first verdict as having been erroneously set aside, and render judgment on that verdict for the plaintiffs in error, Wattles and Barlow, this being the judgment which the court below should have rendered.

These remarks cover the first, second and fifth errors assigned, and it becomes unnecessary to examine the others, as they present nothing which is sufficient to change the result.