Carter v. Beals , 44 N.H. 408 ( 1860 )

Bartlett, J.

The only objection now suggested to the question proposed to Mrs. Beals is that it called for the contents of a wi'itten instrument. As no such specific objection was taken at the trial, we need not inquire whether it might have been successfully taken. Currier v. B. & M. Railroad, 34 N. H. 498; Haynes v. Thom, 28 N. H. 386; State v. Flanders, 38 N. H. 324.

Chapter 2090 of the Pamphlet Laws provides that the deposition of any party to a suit, competent to testify under the act of 1857, may be taken, but that such party “ shall not be obliged to answer any question or produce any document, the answering or producing of which would tend to criminate himself, or disclose his title to any property, the title whereof is not material to the trial of the action in the course of which he is interrogated, or to disclose the names of the witnesses by whom or the manner in which he proposes to prove his own case.” Mrs. Beals declined in her deposition to answer several questions upon the last of these grounds. There is nothing to show that she was in error as to this, or that her refusal was a mere pretext, and we must take the refusal to have been properly made. Janvrin v. Scammon, 29 N. H. 290; 1 Greenl. Ev., sec. 451. The court properly refused to allow the plaintiff to read those questions and answers, for they neither admitted or denied, nor tended to prove or disprove any thing material upon the issue; nor did they tend to contradict Mrs. Beals, or show any improper conduct on her part, in withholding evidence or otherwise, since she only availed herself of her right under the statute. As the questions and answers were not evidence in the case, it was immaterial how answering the questions would have disclosed the manner in which Mrs. Beals proposed to prove her case. 'Whether the remark of the court, “ that the witness had the right to judge if the answers would disclose her case,” is unqualifiedly correct, is unimportant here, as it was merely the reason assigned for the ruling. Carpenter v. Pierce, 13 N. H. 403. However, in the suit against Mrs. Beals the plaintiff was not confined in the use of her deposition to mere contradiction of her testimony, but he might use it to show any admission it might contain. The ruling of the court was broad enough to exclude this use, and was so far wrong; but if it appeared that the deposition contained no material admission, the verdict would not be disturbed on this ground. Bassett v. Salisbury Co., 28 N. H. 457.

We think the certificate in the caption of Hoyt’s deposition, that “the plaintiff was present, and did not object to the taking,” was. sufficient, under the last clause of section 20, chapter 188 of the Revised Statutes. Hpon the case as stated, the portion of that deposition objected to seems to have been quite immaterial, and we do not think it could have been prejudicial to the plaintiff!

Two objections only are urged to the testimony of Boyd. The first is that he states the contents of a promissory note; but as this objection was not taken specifically at the trial, we need not consider it here. The second objection is that it contains mere “hearsay;” but the declarations thus objected to were made at the time of the loan, and were competent, as a part of the res gestee, if not upon any other ground. Hall v. Young, 37 N. H. 144 ; Johnson v. Elliott, 26 N. H. 76; Sessions v. Little, 9 N. H. 276; Bradley v. Spofford, 23 N. H. 444.

If the evidence introduced by the plaintiff as to the Hardy deed was material, then it was quite proper for Mrs. Beals to be allowed to explain it; and Gleason’s statement of what he had heard was competent in this connection, to show the motives of the parties to the transaction, ancl rebut any inference of fraudulent intent that the plaintiff might attempt to found upon it. 1 Greenl. Ev., sec. 101; Parris v. Jenkins, 2 Rich. 106 (7 U. S. Dig. 242, 357). If, however, that evidence was immaterial, the plaintiff can not object merely because of the immateriality of the evidence introduced to explain it. Bank v. Woodward, 5 N. H. 309. The affidavits in relation to the residence of Hardy were properly received by the court, and the rejection of his deposition was right. Wyman v. Perkins, 39 N. H. 218.

Bradford Beals, in most of the answers in his deposition, as stated, does not in terms give the statutory reason for declining to answer; but the questions and answers prove nothing; they contain no admission or denial of any material matter, and, as he was not a witness, were not admissible to affect his credibility. In the real action no inference could be drawn from the fact that Bradford Beals did not testify, because he could not be a witness for or against his wife; Kelley v. Proctor, 41 N. H. 139; and as the ruling was right, it is of no consequence that the reason assigned was incorrect. But in the other suit he was a competent witness, and whether any, and if so what, inferences were to be drawn from his not testifying, would depend upon the circumstances of the case, and would be matters for the jury. Ela v. Kimball, 30 N. H. 135. If Bradford Beals was seized of an undivided interest in the land, as against Mrs. Beals’ holding the remaining interest to her solo and separate use, the levy upon a portion of the premises would be invalid; Hall v. Young, 87 N. H. 149; nor is this affected by the set-off of the homestead. "Whether there was any defect in sottingout the homestead, which would invalidate the levy (see Fogg v. Fogg, 40 N. H. 282), we need not consider, for the set-off of the homestead did not make partition, or extinguish the interest of either of the owners. They still remained seized of undivided interests in the whole premises, and the ordinary rule must apply. If the defendants had disseized the plaintiff of the land set off to him, he would still have the title and a right of entry as against them, and therefore in this State could maintain trespass guare clausum against them without actual entry. Dexter v. Sullixan, 34 N. H. 480 ; Tappan v. Tappan, 36 N. H. 120 ; and see Cochran v. Williams, 30 N. H. 383. The defendants urge that this ruling, and that in relation to drawing inferences from the fact that Bradford Beals did not testify, were only important upon the question of title, and have become immaterial upon the finding of the jury in the real action; but we need not consider this suggestion, for, as the case now stands, that verdict must be set aside.

Verdicts set aside and new tricds granted, unless an amendment of the case is obtained.