Pratt v. Patterson ( 1876 )

Mr. Justice Mercur,

delivered the opinion of the court,

The plaintiff brought this suit to recover commissions as a real estate broker. In a former suit between him and the testator, about the same subject-matter each party had testified and the testimony had been reduced to writing. The verdict in that case was set aside and the suit discontinued. This suit was afterwards brought between the same parties. Before the trial the defendant died and his executors were substituted. On the trial the notes of the plaintiff’s testimony taken in the former suit were offered in evidence and rejected by the court. This is assigned for error.

The competency of this kind of evidence under similar circumstances, received a careful consideration in Evans’s Adm’x v. Reed, 28 P. F. Smith 415. That case differed in this. There the notes of testimony of the deceased party were held admissible in the same suit in which they were taken; here the testimony is that of a surviving party, offered in a subsequent suit involving the same subject-matter against the executors of the deceased party. There it was said “if the deposition of a party be duly and regularly taken so as to be admissible in evidence in a pending case it is very clear that it would be admissible in a subsequent suit, between the administrators of the parties involving the same subject-matter.” Here it is a subsequent suit, tried after the death of one of the parties, and involving the same subject-matter. The very case assumed there, substantially exists here. In each case the testimony was not only admissible when taken, but had actually been given in evidence. It must not be overlooked that the Act of 15th April 1869 is an enlarging, not-a restraining act. It makes no witness nor evidence incompetent that was competent before its passage. Sheetz v. Norris, antea, p. 100.

The first section of the Act of 28th March 1814, Purd. Dig. 625, pl. 24, declares: “ Any deposition taken or to be taken in any cause, which by the rules of law may be read in evidence on the trial of the cause in which it is or may be taken, shall be allowed tobe read in evidence in any subsequent cause wherein the same matter shall be in dispute between the said parties or persons, their heirs, executors, administrators or assigns.” The third section of the Act of 15th April 1869 authorizes the testimony of all witnesses made competent by that act to be taken “ by deposition or commission issued as the case may require.” In Evans’s Adm’x v. Reed, supra, the notes of testimony are considered substantially as a deposition duly taken. Hence it was there held, evidence competent under the Act of 1869, when taken, is admissible under the Act of 1814.

This evidence was taken on due notice, with ample opportunity for cross-examination. It was not testimony that could have been fabricated after the death of the party whose interest might be injuriously affected thereby. When taken the parties stood on an equal footing. Each had the right to perpetuate his own testimony. Each availed himself of that right.

All statutes -which provide for the perpetuation of evidence are in furtherance of justice and a due administration of the law. They should receive a liberal construction. This is not the case of the deposition of a person taken when he was not interested, but becomes so before it is offered in evidence. Here he was no more interested when his testimony was offered,than when it was first taken. His interest had remained unchanged. The second assignment is therefore sustained.

The offer to put the plaintiff on the stand to testify in regard to matters which occurred in the lifetime of the defendant, rests on a different basis, and there was no error in rejecting the witness.

The third assignment has no merit. If Townsend, as agent for the defendant, received and held the letter, notice to produce the original was necessary before a copy was admissible in evidence. If he was not such agent, the defendant could not be affected by the letter, inasmuch as, he had no knowledge of its contents.

The time- when the tender was made, ,and what the defendant said material to the issue are not stated in the offer covered by the fourth assignment. It should be shown affirmatively, that the plaintiff was injured by the rejection of the evidence. We are unable to see any such effect.

We would not disturb the judgment of nonsuit on the evidence before the court; but by reason of the rejection of the notes of testimony the judgment must be reversed.

Judgment reversed and a venire facias de novo awarded.