Smith v. Potter ( 1855 )

The opinion of the court was delivered by

Redfield, Ch. J.

I. A question is made in regard to the competency of the testimony of the widow of one, while living, interested as a party to the controversy. The statute has now removed all objections arising from interest merely, whether as a party, or otherwise. But the English courts have held under a similar statute, that the wife is not thereby rendered competent to testify, where the husband is a party and still living. And this court have adopt-ted the same view in Manchester v. Machester, 24 Vt. 649. But where the husband has deceased, it has long been settled, that the widow may testify to matters of her own knowledge, and indeed to all matters in regard to any transaction affecting her husband’s interest, unless it involve the disclosure of matters of confidence between the husband and wife, or to transactions affecting the character of the husband, unless she is herself interested in favor of the testimony given. This was expressly decided in Edgell v. Bennett, 7 Vt. 534. And this was before the rule of the English courts, and has long been practised upon, in this state, at the jury trials. The statute having removed all objections, on account of interest, it becomes an inquiry merely, whether the testimony is objectionable as containing matters of confidence, or tending to discredit the husband. The deposition in question does not seem to be of this character, and, if relevant to the issue, was, we think, admissible, The claim was upon the award, and also for use and occupation, and involved an inquiry as to the rent, the repairs and various other matters in regard to most of which the widow’s deposition contained testimony, and must have been relevant and important; we think therefore that the rejection was error.

II. In regard to the requisite testimony to prove the statutes of one of the American states, we are not aware of any such relaxation as is claimed, except in regard to depositions. In regard to the power of certain officers to take depositions in other states, and perhaps the form of taking, it has sometimes been the practice to inquire of witnesses. But the rule finally established on the subject is, that the fact of their being taken is prima facie evidence of the power of the officer to take. And in practice, very few depositions are now taken, except in our own form. And where they are taken professedly according to the form of the place, where taken, it is not required to produce a copy of the statute of that state, ordinarily, perhaps.

But we have not known this rule extended to the proof of the statute of another state, affecting the merits of the trial, before the jury. In these cases, legal proof is required. The most satisfactory evidence, undoubtedly, is an authentication according to the act of congress. But in practice less evidence has been received. A sworn copy compared with the record of the statute, in the secreretary of state’s office, is always the very best evidence. So too, the authorized statute book of the state is ordinarily sufficient. This mode of proof of American statutes is held sufficient in the king’s bench in Canada. But it is said they ordinarily ask to keep the statute book, after it is verified, as part of the files in the case.

III. The award seems to us fatally defective. The arbitrator did not make a full and final award, upon all the matters submitted to him. And if any defeet is fatal to an award of arbitrators, it is this. The authorities are uniform in regard to it. The award does not come within the submission. For, non constat, that the party against whom the award is, would have submitted the part awarded upon, without the other. It is not certain the same or a similar award, or one for the same party, would be made, if all the matters submitted had been passed upon.

Judgment reversed and case remanded.