Sayles v. Stewart , 5 Wis. 8 ( 1856 )

By the Court,

WhitoN, C. J.

We do not see any error in the record of which the plaintiff in error can complain, except that which arises upon the ruling of the judge in regard to the depositions taken before the commissioner in New York. It appears that tbe rule and commission stated that tbe depositions would be taken before tbe commissioner at bis office at tbe corner of Nassau and Oedar streets in tbe city of New York, whereas tbe certificate of tbe commissioner showed that they were in fact taken at another place in said city.

It was not necessary to state in tbe commission at what particular place tbe depositions would' be taken, and we do not think the fact that they were taken at another place than tbe one designated, ought to exclude them from tbe jury. Circuit Court Rules, 59, 60, 61, 62, 63. It was insisted upon at the argument, as a reason for their exclusion, that tbe plaintiff below ought to have tbe means of knowing where tbe depositions would be taken, in order to enable them to be present at tbe time when tbe witnesses deposed. We do not think that this constitutes any objection. Indeed, as tbe time when tbe depositions were to be taken is not specified in tbe commission, we do not see bow tbe plaintiffs could have been benefited if they bad been taken at tbe place appointed,-nor prejudiced by tbe circumstance that they were taken elsewhere. But if tbe plaintiff bad known tbe time when and the place where tbe depositions would be taken, be could have derived no rightful advantage from that circumstance ; be could put- no questions to tbe witnesses, and could not in any way interfere with their examination by tbe commissioner. Indeed tbe presence of tbe, parties or their attorneys is an impropriety which by tbe rules of some courts is forbidden. The witness who is examined upon a commission issued in pursuance of our rules, ought to answer tbe interrogatories and cross interrogatories which are propounded, in tbe absence of those whose interest may be promoted by distorting bis testimony.

For these reasons we think tbe judge erred in excluding tbe depositions, and for that error tbe judgment must be reversed.

It appears from tbe bill of exceptions that tbe judge before whom tbe cause was tried, instructed tbe jury that conveyances of goods and chattels made .with intent to hinder, delay or defraud tbe creditors of tbe vendor were not made void by tbe statute, owing to tbe accidental omission of words necessary to give it effect, but that sucb conveyances were void at common law. We do not think that we are called upon to decide whether the judge was correct or not in the view which he took of this matter, because the instructions which he gave to the jury were as favorable to the plaintiff in error as though he had instructed them that such conveyances were void by statute. The plaintiff in error claimed the goods in the right of the attaching creditors of Norman Stewart, and was interested to show that the sale of the goods to the defendants in error was void as to those creditors. The judge instructed the jury that the sale was void as to the creditors, if made with intent to hinder, delay or defraud them, and submitted the question fairly to them. This was all that the plaintiff in error could rightfully claim. We‘must therefore reverse the judgment solely on the ground above mentioned.

Judgment reversed and venire de novo awarded.