Costigan v. Lunt
| Decision Date | 04 September 1879 |
| Citation | 127 Mass. 354 |
| Parties | Edward A. Costigan v. Jacob K. Lunt |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued November 22, 1878
Suffolk. Contract. Writ dated May 25, 1868.
At the trial in the Superior Court at April term 1878, before Putnam, J., the plaintiff and the defendant both testified to a conversation which took place between them upon a matter material to the issue, the plaintiff testifying that at that interview the defendant expressed his satisfaction with the work, and said he had a check with him which he would give in payment for the work if the plaintiff would sign a paper agreeing to get the vessel off bye the 1st of June; and the defendant denying this. The plaintiff then called Isaac G Reed, for the purpose of proving what one Edward Jackson, a witness, had testified at a former trial of this case in October 1869, Jackson having since died. Reed testified that he was a member of the bar, and took minutes of the testimony for the plaintiff at the former trial; that he took down all Jackson said so far and as fast as he could, not taking some parts of it, but all he considered material; and that his whole testimony was in relation to this conversation between the plaintiff and defendant. The defendant objected to Reed's stating what Jackson testified, because he did not know whether he took full notes or not; but the judge ruled that that was immaterial, as the witness could not be allowed to testify from his notes, but that if the witness refreshing his memory from such notes as he had, could state the exact testimony, he might do so. The witness said that he could not testify word for word to what Jackson said, but would give the substance of the words; just the words he used, or the order in which he used them, he could not give. The witness was permitted to testify, against the defendant's objection, that Jackson's words were substantially these: that he was present at the said interview, that Lunt came in with a paper in his hands which he wanted Costigan to sign, that the date, June 15, was erased and June 1 was written in, that Costigan read it and handed it back and refused to sign it, and that Lunt then said if he would sign it he had a check there to pay him. The witness also testified that he thought these were his exact words.
The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.
Exceptions overruled.
W. Gaston & E. C. Gilman, for the defendant.
N. Morse & H. G. Allen for the plaintiff.
It is a well established rule of evidence, that, in case of the death of a witness who testified at a trial, it may be shown at any subsequent trial between the same parties and upon the same issue what his testimony was. Any competent witness who heard it may testify what the evidence was. Commonwealth v. Richards, 18 Pick. 434. 1 Phil. Ev. (4th Am. ed.) 389, 400. 1 Greenl. Ev. § 165. Such evidence is admissible, not because in its general nature it is the best that might be had, but because in the particular state of facts it is the best which the party offering it is able to produce. It is secondary evidence, and is allowed for the reason that the best evidence is lost.
The purpose of such secondary evidence is to reproduce the testimony of the deceased witness, in order that the jury may have it as given by him under oath, and as...
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Hasouris v. Sorour
...and criminal context, the prior recorded testimony exception applies to witnesses who are physically unavailable. See Costigan v. Lunt, 127 Mass. 354, 356 (1879) (death); Commonwealth v. Mustone, 353 Mass. 490, 491–494, 233 N.E.2d 1 (1968) (same). See also Commonwealth v. Gallo, 275 Mass. 3......
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Simmons v. Spratt
... ... 464] ... Mitchell v. State, 71 Ga. 128; State v ... Fitzgerald, 63 Iowa, 268, 19 N.W. 202; Hepler v ... Bank, 97 Pa. St. 420; Costigan v. Lunt. 127 ... Mass. 354; 2 Phil. Ev. (2d Ed.) 181, 182 ... In view ... of the admissibility of a bill of exceptions in aid of ... ...
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In re Robinson
...of the prior testimony. Ruch v. City of Rock Island, 97 U.S. 693, 24 L.Ed. 1101; Jaquith v. Morrill, 204 Mass. 181, 90 N.E. 556; Costigan v. Lunt, 127 Mass. 354. Therefore, under the rules of evidence governing the proceedings, I conclude that there was no error in the referee's use of the ......
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Jaquith v. Morrill
...and there is a reason for applying it with more liberality than formerly. In the latest case in which it was discussed ( Costigan v. Lunt, 127 Mass. 354), decided more 30 years ago, it was reaffirmed, but applied far more liberally than the language of the early cases would seem to permit. ......