Watson et Ux. v. Brewster

• Decision Date: 01 January 1845
• Citation: 1 Pa. 381
• Parties: WATSON and Wife v. BREWSTER.
• Court: Pennsylvania Supreme Court

Page 381

1 Pa. 381

WATSON and Wife v. BREWSTER.

Supreme Court of Pennsylvania.

IN ERROR.

ERROR to the District Court of Alleghany county.

Shaler, for plaintiff in error, cited 4 Mason, 321; 1 Dall. 9; 6 Serg. & Rawle, 135; 10 Watts, 85; 7 Watts & Serg. 392; 24 Com. Law Rep. 329; 2 Dall. 230; 9 Serg. & Rawle, 379; 1 Watts & Serg. 58. On the question of the statute of limitations, he cited 2 Caines' Rep. 362; 5 Johns. Rep. 244; 8 T. R. 595; 6 Wh. 331; 6 Hill, (New York,) 526; 2 Burr. 1077; 4 T. R. 182; 2 Johns. Rep. 241; 4 Johns. Rep. 284.

Metcalf, contrà, cited Story's Confl. Laws, 567; 4 Cow. 508; 3 Gill & Johns. Rep. 234, 244; 4 Cow. 84, note 10; 2 Mass. 89; 3 Watts & Serg. 544; Story's Confl. 483; 8 Peters, 362; 1 Caines' Rep. 402; 3 Johns. 261; 4 Cow. 530; 2 Mass. 84; 17 Mass. 55 14 Johns. 338.

Shaler, in reply, cited 13 Serg. & Rawle, 395.

The opinion of the court was delivered by ROGERS, J.

This is an action against husband and wife, for a debt contracted by the wife when sole. The pleas are non est factum, infancy, set-off, and the act of limitations.

The plaintiff gave in evidence two depositions taken the 8th July, 1844, to prove the handwriting of Sarah Hubley, now Sarah Watson. He then offered to read other depositions of the same witnesses, taken subsequently, viz., on the 12th October, 1844. The defendants object, that taking a second deposition to contradict a prior one of their own witness, on a point which is the pinch of the case, is irregular, and cannot be done without leave of the court. The facts seem to have been these. When the first depositions were taken, the only pleas were non est factum and the act of limitation; the plea of infancy was afterwards put in. In the first deposition certain facts were proved, from which it was apprehended a powerful inference might arise, that, at the time the notes were executed, Sarah Hubley was an infant. To prove her precise age was the single object of the second depositions, and for this purpose we think they were competent testimony. In this particular, our practice is more lax than in England. No injury, as must be perceived, has been done, as the only effect of the evidence is to correct a mistake into which the witness had inadvertently fallen, in consequence of the attention, from the state of the pleadings, being directed to a different point. The age of the defendant was not then in issue. It cannot be doubted, that the court, in justice to the witnesses themselves, on motion, would have granted leave to take the depositions again; for nothing is more common than to permit witnesses to explain and qualify evidence before given. Our practice has been (to prevent delay and injustice) to retake depositions on another rule with notice to the adverse party, without the previous sanction of the court. That a party has the right to take a deposition of the same witness without leave of the court, on cause shown, is decided in Martin v. Koffroth, 16 Serg. & Rawle, 120. If the right be abused, (of which we see no evidence here,) the court will apply the proper corrective. The same principle was ruled at the last sessions of the court in Philadelphia, in a case not yet reported, in relation to depositions taken under a commission.

The plaintiff then offered the answer of Mrs. Chenoweth, a witness examined in the cause, to the following interrogatories. Are you acquainted with the age of Mrs. Watson? if so, when was she born? state how you know her age; state, is she older or younger than yourself? if so, how much?

The defendants object to the testimony, because it appears, from the cross-examination, that the witness spoke from the recollection of the contents of the family Bible; that the Bible ought to be produced as the best evidence. The plaintiff answers that it appears, from the same cross-examination, that the witness recollected it from information received from her deceased mother.

The evidence, be it observed, is only material on the plea of infancy, which, being an affirmative plea, throws the burden of proof on the defendants. If the objection is well taken, it equally applies to their own evidence, and leaves them without the shadow of proof in support of the plea of infancy. It is suicidal to the defence on that point, and, therefore, in no aspect of the case are they injured by the admission of the evidence. But aside of this view of the case, how stands the exception. The witness knows the age of her sister from the declarations of her mother, who is deceased. Now, that this species of evidence must be admitted has always been held, for otherwise a person could not prove his own age; for where no family record is made, he can only show it from the declaration of his parents or others cognisant of the fact. Such testimony has always been received, unless there was better evidence in the power of the party. The general rule undoubtedly is, that the best evidence which the nature of the case admits must be produced. But this rule is relaxed in cases of pedigree, as appears by Kingston v. Leslie, 10 Serg. & Rawle, 389, which recognises Hyam v. Edwards, 1 Dal. 2; Fogler's Lessee v. Simpson, cited in 1 Yeates, 11, and the Lessee of Douglass v. Sanderson, 1 Yeates, 15, where ex parte affidavits were admitted in evidence, to prove that copies of registers were true copies. But admitting this rule in its utmost latitude, the question recurs, was there better evidence in the power and under the control of the party, which he might and did not produce? And this depends upon, whether the family Bible referred to would have been evidence. In the first place, it appears that the leaf containing the entries of the birth of the children of Mrs. Hubley was torn out of the Bible and sent on to Washington, to be used in procuring for her a pension. What became of the leaf we are not informed; whether in existence or not is not known. It is most probable it is among the things that were. Of this we are certain, that a mutilated Bible, without the entries, would be of little value. It cannot, therefore, be better evidence, when in truth it is no evidence at all. Again, it appears that the entries in the family Bible are in the handwriting of Mr. Gourley, of Philadelphia. Now, who Mr. Gourley is we do not know, whether a stranger or relative of the family, and, which is more material, we are ignorant of his authority to make the entries. And that...