M'Kim v. Somers

The opinion of the court was delivered by

Rogers, J.

(who recapitulated the facts of the case.) When it is recollected that Jeffries Marsh was a principal witness for the defendant, and that the plaintiff had attempted to impeach his veracity on his cross-examination, and by the evidence of a witness, to contradict him, it became a matter of vital importance to the defendant and the witness himself, that he should be sustained. It is in vain for the plaintiff’s counsel to say, that they had not attacked the character of the defendant’s witness, for this is expressly contradicted by the bill of exceptions. Marsh says the reason he did not tell to Wallace Boyd, what he knew of the payment, was a fear arising from the violent temper of William M‘Kim. And this reason, if true to the extent stated, would account satisfactorily to the jury, for the suppression of part of what he knew in relation to the alleged payment. It became then important that facts should not rest upon his testimony alone; and there can be no doubt that the defendant would have a right to fortify his case by proving by other witnesses, the truth of the facts stated by him, as reasons for his conduct For instance, it would have been competent for him to show that the witness was living at the time in M‘Kim’s house as tenant, and also to prove that as soon as MKim knew he had spoken about it, he had taken out a landlord’s warrant. But it is said that the evidence which is admitted is putting the plaintiff’s character in issue, and that this cannot be done in an action of assumpsit, and for this the plaintiffs counsel have cited Philips and Starkie. No person pretends to dispute the general principle. This is not an attempt to put in issue the character of William MKim, but to prove from the knowledge of the plaintiff’s witness himself, the fact that William M‘Kim was a quarrelsome and dangerous man, to those he had a prejudice against. And this evidence, it will be recollected, is given to shield the character of a witness who had been attacked by the plaintiff. If this evidence leads to an enquiry which might effect the standing of MKim, he has his own counsel to thank for it; for it was in answer to an enquiry from them, that he gave the reason why he did not state to Wallace Boyd, all he knew of the ■transaction. Had the counsel for the defendant omitted to prove the temper and disposition of MKim, no doubt the jury would have been told that it was -a mere excuse, totally untrue, resting ,on his own statement, and perfectly ridiculous in itself. The temper of MKim gave probability to the reason assigned by the witness, and in this point of view it was material that no doubt should rest upon it. It is too much the habit of counsel -to abuse and villify witnesses. It is the duty of the court to protect them, by affording them some latitude to defend themselves from the slanders which are often heaped .upon them, ,Under the peculiar circumstances of this case, we are clearly of opinion that the testimony was rightly admitted by the court.

The plaintiff also objected to the admission of a deposition in evidence, ,on the ground that Joel C. Bailey, the person before whom the deposition was taken, was not a justice of the peace. Whether the facts alleged in the bill of exceptions would vacate the commission of the justice, we are not called on to determine. Whenever an information is hied, it will be time enough to determine the question. At present, vve would think it improper even to intimate an opinion. And this is not accorded to Mr. Bailey as ■a favour, but is nothing more than common, even-handed justice, that he should have an opportunity of being heard, and be permitted, if occasion should require it, either to traverse the facts, or .contradict the conclusions of law attempted to be drawn from them. It would be the height of injustice if we were now to determine, or even suffer his right to hold his commission to be called in question, in a cause in which he is no party, and cannot be heard. The counsel for the defendant objected to the court going into the question whether he was a justice d.e jure at all, and in this we conceive they were in the strict line of their duty. They contended, and with a force which has not been weakened by the reply, that it was sufficient for their purpose that he held a commission from competent authority, and that in taking the deposition, which is an official act, he was acting in the district for which he was appointed; that this constituted him a justice de facto, with at least colourable authority; and that as long as the commission remained, without being superseded by the Governor or vacated by the Supreme Court, the validity of his a,cts could not be questioned. One would have supposed that these reasonable objections would have been entitled to some respect. For, setting aside the extreme injustice of impeaching, or even impairing the right to .an office, without giving an opportunity of hearing to the party principally effected by the decision, the inconvenience, and I may add, in some cases, the indelicacy of the inquiry, would be intolerable. If the plaintiffs had been heard in this preliminary matter, the opposite party would have been permitted to controvert the facts by the introduction of testimony on their part. And this would open a scene which I should be sorry to see exhibited in a court of justice. An examination would ensue before the court, which in some cases would last a week, whether a deposition should be received, in a cause of the most trifling nature and amount. As the court would be both judge and jury, the inconvenience of this novel doctrine would cause them to pause before they acceded to it. If I understood the counsel, they admitted the law in its full force, as respects ministerial officers, but denied it as regards judicial officers. I should have been pleased to . have seen some authority in which the distinction is taken: the reason for such a distinction is not very apparent. If this be law, as regards ministerial officers, which may be shown by a host of authority. I say, a fortiori it should be so held in the case of judicial officers. The law is founded on policy and convenience, reasons which apply with tenfold force to officers of the latter description. The constitutionality of the laws establishing the several District Courts of this State has been denied by some, although I am not among the number. Would the Common Pleas of Lancaster, York, or the city of Philadelphia have a right to call in question the validity of the commissions of the judges of these courts, on an objection to the reading of a deposition? Nay more, would every court of Common Pleas, or justice of the peace in the State have the same power, would a justice of the peace or Court of Common Pleas have a right to question the commission of one of the judges of the Supreme Court, on an allegation of a removal from the State? We occasionally visit our friends in the neighbouring States, and it would be a singular spectacle if our offices should be vacated in our absence, on the plea that we had become citizens of another state. If this should be law, offices are held, by a most precarious tenure. No court professing the slightest tincture of judicial science, have ever undertaken to examine the right to office, either on vyril of error, certiorari, or when the matter came incidentally before them. In the Commonwealth v. Bache, this question came before the Supreme Court. Richard Bache was indicted for an assault and battery on Alderman Binns. The indictment contained two counts: one for an assault and battery; the other for an assault and battery upon Alderman Binns, while in the execution ' of the duties of his office. It was the opinion of the whole court, that Mr. Binns5 right to the office he held, could not be questioned on the indictment; and we accordingly suspended giving judgment, and put Bache to an information, in the nature of a writ of quo warranto. This case is exceedingly strong, for the act of assembly enacts in express terms, that the acceptance of certain commissions named in the act, makes the commissions .of alderman, justices of the peace, &c. null' and void. It is strange that if the law be as stated by the counsel for the plaintiff in error, we have not some trace of it in some adjudged case, or elementary treatise.

The pivot on which the argument of the plaintiff’s counsel turned, was that a false oath, taken before such a justice, is not punishable as perjury. For this I should also have been glad to have had some authority. So far from this position being correct, I find the law differently stated in 2 Hawkins, 89, a book of undoubted authority, and in a case bearing great analogy to the present. It has been adjudged, says the commentator, that a false oath, taken before persons, who having been commissioned to examine witnesses, happen to proceed after the demise of the King, who gave them their commissions, and before notice thereof may be punished as perjury: for it would be of;the utmost ill consequence to make such proceeding void; and therefore, though all commissions legally determine by the .demise of the King who gave them, without any notice, yet for the necessity of the case, whatever is done before such notice, must be suffered to stand good: for otherwise the most innocent and most deserving subject would be unavoidably exposed to numberless prosecutions for doing their duties, without any colour of fault. I put this case; would the ■Court of Quarter Sessions of this county, suffer the constitutionality of the law establishing the District Court to be enquired into, on an indictment for perjury, committed in a cause tried .before .the District Court?

The distinction is between oaths taken before persons merely acting in a private capacity, and those who take upon them to administer oaths of a public nature, without legal authority, or ¿colour of authority. Wherever persons who have colour of autho-, rity, acting under commissions from the appointing power, but which it may be alleged have been forfeited by some act which may perhaps be of an equivocal nature, in all such cases the validity of the commissions cannot he examined in a suit in which they are not a party. The regular, and indeed the only mode is by information. If a person usurps an authority to which he has no title nor colour of title, that would present a different case; for every act of such a person would be simply void. But the law pays such respect to those who are clothed with even colourable title, as not to permit the title to be examined except in a mode in which they are parties, and before the proper tribunal, the Supreme Court, in whom by act of Assembly, all the authority of the Court of the King’s Bench is vested.

The plaintiff in .error further objects to the admission of the following question and answer, in the deposition. Question, by defendant — “ Did Captain MsKim tell you that he had received one hundred dollars of me, in Wilmington and Brandywine money!” Answer — “ Yes.” This was opposed on the ground that it was a leading question. The court overruled the objection, and of this' the plaintiffs in error also complain. At common law, depositions were not received in evidence, and if received at all, it was with great caution. It was thought, and justly too, that viva voce testimony was much better than depositions. But experience has taught us, as commercial transactions multiplied, and commerce extended, that the use of depositions fends to expedite causes, and indeed is indispensable in the administration of justice. Hence id modern times, they are guarded, but not put under unnecessary restraints. In Shaler v. Spear, 3 Bin, 130, it was decided that a leading interrogatory put to a witness, should be objected to at the time it was put; it cannot be objected to on that ground alone at the trial. And in Strickler v. Tod, 10 Serg. & Rawle, 70, the same principle was recognized. It is said, and perhaps truly, that both parties appeared at the taking of the deposition, though this does not appear in Strickler v. Tod. And in neither case is the decision put upon that ground. Although M‘Kim was not actually present at the time the question was asked, yet he might have been present. Instead of attending to the taking of the deposition, he enters a protest against taking it at all, without stating his reasons; and therefore,- (not because he had no notice,) it was taken in his absence. When a-party has an opportunity of being present, and does not choose to avail himself of it, he shall not afterwards be permitted to make formal objections against it. Depositions are frequently taken by the parties themselves, without the aid of counsel, and are generally very inartifi.cia.lly drawn. If we were to listen to captious objections, it would impair the utility of such proof, particularly in case of death. When á party attends, and objects to the form of the question, thén if the opposite party persists, he does so at his peril. This is giving suitors every advantage which policy requires, and I am not for extending the privilege any further.-

Judgment affirmed-