Opinion · Nclaw North Carolina

ALEXANDER v. WALKER, 35 N.C. 13 (1851)

35 N.C. 13

Type: Opinion
Court: Nclaw North Carolina
Jurisdiction: Nclaw
Date: 1851-01-01
Topic: general

ALEXANDER v. WALKER, 35 N.C. 13 (1851) ABRAHAM ALEXANDER v. WILLIAM W. WALKER.Supreme Court of North Carolina (December Term, 1851.) Under our statute (Rev. Stat., ch. 31, sec. 68), the deposition of an absent witness may be received in evidence whenever the witness has left the State, either with an intention of changing his domicile or under the expectation of being absent for a time which will include two terms of the court, say six months.

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ALEXANDERv. WALKER,35 N.C. 13(1851)

ABRAHAM ALEXANDER v. WILLIAM W. WALKER.

Supreme Court of North Carolina

(December Term, 1851.)

Under our statute (Rev. Stat., ch. 31, sec. 68), the deposition of an absent witness may be received in evidence whenever the witness has left the State, either with an intention of changing his domicile or under the expectation of being absent for a time which will include two terms of the court, say six months. But it cannot be received when the witness is absent temporarily for a short time, as in the case of a seaman on a voyage to New York or Charleston, when his return may be expected in two or three months at furthest.

APPEAL fromDick, J., at the Spring Term, 1851, of TYRRELL. The case is stated in the opinion delivered.

E. W. Jones for plaintiff.Heath for defendant.

PEARSON, J.

This was an action of assumpsit for freight of goods. To prove the terms of the contract, defendant offered to read the deposition of a witness who was, at the time of the trial, absent from this State. Plaintiff objected. The facts are that the (14) witness was a seafaring man, whose residence was in this State, but his vocation required him frequently to go out of the State on a voyage, and after a temporary absence he would return, and then go out of the State again, as his business called him. An order was obtained to take his deposition. After it was taken, he went on a voyage, and returned, and then left again, and had not returned at the time of the trial. It was held in the Superior Court that the deposition could not be read, and for this the defendant excepts. By Rev. Stat., ch. 31, sec. 68, it is provided: "When any person who may be a witness in any civil case in any of the said courts shall reside out of the State, or shall, by reason of age or bodily infirmities, be incapable of attending to give his testimony in court, or shall be in a dangerous state of health, orabout to leave the State, or be a prisoner confined in jail, oath thereof being made, the court shall issue a commission to have his deposition taken, which shall be received as legal evidence." By section 70 it is provided: "If any person who may be a witness in any of the said courts shall be under thenecessity of leavingthe Statebefore such cause is to be tried, or even before such cause shall be at issue, or be in a dangerous state of health, upon oath thereof the court shall issue a commission to have his deposition taken, which shall be received as legal evidence." This is a reenactment of the act of 1777, and the question is, Does the deposition offered come within its operation? This statute makes an encroachment upon the common law, in reference to the trial by jury,Page 26which is to be held sacred according to our "declaration of rights," of which it is a prominent principle that witnesses ought to be examined in the presence of the jury. We are bound, therefore, by a well settled rule of construction, not to carry this encroachment beyond the point to which it is clear the lawmakers intended to go.

(15) It is readily conceded that the expression,"under the necessityof leaving the State,"is not to be taken in its strict sense, but it is to have a liberal interpretation, as it is used in common parlance when it is said in reference to a man's business, "It isnecessaryfor him to go from one place to another," because the word "necessity," taken literally, would confine the statute to very narrow limits.

So, on the other hand, it is very obvious that the expression, "about toleavethe State," is not to be taken in the sense of the mere act ofgoingoutof the State, because this would give the statute a most unbounded operation, in which would be included the case of a merchant whose business called him to New York or Charleston, and who expected to be absent but a few weeks; and the case of a witness who, not being solicitous to face the jury upon a cross-examination, might find it convenient to visit a friend in Petersburg or Camden for a few weeks.

If the expression is taken according to the sense in which it is used in common parlance, it conveys almost the idea of being about toremovefrom the State and make exchange of domicile, for if it is asked, "Is A.B. about to leave the State?" the answer is, "No; he is going to the South on business, or he is going on a trip of pleasure, and to see the world." But as "move" is not the word used — and it would certainly have been the most apt term, if a change of domicile were required — we do not feel at liberty to confine the word "leave" to precisely the same signification. And as we cannot give to it the loose meaning of merely going out of the State, or the restricted meaning of removing from the State, we are forced to take the middle ground and give to it the signification, leaving the State either with the purpose of changing the domicile or being absent for so long a time as to make a (16) postponement of the trial until his return inconsistent with the due administration of the law, as if the witness were to leave to go on a voyage to China or to seek his fortune (for a few years) in California. In putting a construction on this statute, we must look to the evil for which it was intended to give a remedy. It was this: By the common law, and according to the mode of trial by jury, no testimony could be heard unless the witness was in the presence of the jury, so as to let them judge, by his looks, his demeanor, his manner, on cross-examination, etc., what credit he deserved. In State cases this rule never has been departed from; but in civil cases it was found to be inconvenient in many cases, and thereupon the court of equity, in aid of thePage 27common-law courts, assumed jurisdiction to order a commission, under which the deposition of a witness residing in a foreign country, or who was unable to come before the jury by reason of age or infirmity, or who was about to quit the kingdom, might be taken; and the parties are required, under the penalty of being in contempt of that court, to allow a deposition so taken to be read as evidence on the trial. The evil was the expense and delay incident to this application to a court of equity, and the remedy intended was to confer power on the courts of common law to have depositions taken, and allow them to be read in evidence, in all cases where it could be done by an application to a court of equity. In the pleadings in the English cases the phrase is, "about toquitthe kingdom." This seems to be synonymous with "about toleavethe State," and we are confirmed in our construction of the statute by the fact that all applications to courts of equity are put on the ground that the witness is about to quit the kingdom, either with the intention of residing abroad or of going to somedistantcountry — for instance, the East Indies — which implies a long absence.

It is said to be a great hardship upon a seafaring man, even (17) although his voyages are confined to New York, Norfolk, or Charleston, and his absence is temporary (some three weeks at a time), to be required to give up his vocation and lose his place in a vessel in order that he may attend before the jury as a witness. This is true. But it is equally true that it is a great hardship on a lawyer, a doctor, or a schoolmaster, or a farmer, or a ferryman, to be required to leave his business and go from Currituck to Cherokee in order to give his testimony in presence of the jury; and yet such is the law. The fact is, every citizen is concerned in the due administration of the law, and is bound (as Lord Coke expressed it) "to do suit to the court of his sovereign," and must submit to the rule, "Private interest should yield to public convenience."

There is another matter which is worthy of consideration in its bearing upon the construction of this statute. For whose benefit was the statute made? Was it to favor the witness or the party who requires his testimony? Most obviously it was intended for the benefit of the party, and to save him the expense and delay of applying to equity. For if a witness reside abroad, or is unable from age or sickness to attend, or is about to leave the State, there is no process by which he can be subjected to any penalty, except in the last instance, upon the supposition that he returns, so that ascire faciasmay be served on him, requiring him to show cause for not attending as a witness. Assuming that the statute was made for the benefit of the party, it follows that a deposition should never be received when the party has it in his power to compel the attendance of the witness, by enforcing the penalty, and by an action forPage 28damages; or where the party can obtain a continuance on account of the absence of the witness. It is a rule in the Superior Court to (18) grant a continuance upon an affidavit that the witness is material, is absent without consent, and that the party expects to be able to have the benefit of this attendance at the next term.

We conclude, therefore, that the meaning of the statute is to allow a deposition to be received in evidence whenever the witness has left the State, either with an intention of changing his domicile or under an expectation of being absent for a time which will include two terms of the court — say six months, but that it cannot be received when the witness is absenttemporarily(as it is expressed in the exception), by which we understand, on a voyage to Charleston or New York, when his return may be expected in two or three months, at furthest.

PER CURIAM. Judgment affirmed.Overruled(under Laws 1881, ch. 279),Barnhardt v. Smith,86 N.C. 481.