Heywood v. Reed

Several exceptions were taken by the defendant to the rulings of the presiding judge at the trial in the court of common pleas, on account of some of which it becomes necessary that a new trial should be ordered.

The objectionable portion of the deposition of Hobart should have been rejected. It was taken before a justice of the peace, after due notice, and the parties were both present at the examination. In such cases the right of making objections to the credibility or competency of the deponent, or to the propriety of questions put to him, or of his answers, in the same manner as if he were personally examined upon the trial, is fully reserved and secured by. the express terms of the statute. Even when a deposition is taken on written interrogatories, it is only when a party intends to insist upon a formal objection to any one of them, that he must, in order to make it effectual, cause it, if the interrogatory be not withdrawn, to be noted upon the interrogatory before it is answered. Rev. Sts. c. 94, § 26.

The evidence offered by the defendant concerning the business credit and pecuniary standing of Noyes, the plaintiff’s assignor, prior and up to the day of the date of the alleged ftaudulent sale, should have been admitted, as having a tendency to disprove the charge that he had reasonable cause to believe that said Noyes was at that time insolvent. Upon a question of that kind, the means of forming a judgment are commonly, and from necessity, very imperfect. Individuals cannot, in general, resort to the most authentic sources of information to ascertain the pecuniary responsibility of parties with whom they deal. They are obliged to act upon opinions entertained and adopted in view of circumstances which are merely external and apparent *580and hence they may well be presumed to be in some degree influenced in their transactions by the business credit and pecuniary standing which a party has acquired and maintained among his neighbors and acquaintances. When his motives to action in pecuniary transactions are called in question, considerations of this kind deserve attention, and therefore are properly subjects of inquiry and investigation. The weight and value of such evidence must in each particular case depend greatly upon the kind, nature and strength of the proofs it is intended to encounter. Under some circumstances which might easily be conceived, it would undoubtedly be of very little importance, while in other cáses it might be effectual and decisive. Being properly admissible, the exclusion of proof concerning the credit and standing of Noyes deprived the defendant of the benefit of evidence to which he was justly entitled, and which, if the jury had been allowed to hear and consider, might have been sufficient to have induced them to render a different verdict. Bartlett v. Decreet, ante, 113.

The interrogatory which the defendant proposed to put to the witness Hayden was pertinent to the subject of inquiry, and to the point in issue, and should therefore have been allowed. If, prior to the sale of the stock and fixtures of his factory to the defendant, Noyes had openly and publicly expressed a desire and purpose to dispose of it, and had for that purpose offered it in the market, his declarations and offers to that effect would have some tendency to show that a subsequent sale was in the regular course and order of legitimate business, and therefore not fraudulent or collusive. What answer was expected to be made to the inquiry is not stated. All that can be said, therefore, is that the interrogatory appears to have been unobjectionable, and might have induced a reply which would have been of essential value to the defendant. In the absence of any statement concerning the answer which it was supposed or believed that the witness would have given to the interrogatory, it cannot well be considered that any material testimony has been lost by the defendant; and if this were the only error found in the rulings of the court upon the trial, we should perhaps *581hesitate about disturbing the verdict. But upon the new trial which is for other reasons ordered, the error which occurred in this particular may be corrected.

We do not perceive any valid objection to any other of the rulings of the presiding judge, which were excepted to. The records of the proceedings in insolvency in the case of Noyes were rightly received in evidence for the purposes for which they were produced. The declarations and conversations of Noyes on the various occasions mentioned in the bill, of exceptions, and the defendant’s offers to prove that his own character and the character of Noyes were respectively good for honesty, integrity and moral worth, were all properly rejected.

Exceptions sustained.