Tappan v. Beardsley,
77 U.S. 427 (1870)

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U.S. Supreme Court

Tappan v. Beardsley, 77 U.S. 10 Wall. 427 427 (1870)

Tappan v. Beardsley

77 U.S. (10 Wall.) 427


1. It seems that to establish the fact that a certain suit was brought or the time of its commencement, the record of it may be used against one who was no party to it, but only so much as is necessary for that purpose is admissible.

2. Depositions which are incorporated into such a record are not admissible in another suit where the witnesses are competent and can be procured in the second suit.

3. The right and the opportunity in a person to cross-examine are essential to the use of such depositions against him.

Page 77 U. S. 428

4. Neither such depositions nor the answer in chancery of the defendant can be read in evidence as proof of their contents in another suit against one who was neither party to the former suit nor privy to a party.

John Beardsley and Horace Beardsley, merchants of Norwalk, Huron County, Ohio, brought an action in the court below against Lewis Tappan, of New York, for a libel.

Tappan was the proprietor of what is now generally known as a "Mercantile Agency," the purpose of which is to collect information of the standing, character, and credit of merchants all over the country, and to communicate such information for reward to the business houses who may need it in their dealings with the former. And it was a communication made by Tappan to one of his customers concerning the plaintiffs, Beardsley & Co., that constituted the alleged libel.

The substance of that communication was that Beardsley & Co. had been sued, that J. Beardsley's wife was about to sue him for a divorce and alimony, in consequence of which he had put his property out of his hands, and that their store would probably be closed at once if the suit was brought.

To a declaration setting this out as the foundation of the action the defendant pleaded the general issue and gave notice under the practice in New York of special matter to be offered in evidence. This special matter presented two defenses: 1st, an attempt to bring the publication of the libelous words within the rule which protects privileged communications, and 2d, an assertion of the truth of the words published. This latter plea alone was the important one in the case as finally here decided.

On the trial, the plaintiffs offered in evidence and proposed to read the whole record of a suit for divorce, brought in the name of John Beardsley's wife, against him in Huron County Ohio -- a suit which it seemed had been commenced some four or five months after the alleged publication of the libelous matter for which the suit below was brought, and some

Page 77 U. S. 429

time also after the commencement of the suit itself. The petition of the wife in the record thus offered to be read alleged adultery. An answer of Beardsley (not sworn to) followed, denying the adultery and alleging that the suit was not instituted by his wife or for her benefit, but that it was instituted by Tappan himself and by his counsel (through one Kennan, who, it was alleged, had been the secret informer and agent in Norwalk of Tappan and his commercial agency) for the sole purpose of making good the slander which Tappan had published against Beardsley on that subject. With this petition and answer were the depositions of several witnesses, most of the depositions tending to show that Beardsley's wife was a woman of most violent, jealous, and impracticable temper, partially insane, perhaps, and that there was no ground for her petition for divorce. Finally, as part of the record, came the order of court dismissing the petition.

The circumstances under which this dismissal was made were thus disclosed in one of the depositions certified with the record in divorce and offered with it:

"S. F. Taylor, the attorney for Mrs. Beardsley, moved a continuance of the cause on the ground that some of his material witnesses were not in attendance and could not be found. The motion was opposed by John Beardsley, and he then stated to the court, as also to Mr. Taylor, that all the witnesses named in their subpoena, and particularly those whom Mr. Taylor said were absent, were then in court; that Beardsley said that he had good reason to believe that the suit was not intended to be brought to a hearing, and that at his own expense and trouble he had procured the attendance of all Mrs. Beardsley's witnesses to prevent a continuance."

"The court then overruled motion for continuance and said that if Mr. Taylor had no other reason for continuance, he must proceed to a hearing. Whereupon Mr. Taylor abandoned the suit, and it was ordered by the court to be discontinued."

Another of the depositions appended to this record in divorce and taken in that proceeding was that of Mr. S. F.

Page 77 U. S. 430

Taylor, the attorney for Mrs. Beardsley, above named, himself. It thus ran;

"S. F. Taylor, of lawful age, being by me first duly sworn, as hereinafter certified, deposes as follows:"

Question. Have you ever seen the complainant?

Answer. I cannot answer if it has any materiality in the case without revealing what belongs to me exclusively as counsel for complainant.

Question. I do not seek to draw out any confidential communications made to you as counsel; I simply want to know whether you have ever seen complainant?

Answer. I cannot answer without revealing such facts as might lead to the inference of other facts that belong to me as counsel.

Question. Do you refuse to answer the question, "Have you ever seen the complainant?"

Answer. I do, as her attorney.

Question. By whom were you retained as attorney for the complainant?

Answer. By the complainant, and by nobody else.

Question. Did she retain you in person, or by a third person?

Answer. I cannot answer that question without revealing facts which I have no right to reveal, as counsel.

Question. Have you ever seen the complainant before or since, or since the commencement of this suit?

Answer. I have seen her, or seen a person called Mrs. Beardsley.

Question. Where did you see her, and when?

Answer. I saw a lady that was called Mrs. Beardsley some time ago, but cannot tell the time when.

Question. How long ago?

Answer. I think about two years ago.

Question. Did you speak to her?

Answer. I did not.

Question. Have you ever spoken to her?

Answer. I cannot say that I have.

Question. Do you now recollect to have ever seen her except on the occasion above referred to?

Answer. I do not.

Question. Did you frame the bill in this case?

Page 77 U. S. 431

Answer. I did.

Question. Were you employed by her personally, or by some other person for her as her agent?

Answer. I cannot answer this question, in my opinion, without revealing facts that belong to me alone as counsel, and which as an attorney I have no right to reveal.

Question. I do not ask you to reveal a single confidential communication. I simply wish to know whether you are retained by the complainant in this case in person, or by some other party having an interest therein?

Answer. I have not seen the complainant in person, and I know of no other person, and have heard of none other that has any interest in this suit.

Question. Were you requested by any person to file the bill in this case?

Answer. I was spoken to on that subject, and told that complainant wanted me to act as her attorney in this case. But I was never requested to act in the matter for or on account of anyone else?

Question. By whom were you spoken to?

Answer. From the course taken in this examination, and from the declarations of defendant, I do not believe I can answer it without revealing facts that are my own property as counsel and that I have no right to reveal.

Question. You say you were spoken to to file a bill in this case; was that request a verbal or a written one?

Answer. It was verbal.

Question. Was the request made by a man or a woman?

Answer. It was a man.

Question. Where does he reside?

Answer. In Norwalk.

Question. What is his profession?

Answer. I can answer no question tending to show his identity without, in my opinion, revealing facts that I have no right to reveal as attorney.

Question. Do you know whether the person who requested you to file this bill is now or ever has been the reporter of Lewis Tappan's Commercial Agency, or Cleveland's Commercial?

Answer. I do not know anything of either of these agencies.

Question. How do you know that the person was authorized by the complainant to employ you to file a bill in this case?

Page 77 U. S. 432

Answer. I have no positive knowledge that she did authorize him.

Question. How then can you swear that you were retained by the complainant?

Answer. I can only say from the facts that I have been retained by nobody else, except in doing an errand, as I supposed that at my request the dates and circumstances necessary to file the bill, and that I think could not have been supplied by anybody else since finished, and that I have since received the names of witnesses and the facts to which they would attest in handwriting said to be hers, as I believe.

When this record in divorce, with the answer, depositions &c., was offered in evidence on the part of plaintiff, the counsel of defendant objected on several grounds, which were overruled, and then when the plaintiff's counsel proposed to read the whole record, the counsel of the defendant objected and insisted that only so much thereof as showed the nature of the suit and the time of the commencement thereof could be read, and especially that the answer of John Beardsley, the defendant therein, could not be read against the defendant in this action. The objections were overruled, and the whole of the record was read to the jury, to which action of the court the defendant's counsel excepted.

In the suit below, also, the plaintiffs called as a witness one of the clerks of Tappan's own Mercantile Agency, and proposed to ask him whether Tappan had at the time of this alleged libel an agent or correspondent in Norwalk, Ohio, and if so, who he was. Tappan's counsel objected to the question on the ground of immateriality to the issue, but, the court overruling the objection, the question was put to him. The witness now declined to answer for the reason, among others, "that his answer would tend to accuse or criminate him [the correspondent? -- REP.] in a charge of an indictable misdemeanor." The bill of exceptions proceeded:

"But the judge ruled that the witness was bound to answer the question, and on his still declining so to do, he was adjudged by the court to be guilty of a contempt of court in the face of

Page 77 U. S. 433

the court, and was sentenced to be committed to prison for his said offense, there to remain until discharged by due course of law."

The jury found a verdict for the plaintiffs $10,000, and judgment was entered accordingly. The case was now here, the questions presented for review to this Court arising from a bill of exceptions taken on the trial and relating to the objections taken by defendant to the admission of evidence and to the ruling of the court in instructing the jury.

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