1. Where a notice to take depositions at a place specified
informed the opposite party that they would be taken on a day
named, and that the taking would be adjourned "from day to day
until completed," and, a portion of the witnesses, having been
examined (at whose examination the opposite party with his counsel
attended), the taking of the examination of the others was
adjourned until the next day, when it was again adjourned until the
next succeeding day, and so on, from day to day till a particular
day, when the taking of the testimony was completed in
Page 84 U. S. 587
the absence of both the opposite party and his counsel,
held that an exclusion of the deposition on the ground of
want of sufficient notice was error.
2. Where the purpose of testimony is to impeach a witness for
want of veracity, it is not improper to ask the person on the stand
what is the general "reputation" for truth of the witness sought to
be impeached. It is even more proper than to ask what is his
general "character" for truth, though the question is sometimes
asked in the latter form, the word "character" being then used as
synonymous with "reputation."
3. A notice without date, given to a party that depositions will
be taken "on the 12th of September" (no year mentioned), at the
office of a person named, "in the
City of Guilford, State
of Maine," is insufficient to let in a deposition taken on the 12th
of September, 1867, "in the
Town of Guilford," it not
appearing whether the Town or Township of Guilford was the same as
the City of Guilford, and the opposite party not having attended at
the taking of the depositions, and so waived the defect in the
notice.
Knode sued Williamson in the court below in trespass.
In the course of the trial, the plaintiff offered in evidence
the deposition of J. A. Chapline, which the court excluded.
He also offered in evidence the depositions of certain persons,
Biddle, Jamieson, and others, which the court equally excluded.
The defendant, on the other hand, offered in evidence the
deposition of a certain Ellis, which the court admitted.
Verdict and judgment having gone for the defendant, the
plaintiff brought the case here on exceptions to the exclusion of
the two first-mentioned depositions and the admission of the
last-mentioned one.
MR. JUSTICE STRONG stated the particular circumstances under
which the respective depositions that were the subject of the
court's action complained of were taken, and delivered the opinion
of the Court on each case.
We think the district court erred in excluding the
deposition
Page 84 U. S. 588
of Chapline. It had been taken in the cause, in pursuance of
notice that, together with the depositions of other witnesses, it
would be taken on the 11th day of September, 1869. The notice also
informed the defendant that taking of the depositions would be
adjourned from day to day until they were completed. So long as
such adjournments were in fact made, he was therefore informed of
the times when he might attend for cross-examination. On the day
first designated, he did attend, with his counsel, and some
depositions were taken. But all the witnesses not having been
examined, the taking was adjourned until the next day, when it was
again adjourned until the next succeeding day, and so on, from day
to day, until September 18th, when the deposition of Mr. Chapline
was taken in the absence of both the defendant and his counsel. All
the adjournments, however, were from day to day, and consequently
it was the duty of the defendant to take notice that depositions
might be taken on any day to which an adjournment was made.
We think also the court erred in rejecting the depositions of
Biddle, Jamieson, and others, mentioned in the bill of exceptions.
They were offered to impeach the character or reputation of Thomas
Noakes, a witness examined on behalf of the defendant. They had
been taken regularly, and the only objection urged against their
admissibility is that the witnesses were asked if they knew the
general "reputation" of Noakes for truth, instead of being asked
whether they knew his general "character." The question was
precisely what it should have been. It is true that in many cases,
it has been said, the regular mode of examining is to inquire
whether the witness knows the general character of the person whom
it is intended to impeach, but in all such cases the word character
is used as synonymous with reputation. What is wanted is the common
opinion, that in which there is general concurrence, in other
words, general reputation or character attributed. That is presumed
to be indicative of actual character, and hence it is regarded as
of importance when the credibility of a witness is in question.
Page 84 U. S. 589
The only remaining assignment of error relates to the admission
of the deposition of Ellis. It had been taken under a commission
sent to the State of Maine, in another case between the same
parties, in which the cause of action was the same as in the
present case, but it had not been used in the trial of that other
case. It also appeared that the witness was beyond the district,
and a resident of another state, when his deposition was offered.
But there was a material defect in the notice given to the
plaintiff of the time and place of taking, which was not waived by
any attendance before the commissioner. The notice was without
date, addressed to the attorney of the plaintiff, informing him
that the deposition would be taken on the 12th of September (year
not mentioned), at the office of Henry Hudson, in the City of
Guilford, State of Maine, between certain hours, and that if from
any cause the taking of the deposition should not be commenced on
that day, or, if commenced, should not be concluded, the taking
thereof would be adjourned and continued from day to day, or from
time to time, at the same place, and between the same hours, until
completed. No other notice, either of the commission or of the time
and place of taking the deposition, appears to have been given. It
was taken, not in the City of Guilford, but in the Town of
Guilford, on the 12th day of September, 1867. Whether the Town or
Township of Guilford is the same as the City of Guilford does not
appear. But a party who attempts to use the deposition of an absent
witness must show that he has given his adversary an opportunity to
cross-examine by a notice that is definite and certain, unless the
failure to give such notice has been waived. Such was not the
notice given in this case, and the deposition was, therefore,
erroneously received in evidence.
Judgment reversed and a new trial awarded.
