Livingston v. Cox

8 Watts & Serg. 61

• Court: Supreme Court of Pennsylvania
• Decided: September 15, 1844
• Status: Published

Opinion

Per Curiam.

Notes of evidence, taken by the judge in the course of a trial, are like the notes of counsel — memoranda for private use. They are no part of the record, except where they are incorporated in a bill of exceptions; and then only for purposes of review. It is no part of the judge’s duty to take down ■the testimony accurately, or at all; and his notes, therefore, have not the sanction of his official oath. But testimony is to be received only when it comes under the sanction of a judicial oath, which is dispensed with only in very special cases. Without this, these notes would not have been received in the judge’s lifetime; and by what rule of analogy can they become competent at his death? In the estimation of the law, the credibility which is vouched by a sacrifice of interest to truth, stands next to that which is vouched by an oath; consequently memoranda which were to the disadvantage of the party when they were made, are of necessity competent at his death, when nothing better remains: and this is one of the few exceptions to the preceding rule. There was no such voucher here. And such evidence would be extremely dangerous. The accuracy of a note-taker depends on his liability, patience, perseverance, and power to concentrate his attention on the point immediately before his eyes; but a judge who thinks he can discern the turning point at an early stage of the cause, will be apt to confine his care to those parts of the testimony which seem to bear more directly on it, and it would be unsafe to take his sketch of a part for even an outline of the whole. It is the habit, moreover, of some note-takers to write down testimony as it drops from the witnesses, word for word ; while others, considering that their notes are taken not to perpetuate the evidence, but merely to serve for the occasion, content themselves with the substance. There is great difference in this respect; and notes of testimony ought to come to us fortified with the recollection, or at least with some account of the habitual accuracy, of the note-taker. Mr Dunlop testified that he believed the notes of Judge Dallas contained substantially what was said by the witness; but he did not undertake to testify positively, nor was he competent to do so.

Neither was Mr Mahon’s belief that Mr Livingston had judiciously exercised the professional discretion necessarily vested in him, in pursuit of the plaintiff’s demand against Dubbs. The proper exercise of such discretion depends not on technical -skill, and it is therefore not a subject for the opinion of an expert.

Judgment reversed.