Yale v. Comstock

112 Mass. 267

Opinion

Morton, J.

It is an established rule of law that evidence of what a deceased witness testified on a former trial is competent in any subsequent trial of the same issue, between the same parties. And privies in estate are deemed to be the same parties within this rule. Commonwealth v. Richards, 18 Pick. 434. Warren v. Nichols, 6 Met. 261. Jackson v. Lawson, 15 Johns. 539. Jackson v. Crissey, 3 Wend. 251. Under this rule the presiding judge rightly admitted evidence of what Marshall Brace testified in the former trial of the cases between Brace and Yale. The parties in this suit derive their titles respectively from said Yale and Brace, and as to them are privies in estate. The court found, and it is not disputed, that one of the issues in the former suits was the same as one of the issues in this suit. Brace being dead, his testimony at the former trial upon this issue was competent. It has been held with great strictness in this Commonwealth, that the witness called to prove what a deceased witness testified in a former trial must be able to state the language in which the former testimony was given substantially and in all material particulars. Warren v. Nichols, ubi supra.

It is clear that the witness called to prove the testimony of Brace fulfilled this condition. Acting as a master in chancery, he took the testimony in writing, read it carefully to the witness, and made a report thereof to the court. He identified the report, and testified that “ he intended to state the testimony of Marshall Brace in the exact language of said Brace, and believed that it was so stated in said report.” No case could arise, except that of a deposition signed by the witness, in which more satisfactory guarantees could he furnished that the exact testimony of the deceased witness is laid before the jury.

The point made by the complainant at the argument, that the question whether the witness could state the exact testimony of Brace should have been submitted to the jury, was not raised at the trial, is not open upon this bill of exceptions, and need not be considered. Exceptions overruled.