Opinion
June Term, 1823.
1. When a record comes up to this Court, and with it a statement by the clerk that the appeal bond sent up is taken in a penalty less than that directed by the presiding judge, and it appears from affidavits that the penalty inserted in the bond was so inserted from a misunderstanding on the part of the clerk, the Court will consider the bond sent up as an appeal bond, if it appear that the penalty is sufficiently large.
2. A certiorari is granted by this Court, on facts uncontroverted, apparent on the records, or papers before the Court; but a rule is proper when the application is made on facts not so apparent. But in all cases when the certiorari is returned the facts may be controverted.
3. In ordinary cases, fixing the time of notice to take depositions belongs to the judge who orders commissions; but where it appeared from the record that an order was made granting commissions, but fixing no time of notice, it was Held, that if the parties disagreed on this point the judge who presided when the depositions were offered should determine on the sufficiency of the notice.
4. In an action for slander, in charging the defendant with having sworn falsely as to the residence of an individual, declarations made by that individual as to his residence, not in the presence of the plaintiff, are inadmissible as evidence against him; but on a mere abstract question as to the residence of an individual, that fact depends so much on intent that declarations made by the individual, accompanying and explanatory of his bodily presence, are admissible as part of the res gestae.
ACTION for slander tried before Badger, J., at Spring Term, 1823, of MARTIN.
Gaston for appellant.
Hogg contra.
Gaston, in this case, suggested a diminution of the record because it did not show that an appeal was granted until after the adjournment of the court below, and moved for a certiorari.
The record stated that the issues in the cause were submitted to a jury, who found a verdict for the defendant; that a motion was made for a new trial; that the motion was overruled, and judgment rendered. These facts were officially certified by the clerk under seal, and then followed a statement by the clerk that an appeal was prayed and granted to this Court, and an appeal bond in the penalty of $1,000 was filed, but, owing to its escaping the recollection of the clerk, (401) no entry of the appeal was made on the record. The clerk also stated that the appeal bond was filled up with a penalty less by $500 than that which the judge had directed, which arose from the clerk's not having heard what amount the judge directed as the penalty of the bond, and this error was not discovered by the clerk until after the adjournment of the court.
A statement of the case made for this Court by the presiding judge below also accompanied the record and concluded with the remark that an appeal to this Court was prayed by the plaintiff.
Gaston then read the affidavit of the clerk below, containing the same facts set forth in his statement, and also the affidavit of the clerk of the county court of Martin, confirming that statement, and adding that the clerk was absent from the court room, preparing a bond when the judge directed the bond to be in the penalty of $1,500, instead of $1,000, the sum first agreed on. The affidavit of the defendant himself was then read, and from its contents it appeared that the defendant had signed the bond tendered him by the clerk, as had also his securities, presuming that all was properly done; that the defendant and his securities were willing to file a bond to any amount, and that $1,000 was far more than sufficient to satisfy all the costs of the suit; that as soon as he understood there was some difficulty as to the penalty of the bond he executed another for $1,500, with ample security, and now stood ready to give any further security this Court might require.
Hogg opposed the issuing of a certiorari and contended that the utmost that could be done under these circumstances was to grant a rule; that as to the affidavits, that of Cherry, the defendant, did not show that any securities were ever tendered to the court, nor (402) did it explain the cause of the omission; it did not show that either Cherry or his counsel was mistaken as to the amount of the bond directed by the judge, and the other affidavits merely showed that the clerk was mistaken.
But the Court directed a certiorari.
remarking that, to settle the point of practice, it might be well to observe that a certiorari is granted on facts uncontroverted, apparent on the record or papers before the Court, but a rule is proper where the application is made on facts not so apparent. But as in all cases we permit the facts to be controverted when the certiorari is returned, it is the same thing as granting a rule only.
On the return of the certiorari it appeared to be an action for slander, in charging the plaintiff with perjury, that had been tried before Badger, J., at MARTIN Spring Term, 1823.
The jury having been charged with the cause, the plaintiff produced a notice to the defendant, returned by the sheriff executed on 9 January, 1821, to take the depositions of William Wilson and others on 12 February, 1821, at the house of Daniel Cherry, in Wilson County, State of Tennessee, and offered to read the depositions taken accordingly. This suit had been removed originally from Martin to Edgecombe, and from Edgecombe back to Martin, and the depositions were taken under a commission issued by the clerk of Edgecombe court. They were not taken by consent of parties, and there was no special rule to take depositions in this cause which prescribed the time of notice, nor did it appear that there was any general rule of Edgecombe court under which the depositions were taken. The presiding judge offered to receive any evidence of the existence and (403) terms of such rule, and no such evidence being offered, he decided that the depositions were inadmissible. Upon the trial of the issues it was material for the defendant to show that a certain Daniel Cherry did not reside in the county of Martin on 6 April, 1809. Testimony was given of his having removed to Tennessee in 1802, and that he was in the habit, from that time up to 1810, of frequently passing and repassing between Martin County and Tennessee. The defendant then offered to prove declarations of Daniel Cherry, made in Tennessee and Martin County, between 1802 and 1809, before any controversy arose as to his place of abode, explanatory of his presence in the one place or the other. This testimony was objected to by plaintiff, but received by the court, and the jury was instructed that these declarations were not evidence of themselves against the plaintiff, but that, taken in connection with his coming and presence and business in Martin or Tennessee, and as explanatory thereof, they were proper to go to the jury, and from them they were at liberty to infer residence from the facts and declarations taken together, if satisfactory to them. A verdict was returned for the defendant, and a new trial was moved
for, because the depositions were rejected and the declarations of Daniel Cherry received. A new trial was refused; judgment and appeal.
It does not appear upon the record for what cause the (408) depositions were rejected. If because the presiding judge conceived that in this case he had not the power to decide on the question of notice, I think he erred, and that this Court can interfere; but if he thought the notice too short, it was matter for his discretion, and this Court cannot interfere. I say in this case, for in ordinary cases the question of fixing the time of notice belongs to the judge or court which orders the commissions; but it appearing in this case from an entry on the record that commissions were to issue to both parties, and nothing being said about notice, it was thereby virtually agreed by the parties that, if they should disagree on this point, it should be decided by the judge who presided when they were offered in evidence; for who else was there to decide? And, besides, if the law was so imperative that the consent of the parties could not confer this power, the court would grant a new trial as the only mode by which one party should not obtain an advantage by violating his agreement relative to the conducting of the cause; but it may be that the judge acted on the other ground, to wit, he though the time of notice too short; if so, this Court cannot interfere. (409)
I think that the declarations of Cherry made in the absence of the plaintiff ought not to have been received, but had it been a mere abstract question as to the residence of Cherry, that fact depending so much on intent, declarations accompanying and explanatory of acts were admissible, for then they are properly a part of the thing done; but the question here was not whether Cherry resided in Martin or Tennessee, but whether the oath that the plaintiff had sworn to, to wit, that he was a resident of Martin, was false and corrupt. The mere declarations of Cherry, made in his absence and which never came to the knowledge of the plaintiff, ought not to affect him; but it is said that, after having proven Cherry's residence not to be in Martin by these declarations (for by offering the declarations it is admitted that the evidence is not sufficient without them), they will afterwards bring home a knowledge of these declarations to the plaintiff. The same evidence which would do this would prove that Cherry made them; such, therefore, could not be their object, but to mislead, for if they should fail to bring the knowledge home to Cherry the evidence ought not to weigh anything, and yet what power could efface its impressions from the jury. It would be in vain that the judge should tell them to disregard it; the impression is made upon their minds and it cannot be effaced. I therefore think that a new trial should be granted.
TAYLOR, C. J., concurred.