Opinion
04-22-1889
DIGNAN v. DIGNAN.
W. D. Holt, for the motion. J. S. Aitkin, contra.
On motion for order to the master, after having made his report, to take further testimony.
W. D. Holt, for the motion. J. S. Aitkin, contra.
BIRD, V. C. The bill in this case is filed by the son against his father, to call the father to an account of certain partnership transactions between them. A reference was made to a master, and, after an apparently full and complete examination of witnesses, and a patient and exhaustive examination of the case, he made his report; and when his report was about ready to be filed, the defendant, being the father, applies to the court by petition, verified by his affidavit, for leave to open the case, and to produce further testimony. It appears by the petition and affidavit that he has discoverednumerous checks and receipts which, if taken into the account and properly charged, would largely reduce the amount which the master has found against him. In his affidavit he states that these were not offered in evidence before "through error and inadvertence;" "that before and during the time of taking the testimony before a master he tried to collect all the papers and vouchers that would throw any light upon the investigation;" and that in doing this he relied upon his book-keeper and clerk; "that when said testimony closed he verily believed that all the testimony in his possession had been offered, and many of the checks and vouchers had been lost sight of by the deponent, and were not produced for that reason at the hearing." Counsel for complainant most earnestly objects, not only to the introduction of any oral testimony, but to the checks or other vouchers, because it would be in violation of the long and well established rule not to open the testimony in case the newly-discovered evidence is simply cumulative, as this is alleged to be, nor in case of laches upon the part of the party applying. The laches of the petitioner I have regarded as of great importance in this case. He was not only the the father of the complainant, but the active and controlling manager of the whole partnership business, doing almost everything according to his own liking. But, while this is so, I cannot justify myself in allowing laches, or the most extreme carelessness in keeping accounts, to stand in the way of supplying the proof that may appear to be necessary to put upon a proper basis the rights of all the parties, especially when that proof is documentary, or in the nature of written instruments, unless it appears that by admitting such testimony injustice will be done. It seems to me that in such case, the testimony being of the nature of written evidence, no greater harm can follow from admitting it now than to have admitted it at any stage prior to the closing of the testimony before the master; since the great objection to such testimony is that it is the work of subornation, or is manufactured, cannot be taken thereto. By a reference to the case of Mulock v. Mulock, 28 N. J. Eq. 15, which received great consideration, it seems to be well settled that testimony will be opened for the purpose of proving and admitting exhibits and documentary evidence, and for the purpose of issuing a new commission to examine witnesses as to new matters arising on the hearing; and in case a witness was convicted of perjury after the bearing, and in case a point was referred to law to be tried, and then to report, and a commission was asked for to examine an aged witness, who was not discovered until that time, and who was unable to travel. And from this same case it seems to be settled that because the proof offered may be said to be merely cumulative, the application is not necessarily refused; and I take it that this is for the best of reasons, since to some extent in almost every case all additional testimony may be regarded as cumulative. In this case the books of account offered show that the defendant (this petitioner) is chargeable with several large sums of money; if the checks and other vouchers which have not been offered, but which it is proposed to offer, if the court permits, are admitted with such evidence as will explain their true purport, and use, or application, it will appear that the defendant ought not to be so charged. When the defendant was examined with respect to these matters, or many of them, he said that he was unable to give any explanation of them. He then did not have any of the vouchers at hand, but has discovered them since. I shall advise that the testimony be opened, and that the petitioner be permitted to offer the inventory, the checks, notes of hand, and due-bills, and the receipts which are named in his petition, with such other testimony as may be necessary to show what use or application was made of said checks and notes or due-bills, or the proceeds thereof, and who got the benefit of them, and to them the order will be limited. The complainant will be at liberty to offer such testimony as he may desire to contradict or explain any testimony offered by the defendant. While I have been forcibly reminded of the value of the doctrine of laches as upheld in courts of equity as illustrated by the negligence of the defendant in this case, and have been impressed with the conviction that the negligence shown by the defendant in his method of doing business might reasonably be expected to work greater injustice to his son (the complainant) than to himself by careless accounts and the loss of other vouchers, yet I cannot but remember that even courts of law are liberal in granting new trials upon the discovery of such testimony, as is shown in the case of Mulock v. Mulock, supra, and as is distinctly pointed out by the master of the rolls in Countess of Gainsborough v. Gifford, 2 P. Wms. 424, in which he says: "I do agree the court ought to be very tender how they help any defendant after a trial at law, in a matter where such defendant had an opportunity to defend himself. But still such cases there are in which equity will relieve after a verdict, in a matter where the defendant at law might properly have defended himself; as, if the plaintiff at law recovers a debt against the defendant, and the defendant afterwards finds a receipt under the plaintiff's own hand for the very money in question. Here the plaintiff recovered a verdict against conscience, and though the receipts were in the defendant's own custody, yet he, not then being apprised of it, seems entitled to the aid of equity; it being against conscience that the plaintiff should be twice paid the same debt." See, also, Hewes v. Hewes, 4 Sim. 1; Gregoy v. Marychurch, 12 Beav. 275, 19 Law J. Ch. (N. S.) 77, which is a very instructive case. The costs of this application and order must be paid by the petitioner.