Clark v. Dibble, 16 Wend. 601

By the Court, Bronson, J. The objection made on the argument that the deposition of Mrs. Myers should have been taken under the first, instead of the fifth

article of the statute, in reference to the taking of testimony conditionally, 2 R. S. 391, Art. 1 and 5, was not raised at the trial, and cannot therefore be alleged for error. The same answer may be given to the objections that the affidavit on which the examinati.on was ordered was insufficient, and that there was no proof of the service of the judge’s order, directing the examination of the witness. The only objection taken in the court below was, that sufficient evidence of the inability of the witness to attend the trial had not been given to authorize the reading of the deposition in evidence.

The statute declares that the deposition in such cases, or a certified copy of it, may be given in evidence “ upon due proof of the death or insanity of the witness examined pursuant to the foregoing provisions, or of the inability of such witness to attend such trial by reason of old age, sickness, or settled infirmity.” 2 R. S. 399, § 39. The witness was ill at the time of the trial, and in a situation which rendered it highly improper that any attempt should be made to carry her to the place where the court was held. I think the deposition was properly received.

It is true that the plaintiff might have omitted to try his cause until the next term—this inability of the witness to attend, would have been a sufficient excuse for not proceeding at that time, even if he were under a stipulation to try; but he would in that case have been subjected to delay, and possibly to expense. The statute authorizes the reading of the deposition on proof of the inability of the witness to attend, by reason either of sickness or settled infirmity; and I think it enough that the witness was, at the time, too ill to attend the trial, although her sickness was only of a temporary character.

The court decided properly, that in order to justify the slander, the evidence must be sufficient to convict the plaintiff if he were on trial for perjury. Woodbeck v. Keller, 6 Cowen, 118. The charge of the court to the jury was substantially correct. If Myers Clark had settled their partnership transactions and struck a balance which Clark promised to pay, Myers might sue at law to recover that balance ; and it would not vary the case if, through accident or otherwise, some trifling matters between the partners and third persons were left unadjusted. Nothing like a justification of the slander was made out.

On the settlement of the appeal, severalfsmall demands due from the firm to third persons, were either paid or assumed equally between the parties. This does not disprove what Dibble said in relation t0 or’S’nal settlement—that Clark was to pay the partnership debts. He may have agreed to pay them all, and yet Myers, for the sake of putting an end to the litigation, may afterwards have agreed to pay a part of the amount.

The evidence concerning the plank, confirmed the testimony of Dibble—save, that some of the witnesses said that if there was any deficiency in the' plank, the .partners were to make it up between them; while others said that Clark was to make good any deficiency if all the plank were not found. None of them deny what Dibble testified, that Clark was to look up the -plank and return them to Bushnell, of whom they had been borrowed. Evidence of a similar character was given about a whiffle-tree that had also been borrowed.

Upon such proof as this, the defendant insisted that the settlement was not final and entire, and that the plaintiff was guilty of perjury, in swearing that there was a full and final settlement between the parties. There is no color for this pretence. If both parties were to share any loss which might happen from not finding all the plank, and if they were both answerable for the return of the whiffle-tree to the owner, the settlement was, nevertheless, full and final.

The very fact that the parties talked about such trifles, proves that they were more particular in attempting to render the adjustment final, than is usual on such occasions. And besides, it does not appear that any question was put to Dibble in relation to those matters. There was no error in the proceedings. Judgment affirmed.