Williams vs. Brummel, 4 Ark. 129

By the Court, Dickinson, 3. The first question which arises is, whether the reading to a party the notice to take depositions, is a sufficient service under our statute regulating the practice in such cases. The act declares, that the party intending to take depositions shall cause notice, in writing, of the lime and place of taking, to be served upon the adverse party, if he resides in the county in which the suit is pending; and, if not, then on his attorney of record in the cause. ■ Rev. St. sec. 6, 325. It is contended that this

section is regulated and restrained by the 21st and 22(1 sections of an- act regulating the practice at law, (Rev. St. 622), which declares, that any notice, in the commencement or progress of a suit, may be served by any officer authorized to serve process, or by any other person who may bo a competent witness upon the trial; and that the notice shall be served in like manner as writs of summons; and that, by the 13th

section of the same act, writs of summons may be served by reading or delivering a copy thereof. By inspecting .these several provisions, it will be perceived that they relate to different subjects, and that the tw’o acts are not at all contradictory or inconsistent with each other. They are not in pari materia, and of course should not be taken together. The first act relates to notice being given to take depositions; the latter respects the regulation of notice of other orders, either in the commencement or progress of a suit.

In such cases, the notice can be served by reading or giving a copy; and the general words of the act do not extend to the service of notice for the taking of depositions. The question, then, has to be determined upon the act itself, in regard to the service of notice. What is the true meaning of that act? Does the statute mean a notice by reading the same, or leaving a copy ? It unquestionably must be a notice in writing.

A notice in writing, according to the sense of the statute, surely means, that an officer, or some competent person, must leave with the party a written notice of the time and place of taking the depositions. “In no instance,” says Justice Story, in Hart vs. Gray, 3 Sumn. 339, which is plainly similar to the one now before us, “ can any case be produced where a notice, required to be served in writing, has been held valid, unless the service has been by the delivery of the paper itself, or a copy in writing.” The reason of the rule is most obvious and just.

The purpose of the notice is to apprize the adverse party of the time and place, so that he can attend, and cross-examine the witnesses, or make whatever other defence the law allows. To read a notice, instead of giving the original or leaving a copy, would be, in effect, to take away from him the advantages of a notice altogether. It would be substituting his frail and imperfect memory, as to time, and place, and names, instead of leaving him the written evidence of these facts.

The reading would be of no avail, if that was sufficient: the officer certainly would not be bound to give the party an opportunity of copying it, or taking a memorandum of its contents. If there should be different times and places, it would be wholly impossible for a party to remember, with accuracy, these facts, which might be every way material for his defence. The Court, therefore, erred in receiving the depositions. We might here close our inquiries; for, if the depositions were improperly admitted, there is no sufficient evidence left to warrant the recovery.

We deem it proper, however, to remark, that the Court erred in admitting parol evidence to establish the contents of notes, which were not produced, nor their absence accounted for, on the trial. These notes had been prosecuted to judgment in the courts of Kentucky, and a judicial record existed of that fact. This Court has decided that a judicial record is incapable of being proved in any other way except by itself, or a regularly certified copy from the rolls. This principle is too plain and familiar to require further remark.

There being no ground laid for the non-production of the notes, or that of the judicial records, of course it was error to permit any testimony to go, either in regard to the amounts or dates of the notes or judicial records, or any thing else connected with them. There is another question still remaining to be decided. Motley is shown to be the partner of Williams, the defendant in the action, at the time the debt was contracted for which the suit was brought. There is some conflict in regard to the competency of lesti-mony thus situated. The better opinion, however, seems to be, that the witness is incompetent.

It is certainly true, that a contingent interest does not affect the competency of a witness. That principle, we apprehend, has no application in the present instance. If the party here is disqualified, it is upon the ground that he has an interest-in the event of the suit, which, although it may never be asserted against him, nevertheless operates; and that he is, in fact, deposing in his own favor, and charging the whole debt upon his partner, when he is equally bound for his proportion. Were his interest equal, then his evidence would be admissible.

He would, in truth, have no interest, for the law would consider him as standing indifferent with regard to the parties; but v/here his interest must vary with the verdict, the witness is exposed to a different responsibility. He ought not, then, to be permitted to give evidence for the party whose success would leave him with a diminished responsibility. It is no answer to this argument, that the witness may not be called to make contribution. He is under a legal liability to contribute; and the law supposes a party will claim what is legally and equitably due him.

His competency can only be restored upon the ground of a release, or that he has a general or specific lien for an indemnity, which is certain and fully adequate to remunerate him, and which cannot be affected by the verdict. In Connor vs. Kasee, 5 Serg. & R. 371, the Court, after laying down the rule upon the subject, remark, that “ where the verdict may create a new responsibility, in favor of or against the witness, or increase or decrease an existing one, he ought to be rejected.” Such an interest is not deemed contingent. It is merely uncertain when it will become operative. In the case of Buckland vs.

Tankard, 5 T. R. 578, the action was by the endorsee of a bill of exchange against the acceptor. The bill was drawn upon the defendant, and by him accepted to pay Grexon, or his order, and endorsed in blank. Grexon was called as a witness for the defendant, to prove that the plaintiff had no property in the bill, and that it was left with him to raise money from the defendant.

He was objected to, as an interested witness; and Lord Kewyon, Chief Justice, said: “ The whole question turns upon this, whether the witness’ situation would or would not be bettered by the event of the verdict;” and he decided that Iht witness was properly rejected. This case goes, perhaps, further than any others in exclusion of a witness, upon the ground of interest, but we do not find that it has ever been overruled. In Marquand vs. Webb, 16 J.

R., Spencer, Justice, who delivered the opinion of the Court, said, that “ the witness called was undoubtedly interested to render the burden upon himself as light as possible, and to throw it on the defendant.

The witness being, by his own confession, a part owner, would be answerable in contribution, and he would thereby mitigate his own loss.” The principle seems to be this, that wherever a fact is to be proved by a witness, and such fact be favorable to the party who calls him, and the witness would derive a certain advantage from establishing it in the way proposed, he cannot be heard, «The rule here laid down, which will be found fully supported by all the authorities, especially in Hudson vs. Robinson, 4 Maude & Selwyn, 475, and in Benedict vs.

Hecox, 18 Wend. 510, and the cases there cited, demonstrate that Motley was an incompetent witness. In the case now under consideration, he was called as a witness, to prove that Williams was his partner, which fact he establishes, and that both he and Williams were jointly liable to Brummel for money paid by him, as their security, upon certain notes, which were afterwards sued for and recovered by Buckner, and that Brummel paid them.

The payment of these notes constitutes the foundation of Brummel’s claim, and, upon them, Motley, as well as Williams, is liable, and he is called in favor of Brummel, to charge Williams with the whole debt. He is, therefore, evidently interested, being liable for the whole debt to Brummel, unless he can charge Williams, by his testimony, with one-half. He is then giving evidence to diminish his own responsibility, and has, of course, a direct interest in favor of the party for whom he is testifying. Therefore there'was manifest error in the Court in admitting Motley’s deposition. Judgment reversed.