#### Cherry v. Slade

From Martin.

When a record comes up to this Court, and with il, a slalom,"U by .the'clerk, that the appeal bond sent up, is taken in a penalty lesr. than that directed by the presiding Judge ; and it appears from affi davits, 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.

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; hut in all cases when the certiorari is returned, the facts may be contro - verted.

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.

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 gesta,

Gaston, in this case, suggested a diminution of the record, because it did not shew that an app.eal 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 ap~ *401¡¡mal was prayed and granted lo this Court, and an ap-poal bond, in the penalty of one thousand dollars, was died, but owing to its escaping the v* 'OolLcthu of tin •clerk, no entry was made oa the record, of the appeal. Ti?e Clerk also stated, that the appeal bond '•tus filled tip with a penalty, less, by fi\e hundred dollmnvthait that which the .lodge had directed. : this í-ro.» from tk> Clerk’s not having ¿card what amount the viadge directed as the penalty of the bond , and this error wan not discovered by the Clerk, until raer tho a<\Jouraiae»t of the Court.

A statement of ího case made for {ids Court, V/ ihw presiding Judge below, also accompanied the record, and coacludí-d with the remark, that an appeal l-j tlú i Court was prayed by the Plaintiff.

Gaston then read the afiidavit of the Clerk below, containing the same facts set forth in bis statement, and also the aiudavit of the Clerk of the County Court of Martin, confirm Lug that statement, and addin.*; that the Clerk war. absent ima the Court Jiaom, preparing a bond, when the Judge directed the bond to he in the penalty of fifteen hundred dwlhw;:, instead of one thousand, the Sinn first agreed on. Tira affidavit of the Defendant himself was thou read, and from 'is contente, it app3am* that the Defendant bad signed the bond tendered hitn bj the Clerk, as had also his securities, presuming that all was properly done ; that the Defendant and Lis secui-l* ties wore willing lo file a bond to any emouni, and that one thousand dollars was far snore titan saificiout to satisfy all the costs of the suit ¡ that as soon as lie understood there was some difficulty as to tire penalty of the bond, he executed another for £>1500, with ampio security, and now stood ready to give tejy ÍV.rihe? scciudiy this Court might require.

ihgg opposed the issuing oí a csrHorar», and contended, that the utmost that ranlti 6* done muter these eircum-*402stances, was to g'-aut a rule $ that as to the affidavits, ^lP!T > s the-Defendant, did not show that any securities were ever tendered to the Court, nor did it explain the cause of the omission ¿ it did not show that cither Cherry or his counsel was mistaken as to the amount of the tend directed by the Judge, and the ooier affidavits meivly shewed that the Clerk was mistaken.

But the Court directed a certiorari,

Henderson, Judge, remarking, that to settle the 'point of practice, it might be- well to observe, that a cer-iiorari is granted on facts uncontroverted, apparent on the record or papers before the Court $ but a rate :,s proper where, the application is made on facts not so apparent. But as, in all cases, we permit the facts í» be controverted when the certiorari is returned, it is liso same thing as granting a rule only.

On the return of the certiorari, it appeared to be an actum for slander, in charging the Plaintiff with perjury, that had been trica before Badger, Judge, in Martin Superior Court,,at its Spring sessions, 1823.

The Jury having been charged with the cause, tin? ‘ Plaintiff produced a notice to the Defendant, returned by the Sheriff executed on the 9th day of January, 1821, to take the depositions of William Wilson and others, on the 12th of 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 Edgcombe, and from Edgcombe back to Martin, and the depositions were taken under a commission issued by the Clerk of Edgvr-iifj’oe Court j they were not taken by consent of parties, and there was no special rule to take depositions in th?s cause, which prescribed the time of notice, nor did it appear <<ml there was any general rule of Edg-combe Court under which the 'depositions were taken. The presiding Judge offered to receive any evidence of *403the existence and terms of such rule, and no such evi-donee being offered, lie decided that the depositions were inadmissible. Upon the trial of the issues, it was material for tbe Defendant to shew that a certain Daniel Clierry did not reside in the county of Martin oil the 6th. of Apr;'. 1309. Testimony was given of his having removed to Ten ¡lessee in 1302, and that he was in the habit from íL ií; time up to the year ¡810, of frequently passing and rcp:t!isiu“- between Martin county and Tennessee. The «)"¡: .:¡ the i offered to prove declarations of Daniel Cherty, made in Tennesdec and Martin county, between 1302 end 1809, before any controversy arose as to ids ¡dare, of abode, explanatory of his presence in the one place, or the other. This testhnomy 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 Pkhtsff, but that taken in con-nexion with his coining, and presence, and business in Martin or Tennessee, and as explanatory thereof j that 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.

Gaston, for appellant

It is a fundamental rule of evidence, that the declarations of persons not on oath shall not be. received to establish the truth of controverted facts against any one not .parly or pri vy. The reason of the rule is not an interest in the person declaring to misrepresent, but the want of a proper sanction to compel him to speak truth ; and the only generally admitted exceptions, are in pedigree, prescription, and sometimes boundary — (S Term Rep, 707) — Mima Queen v. Hepburn, (7 Cranch — 9 Johns. 49 — 1 JPMl. 174, 186.) A question of locality is not like one of pedigree, proveable by hearsay--*404(8 East, 541) see also, 1 East, 373 — 2 ib. 29 — 2 ib. 5 4, No particular fact is to be proved by the declaration of a man not on oath — Owtram v. Morcwood, (5 Term Hep, 123.) These exceptions have been admitted from neces ■ sity — no such necessity exists in order to establish the fact here controverted — (1 Phillips, 175, 180-1.)

Another exception seems to be established' — when a person who has peculiar means of information, makes a declaration which is against his interest at the time, and he is dead, such declaration has been received' — {1 Phil. 192-195 — 10 East, 109 — 15 ib. 32 — 4 Taunt. 16, IT.) Bat if his declaration did not operate against his interest, it is not admissible — (3 Taunt. 303) But in all these cases of allowed exceptions, no declarations are admitted except of persons actually deceased at the trial— (1 Phil. 194-5 — 3 Camp. 457 — 1 Easl, 373, 375 — 3 T. Jtep. 715 — Bailer 113, 2S4.)

It is sometimes said, that there is an exception when -words are the res gesteé, or part of the res gestee — but this seems not to be accurate. The words are then received, not as evidence of the truth of what was declared, but because the speaking of the words is the fact, or part of the fact to be investigated. There may be a controversy whether A. B. at a certain time spoke certain words, and those who heard him, are of course received to prove the fact. The words spoken concurrently with an act done,, are often a part of,the act, and give it a precise and peculiar character, and therefore must be testified, not to show that the words spoken are true, but to shew that they were in fact spoken. For example' — Did A. commit an assault on B ? What he said when he laid his hands on B, will shew whether it was an angry or friendly act. Did the agent of Defendant make a certain representation in the course of a bargain ? If so, x Iiíit representation was an ingredient in the bargain— (1 Phil. 74-5.)

Perhaps, however, there is an exception to this effect. When a secret purpose, or affection of body or inind, it *405ns in be ;; veer ia used of one who mmol be examined as a. witness, on a principle of necessity, expressions and de-daralVir; which are the natural indications of suds par poso or afifertion, may bo testified to by others — (l Fiiii, 7A"Z)-~Jtomn v. I^mmrd, (6 East, 188) — Bateman v. Bails/], (ji Term Hep. 512.)

Eat neither rule nor admitted esceplion allows this on ideare. It is not to establish the fact of certain words •jpol-.c»,. hot to prove the fad. trae, which the words as-r-irrio'; i ..vui to prove litis against a iiiiio not presents white:.* port/, nor «hítt, and no way bound by what is asid, ill is; not to giro a character to any act done by words, wtfds, v,hr»her tree or false, yet-concurring wifi' ábe act, ¡¡impress oa it a distinct and precise operation, hist to draw from íhese dcc’arations an inference of fact, that what ho said of the acts was true. It is not of precise declarations accompanying particular acts, but vague declarations in maíúm to habitual acts. It is not of a secret iufjrmity, «a* concealed purpose, only thus to be go? rto to, is of a man eoinpeteut to give evidence, and aliv«. ft is in regard to transactions notorious, of many year-; comhuiasacc-

tínl Lhv deposition should have, Leen received. The ■'•¿"i of 1777, sections 39 and 40, relative to taking depositions, contains but two provisos $ 1st, that such notice of tune and placo of taking depositions shall bo given as the Court thinks' proper ; and 2d, that the other party may croes examine. Under this law, the Court which tries iho cause has as meek jurisdiction in determining on the* notice as any preceding Court, and if when the depositions are offered, is chalí appear to the Court that duo ««tico has been given, tiio act is satisfied. But at ail ovciivn, oa the particular order made in this case, ymaüíing both parties to lake out commissions, the construe! ion of Uto act contended for, should obtain $ if no-chisii| was said ms to time, it must be supposed reasona*406ble time was intended, ut resmagis valeat, &c. '3-it the time (34 days) was fully sufficient.

It was also a violation of the spirit of the act autho-rising. removals, after the cause had been sent from Martin, to remand it. to the same county.

Hogg, contra.

As to the last objection, it comer, too late after the trial. By the act of Assembly, the Judge liad full power to remove the cause to Martin, and it does not appear from the record that the Plaintiff object - ed to that eounly. lie is now too lato, after taking a chance for a verdict.

As to the doctrine of hearsay and its exceptions, I admit it fully. It does nof affcct this case.

The'true ground to be examined, is the doctrine of' ■res gestee, which 1 conceive to be substantially adoctrine of evidence of itsrif, and not as forming any exception to the general rule as to hearsay, or as having any tiling to do with it.

The declarations made in Martin by I). Cherry, wore explanatory of the. fact of his being in Martin as a resident or a visitor, and were received as such. The rule as to res gestee is this: Whenever the operations of a man’s mind are to be enquired of, as connected with his acts, they must he learned from his declarations and conduct, for in no other way can they be learned. Circumstances which accompanied his conduct or acts were necessarily received to explain an act which was otherwise dubious. These declarations were but circumstances, and indeed the strongest circumstances. Acts of the mind must determine a man’s conduct, as being evidence of one. thing or another, when the act in itself is so dubious as to be susceptible of divers interpretations; and aids of {lie mind or intentions, may be inferred from conduct, and are positively proved by declarations.

■ The Judge fold the Jury, as was the fact, that these declarations were not- evidence- of themselves to £rove *407residence, but were as part of the res gestas, tbe act oí .remora], explanatory of the bodily presence of D. Cherty iíjí ihe one place or tbe oilier. The sole enquiry was, where was 1). Cherry’s domicile ? A man’s domicile is ■where he was1 born until his removal, and the intent of Ms mind in removing his body cannot be collected from the mere fact that he has removed his body, but from his declara!Ions accompanying that act — (2 Bos. & Full. 221), in nolis• — 5 Fes. TSÜ — S Ves. IDS.)

As to tbe time for taking depositions. I know no rule that this Court can devise, as to depositions, batter than that which the Legislature has pointed out. There is reason in directing Hi t the »» Judge who grants tire commission should regulate the time csf notice ; otherwise, after the deposition was taken, the Judge who tried the cause might think the former Judge did not grant time enough. The Court has the power of enlarging or shortening the period of 20 days notice as Used by the Legislature. — (A'*. II. eh. 177.) Mail the Judge below, in the exercise of bis discretion, held 34 days too short a time, it would have been consistent enough with the rate as established by act of Assembly — (JV* II. ch. 633.)

Gaston, in reply.

There is a wide difference between, principles of evidence and rules of Court. Mas the Legislature said that there must be a precedent declaration by the Court of the length of time ? i admit that it if? most conveíiiení, but the act does not require it. A subsequent affirmance by the Court of the time of notice which has been observed, is quite sufficient, and the uniform practice has been, where a rule has beca made, to give 30 days for an adjoining Btato.

Were the declarations competent testimony ? A man’s declarations, of themselves, can never be evidence as against third persons, of tbe intent of the declarer.

But it is said these declarations accompanied particu-' lar acts. His declarations are evidence that bo said m9 *408blit not that he toM the truth in them. They are d-cla-rations of distinct facts, to aid an inference from e'.iif-r facts. i

Büt there was other testimony which might be srren.;t!i-cned by these declarations. No declarations of a third person, as to his general habits or particular purposes, can be received. If the case made in proof can si and. without them, it must — for these are neither to make e, case, nor help it.

If the objection as to removal be good' — Defendant never could have made it before this time, for he had no right to appeal from any interlocutory order made in the cause. The objection is apparent on the record.

Henderson, Judge.

It does not appear upon the record for what cause the 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 j 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 ; bat it appearing in 1his case from an entry on the record, that commissions were to issue to both parties, and nothing being said about ¡lo-tice, it was thereby virtually agreed by the parties, that if they should disagree on this point, it should he decided by the Judge who presided when they were offered ip evidence, for who else was there to decide 1 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 5 but it may he, that the Judge acted on the other ground, to-wit, he *409thought the time of notice too short — if so, this Court cannot interfere.

I think that the declarations of Cherry made in the absence of the Plaintiff, ought not to ha1.been received, but had it been a mere abstract queslior as to the residence of Cherry, that fact depending so^Mich on intent, declarations accompanying and explain?lory of acts were admissible* 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 tho oath that the Plaintiff had sworn to, jo-wit, that he was a resident of Martin, w as falso and corrupt. The mero declarations of Chewy made in his absence, and which ne-v"!' came in 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, hv•hose declarations, (for by offering the declarations, it is admitted that the evidence is not sufficient without them,) they will after-wards 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 any thing, and yet what power could efface, its impressions from the Jury. It would be in vain that the Judge should tell Ihcui to disregard it; the impression is ¡nade upon their minds, and it cannot be effaced. I ibeveforo think that a new trial should be granted.

Taylor, Chief-Justice, concurred.

Hall, Judge,

dissentients. — I think as long as an order had been made in this case, that the parties might proceed to take depositions, it was competent for the Court on the trial of the cause, to judge of the reasonableness of the notice given of the time of taking them ; *410however, it is not necessary to give any-opinion on this point, as the Court niig'ht have been of opinion, that the notice g-iven was not reasonable, and of that, 1 think that Court had the sole right of judging.

With respect to the declarations of Daniel Cherrys I think they weüü properly received, under the restrictions laid upon 'them by the Court. They are not evidence of themselves, but only intended io explain the conduct and movements of the person from whom they came. It, like all other competent evidence, is open to observation when received, but no general rule can be laid down respecting it. If Daniel Cherry’s declarations were different from the evidence given by the present Plaintiff in the former suit, in which he was sworn as a witness, it might be proper to ascertain whether Darling Cherry Ifttd had a knowledge of these declara. tion — if he had not, they should operate but little against him, for it might be, that Daniel said he was and really was, a citizen of Tennessee, and Darling might have believed be was a citizen of Martin. But these are considerations for the Court and Jury. From the consideration of all the circumstances in this case, I think the rule for a new trial should be discharged.