The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-02-19
suld not be compelled by the ordinary process Of

law
,sc6gnissd by law rs competent in it, nature te,
prove the facs, and sufficient to prma tse't es ~b.
The witness Corbyn does not state where ,e lived,
how often be had BEEN, in the habit Of eing Strs
kosch NOR that his relations with him nor that his
cwn BUSINESS, was such that he wc>ald have bsen
likely TO have seen him had be been In the CITY
during the two or three weeks feceding the trial
he does not appear to haze even inquired when
Etrskoech left for Cincinnati. For anght that the
wife Of the latter is testified to have said he might
- well have left tie previous day before the cause
Hss noticed for trial.
The statute requires proof of more than the &c
tnal absence OK the witness from the State on the
day the action Ia tried. Such continued absence
must DO proved, that ordinary diligence to procure
his attendance by process OF law would be inef-
The evidence to give right to read the depo-
uition must DO such as would make 1t erroneous to
Giving TO lie declarations of Strakosch's wife the
fullest effect, one can conjecture from 1t when
Ssrakosch left the State. No good reason can be
asngned for receiving her declarations as proof,
when she might have been called 70 testify TO the
:. al # it was IS she Is represented 70 A''s ''''
The statute, by requiring the fact to be "sat,s-
factoriy proved,n should not be construed to admit
Of mere 6ea,say evidence, when direct and eompe-
tent evidence appears to have been a. easily attain
able.
was taken and cause tried before tie existing sta
tute was enacted, Ga. 49, The deposition was
taken In August, 1898, and the cause was tried In
January, 1922 The plaintiff testified to the court
that the witness immediately after being examined,
and expected to leave the States that previously he
was In the habit Of seeing him, but had not seen
him since. I'D. 49, He wns transient person;
had no fixed habitation anywhere, and was jour
neyman carpenter, seeking employment.
That was held sufficient. In jackson vs. Rice,
g Wend., 1907 deposition Of Richard Harrison,
tUkc nd art RI ofr1oko touk{v IT T.
1856, was offered in evidence, and rejecsed. The
preliminary proof was that Of witness who proved
that MIR. Harrison was between seventy.fve and
nom the Ill state OF his health, and the infrmtiee
consequent upon his advanced age, he was unable
% attend ct the circuit as witness. He had not,
so Mr. tnaI II " aud
The deposition was rejected. The Court said,
''for aueht that appeared, be might, although so
years Of sge, have attended the court At all
events, the Judge was not bound to presume him
unable 10 attend. The plaintiff should not rely
upen presumption where is was his duty to produce
In jackson vs.. PEI kins q Wend. 30s-3l5) q de-
position of Mrs. Vischer, taken under the same a,t,
Was offered in evidence 1t was allowed to be read,
IN stipulation of the plaintiffs counsel that
Judgment Of nonsuit might be entered If the Su-
pfeme Court, on q case made, should be Of the
opinion that the depositcn ought not to have been
Rceived.
TIE evidence Of her inability to attend was that
nesses testified that from bis knowledge OF her
mutation and infrmities he believed she could not
endure journey from Albany to Og iensburg with
sss the most serious injury to her health This was
Wend, COL; The People vs. Hadde9, Sd series, 225 }
think the spirit Of these decisions requires legal
proof, ss contradistinguished from mere hearsay
Mat it is easily attainable as the eriof proof
which may be offered. The mere declaration of
ahiid person shoDld not be received as competent.
ara certainly not IS satisfactory proof Of any fast
when such third person can be as easily procured to
teeNfy 10 the fact 30 the one offered to prove his
declaration respecting it. In this case all the proof
Mat was given Of the continued absence Of Strakosch
10 had Sonv W Cinviunasi, tAot nnyinY uisun lao
wentD and that the witness had not seen him in six
ye s }soSinson ys, 70 Marks, I'd Mood. & Max,
Allowing such testimony would furnish oppor.u-
nifty for collision, and vi0lats the rule that mere
heArssy evidence is inadmissiblc wshcus the eight
feasible, to call the party who made the declaration
as some one who heard 1t made-testimony by his
wife that Strakosch left the city, avowedy to 90 to
Cincinnati, stating when, that she had not seea
heard fFom him since, or had received letters from
him bearing the Cincinnati post office stamp, would
undoubtedly be satisfactory proof We are all Of
the opinion, that on the evidence given, The plain
I'M was mos entitled to read the deposition.
The defendant is therefore emitted 70 new trial,
on account Of the admission Of this deposition in
evidence. This conclusion reLders 10 unnecessary
70 pass npon any OF the other questions argued on
the appeal, except such as may arise upon o second
Trial, and In respect to which the ruling of the
court on such trial my properly be required.
NEW YORK HERALD, of the date Of Dec. Is,
ton from 1912 TO 1851 inclusive, and the annual re-
cepts for 1t In 1885, the first year Of its existence
and also in the year 1851, was offered in evidence
.for the purpose Of showing the circulation of the
HERALD IN the years l84S-49, and the income OF
the ofice.n
1t was objected 70 "on tie ground that the de-
isnaant was in no way connected with 1t BY prof,
The objection was overruled, and the defendants
counsel excepted.
II Was then read 40 snow the circulation Of the
nected the defendant with that number OF the
HERALD.
The paper was relevant" and was competent
evidence to show the circulation Of the HERALD,
and Of the extent to which the bellous mater had
been published. So much of the extract read, as
related to this point was proper evidence.
The objection was not taken that the passage re-
ltng TO the receipts Of the HERALD should not be
read but the objection was to the whole article. In
not attempting 70 discriminate between tine different
points Of u, the objection seems to nave assumed
that - whole 1t was not admissible for any pur.
pose, and the ground Of objection taken was that it
was In elevsnt.
Whether the part relating to the receipts Of tie
effce If specially objected to, should have been ex
have 80 preudiced the defendant that treating this
~ motion for new trial on o case, IS well as an
appeal from the judgment, new trial should be
granted, vii depend upon considerations connected
with the charge on the subject OF damages, and
exceptions taken by tho defendant to the refusal Of
the Court to charge on that branch Of the case as
requested.
The defendant requested the Court TO charge the
Jury THAT II the jury should 6nd any ground 10
this case for giving damages TO the plaintiff against
the defendant, their verdict should be for such sum
only az would compensate the plaintiff for the In
jury he has sustained therefrom, and that the jury
are not NJ liberty TO give to the plantf anv
further sum, by way OF punishment of the de-
fendant, or BY way Of vindictive damages, or as
snart money" The Court refused to 90 charge,
and the defendant excepted.
IL 10 not contended that the terms Of the charge,
% given, are particularly exceptionab'e.
The jury were instructed that the plaintiff hal