77 U.S. 427 (1870)

10 Wall. 427


Supreme Court of United States.

Attorney(s) appearing for the Case

Messrs. C. O'Connor and William Allen Butler, for the plaintiff in error; Messrs. Casey and Bartley, contra.

Mr. Justice MILLER delivered the opinion of the court.

In the admission of evidence we are of opinion that the court committed an error that must have contributed very largely to swell the amount of the verdict, which, without such testimony, was perhaps unusually and unjustifiably large, and might possibly have been for the defendant.

The error referred to was in the introduction of the record of the suit for divorce. The record thus read to the jury consisted of the petition of the wife of Beardsley for divorce, the answer of Beardsley, the depositions of several witnesses taken by Beardsley in that suit, and the order of the court dismissing the bill. The influence of this record on the verdict of the jury will be at once understood by a slight reference to its contents. It seems that the suit was commenced some four or five months after the alleged publication of the libellous matter for which this suit was brought, and some time after its commencement. Beardsley in his answer alleged that the suit was not instituted by his wife or for her benefit, but by Tappan, and by counsel employed by him, for the sole purpose of making good the slander which he had published against Beardsley on that subject.

The testimony of S.F. Taylor, who was the attorney that brought the divorce suit, is also a part of the record so read, and having been taken by Beardsley is as artfully contrived as it could possibly be made, to confirm the truth of Beardsley's answer, that the suit was brought at Tappan's request without the authority of the nominal plaintiff; and all this is confirmed by his final appearance and dismissal of the suit for want of prosecution.

In short, no one can read that record and believe it without being convinced that Tappan, having slandered Beardsley, and being called into account for it, entered into a still more disgraceful conspiracy to establish the truth of what he had said by using the name of Beardsley's wife in a suit against him for divorce without her authority, and without any shadow of justice.

The effect of this in aggravating the damages to be recovered is too plain to require comment. And yet Tappan was no party to that suit; had no right to control or influence the making of that record; could not cross-examine the witnesses, all of whom were Beardsley's, nor take any exceptions to or contradict Beardsley's answer. It is difficult to conceive upon what principle the record of that suit was admissible for any purpose whatever in the trial of this one. If the defendant had introduced any evidence to show that a suit for divorce had actually been brought, in support of his statement that there was a rumor that it would be done, then it might have been competent for the plaintiff to show when it was instituted, as some evidence that no such rumor existed when Tappan so reported. But it does not appear that Tappan attempted to show in this suit that the divorce suit had ever been instituted. All that comes from the plaintiff, and it is difficult to see what relevancy it had to any issue before the court. If, however, a state of case could possibly have existed to justify the introduction by the defendant of that record for that purpose, it could be used for no other, and the answer of Beardsley and the depositions of the witnesses were not only irrelevant to the issue then being tried, but they were forbidden by other well-established rules of evidence:

1. Beardsley's answer was not sworn to, and was made with a probable view to its use against Tappan in this suit, and was made when Tappan could neither contradict his statements nor cross-examine him.

2. As to Taylor's deposition, the fact that he was a competent witness in the present suit and could have been used by the plaintiff as such, is sufficient to exclude his deposition taken in another suit, even if Tappan had been a party to that suit. Still more forcible is the objection when the deposition was taken in a suit to which Tappan was no party, and on an occasion of which he had no notice, and when he had no right to cross-examine him or to controvert the truth of what he said.*

Two inconsistent reasons are given in support of the ruling of the court on this point.

It is said first that the depositions do not constitute a part of the record of the divorce suit, and were, therefore, not read in the present suit. And it is true that such depositions not read on the trial of the divorce suit could in no just sense constitute a part of the record. But it is clear to us from examining the bill of exceptions of the present case that the depositions were read to the jury as a part of the record of the divorce suit, and were so read against the objection of the defendant.

It is said, on the other hand, that they should have been read because they were a part of the record, and that when one part of a record of a suit is read all must be read.

When one party introduces and reads from such a record that which suits his purpose, the other party may read for his own benefit all that relates to that subject, or require the party introducing the record to do so. But we know of no rule which, because a party may use a record or part of it to establish a fact that can only be established by record, authorizes the same party to use everything else which may be found in the record, however irrelevant to the issue on trial, or however it may violate other well-established principles of the law of evidence.

It is possible that the plaintiff had a right to show that the divorce suit against him was brought long after the publication of the slander and after Tappan had been sued for it; and that for this purpose the record was admissible. But this by no means establishes his right to bring before the jury the entire merits of the divorce suit, the depositions taken in that suit which bear hardly upon Tappan, who was no party to it, and the answer of Beardsley making charges against Tappan, when the latter could make no reply to them.

Upon this question the case of the Marine Insurance Co. v. Hodgson,* Rutherford v. Geddes, and Laybourn v. Crisp, are directly in point; and the authorities cited by Mr. Taylor in his work on Evidence,§ fully sustain the proposition laid down by him, that depositions in chancery can only be read when the bill shows that the cause was against the same parties, or those claiming in privity with them.

For this error the judgment of the Circuit Court is



* Rutherford v. Geddes, 4 Wallace, 220.
* 6 Cranch, 206.
† 4 Wallace, 220.
‡ 4 Meeson and Welsby, 320.
§ § 1413.


1000 Characters Remaining

Leagle.com reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.

User Comments

Listed below are the cases that are cited in this Featured Case. Click the citation to see the full text of the cited case. Citations are also linked in the body of the Featured Case.

Cited Cases

  • No Cases Found

Listed below are those cases in which this Featured Case is cited. Click on the case name to see the full text of the citing case.

Citing Cases