STEIN V. BOWMAN, 38 U. S. 209 (1839)

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U.S. Supreme Court

Stein v. Bowman, 38 U.S. 13 Pet. 209 209 (1839)

Stein v. Bowman

38 U.S. (13 Pet.) 209


Certain German documents were offered in evidence by the plaintiff in the District Court of Louisiana for the purpose of using such parts of them as contained depositions which related to the pedigree of the plaintiff, which were overruled by the district court on the ground that they were not duly authenticated. By the court: in the case of Church v. Hubbart, 2 Cranch 187, this Court held that the certificate of a consul, under his consular seal, is not a sufficient authentication of a foreign law to make it evidence, it not being one of his consular functions to grant such certificates. And also that the proceedings of a foreign court, under the seal of a person who styles himself the Secretary of Foreign Affairs in Portugal, is not evidence. On the principles of this case, the circuit court very properly rejected the depositions offered. The certificate and seal of the minister resident for Great Britain from Hanover is not a proper authentication of the proceedings of a foreign court or of the proceedings of an officer authorized to take depositions. It is not connected in any way with the functions of the minister. His certificate and seal could only authenticate those acts which are appropriate to his office. The only mode in which depositions can be taken in a foreign country is under a commission.

No rule is better established than that a party cannot be a witness in his own case.

The objection to the competency of a party to a suit as a witness does not arise so much from the small pecuniary liability to the payment of the costs as from that strong bias which every party to a suit must naturally feel, and this influence is not the less dangerous if the party be unconscious of its existence. Every individual who prosecutes or defends a suit is, in the nature of things, disposed to view most favorably his own side of the controversy, and with no small prejudice the side of his adversary. To admit a party on the record under any circumstances to be sworn as a witness in chief would be attended with great danger. It would lead to perjuries and the most injurious consequences in the administration of justice.

From necessity, in cases of pedigree, hearsay evidence is admissible. But this rule is limited to the members of the family, who may be supposed to have known the relationship which existed in the different branches. The declaration of these individuals, they being dead, may be given in evidence to prove pedigree. And so is reputation, which is the hearsay of those who may be supposed to have known the fact, handed down from one to another; evidence. As evidence of this description must vary with the circumstances of each case, it is difficult if not impracticable to deduce from the books any precise and definite rule on the subject.

It is not every statement or tradition in a family that can be admitted as evidence. The tradition must be from persons having such a connection with the party to whom it relates that it is natural and likely, from their domestic habits and connections, they are speaking the truth and that they could not be mistaken.

The declarations offered as evidence were made subsequent to the commencement of the controversy, and in fact after the suit was commenced. It would be extremely dangerous to receive hearsay declarations in evidence respecting any matter after the controversy has commenced. This would enable a party by ingenious contrivances to manufacture evidence to sustain his cause. It is therefore essential, when declarations are offered as evidence, that they should have been made before the controversy originated and at a time and under circumstances when the person making them could have no motive to misrepresent the facts.

It is a general rule that neither husband nor wife can be a witness for or against each other. This rule is subject to some exceptions, as when the husband commits an offense against the person of his wife.

The husband and wife may be called as witnesses in the same case, and if in their statement of facts they should contradict each other, that would not destroy the competency of either. It would not follow from such contradiction that either was guilty of perjury. And in some cases the wife may be a witness under peculiar circumstances where the husband may be interested in the question and to some extent in the event of the cause.

Page 38 U. S. 210

The wife cannot be a witness to criminate her husband or to state that which she has learned from him in their confidential intercourse. The rule which protects the domestic relations from exposure rests upon considerations connected with the peace of families, and it is considered that this principle does not afford protection to the husband and wife, while they are at liberty to invoke it or not, at their discretion, when the question is propounded; but it renders them incompetent to disclose facts in evidence in violation of the rule. The husband's being dead does not weaken the principle. It would seem rather to increase than lessen the force of the rule.

To sustain a claim to the admission of the deposition of a witness in evidence, the affidavit of a person who represented himself to be the agent of the plaintiff stated that the witness had left Louisiana before the commencement of the suit and ascended the Mississippi with the intention of going to Ohio, and that since then, the person who made the affidavit had not heard from him, although he had made inquiries. By the Court: this does not amount to that degree of diligence which the law requires to introduce secondary evidence.

In the District Court of the Eastern District of Louisiana on the eighth day of April, 1836, Johann Frederick Stein, an alien and a subject of the King of Hanover, presented a petition stating that he was the sole and lawful heir of Nicholas Stein, or sometimes called Nicholas Stone, who had died some time before in the Parish of St. Tammany in the State of Louisiana. The petition prayed that William Bowman, who had been appointed curator of the estate of the deceased Stein by the proper tribunal, should be decreed to account for the estate and effects received by him, and to deliver to the petitioner the property of the succession which had not been sold, and to pay to him the amount in his hands.

The answer of William Bowman, the curator, denied that the petitioner, Johann Frederick Stein, was the heir or related to the deceased Nicholas Stein, or Stone, and averred that the claim was interposed to vex and harass the respondent and the true heirs of Nicholas Stein.

Afterwards, Andreas Stein, residing in the Kingdom of Hanover, presented a petition to the district court stating that in April, 1834, he had applied to the Court of Probate of New Orleans, claiming the succession to Nicholas Stein, as the heir of the deceased, and that by the unjust interference of Johann Frederick Stein, he had been prevented recovering the same.

Subsequently Johann Stein, Anna Sophia Stein, wife of Mathias Ahreus, and Luer Stein, a minor, assisted by his curator or trustee, and by his guardian, all of the Kingdom of Hanover, filed their petition in the circuit court stating that they are the only heirs of Nicholas Stein and that in 1835 they had instituted a suit against William Bowman, which suit is still pending. They aver that the claim of Johann Frederick Stein is fraudulent and that he is not the heir of Nicholas Stein, as he alleges. They pray leave to introduce in the suit, and state that William Bowman is a mere stakeholder. William Bowman afterwards filed a petition in the district court setting forth that individuals belonging to three different families, the petitioners, pretend to be the nearest relations of the late Nicholas

Page 38 U. S. 211

Stein, and to be entitled to his estate, and he asks, as he is only a stakeholder, that the parties contesting the claims of each other may be called in to take cognizance of this suit and defend him against it.

The petitioner, Johann Frederick Stein, put in a general replication to each of the petitions of intervention.

The case was, on the application of William Bowman, referred to a jury, and on 3 March, 1837, it came on for trial, and the jury found a verdict for the defendant.

On the trial of the cause, bills of exceptions were signed by the court to the decisions of the court on points arising during the trial of the cause.

The affidavit of John Rist was laid before the court stating that he had made diligent inquiry for Francis Stuffle, whose deposition was taken in the cause in the parish court between the plaintiff and Bowman; "that he was unable to find him, and had been informed, and truly believed he was dead; this information had been derived from those who knew him."

The deposition also stated, that Nicholas Mouzat, whose testimony was taken in the same cause, left Louisiana before the commencement of this suit and ascended the Mississippi with the intention of going to the State of Ohio; that he had not since heard from him, although he had made inquiries for him.

The deposition of Francis Stuffle was then offered in evidence by the plaintiff and was admitted by the court, to which the defendant excepted.

The defendant called the wife of Francis Stuffle, he being dead, to prove that her husband had been bribed by John Rist to give evidence in the case and also to prove he had frequently told her he knew nothing of the plaintiff or of Nicholas Stein. The plaintiff objected to the admission of the witness, but the court allowed her to be sworn, and she gave her testimony. The plaintiff excepted.

The plaintiff then offered in evidence certain German documents to prove the pedigree of the petitioner, which were rejected by the court as not being sufficiently authenticated, and to this rejection the plaintiff excepted.

The depositions which were taken, and which were in the German language, were not signed by the deponents, and at the end of each deposition it is stated that each of the witnesses assented to the same. A magistrate of the place certifies to this fact, and this is attested under his seal by the "Royal British Hanoverian Landrostey," and his signature is attested under his seal, by the "Royal British Hanoverian Minister Residentis."

The defendant, William Bowman, was during the trial admitted as a witness by the court to testify as to the merits of the controversy. The plaintiff excepted to his admission.

The court refused to admit Stultz as a witness for the plaintiff

Page 38 U. S. 212

to prove that he had been in Hanover the preceding summer and there heard from many old persons of whom he inquired that the plaintiff was the brother of Nicholas Stein. The witness stated that he had gone to Germany for the purpose of taking a deposition. The court was of opinion that the depositions of those persons should have been taken.

The plaintiff prosecuted this writ of error.

Page 38 U. S. 217

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