author: Parker, J. Selden, J. (dissenting.) Gardiner, Ch. J. (dissenting.)

text:
    Hendrickson against The People.
    Upon a trial for murder, statements made by the prisoner, as a witness at the coroner’s inquest upon the body of the deceased, before the witness had been charged with the murder, and before it was ascertained that a murder had been committed, are admissible in evidence against him. Selden and Allen, 3s., dissented.
    Upon tlie trial of a man for the murder of his wife, it is proper for the prosecutor to show that the father of the deceased had so disposed of Iris estate by will, as to disappoint the expectations of the prisoner. Gardiner, Ch. J., and Selden, J., dissented.
    The wife of .Hendrickson died suddenly on the morning of Monday, the 7th of March, 1853, at his residence in Bethlehem, Albany county. When the prisoner, who was occupying the same bed with her, gave the alarm to the family about two o’clock, the death had apparently taken place but a few minutes before. In the evening of the same day a coroner’s jury was empanneled, and Hendrickson was called and sworn as a witness upon theinquest. Upon his examination, being called upon to give an account of the circumstances attending the death of his wife, he stated that he had gone to church with her on the afternoon of the previous day, and returned home in the evening ; that his wife had for some weeks been in poor health, and had complained of much pain in her hips and loins, and that after returning from church she complained of more pain than usual; that between the hours of ten and eleven they retired to bed ; that about two o’clock in the morning, being awoke by a noise in the barn, as of horses kicking, he spoke to his wife; that receiving no answer he endeavored to awake her, and found her motionless and her face cold; that he then thought her dead, and alarmed the family. When interrogated as to having been in Albany, he said he had been there two weeks ago last Saturday; and when asked if he had not been there since, he said, “ Oh yes, I believe I was a week ago last Saturday,” as if correcting himself. Being still further interrogated as to whether he had been in the city since that, he said, “ I was last Saturday.” He was then asked what he went to Albany for; he stated that he took a load of timber to the mills there, and gave an account of the places he and his brother visited after disposing of the timber; he said that he did not remember going to Springsteed’s drug store, nor to any other drug store. When asked if he had been in a drug store, he started up, as if startled at the question; he had been rather in a reclining posture, as if he were grieving; he hesitated, and finally said he did not remember.
    The prisoner was afterwards indicted for the murder of the deceased, and was tried at the Albany oyer and terminer, Hon. Richard P. Harvest, presiding judge. Upon the trial, which commenced on the 13th of June, 1853, and continued until the 7th of July, the public prosecutor offered to prove what the prisoner had said upon his examination before the coroner’s juiy. This was objected to as inadmissible, but admitted, and the prisoner’s counsel excepted.
    The public prosecutor also offered in evidence the last will and testament of Lawrence Van Deusen, the father of the. prisoner’s wife, by which the testator had. devised all his estate to bis wife for life, with remainder over, one-lialf to his only son, and the other half to be- divided equally between his two daughters, Maria Hendrickson, who was the prisoner’s wife, and Susannah Hungerford. This evidence was objected to as irrelevant and improper; tho objection was overruled, and the prisoner’s counsel excepted.
    The jury found the prisoner guilty, and he was sentenced to be hung. The supreme court at general term affirmed the judgment, and the prisoner brought error to this court.

      John K. Porter for the plaintiff in error.
    I. The statements drawn from the prisoner by his examination before the coroner’s jury were inadmissible and should have been rejected. I. Our law, contrary to the policy of the civilians, discourages a resort to self-criminative statements, and never seeks for them. ( Gilbert's Er., 139, 140, London ed. 1756 ; Best's Prin. of Ev., 418 ; Balt. Justice, 544; Spendlow v. Smith, Hob., 84; 1 Phil. Ev., 114, note; 1 Wheel. Cr. Cas., 55, 57, note ; Warringham's case, 6 British Cr. Cas., 447, note; 2 Hale's P. C., 225; Kelham's Britton, 49 ; 2 72. S., 40C, § 72; id, 708, §§ 14, 15, 16.) 2. It has always been required, therefore, that such statements, in order to be admissible, should be perfectly free and voluntary. (Best's Prin. of Ev., 418, 66 Law Library; 1 Greenl. \Ev., §§ 193, 219, 225, 6; Taylor's case, 5 Cush., 605, 610.) (1.) The reason is, that the law is especially careful not to suffer a man to be made the deluded instrument of his own conviction; one of its primary maxims being nemo tenctur pyodere seipsum vel accusare. ( Gilbert's Ev., 139, 140, London ed. 1756; 2 Hawlc. P. C., 595, § 34, Curw. ed.; Balt. Justice, 544; 2 Stark. Ev., 29, Phil. ed. 1837; 1 Leach's Cr. Cas., 293, ed. 1815; 1 Greenl. Ev., %% 225, 6 ; 1 Wheel. Cr. Cas., 69, note; 1 It. S., 94, § 13, bill of rights; Hard. R., 139, per Hardres, arg.) (2.) And hence, if there be reason even to suspect that the maxim has Been violated by any influence, however minute, the statements are to be rejected. ( Warrin gharri’s case, 2 Denn., 447, note ; S. C., 6 British Cr. Cas., 445, .note; Field’s case, Peck's R., 140 ; 2 Hawk. P. C., 595, (x) 34, Curw. ed.; Lewis’ case, 25 Eng. Com. L. R., 383, 4, per Gurney, B.; Thompson's case, 1 Leach’s Cr. Cas-., 291, 293; Ward's case, 15 ■ Wend., 231; Taylor’s case, 5 Cush., 605, 610; Fleming’s case, 1 Arms., Macart. Ogle, 330; Regina v. Garner, 1 Denn., ■ 329; 5 British Cr. Cas., 335; 1 Phil. Sf Amos, 427, note 5.) 3. The above cases relate to instances where mere moral influences, such as promises, &c., have been used. If the influence of legal forms has been employed, especially if the constraint of an oath was imposed, the rule is still more exacting. (1 Grecnl. Ev., §§ 225, 6; Rivers’ case, 32 Eng. Com. L. R., 486; Spendlow v. Smith, Hob., 84; Sir John Kelynge's R., 19; Broughton’s case, 7 Iredell, 96 ; Harman’s case, 4 Barr, 269, 270, 1.) (1.) It has been applied in those cases where the prisoner was arrested or suspected, and under the constraint of an oath, though privileged. (1 Grecnl. Ev., § 225; 2 Russ, on Cr., 650, Am. ed. 1836; 2 Stark. Ev., 29, Phil. ed. 1837; Rivers’ case, 7 Carr. Sf Payne, 177; Pikesley’s case, 9 id., 124; Smith’s case, 1 Stark., 242; Harman’s case, 4 Barr, 269.) (2.) So even where no oath was imposed, but the answers were to questions put by one having seeming legal authority to do so. ( Wilson’s case, 1 Holt, 597 ; 2 Russ, on Cr., 649, 650, Am. ed. 1836 ; 2 Stark. Ev., 29, note h, Phil, ed. 1837; 1 Phil. Ev., 114, note; Ry. Sf Mood. N. P. Cas., 432.) 4. In the following cases, the testimony given before the coroner’s jury, by the party afterwards charged with the crime, was rejected on the trial as inadmissible. (Owen’s case, 9 Ca.rr. Payne, 238, Gurney, B.; Wheeley’s case, 8 id., 250, Alderson, B.; note to Ha,worth’s case, 4 id., 254, Park, J.) (1.) In neither of these cases was the party, at the time he testified, a prisoner charged with the crime. In one of the cases, he was in custody as a witness, though the fact did not appear, and was not even in that case the ground of the decision. (1 Burns' Justice, 695,858,22ded.; Stat. 8 EdwardTV., “ de officio coronatoris," 2 Hawk. P. C., 78; Joy on Confessions, 68.) (2.) In the previous case of Owen {supra), the point was not decided, but merely “ reserved” for the consideration of the judges. Besides, it was conceded by Williams, J., that the reception of the evidence was against the previous dgcisions. In the subsequent case of Owen the evidence Ywrejected. 5. Evidence of this kind was excluded on the same principle, and under circumstances precisely analogous, in Lewis' case {6 Carr. 8f Payne, 161); Davis' case (6 id., 177). 6. The foregoing cases establish that, upon the trial of an indictment, the declarations of the party accused are inadmissible, if made when his mind was disturbed by apprehensions of a criminal charge, and under the constraint of an oath administered with apparent legal authority, upon an inquisition for the crime, by those having power to accuse and commit him as the culprit. Under such circumstances the examination is deemed compulsory in all cases, unless it appear either that he was advised of his privilege to decline answering and chose not to avail himself of the right, or that he voluntarily availed himself of the oath to make a false accusation against an innocent party. The only question which is left in doubt by the authorities is whether, even in those cases, the evidence should be received or rejected. Hendrickson attended in obedience to the mandate of a subpoena, and was sworn by the coroner, who had authority to enforce obedience by commitment, and before the jury who were making inquisition for the crime. He was not advised of his privilege, nor did he seek to shelter himself by accusing the innocent. (2 R. S., 743, §§ 3-7.) 7. There is not a single reported adjudication in conflict with the foregoing proposition; and every case cited for the prosecution is clearly distinguishable from the case at bar. {Merceron's case, 2 Stark., 366; Haworth's case, 4 Carr. 8f Payne, 254 j Swatkins' case, 19
      E. C. L., 520 ; Tubby's case, 5 Carr. Sf Payne, 530 ; Sandys' case, 1 Carr. Sf Marsh., 345; Wheater's case, 2 Moody's C. C., 45; Broughton's case, 7 Iredell, 96.) 8. The argument that the evidence of Hendrickson was voluntary, because he might have refused to answer if he had been aware of his privilege, is at war with all the cases. (1.) It confounds the distinction between the case of a mere witness, sworn as such, between third parties, and that of one who is required to swear on an inquisition as to the very crime, and to aid those making search by legal authority in detecting him as the criminal whom it is their duty to arrest and accuse. (2.) In both cases the privilege exists; but in the last, the party, perplexed and appalled by the impending danger, is in no condition to deliberate and decide as to his legal rights, and, unless warned, is not deemed to have waived them. (3.) This rule is maintained alike for the protection of the innocent and the guilty. Neither is to be deluded into self-destruction by the forms of law. (4.) The theory of the prosecution is that Hendrickson was guilty; and yet it is claimed that he is to be deemed a mere witness, called to testify upon an issue to which he was indifferent. (5.) The inquisition assumed that crime was suspected; it was conceded that he was alone with the deceased when she died; he attended as a witness under legal compulsion; a surgeon was appointed to record his evidence ; he was interrogated as to his going to the Albany drug stores; and yet it is insisted that he had no reason to suppose that there was any suspicion either of the crime or the culprit. (6.) These are just the circumstances in which the rules of artificial presumption have no application, and in which the whole theory of our law, written as well as unwritten, requires the party to be advised of his rights before he shall be deemed to have waived them. ' (2 R. S., 708, <j§ 14, 15; Wheeley’s case, supra.) (7.) To hold that such statements are free and voluntary, merely because the witness was privileged, though under suspicion and sworn, is contrary to reason, and to eveiy case where the the question has been adjudicated. (1 Greenl. Ev., %% 225, 6; Lewis’ case, 6 Carr. Sf Payne, 161; Davis’ case, 6 id., 177; Wheeley’s case, 8 id., 250; Owen’s case, 9 id., 238; 19 Eng. Com. L. R., 371, note a; 2 Russ, on Cr., 650, Am. ed. 1836; Rivers’ case, 7 Carr. Sf Payne, 177 ; Smith’s case, 1 Stark., 242; Harman’s case, 4 Barr, 269; Pikesley’s case, 9 Carr. Sf Payne, 124.) 9. The present case is directly within the reason of the principle of exclusion, and the circumstances of constraint are stronger than in those cited. (1.) The attendance of the accused was coerced, and he could not lawfully refuse to be sworn. (2 R. S., 742, 3, §§ 3, 4; id., 241, § 85 ; Cow. Sf Hill’s Notes, 735 ; 1 Denio, 322, 3.) (2.) The law thus placed him in a position where he had reason to believe he was bound to answer, and no one can know that he was aware of his privilege. (Cases cited, supra; 2 Hawk. P. C., 594, § 34, Curw. ed.; 2 Denn., 447 [6 British C. C., 445], note Warringham’s case ; 1 Greenl. Ev., § 219; Best’s Prin. oj Ev., 418; 2 East’s P. C., 657.) (3.) If he had been advised of his privilege, he was constrained to exercise it under circumstances of mental torture, apprehension and perplexity, hindering the calm and free exercise of his faculties. (1 Greenl. Ev., %% 225, 6; 2 Hawk. P. C., 595, § 34, Curw. ed.) (4.) If he spoke, except to declare his criminality and claim his privilege, he was not free to say what he deemed for his own interest; but, if guilty, was obliged to divulge it, or encounter the penalty of peijury. (1 Greenl. Ev., 225, 6 ; 2 Hawk. P. C., 595, § 26, Curw. ed.) 10. But if we concede it to be even doubtful whether the statements in question are to be deemed free and voluntary, either in point of law or fact, they must be rejected. (9 Cow., 707, 720; 1 Gilh. Ev., 216, 17; 6 British Cr. Cas., 445, note; 2 Denn., 447, note, S. C.)

    II. But if there was nó other question in the case, the defendant is clearly entitled to a new trial on the ground that the court admitted the will of Lawrence Van Deusen as competent evidence of the guilt of the prisoner. 1. The effect of holding this evidence to be relevant was to set the jury to speculating as to the motive of the marriage, the probable expectations of the prisoner, and the question whether the will was more or less favorable than he anticipated. 2. It also set them to speculating on the probability of an assumed resentment towards the father, on account of the will, operating as a motive to the murder of the daughter, an innocent and common sufferer. 3. If the indictment had been for the murder of the tenant for life, the evidence might possibly have been relevant, as in that case an intervening estate would have been removed; but here it was clearly irrelevant. 4. The jury were left to infer a motive to murder his wife from the very fact which made him the loser by her death, as it deprived him of a tenancy by the curtesy. (4 Kent’s Corn., 29, 30.) 5. The reasons assigned by the authorities for granting a new trial, where evidence of this kind has been introduced, apply in this case with peculiar force. {Myers v. Malcolm, 6 Hill, 292, 296, note b ; Cunliff v. Mayor, Sfc., 2 Barb., 194, per Harris, J.; Farmers’ Bank v. Whinfield,, 24 Wend., 426, 7; 1 Greenl. Ev., § 52.)

      Hamilton Harris for the defendants in error,
    I. The statements made by Hendrickson at the coroner’s inquest were properly received in evidence against him on the trial. 1. Confessions made by a party, freely and voluntarily, are admissible in evidence against him. This is the general rule. {Hawk. P. C., B. 2, ch. 46, §§ 31, 32, 33; Lambe’s case, 2 Leach C. C., 552, 4íA ed.; 1 Phil. Ev., 110, 5th Am. ed.; 1 Greenl. Ev., § 215; 2 Russ, on Cr., 822, 7th Am. ed.) (1.) The only exception to this rule is when the confession has been made upon a judicial examination. In that case the examination of a prisoner or party accused of crime cannot be given in evidence, unless it has been taken in pursuance of the statute. {2R. S., 891, §§ 13,14,15,16,
      4th ed.; 1 Phil. Ev., 402, 6th Am. ed.; 1 Greenl. Ev. §§ 224, 5; Rivers’ case, 7 Carr. Sf Payne, 177; Smith’s case, 1 Stark., 242; Lewis’ case, 6 Carr. 8f Payne, 161; Pikesley’s case, 9 id., 124; Baldres' case, 2 jVenn. Cr. Cas., 420.) (2.) It is not a valid objection that a confession has been made when the party was under oath as a witness. (2 Stark. Ev., 50, 4th Am. ed.; Roscoe’s Cr. Ev., 48, 4th Am. ed.; 1 Phil. Ev., 404, 6th Am. ed. ; 2 Russ, on Cr., 857; 1 Greenl. Ev., §225 ; Joy on Confessions, 8¡c., 62; Merceron’s case, 2 Stark., 366; Haworth’s case, 4 Carr. 8f Payne, 253; Tubby’s case, 5 id., 530; Owen's case, 9 id., 238 ; Sandys' case, 1 Carr. 8f Marsh., 345; Wheater’s case, 2 Moody’s C. C., 45; Broughton's case, 7 Iredell, 96.) 2. The statements of the prisoner before the coroner were made freely and voluntarily, and were not procured or influenced by hope or fear. They were statements of a witness, not of a prisoner, before a coroner’s jury, not before a committing magistrate, when not in custody or charged with crime, and without obj ection. They were therefore extra-judicial, and made voluntarily. 3. The statements were not in the nature of a confession, and therefore it is immaterial whether they were voluntary or not. (State v. Broughton, 7 Iredell, 96.)
    II. The proof of the will of Lawrence Van Deusen (the prisoner’s father-in-law) was not irrelevant. 1. It was objected to solely on the ground that it was irrelevant. 2. It was competent, as showing or tending to show that the prisoner had been disappointed in any pecuniary expectations which he had entertained from his alliance with the family. 3. It was competent as tending to show that there was no tie of interest between prisoner and his wife. (State v. Watkins, 9 Conn., 47 ; State v. Zellers, 2 Halst., 220, 230, 234; 1 Greenl. Ev., § 51.)
   Parker, J.

The general rule is, that all a party has said, which is relevant to the questions involved in the trial, is admissible in evidence against him. The exceptions to this rule are where the confession has been drawn from the prisoner by means of a threat or a promise, or where it is not voluntary, because obtained compulsorily or by improper influence. It is not claimed in this case that the statement in question was obtained by means of any promise or threat or by any inducement whatever; nor is it supposed that there was any compulsion or any influence affirmatively exercised upon the mind of the prisoner, beyond what is sought to be inferred from the fact that he was required to testify as a witness. But it is contended that because he was so required to testify, upon a general inquiry into the cause of the death of his wife, his statement was not voluntary and should have been excluded. The record shows that the objection at the trial 'was placed only on the ground that the statement was not voluntary. Hendrickson was not in custody. He made no objection to being sworn as a witness or to answering any question that was put to him. He was treated, in every respect, like the other witnesses. At the time of his examination, no circumstances had been developed warranting a suspicion against him. The post mortem examination did not take place till the next day, and it was not until the second day after his testimony before the coroner’s inquest that he xvas arrested under a warrant, issued, not by the coroner, but by a police justice of the city of Albany. His statement as a witness was in no respect an admission of guilt. On the contrary, it was a denial of material facts attempted, on his trial, to be established by other witnesses. His testimony was calculated to ward off suspicion from himself, not to attract it towards him. The question presented, therefore, is, whether, under the circumstances, the statement of a witness is to be excluded on the ground that it was not voluntarily made. Several English nisi prius decisions were cited on the argument, which it is necessary to examine.

Merceron's case (2 Starkie, 366), decided in 1818, was an indictment against a magistrate for having corruptly and improperly granted licenses to public-houses which were his own property. .Abbott, J., permitted the prosecution to prove what the defendant had said in the course of his examination before a committee of the House of Commons, appointed for the purpose of inquiring into the police of the metropolis, though it was objected that the statement had been made under a compulsory process from the House of Commons, and that the declarations were not voluntary.

In the case of Haworth (4 Carr. & Payne, 254), decided in 1830, it appeared that, before the prisoner was charged or suspected, a person named Shearer had been examined on the charge of forgery, and that the prisoner was called as a witness and his deposition taken. The counsel for the prosecution proposed to read this deposition as evidence against Haworth, which was objected to. Justice J. Parke said: “ I think that I ought to receive this evidence. The prisoner was not, when he made this deposition, charged with any offence, and he might, on that as well as on any other occasion when called as a witness, have objected to answer any question which might have a tendency to expose him to a criminal charge; and not having done so, his deposition is evidence against him.”

In a note by the reporter to this case it is said that, in a case tried at Worcester, where it appeared that a coroner’s inquest had been held on the body of A, and it not being suspected that B was at all concerned in the murder of A, the coroner had examined B upon oath as a witness, Parke, J., would not allow the deposition of B, so taken on oath on the coroner’s inquest, to be read in evidence on the trial of an' indictment afterwards found against B for the same murder.

I cannot find that this anonymous case is anywhere reported more fully. It would be much more satisfactory to know the particular circumstances of the case and the grounds for the decision. Without them, it is entitled to but little weight as authority. And so it seems to have been viewed by Littledale, J., in the case of Rex v. Clewes, tried before him during the same year, and reported, as to other points, in 4 Carr. & Payne, 221. In Mr. Greaves’ note, w (2 Russ. on Cr., 860, 7th Am. ed.), on the authority of his manuscript notes, he says the grand jury asked Littledale, J., “ Can evidence of a prisoner, who was examined on oath before the coroner as a witness, be admitted as evidence against the same person when subsequently indicted for the murder of the person on whose body the inquest was held ?” Littledale, J., answered in the affirmative; when, the case referred to in the anonymous note being mentioned, the judge (Littledale) directed the grand jury to receive the evidence and leave the point for discussion on the trial.

Tubby’s case (5 Carr. & Payne, 530), tried in 1833, was an indictment for burglary. Andrews, for the prosecution, proposed to read a statement made upon oath by the prisoner at a time when he was not under any suspicion. Prendergast objected that it was a violation of the rule of law which held that a prisoner could not be sworn. Vaughan, B., said: “I do not see any objection to its being read, as no suspicion attached to the party at the time. The question is, is it the statement of the prisoner under oath ? Clearly it is not, for he was not a prisoner at the time he made it.” In Rex v. Lewis (6 Carr. & Payne, 161), decided also in 1833, several persons, one of whom was the prisoner, were summoned before the committing magistrate touching the poisoning of C. No person was then specifically charged with the offence. The prisoner was sworn and made a statement, and at the conclusion of the examination she was committed for trial. It was held that this statement was not receivable in evidence against the prisoner. Gurnet, B., said this case was quite distinguishable from that of Rex v. Tubby, and that under the circumstances he should have agreed with his brother Vaughan; “but,” he said, “this being a deposition made by the prisoner at the same time as all the other depositions on which she was committed, and on the very same day on which she was committed,' I think it was not receivable. I do not think this examination perfectly voluntary.” It has been supposed the prisoner was brought before the magistrate on a charge or suspicion of guilt, but Mr. G-reaves says in his note (2 Russ. on Cr., 857, note n, 7th Am. eel.) that he was counsel in this case, and that the prisoner was summoned in the ordinary way, as a person who could give some evidence touching the matter, and not because any suspicion attached to her. In Rex v. Davis (6 Carr. & Payne, 177), also decided in 1833, the daughter had been examined as a witness before the committing magistrate against her father, and was then committed as a joint receiver of stolen goods with him. Her statement was excluded as evidence against her on her trial, by G-üENEY, B., on the same ground as in Rex v. Lewis. In regard to this case, Mr. G-reaves says (2 Russ. on Cr., 857, note n, 7th Am. ed.) that the ground of the decision was, not that there was a suspicion in the mind of the magistrate, nor even that the prisoner might be aware that there was such á suspicion, but that the prisoner had been examined on oath as a witness; and says that, after the decision in the late case of Rex v. Wheater (to which I shall refer hereafter), it may be doubted whether that was a sufficient reason for rejecting the deposition. In Regina v. Wheeley (8 Carr. & Payne, 250), decided in 1838, a party who was charged with murder made a statement before the coroner at the inquest, which was taken down. The paper purported that the statement was made on oath. Aedeeson, B., held, on the trial of the party for murder, that the statement was not receivable, and that parol evidence was not admissible to show that no oath had in fact been administered to the prisoner. If this was a case of the examination of a prisoner, and not of a witness, as it has been understood to be by commentators (2 Russ. on Cr., 855, 860, and notes), its correctness will not be questioned, and it can have no bearing upon the question now before us. The next case in order • of time was Regina v. Wheater (2 Moody's Cr. Cas., 45), decided in 1838, which was an indictment for forgery. On the trial, before Coleridge, J., the examination of the prisoner, previously taken on oath, as a witness, before the commissioners of bankruptcy, concerning the bills alleged to be forged, was held admissible as evidence against him. The opinion of all the judges was desired on this point, and the case was argued before all the judges except Park, J., and Gurney, B., who held that the evidence had been properly received. In Regina v. Owen et al. (9 Carr. & Payne, 83), tried in 1839, the defendants were indicted for rape. The prosecution offered to prove the statements made by Owen on oath, at the inquest held on the body of the person ravished, while the defendants were in custody. The counsel for the prisoner admitted that, where witnesses had been examined voluntarily, their depositions might afterwards be read against them, but objected that these defendants were in custody, and cited the case of Wheeley, where Baron Alderson rejected the deposition because it was on oath and taken while in custody. But Williams, J., said: “ I know that my brother Alderson did so, but I also know that there has been a reaction in opinion, if I may be allowed the expression. I shall therefore receive the evidence, and reserve the point, if it shall become necessary.” It is said that Baron Alderson, who had tried Wheeley's case, was in the next court at this time, and that Williams, J., had consulted with him in an earlier part of the case. (Joy on Confessions, 62.)

In Regina v. Owen and others (9 Carr. & Payne, 238), the same defendants were tried in 1840 for the murder of the person ravished; and Gurney, B., refused to receive in evidence the depositions, on oath, of the prisoners taken before the coroner’s inquest, though it must have been known they had been received on the previous trial of the same prisoners for rape. Baron Gurney, however, cited Wheater's case, then recently tried before Coleridge, and admitted he could not, on principle, see the distinction between that and some of the other, cases. In the late case of Regina v. Sandys (1 Carr. $ Marsh., 345), decided in 1841, the prisoner was tried for murder, and Erskine, J., admitted in evidence her deposition taken at the coroner’s inquest, and reserved the points for the consideration of the fifteen judges. All the decisions to which I have referred, except that in the case of Wheater, were made at nisi frites, and their general current is certainly in favor of the admissibility of the evidence in question; but to give them, or any of them, much weight as authority, it is necessary to understand the reasons that governed, and to see on what principles they are based. Without that, decisions made at the assizes, necessarily without time for consultation and examination, can avail but little in deciding a controverted question of law. So far as the evidence was rejected on the ground that the statement was on oath, as in the case of Davis and others, it must now be regarded as settled by the decision of all the judges in Wheater's case, above cited, that that, of itself, constitutes no objection. Mr. Joy, in his treatise on the admissibility of confessions, reviews all the decisions at nisi prives apparently conflicting, and comes to the conclusion that the decision, by all the judges, in Wheater's case, establishes the principle that a statement, not compulsory, made by a party not at the time a prisoner under a criminal charge, is admissible in evidence against him, although it is made upon oath. (Joy on Confessions, %% 8, 62.)

It is now regarded as a well settled rule, and recognized in the elementary books, that where a witness answers questions upon examination on a trial tending to criminate himself, and to which he might have demurred, his answers may be used for all purposes. (2 Stark. Ev., 50; Roscoe’s Cr. Ev., 45.) Such answers are deemed voluntary, because the witness may refuse to answer any question tending to criminate him. (1 Greenl. Ev., % 225.) If, however,he should be compelled to answer, after claiming his privilege, his answer will be deemed compulsory and cannot be given in evidence against him. When the evidence offered has been rejected on the ground that the statement was made when the prisoner was in custody charged with crime, as in Wheeley’s case and Owen’s case, it seems to me clear that it was properly excluded, because these were cases of the examination of a prisoner, not of a witness. In such cases it is a judicial examination, and it should not be on oath, and certain precautions for the protection of the accused are always to be observed. In this state such examinations are regulated by statute. (2 R. S., 794, 2d ed.) But neither is the statute, nor were the common law rules of which it is declaratory, applicable to any examina* tion except that of a person brought before a magistrate on a charge of crime. All other examinations are classified as extrajudicial (1 Greenl. Ev., § 216), and are to be conducted like other cases of the examination of witnesses. It is evident that in deciding the case of Lewis, above cited, the mind of the presiding judge was influenced, to some extent, by the supposition that the facts peculiar to it gave to the testimony the character of a judicial examination; for Baron Gurney lays stress upon the facts that the deposition was made at the same time as all the other depositions on which she was committed. In both these resemblances to a judicial examination, the case of Lewis differs from that now before us; for Hendrickson was arrested on a complaint made before a different magistrate and on a subsequent day. It is unnecessary, therefore, to express an opinion as to the soundness of the reasons given by Baron Gurney for his decision in the case of Lewis. The examination of a witness before a coroner’s inquest bears even less resemblance to a judicial examination than that taken before a committing magistrate or a grand jury. A coroner’s inquest may be held in all cases of sudden death; but an examination before a committing magistrate or a grand jury takes place on complaint made that a crime has been committed. It is only where a person is charged with crime, and is examined with regard to the truth of such charge, that his examination can be considered judicial.

In the case of the State v. Broughton (7 Iredell, 96), decided in North Carolina in 1846, where the grand jury were investigating an offence with a view to discover the perpetrator, and the person who was subsequently indicted was examined before them on oath, and charged another with the commission of the offence, it was held that the examination might be given in evidence against the prisoner on the trial of his indictment. Ruffin, Ch. J., said, however, that if the evidence given by the prisoner had been a confession of his guilt, and the grand jury had found a presentment on it, the court would have held that it could not be given in evidence against him. It is not material to the decision of this case to inquire whether the chief justice was right or not in the distinction he made between a confession, and a statement not a confession, because neither in that case nor in the one now before us was there any confession. Both statements tended to turn attention away from the witness. I am inclined, however, to think the chief justice erred, in the case of Broughton, in the reason assigned for his decision; for the law seems to be, that the rule as to confessions applies not only to direct confessions, but to every other declaration tending to implicate the prisoner in the crime charged, even though in terms it is an accusation of another, or a refusal to confess. (1 Greenl. Ev., § 219, note 2, and cases cited.) But while the decision in the case of Broughton is in accordance with the ruling in the case before us, the reason given for that decision, if it be erroneous, does not conflict with such ruling. Independent of any supposed authority, I do not see how, upon principle, the evidence of a witness, not in custody and not charged with crime, taken either on a coroner’s inquest or before a committing magistrate or a grand jury, could be rejected. It ought not to be excluded on the ground that it was taken on oath. That reason would exclude also the statements of witnesses on the trials of issues. The evidence is certainly none the less reliable because taken under the solemnity of an oath. No injustice is done to the witness, for he was not bound to criminate himself, nor to answer in regard to any circumstance tending to do so. If it is a good ground of exclusion, that the statement was made as a witness on oath, then the rule of law that protects a witness from criminating himself is of no value, and may at once be abrogated. The rule was adopted upon the supposition that the answer might be introduced in evidence against the witness. If it cannot be, the witness has no longer any reason for claiming his privi-. lege. Nor can the éxclusion of the evidence depend on the question whether there was any suspicion of the guilt of the witness lurking in the heart of any person at the time the testimony was taken. That would be the most dangerous of all tests, as well because of the readiness with which proof of such suspicion might be procured, as of the impossibility of refuting it. Besides, the witness might have no Knowledge of the existence of any suspicion, so that his mind could not be affected or his testimony influenced by it. It is only when he is charged with crime, and examined on such charge, that there is good reason for treating him as a party to the proceeding. The common law has been as tender of the rights of witnesses as of parties. It is the policy of the common law never to compel a person to criminate himself. That policy secures as well to a witness as to a party the privilege of declining to answer. The former is supposed to know his rights; the latter is to be specially instructed in regard to them by the presiding magistrate. But if either fail to avail himself of the privilege, his answer is deemed voluntary, and may be used as evidence. It is only upon a judicial examination, viz., in the case provided for by statute, when the prisoner is brought before a magistrate, charged with crime, that the preliminaries required by the statute are to be observed and the examination taken without oath. All other examinations are extrajudicial. The former is the examination of a party; the latter of a witness. In all cases, as well before coroners’ inquests as on the trial of issues in court, when the witness is not under arrest, or is not before the officer on a charge of crime, he stands on the same footing as other witnesses. He may refuse to answer, and his answers are to be deemed voluntary, unless he is compelled to answer after having declined to do so; in the latter case only will they be deemed compulsory, and excluded. Applying these rules to the case before us, Hendrickson’s answers before the coroner’s inquest were voluntary, and were properly received as evidence against him.

The second ground on which the prisoner asks a reversal of the judgment is, that the will of Lawrence Yan Deusen, the father of the deceased, was improperly admitted in evidence. This evidence was received as bearing upon the question of motive. If it tended in the least to show that the prisoner-had been disappointed in the pecuniary expectations he had entertained from his alliance with the family, in not being able to realize them till after the death of his wife’s mother, and then not in an equal proportion with the brother; or, if it tended to show how little property he might expect from his wife, if she lived; in either case, whether the supposed motive was resentment or avarice, it was properly received. It was competent to show whether the prisoner would gain or lose by the death of the deceased, and to compare the small amount, expected to be realized at a distant day, with the intermediate burthen of her maintenance. Taken in connection with the previous testimony, tending to show a want of affection on the part of the prisoner towards his wife, this evidence was clearly admissible. Considerable latitude is allowed on the question of motive. Just in proportion to the depravity of the mind, would a motive be trifling and insignificant which might prompt to the commission of a great crime. We can never say the motive was adequate to the offence; for human minds would differ in their ideas of adequacy, according to their own estimate of the enormity of crime, and a virtuous mind would find no motive sufficient to justify the felonious taking of human life. I think the evidence of the will was properly received. It was the province of the jury to determine the weight to which it was entitled. My conclusion is, that there was no error committed on the trial, and that the judgment of the supreme court should be affirmed.

Buggles, Johnson, Denio and Edwards, Js., concurred.

Selden, J. (dissenting.)

If we would come to a correct conclusion in this case, we must settle, in the outset, the fundamental principles upon which it rests. The criterion given in most of the cases by which to determine whether a declaration or confession of a person charged with a crime is competent evidence against him upon his trial, is, to ascertain whether it was voluntarily made. If voluntary, it is said to be competent; otherwise, not. Now it is obvious that this is not a strictly accurate test, notwithstanding the universality of its use for the purpose. A confession or statement, made upon the heel of promises of favor, may be perfectly voluntary, yet it is rejected. So a statement made under oath before a coroner’s jury, while the party is under arrest upon suspicion of guilt, is equally voluntary as if made as a witness in a case with which he has no connection. He has the same protection in either case if he chooses to avail himself of it; yet the statement in one case is admissible, in the other not; and in the former case, if, after being expressly cautioned and informed of his immunity, he is not only willing but anxious to give his testimony, it cannot afterwards be used against him. If by voluntary is meant, -uninfluenced by the disturbing fear of punishment, or by flattering hopes of favor, the expression may be accurate. But it is liable to mislead, because it suggests the idea that the rejection of what are termed involuntary confessions flows from that principle of the common law which is supposed mercifully to exempt persons from all obligations to criminate themselves, and which is expressed by the maxim, nemo tenetur prodere seipsum. Were it essential to the conclusion in this case, it might, I think, be shown that we are indebted for this maxim to the justice, and not to the mercy of the law; and that the principle embodied in it has its foundation in the uncertain and dangerous nature of all evidence of guilt drawn from the statement of a party conscious of being suspected of crime. But, however this may be, it is certain that the statements of an accused person, made under oath, are never excluded on account of any supposed violation of the immunity of the party from self-crimination. The object of the law is to ascertain truth; and it rejects no evidence, come from what source it may, which is calculated to throw light upon it. The mental disturbance produced by a direct accusation, or even a consciousness of being suspected of crime, is always great, and, in many cases, incalculable. The foundation of all reliance upon human testimony is that moral sentiment which almost universally leads men, when not under some strong counteracting influence, to tell the truth. This sentiment is sufficiently powerful to resist a trifling motive, but will not withstand the fear of conviction for crime. Hence, the moment that fear seizes the mind, the basis of all reliance upon its manifestations is gone. Speculation as to the effect of the declarations made, takes the place of a regard for truth; and this, too, in many cases, whether the party be innocent or guilty. If innocent, and yet conscious of the existence of circumstances tending to show guilt, there is the strongest temptation to make such statements, without regard to their truth, as will serve to conceal or break the force of these circumstances. Innocent persons have not unfrequently been convicted upon false statements of precisely this character. The mind, confused and agitated by the apprehension of danger, cannot reason with coolness; and it resorts to falsehood when the truth would be safer, and' is hurried into acknowledgments which the facts do not warrant. Neither false statements nor confessions, therefore, afford any certain evidence of guilt when made under the excitement of an impending prosecution for crime. So obvious and so undeniable are these principles, that it is rather to be wondered at that the law has placed the reliance it has upon the declarations of persons accused, than that it has guarded their introduction with so much care. Few, who reflect upon the matter, would hesitate, I think, to concur in the sentiment expressed by Baron Hotham, in Thompson's case, that “ too great a chastity cannot be preserved on this subject." (1 Leach's C. C., 291.) There is a passage in Hawkins that is so pertinent to, and goes so fully to sustain the view here presented, that I transcribe it, viz: “ The human mind, under the pressure of calamity, is easily seduced, and is liable, in the alarm of danger, to acknowledge, indiscriminately, a falsehood or a truth, as different agitations may prevail. A confession, therefore, whether made upon an official examination or in discourse with private persons, which is obtained from a defendant, either by the flattery of hope or by the impression of fear, however slightly the emotions may be implanted, is not admissible in evidence, for the law will not suffer a prisoner to be made the deluded instrument of his own conviction."

It is said by Joy, in his work on the admissibility of confessions, that this passage has been introduced into some of the later editions of Hawkins, and is no part of the original text. (Joy on Confessions, 31.) But however this may be, it does not require the authority of Hawkins, or any other great name, to commend the sentiment of this paragraph to any thinking mind. Mr. Justice Littledale, too, in a modern English case, expresses briefly the same idea. He says: “ The object of the rule relating to the' exclusion of confessions is, to exclude. all confessions which may have been procured by the prisoner being led to suppose that it would be better for him to admit himself to be guilty of an offence which he really never committed.” (7 Carr. 4 Payne, 486.) Nothing can be clearer, indeed, than that the rule of exclusion rests, not upon the compulsory manner of obtaining the confession, but upon the dangerous and unreliable nature of the evidence; and it is truly surprising that, among the numerous modern cases on the subject, there should be so rare a recurrence to the original foundation of the rule, the judges in almost every instance contenting themselves with allowing the admission or exclusion of the evidence to turn upon the word voluntary. That I have given the true basis of the rule is apparent, not only from the reasoning here adopted, and the authorities already referred to, but is obviously to be deduced from the mass of decisions on the subject, although not expressly asserted in them. In no other mode can they be reconciled with each other; but viewed in the light of the principles here contended for, they are rendered, for the most part, harmonious and consistent. Most of the rules applicable to the reception, upon the trial of persons for crime, of their declarations made while under oath, are incontrovertibly settled. For instance, it is settled that a declaration or confession made under oath, while the person making it is a prisoner charged with crime, is never receivable against him upon trial for the crime. It is equally well settled, that if the declaration, although under oath, is made in a judicial proceeding, with which the person making it has no immediate connection, and which has no direct relation to the crime for which he is on trial, it is admissible. The only question, upon this particular subject, to wit, the admissibility of declarations made under oath, which is supposed to be debatable, is, whether the declarations of a person subsequently indicted, made under oath previously to his arrest, and at a time when he was in no way judicially charged with the crime, are ever to be excluded. The affirmative of this question is sustained by a series of authorities. The first case to which I will call attention is that of Rex v. Lewis (6 Carr. & Payne, 161). This was an indictment, founded upon an English statute, for administering poison to one Elizabeth Davies. It. appeared that on the day on which the prisoner was committed, she and several others were summoned before a magistrate, and examined on oath touching the poisoning, there being at first no specific charge against any person;. but on the conclusion of the examination the prisoner was committed on this charge. Upon the trial the counsel for the prosecution offered the examination taken before the magistrate in evidence, but it was rejected by Baron Gurnet, who, after referring to a case where an affidavit made by the prisoner had been received, said: • *■* But this being a deposition made by the prisoner, at the same time as all the other depositions on which he was committed, and on the very same day, I think it is not receivable.” The next is the case of Rex v. Davis (6 Carr. & Payne, 177). This was an indictment against father and daughter for receiving stolen goods. Upon the' trial, it appeared that- the daughter had been a witness before the magistrate; and the counsel for the prosecution proposed to ask what she there said; but the same judge, Baron Gurnet, said: “I think you cannot do that. ' We cannot ■ hear anything she said before the magistrate when she was a witness.' If after having been a witness you make her a prisoner, nothing of what was said thén can be admitted as evidence.”

Now, these two cases cannot be reconciled with the notion that the. admission or rejection of such evidence depends upon the question whether the statement was or was not voluntary, unless by'voluntary is meant flowing from á mind free from the disturbing force of great and agitating apprehensions. They- have therefore given some trouble to writers upon this branch of the law, who, misled by the use of the term voluntary, cling to the idea that such evidence is rejected, because it is obtained by a species of compulsion, in violation of the rule that no one shall be bound to criminate himself. (Joy on Confessions, 67, 8.) But these cases are not only based upon the soundest reason and the purest justice, but are abundantly sustained by other authorities. Owen’s case (9 Carr. & Payne, 238) was an indictment against the prisoners* Owen and two others, for murder; and upon the trial it was proposed, on the part of the prosecution, to give in evidence the deposition of the prisoner on oath, on the coroner’s inquest held on the body of the deceased; After Very full discussion and citation of authorities, Baron Gurnet, who presided at the trial, excluded the evidence. There can be no just pretence that in either of these cases the persons examined were brought before the magistrate or coroner as prisoners charged with the crime. In England, warrants are issued for witnesses in criminal cases, and they are frequently brought before coroners and examining officers in custody. Joy, in speaking of these cases, says : “ It may be observed, with respect to these cases, that at the time the depositions were taken the prisoners were not under charge, as prisoners, of any crime. They were brought forward, though in custody, only as witnesses.” (Joy on Confessions, 68.) This is clearly the inference from the cases therqselves, and there can be no doubt of its truth, provided the parties were-in custody at all in the two first cases, which does not expressly appear. The report in Lewis’ case states that the prisoner was summoned before the magistrate. But the affirmative of the question we are'considering does not rest upon these three cases alone.

In Wheeley's case (8 Carr. & Payne, 250), the prisoner was charged with murder. Upon trial, the counsel for the prosecution offered in evidence a statement made by the prisoner before the coroner at the inquest. ' This statement purported to have been made on oath. Baron Alder'son, -who presided at the trial, rejected the. evidence, saying that he hot only could not receive the evidence; but that he could not allow parol evidence to be given to show that the statement was not made under oath. It is true that in Owen’s case (9 Carr. S¡ Payne, 83), Godson, one of the counsel, referring to this case of Wheeley, says that Baron Alderson rejected the deposition “ because it was on oath, and taken while he, Wheeley, was in custody.” But it will 'be seen that Godson was then arguing that the deposition of Owen and his associates should be rejected because they were in custody, and he refers to Wheeley's case as a parallel case; this shows that Wheeley was in custody, not as the accused party, but as a witness only, precisely as were Owen and his associates. Besides, Baron Aldebson himself takes no notice of the fact that Wheeley was in custody, and makes that no part of the ground of his decision. It is clear, therefore, that this case is to be added to the three previously cited, as involving the same principle. There is an additional English case cited in'a note to Haworth's case (4 Carr. & Payne, 254). The note states that “in a case tried at Worcester, where it appeared that a coroner’s inquest had been held on the body, and it not being suspected that B was at all concerned in the murder of A, the coroner had examined B upon oath as a witness. Pare, J., would not allow the deposition of B, so taken on oath at the coroner’s inquest, to be read in evidence on the trial of an indictment afterwards found against B for the same murder.” These five constitute the series of English cases going to sustain the affirmative of the question proposed. It is to be observed, however, that the last of these cases goes further than is necessary to sustain the objection taken to the evidence in this case, because it is expressly stated that the prisoner, at the time of his examination before the coroner, was not suspected of being at all concerned in the murder.

I will refer to a single American case only, to wit, Broughton's case (7 Iredell, 98). In that case, although the testimony of the prisoner, given before the grand jury upon an inquiry into the circumstances of the murder, was admitted upon special grounds, yet Ch. J. Rufein, in giving the opinion of the court, says that “ Lewis’ case (6 Carr. & Payne, 161) was properly decided.”

I come now to the consideration of a class of cases which have been supposed to conflict with those previously cited, but which are, in truth, in perfect accordance with them. The first to which I deem it necessary to refer is Merceron’s case (2 Stark., 366). That was an indictment against the defendant for misconduct as a magistrate. Upon the trial it was proposed to prove, on the part of the prosecution, what had been said by the defendant in the course of his examination before a committee of the House qf Commons, appointed for the purpose of inquiring into the police of the metropolis. The defendant had been compelled to appear before a committee. It was objected, by the defendant, that the examination having been made under compulsory process from the House of Commons, it was not voluntary, and therefore was not admissible. Justice Abbott admitted the evidence. It seems that this same justice afterwards, when Lord Tenterden, in Rex v. Gilham (1 Mood. C. C., 203), on Merceron’s case being cited, said: “I think there must be some mistake in that case; the evidence must have been given without oath and before a committee of inquiry, where the witness would not be bound to answer.” This remark shows that the learned judge was laboring, at the moment, under the delusive impression which the indiscriminate use of the word voluntary, to test the admissibility of evidence in such cases, has tended to produce.

The next is Haworth’s case (4 Carr. & Payne, 254). This was an indictment for forgery. On the trial the counsel for the prosecution called the clerk of the magistrate by whom the defendant had been examined, who stated that, “before the prisoner was either charged or suspected of having committed any offence,” he was called as a witness against one Shearer, who was tried for forgery, and swore to a deposition. The deposition was offered in evidence and objected to, but admitted by Mr. Justice Pabke. Why was it- stated, in the report of this case, that the deposition was made not only before the prisoner was charged ■ with, but before he 1 was suspected ■ of guilt ? ■ The idea which prompted this statement could have been no other than that for which I contend, that if- he had testified under the mental agitation which would be produced by the apprehension of an -immediate prosecution for crime, his statement could not be received. But this idea is more distinctly brought out in 'the next, .to wit, Tubby's case (5 Carr. & Payne, 530). It was a trial for burglary. The counsel for the -prosecution proposed to read a statement made upon oath by the prisoner at a- time ■ when he' was under no suspicion. The evidence was objected to, but Vaughan, B., said! “I do not see any objection to its being read, as no suspicion attached to the party at the time. 'The question is: Is it the statement of the prisoner on oath ? Clearly not; for he was not a prisoner at the timé when he made'it.” Now, although the learned judge puts his decision, in part, upon the ground that the party was not in custody when he made the statement, yet the first reason he gives is, that no suspicion then attached to him. These cases, so' far from conflicting with the cases of Lewis, Davis and Owen, tend, in my view, strongly to confirm them, from the countenance they give to the principle upon which those three cases rest; which is, that declarations made when the mind of the party making them is disturbed by the apprehension of a prosecution for crime and under the constraint of an oath upon a judicial inquiry as to the crime, are not evidence against the party upon a subsequent trial fot the same crime.' There are, besides these, two cases, to wit, Owen’s case (9 Carr. & Payne, 83) and Sandy s’ case (1 Carr. & Marsh., 345), in which the deposition of the prisoner, on trial for murder, taken upon the inquisition before the coroner and when the prisoner had not been charged with the crime, was received in evidence upon the trial; but in both cases the question was reserved for the opinion of the fifteen judges,- and the prisoner having been acquitted in each case, the question was never passed upon. Independently of the case of Wkeater, therefore (2 Mood. C. C., 45), there is no authority which conflicts with the cases which I have cited as going to sustain the objection taken in this case. As the case of Wheater Was brought before the fifteen judges, and as this is the case which has been treated as most in conflict with those of Lems, Davis, &c., it deserves some consideration.

It was a trial for the forgery of an acceptance to a bill of exchange. The bill had passed through the hands of the prisoner’s father,- who had subsequently become bankrupt; and the prisoner was examined as a witness touching the bill in question, among others, before the commissioners in bankruptcy. He was attended by counsel, and informed that he was at liberty to decline answering any question. Previous to his examination before the commissioners he had been brought before the lord-mayor and charged with the forgery, but had been discharged for want of sufficient evidence to warrant his commitment. His examination before the commissioners, which-was upon oath, was offered in evidence- against him, on the trial, and objected to but received. The prisoner -was convicted; and upon the question being brought before the judges the conviction was sustained.

This is undoubtedly the strongest case to be found in favor of the reception óf the sworn statements of a prisoner in evidence against him upon his trial for crime; but there are several things to be remarked concerning it. In the first place, the statement offered in evidence was not made upon any judicial examination or inquiry respecting the crime for which the prisoner Was bn trial. This is a marked feature, which distinguishes this case from every one of the five- cases above cited, in which the statement on oath of the prisoner was rejected, as well as from the one at bar. The case of Wheater was evidently considered as falling within the settled rule that the previous declarations of a prisoner, although under oath, if made in a proceeding foreign to the crime with which he is charged, are competent evidence against him on the trial. The doubt in this case was really raised by-the two circumstances that the inquiry before the commissioners related in part to the same bill alleged to have been forged, and that the prisoner, when examined, was obviously resting under strong suspicion of the forgery. This, however, was not thought sufficient to take the case out of the ordinary rule. That this was the view taken of the case, is evident from the remarks made by several of the judges upon the argument. Baron Parke, addressing the counsel for the prisoner, says: “Here the commissioners had a right to examine the prisoner. Do you mean to say that if a person, on a trial between parties, choose to make certain answers, they may not be used after-wards against him ?” And Littledale, J., says: “ Suppose, in answer, to a bill in equity, a party state facts which after-wards are found to chime in with other facts, are they not admissible in evidence against .him?” The distinction between the class of cases to which the case of Wheater was treated by the judges as belonging, and to which it evidently did belong, and those where the evidence offered was obtained under the constraint of an oath, administered upon a judicial inquiry in regard to the very crime for which the prisoner is on trial, is obvious and runs through all the cases. The reason for the distinction between the examination of a party upon a direct inquiry as to the crime with which he is afterwards charged, and his testimony in another case, is well stated by Mr. Greenleaf, in his work on evidence (1 Greenl. Em., § 226). After stating the decision in Rex v. Lewis, before cited, he says: “ This case may seem, at the first view, to be at variance with what has just been stated as the general principle in regard to testimony given in another case: but the difference lies in the different natures of the two proceedings. In the former case the mind of the witness is not disturbed by a criminal charge, and moreover he is generally aided and protected by the presence^ of the counsel in the cause; but in the latter case, being a prisoner, subjected to an inquisitorial examination and himself at least in danger of an accusation, his mind is brought under the influence of those disturbing forces against which it is the policy of the law to protect him.” Mr. G-reenleaf makes no use of the word voluntary in illustrating this distinction.

To review for a moment our ground : It will be seen that there are three distinct classes of cases in which, upon the trial of persons for crime, their previous statements upon oath may be offered in evidence against them, viz: 1. When the oath was administered, not upon any direct investigation as to the crime itself, but in some other suit or proceeding; 3. When it was administered by a magistrate engaged in a preliminary examination as to the crime; and 3. Where it was taken before a coroner’s jury. We shall be able to form a clear idea of the state'of the authorities on the subject, by arranging them according to this classification. Of the cases cited, Merceron’s case and Wheater’s case belong to the first class, andinboth of these cases the evidence was received, Lewis’ case, Davis’ case and Haworth’s case belong to the second class. In the first two the proof offered was rejected, and in the last it was received, it being expressly stated in „the case that the statement was made “ before the prisoner was either charged or suspected of any crime.” The other cases, viz., Owen’s two cases, Wheeley’s case, Sandys’ case, and the anonymous case stated in the note to Haworth’s case, all belong to the third class. In three of these the evidence was rejected; in the other two, to wit, Owen’s first case and Sandys’ case, although it was received, the question was expressly reserved for the opinion of the fifteen judges, and never afterwards passed upon. The case of Broughton is sui generis, and has but little bearing upon the question, because it is put upon a distinct and peculiar ground, while it expressly.i'ecognizes-the accuracy of the decision, in Lewis’ case«. , This, classification-discloses the striking fact .that there has,, so far as appears, never yet been a single reported decision in. favor of the admissibility under any circumstances, upon a-trial.for murder, of the éxamination of the prisoner before .a.- coroner’s, .jury.. The two. cases in which it was received, reserving .the question, have not the weight of decisions, even, at .the assizes, because that is the only mode in which the opinion of the court in banco in England can be obtained. So far as authority goes, therefore, there are three decisions, at- the English assizes against, and not one anywhere in. favor of its admissibility. There is just reason for grouping examinations before a coroner’s jury in a distinct class.. . The nature of the crime, the time of holding such .inquisitions, immediately upon the death, the public excitement, and the circumstances usually attendant, are peculiarly calculated to produce that serious disturbance of the faculties, against which; in the language of Grreenleaf, “ it-is the policy of the law to protect men.” It ought not, therefore, .to be matter óf surprise that there is no decision in favor of the -admissibility of such examinations in any case, even where it. appears, as it did in the anonymous case decided by Park, J., that no suspicion attached to the party when the examination, was taken.' I hold the decision in that case and the one in .Wheeley's case to be right. But whether they can be sustained or .not, there can, I think, be no doubt of the propriety of excluding .the evidence, where the party, when testifying before the coroner’s jury, is conscious that suspicion is resting upon'him,' It would' be inadmissible, under -such' circumstances, even when taken before the examining magistrate. .This has been held in every case upon. the subj ect. Haworth's case is no exception. A fortiori, then, it should be excluded when taken upon an inquest by the coroner. It is only necessary to look at the question put to Hendrickson, upon his examination, to see that .he must have been fully aware that he was suspected, The repetition of the question as to the time when he was last in Albany, and the questions as to his having visited the drug store, could not fail to have suggested to his mind the fact that suspicion was directed to him. In view, therefore, of the reasoning and authorities here presented, I have no hesitation in coming to the conclusion that the admission, upon the trial of this case, of the statements of the prisoner, made on oath before the coroner’s jury, was erroneous, and that a new trial should be granted for that reason.

Although this conclusion is decisive of the case, it maybe expedient to express briefly an opinion as to the admissibility of the will of Lawrence Van Deusen as evidence to the jury. I have been unable to take any view of the case which would showthis will to be relevant and pertinent evidence. Its relation to the issue, if any, is so remote, and its bearing so uncertain, that I cannot perceive that it could furnish a safe foundation for any inference whatever. In a criminal, and especially a capital case, too much care can hardly be taken to guard the minds of the jmy from the influence of testimony which can have the slightest tendency to mislead. As the testimony concerning the will was received by the judge, under objection, the jury would naturally seek to make some use of it, and to draw from it some inference bearing upon the issue to be determined.

I am therefore decidedly of opinion that this evidence was improperly received, and that for this reason also a new trial should be granted.

Gardiner, Ch. J. (dissenting.)

Our statute in regard to the examination of persons accused of crimes, and the English statute from which it was borrowed, are supposed by some writers to be innovations upon the common law. Whether this opinion is well founded or not, it is agreed on all hands that, in order to render the examination of the person charged admissible as evidence, the requirements of the statute must be substantially complied with, and that any departure calculated to prejudice the accused will be sufficient to exclude. it from consideration. The declaration must be without oath, uninfluenced by threats or promises, and, as a preliminary, the party must bé apprised that he is free to speak or be silent. It is quite unnecessary to vindicate the humanity and justice of these provisions. When an individual is charged with a specific offence, he is apprised by the form of proceeding, not only that he is suspected, but that there is legal proof to justify that suspicion, which he is called upon to combat or explain. He is placed in the attitude of a defendant, and as he could not by the rules of the common law, in a civil suit, be permitted or compelled to testify, it would be singular if he did not enjoy an equal immunity in a criminal prosecution, when his liberty or life was involved in the issue.

In prohibiting the magistrate from administering an oath, the statute follows the common law in analogous cases. The prohibition is the result of the relation sustained by the accused to the prosecution as a defendant, and not at all because an admission under oath is involuntary, or because it is not entitled to the same or greater credit than one obtained without that sanction. The permission granted to interrogate a person thus circumstanced, when his answers could only be used as evidence against him, was, as has been suggested, a departure from the strict rule of the common law, and the legislature has, with great propriety, sought to prevent the abuse of the power by making it the duty of the magistrate to inform the defendant that he is at liberty to refuse an answer to any question. As the prisoner is subjected to a new ordeal, he is prepared for the trial by a previous warning that it can only take place at his election. It is obvious that the exemption of the defendant from an examination on oath, and the duty imposed upon the examining officer, arising, as they do, from the relation which the former sustains to the prosecution and the express provisions of the statute, can have no application where those relations are different, and where the individual is thrown upon the common law exclusively for his protection against self-crimination. Hence, when called as a witness, either in a civil suit or criminal prosecution, his deposition has always been held admissible against him. (2 Stark. Ev., 1, 27, 7th ed.; Rex v. Wheater, 2 Moody C. C., 45; 2 Stark. Ev., 37, pt. 1, 7th ed.; Rosc. Cr. Ev., 45.) It makes no difference whether the deponent has been suspected, or whether he may have been called to testify to the corpus of the offence for which he was subsequently put on trial. There is nothing in the relation in which the witness stands to the cause or parties from which the law can imply suspicion or guilt. He is presumed innocent as well as indifferent, and compelled to testify. The exception to the general rule is, that he is not obliged to depose to any fact that may tend to criminate himself. This is his privilege—a defence provided by the law, but which he must assume for himself. He cannot be warned of a danger by others, the knowledge of which in all cases is supposed to be, and in nine cases out of ten is in fact, confined to the witness. If he chooses to testify, what he says is evidence against him in all cases and all courts where he is properly a party. The notion that because he is sworn his deposition is not voluntary, is simply absurd. He has the privilege to speak or be silent." If he elects to answer, the oath binds him to speak the truth. If this is moral coercion, moral freedom consists in the liberty of lying unnecessarily with impunity.

In Wheater1 s case (supra), the defendant had been charged with forgery before the lord mayor, but had been discharged for want of sufficient evidence. He had therefore been suspected and charged with the offence. He was then examined before the commissioners in bankruptcy touching the bills against his father, on whom the forgery had been committed. He was informed of his rights, and objected to certain questions, and was compelled to answer them notwithstanding his objections. He was subsequently indicted for the forgery, and his deposition was received, although Coleridge, J., before whom the trial was had, doubted as to its admissibility, and the point was reserved for the consideration of the judges. The question was argued in 1838 before all the judges, with the exception of Bark and Gurnet ; and all, with two exceptions, concurred in the opinion that the evidence was properly received. This case establishes that a sworn statement made by a witness in a cause between other parties, is voluntary; second, that it is not invalidated by the circumstance that the witness had been suspected or even charged with a crime arising out of the transactions in relation to which his testimony was given. It is true that the defendant was apprised of his privilege, but no stress seems to have been laid upon that fact in the decision, nor do I perceive, how it could legitimately have affected the result.

The case before us belongs to a third class, differing in some respects from both of those to which I have adverted. Hendrickson 'was called, sworn,' and .testified before the coroner’s jury, without1 warning as to his privilege, and without objection on his part. If on that occasion he occupied the position of a person accused of a crime, or a defendant, his situation’would be'similar to that' of a person before an examining magistrate; and although the tribunal might be different, yet, upon principle, his rights should be the same in both cases. If, however, he was but a witness, and in no just sense a party, his statement was rightfully received in evidence. In the first place, the proceedings before the coroner were a mere inquest of office. Their object was to ascertain the cause of the death of Mrs. Hendrickson. They did not presuppose that a crime had been committed by any one, Or that any .suspicion to that effect existed. The inquiry would have been just as legitimate if the decedent had come to'her death by disease or accident, or by her own hand, as by the act or procurement of another. If, in the prosecution of the inquiry into the circumstances occasioning her death it had appeared that a crime had been committed and that the defendant was the criminal, the jury might have found the fact, and it would have been the duty of the coroner to commit him for trial. But the exercise of this authority would be a consequence of the inquisition, and not the object for which the inquiry was instituted. (1 Tomlin's Law Dic., 432.) From the time that a felonious homicide was established, the proceedings would assume the form of an inquiry before a grand jury. It appears affirmatively in this case that the prisoner was the first witness examined; that he was requested to give an account how the death occurred, and made his statement accordingly. The verdict of the jury is not given, nor any more of the proceedings than merely to show that he was sworn and interrogated, and that his answers were received on the trial. I think we must assume that as he was subpoenaed, sworn, and testified as a witness, he preserved that character throughout. If the coroner had, at any time prior to the verdict, assumed to act as an examining magistrate upon any charge against the defendant founded on the testimony elicited upon the inquest, or otherwise, that fact should have been stated. The statement made by him, therefore, as a witness, was rightfully submitted to the jury. The coroner did not apprise him of his privilege; such an intimation in some cases would be an act of humanity, in others an insult. It is sufficient that the law has imposed no such duty upon any one but an examining magistrate, which in this case the coroner was not.

I have not adverted to the nisi prius decisions in England, because they are irreconcilable with each other. In the case of The Queen v. Owen (9 Carr. & Payne, 83), indicted for rape, a deposition taken before a coroner’s jury was admitted in evidence. Where, however, the defendants were on trial for murder, the same deposition was rejected by a different judge. Baron G-üeiíbt, who presided on the last trial, said that he could ,not see the distinction between Wheater's case and others in principle; and he does not allude to or seem to be aware of the fact that the decision of Coleridge, J., at the circuit, had been affirmed by the fifteen judges. There is no distinction in principle; and the weight of authority in England is in favor of the reception of the evidence.

The second exception, and the only other one argued, presents, to my mind, a question of more difficulty. The will of the father of the deceased was offered in evidence by the prosecution, objected to as irrelevant by the prisoner, and admitted by the judge; it was read to the jury, and the counsel for the defendant then moved to strike out the evidence for irrelevancy, and the motion was denied. To these several rulings exceptions were duly taken.

The will devised all the property of the testator to his wife for life, and at her death one-half to his son, the other moiety to be equally divided between his two daughters, of whom Mrs. Hendrickson was one. Conceding that great latitude of inquiry is admitted, in cases of murder, as to all circumstances calculated to influence the conduct of the accused, still there must be some limit; and the one prescribed by common sense would seem to be, that the fact proved, either alone or in connection with other evidence given or offered, should tend to establish the matter in issue. .There certainly is no obvious connection between the will of the testator and the murder of his daughter. If it presented a motive for the commission of the offence, it must be because the defendant would gain by the death of the decedent, or because he was dissatisfied with the disposition made of the property of the testator. The first hypothesis is inadmissible, because the prisoner might gain if he and his wife survived her mother; an advantage which would be lost in case of her death during the continuance of the life interest -of the latter. In regard to the second, it cannot avail the prosecution, because there was not a semblance of proof that any dissatisfaction existed. The prisoner and his wife were placed upon precisely the same footing as her sister Hungerford and her husband; and there is neither evidence nor any probability that the prisoner expected that his father-in-law would discriminate in his favor in the disposition of his estate. The people proposed, in a previous stage of the trial, to show the dissatisfaction of the prisoner, by his own declarations, but no such evidence was given; and the jury were left, therefore, to assume this fact, and then infer from it a motive to murder his wife because her father had dealt less liberally with him than he had anticipated. Stakkie remarks that, “as the very foundation of indirect proof is the establishment of one or more facts from which the inference is sought to be made, the law requires that the latter should be established by direct evidence, in the same manner as if they were the very facts in issue.” There can be no pretence that this has been done in the present ease, and I am of the opinion that the exception must be allowed, and for that reason a new trial ordered.

Allen, J., also dissented, on the ground that there was error in admitting in evidence the statements of the defendant before the coroner.

Judgment affirmed.


source: Caselaw Access Project

author: Edwards, J. Gardiner, Ch. J.

license: Public Domain

text:
    Wright, Pres’t of Luther Wright’s Bank, against Hooker.
    Under the Code of Procedure, it is sufficient if facts be stated in the complaint which warrant the judgment, although the grounds upon which the judgment was rendered were other than those evidently contemplated by the pleader.
    Partners may adopt any name for the transaction of their partnership business, and may bind themselves by different partnership names, in their different places of business.
    Where X. & Co., residing at 0., in pursuance of a partnership agreement with H. of T. for carrying on the transportation business, which was conducted at 0. in the name of. I. .& Co., and at T. in the name of H., drew a hill of exchange on H., in the name of and payable to the order of X. & Co., which was endorsed by I. & Co., discounted by the plaintiif, and the proceeds applied to the general partnership business; H. having refused to accept, in an action .against I. & Co. and H. jointly, it was Held, that H. was liable not only for money lent to the partnership, but also as one of the joint drawers of the bill.
    On the 16th of April, 1849, an agreement was entered into by Benjamin Isaacs and Isaac S. Isaacs, of Oswego, and James H. Hooker, of-Troy, in the following terms:
    “ Memorandum of an agreement made' and entered into this 16th day of April,. 1849, by and between'James H. Hooker, of Troy, New-York, of the first part, and Benjamin Isaacs & Co., of Oswego, New-York, witnesseth:
    “ That the parties hereto hereby agree to continue to run the transportation line upon the Erie and Oswego ■ canals during the navigable season of 1849, known as the Oswego, Troy and Ohio Line, to connect at Troy with the old line ‘ Troy tow-boats,’ and at Oswego with the party of the second part; each party to have an equal interest, that is, James H. Hooker is to share one-half, and B. Isaacs & Co. the other half of the profit or loss of said line.
    The business of said line shall be done with boats owned or chartered by the parties hereto, and no boat shall be purchased for said line without consent of both parties.
    “ The party of the first part is to furnish such clerks and agents at Troy, Albany, New-York and Boston, for the purpose of conducting the business of said line, as may be necessary, for which the parties hereto are to pay in proportion to their respective interests.” (Then follows a table of the shipping charges to be allowed to B. Isaacs & Co. upon goods received at Oswego from the line for transportation westward, or received from the lakes and shipped by the Oswego, Troy and Ohio Line.)
    “ The party' of the first part hereby agrees to become accountable for all property and charges delivered him at Troy, and the parties of the second part hereby agree to become accountable for all property and charges delivered them at Oswego.
    “ The books and accounts of the said Oswego, Troy and Ohio Line ate to be kept at Troy by the party of the first part, and a statement of the business thereof rendered to the parties of the second part at least once in each month during the season of navigation.
    “ It is expressly understood and agreed among the parties hereto, that no drafts shall be made upon the party of the first part by the party of the second part, neither will the party of the first part accept any such draft, unless for money in his hands due to the parties of the second part for charges and tolls advanced by them, and accompanied by bills of lading representing charges consigned to him; the said parties of the second part hereby agreeing to raise the necessary funds for paying charges and tolls on all property shipped by said Oswego, Troy and Ohio Line from Oswego or vicinity, without drawing upon the party of the first part, except as hereinafter mentioned; it being understood that the said parties of the second part may, as often as twice or three times each month during the season of navigation, render to the said party of the first part an account of charges and tolls advanced by them on property shipped by said line to the said party of the first part, and deduct therefrom the charges on all goods up received by them, and draw upon the said party of the first part, at twenty or thirty days or longer time, for the balance actually in his hands; and should a balance at any time be found to be due on such statements to the party of the first part, it is to be immediately paid in cash. A general settlement of all the business of the said Oswego, Troy and Ohio Line shall be made at Troy on the first Monday of January next, and any balance then found to be due from one party to the other shall be paid immediately.

      “It is Understood that the said line shall use all its influence for the house of B. Isaacs & Co,, at Oswego, and said Isaacs & Co. to give all their influence' and business to said line.
    “It is expressly understood that nothing contained in this agreement shall be so construed as to create any associated interest or partnership between the parties hereto, excepting the one particular business of the Oswego, Troy and Ohio Line, and that only as regards the legitimate freighting business by said line/’
    " The agreement concludes with a clause providing for a discontinuance and settlement of the business.
    No general partnership name being adopted, the business of . the concern was done at Oswego in the name of B. Isaacs & Co., and at Troy in the name of James H. Hooker.
    In August, 1849, B. Isaacs & Co. drew upon Hooker a bill in the following terms :
    “ $1000. Oswego, 7ih August, 1849.
    “ Thirty days after date please pay to the order of B, Isaacs & Co. one thousand dollars, value received,, and charge the same to the account of ch’gs.
    “B. Isaacs & Co,
    “ To James H. HooEer, Troy, N. Y.”
    This bill was endorsed by the payees and discounted by the plaintiff. B. Isaacs & Co. received the avails, with which they purchased com on account of the partnership, which was forwarded to and received and sold by Hooker, who refused, however, to accept the bill. The plaintiff brought • this action in March, 1850, against the Isaacs and Hooker jointly, to recover the amount of the bill or the money advanced upon it. "There were special counts stating the foregoing facts, but not directly charging Hooker as a drawer of the bill, and also counts for money lent by the plaintiff to the defendants. Hooker alone defended; and the 'cause was brought to trial at the Oswego circuit in June, 1850, before Mr. Justice Allen, a jury being waived. Some of the facts appearing in evidence are mentioned in the opinion of Edwards, J., below. The judge held that Hooker was “ liable as drawer upon the bill in suit,” and on that ground gave judgment for the plaintiff for the whole amount of it. The supreme court in the fifth district affirmed this judgment at general term, Pratt, J., delivering the opinion, in which it was held that the circuit judge erred in the ground upon which his judgment was based, but that the defendant was liable for money lent. Hooker appealed to this court, and the cause was argued here by

      H. P» Hunt for the appellant, and

      George F. Comstock for the respondent.
   Edwards, J.

For the purpose of determining whether the defendant Hooker is liable upon the draft in question, and, if so, in what capacity, it will be necessary to ascertain what were the business relations existing between him and Isaacs & Co.

It appears by the bill of exceptions that on the 16th of April, 1849, the defendant Hooker, as party of the first part, and the defendants Benjamin and Isaac S. Isaacs, using the name of Benjamin Isaacs & Co., as parties of the second part, entered into an agreement to continue to run the transportation line upon the Erie and Oswego canals, known as the Oswego, Troy and Ohio Line; each party to have an equal interest in the profits, and to bear an equal share of the loss. The business of the line was to be done with boats owned or chartered by the parties to the agreement; the clerks and agents to be employed at Troy, Albany, New-York and Boston, for the purpose of conducting the business of the line, were to be paid for their services by the parties according ■ to their respective interests. The books of account of the business were to be kept by the party of the first part at Troy, and he was to forward a statement of the accounts to the other parties at least once in each month. And, finally, the agreement states that nothing therein contained shall be so construed as to create any associated interest or partnership between the parties thereto, excepting m the one particular business of the Oswego, Troy and Ohio Line, and that only as regards the legitimate freighting business.

This agreement, it will be seen, in express terms created a partnership, ■ and the first question to be considered is, what was its extent, or rather, what is the meaning of the words legitimate freighting business P

The best exposition" to be adopted is, undoubtedly, that which was given by the parties themselves. It will be observed, then, that the partnership agreement was a continuation of a previously existing arrangement, and it appears, by the account which was kept between the parties during the year 1848, that numerous entries were made of drafts accepted by the defendant Hooker, which were drawn against wheat and- flour, which, as stated by one of the witnesses, were purchased by Isaacs & Co.,. and sent to Hooker for the account of the line, and in order to freight its boats. Ik was also proved that the same practice continued after the partnership agreement of 1849 was entered into. Indeed, the agreement itself makes express provisions for transactions of such a character. It further appears that, according to the course of business between the parties, whenever produce was paid for in cash by Isaacs & Co., at Oswego, they raised the money by procuring a discount of drafts drawn by themselves upon Hooker. This was known to and acquiesced in by him, and, with a few exceptions, the drafts were paid by him. It. seems to me, then, that the conclusion is irresistible, that the purchase of the com by Isaacs & Co., for the purpose of being sent by them, upon the line of boats owned by the partnership, followed by actual shipment to Hooker, constituted a part of the legitimate freighting business, and that all the parties so understood it, and became liable upon, such purchase, and also for all moneys advanced for the purpose of enabling them to make it. * But if there- were any doubt as to the capacity in which Isaacs & Co. acted in making the purchase in question, I- think that it is removed by the particular circumstances of the case. It appears from the bill of exceptions that shortly' before the purchase was made the defendant Hooker sent a person in his employ to Oswego with a letter addressed to. Isaacs & Co. The letter states that the bearer of it will talk to Isaacs & Co. in relation to business; that he will inquire about com, and will advise with them. It also appears that, after thp receipt of this letter, the bearer of .it went with Isaacs &, Co. to look at different lots of com, and was informed by them that they were going to buy the com. in question, and was afterwards informed by them that they had purchased it, and he neither -said nor did anything expressive of his disapprobation of their acts. It-further -appears that Hooker was telegraphed as to the price of the com before it was purchased, and that no answer was received from him ; and, finally, it appears that the com was shipped to Hooker to be disposed of on account of the line, and that it was received and disposed of by him. Under these circumstances it seems to me that we must come to the conclusion that the com was purchased for the benefit of the partnership, and that all the members of the partnership are liable for the money which was advanced to Isaacs & Co. to enable them to make the purchase. ■

The next question is as to the capacity in which they are liable, or rather, as the other two defendants have made default, as to the capacity in which the defendant Hooker is liable. The justice by whom the action was tried held that he was liable as one of the drawers of the bill. The court-at general term held that he was liable for money lent. In my judgment there is sufficient in the case to establish his liability in either capacity. It will be observed that the parties had not, by their articles of agreement, adopted any partnership or firm name. But it appears that the partnership business at Oswego was done in the name of Isaacs & Co., with the acquiescence and approbation of all the members of the firm, and the name of Isaacs & Co. was, as to such business, the partnership name. It must follow, therefore, that as the money in the case before us was advanced upon the discount of a draft drawn in the name of Isaacs & Co., and was used by the firm in its partnership business, all the members of the firm, including the defendant Hooker, became liable as drawers. It is no objection that his name does not appear as drawer, for, as the partnership name was used in the partnership business, all the partners were embraced in it. This is the principle which was established in the somewhat analogous case of The Bank of Rochester v. Monteath (1 Denio, 402).

The learned justice who delivered the opinion of the court at the general term seems to have thought that, in the case above cited, the defendant should have been held liable for money lent, and not as party to the bill in suit, and he refers to the cases of' Allen v. Coit (6 Hill, 318), and Rogers v. Coit (ib., 323). Whether the court, in forming their opinion in the case of The Bank of Rochester v. Monteath, thought that the facts differed from those in the two cases last cited, or whether they intended to overrule these cases, does not appear; but, if the facts are to be regarded as the same in all the cases, I should unhesitatingly adopt the rule laid down in the case of The Bank of Rochester v. Monteath as the correct one.

It is contended, however, that there is not sufficient stated in the complaint to authorize the court to hold the defendant Hooker liable as one of the drawers of the bill. The Code of Procedure requires that the complaint shall contain a statement of the facts constituting the cause of action. In this case it is stated that all the defendants were purchasers; that Isaacs & Co. conducted the business of the partnership at Oswego in their names; that as parties they bought a large quantity of corn for the benefit of the firm, and drew a draft upon Hooker, in the name of Isaacs & Co., for the firm, which the plaintiff discounted, and that Hooker received the corn purchased by means of the discount, and that it was sold and disposed of by him. I think that these allegations are sufficient to sustain the judgment of the court that Hooker became liable as one of the drawers of the bill in suit. It is true that it would appear that the person who drew the complaint contemplated that Hooker would be held liable in some other capacity. But that is immaterial. The very object of the new system of pleading was to enable the court to give judgment according to the facts stated and proved, without reference to the form used or to the legal conclusions adopted by the pleader.

The judgment should be affirmed.

Gardiner, Ch. J.

It may perhaps be questioned whether the plaintiff is not bound to sustain his recovery upon the ground, and the only ground, upon which it was allowed by the learned judge before whom the cause was tried. Whether this be so or not, I think the ruling was correct. The last count in the complaint charges that the defendants were copartners in the forwarding, transportation and other business, at Troy and Oswego and at other places; that Hooker conducted the business of the firm at Troy and the Isaacs at Oswego; and that the latter, for the said firm, on the 7.th of August, 1849, drew the draft in question. There was certainly evidence, I think very strong evidence, tending to prove the allegation in the-complaint above mentioned. It is, however, sufficient to say that there was some proof, and that the judge who tried the cause without the intervention of a jury must have found the facts substantially as stated in the complaint, as he placed the plaintiff’s right to recover exclusively upon that ground. If so, the judgment was warranted by the principle established in The Bank of Rochester v. Monteath (1 Denio, 402), and in The Bank of South Carolina v. Case (8 Barn. § Cress., 427).

The whole court concurring,

Judgment affirmed.