
    Joseph F. Sabine, Executor vs. Thomas B. Strong, Administrator
    Upon the true construction of the Eev. Sts. c. 68, § 8, c. 82, § 6, the jSL of 1838, c. 165, and the St. of 1840, c. 87, an appeal from the decision of commissioners on the estate of a deceased insolvent debtor, allowing or rejecting the claim of a creditor, lies to the supreme judicial court, if the claim exceeds three hundred dollars.
    
      When a deponent, after giving his deposition to be used in the trial of an action pending, or immediately to be commenced, in good faith, becomes interested in the event of the suit, by no act of his own, or of the party who offers his testimony, his deposition is admissible.
    When a deposition is taken out ‘of the State, on a commission, and the commissioner states, in his certificate of the caption, that the directions accompanying the commission have been complied with, the deposition will not be rejected merely because some of the answers of the deponent lead to the belief that he had, before he answered certain interrogatories, read previous ones.
    When a deponent, who testifies to the presentment of a bill of exchange to the acceptor, and a demand on him for payment, annexes to his deposition a copy of the bill thus presented, the deposition is competent evidence, in an action by the in-dorsee against the drawer, of the presentment and demand of such bill, and will be conclusive, unless the drawer shows a different bill of the same tenor.
    This was an appeal, under the Rev. Sts. c. 68, § 8, from a decision of the commissioners of insolvency, appointed to receive and examine the claims of creditors against the estate of the defendant’s intestate, Benjamin Mills, disallowing a claim against said estate, made by the plaintiff’s testator, William H. Sabine.
    The trial was had before Hubbard, J., who made the following report of the case : The plaintiff filed his declaration upon two drafts, both dated August 5th 18§6, at Chicago in the State of Illinois, and both payable 12 months after date; one for $5000, and one for $2500,-drawn by Benjamin Mills, the defendant’s intestate, upon John B. Beaubien, and by him accepted, payable to the order of said Mills, by whom it was indorsed in blank. Such drafts, so drawn, accepted and indorsed, were read to the jury. The defendant objected, that this appeal should have been taken to the court of common pleas, and that this court had no jurisdiction of the case, under St. 1840, c. 87 This objection was overruled.
    The plaintiff introduced the deposition of Royal Stewart, to prove demand and notice upon the drafts. The defendant objected to the admission of the deposition; 1st, because not taken pursuant to the rule of the court, it appearing, as the defendant contended, that the deponent read succeeding interrogatories before answering the preceding ones, though the commissioner certified that he had complied with the directions which accompanied the commission, and which contained the 7th rule of the court, as found in 24 Pick. 386; 2d, because said Scewart,at the time of the trial, was interested in the event of the suit. From the deposition of said Stewart, it appeared that he married a daughter of said William H. Sabine, and it also appeared from said Sabine’s will, a copy of which was in the case, that a legacy was given to the wife of said Stewart, to be paid to her on her separate receipt. Both the testator and legatee died after the deposition was taken.
    This objection was overruled, and the deposition was read to the jury. The deponent testified that he was a witness to a demand of payment made on two drafts, of which true copies were written in his deposition; and that the original drafts were before him at the time of giving his deposition. The defendant objected to the reading of these copies in evidence, because the original drafts, being before the deponent, and in his possession, should have been annexed to his deposition, and not being so annexed, there was no sufficient evidence that the two drafts, of which he witnessed a demand of payment, were the identical drafts read on the trial; the identity thereof being proved only by what purported to be such copies. This objection was overruled.
    The plaintiff also introduced the deposition of James H. Collins, to which the defendant also objected, because, as he contended, it appeared from the deposition itself that the deponent read succeeding interrogatories before he had answered preceding ones.
    A verdict was found for the plaintiff, which is to be set aside, and a new trial granted, if any of the aforesaid objections of the defendant was well taken. If the court has no jurisdiction, such disposition is to be made of the case as the full court may order
    
      Byington, for the defendant.
    It is submitted, that all appellate jurisdiction of claims against deceased insolvent debtors is taken from this court, by St. 1840, c. 87. The defendant, however, relies more on the objections which he took to the evidence, and to the competency of Stewart to testify. It is manifest on the face of both depositions, that the deponents, before they answered certain interrogatories, knew what was asked in subsequent ones. This shows a violation of the rules of the court, 24 Pick. 386, and of the instructions annexed to the commissions under which these depositions were taken; and the certificate of the commissioner, that he had complied with the directions accompanying the commission, is not conclusive against the defendant. Minot v. Bridgetuater, 15 Mass. 492. In Reed -v.Boardman, 20 Pick. 441, and Amherst Bankv. Root, 2 Met. 522, where the depositions were held admissible, it did not appear affirmatively, as it does in this case, that any part of the rules of the court had been violated.
    Stewart was interested, when his deposition was used, though not when it was taken, and it was therefore inadmissible in a trial at laio. Tilley’s case, 1 Salk. 286 Bul. N. P. 240. Greenl. on Ev. § 168. The only case, on this point, in our books, is Gold v. Eddy, 1 Mass. 1. That was a trial on a writ of review, where, by statute, each party was “ entitled to the evidence before used,” and a deposition, which had been before used, was therefore admitted, though the deponent had become interested. The principle is, that depositions cannot be used, except where the deponent might testify, if present; depositions being a substitute for oral testimony. Rev. Sts. c. 94, §, 26 Le Baron v. Crombie, 14 Mass. 234.
    The drafts were not identified. The originals, as they were in Stewart’s possession, should have been annexed to his deposition. The copies annexed may have been transcripts of other drafts of the same tenor.
    
      Gold & Rockivell, for the plaintiff.
    Under St. 1840, c. 87, this court has exclusive jurisdiction of this appeal, because, by a fair construction of St. 1838, c. 165, it had such jurisdiction, where the sum claimed was over $ 300, and that jurisdiction is expressly continued by St. 1840.
    The instructions to commissioners for taking depositions, which are prescribed by the rules of the court, are not conditions precedent, but merely directory; and unless gross misconduct is shown, their deviation from such instructions will not deprive a party of the testimony of his witness. Reed v. Boardman, 20 Pide. 441. Amherst Bank v. Root, 2 Met. 522. Amherst Bank v. Conkey 4 Met. 459. But there is nothing in the de« ponents’ answers, which renders it certain that they knew the contents of interrogatories which they had not answered. Certainly there is nothing which shows that the commissioner had imparted any thing to them improperly.
    Stewart was the only witness of the demand and notice, and is admissible of necessity, even if he be interested. Martin v. Horrell, 1 Stra. 647. Anon. 1 Salk. 289. Barlow v. Vowell, Skin. 586. . Bent v. Baker, 3 T. R. 34, 36. Herman v. Drink-water, 1 Greenl. 27. But it does not appear that the deponent ever will have any interest in the estate of William H. Sabine. At most, it is such a contingent and uncertain interest as will not exclude him. Bean v. Bean, 12 Mass. 22. He was certainly a competent witness when he testified, and that is sufficient for the plaintiff’s present purpose. Greenl. on Ev. § 168. Goss v. Tracy, 1 P. W. 289. 1 Stark. Ev. 263. 1 Mass. 1.
    The annexation of copies of the drafts was sufficient. It is what is done by notaries, in case of protest. Story on Bills, 302, note (2). See also Welsh v. Barrett, 15 Mass. 380. Washington Bank v. Prescott, 20 Pick. 339. Seymour v. Strong, 4 Hill, 255.
   Shaw, C. J.

1. The first question is, whether this appeal was rightly taken to the supreme judicial court. The defendant, administrator of Benjamin Mills, had represented the estate of his intestate insolvent; the appellant, as the executor of William H. Sabine, presented his claim to an amount much exceeding $300, which was rejected by the commissioners; whereupon the plaintiff took an appeal to this court. The revised statutes direct this proceeding by appeal from the decision of the commissioners, in place of the former method of bringing an action by writ on the original cause of action, in order that a claim against an insolvent estate may be tried, •defended and decided according to the rules and course of law The provision is, that “ if the demand shall be such as might be carried by appeal, in a common personal action, from the court of common pleas to the supreme judicial court, the appeal from the commissioners shall be made directly to the supreme judicial court.” Rev. Sts. c. 68, ■§> 8. This is imperative, and definitely fixes the case in which it shall be carried to the supreme judicial court; and the succeeding clause gives the court full jurisdiction to try and determine it, in like manner as if an action had been brought therefor. This description of the demand, which determines when the appeal shall go to the supreme judicial court, manifestly refers to Rev. Sts. c. 82, $ 6, which allows such appeal, in any personal action wherein the demand shall exceed $ 100. Probably the circumlocution was used, instead of the precise sum, in order that if afterwards the right of appeal should be further limited, in a personal action, the regulation of the appeal from commissioners should follow and change with it. By the subsequent St. of 1838, c. 165, this was changed, and the right of appeal was further limited to cases in which the demand should exceed $300. It is ai reasonable construction of the statute first above cited, that the appeal from the decisions of commissioners of insolvency would change accordingly; lying to the supreme judicial court, if the claim exceed $ 300, and to the court of common pleas, if not more than that sum.

Then came St. 1840, c. 87, upon which the present question arises. It provides, <§> 4, that there shall be no appeal from any judgment of the court of common pleas, upon the verdict of a jury. Now, the argument is, that as the right of appeal to the supreme judicial court from the commissioners of insolvency depends on a right to appeal from the court of common pleas to the supreme judicial court upon a similar demand, and this right is taken away in all cases, by the latter act, in personal actions, it follows that it is so in case of an appeal from the com missioners. But it appears to us that this is too hasty a conclusion, and is not the true construction of the statute. Strictly speaking, the right of appeal from the court of common pleas is not taken away, on demands exceeding $300, but only in case of judgments on the verdict of a jury. The truth is, that by the late act, the right of appeal is made to depend, not on the amount of the demand, but on the question whether the iudgment is on matter of law or of fact; so that the amount of the demand ceases to be a test of the right of appeal On the construction proposed, it might be contended, perhaps with equal force, that as all cases are now open to appeal, when the judgment is on matter of law, and as it cannot be known, when the action is to be entered, whether the judgment will be on matter of law or on the verdict of a jury, all cases in personal actions are open to appeal, and therefore that all cases of appeal from the commissioners of insolvency must be to the supreme judicial court.

It is manifest, we think, from the whole tenor of the statute, that it was not the intention of the legislature to change the forum before indicated for the trial of demands against insolvent estates. It was certainly not done in terms, and if done at all, it is by inference and implication. If the question stood merely upon the clause cited, it might be more doubtful; but there is another clause of the statute of 1840, which tends to explain it. It directs, § 1, that “ the supreme judicial court shall continue to have concurrent jurisdiction with the court of common pleas, in all cases in which they now have such concurrent jurisdiction, and shall continue to have original and exclusive jurisdiction in all cases in which they now have such original and exclusive jurisdiction.” It is a sound rule of construction, that every part of a statute must be taken into consideration, in eonstruing any part; and that such construction shall be put on the whole, if practicable, that each clause shall have effect. The clause in regard to the right of appeal from the court of common pleas to the supreme judicial court, and the clause respecting the continuance of the jurisdiction of the supreme judicial court, may be well construed together, so as to direct, that notwithstanding the modification of the right of appeal, in personal actions, yet in all other respects, the courts respectively shall continue to have the same jurisdiction which they then had. It is obvious that, by force of the existing acts, the supreme judicial court had then exclusive jurisdiction of appeals from the commissioners of insolvency, on demands over three hundred dollars; and we think that, by force of the act of 1840, they continued to have it.

2. But by far the most material question is, whether the deposition of Royal Stewart, tendered by the plaintiff, was rightly admitted. It was objected by the defendant, that this deposition ought not to have been received, because the said Stewart was interested in the event of the suit, at the time of the trial, though not so at the time the deposition was taken The facts are, that this suit was commenced by William H„ Sabine ; that during the progress of it he died, and his executor came in to prosecute. The deposition was taken before his death. The interest of Stewart in the estate is thus stated: His wife was the daughter of William H. Sabine, who, by his will, gave her a legacy payable to herself, as a feme sole; that she died before the trial; and that her husband, the deponent, as her heir, had become interested in the estate, as being entitled to such legacy.

Here it is manifest, that the interest is indirect; that it depends on the event of the estate of the plaintiff’s testator being solvent; and that it devolved upon the witness after he had given his deposition, without any act or default of his own, or of the party proposing to use his testimony, but by the acts of providence, and the operation of law. The court are of opinioi; that when a witness has thus become interested, after the deposition is taken, it may be used at the trial. In the first case ir. the Massachusetts reports, Gold v. Eddy, 1 Mass. 1, it was sc admitted, although the deponent had himself become party to the suit, as administrator. It is true that the court rest their opinion, in some measure, on the statute of reviews, containing directions, which imply that each party is entitled to the evidence before used; but this, of course, must be limited to competent evidence. It is admitted, in the same case, that if the deponent were present at the trial of the review, and had not become interested, the deposition could not be read. It is therefore not merely because the evidence had been Defore used, but because the witness had become interested, and therefore incompetent, that the deposition, taken when that objection did not exist, and when he is presumed not to have been influenced by the bias of interest, is received as evidence. The case therefore, we think, is an authority to the general principle.

In chancery, such a deposition is admissible, and in trials at law of issues out of chancery. Greenl. on Ev. § 168. 1 Stark. Ev. 263. As bearing on the general question, see Baker v Lord Fairfax, 1 Stra. 101. Glynn v. Bank of England, 2 Vessen. 42 Holcroft v. Smith, 1 Eq. Cas. Ab. 224. Goss v Tracy, 1 P. W. 289.

This rule may not be considered as extending to the case of a deposition, taken in perpetuam, or otherwise, of one who may expect to have an interest afterwards, or with a view to a future controversy; as where one gives evidence by deposition, in regard to the title of his father, or other ancestor, and after-wards the property becomes his own by descent. It might enable a party to make evidence for himself contrary to the general principles of evidence. Tilley’s case, 1 Salk. 286. 2 Ld. Raym. 1008. Such a question may be properly reserved until it arises. The present decision is limited to a case where a deposition is taken in due course,, for a suit pending, or immediately to be commenced, in good faith, to be used in such suit, and the deponent, before the trial, has an interest devolved upon him by no act of his own or of the party offering the deposition.

3. Another objection was made to this, and also to Collins’s deposition, on the ground that the succeeding interrogatories were read by the witnesses, before the preceding ones were answered; and that this appears from the depositions themselves.

The certificate of the caption states that the directions accompanying the commission had all been complied with. Still there are answers leading to the belief, that the deponents had read some interrogatories before they answered previous ones. If the subsequent interrogatories were not read to the witnesses by the magistrate, or if they were not permitted by him to read them, there was no violation of the rule. But, without relying upon that ground, the court are of opinion, that the rules, so far as they are designed to direct and regulate the conduct of the commissioner, in the mode of taking depositions, are directory, in the nature of a letter of instructions accompanying the dedimus potestatem, respecting the manner in which the power conferred is to be executed, and are not conditions precedent, without an exact compliance with which, the deposition must be rejected. Reed v. Boardman, 20 Pick. 441. Amherst Bank v. Root, 2 Met. 522.

It is to be considered that these commissions are to go to foreign places, often governed by laws and usages widely different from our own; and therefore some such form of specific instructions is highly expedient, to insure regularity and uniformity in the mode of taking evidence under them. But if they should be regarded as conditions, the more minute and exact the directions, the more difficult it would be to obtain a deposition which would be admissible. If, indeed, there should appear such a considerable departure from the directions as to show a gross neglect or wilful violation of duty, or to indicate any partiality, misconduct or impropriety on the part of the commissioner, it will be the duty of the judge at the trial to reject the deposition.

4. One other objection was taken by the defendant, which was, that the drafts were not sufficiently identified by annexing copies to one of the depositions, and that the originals should have been annexed. If the originals are annexed, they must rema.n annexed until the trial; and it would be impossible for the party, having occasion to take several depositions in different places, to annex the originals to all of them. But we think there is no ground for the exception. It is observable that this is the precise mode that is adopted by notaries in protesting foreign bills; and their protests are of the highest authority, as evidence of demand and notice. They identify the bill, by indorsing a copy of it on the protest. The deposition proving that a certain note was presented, of which a copy is annexed, is competent evidence, because it proves the presentment of a note of that date, amount and time of payment. Whether it is the same with the one in suit, is a question of fact on the evidence. If no other note of the same description is shown to have been in existence, the evidence would be very strong, and, if not controlled by other proof, conclusive Here the only question is of the competency of the evidence; and the court are of opinion that it was competent.

Exceptions overruled, and judgment to be entered and certified to the judge of probate conformably to the statute.  