Hewitt v. Corey

• Decision Date: 02 January 1890
• Citation: 23 N.E. 223,150 Mass. 445
• Parties: HEWITT v. COREY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

150 Mass. 445

23 N.E. 223

HEWITT v. COREY.

Supreme Judicial Court of Massachusetts, Bristol.

January 2, 1890

COUNSEL

S.M. Thomas, for plaintiff.

W.H Fox and W.W. Robinson, for defendant.

OPINION

C ALLEN, J.

Mrs Hewitt sued for the conversion of a horse which the defendant had attached as property of her husband. The question was whether the horse belonged to her or to her husband. He testified, in her behalf, that he was not the owner. In order to discredit his testimony, it was shown on his cross-examination that he had formerly included it in a mortgage of personal property given by him; but he added that he did not know that the horse was included when he signed the mortgage, and that, as soon as he found that it was, he went to the mortgagees, and told them that the horse did not belong to him, and ought not to be embraced in the mortgage. This testimony came in without objection, and the defendant made no motion to strike it out as irresponsive or incompetent. The plaintiff afterwards, by way of confirmation of her husband's explanation, called one of the mortgagees, who testified that, a day or two--perhaps longer--after the mortgage was signed, the husband came to him, and told him the horse did not belong to him, and ought not to be in the mortgage. This, according to the testimony, was before the attachment by the defendant. The defendant's exception is to this testimony by the mortgagee.

It was held in Com. v. Wilson, 1 Gray, 337, 340, that the rule excluding such testimony does not apply to a case where the other party has sought to impeach the witness on cross-examination. This decision was affirmed in Com. v Jenkins, 10 Gray, 485, 489, 490, where it is said that such confirmatory evidence is competent, where a witness is sought to be impeached by evidence tending to show that at the time of giving his evidence he is under a strong bias, or in such a situation as to put him under a sort of moral duress to testify in a particular way, or when an attempt is made to impeach the credit of a witness by showing that he formerly withheld or concealed the facts to which he has now testified. In the present case the witness had done an act which, unexplained, appeared to be inconsistent with his testimony, and to show that at the time of giving the mortgage he claimed to own the horse. His explanation, if believed, went to show that he did not consciously do anything which amounted to an assertion of title in himself. His statement to the mortgagee, made before the present controversy arose, would have a legitimate tendency to confirm his explanation; and, if he might himself testify to this statement, there can be no good reason why the mortgagee might not also testify to the same thing. Clearly distinguishable from this is a case where it appears that the witness has at other times made statements inconsistent with...