Stearns v. Merchants' Bank
Decision Date | 14 January 1867 |
Citation | 53 Pa. 490 |
Parties | Stearns <I>versus</I> The Merchants' Bank. |
Court | Pennsylvania Supreme Court |
It has been decided that a party cannot impeach the character of or discredit his own witness, by evidence of general bad character, but it has been a subject of discussion how far a witness could be impeached, or discredited, by the party producing him by proving declarations and statements conflicting with his statements under oath.
The latest authorities in England, previous to the change by the Common Law Procedure Act, stand thus: —
In Phillips and Arnold's treatise upon Evidence (1852), vol. 2, p. 540, it is said: "It must be admitted that the weight of modern authority is in opposition to the opinion, reasoning and arguments of Lord Denman," who advocated their admissibility, and the same conclusion seems to be arrived at by the learned editors of Starkie on Evidence, in 1853, vol. 1, pp. 250, 251, and in an early edition of Taylor on Evidence, vol. 2, p. 951, it is said: that "the weight of authority in this country is decidedly in favor of rejecting such proof." In the last edition of Greenleaf on Evidence, by Judge Redfield, in 1866, vol. 1, s. 444, a, the doctrine is stated distinctly, that such evidence cannot be admitted. In speaking of the admission of such evidence, the editor says, p. 491:
In Thompson v. Blanchard, 4 Comstock 311, the Court of Appeals of New York (Jewett, J., delivering the opinion), after stating the general rule as to a party impeaching his own witness, say,
In The People v. Safford, 5 Denio 118, cited by Judge Jewett the old Supreme Court of New York said,
In 2 Taylor on Evidence, 1212, 4th ed. 1864, § 1282, it is said: "The Common Law Procedure Act, 1854, contains in § 22 the following salutary though ill-drawn enactment on this subject: — `A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall, in the opinion of the judge, prove adverse,' that is `hostile,' as contradistinguished from being merely unfavorable, `contradict him by other evidence, or by leave of the judge prove that he has made at another time a statement inconsistent with his present testimony, but before such last-mentioned proof can be given, the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness, and he must be asked whether or not he has made such statement.'" See 3 Chitty's Collection of the Statutes 774, 3d ed.; Greenough v. Eccles, 28 L. J. C. P. 160.
This last provision of the statute is the established rule where the credit of an opposing witness is to be impeached by proof — that he has made statements, out of court, on the same subject, contrary to what he has sworn at the trial — "and provided also, that such statements are material to the question in issue:" 2 Phillips on Evidence 432, and 10th ed. by Phillips & Arnold, vol. 2, p. 504; 1 Greenleaf's Ev. § 462, p. 511; Wright v. Cumpsty, 5 Wright 110; Wertz v. May, 9 Harris 274.
In Stockton v. Demuth, 7 Watts 39, Judge Sergeant said: "It would seem, however, that he cannot contradict his witness by adducing any act or declaration of the witness himself of a contrary tenor, for where a witness called for defendant to prove a partnership between him and the defendant, denied the fact, an answer made by the witness in Chancery, in which he had stated the contrary, was not admissible, because its only effect would be to impeach the credibility of the witness, though it was competent to the defendant to prove the fact of partnership by other means."
In Smith v. Price, 8 Watts 447, it was held that "a party cannot after examining a witness give in evidence his former testimony and declarations, ostensibly to discredit him, but in truth to operate as independent evidence." The per curiam opinion is in the strong, nervous language which characterized C. J. Gibson: In Southwark Ins. Co. v. Knight, 6 Whart. 330, 1841, Judge Sergeant says: "He cannot even discredit his own witness, though he may prove the facts to be otherwise than as stated by him:" Stockton v. Demuth, 7 Watts 39; and these cases are again cited by the same learned judge, although for another purpose, in Turner v. Waterson, 4 W. & S. 175 (Sept. 1842); see also Logan v. McGinnis, 2 Jones 32. In Bull v. Towson, 4 W. & S. 557, the offer was by the defendant to discredit the plaintiff's witness by producing a deposition of the witness in which he gave a different account from what he testified on the trial, and this was clearly admissible by all the authorities: Wertz v. May, 9 Harris 274.
The present case is a peculiar one. It was an action of assumpsit on a promissory note made by the defendants to the order of Champlin & Co., and endorsed by them and George Carey & Co. to the Merchants' Bank of Cleveland, Ohio, the plaintiffs. The defendants alleged that the note was taken up by George Carey & Co., and that the bank had no interest. This was done to make available any defence the defendants had against the payees and endorsers.
The defendants entered a rule for a commission to Mr. Baldwin, of Cleveland, Ohio, to take testimony, and on the 23d of July 1863 the commission issued, and was returned on the 21st September, with the depositions of T. P. Handy and W. L. Cutter, president and cashier of the bank, to prove that the note was taken up by Carey & Co., and that the bank had no interest in it. The plaintiffs do not appear to have joined in this commission, or to have filed cross-interrogatories.
On the 27th October 1863 the plaintiff entered a rule for a commission to R. E. Mix, Esq., of Cleveland, Ohio, to take testimony. On the 18th November defendants filed cross-interrogatories, and named Mr. Baldwin as commissioner, to act in conjunction with the one named by plaintiffs. On the 6th February 1864 this commission was returned and filed, with the depositions of the same witnesses, taken on direct and cross interrogatories, by a commissioner of each party. These depositions show that the witnesses were entirely mistaken in their first depositions, and that the bank owned the note.
On the 8th December 1864 the defendants entered a rule for a commission to Lewis W. Ford, of Cleveland, to take depositions but no interrogatories were filed. February 18th 1865, the defendants entered another rule, appointing the same commissioner, and filed interrogatories to be exhibited to W. L. Cutter of Cleveland, and other witnesses. The plaintiffs named Robert E. Mix as joint commissioner. No depositions were taken on either of these commissions. The cause was tried in December 1865, and resulted in a verdict for plaintiffs, on the 13th of that month, of $348.61, and on the 2d September 1866 judgment was entered upon it.
The interval between the verdict and the judgment was filled up with a motion for new trial on the 15th December 1865, which was discharged on the 29th August 1866, the charge of the court being filed on the 15th June. We have not the commissions and depositions which are the subjects of the controversy, but only the statements of counsel of their contents, or rather of their effect, and the bill of exceptions does not state what they were. The practice at Washington of printing the whole record, would in this case...
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