Wertz v. May
| Decision Date | 21 June 1853 |
| Parties | Wertz <I>versus</I> May. |
| Court | Pennsylvania Supreme Court |
Cessna, for plaintiff in error.—The draft offered and rejected, showed the boundary of the defendant's claim. It was proposed to show in addition, that May, the defendant, said that a certain line on that draft was the limit of his claim. It was said that the error was not cured by the withdrawal of the objection after bill of exceptions sealed, as the plaintiff was put to inconvenience in proceeding with his case, and perhaps prejudiced by the rejection of the evidence offered.
As to the 3d exception, as to the deposition of Mardath, (which it appeared had been taken in a former suit between the same parties as to the same land, viz.: in an ejectment of May v. Wertz and another, to April, 1841), it was said by plaintiff's counsel that this deposition was written by the defendant's counsel, and was not certified by the justice before whom it purports to have been taken. It was said that the defect first stated was not cured by the fact that the plaintiff's attorney at that time consented that the defendant's counsel should write the deposition. The consent was not in writing; but it was said that if it had been, it would not avail.
As to the 6th assignment, it was said that the evidence was not applicable to the matter in controversy. As to the 7th, the right to give such evidence was alleged. See the assignment.
As to the 8th assignment: Though the Court had the right to express an opinion on the facts of the case, yet it was but fair that the whole of the evidence should be mentioned, and submitted to the jury in its proper aspect. That the Court omitted referring to the testimony of important witnesses for the plaintiff, and to instruct the jury as to the law of estoppel.
Lyon and Russel, for defendant.—To the 1st and 2d assignments, it was replied that it was sufficient that the objection to the papers was withdrawn, and that they were read: 11 Ser. & R. 362; 1 Pa. Rep. 182.
To the 3d: The deposition having been taken in a suit between the same parties and for the same matter, it comes within the words and spirit of the Act of 28th March, 1814: Dunlop 248; Hobart v. McCoy, 3 Barr 419. It was shown that Mr. Barclay wrote the deposition by agreement of Peter Wertz and his counsel. Hence under the case of Farmers' and Mechanics' Bank v. Woods, 1 Jones 99, it was rightly admitted.
As to the 4th and 5th specifications: It is competent for the party calling a witness, to prove that the witness was mistaken in any part of his testimony, by calling other witnesses to rectify the mistake, or to prove that on other occasions he had related the story in a different manner: De Lisle v. Priestman, 1 Brown's Reports 174-183; Cowden v. Reynolds, 12 Ser. & R. 281; Bank of Northern Liberties v. Davis, 6 W. & Ser. 289; Harden v. Hays, 9 Barr 151. The admission of contradictory statements of the same witness (2 Barr 32, McAteer v. McMullen), is in the discretion of the Court; 3 Barr 221, Kay v. Fredrigal.
As to the 7th exception, the case of Braddee v. Brownfield, 9 Watts 124, was cited to the point that a party cannot give evidence...
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