In
52 U. S. 11
How. 430, it is said,
"where a witness was examined for the plaintiff and the
defendant offered in evidence declarations which he had made of a
contradictory character, and then the plaintiff offered to give in
evidence others affirmatory of the first, these last affirmatory
declarations were not admissible, being made at a time posterior to
that at which he made the contradictory declarations given in
evidence by the defendant."
The case having been remanded to the circuit court under a
venire facias de novo, the plaintiff gave in evidence,
upon the new trial, the deposition taken under a recent commission,
of the same witness whose deposition was the subject of the
former
Page 57 U. S. 39
examination, when the defendant offered to give in evidence the
same affirmatory declarations which, upon the former trial, were
offered as rebutting evidence by the plaintiff.
The object of the defendant being to discredit and contradict
the deposition of the witness taken under the recent commission,
the evidence was not admissible. He should have been interrogated
respecting the statements when he was examined under the
commission.
If his declarations had been made subsequent to the commission,
a new commission should have been sued out, whether his
declarations had been written or verbal.
This case was before this Court at December term, 1850, and is
reported in
52 U. S. 11 How.
480.
In order to give a clear idea of the point now brought up for
decision, it may be necessary to remind the reader of some of the
circumstances of that case.
Griffey was a builder of steam engines in Cincinnati, and made a
contract with Conrad, a sugar planter in Louisiana, to put up an
engine upon his plantation for a certain sum. Disputes having
arisen upon the subject, Griffey brought his action against Conrad
to recover the amount claimed to be due.
Upon the trial in 1849, the testimony of Leonard N. Nutz, taken
under a commission, was given in evidence. He was the engineer who
was sent by Griffey to erect and work the machine. The deposition
was taken on the 1st April, 1847. This evidence being in favor of
Griffey, the counsel for Conrad offered the depositions of three
persons to contradict the evidence of Nutz. Griffey then produced,
as rebutting evidence, a letter written by Nutz to him under date
of April 3, 1846, which was admitted by the court below, and the
propriety of which admission was the point brought before this
Court in 11 Howard. This Court having decided that the letter ought
not to have been received in evidence, the cause was remanded under
an order to award a
venire facias de novo.
Before the cause came on again for trial, Griffey took the
testimony of Nutz again under a commission on the 28th of June,
1852, when the following proceedings were had and bill of
exceptions taken.
"Be it known that on the trial of this cause, the plaintiff
having read in evidence the deposition of Leonard N. Nutz, taken
under commission on the 28th June, 1852, and filed on the 9th July,
1852, the defendant then offered in evidence a letter of Leonard N.
Nutz, dated at New Albany, on the 3d April, 1846, with an affidavit
annexed by said Nutz of the same date, all addressed to the
plaintiff in this cause, and as preliminary proof to the
introduction of said letter the defendant adduced the bill of
exceptions
Page 57 U. S. 40
signed upon a former trial of this cause and filed on the 23d
February, 1849, and the endorsement of the clerk upon said letter
of its being filed, showing that said letter had been produced by
the plaintiff in said former trial, and read by his counsel in
evidence as the letter of said Nutz in support of a former
deposition of the same witness. And the said letter and affidavit
were offered by said defendant to contradict and discredit the
deposition of said witness taken on the said 28th of June, 1852;
but upon objection of counsel for the plaintiff that the said
witness had not been cross-examined in reference to the writing of
said letter or allowed an opportunity of explaining the same, and
that upon the former trial the counsel for defendant had objected
to the same document as evidence, and the objection had been
sustained by the Supreme Court of the United States, the court
sustained by said objections and refused to allow the said letter
and affidavit annexed to be read in evidence, to which ruling the
defendant takes this bill of exceptions and prays that the
interrogatories and answers of said Nutz, taken on said 28 June,
1852, the said letter and affidavit annexed, of date the 3d April,
1846, with the endorsement of the clerk of filing the same, and the
bill of exceptions filed on the 23d February, 1849, be all taken
and deemed as a part of this bill of exceptions, and copied
therewith accordingly."
"THEO. H. McCALEB, U.S. Judge [SEAL]"
Upon this exception, the case came up again to this Court.
Page 57 U. S. 45
MR. JUSTICE McLEAN delivered the opinion of the Court.
This action was brought to recover the balance of three
Page 57 U. S. 46
thousand seven hundred and eighty-one dollars and fifty-eight
cents claimed to be due under a contract to furnish, deliver, and
set up, on the plantation of the defendant, in the Parish of Baton
Rouge, a steam engine and sugar mill boilers, wheels, cane
carriers, and all other things necessary for a sugar mill, all
which articles were duly delivered.
The defendant in his answer set up several matters in
defense.
The error alleged arises on the rejection of evidence offered by
the defendant on the trial before the jury, and which appears in
the bill of exceptions. The plaintiff read in evidence the
deposition of Leonard N. Nutz, taken under a commission on the 28th
of June, 1852, and filed the 9th of July succeeding. The defendant
then offered in evidence a letter of the witness dated at New
Albany on the 3d April, 1846, with an affidavit annexed by him of
the same date, addressed to the plaintiff Griffey. As preliminary
proof to the introduction of said letter, the defendant adduced the
bill of exceptions signed upon a former trial of this cause and
filed on the 23d February, 1849, showing that the letter had been
produced by the plaintiff in the former trial and read by his
counsel in evidence as the letter of Nutz in support of a former
deposition made by him. And the said letter and affidavit were
offered by the defendant to contradict and discredit the deposition
of the witness taken the 28th June, 1852, but upon objection of
counsel for the plaintiff that the witness had not been
cross-examined in reference to the writing of said letter or
allowed an opportunity of explaining the same, it was rejected.
At the former trial, the letter was offered in evidence by the
plaintiff in the circuit court to corroborate what Nutz, the
witness, at that time had sworn to; and the letter was admitted to
be read for that purpose by the court. On a writ of error, this
Court held that the circuit court erred in admitting the letter as
evidence, and on that ground reversed the judgment.
Conrad v.
Griffey, 11 How. 492.
The rule is well settled in England that a witness cannot be
impeached by showing that he had made contradictory statements from
those sworn to unless, on his examination, he was asked whether he
had not made such statements to the individuals by whom the proof
was expected to be given. In
The Queen's Case, 2 Brod.
& Bing. 312;
Angus v. Smith, 1 Moody & Malkin 473;
3 Starkie's Ev. 1740, 1753, 1754;
Carpenter v. Wall, 11
Adol. & Ellis 803.
This rule is founded upon common sense, and is essential to
protect the character of a witness. His memory is refreshed by the
necessary inquiries, which enables him to explain the
Page 57 U. S. 47
statements referred to, and show they were made under a mistake,
or that there was no discrepancy between them and his
testimony.
This rule is generally established in this country as in
England.
Doe v. Reagan, 5 Blackford 217;
Franklin Bank
v. Steam Nav. Co., 11 Gill & Johns. 28;
Palmer v.
Haight, 2 Barbour's Sup.Ct. 210, 213; 1 McLean 540; 2
id. 325; 4
id. 378, 381;
Jenkins v.
Eldridge, 2 Story 181, 284;
Kimball v. Davis, 19
Wend. 437; 25 Wend. 259.
"The declaration of witnesses whose testimony has been taken
under a commission, made subsequent to the taking of their
testimony, contradicting or invalidating their testimony as
contained in the depositions, is inadmissible if objected to. The
only way for the party to avail himself of such declarations is to
sue out a second commission. . . . Such evidence is always
inadmissible until the witness, whose testimony is thus sought to
be impeached, has been examined upon the point, and his attention
particularly directed to the circumstances of the transaction, so
as to furnish him an opportunity for explanation or
exculpation."
This rule equally applies whether the declaration of the
witness, supposed to contradict his testimony, be written or
verbal. Starkie's Ev. 1741.
A written statement or deposition is as susceptible of
explanation, as verbal statements. A different rule prevails in
Massachusetts and the State of Maine.
The letter appears to have been written six years before the
deposition was taken which the letter was offered to discredit.
This shows the necessity and propriety of the rule. It is not
probable that, after the lapse of so many years, the letter was in
the mind of the witness when his deposition was sworn to. But,
independently of the lapse of time, the rule of evidence is a
salutary one, and cannot be dispensed with in the courts of the
United States. There was no error in the rejection of the letter,
under the circumstances, by the circuit court; its judgment is
therefore affirmed, with costs.
Order
This cause came on to be heard on the transcript of the record,
from the Circuit Court of the United States for the Eastern
District of Louisiana, and was argued by counsel. On consideration
whereof, it is now here ordered and adjudged, by this Court, that
the judgment of the said circuit court in this cause be, and the
same is hereby, affirmed, with costs and interest, until paid, at
the same rate per annum that similar judgments bear in the courts
of the State of Louisiana.
