Wilson v. Maria , 21 Ala. 359 ( 1852 )

PHELAN, J.

— This was a suit brought by Thomas 'Wilson against Joseph M. Maria, on a lost note.

Wilson filed interrogatories under the statute to the defendant, and offered the answers as ovidence on the trial.

In answer to one of the interrogatories, Maria admitted that he had made the note set forth in plaintiff’s declaration; and in answer to another stated, that he had paid it fifteen or twenty days after it was made to the plaintiff, at his own house, and that the plaintiff then destroyed it, remarking at the time “that all was square.”

Plaintiff also introduced one Moulton as a witness, to prove “ that the note was in existence at a period long after the time at which the defendant in his answer aforesaid stated that it had been paid and destroyed.”

The defendant objected to such proof, on the ground that plaintiff had made the defendant his Avitness, and could not be allowed to discredit him; and, also, because, as appeared from the statement of the witness, plaintiff kneAv Avhat he would depose to before interrogatories Avere submitted to the defendant. The court excluded the testimony of Moulton.

The answers of a party to interrogatories filed under the statute, stand upon the same ground as an ansAver in chancery to a bill for discovery. The language of the statute is, that they “ shall be evidence at the trial of the cause in the same manner, and to "the same purpose and extent, and upon the same condition in all respects, as if they had been procured upon a bill in chancery for discovery, but no further or other-Avise.” (Clay’s Digest, 341, § 160.) It is at the option of the party, Avhetker he avüI introduce the answer in chancery of the other party or not. If he does introduce it, he admits that it is worthy of credit. 2 Story’s Eq. § 1528. The sar rule must then prevail in respect to ansAvers to interrogate ^ The party Avho introduces them admits that the resp'" indent is Avorthy of credit, and cannot impeach him.

But using the answer of the party does not mak'd con_ elusive evidence. It is to be treated like the ' testimony of any other Avitness, and is to prevail Avhen it is r ^ outweighed by other testimony, in Avhole or in part. ' &

And although a party will not be allow, impeach the general reputation of his witness for tru ]ie not be precluded from proving the truth of any particular fact in direct contradiction of what another of his witnesses may have testified; and this, not only when it appears that the former was innocently mistaken, but even where the evidence may collaterally have the effect of showing that he was generally unworthy of belief. 1 Greenleaf, § 448; 2 Phillips Ev. 447.

The testimony of Moulton was relevant to the issue. It went to prove the existence of the lost note, and gave a particular time at which the witness saw it. Suppose that plaintiff had introduced Moulton’s testimony first, might not the defendant have objected with equal reason against the introduction of his own answers, upon tlie ground tliat it was an attempt upon the part of plaintiff to impeach Moulton’s testimony? One fact to be proved by the 'plaintiff' is, the existence at some time before suit brought of tbe note, which is the foundation of the action. Moulton testifies to its existence at a particular time. The defendant, in his answer, testifies that it had no existence at that time, or rather, that it had been destroyed before that time. Here is a direct contradiction between these witnesses as to tbe truth of a particular fact, but neither can be rejected on the ground that he will impeach the other. The jury will have to decide upon the weight of the proof, and whether they may impute the contradiction to mistake ox fraud, on one side, or on the other, the testimony of both is competent, and should be received.

How the fact, that Wilson knew what Moulton would prove before he put interrogatories to the defendant, can add any force to the objection to admitting Moulton’s testimony, I do not very readily comprehend. It seems to be predicated on the idea, that if he knew that Moulton would contradict the defendant in a certain particular, and then introduced the answers of the defendant, and afterwards the testimony of Moulton, that, therefore, it is to be conclusively held, that be intended to impeach the general credibility of the defendant, which he could not do as being his own witness.

This idea loses sight of the sound distinction, that a man may contradict his own witness, and that, too, although tbe incidental effect of such contradiction be to impair bis credibility, when be cannot directly impeach that credibility. In the one case, yon assail directly the personal character of the witness; in the other, you assail directly only the correspondence of his statements with the real facts of the case. A witness may be honest, and yet not state the facts truly; and the jury must judge whether liis deviation proceeds from mistake or fraud. If the former, they may take part of what he says, and reject part; if the latter, they must reject the whole.

The court erred in rejecting the testimony of Moulton. Let the judgment be reversed, and the cause remanded.