Brown v. Osgood , 25 Me. 505 ( 1846 )

The opinion of the Court was drawn up by

WhitjiaN C. J.

The plaintiff’s claim of title depends upon a levy upon the demanded premises as the property of Abraham Osgood, Sen’r; and that of the defendant on a deed thereof made to him anterior to the levy by the said Abraham, Seu’r. The plaintiff contends, that the deed so made was intended to delay or defraud the creditors of the grantor therein, of whom the plaintiff was one; and that the same is therefore inoperative against him. Much evidence, at the trial, was introduced on the one side, and on the other, in reference to this point, as is fully shown by the bill of exceptions, with a view to support a motion filed by the defendant for a new trial, upon the grounds therein set forth. In the argument of the defendant’s counsel, however, the reliance for obtaining a new trial seems to have been placed, almost altogether upon the matter arising under the bill of exceptions. Our attention, therefore, will principally be confined to the consideration thereof.

It appears that the deposition of said Abraham, Sen’r, had been taken by the defendant to show, that his conveyance to the defendant was bona fide, and for a valuable consideration; at the taking of which the plaintiff was present, and put cross-interrogatories, the answers to which, he deemed important to the maintenance of his action. At the trial the defendant declined using the deposition. The plaintiff thereupon called for it, and agreeing to use it as if taken by him, no objection was made to his doing so, and he read it as evidence to the jury. In it the witness appeared to have been asked by the defendant, whether the conveyance was made by him bona fide, and for a valuable consideration or not; and he answered in the affirmative. The counsel for the defendant insisted, that this, being in a deposition, used by the plaintiff as if taken by him, was conclusive evidence, that such was the fact; that, having made the witness his own, it was not competent for him to prove that the fact was otherwise ; and more especially so in a case in which the question, as to the intention of the witness, was involved, concerning which no one could have positive knowledge but himself; and requested the Court so to instruct the jury, which was declined. The counsel now argue that the Court erred in not complying with their request.

It is undoubtedly a general rule that a party should not be permitted to disparage the credibility of a witness, introduced by himself, by showing him to be generally unworthy of credibility. But to this, as to most other general rules, there are some exceptions, as stated in Greenl. on Ev. vol. 1, ^ 443; and he, moreover, adds that, “ it is exceedingly clear, that the party calling a witness is not precluded from proving the truth of a particular fact, by any other competent testimony, in direct contradiction to what such witness may have testified; and this, not only when it appears that the witness was innocently mistaken, but even where the evidence may collaterally have the effect of showing, that he was generally unworthy of belief.” And the cases cited under the section, fully sustain the position.

But the counsel insist, that this can be done only when the party is surprised by the testimony of his witness; that if he introduces him, well knowing that his testimony will be adverse to his interest, he will be concluded by it; and, as an authority in support of this distinction, they cite and rely upon the case of Alexander v. Gibson, 2 Campb. 555 ; and the marginal abstract of the reporter is to that effect; but the Court make no mention of any such qualification of the rule. The case, however, is in point for the defendant to the effect, that a party shall not be allowed to avail himself of the testimony of his witness in part, and repudiate the residue. But this was a decision at nisi prius; and is expressly overruled by the whole Court in this particular, in the case of Bradley v. Ricardo, 8 Bing. 57; and the rule, as laid down in Buller’s Nisi Prius, was recognized as the settled law; and without reference to the matter of surprise. A witness may be called to testify to a great number of facts essential to the interest of the party calling him, who may know, that, on cross-examination or voluntarily, he, from mistaken impression, or from some other cause, will testify incorrectly as to some particular facts. Must he forbear to call him in such case ? Such a rule would be productive of no advantage in legal proceedings, but would often tend to the suppression of the truth. Every days experience teaches, that witnesses may testify incorrectly as to some one, out of a great number of facts, accompanying a transaction; whether from misapprehension or a design to favor the other party, it may be very difficult, if not impossible, to determine. At the same time the party producing him may have it in his power to show the incorrectness of the testimony in such particulars. Surely, in charity he may be allowed to suppose his witness mistaken, and to disprove such statement, though it may tend even to show that the witness’ credit is not entirely free from suspicion : and, besides, when found to be stating facts against the interest of the party calling him, which can be proved to be untrue, should tend to fortify his credit as to those which he may state promotive of the interest of such party, as it would thereby be rendered evident, that such tes- . timony was not the result of preconcert or of partiality. Accordingly, Mr. Justice Putnam, in Brown v. Bellows, 4 Pick. 179, in delivering the opinion of tho Court, lays down the law to be, that “ a party is not obliged to receive, as unimpeachable truth, every thing which a witness, previously called by him, may swear to and that, “ if the witness has been false or mistaken in his testimony, he (the party calling him,) may prove the truth by others.” Neither in this case, nor in Bradley v. Ricardo, before cited, is there a word about surprise. It may well be presumed that no party would introduce a witness to prove a single fact, with full knowledge that he would testify to the contrary.

But, as to the matter of surprise, it is believed to be referable, legitimately, only, to the question whether, when a party has produced a witness, who testifies adversely, he shall be allowed to show that the witness had, on a former occasion, made a different statement. There may be good reason for holding, that, unless the party in such case can make it apparent, that he had good reason to suppose the witness would have testified differently, he should not be permitted to show that the witness had made a different statement at another time. It has been doubted, whether a party should be permitted to do so at all, in reference to his own witness; but Mr. Greenleaf, (vol. I, § 444,) thinks the weight of authority is in favor of its admissibility. And the case of Cowder & al. v. Reynolds, 12 Serg. & R. 281, supports it. A difficulty, however, in such cases seems to present itself, as an issue is made, which the Court must decide, viz. whether the party is surprised by the testimony of his witness. If the Court cannot bo satisfied that he is, he cannot produce the evidence of a different statement at another time. But the difficulty may not be greater, in such case, than in many others, in which the Court may be called upon to consider of the admissibility of testimony. But we need not, in the case before us, decide upon the admissibility of such a rule, as it was not attempted to affect the credit of the witness in any such manner. The question is only glanced at here by way of showing, that, as to the matter of surprise, it is not applicable to the case before us.

And there is another view of this case, which, if it were necessary, might be considered as relieving it from the difficulty, upon which the argument for the defendant is in a great measure based. There can be no question, but that, a party introducing a witness may show, in reference to some one fact, to which he may testify, that he may have been innocently mistaken. It will not be contended, that the witness in this case is versed in the law. When he says his sale was bona fide, it may readily be believed that he was ignorant of the legal acceptation of the terms used by him in reference to a sale where the rights of his creditors might be concerned. It often happens that individuals think, that they are doing a very meritorious act by putting their property into a condition, that shall prevent it from being attached. They may fancy that they shall, thereby, avoid a sacrifice consequent upon the levy of a fieri facias, and be enabled the better, ultimately, to pay their debts, or to make an equal distribution of their property among their creditors ; and this they would call acting bona fide; and to one, unlearned in the law, it might seem to be so. But such contrivances, by a person in debt, are deemed in law to be fraudulent; for creditors are not only entitled to have the opportunity of attaching the property of their debtors, but all contrivances to delay the collection of debts are unlawful. The plaintiff, therefore, might well be permitted, in this case, to show that his -witness labored under a mistake, in saying that the sale was bona fide.

One other ground is relied upon by the defendant’s counsel in argument. It is, that the Judge erred in charging the jury, that the property of the debtor, as it was by the sale converted into a debt due to him, by a negotiable security, could not be reached by a trustee process, without adverting to a remedy, which is provided for the creditor, by compelling the debtor to make disclosure, under the Rev. Stat. c. 148, § 29. But the security so afforded is both remote and contingent and altogether precarious. On commencing his action against his debtor a creditor acquires no lien. He must first obtain his judgment, and then take out his execution, and arrest his debtor, who, by giving a bond, will have six months more, in which he may make a disclosure; or at the end of it go into prison without disclosing. In all this time the creditor is without security, and the debtor at liberty to squander or dispose of his property at pleasure. To consider this as indicating the absence of design to delay or defraud a creditor would be contrary to the teachings of every days experience and observation; and should rather tend to confirm the presumption, arising from other circumstances, to the contrary. There could therefore be no error in omitting to charge the jury as to any such matter as tending to support the defence.

From the evidence disclosed, we are unable to come to the conclusion that the verdict was against evidence, or even against the weight of evidence.

Exceptions and motion for a new trial overruled.