Fulton v. Hughes , 63 Miss. 61 ( 1885 )

Cooper, C. J-,

delivered the opinion of the court.

It was not error to set aside the first verdict and grant a new trial to the claimant.

The fact that Fulton, one of the partners, had sold out his interest in all the assets of the firm of Fulton & Hughes is undisputed, and since Fulton no longer had any interest in them, no instructions should have been given in reference to the distinction between firm debts and the individual debts of Hughes. The creditors of the firm had no lien upon the goods or choses in action which had previously belonged to the firm, but which, on its dissolution, became the property of Hughes, and since he alone was owner, he might lawfully appropriate them to the payment of any debt which he owed, whether it was a debt due by the late firm or by himself alone. Schmidlapp & Bros. v. Currie & Co., 55 Miss. 597.

The court below properly refused to permit the plaintiff to impeach the credibility of the witness, W. M. Hughes, by showing that he had at other times made contradictory statements in reference to the transfer of the books of account to his mother, the claimant. No foundation had been laid for the introduction of such evidence. The fact that the evidence of this witness was in the shape of a sworn statement made by the counsel for the claimant in his application for a continuance, and consequently that no opportunity was afforded to lay the foundation for impcaching the evidence by a cross-examination of the witness, does not create an exception to the rule. The plaintiff should have declined to admit the affidavit as the testimony of the witness if he desired to retain the right to impeach him. It is well settled in this State as a rule governing the production of testimony, that it is necessary to lay the foundation for the impeaching evidence by calling the attention of the witness to the conflicting statement. Newcomb v. The State, 37 Miss. 383; Scarborough v. The State, 52 Miss. 517; Cavanagh v. The State, 56 Miss. 299 ; Mitchell v. Savings Institution, 56 Miss. 444.

An examination of the record satisfies us that errors were committed both for the plaintiff and the claimant, but we are also satisfied that any other result than a verdict for the claimant could not follow a new trial, and for this reason

The judgment is affirmed.