Knight v. House

Bartol, C. J., delivered the opinion of the court. Four bills of exceptions were taken by the appellant, who was defendant below, and have been argued on this appeal. The first three present questions of evidence, and the fourth brings before us for review the ruling of the Superior Court upon the defendant’s third and fourth prayers, which were rejected. The action is indebitatus assumpsit, and the declaration contains counts on promissory notes and the common money counts; the pleas are: “ never indebted as alleged,” “ never promised as alleged,” “ limitations,” and “ the discharge of the defendant under the insolvent laws.” At the trial, there was no dispute as to the existence of the original debt.

The promissory notes of the defendant were produced and the' signature thereto admitted. The whole contest turned upon the question whether the debt had been revived by a new promise. Both plaintiff and defendant were called as witnesses. The former testified that the defendant had, after his application for the benefit of the insolvent laws, expressly promised to pay the debt, while the latter testified positively to the contrary, denying that he had ever made such a promise.

Other testimony was introduced on this subject, and evidence was offered impeaching the veracity of the defendant. The jury have passed upon the evidence, and we have no power, to revise their verdiet ; our only province and duty are to pass *upon the questions of law presented by the exceptions. These observa ¹⁹⁸ tions are made because of the peculiar character of the questions submitted to the jury, and we would not have the judgment of this court construed as an approval of their verdict, that was a matter exclusively for the jury, and we have no right either to approve or disapprove. First Exception. — We think there was no error in excluding the declarations of the defendant made to the witness, William McConky, and concur in the reason stated by the Judge of the Superior Court, “ that the declarations and statements of the defendant made in the absence of the plaintiff could not in this way be introduced for the purpose of sustaining his defense.” The case does not come within the principle stated by Greenleaf, vol. 1, sec. 201, “ that where the admissions of a party are offered as evidence against him, the whole admission must be taken together, and it would be error to exclude a part.” Here the declarations were not offered by the plaintiff.

The witness was called for the defendant and was testifying in chief, it was therefore not competent for him to introduce in his defense his own declarations made out of the presence and hearing of the plaintiff. Nor were they admissible on the ground that the witness was acting as agent of the plaintiff; his testimony fails to establish such agency; being the friend and relative of the defendant, he was called on by the plaintiff with the request that he would use his influence to induce the defendant to do something for the plaintiff. He was not authorized to make any arrangement with the defendant, nor had he any authority to bind the plaintiff by any compromise or surrender of his claim. It would be carrying the doctrine of agency farther than the authorities warrant to hold under such circumstances, that the plaintiff was bound or concluded by the defendant’s statements made to the witness.

The second exception raises the question whether if a party to a cause has been sworn as a -witness, the opposite party may offer evidence impeaching his veracity, without first giving-notice of such a design. No authority has been produced by *the appellant’s counsel to support his position that such preliminary notice is necessary. The invariable practice has been to allow such evidence without previous notice, the presumption being that every witness ought to be prepared to sustain his character whenever impeached; and we do not per ¹⁹⁹ ceive any good reason why the practice should be changed where the parties are by law made competent witnesses. • The third exception presents a more interesting question, one upon which there has been some conflict of opinion among the text writers, and in the decisions. It is as to the proper mode of examination where the purpose is to impeach the general character of a witness.

The particular point