107 Mass. 111 | Mass. | 1871
To show that the testimony of the plaintiff as to the time when he bought the notes in suit was not to be relied on, the defendant produced his previous written answers to interrogatories filed under the practice act, in which he stated a different time. In reply to this, it was clearly competent for the plaintiff to explain that he was mistaken in his first answer, and took steps to correct the mistake when discovered. In answer to the question what he did in .this connection, he stated, it is true, that he went to his counsel and informed him of it. His statements to others in the absence of the defendant would not be competent evidence of the facts stated, and do not appear to have been offered as such. In answer to the question here put, the fact that he went to his counsel, and the statement made, must be regarded as acts accompanying the discovery of the mistake and explaining the plaintiff’s conduct in regard to it. As such, the evidence was properly admitted as against the defendant’s general objection to its competency. Commonwealth v. Hawkins, 3 Gray, 463. It is not necessary, under our practice, to first ask the witness whether he has ever testified differently. Gould v. Norfolk Lead Co. 9 Cush. 338.
It is urged that the plaintiff should have first asked leave to amend his written answers, and could not, without such amend ment, be allowed to explain them. But the plaintiff was called as a witness, and must have the privileges of a witness when his former declarations are used to discredit his testimony.
Exceptions overruled.