1 S.C. Eq. 37 | S.C. Ct. App. | 1839
Curia, per
Although the first ground taken in the notice of appeal does not present the precise question made in the argument, nor cover the whole ground occupied by the counsel, yet enough is collected from the report of the Judge and the admissions of the bar to authorize the Court to consider and decide :
1st. Whether the plaintiffs’s counsel should have been allowed to cross examine the witness Dawkins, as to former declarations made by him inconsistent with his oath in court, and then, to call witnesses to prove those declarations.
2nd. Whether, after that evidence had been allowed, the-other party, or the witness himself, should not have been permitted to sustain his oath in court, by proof of general good character.
As to the first of these modes, it is obvious that it may be resorted to without in the slightest degree impugning the veracity of the witness, so long as men view the- same transaction in different lights, form different conclusions from the same premises, pay more or less attention to the same occurrences taking place before their eyes, and have memories more or less retentive. A party must be allowed to shew by witnesses called by himself, that facts are otherwise than as they are deposed by the witnesses called against him; and this, too, without being understood as so attacking the character of those adverse witnesses, as to let in evidence of general good character in reply. But it seems impossible to resort to either of the other modes without making a direct attack on the veracity and character of the witness. The proposition is direct, that he is unworthy of belief; from general infamy, in the one case, and in the other, that he either swears falsely on the trial, or was guilty of falsehood before. Such proof of former inconsistent declarations is always offered to discredit what the witness swears on the trial, and is held to be one of the most legitimate modes of doing so, as it is in fact one of the most common.
It is true the meaning of this rule is restricted by Mr. Phillipps to proof of such general bad character as would make him unworthy of credit, (1 Phil. Ev. 213, ch. 8,) and this view receives some countenance from the court in Perry vs. Massey, (1 Bailey, 32,) but the position is not sustained by any of the cases. No doubt when a party calls a witness who swears differently from what was expected, he is not precluded from relying on other proof by other witnesses that the fact is not as his first witness deposed, although this may indirectly have the effect of bringing in question the credit of such witness ; and he may, perhaps, resort to the previous admissions of the same witness, provided such admissions would, of themselves, have been competent evidence of the fact, independently of the personal bearing of the examination. Such was clearly the case of Alexander vs. Gibson, before Lord Ellenborough, (2 Camp. R. 556 ;) and, in Perry vs. Massey, the admissibility of the evidence of previous contradictory acknowledgements was rested, by the counsel who offered it, on the very ground that “ Weaver’s agency was established, and his acknowledgement of payment was evidence in the cause, independently of any purpose to impeach Weaver’s credit.” It would be extremely harsh to allow a party calling a witness to go farther.
Nor is it a sufficient answer to this reasoning, that the objection was waived by the adverse counsel. The rule is intended for the protection of the witness, and should not have been violated, even with the consent of the counsel.
If Dawkins had been the witness of the other party, and his testimony had been impeached as it was here, I think he should have been allowed to call witnesses to prove his good character. Such evidence, in its direct tendency, is calculated to shew that the witness is not worthy of credit. It is an assertion of his having spoken or sworn falsely, and his good character is a legitimate defence against the presumption that is raised against him. In Rex vs. Clarke, (2 Stark. R. 214,) before Holroyd, J. such evidence was allowed. There, the
Nor can it make any, difference that the witness was called by the party impeaching him. If the protection he was en-. titled to was withheld from him, it was due to him as a personal right to be permitted to sustain himself.
Independently of these errors in law, the Court is of opinion that this verdict ought not to stand; that it is not only opposed to the great preponderance of evidence, but that there is, in fact, in the whole report of the case, no proof of such undue and improper influence as should be allowed to invalidate a will. This phrase of undue influence, so frequently resorted to in this country, by disappointed relations, to avoid wills of persons on whom, while living, they had no claims, seems to me to be a modern innovation, and is not known in the English Courts, Every person of reasonable mind and sane memory may dispose of his property by will. It is a right secured by the municipal law, and exists in as perfect form as the right to tranfer by sale or gift during life. The true inquiry always is, whether there exists the animus testandi ; for, without that, the instrument purporting to be a will is of no effect in law. The party, therefore, must be free, and under no compulsion from such threat or violence as may reasonably be supposed to move a constant man. Even in case of such constraint or fear, if, when they are over, the testator confirms the will, it is made good. So likewise, wills procured to be made by artful misrepresentations and fraudulent contrivances, are void. But it is not unlawful for
The testator was an intelligent man, of strong mind, not yet greatly advanced in years, and only impaired in the vigour of his understanding by intemperance. He had no lawful wife, nor children, and had not lived in amity, at least not in continued amity, with his relations; and he has given his property to a stranger to his blood. This he surely had a right to do, and this is all that appears upon the face of the will.
When the executor and sole legatee proposes to produce the paper which contains the trusts, it is excluded, even by those who, in the argument to the jury, and to this Court, have urged that the will had ulterior and unworthy objects, and was made under the undue influence of a slave. We cannot, however, avoid seeing, through the face of the will, that the purpose was to provide a mode of bestowing the property on the issue of an illicit intercourse between that slave and himself. We do not choose here to speak of the indecency of such a connection, nor of the policy of permitting property to be given or devised in trust for the benefit of such persons. Until the Legislature thinks fit to interfere, we must have questions of this sort determined by the established rules of law.
Upon the whole, the Court is of opinion, notwithstanding the learned and able argument of the counsel for the appel-lees, that to allow this verdict to stand would be, to let the jury run wild under the influence of prejudices and feelings which, however honorable and praiseworthy, must not be permitted to overthrow the rules of law, or divert the current of justice. The trial by jury would otherwise become an engine of capricious injustice, instead of the safe-guard of property. The motion for new trial is granted, with the unanimous consent of the Court.