150 Mass. 445 | Mass. | 1890
Mrs. Hewitt sued for the conversion of a horse, which the defendant had attached as property of her husband. The question was, whether the horse belonged to her or to her husband. He testified in her behalf that he was not the owner. In order to discredit, his testimony, it was shown on his cross-examination that he had formerly included it in a mortgage of personal property given by him ; but he added, that he did not know that the horse was included when he signed the mortgage, and that as soon as he found that it was he went to the
It was held in Commonwealth v. Wilson, 1 Gray, 337, 340, that the rule excluding such testimony does not apply to a case where the other party has sought to impeach the witness on cross-examination. This decision was affirmed in Commonwealth v. Jenkins, 10 Gray, 485, 489, 490, where it is said that such confirmatory evidence is competent where a witness is sought to be impeached by evidence tending to show that, at the time of giving his evidence, he is under a strong bias, or in such a situation as to put him under a sort of moral duress to testify in a particular way ; or where an attempt is made to impeach the credit of a witness by showing that he formerly withheld or concealed the facts to which he has now testified. In the present case, the witness had done an act which, unexplained, appeared to be inconsistent with his testimony, and to show that at the time of giving the mortgage he claimed to own the horse. His explanation, if believed, went to show that he did not consciously do anything which amounted to an assertion of title in himself. His statement to the mortgagee, made before the present controversy arose, would have a legitimate tendency to confirm his explanation, and if he might himself testify to this statement, there can be no good reason why the mortgagee might not also testify to the same thing.
Clearly distinguishable from this is a case where it appears that the witness has at other times made statements inconsistent with his testimony, and where it is plain that he must have been false at one time or the other. In such case he is discredited by reason of his contradictory statements at different times, and it is no restoration of his credit to show that at still other times he
The defendant sought to ask one White, another witness, whether the mortgagee did not say to him, after the attachment, that he considered his title to the horse as good as to any property named in the mortgage. This question was clearly incompetent.
For these reasons, in the opinion of a majority of the court, the entry must be
Exceptions overruled.