18 Tenn. 343 | Tenn. | 1837
delivered the opinion of the court.
In this case, various questions of law are insisted on as grounds for reversing the decree of the circuit court.
1. The first objection insisted on by defendant’s counsel is, that the petition and answer were not read to the jury as forming the issues to be tried, but the matters submitted were drawn up on a distinct piece of paper. We perceive no error in this. The matter in issue by the pleadings, is the adultery of the defendant with the negro Polly, and with other women unknown. This identical enquiry is the one winch was submitted to the jury, and to try which they were sworn. Whether it was read to them from the bill and answer, or from a distinct piece of paper, can make no difference.
2. The next objection is, that the deposition of G. G. Ridley was improperly admitted as evidence. Notice was given to take this deposition, and .the day fixed was a few days after the commencement of the term, at which the order which had been previously made for taking depositions, expired. If an order were necessary to authorise the taking of depositions in such a case, there was no authority for taking this deposition. The record says it was taken after the order had expired. Jt was taken then without any authority derivable from said order, and must be considered as though there had been no order. But divorce cases are in the nature of chancery suits, and the proceedings in them are according to the course of the practice in chancery, except
3. The next exception is to the introduction of certain witnesses to sustain the credit of Andrew Hamilton, who had been examined as a witness by complainant, on the ground that the character of said Hamilton had not been attacked by the defendant. The record shows that Hamilton was subjected to a searching cross examination by defendant’s counsel, in which many questions as to the situation of the buildings, his motives for being in the place where he witnessed the facts to which he deposed, &c., all going strongly to evince that no credit was given to his statements, and tending to make that impression on the jury. A witness may be impeached by proving that he is not worthy of credit, or that the facts to which he deposes are not true, or by cross examination, in which he may be involved in inconsistencies. 3 Starkie, 1753, 7, 8.
In this case, the cross examination was of a character from which the counsel manifestly intended to argue that the witness had sworn falsely. But to put the matter beyond dispute, it is now earnestly argued, notwithstanding the witness has proved a good character, that this very cross examination convicts the witness of a faLehood, and proves that he is unworthy of belief. It seems strange that with this argument upon his lips, counsel should still maintain that the witness was not impeached. There was no error in permitting the plaintiff to prove Hamilton's good character.
4. The next objection is, that the court permitted-the complainant to examine witnesses to prove that Wallace, whose deposition had been read, was unworthy of belief. The deposition of Wallace had been taken by the complainant, but was not read on her behalf, but her counsel refused to read it, whereupon the defendant’s counsel read the deposition to the
We think Wallace cannot be -regarded as the complainant’s witness. She was not bound to use the evidence after the deposition was taken. She did not, by introducing him before the jury, stand pledged that he was worthy of credit. We do not perceive that the case differs in principle from the case of a witness, who may be summoned and sworn in a cause but not examined by the party summoning him. If such witness be afterwards examined by the other party, he makes him his own witness, and subjects him to all the rules of evidence applicable'to such relation.
5. It is insisted there was error in permitting the plaintiff to prove by T. B. Davidson, that the witness Wallace had said that the defendant had co-habited with his negro, Wallace not being a’sked or having denied in his testimony thathehad made such statement. This statement of Davidson was illegal. It is not competent to prove what a witness may have said in conversation, although it may contradict his evidence, unless he deny upon oath that he bad made the statements sought to be proved. 3 Starkie, 1753, 5. Had this evidence been objected to in the court below, it would have been error to have permitted it to go to the jury. But the record states that the plaintiff asked leave to introduce proof against the general character of B. R. Wallace, to which the defendant objected, because “he was notthe plaintiff’s witness although she had declined to use his testimony, and the defendant had used it.” This is all the objectiou which was made in relation to the attack of this witness. Afterwards the record shows the plaintiff examined several witnesses as to the general character of Wallace, and then introduced and examined Davidson, as above stated. To this examination no objection was made.
In the case of Ewell vs. The State, 6 Yer. Rep. 364, it is decided, that if incompetent evidence be permitted tp go to
6. The next objection is to the charge of the court to the jury. The answer of the defendant having been read to the jury, the court charged them that the denial in the answer of the facts charged in the bill, was equivalent to the evidence of one witness proving those facts, and that to outweigh the answer, there must be in support of such opposing witness, corroborating circumstances; but that they were to treat the answer as evidence, and looking at his situation, they were-to estimate the truth of the defendant’s statements in the same manner as they would the testimony of any other witness.
If there is error in this charge, and we think there is, that error is in favor of the appellant. By the act of 1799, c 19, § 2, it is provided, that where the defendant shall appear and answer, and either of the parties shall desire any matter of fact that is affirmed by the one and denied by the other, to be tried
7. The remaining question to be considered is, whether the' verdict of the jury ought to have been set aside as contrary to tn.. ""'idence. This question must be determined upon the same prin..' '1os that are applicable to (rials at Jaw. By the act of assembly, u._ party wishing it is entitled to have the issues tried by a jury. It -'■>( competent therefore for the chancellor to disregard the verdict and decide the cause upon his own conclusions as to the facts. .
If the party has a right to a jury trial, then all the rules established by this court, must apply in their full force. It is unnecessary therefore to go into an examination of the proof in-the cause. It is enough to say that the verdict is not repugnant to the evidence, so far from it, that when the evidence of Hamilton, Mulherrin, Mrs. Bins and Alley, are taken together, and we do not consider either of them as having been successfully impeached, it is very difficult to resist the conclusion to which the jury have arrived.
Without any open rupture, it is manifest from the proof, that a coldness has for a long time existed between these par
Decree affirmed.