Smith v. Price

Jul 15, 1839
Reporters:
Per Curiam.

This was a very ingenious device; but it must not succeed. To introduce testimony ‍‌‌‌​​​​‌‌​​​​​‌‌​‌‌‌​​​​‌‌​​‌‌​‌‌‌​‌​‌‌‌‌‌‌​​‌​‌‌​‌‌​‌‌‌‌‌​‌‌‌​‌‌‌​‌‌​‌‌​‌​‌‌​​​​​​‌‌‌‌​‌​‌‌​‌​‌‍formerly given by the plaintiff’s son before arbitrators, and to get his naked declarations before the jury, he was first called as a witness, and his former testimony and declarations ‍‌‌‌​​​​‌‌​​​​​‌‌​‌‌‌​​​​‌‌​​‌‌​‌‌‌​‌​‌‌‌‌‌‌​​‌​‌‌​‌‌​‌‌‌‌‌​‌‌‌​‌‌‌​‌‌​‌‌​‌​‌‌​​​​​​‌‌‌‌​‌​‌‌​‌​‌‍were afterwards offered and received ostensibly to ■discredit him, but, in truth, to operate as independent evidence. And it would have been very powerful,considering the relation in which he stands ‍‌‌‌​​​​‌‌​​​​​‌‌​‌‌‌​​​​‌‌​​‌‌​‌‌‌​‌​‌‌‌‌‌‌​​‌​‌‌​‌‌​‌‌‌‌‌​‌‌‌​‌‌‌​‌‌​‌‌​‌​‌‌​​​​​​‌‌‌‌​‌​‌‌​‌​‌‍to the plaintiff. But no man shall discredit his own witness. If he thought him unworthy, he ought not to have called him; and it will not be pretended that ‍‌‌‌​​​​‌‌​​​​​‌‌​‌‌‌​​​​‌‌​​‌‌​‌‌‌​‌​‌‌‌‌‌‌​​‌​‌‌​‌‌​‌‌‌‌‌​‌‌‌​‌‌‌​‌‌​‌‌​‌​‌‌​​​​​​‌‌‌‌​‌​‌‌​‌​‌‍the former testimony of the son was competent as direct and independent proof. Like a deposition, it could not be used while he was present; and his unsworn declarations were ‍‌‌‌​​​​‌‌​​​​​‌‌​‌‌‌​​​​‌‌​​‌‌​‌‌‌​‌​‌‌‌‌‌‌​​‌​‌‌​‌‌​‌‌‌‌‌​‌‌‌​‌‌‌​‌‌​‌‌​‌​‌‌​​​​​​‌‌‌‌​‌​‌‌​‌​‌‍more palpably‘incompetent still. The testimony ought to have been rejected.

Judgment reversed, and a venire de novo awarded.