Frederic D. Conrad, Plaintiff in error v. David Griffey, 16 How. 38

Mr. Justice McLEAN delivered the opinion of the court. This is a writ of error to the Circuit Court of the United States, for the Eastern District of Louisiana. This action was brought to recover the balance of three thousand seven hundred and eighty-one dollars and fifty-eight cents, claimed to be due under a contract to furnish, deliver, and set up, on the plantation of the defendant, in the parish of Baton ' Rouge, a steam-engine arid sugar-mill boilers, wheels, cane carriers, and all other things necessary for a sugar-mill; all which articles were ■ duly delivered.

The defendant in his answer set up several matters in defence. The error alleged arises on the rejection of evidence offered by the defendant on the trial before the jury, and which appears in the bill of exceptions. The plaintiff read in evidence the deposition of Leonard N. Nutz, taken under a commission on the 28th of' June, 1852, and filed the 9th of July succeeding. The defendant then offered in evidence a letter of the witness dated at New Albany, on the 3d April, 1846, with' an affidavit annexed by him of the same date, addressed to the plaintiff Griffey.

As preliminary proof to the introduction of said letter, the defendant adduced the bill of exceptions signed upon a former trial, of this cause, and filed on the 23d February, 1849, showing that the letter had been produced by the plaintiff in the former trial, and read by his counsel in evidence as the letter of • Nutz, in support of a former deposition made by him.

And the said letter and affidavit were offered by the defendant to contradict and discredit the ■ deposition of the witness taken the 28th June, 1852 ; but upon objection ot counsel for the plaintiff that the witness had not been cross-examined in reference to the writing of said letter, or allowed an opportunity of. explaining the same, it was rejected. a - the former trial the letter was offered in.evidence by the plaintiff in th< Circuit Court, to corroborate what Nutz, the witness, at that time had sworn to; and the letter was admitted to be read for that purpose by the court, On a writ of error, this court held that the Circuit Court erred in admitting the letter as .evidence, arid on that ground reversed the judgment.

Conrad v. Griffey, 11 How. 492. The rule is well settled in England, that a witness- cannot be impeached by showing that, he had made contradictory statements from those sworn to, unless on his examination he was asked whether, he had not made such statements to the individuals by whom the proof was expected to be, given. In the Queen’s. case, 2 Brod. & Bing. 312; Angus v. Smith, 1 Moody & Malkin, 473; 3 Starkie’s Ev. 1740, 1753, 1754; Carpenter v. Wall, 11 Adol. & Ellis, 803. This rule is founder upon common sense, and is essential to protect the character of a witness.

His memory is' refreshed by the néeessary inquiries, which enables him to explain the statements referred to, and show they weye made under a mistake, or that there was no discrepancy between them and his testimony. This rule is generally established in this country as in England. Doe v. Reagan, 5 Blackford, 217; Franklin Bank v. Steam Nav. Co. 11 Gill & Johns. 28; Palmer v. Haight, 2 Barbour’s Sup. Ct. R. 210, 213 ; 1 McLean’s R. 540; 2 Ib. 325 ; 4 Ib. 378, 381; Jenkins v. Eldridge, 2 Story’s Rep. 181, 284; Kimball v.

Davis, 19 Wend. 437 ; 25 Wend. 259. “ The declaration of witnesses whose testimony has been taken under a commission, made subsequent to the taking of their testimony, contradicting or invalidating their testimony as contained in the depositions, is inadmissible, if objected to.

The only way for the party to avail himself of such declarations is to sue out a second commission.” “ Such evidence is always inadmissible until the witness, whose testimony is thus sought to be impeached, has been examined upon the point, and his attention particularly directed to the circumstances of the transaction, so as to furnish him -an opportunity for explanation or exculpation.” This rule equally applies whether the declaration of the witness, supposed to contradict his testimony; be written or verbal. 3 Starkie’s Ev. 1741.

A written statement or deposition is as susceptible of explanation, as verbal statements. A different rule prevails in Massachusetts and the State of Maine. The letter appears to have been written six years before the deposition was .taken which the letter was offered to discredit. This shows the necessity and propriety of the rule. It is not probable that, after the lapse'of so many years, the letter was in the mind of the witness when his deposition was sworn to. But, independently of the lapse of time, the rule, of evidence is a salutary one, and cannot tie dispensed with in the courts of the United States.

There was no error in the rejection of the letter, under the circumstances, by the Circuit Court; its judgment is therefore affirmed, with costs. Order. This cause came on to be heard on the transcript of the record, from the Circuit Court of the United States for the .Eastern District of Louisiana, and was argued by counsel.

On consideration whereof, it is now here ordered and adjudged, by this court, that the judgment of the said' Circuit Court in this cause be, and the same is hereby, affirmed, with costs and interest, uiitil paid, at the same rate per annum that similar judgments bear in the courts of the State of Louisiana.