Roberts vs. Gee, 15 Barb. 449

By the Court, Barculo, P. J. The only witness examined before the justice was the defendant. On being called by the plaintiff he distinctly proved the demand of the plaintiff as set forth in the complaint. On his cross-examination, however, he testified that the plaintiff had given the credit to one Deuel and agreed to take him as paymaster. The justice gave judgment according to the admission of the defendant, and did not allow the defense. The county court deeming this erroneous, reversed the judgment of the justice. It is for us to determine which of these two courts has mistaken the law.

The old rule requiring that where the oral admission of a party is resorted to as evidence against him, the whole of the conversation must be taken, was very properly modified in a material respect by the court of king’s bench in the case of Prince v. Samo, (7 Adol. & Ellis, 627.) Lord Denman, in delivering the opinion of the court in that case, repudiated the doctrine that admits the entire declaration of a party, and limited the inquiry to such portions of the conversation as tend to explain or qualify the statement first inquired for.

Our courts have gone, a step further; ünd, while they adopt the modified English rule admitting the whole of the conversation or declaration so far as it relates to the point inquired of by the party first calling for it, have superadded the very sensible principle, that when that part of the declaration which tends to discharge the party making it, is improbable, or inconsistent with other evidence in the case, the jury may reject it, and give effect to the other part. (Kelsey v. Bush, 2 Hill, 440. Garey v.

Nicholson, 24 Wend. 351.) In other words, the rule as now established, permits the court and jury to believe that part of an admission which charges the party who makes it, and to disbelieve that part which discharges, when the latter is improbable on its face, or discredited by the other testimony. This principle, applied to the case before us, disposes of it at once. For the defendant himself testified to the sending of a bill in his own handwriting, in which he had made himself debtor for the board in question.

He also admits that he sent with the bill a letter to the plaintiff in which he made this statement : “ I have written to Mr. Deuel and told him to pay my bill.” These acts are, at least, somewhat, if not absolutely inconsistent with the idea that Deuel was the original debtor: and if, upon such evidence the justice saw fit to decide against the defense, his decision cannot be disturbed. There is another question involved in this case, which is frequently presenting itself at the circuit; and which under our new system is dignified with considerable importance.

Is a •court and jury hound to believe a party swearing in his own behalf 7 The code authorizes a party to call his adversary and examine him as a witness against himself. (§ 390.) A subsequent

section permits a party so called by his adversary to be examined in his own behalf “In respect to any matter pertinent to the issue.” (§ 395.) Now, so far as regards the testimony given by a party against himself, there is a manifest propriety in compelling a jury to give it credit: but is this true when he swears to an Independent matter, in his own favor ?

If a defendant on the witness’ stand admits his execution of the promissory note which is the foundation of the action, we may safely say that the jury are bound to find the fact accordingly : but if he .goes further, and, in his own behalf, testifies to a set-óff exceeding the amount of the note, are the jury required by any rule "or principle of law to find a verdict in his favor ? I think not. The code does not furnish us with any guide on this subject.

It merely opens the door and lets in parties and interested persons, and permits them to testify in behalf of their own interests, under the plausible pretense of eliciting truth, avoiding legal disputes as to the competency of witnesses, and expediting the trial of causes.

Those whom experience at the circuit has made acquainted with the numerous questions now raised, touching the admissibility of assignees and of co-plaintiffs or co-defendants ; who value the time often wasted in endeavoring to extract something to prop up a desperate case from an unwilling party turned into a reluctant witness ; and who consider the utter disregard which jurors whose sound sense teaches them that reliable evidence can only be expected from pure and disinterested sources, do, and always will manifest, for testimony obtained by such new devices, may perhaps be as competent to judge how well founded these pretenses are, as those who substitute theory for practice—speculation for experience.

Unfortunately those whose opinions are worth most on such subjects are, ordinarily, least obtrusive and officious in urging them upon the “ powers that be.” The statute admits the witnesses, but is silent as to the effect of their testimony. It does not declare that they shall be believed, nor that then* credit may be determined by the jury.

In making every thing so very plain and simple and harmonious, our lawmakers seem, for a moment, to have been oblivious of the well settled principle of law, which is absolutely essential to the security of individual rights, that a witness who is unimpeached and uncontradicted must be believed.

For surely they could not have designed to extend and apply this principle to the testimony of parties, interested persons, and felons, to whom also the privilege was proposed to be extended. (Report of Commissioners, § 352.) Such a doctrine would be subversive of all certainty and security in judicial proceedings; and would bring in a train of evils infinitely greater than all those which are claimed to be remedied by modern inventions. [Kings General Term, January 3, 1853. Barculo, Brown and S. B.

Strong, Justices.] We must conclude, therefore, that in enlarging the sphere of testimony, the legislature must have intended, in regard to the witnesses thus admitted, to give the tribunals that weigh their testimony a wide discretion as to the credit to be be given to them. This seems to be in accordance with the general tenor of the notes of the commissioners.

In regard to felons they say “ it is wiser, we cannot doubt, to place the witness on the stand, and let the jury judge of his testimony.” This construction accords also with the English statute, which, as Lord Brougham says, “ wisely opens the door to the witness, but reserves the estimate of his credit and the value of his evidence, to those who are to judge the cause.” This construction, too, will render these provisions comparatively harmless among intelligent jurors.

But if our courts feel constrained to put such witnesses upon the footing of disinterested witnesses, and set aside the verdicts that are rendered against their testimony, it will add another to the fast accumulating evidences of the necessity of repealing the code, before we can hope for any thing like certainty or uniformity in the administration of justice. The judgment of the county court is reversed, and that of the justice affirmed.