Wertz v. May

The opinion of the Court was delivered, by Woodward, J. — There are eight specifications of error on this record, and they shall be despatched in order. 1 and 2. The draft and office papers mentioned in these, though rejected by the Court, were afterwards admitted by consent of counsel, and the plaintiff, having thus had the benefit of them before the jury, has nothing to complain of here. 3. The deposition of John Mardath had been taken in a previous cause between the same parties, about the same subject-matter. This entitled the defendant to give it in evidence, and the termination of the previous cause by a nonsuit, instead of a trial, did not affect his right. Nor did the fact that it was reduced to writing by the defendant’s counsel, since it was so done in the presence of the plaintiff and his counsel, and by their consent and agreement. 4. There is nothing on the record to which this assignment of error can be applied. 5. It is always competent for a party to show that a witness, ealled to testify against him, has related the facts to which he testifies differently on former occasions, whether under oath or not: Bull v. Towson, 4 W. & Ser. 557. As to the objection that the witness was asked by the defendant what he swore to on the former trial, and therefore that the defendant could not contradict him, it is enough to say that it reverses the rule of evidence exactly. Without such a cross-examination, as to his previous testimony, the rule is that the contradictory evidence is inadmissible: McAteer v. McMullen, 2 Barr 32. 6. No reason has been assigned in support of the sixth specification, and none can be imagined. 7. Evidence in support of the general character of witnesses, is not competent until their general character has been assailed. Every witness puts his character in issue; but until evidence tending directly to impeach it is produced, the law presumes it to be good, and therefore testimony to prove it good is superfluous. [280] 8. The eighth assignment has respect to the charge, but is destitute of all merit. If the Court did not discuss every possible aspect of the cause, the plaintiff has no reason to complain, since he submitted no points and prayed for no instructions. Singly or together there is no substance in the errors assigned, and the judgment is, accordingly, affirmed.