Bank of Northern Liberties v. Davis

The opinion of the Court was delivered by Rogers, J. Leading questions are not allowed on an examina-. tion in chief. But if a witness should appear to be in the interest of the opposite party, or unwilling to give evidence, the court will allow the examination in chief to assume the form of a cross-examination. The mode of examination is regulated by the discretion of the court, according to the disposition and temper of the witnesses; and where these appear to be adverse, the court frequently permits a cross-examination by the party who calls him. So a party cannot discredit the testimony of his own witness by general evidence of incompetency; for it would be unfair if he should have the benefit of his testimony if favourable, and be able to reject it if the contrary. "Where, however, a party is under the necessity of calling a witness for- the purpose of satisfying the formal proof which the law requires, he is not precluded from calling other witnesses, who give contradictory testimony.' And even where a witness by surprise, gives evidence against the party [288] who calls him, that party will not be precluded from proving his case by other witnesses ; for it would be contrary to justice, that ■the treachery of a witness should exclude the party from establishing the proof by the aid of other testimony. 1 Stark. Ev. 216, 188; Alexander v. Gibson (2 Camp. 556). That the court which tries the cause, should have the power to depart from the ordinary rule in certain cases, is absolutely necessary to prevent a failure of justice: for frequently a party may be compelled to call a witness known to be in the interest of the adverse party, or he may, by artifice and fraud, be entrapped into his examination. As for example, a witness tenders himself ready to prove a fact pertinent to the issue, and when placed on the stand proves directly the reverse, or prevaricates in such a manner as to give the whole advantage to the antagonist party, and this perhaps in concert and by the procurement of the adverse party. In such cases, and others of similar kind, the court before whom the cause is tried, has always, in the exercise of a sound discretion, allowed the party calling him to prove that at different times and in the presence of other persons, he has held different language. This, however, is not substantive evidence of itself, but is permitted to neutralize the evidence given by the witness. The correct distinction is taken in Cowden v. Reynolds (12 Serg. & Rawle 283). The party who calls a witness, shall not be permitted to impeach his general character, because that, must be supposed to have been known before he was called. But where the evidence only tends to show that he had contradicted himself, and thereby lessens the force of what he had sworn in court, it may be received. “ Hard indeed,” says Chief Justice Tilghman, “ would be the case of one who calls a witness, expecting that he would swear the truth, if upon finding himself deceived, he may not show that the witness had told a different story at another time.” And to the same effect is the case of Alexander v. Gibson (2 Camp. 555). For where a witness unexpectedly gives evidence against, the party calling him, although his evidence cannot be in part relied on, and the rest of it disproved, it may be entirely repudiated, and witnesses may be called on the same side to contradict him. Lord Ellenborough says, “ if a witness is called on the part of a plaintiff, who swears what is palpably false, it would be extremely hard if the plaintiff’s case should for that reason be sacrificed. But I know of no rule of law by which the truth is on such occasions to be shut out, and justice is to be perverted.” In Lowe v. Jolliffe (1 Blac. R. 365), which turned on the validity of a will, all the attesting witnesses swore to the insanity of the testator when the will was executed ; but they were contradicted by other witnesses, and the will was established. The party is not to set up so much of his witness’s testimony as makes for him, and to reject or disprove such part as is of a contrary tendency; but if a witness is called and gives evidence against the party calling him, I think he may [289] be contradicted by other witnesses on- the same side, and that in this manner his evidence may be entirely repudiated. And this case comes within the principles cited ; for the witness, who was the teller of the bank, and who had been examined on a former occasion on the same matter, and who had proved what was deemed material to this issue, was called by the plaintiff on the reasonable supposition that he would testify the same as before, but having failed to do so, the plaintiff’s counsel proposed to ask the witness whether he had not on a former occasion given different testimony respecting the genuineness of the check, which was the matter in issue. The question was objected to by the defendant’s counsel; but the objection was overruled by the court, the judge saying the witness was an unwilling witness, and might be so treated by the plaintiff’s counsel. It is impossible for us to say that in so ruling the court was in error. They are much more competent to form a sound judgment in such a matter than we can be, as so much depends on .the .manner of the witness, and other circumstances, of which we are ignorant. And if this can be done by the introduction of other witnesses, which seems to be conceded, I can see no reason why the same object may not be attained by a direct examination of the witness himself as to his previous declarations. Indeed, justice to him would seem to require this course, to give him an opportunity of explaining any apparent discrepancy between his testimony and any declarations he may have previously made. In truth, a witness under such circumstances, becomes in many respects the witness of the adversary party, and is subject to the same rules as regulates such examination. But it is said with truth, that there -is error in admitting the evidence of a conversation between Robert M. Lee and the cashier and teller. According to his testimony, the latter admitted the checks to be forgeries. The cashier said he believed them to be forgeries, but he would not pay the checks. It would be better, he said, decided by suit. Declarations and admissions of agents or trustees of a corporation in their official capacity are evidence against thbse whom they represent, if made in the regular transaction of their business; but if not so made, they are not evidence. Magill v. Kauffman, (4 Serg. & Rawle 317). It has also been ruled, that in an action by a bank, evidence of the parol declarations of the officers of the bank is not admissible for the defendant, without proof of the particular officer’s being authorized by the board of directors to speak for them, even though it should appear that the board kept no regular minutes of their transactions. Stewart v. The Huntingdon Bank, (11 Serg. & Rawle 267). So declarations of a person, who has been president of a bank, respecting payment made on a note, are not evidence in an action by the bank upon the note. 11 Serg. & Rawle 179. The cases are based on this principle, that what an agent says, does, [290] or writes, at the time of making a contract, or when engaged in the discharge of his duty as agent, are admissible against the principal. But what the agent says or writes afterwards, is not admissible. Hough v. Doyle, (4 Rawle 294). The declarations given in evidence were not made at the presentation of the checks, •but afterwards, when they had no authority that I can discover, to make them. Such a power does not come within the general scope of the duty of either, nor is such an authority necessary in the discharge of that part of the business of the bank over which they have the control. They were witnesses for the plaintiff) and might have been called by him to prove that the signature to the checks was not genuine. Indeed, one of them was called to the stand, but, notwithstanding, the court permitted his declarations to be given in evidence to affect the defendant. In this we think the court was in error, and for this reason the judgment is reversed. It is enough to observe that the other errors were abandoned on the argument. Judgment reversed and venire de novo awarded.