McGivern v. Steele

Loring, J. In support of his declaration in set-off, the defendant offered to show that a demand upon the plaintiff was made by one Wilkins in his (the defendant’s) behalf. And on this bill of exceptions (which is very meagre) we must assume that this was a material fact in support of the defendant’s case. The defendant offered to prove this fact by asking the plaintiff on cross-examination, whether Wilkins had not so testified at the trial in the Municipal Court of the case then being tried. The defendant had previously proved by the plaintiff that Wilkins testified at the trial in the court below, and since then had died. This was excluded by the presiding judge on the ground that “ statements made by a witness subsequent to a bringing of a suit are not competent.” Had the competency of the testimony offered depended upon R. L. c. 175, § 66, the ruling would have been right. But the ground on which the evidence was competent was that it was the testimony of a witness who had testified in court on the same subject matter and had since died; as to which, see Commonwealth v. Richards, 18 Pick. 434; Warren v. Nichols, 6 Met. 261; Yale v. Comstock, 112 Mass. 267; Costigan v. Lunt, 127 Mass. 354. The exclusion of this testimony in the case at bar cannot be supported now on the ground that no offer was made to show that the plaintiff could repeat Wilkins’s testimony with the necessary accuracy, as to which see Yale v. Comstock, 112 Mass. 267; Warren v. Nichols, 6 Met. 261; Commonwealth v. Richards, 18 Pick. 434. There was no occasion for the defendant to go into that detail when the presiding judge had ruled that no testimony given by W ilkins after the commencement of the action then on trial would be admitted. Exceptions, sustained.