Bennett v. O'Byrne

Ekazeb, J. Suit by the appellant on a replevin bond, alleging for breach that the plaintiff in replevin did not prosecute his suit with effect, etc., but dismissed it, etc. Answer in bar, that the property was the property of O’Byrne, who was plaintiff in the replevin. The same fact was also answered in mitigation of damages. A demurrer to the answer in bar was overruled, and this is assigned for error. The record shows that the court afterward sustained this demurrer. This, though somewhat irregular, cured the error, and made it harmless; nor does it matter that the appellant afterward, of his own motion, chose to file a reply. A witness of the appellant, having given important testimony on his behalf, was asked whether, at a certain place, in conversation with a certain person, in December, 1860, he did not make certain specified statements, which were not consistent with his evidence. He answered in the negative. The impeaching witness was asked as to this conversation, over the appellant’s objection, and answered that in November, December, or January, and he thought it was in December, but did not know it was in December, the appellant’s witness did say substantially what was imputed to him. It is objected that in laying the foundation for this impeachment, and in the impeaching evidence itself, the time was not fixed definitely enough. The rule upon this subject is a practical one, and is founded upon clear principles of common sense. The exact time of a conversation it is often impossible to fix, and to require it would be simply to cut.off all opportunity of impeachment in such eases. The object to be attained is to call the witness’ attention to a particular conversation, so that he may not be taken by surprise. In some cases this can be done without any mention of time, as when [606] the witness sought to be impeached remembers peculiar circumstances attending the alleged conversation. Usually, dates are the least efficient of all means which can he used to refresh one’s memory of events, and sometimes they afford no aid whatever. Each case depends somewhat on its own circumstances. Where a witness frequently meets and converses with another at a particular place, there might he reason for requiring time to he fixed; where he never had but one conversation, and could remember the fact, there would he no reason whatever for any allusion to time. Under the circumstances of this case, we think that the foundation for the impeaching evidence was sufficient. Oscar B. Hord and Cortez Ewing, for appellant. S. A. Bonner, for appellees. Counsel for appellant argued: “The rule as to impeaching witnesses by giving evidence of statements at variance with their testimony is, that a foundation must be laid by interrogating them as to the statements out of court, fixing the time, place, etc.” Doe v. Reagan, 5 Blackf. 217, and note; Dillon v. Bell, 9 Ind. 320; Gibson v. The State, 9 Ind. 264; Jarboe v. Kepler, 8 Ind. 314; Lawrence v. Lanning, Ludy v. Johnson, 16 Ind. 371; Owen v. Rynerson, 17 Ind. 620; Hill v. Goode, 18 Ind. 207; Palmer v. Hight, 2 Barb. 210; Sprague v. Caldwell, 12 Barb. 516. Counsel for appellees argued: It is sufficient to direct the attention of the witness to the particular conversation. Joy v. The State, 14 Ind. 140. There was a judgment for the plaintiff below of one cent, and against him for costs. This judgment for costs is claimed to he error. It is urged that the matter pleaded in the answer is a counter-claim. We need not express any opinion upon that point, for the evidence is not in the record, and we can not assume that it was proved. If a counter-claim, it must have been not only pleaded hut proved by the defendant, in order to entitle the plaintiff to costs. 2 G. & H. 227. Edmunds v. Puckins, 8 Blackf. 196; Ham v. Gregg, 1 Ind. 81; Higman v. Brown, 3 Ind. 430. The judgment is affirmed, with costs.