Sewell v. Gardner

Stewart, J., delivered the opinion of the Court. The first and second exceptions are taken to the admission of the commission, and evidence thereunder, introduced on the part of the plaintiff. Art. 37, sec. 15, of the Code, requires the depositions of non-resident witnesses to be taken under a commission, in the same manner as if issued from a Court of equity, and secs. 141, 142 and 143 of Art. 16, of the Code, provide for such commission to be issued to two persons, unless by consent, when it may he issued to one- — if issued to two, either one may execute the same. The 27th Rule off the Court of Common Pleas, cannot be construed to contravene these paramount provisions of the law. At the January Term of the Court, the order of the plaintiff’s attorney was given, for the issuing of a commission in this case, to take testimony, and naming Thos. J. Hunt as commissioner, and interrogatories were filed therewith. Notice of this proceeding was admitted by defendant’s attorney on the 10th January, 1876. The defendant named no commissioner, and the commission issued upon the plaintiff’s order, to the said commissioner, and was returned with the- evidence taken thereunder, and filed in the Court of Common Pleas on [183] the 8th February, 1876. In March and April following, suggestions, affidavits and orders for the removal of the cause were filed ; the defendant filed amended pleas, and a demand for a bill of particulai’s. The cause was continued until September, 1877, when the trial took place. The defendant having had ample opportunity to have named a commissioner, if he desired, or to have made objections to the commission being issued to one; but not having done either and allowed the testimony taken thereunder to have remained on file without objection, during the long interval when the subsequent proceedings before referred to had occurred, we think it was then too late, to undertake to avail himself of the objection to the testimony, on account of there being but one commissioner. On the contrary, he must be held to have waived such objection, and to be estopped from availing himself thereof; otherwise it would operate as a surprise upon the plaintiff, who had the right under the circumstances to consider the issuing of the commission to one person, acquiesced in by the defendant. We think therefore the Circuit Court committed no error in the admission of the commission and evidence thereunder. The defendant after having introduced the testimony of Jonathan Brock, his own witness, taken under the commission issued by consent at his instance, offered Brock’s previous letter to the defendant, for the purpose of impeaching his credit; to this the plaintiff objected, and the Circuit Court sustained the objection, and this constitutes the defendant’s third exception. When Brock was testifying under the commission as the defendant’s witness, the opportunity was afforded the defendant, to have confronted him with his letter ; but failing to do so, he cannot offer his letter at the trial, for the purpose of impeaching his credit. A witness may give evidence against the party calling him, where he was misled by his prior statement; thus [184] acting in good faith, hut under misapprehension, he may show that the witness is mistaken as to facts testified to by him, and contradict his statement by his own or other testimony. He is not bound by whatever his witness may say, but is permitted to call other witnesses, not to impeach him, but to contradict him, as to a fact material to the issue, in order to show how the fact really is. Franklin Bank vs. Steamship Co., 11 G. & J., 35. (Decided 8th March, 1878.) But here the defendant aware of the testimony taken under the commission and intending to repudiate it, offers the same, and then proposes to introduce the prior letter of the witness, for the purpose of impeaching him, and thus discard the testimony he had offered. This cannot be done, and there was no error in the ruling in the third exception. Judgment affirmed.