Murphy v. M'Niel, 19 N.C. 244, 2 Dev. & Bat. 244 (1837)

June 1837 · Supreme Court of North Carolina

19 N.C. 244, 2 Dev. & Bat. 244

MURDOCK D. MURPHY v. DANIEL M‘NIEL.

•A sworn copy of a letter cannot be received without accounting for the original.

One party cannot give in evidence a conversation between himself and a third person in the absence of the other party; for as to what the party himself said, it was only his own declaration; and as to what the third person said, it was not on oath, and the opposite party had no opportunity to cross-examine him.

Declarations of a witness inconsistent with his testimony on trial, may be given in evidence to discredit him.

Detinue for a yoke of oxen, tried at Robeson, on the last Circuit, before his Honor Judge Settle.

The plaintiff, in proof of his title, offered in evidence the deposition of one Malcom Patterson, in which the witness gave the copy of a letter from the plaintiff to him, ■the witness; but this part of the deposition was objected to by the defendant, and rejected by the Court. The plaintiff, then offered to prove a conversation between himself and Malcom Patterson in relation to his directing Patterson to take care of the oxen; which conversation occured at the time plaintiff paid Patterson some money, which was paid on account of the oxen; but this testimony was also objected to and rejected.

In the course of his defence, the defendant offered to prove a conversation between Patterson, the plaintiff’s witness, and a third person^ pt which neither the plaintiff nor defendant were present, in which Patterson spoke of a sale of the oxen to one Locklear, under whom the defendant claimed, for the purpose of discrediting Patterson, who had stated in his deposition that he had not sold the oxen to Locklear. This evidence was objected to by the plaintiff, but was received by the Court. The jury found a verdict for the defendant^ and the plaintiff moved for a new trial upon the grounds, first, that the court had refused proper evidence offered by him: and secondly, that improper testimony offered by the defendant had been received. The motion for the new trial being refused, the plaintiff appealed.

No counsel appeared for the plaintiff.

Strange, for the defendant.

Daniel, Judge,

after stating the case shortly, proceeded : — As to the first ground, the plaintiff did not show, that it was out of his power to produce the original letter which he wrote to the witness Patterson. The sworn ■copy, as set forth in the deposition, was not then the best evidence of which the nature of the case admitted ; therefore the Court was right in rejecting it.

The conversation between the plaintiff and the witness Patterson, at the time some money was paid him by the plaintiff on account of the oxen, relative to Patterson’s taking care of them, was not admissible. If it was intended "to be the conversation of the plaintiff, it was inadmissible as evidence, as no party to the record -can give his own declarations in evidence for himself. -If it was intended to be the declarations of Patterson, it was equally inadmissible, as they were not on oath, and the defendant had no opportunity to cross-examine ■him.

As to the second ground, the defendant, to discredit Patterson, the plaintiff’s witness, and to show that the account given by him on oath was not correct, offered to prove a conversation between Patterson and a third person, wshen neither of the parties were present; in which conversation Patterson spoke of a sale of the oxen to one Locklear, under whom the defendant claimed. This evidence was objected ,to by the plaintiff, but admitted by the Court. We think it was properly admitted. The credit of a witness may be impeached either by cross-examination subject to certain rules; or by general evidence affecting his credit; or by evidence that he has before done or said that which is inconsistent with his evidence on the trial; or lastly, by contrary evidence as to the facts themselves. 1 Starkie’s Ev. 181. Patterson, the plaintiff's witness, had denied in his deposition, that he had, at any ■time, sold Locklear two steers. The defendant’s evidence was to prove that Patterson had said that he had sold the steers to Locklear. The evidence offered by the defendant for this purpose was admissible according to the above authority. The judgment must be affirmed.

Per Curiam. Judgment affirmed.