Sawrey v. Murrell, 3 N.C. 397, 2 Hayw. 397 (1806)

April 1806 · North Carolina Superior Court

3 N.C. 397, 2 Hayw. 397

Sawrey vs. Murrell and others.

*TpHE plaintiff produced a witness and examined her, the ele-, fendant then offered a deposition, and the certificate of the commissioners stated that the person who gave notice of t.-Idr,g the deposition, had appeared before them and proved that legal notice had been given j and the court decided that the certificate was insufficient, for it should have stated when the notice was given, that the court might be able to determine whether it were legal notice or not. The defendant’s counsel then offered to examine one of the commissioners in court, as to what the person who gave the notice had sworn before them. The court would not permit him to be so examined, because the witness hhnsdf who swore before the commissioners might be produced. The defendant’s counsel then moved that the commissioner might amend his certificate, the court said that might be done, were both commissioners present, but that one alone could not alo-r a certificate made by both. The defendant’s counsel then called upon the witness first examined by the plaintiff, she bring the plaintiff’s daughter, to. sav whether or not, notice had not been given to the plaintiff of taking this deposition, and she failed to prove it. The defendants counsel then called witnesses to discredit the plaintiff’s witness, and the plaintiff’s counsel opposed their admission, on the ground that the defendant couid not discredit their own witness, and that they had made the plaintiff’s, witness their own by calling her to prove a distinct fact, alter her first examination was over.

Per Curiam.

It is very correct to say that a plaintiff or defendant cannot discredit a witness produced by himself, but the reason of this rule does not apply to the case before us. If a inao could discredit a witness, called by himself, he might, having the means of discrediting her in his own power, pass for true that which she swore if it made for him, but destroy the effect if it made against him. Here the witness was not produced by the defendant. It would be of dangerous consequence if when, produced by the plaintiff the defendant could not interrogate the witness except as to the facts which she had deposed for the plaintiff: For then all distinct facts within her knowledge, however much they would operate for the benefit of the defendant, if brought aut, must remain undrawn from the witness, for fear of the defendant’s, being precluded Irom the advantage of proving her want of credit. The question asked by the defendant’s counsel on the present occasion, is to be considered as an interrogatory as to a distinct fact upon the cross examination of the witness, although it was put to her after her first examination was desisted from, for some time, and other witnesses examined in. the intermedíate time between her first examination and being; called again»

The witnesses to discredit her were sworn. The court doubt» ed for some time whether the deliverer of a notice to lake dcpo-positions, could be sworn as to the time he gave notice, before the commissioners appointed to take the depositions; hut several of the bar informing him that was the usual practise; thfr com t said as it was so, he could not alter it.