Several exceptions were taken to evidence by the defendant, in the course of the trial, but we deem it unnecessary to consider any of them, except that taken to the evidence of the justice, which was offered, as we understand, to discredit the testimony of the witness Harper.
From the statement of the case, it seems the witness Quin, in his examination, had been asked if he had not had a certain conversation with the witness Robert Harper, in regard to the identification of the stolen horse, and he denied that such a conversation had occurred. Harper was then recalled by the defendant, and testified that such a conversation did occur. The state then, on cross-examination, asked Harper if he liad not sworn *697on the examination before the justice, that he took one of the persons in the cart to be the defendant by Ms shape and Ms loolcs. This the witness denied, and the court allowed the state to produce evidence to contradict him, and show that he had made that statement upon oath.
We can see no ground for the admission of this evidence, except for the purpose of discrediting the witness Harper. He had been introduced and examined by the state, as its witness, and the question is presented, can the state thus discredit its own witness?
The principal case relied on by the state for such a practice is that of the State v. Norris, 1 Hay., 495, where it was held that it might bo done, but in the note to that case Judge Battle says it is not law, and cites the case of Sawrey v. Murrell, 2 Hay., 597, where the contrary doctrine is announced, and the decision in that case, we think, is supported by the authorities.
Mr. Greenleaf (Vol. 1, § 442) says, “when a party offers a witness in proof of his cause, he thereby in general represents him as worthy of belief. He is presumed to know the character of the witnesses he adduces, and having thus presented them to the court, the law will not permit the party afterwards to impeach their general reputation for truth, or to impugn their credibility by general evidence tending to show them unworthy of belief”; and in same volumne, section 444, Mr. Redeield, the editor, says: “The question is extensively discussed in the case of Melhirst v. Collier, 15, Q,. B., 878, both by counsel and by different members of the court, and the conclusion arrived at is, that, you may cross-examine your own witness if he testify contrary to what you have a right to expect, as to what he had stated in regard to the matter on former^ occasions, either in court or otherwise, and thus refresh the memory of the witness and give him full opportunity to set the matter right, if he will, and at all events to set yourself right before the jury. But you cannot do this for the mere purpose of discrediting the witness; nor can you be allowed to prove the contradictory statements of *698the witness on other occasions, but must be restricted to proving the facts by other evidence. The same rule prevails in the courts of admiralty, and this seems to ns to be placing the matter upon its true basis.”
In England, it required a statute (17 and 18 Victoria, ch. 125) to allow a party to an action to contradict his own witness, by showing a statement made by him in direct contradiction to his evidence.
In Massachusetts, it has been held that a witness, who has testified in chief that he did not know a certain fact, cannot be asked by the party calling him, whether he had not on a former occasion sworn to his knowledge of the fact, as the object of the question could only be to “disparage the witness” and show him unworthy of credit with the jury, which was inadmissible. Commonwealth v. Welch, 4 Gray, 535.
Concluding, as we have, that the testimony of the justice vvas offered in this case for the sole purpose of discrediting the witness, Harper, we are of the opinion, induced by the authorities cited, that the exception of the defendant was well taken.
There is error. This will be certified to the superior court of Lenoir, that a venire de novo may be awarded.
Error. Venire de novo.