US SUPREME COURT DECISIONS

In 52 U. S. 11 How. 430, it is said,

"where a witness was examined for the plaintiff and the defendant offered in evidence declarations which he had made of a contradictory character, and then the plaintiff offered to give in evidence others affirmatory of the first, these last affirmatory declarations were not admissible, being made at a time posterior to that at which he made the contradictory declarations given in evidence by the defendant."

The case having been remanded to the circuit court under a venire facias de novo, the plaintiff gave in evidence, upon the new trial, the deposition taken under a recent commission, of the same witness whose deposition was the subject of the former chanrobles.com-red

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examination, when the defendant offered to give in evidence the same affirmatory declarations which, upon the former trial, were offered as rebutting evidence by the plaintiff.

The object of the defendant being to discredit and contradict the deposition of the witness taken under the recent commission, the evidence was not admissible. He should have been interrogated respecting the statements when he was examined under the commission.

If his declarations had been made subsequent to the commission, a new commission should have been sued out, whether his declarations had been written or verbal.

This case was before this Court at December term, 1850, and is reported in 52 U. S. 11 How. 480.

In order to give a clear idea of the point now brought up for decision, it may be necessary to remind the reader of some of the circumstances of that case.

Griffey was a builder of steam engines in Cincinnati, and made a contract with Conrad, a sugar planter in Louisiana, to put up an engine upon his plantation for a certain sum. Disputes having arisen upon the subject, Griffey brought his action against Conrad to recover the amount claimed to be due.

Upon the trial in 1849, the testimony of Leonard N. Nutz, taken under a commission, was given in evidence. He was the engineer who was sent by Griffey to erect and work the machine. The deposition was taken on the 1st April, 1847. This evidence being in favor of Griffey, the counsel for Conrad offered the depositions of three persons to contradict the evidence of Nutz. Griffey then produced, as rebutting evidence, a letter written by Nutz to him under date of April 3, 1846, which was admitted by the court below, and the propriety of which admission was the point brought before this Court in 11 Howard. This Court having decided that the letter ought not to have been received in evidence, the cause was remanded under an order to award a venire facias de novo.

Before the cause came on again for trial, Griffey took the testimony of Nutz again under a commission on the 28th of June, 1852, when the following proceedings were had and bill of exceptions taken.

"Be it known that on the trial of this cause, the plaintiff having read in evidence the deposition of Leonard N. Nutz, taken under commission on the 28th June, 1852, and filed on the 9th July, 1852, the defendant then offered in evidence a letter of Leonard N. Nutz, dated at New Albany, on the 3d April, 1846, with an affidavit annexed by said Nutz of the same date, all addressed to the plaintiff in this cause, and as preliminary proof to the introduction of said letter the defendant adduced the bill of exceptions

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signed upon a former trial of this cause and filed on the 23d February, 1849, and the endorsement of the clerk upon said letter of its being filed, showing that said letter had been produced by the plaintiff in said former trial, and read by his counsel in evidence as the letter of said Nutz in support of a former deposition of the same witness. And the said letter and affidavit were offered by said defendant to contradict and discredit the deposition of said witness taken on the said 28th of June, 1852; but upon objection of counsel for the plaintiff that the said witness had not been cross-examined in reference to the writing of said letter or allowed an opportunity of explaining the same, and that upon the former trial the counsel for defendant had objected to the same document as evidence, and the objection had been sustained by the Supreme Court of the United States, the court sustained by said objections and refused to allow the said letter and affidavit annexed to be read in evidence, to which ruling the defendant takes this bill of exceptions and prays that the interrogatories and answers of said Nutz, taken on said 28 June, 1852, the said letter and affidavit annexed, of date the 3d April, 1846, with the endorsement of the clerk of filing the same, and the bill of exceptions filed on the 23d February, 1849, be all taken and deemed as a part of this bill of exceptions, and copied therewith accordingly."

"THEO. H. McCALEB, U.S. Judge [SEAL]"

Upon this exception, the case came up again to this Court. chanrobles.com-red

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