
    Richard D. Tucker versus Thomas Welsh, Jun.
    The credit of a witness, who has testified orally or by giving his deposition, may be impeached by showing that he has made a different statement out of court, either before or after he has given his testimony, and it is not necessary that the impeached witness be first inquired of, as to such different statement, or that he be present when his credit is to be impeached.
    Assumpsit upon an order drawn by Silas Penniman, in favor of the plaintiff, upon the defendant, on the 31st of December, 1814, and accepted by him the next day, requesting him to pay to the plaintiff, or his order, whatever amount he might receive [ * 161 ] of John Hancock, Edward Harris, * and James Allen, underwriters on a policy of insurance on the ship Alpha, which policy was placed in the hands of the defendant by Penniman for collection.
    At the trial of the cause, which was had at the sittings here after the last March term, before the chief justice, it was proved or admitted that, before the commencement of the action, the defendant had received from the said underwriters the sum for which, with the interest, the verdict was returned, deducting the expenses, &c.
    The defence set up was, that the said Silas Penniman had, before drawing the order, assigned the policy to his brother Scammel Penniman, bona fide and for a valuable consideration, viz., to secure the said Scammel for moneys advanced and liabilities incurred by him on account of the said Silas. It was also contended that there was no consideration shown for the order or acceptance. And to prove this, the defendant produced to the jury the policy referred to, with the assignment thereon ; and also the deposition of the said Silas, taken under a commission from the court below.
    As the order was, on the face of it, absolute and unconditional, as was also the acceptance of the defendant, he was called upon to prove that the plaintiff knew of the previous assignment when he took the order; and was allowed to show, if he was able, that his acceptance was with an understanding on the part of the plaintiff, that it was not to bind the defendant against the operation of the assignment to Silas Penniman. Of this fact, the only evidence was contained in the deposition of the said Silas, before referred to. The plaintiff objected to this evidence, on the ground that, the order and acceptance being absolute, the defendant’s liability could not be defeated by parole or verbal testimony. This question was saved for the plaintiff, if the other points in the case should bo decided against him.
    
      * Silas Penniman testified in his deposition, that the [ * 162 ] plaintiff knew of the assignment to Scammel P. both before and after the order was drawn.
    This testimony was combated by the testimony of Edward Broolcs, who stated that, being in Baltimore after the deposition of the said Silas had been given, under a commission in which the plaintiff had joined, he went with the plaintiff to call on Penniman; that the plaintiff asked Penniman whether he did not intend the money due on the policy for him; that he answered yes, but that he would sign nothing until he heard from his brother; that the plaintiff said to Penniman, Why did you not tell me that the policy was assigned ? to which he made no answer, but said that he would say nothing before a witness.
    This evidence was objected to, on the ground that the declarations of Penniman, not under oath, should not be received to impeach the testimony given by him in his deposition. But the objection was overruled.
    In further answer to the defence, it was alleged by the plaintiff that the assignment to Scammel P. was fraudulent, being made to defeat the plaintiff and other creditors of the said Silas P.; and as the consideration expressed in the assignment was nominal, and as it appeared by the testimony of Silas P. himself, that he had delivered the policy to the defendant for collection, he was hoi den to prove that the assignment was bona fide and for a valuable consideration.
    To do this, the defendant relied upon the testimony of said Silas P. as contained in his said deposition; and he also produced in evidence several promissory notes, made or endorsed by said Silas P. which were proved to have been paid by Scammel P. He also proved that, in December, 1814, the said Scammel P. became surety for his brother in two several bail bonds, and that he paid on executions in those suits, more than 1500 dollars in January, 1816.
    *To counteract this evidence, the plaintiff offered a [ * 163 ] copy of a mortgage deed of a farm, dated Sept. 8th, 1814, for the security of 4500 dollars, made by Silas P. to Scammel P.; also a transfer of bank stock, of the value of 500 dollars. It was also proved that Silas P. failed suddenly about the time he drew the order on which the suit is brought; that he stated to the plaintiff that he had a policy in the hands of the defendant at his disposal, and that he would give the plaintiff an order for the proceeds ; and that he was then indebted to the plaintiff 5000 dollars.
    There was other testimony tending to show that the policy was assigned to Scammel P. previously to its being placed in the defendant’s hands by him ; that he was the surety of Silas P. to a large amount; and that the mortgage was made to secure a debt due from Silas to the wife of Scammel.
    
    The jury were instructed that the defendant was answerable on the order which he had accepted, until he produced satisfactory evidence of some fact, which would be a legal discharge; that as he knew of the assignment when he accepted the order, and accepted it without reservation, there appeared to be no ground to suppose it was done by mistake; nevertheless, as he accepted, without doubt, on the expectation of funds from the policy, if that policy had been lawfully assigned, bona fide and for a valuable consideration, the consideration of his acceptance would fail, and he would be discharged; that if the plaintiff knew of the assignment when he took the order, he ought not to recover, because it must be supposed he took it subject to the assignment: but that if the defendant knew of the assignment, (which must be presumed, as the policy was in his hands, with the assignment upon it, when he gave his acceptance,) and the plaintiff did not know of it; it might be inferred that it was not intended that the assignment should stand in the way of the order, neither Silas P. who drew the order, nor the defendant who accepted it, [ * 164 ] saying any thing to the plaintiff of the * assignment; unless the jury should believe otherwise from the testimony of Silas P., which seemed to be contradicted by the fact of his drawing the order, as well as by his declarations or admissions afterwards, as testified in the case; and in this case the defendant would be answerable, although he might be liable to Scammel P.— The jury were also instructed that if the assignment was partly for the purpose of securing a just debt to Scammel P., and partly to defeat the creditors of Silas P. of their just debts, it would be void in the whole.
    A verdict being returned for the plaintiff, a new trial was moved for by the defendant, on various grounds, the principal of which were supported in the argument by
    
      Prescott and Rand, for the defendant.
    The copy of the mortgage deed was improperly admitted in evidence. The plaintiff had cautioned the defendant against producing it; and the defendant, having no expectation that the plaintiff intended to offer it in evidence, was unprepared fully to show the object of the parties in making it, and the debts for which it was made, which he will be able to do upon a new trial. A copy was not legal evidence undei the circumstances of this case. The defendant had no notice tc produce the original, nor indeed was it in his possession; neithei was it lost, nor kept out of sight by the defendant; and these, it is apprehended, are the only cases in which a copy of a deed is legal evidence. It was a transaction in no way connected with the cause of action in this case; and if received, the plaintiff should have been held to prove it made without consideration, instead of the defendant’s being called on to prove the consideration.
    The evidence of Silas Penniman’s oral declarations, intended to impeach the testimony given by him under oath, ought not to have been received. It is a settled rule that a party shall not be allowed to show that a witness has said any thing in conversation, contrary to or inconsistent with his declarations under oath, except in presence of such witness, nor then until he shall first have *been inquired of, whether he ever did say the thing [ * 165 ] intended to be shown. As to written statements, it is admitted the law is otherwise . Conclusive proof that this is the law of evidence, as received and practised upon in the English, courts, will be found in the minute account of the Queen’s trial, as published in Dolby’s Parliamentary Register, pages 1286,1297,1517.
    The defendant objects to the instructions given to the jury upon the evidence admitted at the trial; particularly putting the plaintiff’s right to recover upon his ignorance of the assignment, although the defendant might still be liable to the action of Scammel Penniman. If there was no consideration for the acceptance by the defendant, he was not bound by that acceptance, although the promise was absolute. But in fact there was no consideration for the acceptance, nor was any consideration given by the plaintiff for the order. It will not escape the observation of the Court, that the order was not negotiable, and therefore no third party could be affected by the transaction.
    
      Webster and Aylwin, for the plaintiff.
    
      
      
        Strange, 924, a note in a late edition.—7 East, 108 —6 Esp. Rep. 125.
    
   Parker, C. J.,

delivered the opinion of the Court.

We do not find that there is any legal objection to the admission of the copy of the mortgage deed in evidence, even if the exception had been taken at the trial. The original was not in the possession of the party producing the copy, nor had he any control over it. The execution of such a deed was not denied, and the question of title to the estate it purported to convey was not in issue. It was produced to prove a collateral fact, viz., that properly had been conveyed to Scammel Penniman, as a security or indemnity for debts or liabilities on account of his brother Silas Penniman. The fact of such a conveyance was not denied; and it might have been proved prima facie by parole, for the purpose for which the copy was used at the trial. [ * 166 ] * As to the admission of the declarations of Silas Penniman, to contradict his testimony in his deposition, it would be running counter to the uniform practice in this Court, ever since its practice can be remembered, to have rejected, that evidence. The credit of a witness may be impeached by showing that he has made a different statement out of court, either before or after he has given his testimony. Nothing is more common than to have evidence of the conversations of a witness, tending to contradict his testimony upon the stand. It is every day’s practice. If the principal witness is present, he is called upon to attend; and he then has an opportunity to explain or deny. If he denies, then the credibility of the opposing testimony is to be decided by the jury. No lawyer in this commonwealth can, I think, recollect an instance of an impeaching witness being stopped, until the other was called up and asked whether he had had any conversation with the person about to impeach him, and was reminded of that conversation.

The practice adopted in the British House of Lords, on the trial of the Queen, has never been adopted in this country, and seems not to have been very familiar there; otherwise it would hardly have seemed necessary to have taken the solemn opinion of all the judges of the Court of King’s Bench upon the question.

Indeed, the utility of such a practice is not very obvious . Witnesses about to be impeached are generally persons of a doubtful or unknown character; and the wisdom of putting them upon their guard, and enabling them to forestall an answer to the opposing witness, is not very discernible. Phillips lays down no such rule of evidence: on the contrary, he expressly states that a witness may be impeached, by proving that he has given a different account of the thing; and a letter written by him to this effect may be used against his testimony, and this without asking him upon the stand whether he had written such a letter, or what were the [ * 167 ] contents of it. * Peake states that declarations made by a witness on the same subject, contrary to what he swears on the trial, may be given in evidence to impeach his credit; and no qualification of this doctrine is laid down .

It has been suggested that, admitting such evidence proper to impeach a witness, who is upon the stand, it ought not to be allowed to impeach a deposition, the witness being absent, and having no opportunity to deny or explain. The witness who has testified upon the stand hears, it is true, the evidence which tends to impeach him, or he may be called back for that purpose, if he be absent: so where the evidence goes to affect the credibility of a deposition, if it be material, the Court would give time for the principal witness to appear, or for other depositions to be taken, relative to the facts which are proved to impeach him. It may sometimes be inconvenient; but if justice requires delay, it would be given. Suppose a witness, who has once testified, should afterwards acknowledge the falsity of his statements, and then die; the party interested in his testimony might, upon another trial, prove what he had once said upon the stand under oath; and shall not the other party be permitted to prove that what he said was a falsehood ?

Whatever may be the reasons for adopting the practice in England, of first advertising the witness on what grounds he is about to be impeached, we are satisfied that such practice has never prevailed here; and we see no reason for introducing a rule altogether unknown to the practitioners in this country. In England it is rather a matter of practice than a rule of evidence, as would seem by the opinion of the judges in the Queen’s trial. It may date its origin long since we were bound by English laws, and if so, would have no force here, except by adoption .

There being no ground of objection to the verdict, on account of the admission of incompetent evidence, it remains to be inquired whether there is any other cause for setting it aside.

* The charge does not seem to be directly found fault [ * 168 ] with, and yet it seems not to have been entirely satisfactory to the defendant’s counsel. The jury were instructed that, if they believed from the evidence that the plaintiff had no knowledge of any assignment of the policy, when he received the order, and that the defendant did know of it, but did not communicate his knowledge; having accepted the order unconditionally, he was bound by his acceptance.

We are all satisfied that this instruction cannot be complained of by the defendant, the principle involved in it being as favorable for him as the case would admit of.

The direction goes upon the supposition that the plaintiff, having a fair demand against Silas Penniman, who was insolvent, but who had funds in the hands of the defendant, received an order upon him for a portion of those funds, in satisfaction of his demands, as far as the proceeds would go; and that the defendant, without any restriction in writing or otherwise, accepted the order thus drawn. The inference, which naturally presented itself to the jury, must have been, that the funds were free from any prior lien; for a general acceptance could not have been given under such circumstances, without a fraudulent intent to conceal the lien, which is not to be imagined.

Upon this part of the charge, the turning point with the jury was, whether the plaintiff knew or was informed of the assignment of the policy: and here the evidence was positive in favor of the defendant, if the testimony of Silas Penniman was accredited But there were circumstances in the case which led the jury to doubt; particularly, that such knowledge in the plaintiff did not correspond with the conduct of the parties in drawing and receiving the order, and the conversation of Penniman in presence of the witness Brooks undoubtedly tended to increase those doubts; so that the jury finally disbelieved Silas P. [ * 169 ] * It is said the verdict is against evidence, for that the witness ought to have been believed. But the credit of witnesses lies entirely with the jury, when there are any facts or testimony in the case tending to impeach them. We cannot say that the verdict is against evidence; so that there cannot be a new trial.

Judgment on the verdict. 
      
       [The practice is obviously very convenient and useful.—Ed.]
     
      
      
        Peake's Law of Evidence, 89.
     
      
       [It is a general rule of the English law, that wherever the credit of a witness is to be impeached by proof of any thing that he has said, or declared, or done, in relation to the cause, he is first to be asked, upon cross examination, whether he has said, or declared, or done, that which is intended to be proved. If the witness admit the words, declaration, or act, proof on the other side becomes unnecessary, and an opportunity is afforded to the witness of giving such reasons, explanations, or exculpations of his conduct, if any there be, as the circumstances may furnish, and thus the whole matter is brought before the Court, which is the most convenient and reasonable course.—1 Starhie, Evid. 183, 2d English edition.—Queen's case, 2 B. -fy* S. 300, 313.—Augus vs. Smith, 1 Mood. & Malk. 474.—En.]
     