
    Doe, on the Demise of Sutton, v. Reagan and Others.
    
      Friday, November 22.
    The opinion of a witness not being a medical man, as to a person’s insanity, is not admissible evidence, unless the facts on which it is based have come under his own observation, and unless he state those facts to the jury.
    The objection to a deed of conveyance on the ground of the grantor’s insanity, is the proper subject of inquiry for a jury.
    Evidence of declarations, &c.*-made at the time of a transaction that is the subject of inquiry, and which are a part of the res gesta, is admissible.
    To prove that a suit had been defeated by a plea of infancy, a record of the suit should be produced.
    The opinion of the Circuit Court respecting the admissibility of evidence will be presumed correct, unless the record'show it to be .otherwise.
    A witness cannot be impeached by proving, by other witnesses, that he had previously made a contradictory statement, until he has himself been examined with respect to such previous statement.
    ERROR to the Fayette Circuit Court.
   Blackford, J.

This was an action of ejectment for a tract of land in Fayette county. Plea, the general issue. Verdict and judgment for the defendants.

On the trial, certain depositions taken by the plaintiff, were suppressed on the defendants’ motion. These were depositions in which the witnesses expressed their opinions that one Joseph Reagan, under whom the defendants claim, was insane at the time of his execution of a deed to them for the premises in dispute. These depositions were correctly suppressed. The opinions of witnesses may be taken as to the sanity of a grantor, but the facts upon which the opinions are founded .must be also stated. Men of medical skill, who have no personal knowledge of the facts, may be asked their opinions whether certain appearances, detailed by other witnesses, are symptoms of insanity. Rex v. Wright, Russ. & Ryan’s Crown Cases, 456. But the opinion of a person not of the medical profession is not evidence, unless the facts upon which it is based have come under his own observation, and- unless also he state those facts to the jury. In the case before us, the facts were not stated from which the opinions were formed, and the testimony was consequently inadmissible.

After the plaintiff had closed his evidence, the defendants proved Joseph Reagan's execution of the deed under which they claimed, and then offered it in evidence. The plaintiff objected to the reading of the deed, on the ground of the grantor’s insanity, and offered to prove the insanity to the Court. The objection was correctly overruled. It was not for the Court to decide, whether the grantor was insane or not. The defendants having proved the execution of the deed, had a .right, to read it to the jury; and it was for the plaintiff, afterwards, to satisfy the jury, if he could, that the grantor was insane at the time the deed was executed. The objection to a deed on the ground of the grantor’s insanity, is like an objection to it on account of its execution having been obtained by fraud or by duress, and is the proper subject of inquiry for a jury.

To prove the consideration of the deed executed by Joseph Reagan, the defendants offered to prove that, at the time of its execution, William Reagan, one of the defendants, told the grantor that he had used 1,300 dollars of his, William Reagan's property; to which the grantor answered that he thought it was not quite so much. The plaintiff objected to this evidence, but the Court overruled the objection. The conversation in question took place during the transaction, and was a part of the res gestee. The objection to the evidence was, therefore, without foundation. Joseph Reagan's written acknowledgment of the same date with the deed, that the deed was executed in consideration of certain debts due from him to the defendants, was admitted in evidence, though objected to by the plaintiff. This acknowledgment was also a part of the res gestee, and was legal testimony.

As a further proof of the consideration of Joseph Reagan's deed, the defendants proved that William Reagan, one- of the defendants, had executed a note as surety for Joseph Reagan for a certain sum of money. On the cross-examination of the witness who stated that fact, the plaintiff offered to prove that in a suit on the note, William Reagan avoided a judgment against him by pleading infancy, and that his co-surety was compelled to pay the money. . The evidence was objected to, and the objection sustained. This evidence was objectionable because it was parol. The record of the suit should have been produced.

The plaintiff offered to prove that the witness had expressed an opinion to one of the defendants,, that Joseph Reagan was insane, but the evidence being objected to was rejected. It does not appear when this conversation took place nor to what time it referred, and were it necessary, we must presume in favour of the opinion of the Court, that it occurred at, and had reference to, a time subsequent to the execution of the deed. It is unnecessary, therefore, to notice this evidence further.

The plaintiff makes one other objection. Houston, one of the defendants’ witnesses, stated that he saw nothing unusual in Joseph Reagans conduct at Cincinnati, about the time the deed in question was executed. He was cross-examined ; but no inquiry was made of him whether he had previously made different statements on the subject. The plaintiff, afterwards, offered to prove _ by another witness that Houston had, before the trial, made statements respecting Joseph Reagan's insanity, different' from those made by him as a witness. This evidence was objected to, and the objection sustained. It was the plaintiff’s object, by this evidence, to impeach the credit of Houston, by showing his contradictory statements respecting a matter relevant to the cause. This mode of impeaching Houston's credit would have been admissible, if the plaintiff had laid a foundation for it, by interrogating Houston himself as to the previous statements. It has often been decided, that an opportunity must first be given to the witness to answer respecting his previous statements, before they can be proved by other testimony. The Queen’s Case, 2 Brod. & Bingh. 284, 314. Angus v. Smith, 1 Moody & Malkin, 473.—Crowley v. Page, 7 Carr. & Payne, 789.—Everson v. Carpenter, 17 Wend. 419.—M’Kinney v. Neil, 1 M’Lean’s R. 540, 547. In the present case, the plaintiff not having laid the proper foundation for his proposed inquiry, the objection to the evidence was valid .

G. H. Test and R. W. Thompson, for the plaintiff.

C. B. Smith and J. S. Newman, for the defendants.

Per Curiam.

The judgment is affirmed with costs. 
      
       It is not enough to ask the witness generally whether he has ever said ■so and so, but he must be asked as to the time, place, and person, involved in the supposed contradiction. Angus v. Smith, 1 Mood. & Malk. 473.
      If the witness deny the words, declaration, or act imputed to him, then, if it be not a matter collateral to the cause, witnesses may be called to contradict him. The Queen’s Case, 2 Brod. & B. 314.
      If the witness merely says that he does not recollect, you may prove that he did say what is imputed to him, always supposing the statement to be relevant to the matter at issue. Crowley v. Page, 7 C. & P. 789.
     