
    Rundal H. Pearce vs. Henry Furr.
    Where a witness has testified to the facts, in a case of assault and hattery, before a justice of the peace, and upon a trial subsequently in the circuit court, for the same cause, the witness testifies again, it is competent to introduce the justice of the peace, before whom the first trial was had, and whose written statement of the evidence had been lost, to prove what the witness then swore to, in order to impeach his testimony.
    The Statute requiring a justice of the peace to take the testimony of witnesses, in a trial before him, in writing, does not require him to send it, when taken, to the circuit court, or preserve it in writing.
    In error, from the circuit court of Lawrence county.
    This was an action brought in the court below, by Furr, to recover damages for trespass in assault and battery upon his person, by Pearce. To the action there were two pleas; First, the general issue. Second, son assault demesne ; to both of which, there was issue joined. A jury was empaneled and verdict for the plaintiff below, for $ 525 damages. The case comes up on several bills of exception, taken to the opinion of the court below on the trial; and on motion for new trial, because of these erroneous opinions of the court; and, because of misconduct in the jury, after they retired from the box to consider of their verdict.
    The first bill of exception, which is the only one it is deemed requisite to notice, was taken to the opinion of the court, in refusing to permit the defendant, Pearce’s counsel, to impeach the testimony of Andrew Townsend, a witness called by the defendant below, by showing by other testimony, that this witness had deposed differently before the justice, who examined the parties to this suit, touching the same assault and battery, &c. This proof was offered to be made, by the justice who conducted this examination. The defendant below having first proved by the clerk of the court, that the deposition of said witness, reduced to writing by said justice, was lost, after the same was filed in his office.
    
      
      iSitnrall for plaintiff in error.
    The first error assigned is, that the court erred in not permitting the defendant below to make the proof, offered to be made, by William H. Fonarm, as appears by first bill of exception.
    This error is so apparent, that it will require little argument or authority to make it manifest. The great and distinguishing excellence of the trial by jury, is, that both parties are confronted with their witnesses; and the jury can judge by the manner of witnesses — by their countenances, by their hesitancy, by any interest or bias, they may exhibit towards either party, what degree of consideration and weight to give to their testimony. The superiority of the system of jury trials, over all others, is, that the testimony of witnesses is deposed ofally in open court, so that by cross-examination the means of knowledge, the extent of knowledge, which a witness had, may be ascertained, so that he may be detected in falsehoods, if he state any, that the very truth may be arrived at. For these purposes, a wide latitude of inquiry is allowed upon cross-examination; and truth being the end aimed at, every means of finding it, is allowable.
    If the witness, Townsend, was deposing to falsehoods against Pearce, it was his privilege, it was 'his duty, to make that appear. This he could do in several ways. Either by a minute and searching cross-examination, by impeaching his general character for truthfulness, or in the way that he proposed to do — by proving that under the solemnities of an oath, when this same matter was under investigation before another tribunal, he had sworn to different facts, and made different statements from those deposed to before the jury. ^ It will be seen, by reference to the record, that this testimony was most material for the defendant Pearce. On his examination in chief, he said that Pearce told him, in conversation, that he had a quarrel with Furr, whilst Furr was sitting upon his horse; that Furr held down his head in his face, and that he, Pearce, shook his fist in his face, and actually touched him, (which in law is a battery,) and that, thereupon, Furr shoved him off with the breech of his gun, inflicting a wound over the eye. The contradictory statement offered to be proved by the justice, was, that when Furr held down his head, &c. Pearce shook his fist in his face, and said he would whip him, were it not for the laws of the land; (which was not even an assault.) If this proof could have been made, it would have made the plaintiff below, guilty of the first offence, by inflicting the wound on Pearce’s eye. All of which would have been admissible under the issues before the jury.
    Pearce was entitled to prove that this witness had made different statements from those sworn to on the trial, in mere conversations out .of doors.
    
      A fortiori could he show that he had sworn differently on a previous investigation of the subject.
    After proving the loss of the deposition of this witness, the next best evidence of what he swore before the justice of the peace, was the justice himself, who, from his situation, must have given strict attention to his testimony; and is therefore presumable to recollect it. The law only requires of a party, to produce the best evidence the nature of the case allows. Now what better testimony could Pearce'have offered, when this deposition could not be produced; by no fault of his, was it missing; and it was greatly to his interest to have had it on the trial.
    In support of these views, the court is referred to 9 Conn. Rep. 242. 2 How. 26. 7 Cow. 334. It has been held in New York, that a levy of a ft. fa. could be proved by parol where the writ had never been returned.
    
      John D. Freeman, on the same side.
    The first bill of exceptions, shows that plaintiff introduced a witness to prove the assault charged in the declaration, and that upon cross-examination, the defendant offered to prove that the same witness had sworn directly the reverse on a former occasion, when the same case was examined before a justice of the peace. The justice reduced his testimony to writing, but the same was lost, and the defendant offered to prove by the justice of the peace who wrote down the testimony, what the same was. The court refused the secondary evidence. The rule on this point, is clearly the reverse of that adopted by the court. “ When it appeared that the magistrate who took the informations, had returned them to the clerk of the peace, and the clerk to the latter stated that it was the practice where bills had been ignored, to throw away the papers, and that after searching, the informations could not be found; it was held in an action for a malicious prosecution, that this was sufficient to let in secondary evidence.” 1 Starkie, 345, 6th edition. This authority fully covers the point made in the first bill of exceptions. The evidence excluded, was therefore legal, and had it been given to the jury, the verdict must have been for the defendant. No other witness testified to the same point, than the one whose evidence it was offered to invalidate.
    
      E. G. Peyton, for defendant in error.
    The defendant below, undertook to invalidate the testimony of Andrew Townsend, who testified to the jury on the part of the plaintiff, by one William H. Fonderin, before whom, as justice of the peace, the examination of Pearce for the assault and battery took place, in which the testimony of the witness, Townsend, was reduced to writing, without producing the written deposition, or laying a sufficient foundation for the introduction of secondary evidence. Such a proceeding, would be in violation of that cardinal principle of evidence, which requires the best evidence to be produced, of which the case is susceptible. In order to let in secondary evidence, it should have been proven by the clerk of the Lawrence circuit court, that he had seen the deposition, that it had been filed in his office, and had since been lost
    The testimony given by Townsend before the jury, was substantially the same as that given before the justice of the peace, Fonderin, although different language was employed in testifying the same facts, as will appear to the court upon reference to the first bill of exceptions. Whether Pearce touched Furr at the time he shook his fist in Furr’s face, was not at all material to the issue before the jury.
    
      
      B. Harris, for defendant in error.
    The first question presented by the record, is the rejection of Fonderin’s evidence' to show a variance in his examination before the justice, and that given at the trial.
    I do not d'oubt that the deposition would'have been competent to contradict the witness. But when a witness’ examination is reduced to writing, and read to him, as directed- by the statute, it is the only evidence of what he did testify to, so far as it goes ; and being the best evidence; could only be read, and not what by-standers and others recollected. The examination being lost, the principle in: regard to lost instruments is believed to apply. Fonderin could have been asked what the written testimony contained, and not what was the testimony before the justice’s court; if the deposition could only be used, (and such will be found to be the facts. See 2 Starkie’s Ev. p. 489; Cowen and Hill’s edition of Phillips, vol. 1, page 371) to contradict the witness, then what was contained in the lost deposition, could only be used for the same purpose. He was asked not what the deposition contained; but his recollection of the testimony before the court.
   Mr. Justice- Thacher,

delivered the opinion of the court.

This was error to the circuit court of Lawrence county. The action was instituted to recover damages for an alleged assault and battery. The defendant below plead the general issue of not guilty, and the plea of son assault demesne.

The error assigned which chiefly attracts our notice, is, that the court refused to permit a justice of the peace, called as a witness, before whom an examination of the case had taken place, to state what a certain other witness had testified, on that examination. The circumstances were these: The witness had given his testimony upon the trial of the case, now at bar, and it was offered to attack his credibility, a foundation for which, had been laid-in the evidence, by showing that he had testified to a different effect, before the justice of the peace, upon a preliminary examination of the circumstances of the same case. It appeared that the magistrate had committed to writing, the testimony of the witness upon that examination, and sent it up to the circuit court of the county, where it had been lost.

The statute requires a justice of the peace to take the testimony of witnesses in a trial before him, in writing, but it does not require him to send it up to the circuit court of his county, nor to preserve it of record in his office. Upon sufficient proof of its loss, oral proof of the pontents of the deposition is properly admissible, it being but in the nature of the justice’s own memorandum of the evidence. The substance of what the witness deposed before the justice, must have been the contents of the paper, proved in this case, to have been lost. In this view, the testimony was erroneously excluded. 1 Stark. Ev. 340. The evidence being legitimate, this court is not prepared to say but that its influence upon the minds of the jury, might have been very essential to the -rights of the defendant in this case.

The judgment of the court below, is therefore reversed, and a new trial must be awarded.  