
    Lewisburg.
    Charlton v. Unis.
    (Absent Brooke, J.)
    1847. July Term.
    
    1. The previous statements of a witness, whether oral or written, maybe introduced in evidence to impeach his credibility; but not as evidence of any fact touching the issue to be tried.
    2. The previous statements on oath of a witness having been introduced for the purpose of impeaching his credibility, it is not competent to the party who has introduced these statements, to introduce further testimony to prove these statements are not true.
    3. But if such improper testimony is introduced, the other party is not therefore authorized to introduce testimony to sustain the said previous statements of the witness.
    4. In a suit for freedom it is not competent to the plaintiff to introduce evidence of hearsay, or of the common report that her mother had been considered a free woman in Massachusetts, and had been carried off from thence by a particular individual, to corroborate the testimony of other witnesses, or for any other purpose.
    5. Depositions taken to be read on a trial at law, contain evidence of hearsay and common report; and so much of said depositions as give evidence of hearsay or common report is excepted to; but the exception does not designate the particular passages to which it is intended to apply. The Court overruled the objection, but instructed the jury, that such parts of the depositions as gave evidence of hearsay or common report, must not be regarded as proving or tending to prove the facts stated therein ; but was to be heard for the purpose alone of corroborating the testimony of other witnesses whose testimony had been assailed. Hem : That the objection to the form of the exception to the depositions does not arise, because it appears the parts of the depositions excepted to, were brought to the notice of the Court, acted on by it, and were permitted to be read to the jury under a specific instruction applicable to such portions of the depositions only.
    This was an action brought by Unis against Charlton, for the purpose of recovering her freedom. The plaintiff claimed to be the daughter of a negro woman called Flora, and that Flora was a free woman at the time of the plaintiff’s birth, in Connecticut or Massachuselts, and had been abducted from thence and sold in Virginia as a slave.
    On the trial of the cause before the Circuit Court of Rockbridge county, the plaintiff introduced the depositions of Jacob iMwrence and Elijah Meacham. Whereupon, the defendant to discredit the testimony of Meacham, introduced an affidavit made by him a short time previous to the institution of this suit, in 1826, in which he stated that he knew the woman Flora in the State of Connecticut in 1775, when she belonged to one Benjamin Scott; and that some time afterwards, the year he did not recollect, the Legislature of the State of Connecticut passed a law giving freedom to all the slaves of the said State. The defendant then introduced as evidence, without objection by the plaintiff, three statutes of the State of Connecticut on the subject of the emancipation of slaves, for the purpose of disproving the fact stated in Meacham’s affidavit; and he introduced oral testimony of the general character of both Lawrence and Meacham, tending to impeach the character of these witnesses. The plaintiff then offered in evidence the depositions of Sally Coit, Thubal Styles, Sarah Nelson and Jeremiah Nelson, for the purpose of sustaining and corroborating the testimony of the witnesses Lawrence and Meacham. In the depositions proposed to be read the witnesses spoke of the common report that Flora had been considered a free woman in Massachusetts, and had been abducted by Hanchett, or Bronson and Hanchett, The defendant excepted to so much of these depositions as was hearsay, or gave the common report that Flora had been considered a free woman in Massachusetts, and had been abducted by Hanchett, or Bronson and Hanchett; but did not designate the particular passages therein to which the exception was intended to apply. This objection the Court overruled, and permitted the depositions to be read, but with instructions to the jury, that so much thereof as was hearsay, or related to the common report that Flora had been considered a free woman in Massachusetts, and had been abducted by Hanchett, or Bronson and Hanchett, must not be regarded by them as primary evidence thereof, proving or tending to prove the facts that Flora was actually free and had been abducted by Hanchett, or Bronson and Hanchett, but that it was permitted to be read in connection with oral testimony as to the general character of Lawrence and Meacham, for the purpose alone of corroborating their testimony. To the admission of this testimony for any purpose, the defendant excepted; and a verdict and judgment having been rendered for the plaintiff, the defendant applied to this' Court for a supersedeas, which was granted.
    
      Michie, for the appellant.
    
      Francis T. and John T. Anderson, for the appellee.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that as the depositions of John Lawrence and Elijah Meacham, taken on behalf of the plaintiff, had been read to the jury as evidence to sustain the issue on her part, it was competent to impeach the credit of said witnesses, or either of them, by proof that the witness had made statements, orally or in writing, inconsistent with the testimony given on the trial or contained in his deposition. But such testimony of inconsistent statements is admissible only for the purpose of impeaching the credit of the witness, but cannot be received as evidence of any fact touching the issue to be tried; for that would be to substitute the statements of a witness, generally when not on oath, as evidence between the parties, for his testimony given under the sanction of an oath upon the trial.

The Court is further of opinion, that when such inconsistent statements are offered in evidence, it is not competent for the party thus impeaching the witness, to introduce further evidence to contradict such statements so offered in evidence by himself; because this would be unjust to the witness and the party introducing him ; for though every witness may be supposed to come prepared to sustain the truth of his testimony given on the trial, aud his general character, he cannot be expected to come prepared to prove the truth of every collateral statement he may have made on another occasion. It was, therefore, competent for the defendant in the case under consideration, to introduce the affidavit of said Elijah Meacham. dated the 11th of April 1826, to shew thereby, if he could, for the purpose of impeaching Meachamis credit, that in said affidavit, he had made statements inconsistent with his testimony as contained in his deposition ; but having introduced the affidavit for this purpose, it was not proper to introduce evidence to contradict the statements of the witness appearing in the affidavit, and so to impeach his credit, by giving evidence of a collateral statement, and then proving such collateral statement was false.

It was therefore irregular on the part of the defendant. after reading said affidavit in evidence, to introduce the act of the General Assembly of Connecticut, for the purpose of contradicting a statement in said affidavit, thereby to discredit the witness by shewing a want of memory or of veracity in respect to that statement ; and such improper testimony offered for the purpose aforesaid, if objected to by the plaintiff, should have been excluded from the jury.

But the Court is further of opinion, that after permitting such improper testimony to go to the jury without objection, it was not competent for the plaintiff to counteract the effect thereof, by the introduction of testimony in itself illegal and improper. All evidence, therefore, offered by the plaintiff to sustain, not the testimony of the witness, as contained in the deposition, but the statements contained in said affidavit, should have been excluded; and this, whether such rebutting testimony offered by the plaintiff, was confined to the particular in which the affidavit had been assailed, or applied to any independent statement in the affidavit which had not been contradicted. Any other rule would tend to divert the attention of the jury from the real enquiry before them, whether the witness was entitled to credit in the evidence he had given, to the enquiry whether he had told the truth upon some collateral question; and the danger is encountered, that upon this collateral issue raised on the trial, evidence may become proper, and so be let in, which would be illegal upon the trial of the issue between the real parties to the cause ; and such illegal testimony may make an improper impression upon the minds of the jury, notwithstanding any instruction of the Court as to the proper bearing thereof.

The Court is further of opinion, that the question growing out of the form of the exceptions to the depositions, does not arise upon the bill of exceptions in this case ; because it appears that the parts of the depositions excepted to, were brought to the notice of the Court, acted on by it, and were permitted to be read to the jury, under a specific instruction applicable to such portions of the depositions only. The Court having acted and decided, the propriety of that decision is the sole question presented by the bill of exceptions, and not the question whether the Court might not have refused to consider the exceptions on account of the form in which they were taken.

It therefore seems to the Court here, that the Circuit Court erred in overruling the exceptions of the defendant to so much of the depositions of Sally Coit, Thubal Styles, Sarah Nelson and Jeremiah Nelson, as was hearsay, or gave the common report that Flora had been considered as a free woman in Massachusetts, and had been carried off by Hanchett, or by Bronson and Han chett; aud in permitting such portions of said depositions to be read to the jury, for the purpose of corroborating the testimony of said John Lawrence and Elijah Meacham, or either of them, or for any other purpose.

Judgment reversed, verdict and judgment set aside, and cause remanded for a new trial of the issue joined, upon which so much of said depositions as were excepted to for the cause aforesaid, are to be specifically designated by the Court and excluded from the jury if again objected to.  