
    LEE v. CHADSEY.
    September, 1866.
    To lay a foundation for impeaching a witness by proving by another person that he had made a threat to swear falsely (considered as an inconsistent statement purely), his attention must not only be called to the name of the person, but to the occasion of the alleged conversation.
    
    Without such a foundation, evidence of the threat is not admissible as proving the witness unworthy of credit, unless the threat be shown to have related to the particular case on trial, 
    
    It is proper for the judge to instruct the jury that a witness, although impeached and deemed unworthy of credit, may be believed so far as corroborated by other testimony.
    
    A commission, in excess of lawful interest, exacted by an agent, for his own benefit, without the knowledge of his principal, does not necessarily make the loan usurious, even though the borrower believed the agent was dealing with him as a principal.
    
    Benoni Lee, executor, &c., of C. If. Potter, sued Demetrius Chadsey, J. R. Craig, and J. H. Leeds, in the supreme court, on a promissory note, made by Chadsey, January 11, 1859, to order of Craig, at six months, for three thousand dollars, and indorsed by him and by Leeds. Leeds did not defend. The o her defendants separately answered, setting up that the note was delivered by the maker, in its inception, to one Boyer, as security for two usurious loans by him to the maker, one of one thousand dollars, on March 8, 1859, and a second of three hundred dollars, on March 7. Craig’s answer alleged that he indorsed for accommodation, and that plaintiff was not a Iona fide holder.
    On the trial, it appeared that Chadsey received from Boyer one thousand dollars on delivering the note now-in suit, and at the same time gave Boyer a “ stock note ” as it is called, for one thousand dollars, reciting the deposit with him of the note now in suit, and authorizing him to sell it, if the one thousand dollars was not repaid. • The subsequent sum of three hundred dollars, he also received from Boyer, and gave Boyer his “memorandum check” therefor. These sums, it was proved, were advanced by the defendant Leeds. The testimony was conflicting as to whether the loans were made by Leeds through Boyer, or by Boyer, and as to whether usurious interest was exacted by Boyer, but there was no evidence whatever that Leeds took any usurious interest, or knew that any was taken. Leeds and Boyer, as witnesses on the trial, both swore that the one thousand dollars loan was made by Leeds. Boyer testified that he acted as a broker and the sums he received were his commissions.
    The securities were transferred and delivered to Leeds; and the loans of one thousand three hundred dollars not being repaid, he sold the note in suit to plaintiff, before maturity, for full value.
    Boyer’s testimony was corroborated in some material respects by bis clerk, and by Leeds. Five uncontradicted witnesses testified that Boyer’s reputation for truth and veracity was bad.
    Boyer, on cross-examination, having testified that he knew one Butler, was asked if he ever told Butler he would swear false to avoid usury. He answered, no. Subsequently, defendants called Butler, and asked him, “ Did you ever hear him (Boyer) say as to whether he would swear false in a case of usury, or not ? ” Plaintiff objected. Defendants then offered to show that Boyer told the witness that in case of usury he would swear false to avoid it. The offer was excluded, and defendants excepted.
    The judge, in charging the jury as to what credit was to be given to Boyer, said: “Five witnesses were allowed to be called to the character of Boyer upon this occasion, and they uniformly testified that his character was bad, and they would not believe him under oath, where he was interested. You heard their cross-examination, and heard the names of those from whom they had gathered, so far as they could recollect, their information and knowledge of his character; for this reputation is not the knowledge of the witness, but his standing in the community — the character which we learn by the speech of people; and you are to take the fact of what has been said as to the character of Boyer into account, when you come to pass upon his testimony. It is for you to say whether, notwithstanding that, he is still entitled to credit by reason of the probability of his story, hy reason of the corroboration of the circumstances of the case, or by reason of the corroboration on the part of the other witnesses. This is all submitted to you with the other facts in the case.” The exception appears in the opinion.
    Immediately after the charge, a juror asked the judge: “ Supposing, your honor, the jury find that Boyer has played false with both parties in order to secure his commissions, and has told Mr. Chadsey he was lending the money, at the same time he told Leeds he was lending it — how does that affect the note ? ” The Court: “ I don’t think Leeds would be estopped hy the representation made by Boyer; I think if Leeds loaned the full amount upon the note to Chadsey, as upon a loan to Chadsey, I do not think the note would be usurious.” The Juror: “Hot even though Chadsey believed he was dealing with Boyer?” The Court: “Yes, I think so.” Defendants excepted.
    The plaintiff had a verdict against Leeds for the amount due on the note in suit, and against Chadsey and Craig for the amount, due on the one thousand dollar note, and Chadsey and Craig had a verdict as to the three hundred dollar note.
    
      The supreme court, at general term, on an appeal by Chadsey and Craig, affirmed the judgment, and they then appealed to this court.
    
      
      J. W. Culver, for defendants, appellants.
    — As to impeaching the witness, cited Cow. & II. Notes, pt. 1, c. 8, note 530, p. 766, 2 ed. and cases cited; Starks v. People, 5 Den. 106; Plat v. Bouchard, 4 Edw. 30. As to burden of proof of good faith of holder of note, Morton v. Rogers, 14 Wend. 581; Case v. Merchants’ Bank, 4 N. Y. (4 Comst.) 166; Simpson v. Day, 1 N. Y. Leg. Obs. 46. As to impeachment of the witness, Dunlop v. Patterson, 5 Cow. 246.
    
      R. Sheldon, for defendant, respondent.
    — As-to contradicting the witness, cited Cow, & H. Notes, pt. 2, p. 715-717, 750 ; Pendleton v. Empire Stone Dressing Co. 19 N. Y. 13 ; Palmer v. Haight, 2 Barb. 210; Sprague v. Caldwell, 12 Id. 516.
    
      
      Compare Newton v. Harris, 6 N. Y. (2 Seld.) 345; Nation v. People, 6 Park. Cr. 258; Sloan v. N. Y. Central R. R. Co., 45 N. Y. 125.
    
    
      
       That evidence of former extra-j udicial statements on a material point is admissible, see Chapman v. Brooks, 31 N. Y. 75.
    
    
      
       See Roth v. Wells, 29 N. Y. 471, and Dunn v. People, Id. 523.
    
    
      
       Compare Eaton v. Alger, p. 5 of this vol., and Robbins v. Dillaye, also in this series. See also Smith v. Tracy, 36 N. Y. 79. See also Berlin v. Mapes, 38 Sow. Pr. 288, where the assumed agent was held the real borrower, and the defense of usury was sustained.
    
   J. C. Smith, J.

[After stating the facts.] — Of the several questions in this case, I propose to examine first those which are raised by the exceptions to the rulings of the judge, excluding testimony offered by the defendants.

The offer to prove by the witness Butler that Boyer had told him that in a case of usury he would swear false to avoid it, ■was correctly excluded; no proper foundation had been laid for it. The question previously put to Boyer was not sufficiently specific to allow the defendants to contradict his answer. It indicated nothing but the name of the person with whom the supposed conversation was had. That was not enough. The question should have been so framed as to point 'out to the witness, with reasonable certainty, the occasion of the conversation. Such is the rule laid down by this court, in the case of Pendleton v. Empire Stone Dressing Co., 19 N. Y. 13. “It cannot, of course, be necessary,” said Judge Dentó, in the leading opinion in that case, “ that the precise date be indicated, as that must often be difficult to ascertain, and, if ascertained, would not be likely of itself to recall the circumstances to the witness; but the place could easily be indicated, and the occurrence identified by a statement of the purpose of the interview or other circumstances which would recall to the mind of the witnes if the conversation inquired of actually took place.” The same learned judge also said: “ The reason for requiring that a witness whose credit it is intended to attack by the proof of contradictory statements, should be first examined respecting them, is according to the unanimous opinion of the judges in the Queen’s Case, 2 Brod. & B. 313; that he may be enabled to give such reason, explanation or exculpation as the circumstances of the transaction may happen to furnish.” Manifestly, the cross-examination of the witness Boyer, in the present case, did not come within the reason of the rule.

It is insisted, however, by the defendants’ counsel, that although the proper foundation was not laid for proof that Boyer had made contradictory statements, yet the evidence offered tended directly to impeach him, by showing that he was unworthy of credit in the particular case in which he was then a witness, independently of any contradiction in his statements, and was admissible on that ground. Asa general rule, in impeaching the credit of a witness, examination must be confined to his general reputation, and not be permitted as to particular facts. But this rule does not exclude proof of acts or declarations of the witness connected with the particular suit in which he is examined, or its subject matter. Such acts and declarations may be said to form an exception to the rule. Thus, in the Queen’s Case, already referred to, it was assumed without question to be competent to an accused party to show that a witness in support of the prosecution had made declarations, or done acts to procure other persons to give false testimony in support of the prosecution. 6 Eng. Com. L. 129. If the offer in the present instance had been to show a declaration of Boyer that he would swear falsely to defeat the defense of usury in the particular case then on trial, it obviously would have been within the exception above suggested. But such declaration was necessarily included in the one which the defendants in fact offered to prove was made by Boyer, to wit, that in any ease in which the defense of usury was set up, he would swear falsely to avoid it. The testimony offered was, therefore, not incompetent, provided the proper foundation had been laid for its introduction, and this brings us to what I conceive is the real difficulty in the defendants’ way.

The same foundation must be laid for the reception of evidence of particular declarations or acts of a witness of the nature above stated, as in the case of evidence of his contradictory statements, and for the same reasons.

The legitimate object of the proposed proof, in either case, is to discredit the witness. In each case it is equally due, not only to the convenience of the trial and the interests of justice, but also to the rights of the witness, that he should have an opportunity of tendering his version of the matter in the first instance. The Queen’s Case expressly sustains these views. The judges were unanimously of opinion that it was not competent to prove declarations or acts of a witness to procure persons to give false testimony in the cause, without first examining the witness as to the fact whether he made such declarations or did such acts.

The reasons for the opinion are cogently stated by Oh. J. Abbott, and are, in substance, those above suggested. We have already seen that, in the present case, the requisite foundation was not laid for the proposed testimony, and for that reason the testimony was not admissible in any view.

[Remarks disposing of a minor exception, on the ground that it had not prejudiced the appellants, are here omitted.]

The exceptions to the charge remain to be considered.

First. One of the exceptions is in the following language: To so much of the charge as holds that Boyer might still be believed, although the jury credit the witnesses as to his character for truth and veracity.” It is a sufficient answer to this exception that it is inaccurate, as the unqualified proposition stated in it was not advanced by the judge.

The language of the exception implies that the judge instructed the jury that although Boyer was impeached, they might credit his testimony without regard to whether it was corroborated or not.

The charge was in substance this: That the jury were to judge of Boyer’s credibility; that if they believed him so far impeached as to be unworthy of credit, they were not bound, on the one hand, to wholly disregard his testimony, nor, on the other, to regard it as they would that of an unimpeached witness; but that, so far as he was corroborated by other testimony, or by the circumstances of the case, he was still a competent witness; and the jury were to say whether,'notwithstanding the impeachment, his testimony was entitled to credit by reason of such corroboration, or the probability of his story.

But if the exception be treated as applying to the portion of the charge of which the foregoing is a summary, the exception is nevertheless unavailing, for the reason that it is general, and the portion excepted to contains several propositions of law, some of which are entirely correct. Thus, it was unexceptionable to submit the witness’ credit to the jury, and to tell them that although they thought him unworthy of credit, they might believe him so far as he was corroborated by other testimony. Perhaps there is reason to doubt the accuracy of the instruction that the jury might say whether the witness, although impeached, was entitled to credit by reason of the probability of his story; but that precise point is not raised by the general exception, and a discussion of it would be useless.

But the defendant’s counsel, assuming that his exception is available, insists that the portion of the charge claimed to be covered by it is unsound, and that the judge should have instructed the jury that Boyer was so thoroughly impeached as to justify them in rejecting his testimony altogether. In support of this position, the case of Dunlop v. Patterson, 5 Cow. 243, is cited; but that case has been seriously questioned, if not distinctly overruled by this court. Dunn v. People, 29 IV Y. 253. And, even if it is to be regarded as authority, it is clearly distinguishable from the case at bar. There, the testimony of a single witness was directly contradicted by what he had sworn to on a previous trial, in relation to the first transaction ; and it was entirely uncorroborated.

Second. The charge of the judge, that if Leeds made the loan to Chadsey, he would not be estopped by the representations made by Boyer, even though Chadsey believed he was dealing with Boyer, was not erroneous. There is nothing in the case to estop Leeds from questioning the truth of the representations made by Boyer to Chadsey, and upon the authority of the decisions of this court in Condit v. Baldwin, 21 N. Y. 219, and Bell v. Day, 32 Id. 165, it must be held that although Chadsey believed he was dealing with Boyer, and paid him a bonus in excess of the legal rate of interest as a condition of the loan, yet if in fact Leeds loaned the money to Chadsey, the note was not usurious, if Leeds did not take usurious interest himself, or know of its being taken.

Third. The points urged by the defendants, that the verdict was against the charge, and that it was inconsistent, assume that the jury found that the three hundred dollar check was usurious. There is no evidence that they so found. They may have reached their verdict by finding that neither of the loans was usurious; that the three hundred dollar check was not transferred to the plaintiff, and that he took the one thousand dollar note and the note in suit, with notice that the latter was merely collateral to the former.

The judgment should be affirmed.

Hunt, J.

[After stating the facts] — The testimony upon the point of usury was so conflicting that the finding of the jury must be deemed conclusive in relation to it. The chief subject of contest between the parties is, therefore, disposed of, and the defendants must submit to the result, unless some error of law occurred upon the trial which will require another hearing to be had, and thus afford a new opportunity for asking the judgment of a jury upon the contested facts.

It is difficult to see upon what principle the jury found for the plaintiff upon the one thousand dollar note, and for the defendant upon the three hundred dollar check. It was their province, however, to pass upon each point, and nothing is before us authorizing us to review the facts. ”

[Some remarks disposing of a minor exception, on the ground that the error had not prejudiced the appellants, are here omitted.]

It is objected that the court erred in rejecting the defendant’s proposition to show that Boyer told the witness, Butler, that in a case of usury he would swear false to avoid it. No sufficient foundation had been laid for this question; Boyer had simply been asked, Did you ever tell John Butler you would swear false to avoid usury ? omitting all specification of time or place. This was not enough to justify a contradiction. Pendleton v. Empire Stone Dressing Co., 19 N. Y. 13.

I think the subject was also a collateral and immaterial matter in relation to which the answer of the witness was conclusive. Cow. & H. Notes, 522; Newcomb v. Griswold, 24 N. Y. 298, 299; Carpenter v. Ward, 30 Id. 243.

As an impeachment, it was not competent, independent of the offer to contradict the witness. General character alone is competent for this purpose, and particular acts and facts have always been excluded. It would not have been competent to have shown that he had in fact sworn falsely in a usury trial, much less that he had threatened to do so. Corning v. Corning, 6 N. Y. 97, 104; Harris v. Wilson, 7 Wend. 57; 4 Den. 502; 5 Carr. & P. 468.

At another stage of the case, the witness Boyer was asked if he had not been indicted for procuring a series of notes purporting to be renewals, and presenting them, and getting the money on them as bona fide papers. This question was objected to as irrelevant, and it was further objected that this record must be produced. The objection was sustained, and the defendant seems to have been satisfied with the decision, as he took no exception. He cannot, therefore, ask its review in this court. I think also that the exception was a good one, and that the record was higher evidence than any oral statement. Newcomb v. Griswold, supra. The judge also had a right to exclude it on his own motion, without putting the witness to his privilege, and his decision is not the subject of an appeal. Great Western Turnpike Co. v. Loomis, 32 N. Y. 127.

The defendant also alleges error in the charge of the judge respecting the testimony of the witness Boyer. Several witnesses were called who impeached Boyer by direct testimony that his character was bad, "and that they would not believe him when testifying under oath. The judge informed the jury that it was for them to say how far he was impeached, and whether so far as to render him unworthy of credit; that they were not to disregard his testimony, but not to regard it as they would that of an unimpeached witness, but to disregard it only so far as it comes in conflict with a creditable witness. To the extent that he is corroborated by the circumstances of the case, or by the other testimony in the case, it does not exclude him as a witness. The credit to be given to him is submitted to you as a question to be passed upon by you in the jury room.” After stating the impeachment, the judge further proceeded: “It is for you to say whether, notwithstanding that he is still entitled to credit by reason of the probability of his story, by reason of the corroboration of the circumstances of the case, or by reason of the corroboration on the part of the other witnesses. This is all submitted to you with the other facts in the case.”

The subject of the charge was, that an impeached witness might tell the truth; that he did not stand before the jury as one whose character had not been attacked, but that if, from his manner, the circumstances of the case, and the corroboration of other witnesses, the jury believed his statement, he was a competent witness, and it was competent for the jury to act upon his testimony. They were not bound to do so. They would be entirely justified in disregarding it, but they were not compelled to disregard it.

This was a correct exposition of the law. Especially should this view prevail at this time, when all the former distinctions respecting the competency of a witness are abolished, and everything is reduced to the theory of credibility, in the discretion of the jury. The law holds, with a few exceptions, that every intelligent person may be sworn, and that the jury may determine the extent of the reliance to be placed upon his testimony. If the fate of a friend or relative is involved, or an entire loss of fortune rests upon the results of a suit, the law now makes a person so affected competent to testify, and leaves it for the jury to weigh the testimony, in connection with the circumstances under which it is given. Even an accomplice in the commission of a foul offense for which a pris • oner is on trial, may testify, and the jury are not prohibited from convicting on his unsupported evidence. Cow. & H. Notes, sup. notes, 57-71; People v. Dyle, 21 N. Y. 578; Dunn v. People, infra. It would be a singular anomaly that the testimony of one whose character was simply not equal to the standard of morality required by the community of which he was a member, should be incapable of consideration by the jury; that however well satisfied the jury should be, from all the surroundings of the case, that his narration was in accordance with the truth, that they should be positively prohibited from giving it attention. Such is not the law. The case of Dunlop v. Patterson, 5 Cow. 243, holding a different doctrine, has been overruled in Dunn v. People, 29 N. Y. 523.

These are the only important points in which the appellants claim that they have sustained injury. The case was eminently one of fact. The jury held the defendants to he in the wrong, and whether well founded or erroneous, their opinion upon a question of fact is conclusive.

The judgment should be affirmed.

All the judges concurred, except Porter^ J.

Judgment affirmed, with costs.  