Concurring opinion by
Thompson, J.I concur in the result at which my brother Read has arrived in this case, but cannot agree in his statement *496of the rule in regard to what may be proved by a party calling a witness when the witness swears directly against him. I hold that he may prove different or opposite statements from that sworn to by the witness, made on other occasions; not, I admit, for the purpose of discrediting him or tainting his veracity. Having given him credit by calling him, he cannot do this, but he can dispose of the effect of the testimony, and credit given by his act in calling him, by showing that he had declared differently at other times. And if he make such proof, he has a right to insist that he is no more to be affected by his testimony than that of an adverse witness attacked in the same way. Deplorable would be the condition of a party deceived into calling a witness by the dishonesty of the witness, or the chicanery of the opposite party, if he can neither say nor do anything to protect himself against such conduct. The rule is different with us, and so I claim are the elementary books, at least some of them, most in use with us.
In Sharswood’s Starlde, p. 245, after stating how far, where a party is surprised by the statement of his own witness, he may call other witnesses to contradict him, and the effect of the testimony, he says: “ Doubt has been entertained on the question whether it be competent to a party to impeach the testimony of his own witness, as to a particular fact, by proof that on a former occasion he gave a different account, and so to contradict him by his own statement. The resolution of this doubt depends, as it seems, on the consideration, whether in the abstract such evidence is essential to justice, and if so, then whether the party is to be excluded from such evidence, either by reason of any objection in the nature of an estoppel, or any collateral inconvenience which might result.” The learned author, after adducing reasons in support of his meditated conclusion, renders that conclusion as follows : “ In such, and many other cases which might be put, it would be a harsh rule to exclude the party from defeating the attempt (to trick him by a fraudulent witness) by evidence of the witness’s own statements on the subject.” To sustain this as the rule, the learned editor cites 12 S. & R. 281; 1 Hay. 429; 5 Mass. 334; 4 Pick. 179. According to Starkie, the rule thus appears to be in favor of introducing the declarations of the witness made at other times and on other occasions, differing from his testimony by the party calling him.
In 1 Greenleaf’s Ev., § 444, the like doctrine is to be found. The author, treating of the point, says: “ Whether it be competent for a party to prove that a witness whom he has called, and whose testimony is unfavorable to his cause, had previously stated the facts in a different manner, is a question upon which there exists some diversity of opinion. On the one hand, it is urged that a party is not to be sacrificed to his witness ; that he is not *497represented by him, nor identified with him; and that he ought not to be estopped by the acts of a designing man, perhaps in the interest of his adversary. On the other hand, it is said, that to admit such proof would enable the party to get the naked declarations of a witness before a jury, operating in fact as independent evidence, and this, too, even where the declarations were made out of court by collusion, for the purpose of being thus introduced. But the weight of authority seems in favor of admitting the party to show that the evidence has taken him by surprise, and is contrary to the examination of the witness preparatory to the trial, or to what the party had reason to believe he would testify; or that the witness has recently been brought under the influence of the other party, and has deceived the party calling him. For it is said that this course is necessary for his protection against the contrivance of an artful witness; and that the danger of its being regarded by the jury as substantive evidence is no greater in such cases than it is where the contradictory declarations are proved by the adverse partyand in note 3 to the section, many authorities are referred to in support of the position.
This rule is also laid down in Cowen & Hill’s edition of Phillips on Ev., vol. 2, p. 450, and in note 392, citing to the same point the case of Perry v. Massey, 1 Bail. 32.
The above rule is very distinctly affirmed in Cowden et al. v. Reynolds, 12 S. & R. 281, in which Tilghman, O. J., said: “But even if he had been strictly the plaintiff’s witness, there was no attempt to impeach his general character, but only to show he had contradicted himself, and thereby to lessen the force of what he had sworn in court. There is- no rule of law against this, and hard indeed would be the case if one who calls a witness, expecting that he would swear the truth, if, upon finding himself deceived, he may not show that the witness had told a different story at another time.” In The Bank of the Northern Liberties v. Davis, 6 W. & S. 285, Cowden v. Reynolds is cited by Rogers, J., and the language of Tilghman, C. J., quoted as an authority for the rule in that ease. The learned judge himself, after referring to the case where a witness prevaricates, swears against the party calling him, or appears to be in concert with his antagonist, says : “ The court before whom the case is tried has always, in the exercise of a sound discretion, allowed the party calling him to prove that at different times, and in the presence of other persons, he has held different language.” So in De Lisle v. Priestman, 1 Br. 176, said to have been affirmed in the Supreme Court, 2 Whart. Dig. 954, the same rule is laid down. In Harden v. Hays, 9 Barr 151, not only was the rule affirmed, but the party calling the witness was allowed to contradict him by his former testimony. Again, in McKee v. Jones, 6 Barr 425, the rule is stated, and, *498moreover, it was therein held that it is within the discretion of the court, whether the witness shall, before such contradiction is offered, be asked whether or not he made such contradictory statements. The same thing is stated in Sharp v. Emmett, 5 Wh. 288, and in Kay v. Fredrigal, 3 Barr 221. This case was somewhat like the present. Both parties had taken the deposition of the witness, the plaintiff first; the defendant afterwards, and in this he contradicted his first oath. The plaintiff, in answer to this deposition, was permitted to prove declarations of the witness made before either deposition was taken, to show that he had made declarations contradicting his second deposition. This was a palpable contradiction by the party of his own witness. In the case in hand the declarations were made after both depositions were taken. I need not insist that the rule is the same in both cases; I only say that a party may contradict his own witness when he is deceived by his testimony.
The case of Stockton & Stokes v. Demuth, 7 Watts 39, relied on for an opposite rule, is an older catee than those cited above, excepting one, perhaps, and I do not think it' proves what is claimed for it. The witness testified against the plaintiff, who wished to prove sending a package of goods by stage to a certain point. In place of proving this, he swore he had.no recollection whatever of doing so. He was the plaintiff’s own witness, and he was permitted to prove his former declarations that he had sent the package. This was contradicted by former declarations put in proof by the party calling the witness, and no disguise can change its character. This court affirmed this ruling. It is true the court held what is herein admitted, that a witness cannot be discredited and impeached so as to enable the party calling him to allege want of veracity. The party cannot do that. But that uT| distinguishable from showing that as the witness stated the facts differently before being called, the plaintiff was misled in calling him, and that he is not to be prejudiced by the testimony under such circumstances. It is the existence of the former declarations-"' which brings into play this rule, at least in most cases. I do not regard the decision as a contradiction of the rule w’here the point decided is alone regarded. That the general principle is strongly stated by the learned judge is true, and more strongly than the rule as contended for admits, is equally true. But this was but process in arriving at a conclusion, not the judgment of the court. Nor is the judgment consonant with the process, without a refinement of logic, in my judgment, entirely beyond any practical use.
In Craig v. Craig, 5 Rawle 91, it was held, and on the clearest authority, that a party calling a witness who swears against him as to a particular fact or facts, may prove the facts to be different by other witnesses. This rule is so well settled that I will not refer to authorities in regard to it. What is this but the party *499contradicting his own witness ? If he may do it in one legal mode, why may he not in another ? Contradictory statements is a mode of contradicting a witness — so is the proof of a different state of facts by other witnesses. The latter may be resorted to by a party against his own witness. So says Craig v. Craig. What rule of fair dealing or justice forbids the other mode ? Precisely the same sort of general objection exists against both; that is, that the plaintiff cannot impeach his own witness. Neither can he: but that is not what is proposed. ITe may contradict him as to his relation of the fact, in order to prevent his being bound by falsehood or mistake, and in furtherance of justice.
Smith v. Price, 8 Watts 448, is not against the rule contended for. The effort in that case was to call a witness who it seems it was known would swear against the defendant, and then to introduce his former testimony before arbitrators to the contrary, as independent evidence of the facts denied. This the court said could not be done, and that this was what was attempted appears from the first sentence of Gribson, C. J., who, it is presumable, wrote the-per curiam. “ This,” says he, “ was a very ingenious device ; but it must not succeed.” He then goes on to repudiate the attempt. This was the point of that case, and the only one which passed under judgment by this court. The declaration that a man shall not discredit his own witness under such circumstances no one will dispute. Nor will any one dispute the rule to be that a party shall not impeach or taint his own witness; but that is not equivalent to saying that he may not show that he is not under all circumstances to be bound by what he has testified to. But I must not extend this opinion, already too long. I consider the rule which I have attempted to vindicate not only well settled, but most conservative of the ends of justice, and ought not to be abrogated; nor do I think this case needs this decision upon it in order to produce the result desired. The device resorted to was neither usual nor creditable, and if encouraged would lead to infinite fraud and perjury. Nor could the party claim to have been misled into calling the witness; no declarations contrary to his testimony were outstanding, but the declarations were obtained for the purpose of being used to contradict the sworn statement of the witness, and might easily be obtained, if allowable, especially from a witness, who might think it much less criminal to tell a falsehood without oath than to testify falsely. This was an attempt at an erroneous application of a good rule, but which neither the court below nor this court can sanction. 1 agree that the judgment should be affirmed.