FREDERIC D. CONRAD, PLAINTIFF IN ERROR,
v.
DAVID GRIFFEY.
Supreme Court of United States.
*486 Upon this exception, the case was argued in this court by Mr. Fendall, for the plaintiff in error, and Mr. Gillet, for the defendant in error.
*490 Mr. Justice WOODBURY delivered the opinion of the court.
In this case, there had been four bills of exception filed in the court below, but only one of them by Conrad, the plaintiff in error. We shall, therefore, proceed to dispose of that alone.
It objected to the receipt in evidence of declarations, made by a witness for the original plaintiff, under the following circumstances.
Griffey brought a suit against Conrad for building a mill for him to grind sugar-cane; and, among other defences set up by the latter, was that of weakness and insufficiency in the work and materials furnished. To repel this defence Griffey put in the deposition of Nutz, who was an engineer and aided and superintended the erection of the mill, and who testified to the goodness of both the work and materials.
With a view to contradict and impeach him in what he thus swore, Conrad proved that this witness, soon after the completion of the mill, had given a different account, and especially of the cause of the breaking of some of the machinery; considering it to have happened from the badness of the materials.
Griffey then offered to prove that the witness had since given the same statement, as to the goodness of the work and materials, which was now in his deposition. But Conrad objected to the admissibility of such evidence; and the court below overruled his exception and allowed the evidence to go to the jury.
After due consideration, our opinion is, that this ruling was erroneous.
The practice on this subject seems to differ much in different States, and has occasionally changed in the same State. It is sometimes modified, also, as applied to different classes of cases and witnesses.
Thus, in some places, as in New York, such evidence is, as a general rule, now treated as inadmissible. Robertson v. Caw, 3 Barbour, 410; Robb v. Hackley, 23 Wend. 50; Dudley v. Bolles, 24 Wend. 465. So in Vermont. Gibbs v. Linsley, 13 Verm. 208. Though at one time in New York it was allowed, and particularly in certain criminal cases. The People v. Vane, 12 Wend. 78; Jackson v. Etz, 5 Cowen, 320.
But in some other States this kind of evidence has been deemed competent. As in Massachusetts, in a criminal case, where an accomplice was a witness. Commonwealth v. Bosworth, *491 22 Pick. 397. And in Maryland, if the statements were prior in point of time. Cook v. Curtis, 6 Har. & Johns. 93.
In Pennsylvania, also, such statements have been admitted, without reference to their priority. As in Parker v. Gonsalus, 1 Serg. & Rawle, 536; Henderson v. Jones, 10 Ib. 322. So in Indiana. Coffin v. Anderson, 4 Blackf. 398, 399. And in some other States, which need not be repeated, a similar practice appears to prevail.
But in other places, as in England, such evidence, though at one time considered competent, and especially in criminal cases, (Gilb. Ev. 135; McNally's Ev. 378, 381; Bull. N.P. 294; Lutterrell v. Reynell, 1 Mod. 282), is now even there excluded. See Parker's case, 3 Doug. 242; 10 Peters, 440; 1 Phil. Ev. 2 and 3, and 230, note; 1 Starkie's Ev. 187 and note; 23 Wend. 55; 2 Phil. Ev. 445; Brazier's Case, 1 East, P.C. 444; 2 Starkie, N.P. 242.
While the rule was otherwise in England, some of the State decisions already cited were expressly grounded on the rule there (see 10 Serg. & Rawle, 332), and others on cases adopting that rule (4 Blackf. 398).
But since the rule became changed in England, or from being doubtful became well established against the introduction of such testimony, the practice in some States, as in New York and Vermont, has been settled so as to correspond; and in this court, also, it has taken the same direction.
In this court it has been held that such evidence is not admissible, if the statements were made subsequent to the contradictions proved on the other side. Ellicott v. Pearl, 10 Peters, 412, 438.
That was a case from Kentucky. Yet the decision does not appear to have been made to rest on the peculiar laws or practice of that State; but on general principles, and the course pursued of late years in England.
In our judicial system, perhaps the decision should not rest on any local rule, though a different principle seems involved in McNiel v. Holbrook, 12 Peters, 85, where the rule of evidence was changed by a State statute. Clark v. Sohier, 1 Woodb. & Min. 368.
But if it should so rest, we are not aware that in Louisiana, where this case was tried, the practice differs from what appears to be required by sound general principles, independent of any local peculiarities.
So far as regards principle, one proper test of the admissibility of such statements is, that they must be made at least under circumstances when no moral influence existed to color or misrepresent them. 1 Greenl. Ev. § 469; 2 Pothier on Oblig. 289; 1 Stark. Ev. 148: 1 Phil. Ev. 308.
*492 But when they are made subsequent to other statements of a different character, as here, it is possible, if not probable, that the inducement to make them is for the very purpose of counteracting those first uttered. 10 Peters, 440.
This impairs their force and credibility, when, if made before the others, they might tend to sustain the subsequent evidence corresponding with them. 23 Wend. 52; 2 Phil. Ev. 446; 1 Greenl. Ev. § 469.
When made in either way, they are admissible only to sustain the credit of the witness impugned, and not as per se proof of the facts stated, and hence if made under oath, as here, but not in legal form as a deposition between these parties, they are none the more admissible, except, if prior in date, they might help to sustain the witness' credit. 10 Peters, 412; King v. Eriswell, 3 D. & E. 721.
In this case, then, not having been made prior in time, they do not appear on principle or precedent to be competent.
Another question has been presented, arising on the record, which is not included in any of the exceptions.
It is that the judgment runs against "Daniel Frederick Conrad," when the writ, pleadings, and contract speak only of "Frederick D. Conrad." But the judgment is for the plaintiff against "Daniel Frederick Conrad, the defendant." And the name prefixed as defendant in the judgment may well be rejected as surplusage, after verdict and judgment, when the true name had been well described in the writ and pleadings.
The statute of jeofails clearly cures any such defect, where, as here, it can well be understood who was meant by "the defendant." 1 Stat. at Large, 91; 1 Bac. Abr., Amendment, B; 1 Peters, 23.
Let the judgment below, however, be on the first ground reversed.
Order.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo.