Allen v. Bodine , 6 Barb. 383 ( 1849 )

By the Court, Welles, J.

I think the questions of fact were all fairly submitted to the jury. Whatever criticism the ■ evidence of the witness Beardsley may be liable to, he was corroborated by his daughter, so far as her evidence went. It was exclusively a question for the jury; and I am not able to discover any misdirection. The only question that deserves serious consideration is whether the judge properly overruled the question put to Beardsley by the defendant’s counsel, whether Smith had been in the habit of making him presents on previous loans. The only point of view in which that question could be regarded as material was by way of testing the witness on cross-examination. It certainly was entirely immaterial upon the issue, what had been done on previous loans, not connected with the one which was then the subject of inquiry. If the question had been allowed to be answered, the defendant would not have been permitted to contradict the answer; as it related to a fact entirely collateral.

I have supposed that the right of the cross-examining counsel, to inquire into collateral facts with a view to discredit the witness, was always in the discretion of the court; and that the decision of the judge at the circuit was conclusive, and not to be the foundation of an application for a new trial, except in a clear case of abuse of that discretion. (1 Greenl. Ev. § 448, 449.)

Great latitude is sometimes permitted, where from the temper and conduct of the witness, or other circumstances, such course seems essential to the discovery of truth. It is nearly impossible to lay down a rule on this subject; as the question is always a matter of discretion with the judge, to be decided by him upon all the circumstances appearing before him. In the present case I can not discover such an abuse of discretion in disposing of the question by the circuit judge, as to warrant the interposition of this court. '

I think a new trial should be refused.

Motion denied.