Craig v. Craig , 5 Rawle 91 ( 1835 )

The opinion of the court was delivered by

Gibson, C. J.

The position of General Craig in relation to the parties, was a peculiar one. It was submitted to him, rather as a witness than an arbitrator, to say the truth between them; and though his declaration was adopted by the unsuccessful party beforehand so far as to affect him, it was held when the cause was here before to be open to be disproved, just as the award of an arbitrator or the testimony of a witness may be disproved, by evidence of mistake or corruption. Putting him then in the attitude of a witness or an arbitrator, his want of memory or good faith can be evinced in no way more satisfactorily than by evidence of counter declarations whether in conversation or on oath. Proof of self-contradiction, under whatever sanction or circumstances, must necessarily detract from his credibility. It seems to be of little account therefore that his several depositions would be inadmissible independently of the attitude in which he was placed by the appeal to his veracity; or that these were not regularly taken as original proofs in the cause. The voluntary affidavit of a witness may be introduced to discredit him; and though these depositions were not competent evidence of the facts asserted in them, they were competent to show that General Craig had given contradictory statements of the same transaction. For the same purpose his sayings and doings before the magistrate or elsewhere, though not inserted in the paper, were also admissible; and this disposes of the first six bills of exceptions to evidence.

His two receipts given to the defendant, stand on different ground. They were offered not as acts which might be inconsistent with his statement to the arbitrators; nor as evidence, of payment in. fact of which, except against the obligee or his assignee, they would not be competent; but as acts of djrect exoneration. Granting them, for the moment, to have the force of an acquittance, would the fact however proved be a defence to the action 1 The release of one joint obligor discharges the other; and had the plaintiff paid with notice that he was discharged' by the complete exoneration of his co-obligor, he certainly would not be suffered to call for contribution. If however the defendant in whose knowledge the transaction peculiarly lay, suffered him to pay in ignorance of it, he could not say that the payment was merely voluntary; and this might have furnished matter for an inquiry by the jury. But the receipts do not purport to have exonerated the defendant from further payment. The obligor barely acknowledged the receipt of a sum equivalent to the defendant’s' proportion of the debt; and does such an acknowledgment change the terms and effect of the bonds by which he was bound for the whole? Orean it supply the want of operative words of release ? If it cannot, the receipts can be evidence of exoneration pro tanto, but as evidence of payment. Actual payment of the defendant’s proportion would be ah answer to a demand of contribution; but it could not be proved by the acts or admissions of the obligee to affect the plaintiff who claims not by substitution to him, but on his own original right as a joint obligor. Whether the receipts might not be competent to contradict the obligee’s assertion of payment by the plaintiff, is a question which was not made below, the evidence having been proposed to the court in a different point of view; but which may be readily answered in the affirmative.

But statements by a witness at another time, though admissible to contradict him, are not equally so "to confirm him. They are certainly not receivable before his credibility has been assailed; but it is a vexed question whether they may not be used to rebut evidence of self-contradiction by showing him to have been sometimes consistent. The affirmative is supported by a number of respectable authorities, the principal ones of which are Lutterel v. Reynell, 1 Mod. 282; Freind’s Case, 4 State Tr. 613; Wright v. Deklyne, Peters’s C. C. Rep. 203, and Gilb. Ev. 135; opposed to which stands the doubt of Mr. Justice Btji/ler in his law of Nisi Prius, 295, as well as the opinion of Lord Redesdaee, together with his assertion of a decision to the same affect by Chief Justice Eyre, as stated in a note to 1 Starkie’s Evid. 187. Mr. Phillips speaks doubtingly (vol. 1, p. 230,) but inclines to the affirmative; and Mr. Roscoe (p. 96,) seems to incline the other way. Mr. Starhie positively asserts the negative as the general rule; yet admits that such confirmatory evidence may possibly be made competent by circumstances. Thus it stands between jarring authorities; biit on principle the question would not seem to be susceptible of any great degree of difficulty. [Though usually called confirmatory, these consistent statements are universally agreed not to be admissible in chief, but only to rebut other contradictory statements; and if merely corroborative of the testimony in chief, why should they not be received before the credibility of the witness has been impeached? As rebutting, it cannot be pretended that they disprove the fact of contradiction, or that they remove the imputation of inconsistency; for it follows not, because the witness had sometimes told the tale delivered by him at the bar, that he had never told a different one., If it be supposed that they rebut the inference to be drawn from the fact of contradiction by decreasing its foi’ce, they still leave the witness more exposed than ever to the charge of vacillation; and how he is confirmed by being left in a predicament so unfavourable to'his veracity, it is not easy to comprehend. Adopting then the rule of Mr. Starkie with its exception, that consonant declarations may be given in contradiction of evidence tending to show that the testimony at the bar is a fabrication of a recent date; and to show that the same statement was made before its ultimate effect on the question trying could have been foreseen, we come to an inquiry into the time and circumstances of the declarations made by General Craig to entitle him to the benefit of the pension laws. These were made in 1822 and 1823 — the last on the twelfth day of May in that year. The earliest information we have of a contest between the. parties, is given by William Craig, who testifies to an inquiry by the defendant, in the October following, into the real state of the transaction, in consequence of an intimation that the plaintiff was about to sue him. At this time, for aught that appears, General 'Craig was in harmony with the parties; and his previous statements while his passions and prejudices were in a state of repose, and especially when he could not have foreseen the existence of the present controversy, or the bearing which his declarations might have on it, are indisputably within the exception to the .general rule. These declarations were therefore properly admitted; and for the same reason it would seem that his declarations before the arbitrators in 1823, were admissible, though certainly entitled to less consideration by the jury.

Thé exceptions to the charge are not sustained. Proof of payment in money is not absolutely indispensable to a count for money expended to the defendant’s use; though it must be admitted that the only exception recognised in the books, is the case of payment in negotiable paper. But the direction on this head, was in substantial accordance with the prayer. As to the position taken, that payment before the bonds fell due, would be<essentially voluntary, it is proper to remark, that the principle was ruled 'differently in Armstrong v. Gilchrist, 2 Johns. Ca. 429, where it was held that a guarantee of a note who had compromised and paid it for his own indemnity before it had become due, was entitled to recover. That a surety is to wait till payment is extorted from him, is not pretended; but it is said that payment before maturity is necessarily voluntary, and that eventual liability is not equivalent to a precedent request. There is no authority for that; and it seems not to be defensible on principle. Why may.not a surety take measures of precaution against less from a change in the circumstances of his principal, and accept terms of compromise before the da.y, which may not be attainable after it. He may ultimately have to bear the burthen of the debt, and may therefore provide for the contingency by reducing the weight of it. Nor is he bound to subject himself to the risk of an action by waiting till the creditor has a cause of action. He may, in short, consult his own safety and resort to any measure calculated to assure him of it, which does not involve a wanton sacrifice of the interest of his principal. If then General Craig delivered these bonds on a, promise of payment absolute or' conditional, there cannot be a doubt that actual payment in pursuance of it, would entitle the plaintiff to contribution. All that can be said is that it could not have been enforced before the bonds were due.

Judgment reversed and a venire de novo awarded.