Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1858-11-13
OFFICIAL.
Opinions OF the Supreme Court OF the STATE
OF Tennessee Delivered at KnoWVflle. ~
Septem Der Term, 1855.

Opinions OF the Supreme Court OF the state
OF Tennrs9ee Delivered az KnOETilIe, az
SePtem Der TeFms 1855.
schwab vs.. Bounds.
This is an action rspI-Esn 20 recover sundrv
articles Of merchandise, uhloh zere se zed By the
defendant az the n perry Of Frank Houseman,
agaiRst whose properly he, a. a. an fioer, had an
auaehmeni, in fsvor Of CoWan & dickinson The
plaiutiH claimed the properly as a iurobase from
Houseman, before the issuance Of the attachment
The plaintiff recovered, and the case is Der, BY an
pealin error. Plaintiff proved bis title, as tureha
ser from Houssman by the position OF julius Ochs
In which drsaied account Of the trade is given
To inPeaeh he credit Of this pilnsss, the deisnd-
ants counsel proposed to Pros6 By Jourol an that
on trial be ore hini, as Juslcs e the Peace or
the attaehm. n Of COwan 6 Dickson against
Houseman, the witness o hs, on bis ~xauin uion as
a witness, made statements 10 conflict wi b those
contained In his disposition in the case, to VII He
then said that the trade was made 10 he n ght and
now tha it was msdr In ''gO0d faii aud IN open
day." and Sat he same time made different sfais
ments as to the payments sad the manner OF pay
meut, from those in bis deposition This vas not
allowed by the Court the ground that hs witness
Oohs had not been interrgg4Ied as to these state
msnts the taking OF his opposition. Tsths sclion
Of the Court the defendant excerpts, and hsr is the
only question in the case The general rule is not
disputed thai q witness cannot be imprached BY
proof that he has inside stsfemeUts Out Of COurl,
contrary to what be has testified Ihe tral unless
he has been asked particularly 70 the matter in
VOved in the supposed Contradiction on cross exsm>
nation. This rule is lad down IN Greenleaf, Sec
1872 and note l. an in Pail EV 293. has been
universally acted upon in this Safe and most Of toe
United States The rule is based Oh a sense Of jus
ice to he witness his veraci should not be i'm
peaohed in this mode. until hrs sHeDtiOn is called TO
the subject Of the supposed contradictory statement
that he may have an Opportunity to reeolect the
facts; and correct the stsemeuts made if he is con
vInced that they wrong well 70 explain the
nature, circumstances, meaning and d. sigB Of what
may be proved to have been elsewhere said This
illustrates the prOpristy Of rhsrue. The Wit
ness says the sale WAS made n good faith snd " in
open day" The variance alleged IS that before be
said it took place IN the night If thIs had beea
brought TO his mind BY orOss examination, be may
have explained that he u~ed the words ''Open y
in fkursiiVe s.nse, mes ing thereby that it was
NOS done secretly, and IN the absence Of witnesses
SO Of the supIO ed OF crepancy 20 hIs ascOuat
Of the consideration AMI paymsnts-he might have
given satisfactory expansion as 10 that At all
events. Bhether he could have done this not sas
faotorly the opportunity shOu have been afforded
him. or the lrJpos,d proof Ess illegal The distino,
ton attempted TO be made this is. thai the
contradictory staiemen were made upon oath, in
iudieIal pr ceediBg and that The wines c0u
be cal et upon 70 cOnuadict himself as them, be
cause be would by 20 doing subject himself 10
charge Of pTury. On that point, the law IS declar
ed y Chief Justice Abbott, giving the uDanmJus
opinion of ali the Judges in the care cue IN note
to Greenlsat to Sec 1872 TO b. that the possibility
that The witness msy dc ine 70 the question,
affords no suthci Mt reason for Dot giving him tbs
opportunity Of answering, aud Offering such explain
stOry or exeulp4tOry mauer," Is he may be aO.e 20
do Il is very true, that h. Is net bound TO snsWer
in such case, and If be declines 70 90 g. for ths
reason hat his answer may tend 10 criHlnate HIM
self he cannot be CONF elled, but the adverse par
may then prove the contradictory sta ements We
can see no good or ,und suihOri to eEc PIT
a case / Ike the PRESENT from the Operau n OF the
general rule subject, above explained His
Honor the Circuit Judge right in exelud Dg he
ErOOf; and there bang no other error assigned, the
judgment will be affirmed. CARUTHERs.