Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-04-09

i
clndes the wife from being witness against her
husband, is mos infrnged in its spirit in such case
The. statemertE Of the wife are not received, OF
treated az evidence against her husband, but merely
as inducement to the responsive admissions, decla'
rationsor zefs OF the husband, at the time excepi
for this purpose, the statements of the wife are Of
no effect
The general rule il that the admission may be pre-
sumed, not only srcm the declsrations Of . party,
but even from his aequiescence or silence. Star
KEGS Ev. %. Il Phillips on Ey.107. The force and
sfeet Of such an admission, must Of course depend
! on the circumstances under whichis was made In
some csses, il clearly proved. it viii beeydence Of
the most convincing kind; in others it may be Of
very little fsrce, and perhaps entitled to consid
Grafton. Phlliips on Ey l0T. And il is always
to be borne in mind that it Ia the most dangerous
kind Of evidence. Greenleafs EY. sec. l99 200.
Ii order that party may be affected by the state
ment of another on theground Of implied admission
of its truth BY silent zcqescence il must distinctly
appear that he heard and fully understood such
| ment 8 Phillips on Es., note l91. The occasion
must also have been such that the party sought TO
be affected, vas ct liberty to inerposs denial Of
/ The statements and be mast not only have had the
opportunity to speak, but tbs statement must have
been in respect TO some matter directly affecting
his rights 20 Is properly and naturally TO demand
| contradiction IL untrue. Ibid l Grsenleaf
| Ey., SEQ. 197, 199. distinction has been taken
| in some Of the books, between . statement made
! by party interested in the matter and .
| mere stranger, or one having no interest: "What
is said by PARTY in interest the other, with Out
contradiction is admissible evidence; but whss Is
/ said By stranger may not be 90. 1t may be i'm
pertinent and bsst rebuked BY silence but n it rs-
! ceiyes . reply, the reply Is evidsneesi / Green
leaf sec l99 Our conclusion on ths first point Is
that The statements Of Mrs. Quesnsr not mad
missible on the ground merely Of her relation As
wife Of the defendant. "a 20 at1lss-2a1s -
i z. The next objection is ss to the sdmission ef
| Mrs. Hsrt's statement. The groand Of the objss-
sion is thst it does not appear that the defendant
| heard and rnderssood the statement of the wife.
The witness says that the defendant at the time the
statement was made was At the other door and said
whats thati" This interrogatsry reply vas GER
| tainly eauiyocal. - - - - ~
We have seen hat Il Is isdispsnslbI. that the
party should have heard aad undsrssssd lhs state
/ nent, and il tails be doubtful the fact may be os-
tsrmiasd b. tAsjary. PhilliPa "a E'', a0ss lsl,
page l94. - - ssT--o ), .blve.g 4 ssx a va
i does not appear that this specific objssiioa vas
urged upen the trial. and in the state Of he record
must take it. that the fscs vas properly referred
9. The third sbjse.ien il - ts ths eompeteney Of
McKee's testimony. This witness did not recollect
what QueeasE ssid in reply to the statements Of
! his wife. vssg1 i.l-l s-i - zlz-sa 'ssa1t9 .s-
Ths argument upca this point assumes that The
statement il not admissible, unless replied to, and
that the inability II tbs witness to relate what
avs said by the defendant was equivalent 70 no re-
! ply. q aa.sg, sa s. = azss -. u,
We do not assent TO the correctness Of this posi-
tion. Ell 15 1al-s- -
l2eI II the statements be competent and proper in
other respects It is unimpoftaat far IS respects
its admssibiity whether It be responded to at all
| tis, from the silence Of the party, when called
on to speak, that the presunpticn srises against
him. .-.l. Il ~
L. The testimony Of Nancy Roach as to seeing .
roll Of meney in the possession Of Mrs. oueener
was certainly inadmisssble. This it seems was in
the absence Of the defendant, and go far ss We can
see from the record he had participation in the
sct And it clearly falls within the rule, which
cudes the acts and declarations Of the wifs IS evi
| dence against the husband II made in his absence
| or without mis- authority, express or implied
But this objection We think was obvisted By the
| charge which as We understand its import, ex-
cludsd generally all evidence Of trill. "a ~
The felonious taking Of the trunk having been
proved aud the evidence tending to fx liability
the defendant having been heard, the plaintiff was
| admitted to prove the simple fact that the trunk
| when stolen contained twenty i've hundred dollars
in bank nOtss-being unable By any other evidence
/ to establish this fact. 49,, -.
/ In this We think there is error. There seems,
at this day, to be serious question in regard to
the correctness OF practice, in where the par
ty against whom it is offered has been guilty Of .
felonious, fraudulent or other tortuous or unwsr-
/ rantabls act Of intsrmeddlng with the psintif's
4
/ amount of damages. Greenlssfs Ev,,. sec. 343,
$50. Such evidence is admitted n ,t ssely on The
ground of the odium Of the Law against spoliation
but because from the nature and necessity Of the
ease no other proof in most instances can be had.
s whether the principle is sppliesbs to eases not
! Of criminal or tortuous eharsotsr are net cali
cd on now to determine. ID may not be improper
to remsrk however, that it Is dficult 10 psrceiye
spy substantial ground Of distinction between eases
Of negligence and eases involving crime or fraud,
90 far as the question Of the sdmissibiity Of the
plaintiffs evidence is concerned Gfesnlsss's .
| Ev., ibid, nete. .--, So -,r-- Il 4 >
Fourth-This brings us to consider the last error
I assigned upon the record. Mary Mussingo and her
/ sister, Mrs Chapman, were examined On the trial
ss Witnesses for she plaintiff Their credit was
ssiled on the other side, By proof that they we're
i profigate women, net entitled to credit on oath
from their general regulations, and also sy PROOF OF
previous contradictory statemen Q.
| la confirmation Of their testimony on trial, the
plaintiff was permitted to sfer evidence Of their
statements made subsequent to their eontTadicory
stat ements proved against them on the other side,
ard under the following Circumstances:
These two women had teen prosecuted BY the
plaintiff for receiving part Of the same money sleg
ed in the present case to have been received by the
defendant. They we're eOa6ued in prison upon this
charge durirx the tendency Of the present aotisp.
Il seems that the plaintiff had visited them in
prison for the purpose Of procuring from them I
statement to be used a. evidence in the present
Afterwards they we're approached By others on be-
half of the plaintiff and vera induced to make q
disclosure Of the facts within their knowledge, 81
is slleged Ia respect TO the money received By then
4 There 10 some obscnrty in the sSidenos In regard
to the negotiations carried with these women il
4 order to draw . statement from them. 'a. =
But enough appears to warrant tee conclusion
that before making ssy disclosure, they were prob
ably induced 10 hope and believe thst upon dOinI
So the proseeztion against them Wculd be dismissed
and it was in fact dsissed before the trial Of hi
case.
The statensnls thus slicited are The eon6rms.or,
deolara;ioas sf the Witnesses offered and adnittss
dsnee was ebjected 70, bat the shjsciien was cser
a Is Il seems that ever sinee the time Of Lord Mans
i feld, the former eonsistsst sia.snsnts Of Hiknes
70 rsbus bis coHirAdietions. have Bean rsjsstsd b
the English sousta, sxespt in . vary fsw peeulis
cases. Dsns.s 3. 242 theugh formerly Il had sesi
Il held ethofwiss In some af the authorities. . ~
Il is is laid down in Sfarkis en- EF., vol 9, psg
l75S. that former ssatsmsnts Of svitBsss inreseA
4 cd are not admissible for the purpose Of eonsrma
tion, sxoeps particular iastaness, when the state
mont vas made ata tina when the witnsss lspors'
shundsr interest or fafusnes to pisrepressnt m
fscts. See also, Ssarkis, Iz8; Phillips on 81
This rule kss been dsp.rtsa..fron By ssversi 2
the american courts See Phillips On ~, ~ n,
tisuof 1s4s note 55s, page 77e. 77s, xhsIa =:
cases ara referred to. Some Of these cases g
length Of holding that such evidences .s.d 4,
Whenever the witness Il sought . es = "a 49,,
resssn of contrtdicfory ssatsnsn,,, 81 'sAsi'
would seem to carry ths doctrine sna iarsae 10 zs
: tn. -. af I,ossett vs.. Miller, sneed, u, 20
,sn.tions 't shs principle tha. evidence sf Rrs.io.
consistent staismsnts i admissible " Al es. ess; !
where the ssnoay :. IIS :, nrOof q oonrsdctor,
T.
: Tss facts upsn which the question sroSe IN tn
4ns ara not stated. The abstract principl
a.se We are not disposed to disturb but Tai
prncps .. intended 70 B: Sy S. ~: ooI,
has been nissPPed IN the sass n~r .,ssn Ss,U,s y
1.-s... Ssslsrsticns according 70 some Of the En-
e "I;ss szthorities is the seeming incOngruty q
; ssIdisg that representation without oath can
n .nv ooR6rmstion Of statement upoa oath.
But there would seem to be some show Of reaso
A..