Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-03-10
SUPREME COURT DECISIONS.
December Term - Nashville.
1870.
Joseph Ii. HeiskeIl, Attorney-ssen-
eraI and Reporter.

ADOSOADOA Ia Aaocn NAA1CS
1870.
Joseph II. HeiskeII, Attorney-Gen-
eraI and Reporter.
No. "a.
Thomas Lancaster, plaintiff, vs.. John L Arendell.
OPINION.
In the progress # this civil action, which
was brought by defendant in error for
work and lsbor done by him as mechan-
ic, in building house ETC., and in which
the plaintiff in error claimed set off and
recoupment of damages for the defect
i've and unwOrk manlike manner in which
the work was executed the defendant in
error filed petition for discovery under
the provision of the Code. The record
states thst-''The plaintiff first proposed
to read his bill of discovery and the de-
fepdant's answer thereto. Defendant OBJ
jeeted TO the reading of the bill and in
sisted that plaintiff was only entitled to
have the answer read to the jury. The
objection was overruled, but the Court in
structed the jury, at the same time, thai
the bill was not evidence before them;
and the bill and answer, exceptions to an
swer and amended answer were al read,
to all which the defendant excepted; but
the exceptions were overruled. The
Court, at the same time, instructed the
jury that neither the bill nor exception to
the answer were before them in the case.
This action of the Circuit Court was
erroneous. The Code sec. 3,898, pro-
vides that "The answer OF. the party TO
the pet ton and interrogstories, isevidenoe
on the trial of the suit, in the same man
ner and with the like effect, as an answer
to bill in equity for discovery"
In expounding the act of l648, ch. 1T,
which is similar to the provisions of the
Code, it was said that the petition for dis
covery was no evidence for The party who
filed it. Jones VS.. Davidson 2 Sueed
452-453. In that case the defendant
had filed petition for discovery against
the plaintiff who read bis answer in evil
dence to the jury and the defendant then
offered to read his petition which wa
ruled out on the plaintiff objection. This
practice was held to be irregular, and it
is said, in the opinion, delivered by Tot
ten /, that sin the trial at law, it was
proper for the defendant to produce his
bill or petition for discovery, not as evil
dence for him, but in order to let in the
respondents answer thereto, if he intend
ed to use it as evidence. Its office tht n
is to prove that such bill had been filed,
and to show the matters of fact to which
The respondent was INTERCEPTED; for it is
as to these that the answer must be li.ni'-
ed and confined" Ibid, 453.
AS the Code makes no Prov
sion for the reading of the petition to
the jury, the correct practice is to submit
1t to the court, so that the court may de-
termine, as a preliminary question of law,
whether the petition has been properly
filed, and the answer is responsive thereto,
and if it is so adjudged, then the answer
alone, which is evidence, should be sub
mitted to the jury, otherwise the party
filing the petition would become a witness
in his own cause, and although this an
Gent and well established objection has
been obviated by recent legislation su-
thOrizing the parties, with but few excep-
tons, to become witnesses, yet as this
case was tried before the passage of the
statute, 1t must be governed by the rules
of law existing at the time of the tTia'.
Although it has been held thatthe Circuit
Court may, at any time in the progress of
the cause, exclude evidence enormously
admitted from the jury, this rule should
only be applied in cases where Witnesses
make inadmissble statements before they
can be che cked by counsel or restrained
by the court, or where the evidence has
been inadVerteu ly received without OBJ
lection st the time. But where objection
is formally made to the introduction of
the illegal testimony, and the court
has an opportunity to determine
it. in li1Hine, the evidence, if
illegal, should not be heard by the jury.
No fac: is better known to the mem
bers Of the legal profession constantly
engaged in the trial of causes and study
ing the operations of the human mind,
than that where evidence has once been
heard by jurors ignorant of law and not
trained TO discrimination, it is almost i'm
possible to effdce the impressions created
by such illegal testimony; and we hold,
that, in all cases, where it is reasonably
within the power of the Court, to pre-
vent the introduction Of such evidence,
the question should be disposed of before
the witness makes his illegal statement in
the hearing of the jury. This is the
more important in cases where written
evidence is submitted and which the
jurors always take with them when they
retire from the bar. AS a general rule, it
is impossible to penetrate the secrets of
the jury-room, but judging from the rev.
Citations sometimes made by the Jurors
after trial, it is not rash presumption
to suppose that the documentary evidence
is often examined to ascertain what parts
of il, at least, have been rejected, and
such an examination, rarely fails to i'm
press the rejected evidence upon the
memory and to create an influence in the
formation of Jurors opinion. 1t is sa!. s.
and best that the Judge, who is presumed
to be familiar with the rules of evidence,
should, at once, determine upon It's sd
instability. A week, or more is Often en-
ployed in the trial of asingle cause, where
the facts are complicated and the Wit
nesses numerous. If illegal testimony
were admitted in such a case on the first
day of the trial, it would be scarcely
possible for the Judge, in such a case, 10
effdCe, by single sentence, the impress
siOns created in such a time upon the
mind, not only by the eviderc' itself but
by meditatiOns upon it in its relations to
other proof.
In his HOnOr's instruction TO the jury,
it is said-"As to the item in the defend
ants plea of set off, Of an order drawn,
by plaintiff, on Thomas Fisher, in favor
of one Apple and by him assigned, as the
defendant alleges, to defendants, the law
is this:-if it was presented to Fisher for
payment, either by defendant, or Apple,
and he refused to pay and plaintiff was
notified of this refusal, then the defend
ant should be allowed the amount Cf said
order. But, if no demand Is made of
Fisher, or, if made, and no notice was
given Arendell of his REFUSAL Fishers
refusal to pay ~ the defendant cannot be
allowed the amount of said order. But,
if this demand was made and notice given
10 Arendell of Fisher refusal to pay,
defendant should be ellOwedthis item.
1t may be inferred from the record that
this part of the charge refers to an order,
without date, drawn by N. L. Apple en-
John L. Arendell (the defendant in erior)
for $10.6z which it may be also inferred
was transferred or assigned to plain