#### JOHN RADFORD v. JESSE RICE.

It is not allowable to counsel, on a cross-examination, to put a question to a witness concerning any collateral fact, not relevant to the issue, for the purpose of disproving the truth of the expected answer by other witnesses. His answer to such a question must be taken as conclusive; and no evidence can be afterwards admitted to contradict it. But this rule does not apply to any inquiry respecting the fact in issue, or its attendant circumstances, or any facts immediately connected with the subject of inquiry.

A declaration made in the presence and hearing of a witness, and not contradicted by him, is proper to be submitted to the jury, as evidence that he acquiesced in and admitted the truth of such declaration; and if at variance with his testimony on the trial, may be used to impeach his credibility.

This was an action on the case, for slanderous words; to which the defendant put in the pleas of general issue and justification. The cause was tried at Yancy, on the last Circuit, before his Honor Judge Dick, when the plaintiff, in support of his action, introduced as a witness John Hinsley, Esq., who testified, that on a certain occasion, one Blackstork and himself, as magistrates, tried a warrant, in which one James W. Patton was plaintiff, and the present defendant, Jesse Rice, was defendant: that John Radford, the present plaintiff, was examined as a witness for Patton, to prove the delivery of a side of sole leather, to Spencer Rice, a son of Jesse Rice: that Radford swore upon that trial, that he had on a certain occasion, engaged Jesse Rice to haul a load of corn for him to Ashville; and that Spencer Rice and himself went in company with the wagon : that Spencer Rice received from his father a small sum of money to pay Patton for some leather, which he had before bought, with directions to purchase another side of the same article, and to have it charged to him: that upon their getting to Ashville, Spencer Rice paid to Patton the money which his father had given him, and purchased a large side of sole leather, for his father, upon credit; which was rolled up and placed in the wagon: that he and Spencer Rice returned together with the wagon, until they came near the house *40of Jesse Rice, when-Spencer parted with him, and drove off the wagon, with the leather in it, towards his father’s. Hinsley further testified, that after Radford had given this statement, Jesse Rice immediately said, and repeated several times to Radford, “ you have committed a wilful and corrupt perjury.”

The defendant, Jesse Rice, relied upon his plea of justification ; and in support of it, introduced as a witness, his son, Spencer Rice, who swore, that he went once, and only once, to Ashville, in company with the plaintiff, Radford; that on that occasion he drove his father’s wagon, which contained a load of corn, for Radford : that if any leather was purchased for his father at that time, he knew nothing of it: that Radford bought some leather at Patton’s store, which was carried to his> father’s in the wagon, and Radford afterwards sent for it: that he saw Patton and Radford roll up the leather and put it in the wagon; and that there was only one bundle of leather put into the wagon. The witness was then asked by the plaintiff’s counsel, whether he saw Mrs. Peggy Carter while he and Radford were returning from Ashville; to which he replied, that he did not recollect.

The plaintiff, to repel this evidence, and in further support of his action, introduced James W. Patton, the merchant who had sold the leather, who stated, that at a certain time, the plaintiff and Spencer Rice came to his store in Ashville; that Radford introduced Spencer to him, as the son of Jesse Rice, and remarked, that Spencer had some money for him, sent by his father; and that he wanted to get some sole leather for his father. .Upon which, Spencer Rice paid him three dollars and fifty cents, which was placed to his father’s credit; and that he then sold and delivered to Spencer Rice, for his father, a side of sole leather, which was charged to his father: and the witness, in confirmation of his statement, exhibited his day-book, which contained the original entries in his own hand-writing. The plaintiff then called Mrs. Peggy Carter, and asked her if she saw John Radford and Spencer Rice in company together on their return from Ashville. This question was objected by the defendant’s *41counsel, upon the ground that it tended to contradict Spencer Rice upon a collateral matter, as to which he had been examined by the plaintiff’s counsel; but his Honor overruled the objection, because the answer of Spencer Rice to the plaintiff’s counsel affirmed no fact; and therefore Mrs. Peggy Carter’s answer to the question proposed to her could not contradict him. Mrs. Carter then stated, that she saw Radford and Spencer Rice on their return from Ashville; that the latter was driving the wagon, and the former was in it; that they called at her house, and asked for some water; that she went out to them, and saw a roll of leather in the wagon, when she remarked to Radford, that he had a fine roll of leather; upon which he replied, laying his hands upon it, that it wasvJesse Rice’s leather; that Spencer-Rice was then sitting upon the saddle horse, and made no remark about the leather. This testimony was objected to by the defendant’s counsel, because Jesse Rice was not present, when the conversation between the witness and Radford took place; but his Honor held, that if Spencer Rice heard the remark of Radfofd to Mrs. Carter, and made no reply, the evidence was proper for the purpose of discrediting him. The jury returned a verdict for the plaintiff; and the defendant appealed.

Devereux, for the defendant,

contended, that the question proposed to Spencer Rice, by the plaintiff’s counsel, was upon a collateral matter; and that the plaintiff could not, therefore, introduce another witness, to disprove his statement, for the purpose of discrediting him; and referred to The Queen’s'Case, 6 Eng: Com. Law Reps. 121. Harris v. Tippett, 2 Camp. Rep. 638. Rex v. Watson, 2 Starkie’s Cas. 149 ; (3 Eng. Com. Law Reps. 288). ,

W. A. Graham, and Battle, for the plaintiff,

contended, that the cross-examination of the defendant’s witness, Spencer Rice, was hot upon a collateral point; and that he therefore might be contradicted; and they cited I Stark. Ev. 134; and Rex v. Yewin, in a note to 2 Camp. Rep. 638.

*42Gaston, Judge.

The only questions proper for our consideration upon the case stated in this transcript, are ^|10ge w¡1¡c[1 arjse upon the exceptions taken by the defendant. The sufficiency of the evidence to support the verdict, must be presumed, until the contrary be shown. It is not, therefore, open to the defendant here to object, that the words charged were not spoken maliciously, for that they were spoken in the course of a judicial trial and were pertinent to the matter then in controversy, because this objection does not appear to have been taken below; and we must understand, that so much only of the evidence is spread on the record, as is necessary to show the supposed errors specified in the exceptions. It is thought proper to make these observations, lest it might be supposed, that we have passed in any way upon a defence which was not made; but perhaps might have been urged at the trial.

The defendant’s plea of justification put in issue the truth of the testimony rendered by the plaintiff on the trial of the warrant, before the magistrate. That testimony was, that on a particular occasion, when the defendant’s son, Spencer Rice, accompanied the plaintiff to Patton’s store, in Ashville, the said Spencer purchased, as agent for his father, and upon -account of his father, a side of leather, which was delivered to him accordingly. The falsehood of this statement was endeavoured to be shown, by the testimony of Spencer Rice, who positively denied, that he purchased or received any leather for his father; and declared, that the only leather which he know of as being obtained by any person on that occasion, was obtained by and delivered to Radford himself, the plaintjff in this action. This evidence went directly and strongly to support the defendant’s plea, and it was all important to the plaintiff to meet and repel it. For this purpose, he examined Mr. Patton, who sold and delivered the leather, and who swore that it was sold and delivered by him to the witness, Spencer, on account of his father; and in confirmation of this statement, exhibited his day-book, containing the original entry made by him, at the time of the transaction, wherein the article was *43debeted to the defendant. Further to contradict the defendant’s witness, and to repel the plea of justification, the plaintiff offered the testimony of a Mrs. Peggy Carter. On the cross-examination of the defendant’s witness, he had been asked, whether, on his return with the plaintiff, from Ashville, he saw Mrs. Carter, and had answered, that he did not recollect, whether he had seen her, or not. She testified, that the plaintiff and the witness stopped near her house, when on their return from Ashville; the witness driving, and the plaintiff riding in the same wagon; that she carried water to the wagon; and on observing the leather, remarked to the plaintiff, that he had a fine roll of leather; and that the plaintiff, laying his hand on it, said, “ this is Jesse Rice’s leather.” To the introduction of this testimony, two exceptions were made; first, for that it tended to contradict the witness, Spencer, on a collateral matter, whether he had or had not seen Mrs. Carter; and, secondly, for that what the plaintiff said was not evidence, inasmuch as it was not said in the defendant’s presence. The judge admitted the testimony, and held, if Spencer Rice heard what was said, and made no reply, it was a circumstance proper to go to the jury, as tending to discredit him.

The first of these exceptions is founded on a misapprehension of the rule in relation to collateral facts. It is not allowable to counsel, on a cross-examination, to put a question to a witness concerning any collateral fact not relevant to the issue, for the purpose of disproving the truth of the expected answer, by other witnesses. His answer to such a question must be taken as conclusive; and no evidence can be afterwards admitted to contradict it. But this rule does not apply to any inquiry respecting the fact in issue, or its attendant circumstances, or any facts immediately connected with the subject of inquiry. The rule is founded on a consideration of the extreme inconvenience which would result from rendering an inquiry which ought to be simple, and confined to the matter in issue, complicated and prolix, by causing it to branch out into an indefinite number of issues. But the matter respecting which Mrs. Carter was examined, *44immediately concerned the very transaction which was under investigation, and was, in truth, a part of that transaction itself. If her testimony contradicted that of the impeached witness, it.contradicted his testimony upon the fact, whether the leather was delivered to him, as his father’s, or delivered unto the plaintiff, as the plaintiff’s leather. So strictly has this rule been confined to questions irrelevant to the issue, that it has been held, that a witness may be asked, whether he has not said, that he would be revenged on the prisoner; and in case of denial, he may be contradicted. In such a case, the inquiry is deemed relevant to the issue, as showing the temper and disposition under which the witness has testified upon that issue. Yewin’s Case, 2 Camp. 638, n. 1 Star. 164.

There is nothing also in the other exception. Beyond doubt, the testimony of the witness might be impeached, by showing facts inconsistent with it. Of that character was the fact deposed to by Mrs. Carter. Certainly, also, it might be impeached, by proof of declarations made by him, at variance with his testimony. A declaration of another, in his presence and hearing, and not contradicted, is proper to be submitted to the jury, as evidence that he acquiesced in and admitted the truth of such declaration. The judgment is to be affirmed, with costs.

Pjer Curiam. Judgment affirmed.