Crowley v. Page, 7 Carrington & Payne, 789, (32 Com. Law Rep. 737.) 'If the witness made a previous contradictory statement, in writing, on a matter relevant to the issue, he may be asked, on cross-examination, whether the paper containing it is in his handwriting; and if he admit it, that will entitle the other side to read it; and if he contradicts the evidence of the witness, he may be called back to explain it.' 4 Harrison's Dig. 2948, No. 11.
Yeos v. The State, 4 Eng. R. 42. 'Where a witness has made a different statement from the one made by him on the trial, he is not thereby discredited, unless the discrepancy is wilful.'
Story v. Saunders, 8 Humph. R. 663. 'When the deposition of a witness is taken, evidence of his having made contradictory statements are not admissible to impeach his testimony, unless an opportunity to explain had been first offered him.'
The contradictory statement offered in this case was the witness's testimony on a previous trial.
In Everson v. Carpenter, 17 Wend. 419, referring to the requisites for admitting a written instrument by way of contradiction, Cowen, J., said: 'It was introduced, with the proper preliminary question to the witness, whether he had made the indenture and the representation about to be imputed to him. He answered with such explanations as occurred to him. Here was all the precaution required by this kind of examination by the Queen's case and others.'
In Kimball v. Davis, 19 Wend. 437, Nelson C. J. considered this question at length, in a case where the defendant offered to prove that witnesses who had been examined undera commission, had subsequently made statements contradicting their written testimony. The marginal note of his decision is in these words:
'The declarations of witnesses whose testimony has been taken under a commission, made subsequent to the taking of their testimony, contradicting or invalidating their testimony as contained in the depositions, is inadmissible in evidence, if objected to; the only way for the party to avail himself of such declarations, is to sue out a second commission; such evidence is always inadmissible until the witness whose testimony is thus sought to be impeached, has been examined upon the point, and his attention particularly directed to the circumstances of the transaction, so as to furnish him an opportunity for explanation or exculpation.'
This case went to the Court of Errors, and is reported in the 25th of Wend., 259, where it was affirmed. Walworth, Chancellor, there said: 'I concur with the Supreme Court in the opinion that it was improper to give the declarations of the witnesses in evidence without giving them, in the first place, an opportunity to explain; and the fact that the witnesses had been examined under a commission did not prevent the operation of the principle upon which the rule is founded.'
Edwards, Senator, said he was satisfied with Chief Justice Nelson's reasoning on this question.
Howell v. Reynolds, 12 Alabama R. 128. 'The rule that a witness cannot be contradicted by proof of previous counter declarations, either written or verbal, applies to testimony taken by deposition, and if such supposed contradictory declarations exist at the time the deposition is taken, the witness must have an opportunity afforded him of explaining it, if in his power. 'The reason of the rule is, that he may have it in his power to explain the apparent contradiction, and the rule is the same, whether the declaration of the witness supposed to contradict his testimony be written or verbal.' 3 Stark. Ev. 1741. 'The question is usually made when the witnesses are examined orally in open court, and in our opinion it must also apply to testimony taken by deposition, as the deposition is a mere substitute for the witness; and we can perceive no reason why a witness testifying in this should not be entitled to the same protection as if he had testified orally, in the presence of the court and jury. If this paper existed when the plaintiff was notified that the deposition of the witness was to be taken, and was informed by the interrogatories of the testimony the witness was expected to give, it was his duty to give him an opportunity of explaining it, if he could, and reconciling it with the evidence he then gave, if there was any real or apparent contradiction between them.'
Mr. Justice McLEAN delivered the opinion of the court.
This is a writ of error to the Circuit Court of the United States, for the Eastern District of Louisiana.