But the question now for consideration is not whether there is such a general rule, but whether it is subject to any exceptions, and particularly whether the facts of the present case do not justify a departure from the rule. An examination of the authorities will show, as I think, no such current or weight of decision as to preclude this court from dealing with the question as an open one.

The case of Ayers v. Watson, 132 U. S. 394, 10 Sup. Ct. 116, is referred to in the majority opinion as differing from the present one only in the fact that it was a civil, instead of a criminal, case. It is, indeed, true that it was a civil case,-a not unimportant difference; but there was another feature in that case, which deprives it of all force as a precedent for our guidance in the question we are now considering. The case there was this: In an action of ejectment, which went through several trials, the deposition of ɔne Johnson, a surveyor, taken in 1878, was introduced by one of the parties. This deposition had been twice taken, and used upon the former trials, and prior to the last trial the witness had died. At the last trial the opposite party offered in rebuttal a deposition of the witness, taken in 1860, in a suit between other parties, and in which were contained statements materially different from those contained in the later depositions. This court held that, as Johnson's deposition had in three trials been introduced and relied on, in each of which he had been crossexamined, and no reference was made to his former deposition, nor any attempt to call his attention to it, such prior deposition could❘ not be used after his death to impeach his testimony, and the court said that "this principle of the rule of evidence is so well understood that authorities are not necessary to be cited." It is apparent that in that case the opposing party had no less than three opportunities to call the attention of the witness to the existence of his prior deposition, and to cross-examine him upon it. In the present case the contradictory statements sought to be proved were not made till after the prior trials, and therefore there was no opportunity at any time for the defendant to call the witness' attention to such statements, and to cross-examine upon them. The case of Ayers v. Watson cannot, therefore, be fairly regarded as at all in point.

No other decision of this court is cited, nor Is that any of the circuit courts of the United States. The only English cases cited are three,-Wright v. Littler, 3 Burrows, 1255; Aveson v. Kinnaird, 6 East. 188; and Stobart v. Dryden, 1 Mees. & W. 615,-in the two former of which it was held that confessions of a subscribing witness to a deed, that he had forged the deed, could be admit ted in evidence in a trial after his death; and in the latter that such confession could not be admitted. The reasons given for excluding the testimony seem to have been chiefly based upon the impolicy of permit

ting the security of solemn Instruments to be impaired by loose declarations of attesting witnesses, and perhaps partly upon the general grounds of public policy mentioned by Lord Mansfield in Walton v. Shelley. 1 Term R. 296, when he said: "It is of consequence to mankind that no person should hang out false colors to deceive them, by first affixing his signature to a paper, and then afterwards giving testimony to invalidate it." It is therefore clear that neither this decision, nor the reasons given to support it, furnish any answer to our present inquiry.

Some decisions of state courts are cited, but the most of them seem to have little or no bearing on the exact question we are discussing.

* Stacey v. Graham, 14 N. Y. 492, was a case where the witness whose testimony it was proposed to contradict by declarations made elsewhere was not dead, but merely absent from the court room, and it was said: "The mere absence of the witness has never been considered a reason for allowing his unsworn statements to be proved in order to affect his credibility." This case, therefore, was merely an application of the general rule.

In Runyan v. Price, 15 Ohlo St. 1, it was held by three judges against two that in a civil case the testimony of a deceased witness could not be impeached by giving in evidence declarations alleged to have been made by him out of court differing from those contained in his testimony. Wroe v.. State, 20 Ohio St. 472, was a case in which statements made by a deceased person as to the manner in which he received the fatal wound were ruled out because they were neither res gestae nor dying declarations.

Craft v. Com., 81 Ky. 250, was a case in which the majority opinion in Runyan v. Price was cited and followed, and testimony offered to contradict a deceased witness by his own subsequent declarations, as to which he had not been examined, was excluded.

In Hubbard v. Briggs, 31 N. Y. 536, it was unsuccessfully sought to impeach a witness, who had testified at a former trial of the case in 1863, and afterwards died, by offering his deposition taken 20 years before in a chancery suit between different parties. This was a civil suit, and there had been a stipulation of the parties that the evidence of the witness might be read as he gave it on a former trial. The decision can be sustained on obvious principles apart from the question in hand.

Griffith v. State, 37 Ark. 324, was a case where the supreme court of Arkansas recognized the general rule that it is not competent to contradict a witness by evidence of declarations made out of court without directing his attention to the subject; but the court said: "The court ruled out the impeachment evidence offered on the trial, be cause it did not appear from the statement

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of the deceased witness, made on cross-exainination, as reduced to writing by the magistrate, that his attention had been directed to the time and place of the antecedent declarations. This may or may not have been so; and though, strictly, the ruling of the court was right, it might have been safer, in a case involving liberty, to give the accused the benefit of the doubt."

Unis v. Charlton's Adm'r, 12 Grat. 484, was merely a case illustrating the general rule, and not bearing on our problem. Kimball v. Davis, 19 Wend. 437, was only to the effect that a living witness, whose testimony had been taken on deposition, cannot be contradicted by his subsequent declarations, where he has not been cross-examined in respect to them, but that the only way for a party to avail himself of such declarations is to sue out a second commission. This is obviously merely a recognition of the general rule, and does not touch the present case.

The entire array of cases cited seems to resolve itself into two cases only in which the question was directly considered and decided,-Runyan v. Price, 15 Ohio St. 1, a civil case, ruled by a divided court, and Craft v. Com., 81 Ky. 250.

In Hedge v. Clapp, 22 Conn. 262, heretofore cited, the court said that, while the rule laid down in the Queen's Case was one to which it would be very well to adhere, yet "it should be subject to such exceptions as a sound discretion may, from time to time, suggest."

Chief Justice Parker, in Tucker v. Welsh, 17 Mass. 160, said: "It has been suggested that, admitting such evidence proper to impeach a witness who is upon the stand, it ought not to be allowed to impeach a deposition, the witness being absent, and having no opportunity to deny or explain. The witness who has testified upon the stand hears, it is true, the evidence which tends to impeach him, or he may be called back for that purpose if he be absent. So, when the evidence goes to affect the credibility of a deposition, if it be material, the court would give time for the principal witness to appear, or for other depositions to be taken relative to the facts which are proved to impeach him. It may sometimes be inconvenient, but, if justice requires delay, it would be given. Suppose a witness who has once testified should afterwards acknowledge the falsity of his statements, and then die, the party interested in his testimony might, upon another trial, prove what he had once said upon the stand under oath; and shall not the other party be permitted to prove that what he said was a falsehood?"

In Fletcher v. Fletcher, 5 La. Ann. 406, the rule in the Queen's Case was approved, and testimony to impeach a witness by showing contradictory statements was ruled out because the necessary foundation had not been laid.

But in Fletcher v. Henley, 13 La. Ann. 192, such evidence was admitted, where it was shown that a seasonable, but fruitless, effort had been made to examine the witness as to his alleged contradictory statements by taking out a commission for that purpose. but where the return to the commissioner showed that he could not be found.

This brief review of the authorities suffices to show that this question, in the shape in which it is now presented, has never heretofore been considered or decided by this court, and that there has been no such uniform current of decisions in other courts as to constrain us to follow it.

Finding, then, no decisive rule in the authorities, and coming to regard the question as one of reason, it is at once obvious that we are dealing not with any well-settled doctrine of law prescribed by statute, or by a long course of judicial decisions, but with a mere rule of procedure. Undoubtedly the credit of witnesses testifying under oath should not be assailed by evidence of their statements made elsewhere, without affording them, if practicable, in justice to them and to the party calling them, with an opportunity to deny, explain, or admit; but it must not be overlooked that the primary object of the trial is not to vindicate the truth or consistency of witnesses, but to determine the guilt or innocence of the accused. If the evidence tending to show that the testimony of an essential witness cannot be relied on because he has made contradictory statements elsewhere, and at other times, is valid, and admissible, as the authorities all concede, why should the right to put in such evidence be destroyed by the incidental fact that the witness, by reason of death, cannot be produced to deny or to admit that he made such statements? Does not the necessity call for a relaxation of the rule in such a case?

The books disclose many instances in which rules of evidence, much more fundamental and time-honored than the one we are treating, have been dispensed with, because of an overruling necessity.

Thus the rule which excluded parties from being witnesses was departed from when it was deemed essential to the purposes of justice. In Clark v. Spence, 10 Watts, 335, it was said: "A party is not competent to testify in his own cause; but, like every other general rule, this has its exceptions. Necessity, either physical or moral, dispenses with the ordinary rules of evidence. In cases against common carriers, the owner has been admitted, ex necessitate, to testify to the contents and value of boxes that have been opened and rifled." See other cases cited by 1 Greenl. Ev. §§ 348, 349; and that author sums up the cases by stating: "Where the law can have no force but by the evidence of the person in interest, there the rules of the common law respecting evidence in general are presumed to be laid aside, or, rather, the subordinate are silenced by the most

8

transcendent and universal rule that in all cases that evidence is good than which the nature of the subject presumes none better to be obtainable."

In U. S. v. Murphy, 16 Pet. 203, the owner of property alleged to have been stolen on board an American vessel on the high seas was held to be a competent witness to prove the ownership of the property stolen, the court saying: "The general rule undoubtedly is, in criminal cases as well as in civil cases, that a person interested in the event of the suit or prosecution is not a competent witness. But there are many exceptions, which are as old as the rule itself. Thus, it

is stated by Lord Chief Baron Gilbert as a clear exception that, where a statute can receive no execution unless a party interested be a witness, then he must be allowed, for the statute must not be rendered ineffectual by the impossibility of proof."

But we need not go beyond the very case before us for a striking illustration of the fact that rules of evidence, even when founded in a constitutional provision, may be modified or relaxed when the necessities of a case so require.

The government could not proceed, at the third trial, without producing the testimony of Thomas Whitman and George Thornton. But those witnesses had both died since the prior trials, and the government was driven to rely upon a stenographer's notes of their testimony. It was objected, on behalf of the accused, that the constitution provides that "in all criminal prosecutions the accused shall enjoy the right * to be confronted

with the witnesses against him," and it was contended that the word "confront" does not simply secure to the accused the privilege of examining witnesses in his behalf, but is an affirmance of the rule of common law that in trials by jury the witness must be present before the jury and the accused, so that he may be confronted,—that is, put face to face. But this court, in the opinion of the majority, disposes of this objection by saying: "The primary object of the constitutional provision in question was to prevent depositions on ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury, in order that they may look at him, and judge by his demeanor upon the stand, and the manner in which he gives his testimony, whether he is worthy of belief. There is, doubtless, reason for saying that the accused should never lose the benefit of any of these safeguards, even by the death of the witness; and that, if notes of his testimony are permitted to be read, he is deprived of the advantage of that personal presence of the wit ness before the jury which the law has de

signed for his protection. But general rules, of law of this kind, however beneficent in their operation and valuable to the accused," must occasionally give way to considerations of public policy and the necessities of the case."

If, then, the right of the accused to confront the witnesses against him, although formally secured to him by the express terms of the constitution, and being of that importance and value to him as are recognized by the court, may be dispensed with because of the death of a witness, it would seem justly to follow that neither should that death deprive the accused of his right to put in evidence, valid and competent in its nature, to show that the witness was unworthy of belief, or had become convinced, after the trial, that he had been mistaken.

It is argued that to permit evidence of statements made by a witness contradictory of his testimony would be "a strong temptation to the fabrication of evidence, by which important and true evidence might be destroyed." This argument overlooks the fact that, if witnesses are introduced to testify to the contradictory statements, those witnesses are liable to indictment for perjury. They testify under the sanction of an oath, and of a liability to punishment for bearing false witness. On the other hand, the witness, the notes of whose testimony are relied on as sufficient to secure a conviction of the accused, is no longer within the reach of human justice.

To conclude: The rule that a witness must be cross-examined as to his contradictory statements before they are given in evidence to impeach his credit is a rule of convenient and orderly practice, and not a rule of the competency of the evidence.

To press this rule so far as to exclude all proof of contradictory statements made by the witness since the former trial, in a case where the witness is dead, and the party offering the proof cannot, and never could, cross-examine him as to these statements, is to sacrifice substance of proof to orderliness of procedure, and the rights of the liv ing party to consideration for the deceased witness.

According to the rulings of the court below. the death of the witness deprived the accused of the opportunity of cross-examining him as to his conflicting statements, and the loss of this opportunity of cross-examination deprived the accused of the right to impeach the witness by independent proof of those statements; and thus, while the death of the witness did not deprive the government of the benefit of his testimony against the accused, it did deprive the latter of the right to prove that the testimony of the witness was untrustworthy. By this ruling the court below rejected evidence of a positive character, testified to by witnesses to be produced and examined before the jury, upon a mere conjec ture that a deceased witness might, if alive,

reiterate his former testimony. It would seem to be a wiser policy to give the accused the benefit of evidence, competent in its character, than to reject it for the sake of a supposition so doubtful.

The judgment of the court below ought to be reversed, and the cause remanded, with directions to set aside the verdict and award a new trial.

(156 U. S. 218)

McGAHAN et al. v. NATIONAL BANK OF RONDOUT, NEW YORK.

(February 4, 1895.) No. 104.

APPEAL-REVIEW - OBJECTIONS NOT RAISED BELOW-PARTNERSHIP LAND MORTGAGE BY ONE WASTE BY PARTIES IN

PARTNER

VALIDITY
POSSESSION-ACCOUNTING-PARTIES.

1. Where a partner, who has the legal title to an undivided part of land belonging to the firm, gives a mortgage on such part to secure a firm debt, and all the land is afterwards sold under execution issued on a subsequent judgment against the firm and the other partner, who held title to the other part of the land, in an action by the mortgagee to enjoin the purchaser in possession from cutting timber on the land, and for an accounting for timber cut, the defense that the mortgage was invalid as to creditors of the firm, because it was for a long time withheld from record, cannot be made for the first time in the supreme court.

2. Where a partner, who holds the legal title to an undivided part of land belonging to the firm, mortgages such part to secure the firm's notes and their renewals, with the knowledge of his copartner, who accepts the benefits of the renewals without objection, such mortgage is valid, and may be enforced as against such copartner and a purchaser of the whole tract at execution sale under a subsequent judgment against the firm and such copartner, who held the legal title to the other undivided part.

3. Where a purchaser at execution sale of timber land acquires only an undivided onethird of the land, but takes possession of and claims the whole tract, and converts the timber thereon, he may be compelled to account by a prior mortgagee of the undivided twothirds.

4. Rule 47, in equity, provides that in all cases where it appears that persons who might otherwise be deemed necessary or proper parties cannot be made parties because they are out of the court's jurisdiction, or their joinder will oust the court's jurisdiction as to parties before it, the court may, in its discretion, proIceed in the cause without making such persons parties, but in such cases the decree is without prejudice to the absent parties. Held, that in an action by mortgagees of an undivided part of timber land, brought after the death of mortgagor, against a purchaser at execution sale under a subsequent judgment against a firm of which the mortgagor was a member, and his copartner, who held title to the other part of the land, for an accounting for timber converted by defendant while in possession of and claiming the entire tract, a decree for plaintiff should not be disturbed because the mortgagor's heirs were not made parties, where they were omitted as parties presumably because, by bringing them in, jurisdiction would be ousted, and no objection was made to proceeding in their absence, and it appears that the debt secured was unpaid, that the firm was insolvent, and that only the wife of the mortgagor survived him.

Appeal from the Circuit Court of the Unit ed States for the District of South Carolina. This was a bill filed by the National Bank of Rondout, N. Y., in the circuit court of the United States for the district of South Carolina, September 26, 1890, against Thomas R. McGahan, D. R. Smith, and E. P. Smith, citizens of South Carolina.

The bill alleged that on November 30, 1883, Walter B. Crane was seised and possessed in fee of all the undivided three-fourths of certain described parcels of land in Williamsburg and Georgetown counties, S. C., known as the "Longwood Plantation" and "Britton's Ferry"; that on that day,*"in order to secure the indorsement by said Walter B. Crane of four certain promissory notes, amounting in the aggregate to twelve thousand dollars, and every renewal and renewals thereof, said notes being made by David R. Smith and Walter B. Crane, under the firm name of D. R. Smith & Co., and indorsed by Walter B. Crane," then held by the National Bank of Rondout, Crane and his wife executed a mortgage on the undivided three-fourths interest in and to said tracts of land, which mortgage was recorded in Georgetown county, February 27, and in Williamsburg county, March 6, 1885.

It was further averred that the debt became due in June and July, 1885; that Crane departed this life September 5, 1887, leaving the debt unpaid, and leaving his wife surviving him; that in December, 1887, the bank recovered judgment on the notes in the circuit court.

The bill then alleged that after the execution of the mortgage, and subsequent to the record thereof, the real estate included therein was sold by the United States marshal for the district of South Carolina by virtue of certain executions in his hands, and conveyance made to Thomas R. McGahan of "all the right, title, and interest of said firm of D. R. Smith & Co., a firm composed of D. R. Smith and W. B. Crane, and of D. R. Smith individually"; that McGahan took possession and leased the property to Elizabeth P. Smith, the wife of D. R. Smith; that the lands were timber lands, of great value, because of the timber thereon; and that McGahan and those under him were cutting down and removing the timber, thus committing waste and destroying the value of the security.

The prayer of the bill was that the defendants "may set forth and discover the claim under which they are in possession of said lands, and how the same was acquired, and upon what facts it is based; that they may be enjoined under the order of this court from committing further waste on said lands, and especially from cutting down and removing any timber from said lands; that they may set forth and discover the amount and number and value of the trees cut by them, or any of them, or by their authority, since the said Thomas R. McGahan came into con

220