Gutterson v. Morse

58 N.H. 165

Opinion

Foster, J.

A conveyance made by a defendant for the purpose of preventing the satisfaction of the plaintiff’s claim, may tend to show the defendant’s practical admission of the validity of the claim. The participation of the grantee, or other accomplice in the fraud, tends to show a feeling, a bias, and perhaps an interest, affecting his credit as a witness testifying for the defendant. Mayhew v. Thayer, 8 Gray 172, 176.

If, on these grounds, the cross-examinations in this case were not justifiable, it would by no means follow that they were improperly allowed. The range of a cross-examination in disparagement of the character of the witness, not otherwise relevant to the issue and not infringing his privilege, is necessarily regulated by a sound judicial discretion. How far justice, depending upon the discovery of truth, requires that such a cross-examination should be allowed to go, is a question of fact to be determined at the trial, in view of the appearance of the witness and all the circumstances of the case. 1 Greenl. Ev., ss. 431, 449, 451; Taylor Ev., ss. 1314, 1315; Stark. Ev. (8th Am. from 4th London ed.) 213; 1 id. (5th Am. ed.) 171; Step. Dig. of Ev., art. 129; Step. Cr. Law 298; Clement v. Brooks, 13 N. H. 92, 99; Seavy v. Dearborn, 19 N. H. 351, 355; Hersom v. Henderson, 23 N. H. 498, 506; Com. v. Sacket, 22 Pick. 394; Com. v. Shaw, 4 Cush. 593; Com. v. Savory, 10 Cush. 535; Rand v. Newton, 6 Allen 38; Prescott v. Ward, 10 Allen 203; Hathaway v. Crocker, 7 Met. 262, 266; Winship v. Neale, 10 Gray 382, 383; Miller v. Smith, 112 Mass. 470, 476; Com. v. Lyden, 113 Mass. 452; Wallace v. Taunton Street Railway, 119 Mass. 91; Powers v. Leach, 26 Vt. 270, 277; Steene v. Aylesworth, 18 Conn. 244; New Gloucester v. Bridgham, 28 Me. 60, 68; Sturgis v. Robbins, 62 Me. 289; Fry v. Bennett, 3 Bosw. 200; Lawrence v. Barker, 5 Wend. 301, 305; Gt. W. Turnpike Co. v. Loomis, 32 N. Y. 127; La Beau v. People, 34 N. Y. 223, 230, 231; Real v. People, 42 N. Y. 270, 282; Carrington v. Ward, N. Y. Court of Appeals, Dec., 1877, 17 Alb. L. J. 74; Knight v. Cunnington, 13 N. Y. (Sup. Ct.) 100; Plato v. Kelly, 16 Abb. Pr. 188; Hay v. Douglas, 8 Abb. Pr. (N. S.) 217; Stoudenmeier v. Williamson, 29 Ala. 558, 564; State v. Brown, 4 La. An. 505, 508; State v. Benjamin, 7 id. 47, 49; State v. Mc Cartey, 17 Minn. 76; Hall v. Chieftain, 9 La. 322; Jones v. Ins. Co., 36 N. J. (Law) 30; Clark v. Trinity Church, 5 W. & S. 266; Wroe v. State of Ohio, 20 Ohio St. 460; Wilbur v. Flood, 16 Mich. 40, 43; Johnston v. Jones, 1 Black 209, 226; Storm v. United States, 4 Otto 76, 85; Cundell v. Pratt, M. & M. 108; Reg. v. Castro, otherwise Sir Roger Tichborne, see Summing up of Cockburn, C. J., vol. ii, p. 721.

Judgment on the verdict.

Stanley, J., did not sit.