question raised by the third bill of exceptions taken by the appellants before noticing the second. The question will be more fully presented and better understood by copying the bill which is in these words: Be it remembered, upon the trial of this cause, after plaintiffs and defendants had closed their evidence, and C. White, Esq., (one of the counsel for the plaintiffs) was proceeding to address the jury, and was arguing that by a proper construction of Byrd George's will, his son (W. O. George) could not have disposed of the property by his will, being unmarried, here the counsel for the defence asked leave to introduce in evidence three deeds, viz: W. O. George to W. P. Goodman, dated December 15th, 1862; the same to A. P. Rowe, dated June 6th, 1863; and the same to Henry White, dated June 13th, 1862. The plaintiffs objected, but the court admitted the deeds after said White and Holladay had spoken (the deeds were made a part of the record), with the declaration that the said. counsel who had spoken might, if they thought proper, comment on the said deeds, inasmuch also as the purpose for which the will of Byrd George was introduced was not disclosed until the argument began; to which opinion of the court the plaintiffs excepted, and prayed that this their bill of exceptions may be signed, sealed and enrolled. Which is accordingly done. The deeds referred to in the bill of exceptions purport to convey in fee to the grantees lands devised by the will of Byrd George to his son Wm. O. George, and although the object for which they were offered as evidence does not distinctly appear by the bill, yet it sufficiently appears that they tended to show that the 1877. March Term. George & als. V. Pilcher & als. 1877. March Term. & als. V. Pilcher & als. construction put upon the will by the plaintiffs' counsel was not the construction given to it by William O. George; and the deeds were therefore competent eviGeorge dence to rebut the inference drawn by the counsel from their construction of the will. It would seem that the objection was rather to the time of the introduction of the evidence than to its competency. On trials before a jury, when the evidence has been closed on both sides and the argument of the cause has commenced, as a general rule, no further evidence should be received from either party; but the judge presiding at the trial, in the exercise of a sound discretion, may relax the rule under peculiar circumstances, and receive additional evidence, if the nature of the case and the ends of justice require it. But if the introduction of such additional evidence takes the adverse party by surprise, he should be allowed time and opportunity, if desired, to meet it with further evidence on his side. Commonwealth v. Ricketson, 5 Metc. (Mass.) 428-9; Taylor &c. v. Shemwell, 4 B. Monr. R. 575; Fleck &c. v. Hollenkemp, 13 B. Monr. R. 219; Larman v. Huey's heirs, Id. 436; McDowell's ex'or v. Crawford, 11 Gratt. 377, 408-9. It does not appear that the introduction of the deeds in this case took the plaintiffs in the issue by surprise, or that their rights were at all prejudiced thereby. They did not claim that the admission of the deeds rendered any further evidence on their part necessary, or that they had any such to offer, nor did they ask for any delay, or postponement of the argument, or of the trial, on account of the introduction of the deeds. We think the court committed no error in permitting the deeds to go in evidence to the jury. In the course of the trial, after the plaintiffs in issue 1877. March George & als. V. Pilcher had read to the jury the depositions of Charles Mink and others, and, amongst other exhibits accompanying Term. the depositions, the certificate of marriage of William O. George and Caroline Jackson, and there rested their case, and the defendants had introduced sundry witnesses who testified in their behalf, and the plain- & als. tiffs had closed with their rebutting evidence, they (the plaintiffs) offered to read to the jury the depositions of eighteen witnesses, to prove that the said Charles Mink (whose deposition had been read by the plaintiffs in evidence to the jury) "was a man of good character for truth and veracity, and a man of the strictest integrity." To the introduction of these depositions as to the character of Mink, the defendants objected, the objection was sustained, the depositions were excluded; and the plaintiffs excepted. Were the depositions properly excluded, is the question for us to determine, and the one mostly argued at the bar. A witness may be impeached in many ways. "The credit of a witness may be impeached," says Mr. Starkie, "either by cross-examination, subject to the rules already mentioned, or by general evidence affecting his credit, or by evidence that he has before done or said that which is inconsistent with his evidence on the trial; or lastly, by contrary evidence as to the facts themselves." 3 Starkie on Ev. (Metcalf's ed.), side page 1753. See also 1 Greenleaf's Ev., §§ 461, 462; Phillips' Ev., pp. 291, 293. When a witness is thus impeached, the party calling him has the right to sustain him, and for that purpose it would seem but just and reasonable that he should be allowed to introduce evidence of the general reputation of the witness for truth. All the authorities concur, that such corroborating evidence is admissible where the character of the wit 1877. March Term. & als. V. Pilcher & als. ness is attacked by direct evidence; but there is much conflict among them as to its admissibility where the attack is made in any other mode. The rule is laid George down by the elementary writers in general terms thus: A party cannot bring evidence to confirm the character of a witness before the credit of that witness has been impeached, either upon cross-examination or by the testimony of other witnesses; but if the character of a witness has been impeached, although upon crossexamination only, evidence on the other side may be given to support the character of the witness by general evidence of good conduct. 1 Starkie Ev., Metcalf's edi., side page 148. If the character of any witness for credibility be impeached, either by direct evidence or upon cross-examination, his testimony may be supported by general evidence that his character is such that he is worthy of credit. Roscoe Crim. Ev., 95. In answer to the evidence of contradictory statements, and for the purpose of corroborating the testimony of the witness whose veracity has been thus impeached, it seems reasonable to be allowed to show that he is a man of the strictest integrity and of scrupulous regard to truth. 1 Phillips on Ev., 306, 307. See 1 Greenleaf's Ev., § 469 and notes (Redfield's edition). Many of the decisions in the American states hold, that the evidence is admissible only when the general character of the witness, or his character for truth, is assailed by direct evidence as to such character, or by proof on cross-examination of extrinsic facts going to general character; and that it cannot be received to sustain a witness on account of inconsistencies in his own statements on cross-examination, or on account of statements proved to have been made by him out of court contradictory of statements made by him. March in court, or on account of proof by other wit- 1877. nesses of material facts irreconcilable with the facts proved by the witness, although such proof may impute fraud or falsehood to the witness. George People &als. V. Pilcher v. Hulse, 3 Hill's R. 309; People v. Gay, 3 Selden's R. 378; Russell v. Coffin, 8 Pick. R. 143; Rog- & als. ers v. Moore, 10 Conn. R. 13; Brown v. Mooers, 6 Gray's R. 451; Heywood v. Reed, 4 Gray's R. 574; Atwood &c., v. Dearborn, 1 Allen's R. 483; Boardman v. Woodman, 47 New H. 120; 9 Watt's Penn. 124; Wertz v. May, 21 Penn. St. R. 274. Other state authorities, however, lay down a much more liberal rule. In the case of Paine ond others v. Tilden and others, 20 Verm. R. 554, Judge Redfield says: "It is now well settled, that whenever the character of a witness for truth is attacked in any way, it is competent for the party calling him to give general evidence in support of the good character of the witness. And we do not think it important whether the character of the witness is attacked by showing that he has given contradictory accounts of the matter out of court, and different from that sworn to, or by cross-examination, or by general evidence of want of character for truth." State v. Rowe, 12 Verm. R. 93; Sweet v. Sherman, 21 Verm. R. 24, accord. In Tennessee, in a case in which a witness had been subjected to a severe cross-examination, with a view to impair his credit, and general evidence of character had been offered to sustain him, which was objected to, Green, J., in delivering the opinion of the supreme court, said: "The record shows that Hamilton was subjected to a searching cross-examination by defendants' counsel, in which many questions were asked as to the situation of the building, his motives for being in the place where he witnessed the facts, to which he VOL. XXVIII-40 |