amined, where there were three or more parties interested, it is plain to see that the "privity of contract" argument, pushed to its full limit, and blind to the substance of the transaction, works a great hardship and injustice. If the real intention of the party, who put up the money, had governed, the plaintiff would have recovered, in every case named. Where there are only two parties interested, the privity of contract, is easily implied, because if the defendant is liable to anybody, the plaintiff must have his action; and it would be unconscionable to say defendant was liable to no one. But "privity

of contract" should really necessitate a real contract, as well as direct relationships between the parties; if, in the above cases, it seems so difficult to imagine or assume a privity between two persons who did not come into direct contact with one another or to admit exceptions to the rule requiring a privity, it seems difficult to understand how in the ordinary cases of this class it is so easy to imagine a contract that never existed. The real explanation seems to be that, in many cases, if "the contract" was not assumed, the defendant would triumph in his wrong, whereas, if "the privity" is not imagined or its want excused, the only difference is, that, as in the last case examined, the plaintiff could sue the Kershaw estate, and that estate could sue the defendant. But in many cases, as there, but a barren remedy is given the plaintiff. He sues an insolvent estate, instead of the solvent bank. If it be answered, that sometimes it would be a solvent estate, and an insolvent bank, we reply, let the real intention of the parties govern, whatever happens. If the money is left with the bank for the benefit of the holder of the bill, and is there on the day the bill is due, the holder of the bill should not complain if he delays getting his money, and the bank fails; otherwise, he can rightfully complain, and in a suit directly against the bank, if it keeps his money. When the money is put there to meet the bill, it is sacred unto the bill; indeed, when the bank receives it, there is a clearly implied promise on the part of the bank, made to the depositor of the money to pay the holder of the bill, and under the later American doctrine the holder as beneficiary of the promise, should be privileged to sue the

bank.

But as long as the early English cases clung to the need of "a contract," as well as to the need of "a privity," they were logical, though sometimes unjust, and as the court in the Hill case (supra), said of itself, "technical." But soon the real contract was forgotten, provided only two persons were interested. The first departure, was a slight one. A multitude of cases have decided that if the defendant fails to perform his contract, or puts it out of his power to do so, the plaintiff can either sue for a breach of said contract, or rescind it, and recover back his payments on the contract as money had and received by the defendant for the use of the plaintiff. It might, without too great expansion of the imagination, be conceived that the defendant meant, from the start, to say to plaintiff, "If this affair don't go through, I will return you your money.' ." In Wright v. Calls, plaintiffs paid a bonus for a lease, but soon after going into possession of the farm discovered that the defendant had no title; plaintiff could, in this form of action, recover his bonus. But where plaintiff got the full benefit of his bargain, he could not recover, though he did not ever have a good title to what he was paying for and enjoying; since this action is not technical, and one cannot recover, unless there is "good conscience in the claim." But another step was taken, when one was permitted, in this action, to recover money paid under a mistake of facts. But even here, it might be assumed, that neither party would have acted as he did, if he had known the facts, and that, therefore, both would be anxious to correct any mistake that was established. In Kelly v. Salori, an insurance company paid a policy that had lapsed. The court left it for the jury to decide if the company might not have paid it, with knowledge of the facts, just to ennoble the record of the company; but the jury decided that the company sinned in its own sight, and through mistake, and it recovered. Even where the plaintiff had all the means of knowledge for preventing a mistake, it can But soon this action was used to recover money that the defendant had obtained from the plaintiff by any form of duress,

recover.

10

7 8 C. B. 150 (1849).

8 Zurner v. Browne, 3 C. B. (1846), 157. 99 M. & W. 54 (1841).

10 Bell v. Gardiner, 4 Man. & Gr. 11 (1842).

the Hill case (supra), where the defendant banks really did take Kershaw's money to hold for the plaintiff, and to so easily imagine a contract that we absolutely know never existed. However it is the trend of modern decisions in America to be less affrighted by the word "privity," and more mindful of the word "contract. 17 But even

if the pleader of the future shall always tell the truth, and pursue the defendant as contractor, wrong-doer or trustee, respectively, in accordance with the strict warranty of the facts, there will be little danger of losing sight of our old friend. Broader than charity, it covers not only sins, but shortcomings and misunderstandings. Text writers discuss this "common count" under "contracts." Greenleaf likens its scope to a bill in equity, and Justice Aston, in the celebrated Hambly case (supra), observed, "There seems to be but little difference between actions of trover and actions for money had and received." JOHN W. SNYDER.

Kansas City, Mo.

16 "The right of a party to maintain assumpsit on a promise not under seal, made to another for his benefit, although much controverted, is now the prevailing rule in this country." Am. & Eng. Ency. of Law. Vol. 3 page 863 (note 5).

17 In Edwards v. Albrecht (42 Mo. App. 502), Judge Thompson said: "We conclude, then, that the two propositions, that a party cannot sue upon a contract and recover by giving evidence of a tort, and that he may waive the tort and sue upon a contract, are contradictory propositions; that the former, and not the latter rule, is in accordance with the spirit of our code of procedure, and must stand as the rule declared by the latest decisions of the Supreme Court, and of this court."

IMPEACHMENT OF WITNESS.

CARROLL V. STATE.

Court of Criminal Appeals of Texas, November 13, 1893.

For the purpose of impeaching a witness, he may be asked if he is not under indictment for theft, and the fact that he has been released on bail does not relieve him from answering the question.

SIMKINS, J.: Appellant was convicted of theft of a pair of spurs, and his punishment assessed at one month's imprisonment, from which he appeals.

Appellant complains that the court erred in permitting the State to prove, over his objection, by Frank Glass, a witness for appellant, that he, the said Glass, was then under indictment for theft. The objection made was that a witness

could be collaterally impeached only by evidence of his general reputation for truth and veracity in the neighborhood in which he lives. While the Code declares that one may impeach his own witness in any way except by proving his bad character (Code Crim. Proc. art. 755), it is silent as to the methods by which one may attack the credibility of a witness offered by the opposite party. It simply refers us to the rules of evidence known to the common law for guidance. Id. art. 725. Turning to this source, we find that, of the various modes of impeaching a witness, this alone has been the subject of much opposition and discussion; that is, whether a witness can be compelled to answer a question degrading him, collateral to the main issue, but relevant to his credit. In other methods of impeachment, the question is as to the application of the rule. In this the existence of the rule is denied. It seems, however, to be conceded that, if the question is relevant to the main issue in the case, the witness, upon cross-examination, is bound to answer, however degrading it may be to him. It is where the evidence is not relevant to the issue, but only goes to affect his credit, that the authorities cannot be reconciled. 1 Best, Ev. 130; 1 Greenl. Ev. 459; Whart. Crim. Ev. (8th Ed.) 474. We may, therefore, follow the authorities whose reasoning appeals strongest to our judgment, and adopt that rule which tends to elucidate the truth, which is the object of all rules of evidence.

Now, while it is true that the question "has never been solemnly settled," as stated by Mr. Greenleaf (1 Greenl. Ev. § 459), yet eminent judges at nisi prius trials began at an early day to permit such questions to be asked, and compelled the witness to answer them. Whart. Crim. Ev. 474. Lord Eldon, in speaking of this practice, thus states the law in his day: "A party cannot be called upon to criminate himself. It used to be said a party could not be called on to discredit himself, but in modern times courts have permitted questions to show from transactions not in issue that the witnesses are of impeached character, and therefore not so credible." So that it would seem that, though the older authorities were against the practice (1 Phil. Ev. 289, 294), yet the current of authority soon changed in England and America. Indeed, in his Digest of the Law of Evidence (article 129), Sir James Stephens states the rules of cross-examination as follows: When a witness is cross-examined, he may be asked any question which tends (1) to test his accuracy, veracity, or credibility; or (2) to shake his credit by injuring his character. He may be compelled to answer any such question, however irrelevant to the facts in issue, and however disgraceful the answer may be to himself, except where the answer might expose him to a criminal charge." Willson. Crim. St. § 2511.

This character of cross-examination is permitted upon the theory that, where a man's life or liberty depends upon the testimony of another

But

it is of the highest importance that they whom the law makes the exclusive judges of the facts and the credibility of the witnesses should know how far the witness is to be trusted. They ought to know his surroundings and status, so as not to give to one belonging to the criminal class the same credit as he whose character is irreproachable. If, therefore, it should appear on cross-examination that the witness had a previous criminal experience, or spent a part of his life in jail (Real v. People, 42 N. Y. 270; Thomp. Trials, 458; Greenl. Ev. 455), or was convicted, or has suffered some infamous punishment, or had been in jail on a criminal charge (1 Best, Ev. 130), it would tend to shake or impair his credit, and the jury should have such information. While it may seem harsh to compel a witness to commit perjury, or destroy his own standing before the court, it would seem absurd to place the feelings of a profligate witness in competition with the substantial rights of the parties in the case. it is to be remembered, and all the authorities unite in the statement, that the examination must be kept within bounds by the court; that the question should only be permitted where the ends of justice clearly require it, and the inquiry relates to transactions comparatively recent, bearing directly on the present character of the witness, and is essential to the true estimation of bis testimony by the jury. 1 Greenl. Ev. 459; Whart. Crim. Ev. 474, 476; Tayl. Ev. §§ 1314, 1315. It should be the care of the trial judge to confine the interrogatory to matters coming within the said limitations, and promptly suppress all inquiry into matters not recent, or relevant to credit; otherwise, the witness box would become a source of scandal, and an offense. It is also to be observed that when a witness is asked a question which tends to disgrace him, and answers the question, the cross-examining party is, in general, bound by the answer, if collateral to the issue, and only going to the credit of the witness, for to admit contradictory evidence would raise collateral and independent issues not relevant to the main question. 1 Greenl. Ev. 455; 2 Phil. Ev. 950; Best, Ev. 200.

The doctrine contended for by appellant, which, in attacking credibility, limits inquiry to the general reputation of the witness for truth and veracity in the neighborhood, is as unsatisfactory in theory as it has been in practice. The proposition announced in Boon v. Weathered, 23. Tex. 684, 686, that one of vicious character "may still preserve the priceless virtue of truth, though every other virtue is gone," is not the teaching of human experience. Such a case would be deemed an exception so marked as should require the fact to be affirmatively shown. Among the dissolute and degraded, we do not naturally seek or expect to find this best characteristic of manhood. Without proof to the contrary, the jury may fairly assume that from the immoral and criminal character truth has fled, with other virtues. While, therefore, the method of impeachment contended for is one of the recognized modes, we see no rea

son why it should be exclusive. We think the jury may reach in many cases a more satisfactory estimate of a witness' character from admissions drawn from his own lips upon cross-examination than by impeaching his general reputation by other witnesses, a method seldom understood by even intelligent witnesses, and too often made the opportunity of malice and revenge; for experience clearly demonstrates that, in most efforts to swear away the character of a witness, animosity or injury is the incentive or cause of the most positive impeaching testimony. Under these views, we do not think the court erred in permitting the question to be asked.

Again this question of collateral impeachment came before this court in Lights' Case, 21 Tex. App. 309. 17 S. W. Rep. 428, in which it was held competent to discredit a witness by asking him "if he had not been in the penitentiary." And the court expressly overruled Ivey's Case, 41 Tex. 35 which held a witness could not be compelled to answer "whether he had not just come out of jail to testify." Lights' Case held such a question clearly admissible, citing Whart. Crim. Ev. 474, and Real v. People, 42 N. Y. 270, in which the doctrine is laid down that a witness, on crossexamination, may be asked "whether he has been in jail, penitentiary, or other place that would tend to impair his credit." Lights' Case has been repeatedly followed in this State. Woodson's Case, 24 Tex. App. 162, 6 S. W. Rep. 184; Williams' Case, 28 Tex. App. 303, 12 S. W. Rep. 1103.

Now, it seems from the foregoing authorities, that a witness may be interrogated as to his having been in the penitentiary or jail, whether on conviction or on preliminary charge. But it is the nature of the charge, rather than the imprisonment, that may affect credit; and it certainly does not seem clear why the fact of a person being able to give bond, and thereby escape imprisonment, should bar an inquiry into his credibility. The presumption of innocence is certainly no greater in favor of one under bond than one who, from his inability to give bond, is compelled to undergo imprisonment. We do not think the court erred in permitting the question to be asked of the witness Glass. There are no other questions that need be considered. The judgment is affirmed.

NOTE. The following are some of the very late cases upon the subject of impeachment of witness by showing his participation or guilt of particular crimes:

Gen. St. Conn. § 1098, which provides that no person shall be disqualified as a witness by reason of his conviction of a crime, but such conviction may be shown for the purpose of affecting his credit, authorizes only such convictions to be shown as formerly disqualified the convict from testifying, and not a conviction by a justice's court of simple assault. Card v. Foot (Conn.), 18 Atl. Rep. 713, 57 Conn. 427.

Even if proof of such conviction were authorized, only a final judgment of conviction could be shown, and not one from which an appeal had been taken. Card v. Foot (Conn.), 18 Atl. Rep. 713, 57 Conn. 427.

Pub. St. Mass. ch. 169, § 19, which provides that the conviction for a crime may be shown to affect the credibility of a witness, does not require the crime to be of such a nature as of itself to affect his credibility, and evidence of a conviction for assault, is admissible for purposes of impeachment. Quigley v. Turner

(Mass.), 22 N. E. Rep. 586.

On a trial for assault with intent to kill, where defendant has testified in his own behalf, evidence of his prior conviction of violating a municipal ordinance by frequenting a bawdy-house, a mere misdemeanor not infamous at common law, or by statute, is not admissible to impeach his credibility. State v. Taylor (Mo.), 11 S. W. Rep. 570, 98 Mo. 240.

A witness, who, on cross-examination, is asked if he had not at one time committed larceny, and denies it, cannot be contradicted in regard thereto. Pullen v. Pullen, 6 Atl. Rep. 887, 43 N. J. Eq. 136.

A witness cannot be impeached by showing that he has been charged with and arrested for a crime. Pullen v. Pullen, 6 Atl. Rep. 887,43 N. J. Eq. 136.

Under Code Civil Proc. Cal. § 2051, providing that a witness cannot be impeached by evidence of particular wrongful acts, it is improper to ask a witness, on cross-examination, whether he is not the person who was arrested for beating a woman of the town, and who appeared, pleaded guilty, and paid a fine there. for. Jones v. Duchow (Cal.), 23 Pac. Rep. 371.

Where the character of a witness is in question, it is improper, on the cross-examination of an impeaching witness, to ask if the witness has any personal knowledge of any particular act of bad conduct on the part of the witness whose character is being assailed. Nor is such testimony competent on the redirect examination. Fox v. Commonwealth (Ky.), 1 S. W. Rep. 396. Under Pen. Code N. Y. § 714, which permits a witness' conviction of a crime to be shown upon crossexamination, without production of the record, a witness who has stated how long it is since he came out of prison may be asked what crime he was convicted of. Spiegel v. Hays (N. Y.), 22 N. E. Rep. 1105, 118 N. Y. 660.

Under Code Miss. 1880, § 1607, providing that the record of conviction of a witness of any "crime" may be given in evidence as affecting his credibility, and section 3105, declaring that "any violation" of law is a crime within the meaning of section 1607, the record of the conviction of a' witness for larceny of a hog, without felonious intent, is admissible to affect his credibility. Helm v. State (Miss.), 7 South. Rep. 487.

Under Pub. St. Mass. ch. 169, § 19, providing that the conviction of a witness of a crime may he shown to affect his credibility, when the defendant testifies in his own behalf, the record of his conviction of a crime is admissible, and he can be asked questions tending to identify him with the person named in the record. Commonwealth v. Sullivan (Mass.), 23 N. E. Rep. 47.

It was not error to ask a witness whether he had not been in the penitentiary two or three times. When the purpose is only to discredit the witness, it is not necessary to produce the record to prove a previous conviction. State v. Miller (Mo.), 13 S. W. Rep. 832.

A party seeking to impeach a witness may ask him with respect to a judgment in a prosecution for felony against him, and this includes the right to ask him whether he was convicted of felony, and, if so, what sentence was imposed on him. People v. Rodrigo (Cal.), 11 Pac. Rep. 481, 69 Cal. 601.

Where defendant in a criminal action became a witness in his own behalf, evidence of his conviction of assault several years previous, was admissible as af

fecting his credibility under Pen. Code Minn. § 531, providing that the record of any crime may be so received. State v. Sauer (Minn.), 44 N. W. Rep. 115, 42 Minn. 258.

Under Pen. Code Minn. § 531, providing that for the purpose of discrediting a witness his conviction of a crime may be shown by the record or by cross-examination, a witness may be asked on cross-examination whether he has been convicted of a crime in a certain court at a given date. State v. Adamson (Minn.), 45 N. W. Rep. 152, 43 Minn. 156.

A witness cannot be asked, upon cross-examination, for the purpose of discrediting him, whether he has been arrested and convicted of a misdemeanor, as Code Civil Proc. Cal. § 2051, limits such evidence to conviction of felony. People v. Carolan, 12 Pac. Rep. 52, 71 Cal. 195.

A record of conviction of a misdemeanor, if admissible in any case to impeach a witness, is admissible only when the offense involves moral turpitude or infamy. People v. Carolan, 12 Pac. Rep. 52, 71 Cal. 195.

Under Pub. St. R. I. ch. 214, § 38, providing that a person convicted of crime may "testify like any other witness, except that such conviction may be

shown to affect his credibility," a witness testifying in his own behalf may be impeached by showing his previous conviction of crime. State v. McGuire, 15 R. I. 23.

A witness who testifies on his own behalf may, in order to impeach him, be questioned on cross-exam. ination as to his former offenses. State v. O'Brien (Iowa), 46 N. W. Rep. 861.

It is competent, on cross-examination, for the purpose of attacking the witness' credibility, to ask him whether he has ever been convicted of larceny. State v. Merriman (S. C.), 12 S. E. Rep. 619, 13 S. E. Rep. 328.

Under Rev. St. Ill. ch. 51, § 1, the fact of the convic tion of a witness of a crime "may be proven like any fact not of record, either by the witness himself (who shall be compelled to testify thereto), or by any other witness cognizant of such conviction," as impeaching testimony. Handlin's Estate v. Law, 34 111 App. 84. In an action on a note an objection to the question, "were you ever arrested," propounded to a witness, was properly sustained, since the mere fact of an arrest could not lessen his credibility. V. Loewer's Gambrinus Brewery Co. v. Bachman (Com. Pl. N. Y.), 16 N. Y. Supp. 138.

A witness having admitted conviction of larceny, and the record of the conviction being in evidence, he cannot be asked as to the circumstances connected with the transaction. Commonwealth v. Galligan (Mass.), 28 N. E. Rep. 1129.

For the purpose of discrediting him, a witness may be asked if he has not been in the penitentiary, and was not sent there from a certain county. Lights v. State, 17 S. W. Rep. 428, 21 Tex. App. 308.

Where a witness for the defense testified that defendant was a peaceable, law-abiding man, it was competent to interrogate such witness as to whether he (witness) had ever been indicted, in order to test his credibility. People v. Hite (Utah), 33 Pac. Rep. 254.

On a prosecution for murder, it is proper, in order to discredit a witness for the State, to ask him if he had not been indicted for a robbery and confessed the crime, if he did not stand indicted for conspiracy and if he had not offered to swear for accused if he were assisted to get rid of the conspiracy charge. Roberts v. Commonwealth (Ky.), 20 S. W. Rep. 267.