Murray v. Chase

Morton, O. J.

We can see no ground upon which the affidavit of the defendant’s attorney, made for the purpose of procuring a continuance, was competent evidence. The plaintiff contends that it is admissible under the rule which permits proof that a party to a suit has suppressed evidence, or has suborned or attempted to suborn a witness. Such acts of a party are competent, because they are in the nature of admissions, and tend to show a consciousness that he has not a good case, the fair inference being that, if a man has a good case, he will not resort to corrupt means to sustain it. This rule cannot justly be extended to cover this case. The affidavit is not the act of the defendant; it does not appear that it was made by the counsel in his presence or by his dictation, or that he ever approved it or even knew that it had been made. There is nothing to show that the error in stating what the defendant’s wife would testify to was not an innocent mistake of the counsel. If a similar affidavit made by the defendant himself would be competent, which we need not decide, this bill of exceptions does not show that he authorized or is responsible for the erroneous statements of his counsel. Exceptions overruled.