FEDERAL REPORTER, vol. 44.
The better rule, however, seems to be that in reclaiming the property the seller rescinds the contract of sale in so far as it has been executed, and is thereupon bound to restore to the buyer anything that he may have received in the way of payment. Hamilton v. 11lanvfacturing Co., 54 Ill. 371'; Hine v. Roberts, 48-00nn. 268; Preston v.'Whitney, 23 Mich. 260. This rule seems to he especially applicable to a case of this kind, in which property is given in exchange of the same general character as that purchased. Having obtained possession of defendant's old press and material at the time the new machinery was setup, if in this action plaintiff can take the new press without returning the other, defendant will have nothing with which to print his newspaper. The rula relates only to money and property given in payment for the property purchased, as to which the seller ought to put the buyer in the position he held when the contract' was made. It does not in any way relate to fulfillment of the contract, or damages for failure therein, and therefore all that is alleged by. defendant in his three answers he calls cOUnter-claims) liS damages for breach of the contract-as that the machinery was Ilot delivered in time; that at plaintiff's request he furnished some part of the materials used; that the machinery was not of the kind or capacity sold; and the like-are not within the rule. Such defenses are not admissible in this form of action. The question here is the right of possession, and whether it is in plaintiff or defendant. All other matters are to be settled in another form of action, which is adapted to the recovery of money. It is difficult to. conceive of a counter-claim in an action of replevin j but, if such pleading may be allowed in any case, thereisllothing to support it in this case. Under the contract, defendant mliy insist upon having his press and materials again as a condition to relinquishing that which he purchased; but this is not in the way of counter-claim, but a matter of defense simply. The.demurrer will be sustailled, and defendant will have leave to amend, so as to present the single matter of defellse, as indicated.
UNITED STATES v. HALL.
(D£Btrict Court, S. D. Georgia, W. D. November 21, 11100.)
Where a 8ubpaJna duces tecum has been issued to a witness, requiring him to produce a deed therein described, and he answers orally under oath. before the court that he had nosucll deed, and never had it, and it further appears that the deed he was required to produce was alleged to have been furnished him by the prisoner, if, on the trial of a traverse to the answer made by the respondent to the sUbprena duces tecum, the prisoner testified that he had furnished or delivered the respondent no such deed, his testimony would be in a matter material to the issue so' formed, and, if he testified falsely, not believing his testimony to be true, he wQuld be guilty of perjury.
Before the Jury are authorize4 to convict the defendant on a charge of perjury, they must bEl satisfied ·from the testimony of one witness, with corroborating circumstances, Or from the testimoiJy of more than one witness, that the -prisoner swore and testified falsely, not believing his testimony to be true.
UNITED STATES 11. HALL. '
The evidence m1lst be something more than suftlcient to counterbalance the oath of the prisoner and the legal presumption of his" innocence. The oath of the accusing witness, therefore, will not avail to convict, unless it be strongly corroborated by other independent circumstances; but the jury will be justified in convicting upon the testimony of a single credible witness so corroborated.
CREDIBILITY OF WITNESS.
The question whether a witness is impeached or not is for the jury to answer, and, though he swore differently on a former trial, if this was done under duress of bodily harm, it may not affect his testimony.
Where the law obliges a party to call a witness, the party calling him is not precluded from proving the truthfulness of any particular fact by any other competent testimony in direct contradiction to what such witness may have testified, and this is not only where it appears that the witness was intentionally mistaken, but even where the evidence may collaterally have the effect of that he was generally unworthy of belief.
Power of judges in the federal courts to sum up the evidence discussed, but declared merely advisory, and not intended to fetter the exercise of the independent judgment of the jury. It is the right and duty of the court to aid the jury "to recall the testimony to their recollection by collating its details, by suggesting grounds of preference Where there is contradiction, by directing their attention to the most important facts, by eliminating true points of inquiry, by resolving the evidence, .however complicated, into its simplest elements, and by showing the bearing of its several parts, and their combined effect, stripped of every consideration which might otherwise mislead or confuse them. How this duty shall be performed depends in every case upon the discretion of the judge. There is none more important rests upon those who preside at jury trials. Constituted as juries are, it is frequently impossible for them to discharge their functions wisely and well without this aid. In such cases chance, mistake, or caprice may determine the result." Nuda v. Burrows, 91 U. S. 439. Duty of the jury to discard improper and misleading appeals, adverted to.
SAME-ARGUMEKTS OF COUNSEL.
(Syllabus by the Court.)
Indictment for Perjury. John L. Hardeman, Special Asst. U. S. Atty. Bacon &- Rutherford and Des8au &- Ba7'!lett, for defendant. SPEER, J., (charging jury.) The laws of the United States provide that every person who, having been sworn conformably to law that he does, willfully, and contrary to such oath, state any will testify material matter which he does not believe to be true, he shall be held guilty of perjury, and, on conviction, shall be punished therefor. The prisoner, Luther A. Hall, has been indicted for an alleged violation of this law. To that indictment he has pleaded not guilty, and thus the charge preferred by the grand jury, with his plea thereon, presents for your determination, under the rules of law, the issue now on trial. The crime of perjury is a crime against public justice. It is a fundamental principle in all judicial investigations-that is, in all trials before the courts-that in the ascertainment of the truth of the matter in controversy society must rely upon the respect and obligation which the v,44F.no.12-55
in accord!lnce with law, will have in the mind solemn and conscien(',e oftne witness. This crime was .not originally punishable by the courts of law. It deemed in the ages past a sin, rather than a'crime,· and its puniShment Yl'llS supposed to reside with the offended Deity, who had been solemnly invoked, and the solemn invocation to wholn.had been disregarded. . But for several centuries past the crime hll.sbeen triable and punishable in the courts, and the statute which the prisoner at the bar is charged to have violated was enacted immediately after the organization af our government, to-wit, in the year 1790. I am sure that all the occurrences of this lengthy trial have given tOyOHl if did not possess it in its outset, an adequate impression of the importance and gravity of the accusation, as well to the prisoner as to the community. It was well said to the Athenians, by the orator Lycurgus that no country can subsist a twelve-month where an oath is not thought binding, for the want of it must necessarily dissolve society. I allude to the gravity of the o.ffense with· which the prisoner stands charged, not to justify or arouse aliy undue anxiety or excitement in your minds, but to make you, if I can, thoroughly appreciate the magnitude of the issue on trial as it may affect the prisoner, and society as well. While I invoke your anxious and impartial attention to the entire case as it has been and will be submitted, I caution you against confusing the question of guilt or innocenc'e with the magnitude of the charge, or its consequences to, any, or to all. You will be careful, gentlemen, to observe the several elements necessary to constitute the crime of perjury. First, th.e oath must have been taken before It tribunal competent to administer the same, and in a case in which the law of the United States authorizes an oath to be admistered. The oath must be that the person taking it will testifJT truly. Having been so sworn, the person testifying must willfully, and 'contrary to his oath, state or testify to a material matter which he does not believe to be true. By the language" material matter" is meant evidence or testimony material to the issue then on trial. In such case, It person so lawfully sworn, who willfully, and contrary to his oath, states or subscribes any material matter which he does not believe to be true, is guilty of perjury. Now, let us first inquire whether, in the case before the court, the government has shown to-the jury that the prisoner, Luther A. Hall, has been placed, by his conduct, in the attitude, in which we may rightfully inquire whether his testimony, about which the trial is had, was false, and not believed by him to be true. It is charged in the indictmenttbat he was sworn 8S a witness on the trial of the traverse to an answer made by one Judge Goodwin to a: 8ubpama duces tecum; that the trial was had upon the hearing of a rule brought by Norman W. Dodge against Luther A. Hall for an alleged violation and contempt of a decree of the circuit court of the United States for this distriot. It is further charged in the indictment that the oath was taken before the judge of this court, who was then presiding in said circuit court. Now, gentlemen, I charge you, as a matter ot law, that the circuit court of the United States for this district and circuit is It tribunal competent to administer an oath; that the judge
· 'UNITED. STATES V. HALL.
of this court has lawful power and authority to preside in the said circuit court of the United States, and had such authorHy at the time referred to in the bill of indictment, and on the trial of the proceeding therein described, between Norman W. Dodge and Luther A. Hall. I charge you further that, in hearing the answer of a witness to ,a subpama duces tecum, and on the trial of a traverse to such answer, there is before the court a case, in which a Jaw of the United States authorizes anoath to be administered. I charge you further that, if you believe from the evidence that the prisoner, at the time'and on the issue described in the indictment, was sworn in the usual manner, the method of administering the oath is a sufficient compliance with the law. I charge you further, if you find from the' evidence that a subprena duces tecum was issued to one Judge Goodwin, requiring him to produce a deed therein described before the court,on a day certain, and he answered that he had no such deed, and it further appearB irom the evidence that the deed he was required to produce was alleged to have been furnished him by the prisoner; and if it further appears that on the trial of the traverse to the said answer, that the party taking out the subpama insisted, by evidence and otherwise, that the deed sought to be produced was furnished Goodwin by the prisoner, if then the prisoner testified that he had furnished or delivered Goodwin no such deed, his testimony on the occasion described would be in a matter material to the issue. It follows, therefore, that if, on the trial of a traverse to the answer made to a subpmna duces tel;um issued in the proceeding and manner described in the indictment, the defendant testified, after having been sworn, it will then be the duty of the jury to ascertain whether it be true, as charged in the indictment, that the prisoner testified, and, if he testified, whether he testified falsely, not believing his testimony to be true. Did the prisoner testify? To ascertain this you will look to the testimony. A stenographer, Mr. Richter, who took the testimony in short-hand, testified as follows: "I took the testimony of all the witnesses introduced, with the exception of the first two or three. 1 took the testimony of Mr. Hall. Question. Did you take the testimony 011 the hearing of the subpama duces tecum against Judge Goodwin? Auswer. Yes, sir. Q. Did you take the testimony of Mr. Hall QII that proeeeding? A. Yes, sir. Q. Just state to the court whether you recall that testimony, so as to give it, or whether you have your notes. A. 1 have my notes. Q. Can you read·those notes? A. Yes, sir." The witness reads from his notes taken on the trial of the traverse to Goodwin's answer. "Luther A. Hall sworn. Direct examination by Mr. Erwin: Mr. Hall, state whether or not you ever furnished a deed answering to the description in this subprena issued to Judge Goodwin. Answer. 1 never did. Question. State whether or not you ever witnessed a deed as notary public from any one to Judge Goodwin. A. No, sir. Q. Tothetwolots286&315? A. No, sir; and no man has ever seen any such deed in his possession. 1 know that 1 never delivered him any, never witnessed any. and never had any land transactions with him whatever, and any statement to the contrary is false. "