Page:Harvard Law Review Volume 12.djvu/454

434 434 HARVARD LAW REVIEW. uncontradicted testimony, the court must set aside a verdict which is not in accord- ance with such testimony. The inquiry in all cases where a verdict is sought to be set aside, is whether the jury acted as reasonable men in coming to their conclusion. The Metrop. Ry. Co. v. Height, ii App. Cas. 152. And it cannot be said that the jury, in failing to be convinced by testimony, must have acted unreasonably, simply because such testimony was uncontradicted. Any such view confuses unimpeached testimony with proof. It denies to the jury its acknowledged right to pass upon the credibility of witnesses and, while acting within the bounds of reason, to disregard any testimony that fails to convince. Evidence — Credibility of Witness — Contradicting One's Own Wit- ness. — In an action on a lease, plaintiff alleged that the instrument was in the pos- session of defendants. To prove this, and the original execution, plaintiff called an agent of defendants with whom he maae the lease and in whose possession he had last seen it. Later, defendants called the same witness, who testified that the paper was not a lease. On cross-examination, plaintiff, to discredit the witness, proposed to ask him whether he did not, after soliciting the lease, tell others that he had leased the land. Held, that the question should have been allowed. Morris v. Guffey, 41 Atl. Rep. 735 (Pa.). The lower court refused to allow the question, on the ground that, by calling the witness, plaintiff made him his own witness, and therefore could not discredit him. That a party cannot discredit his own witness is well established. Pollock v. Pollock, 71 N. Y. 137. The higher court said that as it was necessary to call the witness to account for not producing the lease, plaintiff did not give credit to him. Where the witness is not one of the party's own selection, but is one selected by the law as neces- sary to prove a particular fact, as in the case of a subscribing witness to a deed or will, he can hardly be considered as the witness of the partv calling him, and therefore his truthfulness may generally be attacked. Crocker v. Agenhroad, 12.2 Ind. 587. The witness in the principal case was not one whom the law obliged plaintiff to call, and the ruling seems to be an unwarranted extension of the exceptior^, that will to a great extent destroy the force of the original rule. Insolvency — Discharge — Action by Foreign Corporation. — Plaintiff, a foreign corporation, established- an office in Massachusetts, and procured a license for the sale of its goods. It also, in accordance with the law, appointed the commissioner of corporations its attorney, upon whom all lawful process in any action against it might be served. Defendant bought goods of plaintiff at its local office, and after- ward obtained a discharge in insolvency under the Massachusetts insolvency laws. Plaintiff did not prove its claim, but subsequently brought an action. Held, that the discharge is not a bar to the action. Bergner &" Engel Brewing Co. v. Dreyfus, 51 N. E. Rep. 531 (Mass.). The terms of the insolvency statute, as well as of the discharge itself, are broad enough to bar the plaintiff's claim. Pub. St., c. 157, sec. 81. But the United States Supreme Court has held that a discharge in insolvency by a State court is not a bar to an action by a creditor of another State who does not come in to prove his claim. Bald- win V. Hale, I Wall. 223. The grounds urged for exception in the present case are that the plaintiff had an office in the State, held a license granted by the State, and had appointed the commissioner of corporations its attorney on whom lawful process might be served. It is settled in Massachusetts that a creditor of another State, merely because he does business in Massachusetts, is not barred by a discharge of his debtor, if his claim is not proved in the insolvency proceedings. Regina Flour Mill Co. v. Holmes, 156 Mass. 11. A corporation has its domicile in the State which created it, and consequently it has no domicile elsewhere. Boston Investment Co. v. City of Boston, 158 Mass. 461. On principle it seems that a discharge should bar a claim by a corpora- tion having a regular place of business in the State on a contract made within the State. However, the decision is within the principle of the earlier Massachusetts cases, and is correct on authority. Insurance — Construction of Accident Policy. — An accident insurance policy contained a provision that the insurance did not extend to death resulting from poison. The insured took poison under the mistaken belief that it was harmless medi- cine. Held, that the case is covered by the excepting clause and the insurer is not liable. McGlather v. Prov. Mut. Ace. Ins. Co., 89 Fed. Rep. 685 (C. C. A., Eighth Cir.). One judge dissenting. The decision is supported by the weight of authority, although in several jurisdic- tions a contrary result has been reached. Early v. Standard -Life &* Ace. Ins. Co., 71