Butler v. Butler

3 Day 214

Opinion

By thf, Court, Griswold, Judge,

dissenting.

It is a settled rule, that the interest of a witness may be shown, by the testimony of others, or from the witness himself: and the party challenging has his choice of either mode of proof, but not of both; for it is not reasonable, that the party should he permitted to sport with the conscience of the witness, when he has other proof of interest. It is immaterial whether a witness be examined as to his interest under the form of the voire dire, or under the general oath to witnesses: in either case, an appeal is made to him under oath.

Depositions are by law admitted from necessity, or tor conveniency, and the evidence thus taken is. as far as possible, to be subject in the rules of oral evidence. The same necessity for appealing to the win.ess for proof of ids interest exists, whether he deposes before A magistrate) or testifies in open court; and if not permitted, the evils of trial by depositions will be greatly increased. Such inquiry, then, is proper, and the consequence must be the same as if made in court.

We are, therefore, of opinion, that the superior court were correct in excluding further proof of interest; and that a new trial ought not to be granted.

New trial not to be granted.