Campbell v. Campbell

73 A. 354, 30 R.I. 63, 1909 R.I. LEXIS 3

Opinions

Johnson, J.

The plaintiff filed, in the Municipal Court in the city of Providence, his claim against the estate of James Campbell, his father, late of said Providence, deceased, for 115,550. This claim was made up as follows: $10,000, dúe on a promissory note given for work and labor, and money loaned by the plaintiff to his father; $4,050, due from his father for two years’ and three months’ wages, at $150 per month, from April 1, 1902, to June 28, 1904; and $1,500, due for money loaned his father from April 1, 1902, to June 28, 1904. The estate having been declared insolvent, and commissioners appointed, said claim of $15,550 was in part'allowed by the commissioners, to the extent of $2,700 for work and labor for two years and three months, at the rate of $100 per month. From this allowance the plaintiff appealed to the Superior Court, where the jury awarded him a verdict for $3,024.

The plaintiff filed a motion for anew trial, which was denied; and the case is now before this court on the plaintiff’s bill of exceptions — the exceptions being as follows:

1. To certain rulings of said justice at the trial of said action in respect to certain evidence, as shown on pages 133 and 252 of the transcript of testimony filed herewith.

2. To the ruling of said justice at the trial of said action, not permitting a certain witness to testify, as shown on pages 602, 603, 610, 611, and 612 of said transcript of testimony filed herewith. '

3. To the decision of said court denying the plaintiff’s motion for a new trial, which motion was based upon the following grounds:

(a) That said verdict and finding was against the law.

(b) That said verdict and finding was against the evidence and the weight thereof in that said verdict and finding should have been for a much larger sum.

(c) That said verdict and finding was against the evidence and the weight thereof in that the jury should have found, in addition to the amount they did, the amount of the note in said cause, and interest thereon from the date of said note.

(d) That said verdict and finding was against the law and the evidence and the weight thereof.

. (e) That the amount of said verdict and finding was entirely inadequate and insufficient.

(f) That the appellant had discovered new and material evidence which he had not discovered at the time of the trial of said cause, and which he could not have" discovered at said time by the exercise of reasonable care.

We think that the exception secondly set out in the bill, viz.: “ To the ruling of said justice at the trial of said action, not permitting a certain witness to testify, as shown on pages 602, 603, 610, 611, and 612 of said transcript of testimony filed herewith,” should be first considered. ,'

To understand the exception, it is necessary to recur to page 610 where the witness was offered and the objection made, The record follows:

“Mr. WatermaN — Mr. Bradford Campbell.

“Mr. Champlin — I shall have to object to the testimony of this witness. Mr. Waterman made an agreement with us and with the court last night, and I shall insist that that agreement is kept.

“Mr. Waterman — Now, if your honor please, at that time I said there might be one thing that I had overlooked in the testimony, in the haste of closing up. There is one thing that I have overlooked, and that is the statement of Mrs. Rebecca Campbell as to Mr. Bradford Campbell coming up at one time and getting the signature to a note, and that is what I want to examine him about. I will limit my examination to that, although I would like to examine him as to Mr. James Campbell's condition during the time mentioned. We didn’t have him here yesterday because, as I said, I thought we had enough witnesses to fill the day up, and we did not go to undue expense to get him in.

“Mr. Champlin — This man is a son of Elisha J. Campbell, lives with him, and they could have had him here any time they chose. Last night your honor told Mr. Waterman that unless he would name the witnesses, you would go ahead on this case last night, and you waited for him to name the witnesses. He insisted that he would put on whatever witnesses he could get. Your honor told him then you would go ahead with the trial last night unless he would name them, and you would hold him strictly to the agreement. He finally said that he would name three persons, and then eventually he got up and said he would take one of those persons out, and he would put on only those two persons, and he named those two persons. With that information we had from him, and with your honor’s statement that you would hold him strictly to his agreement, we have made no preparation whatever to meet anything except the testimony of those two witnesses. We are not bound, under that agreement and under the ruling of your honor, to meet the testimony of this witness. He is going to contradict, perhaps, the testimony of Mrs. Rebecca Campbell. Mrs. Rebecca Campbell’s deposition is in here. It would put us in the position to bring her in at the twelfth hour, and either make us go to the jury with an unfinished case, or ask your honor to take the deposition of Mrs. Rebecca Campbell.

“By the Court — I shall hold you to your agreement, Mr. Waterman.

“Mr. Waterman — Will your honor note my exception?

“By the Court — I note your exception.”

As the court’s ruling refers to and is based upon an agreement made by Mr. Waterman, the appellant’s attorney, it becomes necessary to find out what the agreement was. Recurring to page 602 of the transcript of evidence, we find the following record:

“At 4:50 P. M., counsel for appellant asks that the trial of the case be adjourned until the following morning, and states that he has been unable to reach other witnesses whom he intends to procure in behalf of the appellant in rebuttal.

“ By the Court — How many more witnesses are you going to call to-morrow?

“Mr. Waterman — We expect to get Mr. Collins, of course, Mr. Hawkins, and Mr. Yial we intend to see, and — that is all that I can say definitely about now.

“By the Court — I shall hold you pretty rigidly to your number of witnesses to-morrow because I am ready to go on now, and' I certainly, of course, you understand, the situation. I do not desire to handicap your case in any way, but it is a simple necessity on my part. I want a distinct understanding before we separate to-night, the case is to be held down very close to-morrow morning on the number of witnesses. I don’t think I am unfair in asking you to specify now exactly what you propose to do in the morning.

“Mr. Waterman — In order to expedite the matter, if your honor please—of course, I will state that I didn’t know the court was going to sit overtime to-night, and I thought we had enough testimony to fill up the time until adjournment, and did not like to ask business men, who would not be needed to-day, to come twice. In order to expedite the matter, I will agree to put on simply thosq that I know about—Mr. Collins and Mr. Hawkins. They will both testify as to his condition.

“By the Court—Now, then, gentlemen on the other side, you understand what you have to meet, and I shall expect you to go on with your case, too, as soon as they have finished theirs. On that condition, we will stop now till half-past nine to-morrow morning.” . . .

(1) It is well settled that the trial court, in the exercise of a sound and reasonable discretion, may limit the number of witnesses that may be allowed to testify on a given point. “ If it were otherwise, the length of a trial could be protracted to an unreasonable and unwarrantable extent, and the time of the court consumed by the useless and unnecessary reiteration of testimony.” Outcalt v. Johnston, 9 Colo. App. 519. “But the discretion must be reasonably exercised, so as to deprive the parties of no material rights, and an abuse of it in this respect will be reversible error.” Burhans v. Norwood Park, 138 Ill. 147; Ragsdale v. Southern Ry. Co., 121 Fed. 924; Jones v. Glidewell, 53 Ark. 161; Huett v. Clark, 4 Colo. App. 231; Union National Bank v. Baldenwick, 45 Ill. 375; Mueller v. Rebhan, 94 Ill. 142; Mergentheim v. State, 107 Ind. 567; Butler v. State, 97 Ind. 378; Kesee v. Chicago, etc., R. Co., 30 Iowa, 78; State v. Pratt County, 42 Kan. 641; Burt-Brabb Lumber Co. v. Crawford, 27 Ky. L. Rep. 798, 86 S. W. Rep. 702; Cushing v. Billings, 2 Cush. (Mass.) 158; State v. Whitton, 68 Mo. 91; Biester v. State, 65 Neb. 276; Anthony v. Smith, 4 Bosw. (N. Y.) 503; Powers v. McKenzie, 90 Tenn. 167; Meier v. Morgan, 82 Wis. 289; Bunnell v. Butler, 23 Conn. 65; Nolton v. Moses, 3 Barb. (N. Y.) 31.

“Where the point in dispute is collateral to the main issue, as in the case of impeaching or sustaining a witness, or in the case of impeaching or sustaining the character of a party whose character is not directly in issue, the trial court has wide discretion in the matter of limiting the number of witnesses.” 8 Am. & Eng. Ann. Cas. note p. 829.

In St. Louis R. Co. v. Aubuchon, 199 Mo. 352, 8 Am. & Eng. Ann. Cas. 822, at p. 823, the court says: “ On collateral and incidental issues, as for example the general reputation of a witness, or an issue upon a motion for a change of venue, or for costs, etc., it is a wise and settled rule to allow trial courts wide discretion.” Outcalt v. Johnston, 9 Colo. App. 519; Bunnell v. Butler, 23 Conn. 65. See collection of cases in note, 8 Am. & Eng. Ann. Cas. p. 829. Great latitude is also allowed trial courts in limiting the number of expert witnesses on a single point. See cases collected in note, 8 Am. & Eng. Ann. Cas. p. 829. A distinction has, however, been made where the fact to be established is not sworn to directly by witnesses, but must be established by proof of other facts from which the existence or non-existence of the fact in controversy may be inferred.

In Green v. Phœnix Mut. Life Ins. Co. 134 Ill. 310, the court says: “ One of the important questions involved at the hearing was whether, at the time of the execution of the trust deeds, and the subsequent sale thereunder, and from thence to shortly before the filing of the original bill, appellant had been and was insane. . . . The law presumes the fact of sanity, and hence the burthen is cast upon the party alleging insanity to establish it by a preponderance of proof. No rule can be formulated as to the quantum of evidence necessary to establish insanity, otherwise than that it must be sufficient to overcome the legal presumption of sanity, and to overbalance the testimony tending to sustain such presumption. This preponderance of evidence necessafy to satisfy the judicial mind does not, as a matter of course, depend upon the number of witnesses testifying on either side, but when all are apparently possesssed of the same means of knowledge, and are equally intelligent and credible, the greater number must generally prevail. The trial court must, of necessity, exercise discretion as to the number of witnesses to prove a given fact that is not disputed, or that is merely collateral to the main issue, depending very much upon the nature and subject matter of the inquiry. . . . The phases of insanity and the facts and circumstances which may tend to establish, and are proper for consideration, are so numerous and'varied that a great number of witnesses may be required to determine the fact in issue. And it is found that persons of equal intelligence differ in opinion as to the inference to be drawn from such facts and circumstances. In such cases great latitude has always been allowed, and should prevail. ... It must be apparent that the limitation of witnesses in such cases to an equal number on each side, as was here done, even supposing they were of equal credit, and had equal means of knowledge, would be to defeat the party holding the affirmative of the issue. The court may undoubtedly limit the number of witnesses called as experts and in some cases for the purpose of impeachment. ... It should, however, be understood that in such cases the exercise of the discretion must be reasonable. The court may not arbitrarily determine the number of witnesses that may testify in such cases.”

In Galveston, etc., R. Co. v. Matula, 79 Tex. 577, the court says: “There must exist in every court the power to determine when evidence purely cumulative shall cease, or there would be no limit to trials, and the exercise of such a discretion would be no ground for reversal of a judgment unless it was made to appear that this had been abused. Such a power is one, however, to be exercised with the utmost care; and in a case where there is little or no controversy as to a given fact, such evidence might properly be cut off where it would be improper to do so when the evidence was greatly conflicting. In a case in which a fact to be established is not sworn to directly by witnesses, but must be so established by proof of other facts from which the main fact is to be inferred, then evidence of different facts from which the inference may be drawn is not strictly cumulative. From the bill of exceptions it may be inferred that the court below refused to hear further evidence tending to prove the controverted fact or 'subject’ because other evidence, although not to the same facts, had been introduced tending to prove the same issue. If this was the ruling it was erroneous.”

Ward v. Dick, 45 Conn. 235, was an action for slander, in charging plaintiff with dishonesty. Defendant offered evidence of plaintiff’s bad reputation in that respect. The court limited him to ten witnesses. Held ground for granting a new trial. The court said: “The subject matter of the inquiry was the value of a reputation. To the law this is a tangible thing; it is property in the highest sense; and we are not aware that in actions for injuries to property courts have assumed the right, either to prevent the plaintiff from establishing the value thereof at the highest possible point to which he could carry it by the power of testimony, or the defendant from diminishing it by the same means; and actions for injuries to character are not exceptions.

“ It is true that in Bunnell v. Butler, 23 Conn. 65, this court sanctioned a limitation upon the number of witnesses to be heard in the matter of the impeachment of the character of a witness for truth; but that character was not the ground of the action. It could at most only affect the weight to be given to the testimony of one witness; and he may have been one of many to the same point, and not at all essential to the support of that; and the point, if established, may have been of very little importance. And in other instances courts have restricted the number of witnesses giving opinions upon matters collateral to the main issue. Character, for the purposes of a judicial investigation, is the aggregate of opinions expressed concerning an individual by those who know him; and a name good or bad is most firmly established where the testimony of credible witnesses covers the widest range of the life of the person who bears it. Therefore, where as in the the case before us the life of the plaintiff has been broken into sections by changes of residence from one locality to another, the defendant was entitled to the privilege of showing that in each there was a preponderance of opinion adverse to his good name. Again, it may often happen that a few only can be found on the one hand to sustain or on the other to disparage the name of an individual, while the great body of opinion is iai each case on the other side. In such instances the effect of a limitation is to render it easy for the few to make it appear to the jury that public opinion rests at the equipoise upon the name in question, when the fact is quite otherwise.”

In South Danville v. Jacobs, 42 Ill. App. 533, the court said: “We are aware of no rule authorizing the court to limit the number of witnesses a party may introduce, unless it be upon some question collateral to the main issue. If a fact is sufficiently proven and is not controverted, or if it is expressly admitted by the adverse party, a court may, in the exercise of a sound discretion, refuse to allow its time to be wasted in hearing further evidence. When, however, a controlling fact is controverted, each party has the right to have all witnesses heard who have knowledge of facts and circumstances bearing upon the contested point, and to deny the right is error.”

And in Pritchard v. Henderson, 3 Penn. (Del.) 128, the court held that a rule of the court which permits but six witnesses to be examined on a side as to a single fact, does not apply where the matter inquired about is the mental condition of the testator. In such case the question relates, not to a single point, but to a condition that grows out of a number of observations. See also Nelson v. Wallace, 57 Mo. App. 397; Fisher v. Conway, 21 Kan. 18; Barhyte v. Summers, 68 Mich, 341; Union Natl. Bank v. Baldenwick, 45 Ill. 375.

The case at bar differs from the cases of limitation to a given number of witnesses on each side upon a particular point, but as the court's ruling had the effect to limit the number of witnesses for the plaintiff in rebuttal, we have examined a great many cases in which, for one reason or another, the number of witnesses has'been limited by the court.

From our examination of the cases, the net result appears to be that each case must be decided upon its own special facts and circumstances. The court necessarily has discretion to limit the number of witnesses upon a particular point. If it were otherwise, a trial could be drawn out to an unreasonable and unwarrantable extent and the time of the court consumed by; the useless reiteration of testimony. This discretion must, however, be so used as not to impair the rights of the parties. There must be no abuse of discretion, and if there is, it is re--versible error.

The record shows that the appellant’s counsel was, at 4:50 P. M., practically at the usual time of adjournment, confronted with a demand, on the part of the court, that he go on with the case that evening, when he had no other witnesses present, or name to the court the witnesses whom he would call the next morning. To this was added the statement, “ I shall hold you pretty rigidly to your number óf witnesses tomorrow, because I am ready to go on now and I certainly— of course, you understand the situation. I do not desire to handicap your case in any way, but it is a simple necessity on my part.” The court’s readiness to go on that night was announced, then, without any previous notice that the session would continue beyond the usual time. He said he did not want to handicap appellant’s case, “but it is a simple necessity on my part.” What the necessity was the court did not state. He also added: “I want a distinct understanding, before we separate to-night, the case is to be held down very close to-morrow morning on the number of witnesses.” If the court had positively required appellant’s counsel to go on at that time, he doubtless would have excepted, and that question would now be before us. But the requirement that he then go on with the case was used as the alternative and the inducement to compel counsel to name and thereby limit the number of witnesses he would examine upon the following day. The court then said to counsel for the appellees: “I shall expect you to go on with your case, too, as soon as they have finished theirs.” Quite a natural expectation, it would seem. No limitation of witnesses was, however, imposed upon them.

The agreement, as we have seen by the record, was relied upon by the court in excluding the testimony of the witness Bradford Campbell. Counsel for the appellee argue earnestly as to the same, and lay stress upon its being “offered by Mr. Waterman in violation of his agreement made in open court, in presence of his client.” The transcript shows the conditions clear enough, we think.

There are before us, however, in regard to the transcript, certain affidavits filed with a petition to establish the exceptions. Mr. Waterman, counsel for appellant, made an affidavit, in which he stated that the colloquy incident to the above, as reported in the transcript of evidence in said case, is only a part of the colloquy which actually took place at the time, and that counsel for the appellant “ did at the time strenuously object to being forced to choose between said two alternatives.” The affidavit of Mr. Yan Slyclc, also counsel for the appellant, is to the same effect. The court stenographer who took the testimony in the case also made an affidavit in which, after stating the request for an adjournment by appellant’s counsel on December 19th, he said “that thereupon there ensued a colloquy which I did not note stenographically and which does not appear in the proceedings reported by me; and that I again began to make notes when the court asked, ' How many more witnesses are you going to call to-morrow.’” There appears also, on page 611 of the transcript, in the remarks of Mr. Champlin, of counsel for the appellee, the following statement: “Last night your honor told Mr. Waterman that unless he would name the witnesses, you would go ahead on this case last night, and you waited for him to name the witnessses. He insisted that he would put on whatever witnesses he could get. Your honor told him then you would go ahead with the trial last night unless he would name them, and you would hold him strictly to the agreement.” While the affidavits do not add to the substance of the transcript, still, taken in connection with the statement of Mr. Champlin in the transcript itself, we think they indicate quite clearly that the submission of Mr. Waterman to the court’s action was not quite so lamb-like as counsel for the appellee now try to make it appear.

We think it is clear that the agreement was made under compulsion. The appellant’s counsel was forced either to close his case in rebuttal then and there on the testimony which he had already put in, or name the witnesses whom he would call on the following day. The trial justice also told him that he should hold him pretty rigidly to his number of witnesses on the following day. We do not think that this was a proper exercise of judicial discretion. It is' true that the plaintiff did not then and there except. But if the court's action on December 19th technically escaped being error, only because not excepted to at that time, neither said action nor its consequence, the agreement of appellant’s counsel referred to, can avail to support and make proper the ruling on the 20th of December, refusing to permit Bradford Campbell to be called as a witness. The latter ruling was excepted to, and was clearly erroneous-unless justified by the agreement referred to by the trial justice in making the ruling. The justification having failed, the ruling is not assisted thereby.

Counsel for the appellees further argue that the exception, “should be overruled because it appears by the statement of plaintiff’s counsel, above quoted, that he offered the testimony of Bradford Campbell solely to contradict the testimony of Rebecca Campbell as to the former’s going to the house of' James Campbell, at one time, and getting his signature to a note (transcript of testimony, p. 611). The ruling of the court and the exception of counsel are confined to the testimony of Bradford Campbell in that particular only. A comparison of the affidavit of Bradford Campbell with the deposition of Rebecca Campbell, shows no contradiction in that particular.

“ The testimony of Bradford Campbell was not offered for the purpose of showing that James Campbell was of sound mind", and the ruling of the court does not extend to such a. matter. But in any event, such testimony would have been cumulative. The attention of the court is called to the following excerpts from the deposition of Rebecca Campbell — ‘Q. 30. Did he (Bradford Campbell) ever stay here in the last years-of your husband’s life? A. He didn’t live here. Once in a while he would come in the evening if he went to a place of amusement. He would come here and stay occasionally over night. Q. 184. Do you remember at any time that Elisha sent his son to try to get one of those blank notes signed?' A. Yes, sir, I do. Q. 185. What was done? A. For all I know, he got his grandfather to go into the other room and sign something. I didn’t see what it was, but the boy came here and had something signed. I said, ' What is the matter now? ’ He was kind of — ’ (Objected to).” Cross-examination. “XQ. 487. When was it that Bradford Campbell came up here? A. I could not tell you. It was — I know-he came here one night, I went out. I said, ' What are you doing now? ’ XQ. 488. Never mind what he said to you. About when was it that he came? A. I don’t know what time he came. It was some time before he died. XQ. 492. Might it have been more than two years before he died? A. I should think it was all of that. All the dates I have not got. XQ. 493. What did he have? A. He said that his grandfather had signed some notes. XQ. 494. Did you see what it was? A. No, I didn’t see anything. Brad told me his grandfather had signed some notes, the signature was not right, and he wanted a good signature. That is what Brad told me. XQ. 495. Did you see the notes? A. No, I did not. That is all I know, is what he said. XQ. 496. Did you see the notes that your husband signed at that time? A. What notes did he sign— XQ. 497. When Bradford came up here? A. No, I didn’t see anything; but he said that it was some notes that his grandfather had signed, or some checks that he had signed, the signature was’nt right, and he wanted a good signature. XQ. 498. You could have seen them if you wanted to? A. I suppose so. XQ. 500. You thought Mr. Campbell was perfectly able to look out for himself? A. No, I did not. XQ. 504. Didn’t you see whether this note, or whatever was signed at that time, was blank? A. I didn’t see it at all.” Counsel then argue: “From the testimony above quoted, it appears that Bradford Campbell’s affidavit, so far as it refers to James Campbell’s signing blank notes, is unimportant, since Mrs. Campbell did not testify that Bradford Campbell ever took any blank notes to James Campbell and secured his signatures thereon. Bradford Campbell’s statement that he frequently passed the night at James Campbell’s home is in substantial accord with Mrs. Campbell’s testimony. His statement that he never noticed any peculiarities in James Campbell is in con tradiction of several of the defendants’ witnesses, particularly expert witnesses, and is simply corroborative testimony of other witnesses who testified in behalf of the plaintiff.”

As to the testimony of Rebecca Campbell, she did testify as follows: “ Q. 184. Do you remember at any time that Elisha sent his son to try to get one of those blank notes signed? A. Yes, sir, I do. Q. 185. What was done? A. For all I know, he got his grandfather to go into the other room and sign something. I didn’t see what it was, but the boy came here and had something signed. I said ' What is the matter now? ’ He was kind of — ” (Objected to.) This testimony was not very definite as to her knowledge, and may have been weakened by the cross-examination above-quoted, but there was the direct statement, in answer to the question, “ Do you remember at any time that Elisha sent his son to try to get one of those blank notes signed?” “Yes sir, I do.” The indefiniteness of the testimony of the witness on cross-examination should not deprive the appellant of the right to call Bradford Campbell to rebut the testimony given and state the facts as to his being there and his reasons for being there, and what was done by James Campbell on that occasion.

As to the statement of counsel for the appellee, that the testimony of Bradford Campbell was not offered for the purpose of showing that James Campbell was of sound mind, and that the ruling of the court does not extend to such a matter, if we turn to page 610 of the transcript we find that Bradford Campbell was called as a witness by Mr. Waterman, and objection was made by Mr. Champlin, stating the ground that “Mr. Waterman made an agreement with us and with the court last night, and I shall insist that that agreement is kept.” Mr. Waterman then made the statement quoted supra, saying therein: “ I will limit my examination to that (the statement of Rebecca Campbell) although I would like to examine him as to Mr. James Campbell’s condition during the time mentioned. We didn’t have him here yesterday because, as I said, I thought we had enough witnesses to fill the day up, and we did not go to undue expense to get him in.” The offer to limit his examination to one matter was plainly made as a con cession in order to have him permitted to testify at all. As the concession offered did not avail, we do not think the court’s, ruling can be assisted by 'it. The witness was offered generally, to testify to what he could properly testify to in rebuttal.

It is also urged that, in any event, his testimony as to the mental condition of James Campbell would have been cumulative. Upon that point we think the language of the court in Ward v. Dick, supra, 45 Conn, 235, at p. 237, is entirely in point — “ We know no better rule than to allow the party holding the weight of evidence an opportunity to bring it to bear upon the jury, when it concerns the real issue.”

An affidavit of Bradford Campbell has been filed, which reads as follows: “I, Bradford Campbell, of the city and county of Providence, State of Rhode Island, on oath depose and say that I am the son of Elisha J. Campbell; that I saw my grandfather about every week up to the fall of 1903; that I stopped over night at his house frequently up to that time; that he always appeared to me to be all right; he talked rationally and intelligently ; he seemed to understand what he was talking about. He was weaker physically than he had been; he had more of a stoop and a slower gait than formerly; he did not talk so much as formerly. I never noticed any peculiarity of his conduct at ,any time up through the year 1903. At one time I went up there to my grandfather’s to get a note and check signed. The note and check were payable to a Morris Herman, I think,of New York. They were filled out. My grandmother was in the room when they were signed. I never took a blank note or check up to him to be signed. That is the only note and check that I ever took up for him to sign.”

We can not say that the testimony of this witness, as outlined in his affidavit, would have had no effect upon the jury,, or that it might not have changed the result.

The claim by counsel for the appellee, urged at the trial below, that if Bradford Campbell contradicted the testimony-of Rebecca Campbell, it would put them “in the position to. bring her in at the twelfth hour and either make us go to the jury with an unfinished case, or ask your honor to take the deposition of Mrs. Rebecca Campbell,”-is unsound. Bradford. Campbell was called in rebuttal, and could only testify in rebuttal. If he denied the statements made by Rebecca Campbell, the appellee could not call her to reiterate her statements. As to his testifying in regard to the mental condition of James -Campbell, we do not see how the appellee would have been injured thereby as a result of any reliance by his counsel on the agreement of counsel referred to. He had to meet the testimony of other witnesses upon that point, and we can not see that he was in any worse position as to Bradford Campbell, by reason of the agreement.

In any event, if necessary for the furtherance of justice, the -court could have allowed the appellee such time to meet the testimony as the circumstances of the case demanded.

Our conclusion is that the ruling of the court refusing to permit Bradford Campbell to testify was erroneous. The exception thereto is sustained.

Our decision upon this exception renders a consideration of the other exceptions unnecessary.

Case remitted to the Superior Court for a new trial.