Cushing v. Billings

56 Mass. 158

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1848
• Status: Published

Opinion

Shaw, O. J.

We take it to be well settled, that the order in which witnesses shall be called, is a matter of discretion with the court. It is sometimes necessary to examine a witness after the evidence is regularly closed; and it is important, that a judge should have the power to allow it to be done. Such a proceeding may save the necessity of a new trial. So, as to the number of witnesses, where the testimony may be extended almost indefinitely, as in the case of evidence to usage or character. The case of handwriting is very similar, because, in regard to almost any man of business, hundreds of persons may be qualified, by having seen him write, to give an opinion which would be evidence. In such a case, suppose a great number of witnesses to be called to prove the genuineness of a signature j and when as many of them have testified, as are necessary, in the opinion of the judge, to make a case, the court interferes and stops the further introduction of witnesses; if, then, as great or a greater number is called and introduced on the other side, to testify against the genuineness of the signature, the judge has a discretionary power to admit further witnesses to be called in its support. The orderly course of proceeding requires, that the party, whose business it is to go forward, should bring out the strength of his proof, in the first instance ; but it is competent for the judge, according to the nature of the case, to allow a party who has closed his case to intro-, duce further evidence. This depends upon the circumstances of each particular case, and falls within the absolute discretion of the judge, to he exercised or not as he may think proper.

Exceptions overruled