Diversy v. Will

28 Ill. 216

• Court: Illinois Supreme Court
• Decided: April 15, 1862
• Status: Published

Opinion

Walkeb, J.

This record presents the question whether a witness, when he is objected to, on account of interest, and other evidence than his voir dire, is introduced, can purge himself by his own evidence. When a witness is offered, on the trial, the opposite party may, before the witness is sworn, show his interest by other witnesses, or he may make him his own witness to prove the fact. But when other evidence has been resorted to, can the party offering him rebut that evidence, by the witness himself? It is the well settled doctrine, in both the British and American courts, that when resort is had to the voir dire, and it fails to establish an interest, the party objecting is concluded from resorting to other evidence to rebut his testimony. And when other evidence is resorted to, the proposed witness cannot be examined to prove the alleged interest. And it seems that when other evidence is heard, the proposed witness cannot be introduced for the purpose of disproving the interest. 1 Greenl. Ev. § 423; Mott v. Hicks, 1 Cow. 513. If the voir dire is resorted to, it alone must determine the issue. So of other evidence. When one of the modes is adopted, it alone must govern and determine the issue. When the issue is made, the party objecting holds the affirmative, and he may waive the supposed interest of the witness, and introduce him to prove the fact, or he may exclude him altogether, at his option.

The court below did right in excluding Eose from testifying on the question of his interest in the event of the suit, and the evidence of the other witness proved that he had an interest in the suit, which disqualified him from giving evidence in chief, and the judgment of the court below must be affirmed.

Judgment affirmed.