Drake v. Eakin

10 Cal. 312

• Court: California Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Terry, C. J., delivered the opinion of the Court

Baldwin, J., and Field, J., concurring.

On the trial, defendants called one of plaintiffs as a witness; after his examination in chief, plaintiffs’ counsel proposed to examine the witness generally as to the matters in issue. To this the defendants objected, and the objection was sustained by the Court, to which plaintiffs excepted.

The ruling of the Court was clearly erroneous. The Practice Act (§ 421) provides : “ A party examined by an adverse party, as in this chapter provided, may be examined on his own behalf in respect to any matter pertinent to the issue. But if he testifies to any new matter not responsive to the inquiries put to him by the adverse party, or necessary to explain or qualify his answer thereto, or to discharge, when his answer would charge himself, such adverse party may offer himself as a witness on his own behalf in respect to such new matter, and shall be so received.”

Judgment reversed, and new trial ordered.