Durnford v. Clark

1 Mart. 202

Opinion

By the Court,

Martin, J. alone.

I have never known this practice to prevail, and I can. not, on this dictum, set the verdict of the jury aside. It must be understood as a rule of discipline, introduced for the purpose of preserving regularity, in the admission of testimony. Every witness must be sworn to tell the whole truth, and if the defendant is not allowed to examine the plaintiff’s witness, at first, to any point material to the defence, he has certainly a right to call back the witness and examine him while introducing his own testimony. If, therefore, the defendant’s counsel, in the present case, might, at any stage of the trial, have compelled the witness to disclose the fact which has been drawn during the cross-examination, no injury has been done to the plaintiff, by obtaining this part of the evidence, a little earlier than in the regular way.

Farther: the witness closed the plaintiff’s testimony, and J cannot tell that there was any necessity for the defendant’s counsel to dismiss him from the cross-examination and instantly call him as his own witness. Lex neminem cogit ad vanseu impossibiha.

Motion Overruled.