Tallman v. Dutcher

7 Wend. 180

• Court: New York Supreme Court
• Decided: May 15, 1831
• Status: Published

Opinion

By theCourt

Nelson, J.

The court certainly erred in ex-the witness Losee, after the offer of release from the "plaintiff in error; for if before interested, on the ground that he would be bound to make contribution, the release would have removed it. The defendant was in time in releasing the interest of the witness when the objection was made to his evidence on that point, as was offered in .this case- The decision of the court was equivalent to an exclusion.of the entire evidence of a competent witness for the defendant.

A party in consequence of rather modern practice, is not bound to establish the interest of a witness, in order to exclude him upon a preliminary inquiry before he is sworn in chief; and if his interest appears in the course of his examination, the objection may be taken; Peake’s Ev. 195 ; 6 Johns. R. 538; but this relaxation of the ancient practice would be very unjust and unreasonable, if it did not take along with it the right of the adverse party, whenever the exception was taken to remove it.

The discretion which courts should always be allowed to exercise, in trying causes as to re-examining witnesses dismissed from the stand, has no application to this question.

Judgment reversed, and venire de novo awarded.