Robinson v. Turner ( 1852 )

Opinion by

Kinney, J.

It appears from the bill of exceptions taken on the trial of this cause that the plaintiff produced one Nathan Turner as a witness to prove the claim of plaintiff. The defendant then introduced evidence tending to prove that 'said Nathan Turner was a partner of said plaintiff in the purchase, of hogs, and interested in securing the money sued for as- Suck partner. Amongst other things shown, it appeared that'said Nathan Turner had claimed or pretended to’ be a partner and had spoken of his loss in such pork business, and therefore the plaintiff called said Nathan Turner to-A¿plain such statements on his voir-dire to which the defendant objected, but the court overruled such objections and permitted the witness to testify. It is claimed that in this the court erred. After the witness had been called and examined, and the party against whom he had testified had shown his interest aliunde., could the witness be then recalled by the party first offering him and sworn on.his voir-dire as to his interest? This is the question presented by the bill of exceptions. We think the witness could not be re-called to disprove by his own oath the evidence establishing his Interest. The interest of the'witness being shown aliunde, it is the duty of the court to rule out his testimony. But if he is permitted to restore his testimony upon his vow-dOre, the effect is the same as though he were testifying in chief on the merits of the case.'- It would be unfair then to permit an interested witness to testify that he had no interest. His interest being once established aliunde, he is as incompetent to restore himself, as. he would be to give evidence in chief. But, if when the witness was first called, obj ection had been made on the ground of interest, and being put on his voir-dvre he had purged himself of any interest, the objecting party would have been bound by Ms testimony, and it has been held that he would be precluded from after-wards showing any interest except by the testimony of the witness himself. But in this c'ase the party shows the interest independently of the witness, which he had a right to do, and as we have said, the witness could not be recalled by the party offering him to explain or purge himself of such interest. The court erred in overruling the objection, and the judgment is reversed and the cause remanded for trial denovo.

G. Negus, for appellant. Slciyle <& Acheson, for appellee.

Judgment reversed.