Morton v. Beall's Adm'r. , 2 H. & G. 136 ( 1828 )

Earle, J.

delivered the opinion of the Court. We are of opinion that the judgment in this case ought to be reversed, and a procedendo awarded.

The court clearly erred in refusing to direct the jury to discard the testimony of John C. Jlshcom, who was manifestly an incompetent witness in the cause. The rule now is, if it is discovered, during any part of the trial, that a witness is interested’, his evidence shall be struck out. The reason assigned for not striking out the evidence of John C. Jlshcom, appears to us to be an insufficient one. No witness in the cause gave the im~, portant testimony delivered by John C. Jlshcom, and it is presumable none of the witnesses were in possession of the facts narrated by him. If then new witnesses were to be sought for to supply his place, it could have been as well done the second day of the trial, as on the first, and the plaintiff’s predicament was in no way changed by the adjournment. Neither does there appear any thing like a disposition in the defendant, tc> ensnare his adversary, by disregarding the promise made by him, to produce no new testimony at the adjourned meeting of the court. He offered no new evidence the next day, and only objected to testimony laid before the jury by the plaintiff, on a ground which came to his knowledge, when the jury were for the day discharged.

JUDGMENT REVERSED, AND PROCEDENDO ORDERED»