Rumsey v. Bragg , 35 Me. 116 ( 1853 )

Hathaway, J.

— The defendant objected that the witness Forbes, introduced by the plaintiff, was incompetent by reason of interest. It is immaterial whether he was so or not. The witness was introduced and examined in chief and cross-examined, and the note was introduced and read to the jury, before any objection was made to the witness. Forbes disclosed no interest by his testimony, which was not as apparent and well known to the defendant before he testified as afterwards.

When a party knows the incompetence of a witness and permits him to be thus introduced and examined without objection, he thereby waives his right to object to him as incompetent in the case.

An objection to a witness on the ground of interest, when it is known, should be made before he is examined in chief. It would be unreasonable that a party, knowing the incompetence of a witness and making no objection to him, till he had learned by his testimony whether it would be beneficial or injurious to his cause, should then be permitted to avail himself of the objection at any time, which might best suit the exigency of his case, during the progress of the trial or the examination of the witness.

The defendant’s objection to Forbes was too late. Shurtleff v. Willard, 19 Pick. 202. The defendant further objects that the Judge refused to permit him to inquire of the witness “ if he went from the defendant’s to Samuel Worth’s to sell him a pump.” The question was probably intended as introductory to something else, but its relevance to the issue is not perceived.

The refusal of the Judge to grant a postponement was in the exercise of a discretionary power, which belonged to him. And we do not perceive any good reason to disturb the verdict. Exceptions and motion overruled,

and judgment on the verdict.

Shepley, C. J., and Wells and Howard, J. J., concurred.