Jackson ex dem. Van Slyck v. Son — 2 Cai. 178

Majority

p. 178

Jackson, ex dem. Van Slyck and others, against Son.

Headnote

When a defendant cross-examines a plaintiff’s witness, he makes him his own. Therefore, parol testimony of a deed or will, disclosed by such witness, in the possession of the plaintiff, cannot be received without notice to produce it.^[1]

Lsr ejectment on a motion for a new trial. It appeared that at nisiprms\ the plaintiff claimed by descent. On the cross-examination of one of his witnesses by the defendant, it came out that the ancestor had made a will, of which the judge, vho heard the cause, admitted parol testimony, without any notice to produce it having been given.

A new trial must be awarded with costs to abide the event. "When the defendant cross-examined, be made tbe witness as much bis own as if be bad bimself called him.^[1] He, therefore, could not introduce through Him. any proof, which would not have been legal, had the witness been originally produced on his behalf. In Jackson, ex dem. Van Rensselaer v. Clark, April term, 1801, the same point was ruled. The judge, therefore, was clearly wrong in admitting parol proof of a will, as the party did not show any notice on the opposite side to produce it.

New trial.

PROMOTIONS.

Kent, J. Chief Justice, vice Lewis, elected Governor. Daniel D. Tompkins, Counsellor at Law, to the office of Judge.

(a) (a) The English courts adopt another principle; they consider a witness called by the plaintiff as his witness, even after a cross-examinatioD, being dismissed, and called back by the defendant. Dickinson v. Shee, 4 Esp. Rep. 67.