Powell v. Tuttle — 3 Sarat. Ch. Sent. 99

Majority

p. 99

Thomas Powell et al. v. Stephen Tuttle et al.

Headnote

Practico as to examining new witnesses after examination closed.

J. A. Collier, for complainants; IÍ. Gray, for defendants.

The chancellor decided that where a party applies for leave to ex- . . , , , . , :amme witnesses whose names have not been furnished to the . . . ■examiner or to the adverse party according to the provisions •of the 83d rule of this court, upon the ground that the materiality of such witnesses has been discovered subsequent to the examination of all or any of the witnesses of the adverse party, a general affidavit of the party that the testimony is material as he is advised by counsel and verily believes is not sufficient. But he must state in his affidavit, briefly, the nature and substance of what he expects and believes he will be able to prove by such witnesses; not only to prevent evasions of the rule, but also to enable the court to insert such provisions in the order allowing such new witnesses to be •examined, as will be necessary to protect the rights of both parties.

That where, after the examination of witnesses is .closed,

p. 100

üithcr party applies to the court for leave to examine witnesses whose names had not been furnished previous to the commencement of the examination if the party making the application, is permitted to examine the new witnesses the adverse party previous to the resumption of the examination of witnesses before the examiner, must be allowed to furnish the names of new witnesses on his part and to examine them, to rebut or explain the anticipated testimony, or to support the testimony of his other witnesses. And he must also be permitted to re-examine any of his witnesses already examined, if necessary to rebut or explain the testimony which may be given by the new witnesses. But if he elects to examine new witnesses whose names have not already been furnished, the party who is permitted by the order of the court to examine the witnesses particularly named in his application, should also be -at liberty to furnish the names of, and examine other witnesses to explain or rebut the testimony of the new witnesses introduced on the part of his adversary.

The part of the order which is appealed from, reversed and modified, with costs to abide the event.