Hawkins v. Macy

Headnote

Evidence—testimony taken de bene esse — Stipulation— construction of.

The testimony of H. was taken by consent, under a stipulation that the same might be used on the trial, " subject to all legal objections as to competency ” and annexed to the evidence was this stipulation ; “We consent that the foregoing testimony be received on the trial, subject to objections as aforesaid, and also subject to the legal objection to the particular questions in which questions answers were taken down, and it is hereby stipulated that either party may use the foregoing testimony on trial.” H. was present at the trial and sworn and examined as a witness. Held, that the exclusion of the testimony Stipulated about on a subsequent trial on the ground that the party offering it did not show his inability to produce H., and that tho stipulation related to only one trial, was error.

Appeal by plaintiff from a judgment in favor of defendant, and from an- order denying a new trial in an action brought by George W. Hawkins against Daniel 0. Macy.