
    Moore versus Holland.
    A party, after resting Ms case, and after hearing opposing testimony from the other side, is entitled to introduce cumulative evidence, though in support of a point upon 'which he had previously introduced evidence; unless the Judge, before the opposing testimony was offered, had given notice that such cumulative evidence would be excluded.
    On Exceptions from Nisi Prius, Rice, J., presiding.
    Trespass.
    The plaintiff introduced several witnesses, and then rested his case.
    The defendant, before proceeding to call his witnesses, gave notice that he would insist upon requiring the plaintiff before stopping, to put in all his evidence, except what might be of a rebutting character.
    The defendant then called and examined many witnesses and stopped.
    The plaintiff then offered cumulative evidence, material further to strengthen a point in his side of the case. This evidence was excluded, the Judge being of opinion that the rule forbids the introduction of such evidence, at this stage of the trial, inasmuch as the plaintiff had, before resting his case, introduced testimony to the same point. The verdict was tor the defendant, and the plaintiff excepted.
    
      Gould, for the defendant,
    submitted that the enforcement of the rule, excluding cumulative testimony, after notice given by the adverse party, was merely at the discretion of the Court, and that, therefore, exceptions would not lie.
    
      Gilbert, for the plaintiff.
   Shepley, C. J. -

This Court has decided that, in our practice, no rule exists by which a party is prevented from introducing cumulative testimony upon any point after he has rested his case and testimony has been introduced by his opponent; while the right of the Court is recognized, (in the exercise of its judicial discretion,) to enforce such a rule after giving seasonable notice that it will be enforced. In this case such a rule appears to have been enforced, and testimony material to sustain the plaintiff’s case appears to have been excluded, without previous notice of such a rule.

Exceptions sustained. Verdict set aside and new trial granted.  