
    [Philadelphia,
    April 4, 1825.]
    COWDEN and others against REYNOLDS.
    IN ERROR.
    If, on the trial of a feigned issue, to determine the validity of a paper purporting to be a will, the party who sets up the paper as a will, calls one of the subscribing witnesses, who swears, that at the time of the execution of the instrument, the testator was intoxicated and incapable of making a will, he may give in evidence the probate before the register, for the purpose of showing that the witness swore differently at that time.
    The writing alleged to be a will, should be read to the jury, not as evidence,, but to inform them what it is they are to try.
    Writ of error to the Court of Common Pleas of Philadelphia county, in a feigned issue, directed by the Register’s Court of the county of Philadelphia, to try the validity of a writing purporting to be the last will and testament of John Hooker Reynolds, deceased. John Cowden and others, the executors named in the alleged will, were plaintiffs below, and Sarah Reynolds, the widow of the deceased, defendant. On the trial, the plaintiffs offered to give in evidence the paper in controversy, without other proof than the probate made by two subscribing witnesses in the register’s office. This was objected to by the defendant’s counsel, and the court overruled the evidence. The plaintiff then examined William W. Cress, one of the subscribing witnesses, who, after having proved his own attestation to the paper, testified, that George W. Smith, since dead, and Joseph Rice, who was in court at the time the evidence was given, also subscribed the instrument as witnesses. Having giyen this evidence, the counsel for the plaintiffs again offered the paper in evidence, but the court refused to permit it to be read, it not being, in their opinion, proved by two witnesses, as required by law. Joseph Rice was then called, and examined by the plaintiffs. He swore that the testator was intoxicated at the time he executed the will, and not capable of knowing what he did. Upon this, the counsel for the plaintiffs called and examined Edmund Rogers, the deputy register of wills, who swore, that the writing in question was proved before him by the oaths of the subscribing witnesses, and that the said Joseph Rice took the usual oath administered to witnesses, on the probate of a will; after which the counsel for the plaintiffs produced, and offered to give in evidence the probate before mentioned, made before the said Edmund Rogers, in order to show, that the said Joseph Rice had sworn that the testator was of sound mind, at the time he executed the writing set up as his will. To this evidence the counsel for the defendant objected, and the court sustained the objection, and overruled the evidence.
    The counsel for the plaintiffs excepted to the opinion of the court On the several points above stated.
    Dr. Edwin Jl. Jlllee was then called as a witness, who stated such facts as satisfied the court, that the paper ought to go to the jury for their consideration, and it was accordingly read to them.
    After the evidence on both sides was closed, and the plaintiffs had dismissed their witnesses, the defendant’s counsel called Joseph Rice to give further evidence of what took place in the register’s office, at the time of the probate of the will and of other facts, which need not be stated. The counsel for the plaintiffs objected to the examination of the witness, but a majority of the court, the president dissenting, admitted the evidence, and a bill of exceptions was tendered to their opinion,
    
      Dallas ánd Purdon, for the plaintiffs in error.
    The requisition of the law, calling for proof of the execution of the paper in controversy as a will, was complied with, when the plaintiffs had proved, by one of the subscribing witnesses to it, that he saw the testator execute it, and that one of the other subscribing witnesses was present, subscribed his name, and was dead. If a subscribing witness be dead, or out of the jurisdiction of the court, his handwriting may be proved. Eystavv.You.ng, 3 Yeates, 514. Walmesly’s Lessee v. Reed, I Sm. L. 40.
    
      2. The court below erred, in rejecting the will after two subscribing witnesses had sworn to the execution of it. The circumstance of one of the witnesses having testified, that the testator was intoxicated at the time, ought not to have prevented the paper from being read. How far he was incapacitated to make a will, it was for the jury to determine. Lewis v. Lewis, 6 Serg. & Rawle, 494. The will, it is true, was afterwards permitted to be read, on the production of other evidence; but the plaintiffs were injured by the injurious impressions made upon the minds of the jury by its rejection. If evidence bo improperly admitted, the error is not cured, by the court’s telling the jury not to regard it Nash v, Gilkeson, 5 Serg. & Rawle, 354. Shaeffer v. Kreitser, 6 Binn* 431.
    3. The plaintiffs clearly had a right to give the probate in evidence, to show that the witness’s oath on the trial was contradicted by the oath he had taken before the register. Phill. Ev. 214.
    4. After the evidence was closed, and the plaintiffs had dismissed their witnesses, the court ought not to have permitted the defendant to re-examine a witness. It is true, the court possess a discretionary power, in respect to the examination of witnesses; but this discretion is not to be exercised to the manifest injury of a party. 5 Binn. 488.
    
      Brewster and Jltherton, for the defendant in error,
    were requested by the court to confine themselves to the third exception. They contended, that it was not competent to the plaintiffs to contradict their own witness, except as to some particular fact. This evidence went to show a general contradiction in the evidence of the witness, which amounted to an attack upon his character for veraeity. This is never permitted. Besides, the probate before the register had no official character, because it was appealed from. If, however, an error was committed, it was cured; as the will, with the probate, afterwards went to the jury.
   The opinion of the court was delivered by

TilchmaN, C. J.

The argument, which has been urged against admitting the probate in evidence, is, that the party who calls a witness, shall not be permitted to discredit him, on finding that his testimony is against him. To a certain extent, this is true,™ but the rule admits of exceptions. The party who calls a witness, shall not be permitted to impeach his general character, because that must be supposed to have been known before he was called; and it is very unfair to call a man of bad character, with a view to avail yourself of his evidence, if it proves favourable, at the same time that you have the means of discrediting him, if it turns out unfavourable. Such conduct is a fraud on the administration of justice, and therefore not to be tolerated. But did the plaintiffs attempt to act such a part? In the first place, it may be remarked, that Joseph Rice could hardly be called the plaintiffs’ witness. They did not call him voluntarily — but, being one of the subscribing witnesses, the plaintiffs were forced to call him. But even if he had been strictly the plaintiffs’ witness, there was no attempt to impeach his general character, but only to show that he had contradicted himself, and thereby to lessen the force of what he had sworn in court. There is no rule of law against this, — and hard indeed would be the case of one who calls a witness, expecting that he would swear the truth, if, upon finding himself deceived, he may not shorv that the witness had told a different story at another time. This is not the case of calling a witness known to be of bad character. On the contrary, this witness was supposed to be of good character, but his testimony was a surprise on the plaintiffs; and, even then, the plaintiffs did not offer to prove him of general bad character, but only that he had contradicted himself. This, undoubtedly, they had a right to do, and therefore this probate ought to have been admitted in evidence.

There were some other exceptions, not necessary to decide, as to the admission of the writing purporting to be the will, to be read in evidence to the jury. It is proper, however, to say, that as the issue was for the express purpose of frying, whether that writing was or was not the will of John II. ^Reynolds, it should have been read to the jury of course, in order to inform them what it was they were to try; but there would have been an absurdity in offering it as evidence, because it could not be evidence of its own validity. When this cause comes to trial again, therefore, the writing set up as the will, should be read to the jury merely for the purpose of letting them understand what it is they are ■ to try. It is the opinion of the court, that the judgment should be reversed, and a venire de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  