
    Forrest v. Kissam, 7 Hill.
    Reported 25 Wend. 651.
    
      Witness; Evidence.
    
    On the trial of this cause before referees, after the direct examination of a witness called by the defendant was closed, they adjourned the further hearing of the cause to a future day, for their own accommodation, but with the consent of both parties; the plaintiff saying nothing at that time as to his intention to cross-examine, and before the arrival of the adjourned day, the witness died. The referees considering the examination of the witness incomplete, rejected the evidence on the direct examination, and the Supreme Court held their decision correct in that particular. But
    The Court of Errors held, that the referees had no right under those circumstances to reject it as incompetent, but were bound to consider it in making their report.
    
      “ Otherwise,” observes the Chancellor in his opinion in favor of reversal, “if the opportunity to cross-examine had been lost by the misconduct of the witness, or by the fault or negligence of the party calling him.”
    It was also held, that the declarations of a witness can not be resorted to for the purpose of disqualifying him on the ground of interest, though otherwise as to the declarations of the party calling him.
   Judgment reversed, 10 to 6.  