
    Vibbard vs. Staats.
    Where one on the trial of a cause resorts to the confessions of his adversary, the evidence thus called out becomes the property of both parties; and neither will be allowed to have it stricken from the case without the consent of the other. A party who has proved the confessions of his adversary, cannot, by afterward waiving such proof, preclude the latter from giving evidence to show what further was said by him at the same time on the same subject. Semble; per Bronson, J.
    Trover for a pair of horses, tried before Cushman, C. Judge, at the Albany circuit, in June, 1840. The plaintiff as a part of his case, called Thaddeus St. John, and proved by him what the defendant had said about the matter on a particular occasion. He was cross-examined as to what further the plaintiff had said on that subject in the same conversation. As to one question put to the witness he could not answer. At a subsequent stage of the trial, and after several witnesses had been examined on both sides, the defendant called R. W. Peckham as a witness, and proposed to prove by him all that the defendant had said in the conversation mentioned by St. John. The plaintiff’s counsel then stated that they would waive the testimony given by St. John, and objected to the defendant’s giving any further proof on that subject. The judge ruled that the plaintiff had the right in the present stage of the case to waive the testimony of St. John, and thus preclude the defendant from proving any thing further on that subject. The defendant excepted. The plaintiff then moved to strike out the whole of the testimony of St. John. The defendant’s counsel objected, and insisted that they had a right to the benefit of the testimony of St. John, as it had been given by the plaintiff, if they chose to take it as it then stood without giving any evidence on their part to alter or explain it—that the plaintiff could not in the present stage of the cause expunge any part of the testimony which he had given and upon which the defendant’s counsel might have relied and been governed in making the defence. The judge overruled the objection, and ordered the testimony of St. John to be stricken out. The defendant excepted. A verdict having passed for the plaintiff, the defendant now moved for a new trial on a bill of exceptions.
    
      S. Stevens, for the defendant
    
      S. H. Hammond, for the plaintiff.
   By the Court, Bronson, J.

The defendant had an undoubted right to show what further was said by him on the same subject in the conversation mentioned by St. John, and I am not prepared to say, that the plaintiff could shut out that evidence by offering to waive the testimony of St. John. Agreeing to waive the evidence would not necessarily efface it from the minds of the jurors, and it might still have an influence upon their verdict. That influence the defendant wished to counteract by proving the whole conversation. But there is a more decisive objection. The defendant was willing to fore-go the right of calling other witnesses to the conversation, and take the testimony of St. John as it stood. Although the witness had been called by the plaintiff, the defendant thought the testimony tended in his favor; and he claimed, and was, I think, entitled to the benefit of that testimony. When a party calls a witness, he takes the chance of aiding his adversary. It is true that St. John was called to prove confessions which the defendant would not have been allowed to lay before the jury until the door had been thus opened by the plaintiff. But I do not see that this alters the principle. The evidence was pertinent to the issue, if the plaintiff chose to give it. When a party has proved the confessions of his adversary, this, like other evidence, becomes the property of both parties for whatever it is worth, and neither of them can get rid of the evidence without the consent of the other. The plaintiff’s counsel admitted that he could find no authority in support of the decision at the circuit, and none has fallen under my observation.

It is of course unnecessary to examine the other questions presented by the bill of exceptions.

New trial granted.  