
    
      DURNFORD vs. CLARK.
    
    Spring 1811.
    First District.
    Witness cross examined on a new point.
    Motion for a new trial. During the trial, a witness having been was turned over to the defendant’s counsel to be cross-examined : The counsel, in interrogating the witness on other matters, drew from him the disclosure of a distinct fact, which had a very material influence in the determination of the cause.
    The plaintiff’s counsel objected at the time to the question, put by the opposite counsel, but being overruled by the court, now moved for a new trial, on this ground.
    
      Ellery for the plaintiff.
    In the Case of the Dean &c. of Eli vs. Steward Lord Chancellor Hardwicke said : when at law a witness is introduced to a single point by the plaintiff or defendant, the adverse party may cross-examine to the same individual point, but not to any new matter : so, in equity, if a great variety of facts and points arise, and a plaintiff examines only as to one, the defendant may cross-examine as to the same point, but cannot make use of such Witness to prove a different fact. 2 Atkins, 44.
   By the Court,

Martin, J. alone.

I have never known this practice to prevail, and I can. not, on this dictum, set the verdict of the jury aside. It must be understood as a rule of discipline, introduced for the purpose of preserving regularity, in the admission of testimony. Every witness must be sworn to tell the whole truth, and if the defendant is not allowed to examine the plaintiff’s witness, at first, to any point material to the defence, he has certainly a right to call back the witness and examine him while introducing his own testimony. If, therefore, the defendant’s counsel, in the present case, might, at any stage of the trial, have compelled the witness to disclose the fact which has been drawn during the cross-examination, no injury has been done to the plaintiff, by obtaining this part of the evidence, a little earlier than in the regular way.

Farther: the witness closed the plaintiff’s testimony, and J cannot tell that there was any necessity for the defendant’s counsel to dismiss him from the cross-examination and instantly call him as his own witness. Lex neminem cogit ad vanseu impossibiha.

Motion Overruled.  