
    Powell and others vs. Tuttle and others.
    1844. January 16.
    Where a party applies for leave to examine witnesses whose names have not been furnished to the examiner, or to the adverse party, according to the provisions of the 83d rule, upon the ground that the materiality of such witnesses has been discovered since the examination of all or any of the witnesses of the adverse party, a generaljaffidavit of the applicant, stating that the testimony of such witnesses is material, as he is advised by counsel and verily believes, is not sufficient; but he must state what facts he expects to prove by such witnesses.
    Where a party applies and obtains leave to examine new witnesses, whose names were not furnished according to the 83d rule, the adverse party, previous to the resumption of the examination of witnesses before the examiner, will bp allowed to furnish the names of new witnesses on his part and to examine them, to rebut or explain the anticipated testimony, or to support the testimony of his other witnesses; and he will also be permitted to re-examine any of his witnesses already examined, if necessary, to rebut or explain the testimony which may be given by the new witnesses examined by the party malting the application.
    But if such adverse party elects to examine new witnesses whose names have not already been furnished, the party who obtains the order of the court to examine the witnesses particularly named in his application, will also have liberty to furnish the names of other witnesses, and to examine them, to explain and rebut the testimony of the new witnesses introduced on the part of his adversary.
    This was an appeal by the defendants from a part of an order of the vice chancellor of the sixth circuit. The defendants applied for leave to examine two witnesses whose names had not been furnished to the complainants’ solicitor, or to the examiner, according to the provisions of the 83d rule of the court. The motion was founded upon an affidavit of the defendant Tuttle, stating that since his list of witnesses was furnished, and after the examination of witnesses on the part of the complainants, he had ascertained for the first time that the two persons sought to be examined were material witnesses for the defendants, as he xvas advised by counsel and believed to be true; but without stating what he expected to be able to prove by them. The case was submitted to the vice chancellor upon this and the opposing affidavits. And he made an order that the defendants be permitted to examine the two persons named as witnesses in any matter pertinent, except as to declarations or conversations of witnesses already examined on the part of the complainants ; and that the complainants be at liberty to examine any other witnesses on their part, on furnishing their names to the defendants’ solicitor at any time before the testimony on the part of the defendants was closed. The defendants appealed from this last clause of the order of the vice chancellor.
    
      Hiram Gray, for the appellants.
    J. A. Collier, for the respondents.
   The Chancellor.

Where a party applies for leave to examine witnesses whose names have not been furnished to the examiner, or to the adverse party, according to the provisions of the 83d rule of this court, upon the ground that the materialty of such witnesses has been discovered since the examination of all or any of the witnesses of the adverse party, a general affidavit of the party that the testimony is material, as he is advised by counsel and verily believes, is not sufficient. But he must state in his affidavit, briefly, the nature and substance of what he expects and believes he will be able to prove by such witnesses j not only to prevent evasions offlhe rule, but also to enable the court to insert such provisions, in the order allowing such new witnesses to be examined, as will be necessary to protect the rights of both parties. The form of the affidavit in this case was probably a mere technical slip.. The proper course, therefore, would have been to deny the application, without prejudice to the right of the defendants to renew it, upon a new affidavit in the proper form ; or to have allowed the application to stand over until the next regular motion day, to enable them to serve an additional affidavit upon the adverse party, showing what they expected to prove by these two witnesses.

Where a party is aware that a particular person is to be examined as a witness against him in the suit, it will frequently be necessary for him to examine other witnesses to explain or rebut the anticipated testimony of such person. This is provided for in the 83d 2’ule, by permitting either party to furnish to the officer before whom the examination of witnesses is commenced, the names of any witnesses that they may respectively wish to examine in the cause if all the witnesses named by the adverse party shall be examined. And the practice of the court must be in accordance with the principle of this rule, where either party afterwards applies to the court for leave to examine witnesses whose names were not furnished previous to the commencement of the examination. If the party making the application, therefore, is permitted to examine the new witnesses, the adverse party, previous to the resumption of the examination of witnesses before the examiner, must be allowed to furnish the names of new witnesses on his part, and to examine them, to rebut or explain the anticipated testimony, or to support the testimony of his other witnesses. And he must also be permitted to re-examine any of his witnesses already examined, if necessary, to rebut or explain the testimony which may be given by the new witnesses. But if he elects to examine new witnesses whose names have not already been furnished, the party who is permitted by the order of the court to examine the witnesses particularly named in his application should also be at liberty to furnish the names of, and examine other witnesses, to explain or rebut the testimony of the new witnesses introduced on the part of his adversary. Such, in effect, was the decision of this court in the case of Gaul v. Miller, (3 Paige’s Rep. 192 ;) and that practice has been followed in similar cases. And if a party who has neglected to furnish the names of some of his witnesses by mistake, or through inadvertence, or who has discovered new witnesses since the commencement of the examination, whose testimony is material, does not wish the privilege of examining them on these terms, he should not apply to the court for leave to examine them ; or his application, if made, should be denied with costs.

Here the vice chancellor has, by his order, departed from the established practice, by permitting the respondents to examine any new witnesses whose names shall be furnished to the appellants at any time before the testimony on the part of the defendants is closed, instead of requiring the names of such new witnesses to be furnished before the examination of witnesses is resumed • and without giving to the defendants the corresponding privilege of furnishing the names of and examining other new witnesses on their part, after they have been informed what new witnesses the complainants propose to examine. The part of the order appealed from is therefore erroneous, and must be modified, so as to be in conformity with the established practice of the court in such cases.

The order to be entered upon this application must direct that so much of the order of the vice chancellor as is appealed from be reversed and modified as follows, and that the costs of both parties upon the appeal abide the event of the suit: The complainants to be permitted to examine any new witnesses whose names shall be furnished by them to the adverse party, or to the examiner, at any time before the examination of witnesses shall be resumed ; and if the complainants furnish the names of any such witnesses, whose names were not originally furnished, that the defendants also be permitted to examine any other witnesses on their part, whose names were not originally given by them, in addition to the two mentioned in the order appealed from, upon furnishing the names of such new witnesses to the complainants’ solicitor, or to the examiner, at any time before the examination of witnesses in the cause shall have been resumed before the examiner. And the time to take testimony must be extended sixty days, and for such further time as the vice chancellor, upon application to him, may direct, to enable the parties to examine their witnesses.

Or, if the appellants, instead of having such a modification of the order appealed from, prefer to have the whole order reversed, and the application dismissed with the $7,50 costs allowed by the vice chancellor, and to pay the respondents’ costs upon this appeal, an order to that effect may be entered; provided they give written notice of such election, to the solicitor of the respondents, within twenty days after this decision is pronounced.  