
    Cozart vs. Lisle.
    Practice. Conduct of Trials. Rules as to the order and conduct of trials may he inflexibly adhered to or relaxed, according to the^ discretion of the presiding judge, and the circumstances of each case, so. as thereby to attain, and not defeat the end of their adoption.
    SAME. Evidence closed — fresh proof The plaintiff’s counsel having stated that his evidence was closed, and the defendant’s, that, none would be introduced on his side, if,is not error to refuse the plaintiff leave to examine a witness summoned by, and attending on behalf of, the defendant, however material his testimony, Wells vs. Atcheson, 12 Eng. Cora. Law, R. 125.
    JSKW trial. Plaintiff’s affidavit. It is not error to refuse a new trial- upon-the plaintiffs affidavit of the materiality of testimony known to him before the trial, or, if unknown to him, without the accompanying affidavit of the’ witness.
    Cozart loaned to Lisle, to be used in a specified journey, without hire, a mare, which died immediately after being returned to him, of a sickness contracted in the journey. On the 9th of March,, 1835, he sued Lisle in the circuit court pf Carrollin trespass on the case, to recover the value of the mare. On the trial of the cause before his honor Judge Harris of the 9th circuit, at November Term of the Carroll circuit court, 1837, the plaintiff’s counsel, after examining several witnesses, stated that he had concluded his evidence; and thereupon, the defendant’s counsel stated that they had no proqf to offer. And before any other, or further action in the cause, and before the commencement of the argument o.f counsel, the plaintiff asked leave of the court to introduqe and- examine another witness, stating as a reason therefor,, that the witness had been summoned, but not examined, by the defendant; that the plaintiff expected the defendant to examine said witness, and to have the benefit of his testimony on cross examination; that the counsel of plaintiff did not know of the materiality of the witness’ testimony, till after he had stated to the court, that he had closed his evidence. The defendant’s counsel objected to the evidence. The plaintiff’s counsel then offered to state in what the materiality of the witness’ testimony consisted; which the court refused to hear, as also to permit the examination of the witness, declaring that the witness could not be heard, however material, and ordered that the counsel proceed with the argument. The jury having found a verdict for defendant, the plaintiff moved for a new trial, and supported his motion by his own affidavit, stating the facts above recited, and those he expected to prove by the witness. The motion was overruled; and to the whole matter, the plaintiff excepted, and prosecuted this appeal in error.
    A. W. O. Totten, for the plaintiff,
    to the point that it was an illegal exercise of the discretionary power of the court in the conduct of trials, to refuse to allow the witness to be examined, cited Story’s Pleading, 72, (i); 7 Mass. Rep. 518, and 1 Burrow, 394. 2. That witnesses may be introduced before the commencement of the argument, but not afterwards, for the reason that it would be impolitic and dangerous to allow a party to supply defects in his cause after they have been pointed out, he cited Graham on New Trials, 258; 1 East, 614; 2 Johnson’s cases, 318; 2 Tenn. R. 16. 3. That a new trial will be granted for an error in the exercise of the discretionary power of the court below, he cited Mercer vs. Sayre, 7 Johnson, 306; 7 Wend. 181; Graham on New Trials, 260, 262; 6 Wend. R. 242; 4 Term. R. 753, —and it was not, he said, a reasonable exercise of the discretion of the court, in this instance, since the cause had not assumed any new attitude. 4. To the point that the verdict was against law, he cited 2 Kent, 447; Jones on Bailments, 75, and Appendix, 12; case of Goggs vs. Barnard, to show that the defendant had not used the degree of care required by law in case of such a bailment; Peck’s R. 365.
    
      April 12.
    
    Fitzgerald, for the defendant,
    insisted that the verdict was in accordance with the testimony; and that the authorb ties justified the refusal of the court to grant a new trial, Eng. Com. Law K. 120; 14 Id. 391, 393; 2 Johnson’s Digest, 142.
   Reese, J.

delivered the opinion of the court.

The bill of exceptions in this case show, that when the plaintiff, on the trial of the case before the jury, had examined his last witness, his counsel stated that he was through with his testimony; that thereupon the defendant’s counsel stated that no proof would be offered on that side; and that before any other or further action on the case, and before the commencement of the argument by counsel, the plaintiff asked leave of the court to introduce and examine another witness, stating as a reason therefor, that the witness had been summoned by the defendant, but not examined by him, and that plaintiff had expected that defendant would have called and examined the witness, so that he, on cross examination, could have had the benefit of his testimony. The counsel for plaintiff offered to state to the court the facts to be proved by the witness, so as to.show their materialty, which the court refused to hear, and rejected the witness, — stating that the witness could not be heard however material, and ordered that the counsel should proceed with the argument. This it is said was error.

It is important to the regular and successful administration of the laws, that the circuit courts should adopt and enforce certain rules as to the order and conduct of trials before them. These rules, under the influence of a prudent and enlightened discretion, will sometimes be inflexibly adheared to, and sometimes a little relaxed, according to the peculiar circumstances of each case, so that they may attain, and not defeat, the ends for which they were adopted. It would be unwise and hazardous, on the part of this court, to attempt any rigid control over the circuit courts in the exercise of a discretion to enforce or relax their own rules of practice.

In this case, for instance, it might seems to us, that if we had been on the circuit court bench, we might have felt it to be our duty to have heard the witness; yet, from the point of view which we occupy, some circumstances which may escape our observation may have been obvious to the circuit court, and may have led to a different path as the line of duty. For any thing the bill of exception shows, many hours may have intervened between the time when the plaintiff announced that he had closed his proof, and the time of his moving the court to introduce the witness, in which interval, the defendant, by the retirement of his witnesses, might have been subjected to surprise. It would therefore be wrong in us, under the circumstances shown in the bill of exceptions, to lay down that the rule of practice should have been enforced or relaxed.

Note. Starkie, Ev. 1 Vol. 161, 2d ed., says it has been held, that if a witness has once been called intotbe box and sworn, he may be cross examined by the opposite side, although he has not been examined in chief; and he cites for this, Phillips vs. Eamer, 1 Esp. C. 357, R. vs. Brooks, 2 Starkie’s, C. 473. But this doctrine is denied by Gibson, C. J. in Ellmaker vs, Buckley, 16 Serg. and R. 77, where he says it was broached in Phillip’s Law of Evidence, 211. See Roscoe’s Criminal Evidence, 128 and note 2.

As to the application for a new trial, founded upon the affidavit of the plaintiff, we think the court acted correctly, in refusing to grant it — because, 1. the testimony was known to the plaintiff before the trial; and 2. the affidavit of the plaintiff should have been accompanied by that of the witness or its absence accounted for. Let the Judgment be affirmed.  