
    Leggett and Wooster vs. Boyd, impleaded, &c.
    The wife of ^anTncompetent witness for the defend. ant.
    ant'has^a right to avail himtimo'ny1* of spe" cial bail by aní justifying new bail.
    a^party^hasTa right to call witnesse™who have arrived in proofs are dosed and before the opposite party has sum. cause To the jury.
    inJor°refusing the delay of a party caifob^ tain the at-witnesses casuaily or unexsent, will he left to the dis-circuit judge,
    Tais was an action of assumpsit, tried at the New-York circuit in April, 1828, before the Hon. Ogden Edwards, 0ne of the circuit judges. °
    
    rp, ■ ¿ £ £ lhe action was on a promissory note tor the sum of $*265,67, bearing date the 12th September, 1825, given by the defendant Boyd, a partner of a mercantile house *ra<*mg under the name of Boyd and Frost. Boyd only was taken, and he interposed the defence of infancy. The mother °*' **le defendant was offered as a witness to prove his infancy. She was objected to as incompetent because her husband was special bail in the cause. The defendant oflered to substitute other bail and to justify instanter, which the judge refused to permit, saying the application was addressed to his sound discretion, and that he would not grant it in favor of such a defence. A brother of the defendant, he-tween 18 and 19 years of age, then testified that he al- , , ,. , , . . , , ways understood and believed the defendant to be 2 years anc* ** months older than himself, (according to which the defendant, at the date of the note, was of the age of only 18 years 10 months and 3 days.) Another witness testified that in 1819 the defendant came to live with him as a clerk; he then believed him to be 14, 15 or 16 years of age, probably something like 15 ; that he lived with him 5 years ; that he served as a clerk with another person about 6 months, and then commenced business in partnership with Frost. When defendant left witness, he thought he was not quite of age, hut would soon become so. The defendant offered to prove by his brother the family bible of his parents, in which the births of their children were entered by their mother, the birth of the defendant being entered as of the 16th November, 1806. This evidence was objected to and rejected. The defendant, stating himself surprised by the objection taken to the competency of the mother of the defendant as a witness, applied to the judge to grant a delay of a few minutes until he could send for witnesses residing in a street not far off. The plaintiff’s counsel objected to the delay, as the trial of the cause had already been put off during the circuit, to give the defendant an opportunity to collect his witnesses. The judge observed that this also was an application to the sound discretion of the court, and that in favor of such a defence he should not grant the application under the circumstances of the case. The counsel for the defendant then addressed the jury; and as the counsel for the plaintiff rose to address them, the defendant’s counsel stated to the judge that two witnesses who ha.d been expected to attend the trial were then in court, by whom the infancy of the defendant at the date of the note could be proved, and asked leave to examine them. The plaintiff’s counsel objected, and the judge again stated that this application was also addressed to the sound discretion of the court, and that under the circumstances which had been disclosed, he did not deem it proper to grant the application. The judge charged the jury that infancy was a defence to the note in question, but that it ought to be established in a satisfactory manner; that if the jury believed, from the testimony which had been given, that the defendant was under the age of 21 at the date of the note, the verdict should be for him, otherwise for the plaintiff. The jury found for the plaintiff. The defendant having ex'cepted to the several decisions made against him, the cause now came before the court on a bill of exceptions.
    
      J. L. Wendell, for defendant.
    It is the settled practice at nisiprius to allow a substitution of special bail, where the defendant is under the necessity of calling his bail as a witness. (8 Johns. R. 407.)
    The family bible was admissible in evidence under the circumstances of the case. The persons who could have testified with absolute certainty had been excluded, and no great» er evidence was behind in the party’s possession. (1 Phillip’s Ev. 176.)
    A delay for a few minutes to send for witnesses should have been granted in the exercise of a legal discretion, although the defence was so very unmeritorious.
    The party should have been permitted to examine his witnesses, although the proofs had been closed. No possible evil could have arisen, from it; it was not the re-examination of a witness to supply defects pointed out by the opposite counsel or by the court; it was the examination of witnesses who had just arrived, and for whose arrival a delay, had been solicited. (2 Johns. Cas. 318. 7 Johns. R. 306. 4 Cowen, 451.)
    The charge to the jury is exceptionable. An intimation from a judge equally calculated with a misdirection to mislead a jury, is good cause to set aside a verdict.
    
      Fessenden, for plaintiff.
    Special bail cannot be a witness for a defendant, and of course the wife of the bail was incompetent. Substitution should not be allowed at the circuit, as' insufficient bail may thus be imposed on the plaintiff. Their justification is no security; for the plaintiff may be ignorant of their responsibility, ancj. has no opportunity for inquiry, as he has when bail is regularly put in. At all events, the application to substitute bail is addressed to the discretion of the circuit judge, with the exercise of which upon this point and the other points addressed to the same discretion, this court will not interfere. The family bible was totally inadmissible. (Phil. on. Ev. 188. 4 Barn. & Ald. 53. Cowp. 591.)
   By the Court,

Marcy. J.

It is well settled that special bail are so far interested that they cannot be examined as witnesses for a defendant. If in this case the defendant’s father was an incompetent witness by reason of his being special bail, his mother was in. like manner interested. Where the husband is disqualified by reason of his interest, the wife is also incompetent. (1 Ld. Raym. 744. 2 Str. 1095.)

After the trial of a cause has been commenced, it is entirely in the discretion.of the court to delay until a party can procure the attendance of a witness who is casually and unexpectedly absent at the moment he is called; and it is scarcely possible to conceive a case where this court would interfere with the decision of a circuit judge on such an application! At all events, I see nothing objectionable in the refusal of the judge in this case to delay the trial until the defendant could procure the attendance of his absent witnesses.

Entries in a family bible are unquestionably evidence for some purposes, particularly in cases of pedigree, and where the facts transpired at such a remote period that no living witnesses can be supposed to have any knowledge of them. The family bible was not, however, offered in this case to prove any such facts. The entries in it were comparatively recent, and the person by whom they were made was in court. I am disposed to believe the judge decided correctly in rejecting this evidence.

I do not discover any thing objectionable in the charge to the jury. The judge gave no opinion upon f.he facts; nor was his charge calculated to mislead them.

I think, however, the judge erred in refusing to permit the party to substitute new special bail, so as to restore the competency of Mary Boyd, the wife of the special bail. This is frequently done on trials where the defendant offers new bail who are willing and able to justify; and I discover nothing in this case that calls upon us to make it an exception. In the case of Irwin v. Caryell, (8 Johns. R. 407,) the court reversed the judgment of a justice of the peace because he refused to release the bail and take other security, the bail being a material witness for his principal. It would be difficult to distinguish that case from this in principle.

It appears to me that the request of the defendant to examine his witnesses who came into, court about the time the plaintiff’s counsel began to address the jury, was reasonable, and that the judge ought to have heard their testimony; but whether we would grant a new trial if this was the only question in the case, is a matter of some doubt.

New trial granted.  