
    Erastus Greene, Pl’ff in Error. vs. Hollis Holley, Def’t in Error.
    The right to compel a party to give evidence on the trial of a cause, is a strict Statutory privilege, and the party seeking to have the bonofit of such evidence must critically comply with the provisions of the Statute.
    A party, whose proceedings, to require his adversary to bo sworn, on the trial of a cause, are defective, cannot, on the failure of his adversary to appear and submit to be sworn, be entitled, himself, to give evidence in the same cause.
    Where a notice was given by on'e party to the other to give evidence 'on the trial of a cause depending in a Justices Court, and after •judgment the cau'se was appealed to the Circuit Court, and there tried the former notice in the Court below, is insufficient to require the party to whom it was given, to appear or swear in the appellate Court. A notices hould have been given after the appeal was brought, arid'if hot done the right to swear ^tho adverse party 'does not exist.
    This was an action of assumpsit before a Justice of Rock County upon a promissory note made by the defendant below, the plaintiff in error here. The defendant in that Court set up Several matters of’defence, and 'an issue was joined.
    ’Anterior to the trial before the Justice, a notice had 'been given by the plaintiff below to the defendant that the ■plaintiff should require him to be sworn on the trial of the ’cause before the Justice. And by the record he appears to have been'sworn. Judgment passed for the -plaintiff’ in t-foat Court.
    
      The defendant, Greene, appealed to the Circuit Court of Rock County, where the appeal was tried at the September term, 1849. On that trial the defendant below produced the former notice, served on him to give testimony before the Justice, and claimed, to be sworn as a witness on the trial then depending. This was objected to by the counsel for the plaintiff below, and the Judge decided that Greene, the defendant, was an incompetent witness and could not b.e sworn under quph. notice. To this ruling and decision of the Judge the counsel for the defendant Greene excepted, and a bill of exceptions for that cause was made and signed by the Judge.
    The appeal was tried, and a verdict found for the plaintiff below against the defendant below for $46,00, damages. Upon the exception taken on this trial the cause came into this Court on a writ of Error.
    «2. Hyatt Smith, counsel for the plaintiff in error
    claimed that where a party had given a notice to the adverse party to give evidence on the trial of a cause, in the Court where it was depending, and that, though the cause should be carried before another tribunal by appeal and" there retried without any additional notice to the party to give evidence, the notice priorily given in the Court below would be operative, and entitle the party to the testimony of his adversary. But admitting at the same time that there was no direct decided cases upon the subject, yet he claimed that the following cases were analagous to this. — 6ih John, R., 19; 19 do. 337; 4th Wendell’s R. 626; 3 Comen and Hills notes, 1184.
    He also claimed that where a party makes his antago-. ifist witness, and claims the benefit of his evidence on the trial; and the cause is transferred to another tribunal and there tried again, it whs corhpetent for the party who had been once sworn in the caiise under a notification for that purpose, to be again sworn, though objected to by the party who had once used him as a witness. That the right to be sworn was fixed by the previous employment of the party as á witness.
    
      D. Jfbggle, for the defendánt in Error.
   By the Court.

-Hübbell, J.

The plaintiff in errors Who was notified to appear and testify on the trial of the cause before the Justice, on appeal to the Circuit Court of Rock- County, offered himself, as a witness, no new or further notice having been served on him, and the defendant in error having omitted to notify or call him as á Witness.in that Court.

The practice has prevailed) and I think correctly, of ’¿flowing a party; notified to appear and testify in a cause; to offer himself as -Witness, in case the opposite party docs hot call hint. Under this practice, ¿nd not under any positive provision of the Statute, I suppose, the offer of Greene’b testimony was made. The difficulty in the casé is, that there was no notice Requiring him to appear and testify in the Circuit Court; and I think his testimony was properly rejected.

The right to compel a party to give evidence in thd cause, is a strict Statutory privilege. The party claim* ing the privilege, must show full compliance with the Statute, or he loses his right. In this case, Holley had hot taken the requisite steps to compel Greene to testify; Sind the right of Greene could not be broader than that 'of bis opponent. It Was contended, however, that the notice served on the trial in the Justice’s Court, was suf-suffi’cient to require the attendance of Greene, as a witness in the Circuit Court. This would be giving the Statutory right an unwarrantable latitude.

It is true, the issue 'and pleadings, on appeal, are to be the same as in the Court below; but it does not follow that the witnesses or proofs are to be the same. On the contrary, the very object of an appeal, may be to procure further evidence, or to dispense with the evidence of the party, called as A witness before the Justice. This is clearly the right of each of the parties. Besides, there is no sound reason why a party, whose testimony is wanted in the appellate Court, should not have a proper notice to appear and testify, as well as the other witnesses in the cause. It would not be contended for a moment, that service of a subpoena to testify before the Justice, would be sufficient to require the attendance of witnessed in the Cirbüii or County Court.

Judgment affirmed with costs;  