
    Shepard vs. Potter.
    After the plaintiff has rested his cause, it is in the discretion of the court whether ho shall be.allowed to give further evidence, save in reply.
    What shad be deemed evidence in reply, under such circumstances, considered. The plaintiff, on the trial of a cause, having announced his intention of resting, the defendant moved for a nonsuit; whereupon the court re-called and interrogated a witness of the plaintiff, and thus drew out a new fact tending against the latter-on the leading point in dispute. Held, that the court were bound to hear further testimony on the part of the plaintiff in reply, and that, for their refusal to do-so, error would lie.
    Whether a plaintiff shall be allowed to depart from the case first established by him, hut which he has failed to sustain, and prove a new and incompatible one, is matter resting in the discretion of the court at the trial, upon which error will not lie. See note (a).
    
    On error from the Erie common pleas. Shepard sued Potter before a justice, in trespass for entering the close of the former and cutting and carrying away his wheat. Plea, the general issue. The justice rendered judgment in favor of Shepard for $100, besides costs; whereupon Potter appealed to the common pleas. On the trial in the latter court, the principal point litigated was, as to the plaintiff’s title to the wheat. The wheat was sowed by the plaintiff in the fall of 1839, on a fifteen acre piece of land, part of a farm then in his possession belonging to one Vanderventer. In the spring of 1840, the defendant went into possession of the farm, but whether he acquired possession of the fifteen acres or not, was left doubtful upon the evidence. Swartz, one of the plaintiff’s witnesses, testified on his cross-examination that, in a conversation between him and the plaintiff, before the defendant moved into the house on the farm, the plaintiff said he would give up the possession of the farm to the defendant j and that after Vanderventer had forbidden the plaintiff to harvest the wheat, he (the plaintiff) said he would be willing to harvest it and give the defendant one third. When the plaintiff rested, the defendant moved for a nonsuit, on the ground that the proof showed the defendant in possession of the farm. The court intimated an opinion that the motion should prevail, but re-called the witness Swartz, who, on being further examined by the court, testified, that when the plaintiff said he wottld give up the possession of the farm to the defendant, nothing was added as to his intent to reserve the wheat. The plaintiff thereupon offered to call witnesses for the purpose of showing that, during the summer of 1840, the defendant had repeatedly declared, on different occasions, that the wheat belonged to the plaintiff. The court refused to hear the witnesses, on the ground that the plaintiff had rested, and thereupon a nonsuit was ordered. The plaintiff excepted, and, « after judgment, sued out a writ of error.
    J. Gr. Masten, for the plaintiff in error,
    insisted that the court below erred in refusing to hear the further testimony proposed by the plaintiff, notwithstanding he had previously announced his intention of resting.
    
      H. K. Vide, for the defendant in error,
    said this was matter resting in the discretion of the court below, upon which error would not lie. He cited Cowen & Hill’s Notes to Phil. Ev. 711 to 718; Cowen’s Treat. 992, 2d ed.
    
   By the Court,

Cowen, J.

Whether the evidence, when the plaintiff rested, was clearly against him as to his title, may be questionable; but the court themselves recalled his witness, and made it a degree stronger against him. That was a breaking of the plaintiff’s rest. He might have been willing to risk his cause as the proof was when he announced that he should stop j and the court would then, I think, have been right in not allowing him to go into evidence of the defendant’s admissions. But their own examination showed an implied confession by the plaintiff of the defendant’s title, arising from the omission of the former to assert a reservation of the wheat when he mentioned giving up the farm to the defendant. This was new evh dence for the defendant, not before given. To rebut it., or qualify its force, the plaintiff offered to prove the defendant’s admissions of the plaintiff’s title. Even supposing his case to have continued closed, it is doubtful whether he had not a right to do so much on the authority of the very books which the defendant in error now cites. (Cowen’s Treat. 992; Cowen & Hill’s Notes to Phil. Ev. 711 to 718.) It seems to me the evidence was a direct answer to what the court had called out. This was the same in effect as if the defendant himself had recalled the witness. In Cowen & Hill’s Notes to Phil. Ev., at p. 712, 713, the ne plus ultra of strictness is mentioned as exemplified in several cases. But the court obelow were, I think, still more stringent. The late case of Briggs v. Aynsworth, (2 Mood. & Rob. 168,) seems to give a rule which can be safely and conveniently abided by. The plaintiff in that case proved the defendant to have been, at the time of the alleged wrong, near the place where it was committed. The defendant proved an alibi. Then the plaintiff was allowed to give further proof that the defendant was near the place of the wrong. Again, in Doe, dem. Gosley v. Gosley, (id. 243,) the lessor of the plaintiff made out a prima facie case as heir at law. The defendant showed a will taking the lessor’s title away. The plaintiff was allowed to show a subsequent will devising the premises to his lessor. This was a contradiction of the defendant’s case, the second will being a revocation of the first.

But if it be dangerous to interfere on error with discretion exercised below as to the nature of the evidence to be answered, as compared with that to be given in reply, it is too strong to say that the plaintiff’s case was closed when the new evidence was offered. The court took it up and continued it, by examining his -own witness. No case gives a discretion to cut off further testimony, if it be pertinent, unless the party be left to the evidence as it stood -when he declared his case closed.

Without finally saying whether the testimony would have been proper in reply, we think the judgment must be reversed on the ground that the plaintiff’s case was open when he offered evidence of the ‘defendant’s admissions.

Judgment reversed. 
      
      
         In Wright v. Henry, (M. S. Jan. T. 1843,) one question raised was upon the right of a plaintiff, 'after resting, to make a new case, different from the’one with wnich he started. There the plaintiff, on a trial in the common pleas, put in evidence a deed of lands absolute on its face; and at a subsequent stage of the trial, after resting, he was allowed to prove that the deed was intended as a mortgage. It clearly appeared, however, that his offer of the deed, jn the first instance, was accompanied by a proposition to Show the same fact; and this the supreme court regarded as a decisive answer to the objection taken. “ But, if otherwise,” observed Mr. Justice Cowen, who delivered the opinion, “ the question related to a mere point of practice in the court below. Whether a court will, at the trial, allow a departure from the case first established, but which the party has failed to sustain, and admit proof of a new one, though entirely incompatible with the first, is a question resting in discretion. It is not reviewable therefore by writ of error. The courts of original jurisdiction should be left to consult their own convenience upon all questions of this character. If the proposed case be not in. admissible under the pleadings, a bill of exceptions will not lie.”
     