Clark and wife vs. Vorce, 15 Wend. 193

By the Court, Savage, Ch. J. With respect to the testimony of a deceased witness, the rule is laid down with much strictness ; but if nothing will answer, but an exact transcript of the testimony of the witness in his very words, and all his words, it will exclude all such testimony. There are few or no cases where a cautious and prudent man will swear that his notes of testimony of a witness, taken down at the time, contain his very words, and all his words. It seems to me that Mr. Whiting’s notes should have been received, connected with his oath, as to their accuracy.

It was his intention at the time to take down the words of the witness—not the substance or legal effect of his testimony. The reason assigned in 4 Serg. & Rawle, 203, against receiving the notes of counsel is not applicable to this case. Here it was the intenj.-Qn the witness, to take down, not the substance, but the words of the witness. The offer in this case comes within the rule as stated in Wilbur v. Selden, 6 Cowen, 164. The witness was ready to swear to his belief of the accuracy of his minutes, and it was his intention to take down the words of the deceased witness.

As to the re-examination of Gilbert Drew: there must necessarily be a large discretion in the judge as to'the examination of witnesses. The object of a trial is to ascertain all the facts r relating to the issues joined. It is the duty of counsel to examine a witness to his whole case when he calls him; but if counsel calls a witness who knows facts to sustain several points in his client’s case, inadvertently omits to examine the witness to one point, until after he has been cross-examined, there is surely no reason in the policy of the law against a further examination.

It may, perhaps, be inconvenient to the judge and opposing counsel, to enter into the further examination, but that is not a sufficient reason why the party calling the witness should be deprived of material testimony. Is it not consistent with justice that a party should lose his cause, because the testimony is not introduced with strict technical precision, or that it may possibly give additional trouble in taking notes of the testimony. It seems to me that too much pertinacity in a strict adherence to arbitrary rules is sometimes grasping the shadow and letting go the substance.

Justice is always best administered by a liberal indulgence to parties in the production and examination of their witnesses. But the actual existence of the rule itself is perhaps questionable. Mr. Starkie says that, after a wit- ■ ness has been cross-examined, the party calling him has a right to re-examine him to explain the cross-examination, and the witness’ expressions, and his motives for using them ; “ but he has no right to go further, and to introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness.” 3 Starkie’s Ev. 1751.

For this rule he refers to the Queen’s case, 2Brod. & Bing. 297. The rule itself is of very recent date, and I am not aware that it has ever received the sanction of this court. I do not believe that such extreme strictness is best calculated to elicit truth, or to promote the ends of justice. It cannot be right that a party should be deprived of material testimony because his counsel inadvertently omitted to examine a witness to all the facts within his knowledge, during his direct examination, and previous to a cross-examination.

It is no answer to a party who is ruined by an erroneous verdict of a jury, that his counsel did not put the questions to his witnesses, precisely as he ought, in order of time. In this case, the examination of witnesses was not closed, and there is no good reason appearing upon the case why the testimony should not have been received. If such a rule should be strictly adhered to, a witness may not have given half his testimony before his mouth is sealed. In my opinion, the testimony should have been received.

I am aware that, somel times, testimony may be intentionally withheld by the counsel calling a witness, until the witness has been cross-examined. My remarks do not apply to such a case, but to the case of inadvertence, or perhaps ignorance of the facts, within the knowledge of the witness. Having arrived at the conclusion that a new trial should be granted, it is unnecessay to go into a particular examination of the testimony, to ascertain whether the verdict is supported by it.

I will, however, remark that if a testator is to be proved insane by circumstances such as are relied on here, few wills would stand the test; and that, had the testator, made an equal distribution of his property, he would probably not have been suspected of insanity. His disposition of his property is certainly very strange ; but, generally speaking, a man may dispose of his property as he pleases. The, ■verdict, I think, is against the weight of evidence. New trial granted.