HARVEY HART, Plaintiff in Error. vs. HUMPHREY JANES, Defendant in Error, 1 Wis. 61

By the Coivrt, Whitost, C. J. — The principal error relied upon by the plaintiff in error to reverse the judgment in this case, is the ruling of the judge, by which Janes, the plaintiff below, was permitted to testify in his own behalf, at the trial. The question presented by this assignment of er ror, is new, having never before been brought to the consideration of this court. The Supreme Court of the late Territory of Wisconsin, in the case of Parkinson vs.

McKim, (Burnett's Rep.,) 53, held that a party who received notice under the Statute, to appear and testify, if not called upon to testify, became a witness; and that, if not called upon to testify at the trial, by the party giving the notice, might be sworn as a witness in his own behalf. This practice is mentioned with approbation by the judge who gave the opinion in the case of Green vs. Hally, 2 Chand. R., 168. But these decisions were made under a Statute materially different from our present one, to which we are now called upon to give a construction.

The change in the Statute is produced by adding a new section, which is in these words: “ A party examined by an adverse party, as in this

chapter provided, may be examined on his own behalf in respect to any matter pertinent to the issue. But if he testify to any new matter, not responsive to the inquiries put to him by the adverse party, such adverse party may offer himself as a witness in respect to such new matter, and shall be so received.” R. S., Chap. 98, § 60.

It will be seen that the practical operation of the Statute, where the party receiving the notice appears and testifies at the trial, is, to make him a general witness, if he shall choose to testify on his own behalf, to matters not responsive to. the inquiries put to him by the adverse party; but in respect to such new mattei’, the party who gave the notice, may be himself a witness. The plaintiff in error contends, that the practice under the old Statute, above alluded to, will frustrate the evident intention of the legislature, in the enactment of this section, because the

section contemplates an examination of the party receiving the notice on his own behalf, only in cases where he has first been examined by the adverse party, and provides a check upon his thus testifying as to new matter, in the provision that the adverse party may be a witness in respect to such new matter.

To permit him to testify on his own behalf, for the reason that the party giving the notice does not choose to call' him, would, it is contended, under this provision of the Statute, be nuga- ’ , . tory, because, he would become a general witness, and his testimony would not be subject to be explained or rebutted by the testimony of the party giving the notice, as he would not, in the language of the Statute, have been examined by the adverse party, but on his own behalf alone.

We are inclined to think that this is the more reasonable view of the Statute, especially, as in our opinion, the right of one party to testify, while the other is excluded, should not be extended beyond the letter of the Statute, except by clear and necessary implication. It is objected to this view of the Statute, that the party receiving the notice may be put off his guard, and be thereby induced to neglect to subpoena witnesses to attend at the trial, to prove facts within his own knowledge, as he may rely upon his own testimony to substantiate them. We do not think the objection entitled to much weight.

When the practice of the court is settled, parties will conform to it, and we do not think it any hardship to a party receiving a notice, to appear and testify, under the Statute to subpoena witnesses, to prove all the facts he deems essential to be established. Upon a view of this Statute, we are of the opinion, that Janes did not acquire a right to be examined on his own behalf, and that the judge committed an error in permitting him to testify. For this cause the judgment of the County Court in this case must be reversed, and a new trial ordered.