29 Ind. 454 | Ind. | 1868
This was a suit for partition. The complaint was in two paragraphs. The first alleged that the
The defendant, called as a witness by the plaintiff, testified that at the time of receiving the deed from his father, he gave the latter an obligation for $1,500, without interest, conditioned that if, at the time of his father’s death, any portion of that sum should remain unpaid, it should not be enforced. Another bond had first been prepared and signed, similar to the one delivered, except that it did not exclude interest, but by agreement of parties, the other was substituted. It was delivered and kept by his father until his death. The deed and first bond were prepared by one John C. Huckleberry, and both presented by him for execution at the same time. On cross-examination, it was proposed to prove by the witness that the actual consideration for the conveyance was his agreement to take care of and support his father during his natural life, and that the bond was intended by the parties as a security for his performance of ■that agreement. The court refused the evidence, and that ruling is presented for our consideration. It is not controverted by the appellee, as indeed it could not successfully
The limitation of the English rule of cross-examination, as established in the Philadelphia, &c., R. R. Co. v. Stimpson, 14 Peters 448, which has been adopted in this and many other states, does not prevent such a cross-examination, but, on the contrary, sanctions it. It must be confined, in the language of Story, J., in that case, “to facts and circumstances connected with the matters stated in the direct examination.” This expression of the rule was approved by this court in Wright v. Gaff, 6 Ind. 416. In Patton v. Hamilton, 12 Ind. 256, the cross-examination was restricted “tothejsubject matter of the original examination.” In Dearmond v. Dearmond, 12 Ind. 455, it was said that “on cross-examination the defendants would have the undoubted right to draw out all that was said at the time in relation to the subject about which the statements sworn to were made.”
The "plaintiffs, called for such of the facts upon that subject as'suited their purpose, and then, by an objection, succeeded in excluding, on cross-examination, other facts relating to the very same subject, which would have materially changed the effect of the evidence already obtained from the witness. We know of no case which will sustain this ruling of the court below.
We are earnestly appealed to to sustain the judgment below, upon the ground that a right result was reached. The evidence, as it appears in the record, has no tendency to impress us with that belief, but quite the contrary. We are not now compelled to say that we would reverse the case upon the evidence, but we do not hesitate to say that the law, as well as the justice of the case, seems to us clearly to demand a new trial.
The judgment is reversed, with costs, and the cause remanded for a new trial.