13 Ala. 821 | Ala. | 1848
1. This cause was before this court at a previous term, but none of the questions now presented were then determined. 11 Ala. Rep. 535. The competency of Yance as a witness for the defendant, must depend upon the consideration, whether he can be affected by the result of the present cause. If a recovery by the plaintiff would subject him to liability to the defendant, it must be conceded, that he should not have been permitted to testify; for the judgment would be evidence against him, not only of the fact of its rendition, but also of the amount, though it might not conclude him from setting up any available matter of defence against the defendant. But looking to the
2. The notice which the plaintiff gave to the defendant not to pay over the money deposited with him, unless all the judges of the race should determine that Yance was the Avinner, was explicit, and could not be countervailed by proof of the rules of racing, or the rules of the Hayneville Jockey Club. It is altogether immaterial what these rules Avere — • they could not determine the meaning of the notice', or impair its legal effect. Custom or usage in commerce frequently becomes so well established as to furnish rules for the government of transactions between men. But it cannot be endured that rules established among gentlemen of the turf, or those who indulge in other descriptions of gaming, shall be recognized as obligatory, so as to furnish guides for the adjustment of controversies in courts of justice, in cases; wherd they cannot explicate either the law or the facts.The notice given by the plaintiff was sufficiently precise to have informed the defendant what he meant, without a reference to extraneous matter. The testimony referred to Avas, then, irrelevant, to say the least of it — was calculated
3. The plaintiff, in making out his case, adduced testimony to show that there had been “foul riding” on the part of the rider of Yance’s horse ; in the cross-examination the defendant introduced one witness, who testified that there had been “ no foul riding then the plaintiff, by way of rebutting, offered two witnesses to prove the fact testified by the witness first examined by him, which the court refused to allow, on objection by the defendant. It is said that the examination of a single witness furnishes a miniature exhibition of the general course of examination in the whole cause; and that rebutting testimony must be confined to what is strictly a reply to facts elicited on the cross-examination. The party on whom the onus probandi lies of making out the case, or defence, cannot, without the permission of the court, introduce proof to the points to which the examination was directed, which does not tend to explain the cross-examination. If he has omitted from mistake, or other cause, to ask his question, or offer a witness, he can apply to the court for leave to supply the omission, by re-examining the same witness, or calling another who has not been previously examined. In short, it may be laid down generally, that the introduction of testimony out of the usual course of procedure, is within the discretion of the court, and this discretion should be exercised with a regard to justice, the interest and rights of the parties, and the proper disposition of business. But however it may be exercised, the propriety of the decision of the primary court in such a case cannot be revised by an appellate tribunal. In the case before us, the testimony rejected was not in reply to the cross-examination, but was cumulative — calculated to strengthen the plaintiff’s case, in a point in which the witness by whom it was made out was not assailed as unworthy of credit; but the weight of whose testimony was merely lessened by countervailing proof. It follows then, that the circuit judge did not, in the rejection of the plaintiff’s witness, commit an error of which
Upon the second point considered, the judgment is reversed and the cause remanded.
