Leggett v. Boyd

3 Wend. 376 | N.Y. Sup. Ct. | 1829

By the Court,

Marcy. J.

It is well settled that special bail are so far interested that they cannot be examined as witnesses for a defendant. If in this case the defendant’s father was an incompetent witness by reason of his being special bail, his mother was in. like manner interested. Where the husband is disqualified by reason of his interest, the wife is also incompetent. (1 Ld. Raym. 744. 2 Str. 1095.)

After the trial of a cause has been commenced, it is entirely in the discretion.of the court to delay until a party can procure the attendance of a witness who is casually and unexpectedly absent at the moment he is called; and it is scarcely possible to conceive a case where this court would interfere with the decision of a circuit judge on such an application! At all events, I see nothing objectionable in the refusal of the judge in this case to delay the trial until the defendant could procure the attendance of his absent witnesses.

Entries in a family bible are unquestionably evidence for some purposes, particularly in cases of pedigree, and where the facts transpired at such a remote period that no living witnesses can be supposed to have any knowledge of them. The family bible was not, however, offered in this case to prove any such facts. The entries in it were comparatively recent, and the person by whom they were made was in court. I am disposed to believe the judge decided correctly in rejecting this evidence.

I do not discover any thing objectionable in the charge to the jury. The judge gave no opinion upon f.he facts; nor was his charge calculated to mislead them.

I think, however, the judge erred in refusing to permit the party to substitute new special bail, so as to restore the competency of Mary Boyd, the wife of the special bail. This is frequently done on trials where the defendant offers new bail who are willing and able to justify; and I discover nothing in this case that calls upon us to make it an exception. In the case of Irwin v. Caryell, (8 Johns. R. 407,) the court reversed the judgment of a justice of the peace because he refused to release the bail and take other security, the bail being a material witness for his principal. It would be difficult to distinguish that case from this in principle.

It appears to me that the request of the defendant to examine his witnesses who came into, court about the time the plaintiff’s counsel began to address the jury, was reasonable, and that the judge ought to have heard their testimony; but whether we would grant a new trial if this was the only question in the case, is a matter of some doubt.

New trial granted.