Asay v. Hay , 89 Pa. 77 ( 1879 )

Mr. Justice Trunkey

delivered the opinion of the court, Febru17th 1879.

The rulings of the learned judge, with a single exception set forth in the third assignment, are so clearly right as to need no vindication.

After the defence closed, the plaintiff called Dr. Thomas Hay, who testified to the defendant’s admissions of indebtedness on the note in suit. That this testimony was pertinent and material is conceded. The defendant offered to rebut it by his own testimony, which was denied. We have examined the bill of exceptions, and fail to find anything to justify overruling the offer. "At an earlier stage in the trial, it certainly was not competent for the defendant ■ to prove that he had not made those admissions to Dr. Hay, even if he could have anticipated what was to come; and the plaintiff, in cross-examining him, did not inquire concerning them. The matter proved by Dr. Hay was not only new when presented, but could not, in the first instance, have been adduced or drawn out by the defendant. Hence, to refuse the rebutting evidence was to allow the damaging proof of the defendant’s admissions of indebtedness to the plaintiff to go to the jury without contradiction or explanation. Had it been competent for the defendant to prove, in chief, what he offered in rebuttal, the court might have refused a re-examination of the witness. As to matters that require explanation, or as to new matter introduced by the opposing interest, a party has a right, in rebuttal, to re-examine his witnesses: Whart. Ev., §572.

Judgment reversed, and venire facias de novo awarded.