Southwark Insurance v. Knight

The opinion of the court was delivered by Sergeant, J. It was certainly error in the court below to permit the plaintiff to select portions of the depositions of a witness taken by himself, to be read in evidence on the trial, and to omit other parts of the same deposition. It seems to be the same thing as striking out parts of the examination of a witness sworn in the cause at the bar, at the request of the party who called and examined him. This could not be permitted. The party who examines a witness must be considered as presenting the whole as equally authentic, and is estopped from denying the competency of any part of his evidence. He cannot even discredit his own witness, though he may prove the facts to be otherwise than as stated by him. Stockton v. Demuth, (7 Watts, 39..) When a deposition has been taken, the party, therefore, who offers it, must read the whole. If parts of it be manifestly irrelevant, they may, on that ground, be omitted, under the direction of the court: that, however, is not the privilege of the party, but the exercise of a duty by the court, for the despatch of business, and saving of time and trouble. But it is contended that the plaintiffs offered, afterwards, in the ■ summing up, to read the parts of the deposition which had been [331] struck out, and that the defendant’s objection to it cured the previous irregularity. I do not, however, think so. The time when the offer was made might have exposed the defendant to difficulty and danger from the absence of his witnesses, and the course of defence he had been obliged to adopt. Besides, the plaintiff, after the defendant’s objection, withdrew his offer, by which the matter was left in statu quo. Had the plaintiff persisted in his offer, the court must have admitted or rejected it: and if they had rejected it, (which it is very possible, they might have done,) the defendant could have rested, as he does now, on his original bill of exceptions. . For these reasons we think the judgment must be reversed, and a venire facias de novo be awarded. Judgment reversed, and venire de novo awarded.