Pilie v. Stewart

Eustis, J., delivered the opinion of the court. On the trial of this cause, the counsel for the defendant, on the cross-examination of the first witness, requested the clerk to take down in writing the answer of the witness to the first question propounded by the counsel for the defendant. The judge decided that the testimony could not be taken in writing, as neither counsel desired it at the commencement of the examination. The counsel for the defendant declared, that he was under the belief that the testimony in chief had been taken down in writing. The counsel for the plaintiff made no objection to the request of the counsel for the defendant, to have the testimony reduced to writing. Notwithstanding our indisposition to interfere with the discretionary power of inferior courts, as to the manner in which causes are to be conducted before them, we think that we are bound to give the party relief in the present case. The application was made as soon as the first witness of the plaintiff, sworn in this cause, was under cross-examination366 by the defendant’s counsel, and we think, (particularly as the opposite counsel made no objection,) that the judge erred in refusing the application of the counsel to have the answer of the witness reduced to writing. Judgment reversed, and cause remanded for further pro ceedings, according to law.