Jackson, ex dem. Van Slyck and others, v. Thomas Son

Jackson, ex dem. Van Slyck and others, v. Thomas Son. IN ejectment on a motion for a new trial. It appeared that at nisi priiis the plaintiff claimed by de» scent. On the cross examination of one of his witnesses, by the defendant, it came out th-at the ancestor had made a will, of which the judge, who heard the cause, admitted paroi testimony, without any notice to produce it having been given. [MAJORITY — Per Curiam.] Per Curiam. A new trial must be awarded with costs to abide the event. When the defendant cross-examined, he made the witness as much his own, as if he had himself called him. He, therefore, could not introduce through him any proof, which would not have been legal, had the witness been originally produced on his behalf. In Jackson, ex dem. Vaz Rensselaer, April term, 1801, the same point was ruled. The judge, therefore, was clearly wrong in admitting paroi proof of a will, as the party did not show any notice on the opposite side to produce it.