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Attorney(S)
  • Haywood, for complainant, offered the evidence of a witness then present, and prayed that he might be sworn; this was objected to, and it was said that JOHNSTON, J., at last Wilmington court, would not receive such testimony offered by Haywood, in Walker v. Ashe, ante, 181. It was answered, it was true JOHNSTON, J., would not receive it, nor recognize the practice as stated by the counsel offering it, which was that a witness may be summoned to give testimony in equity as well as at law; but that the party summoning him must pay the costs of his attendance. It is equally true, however, that in Blount v. Stanley, in this Court, a witness was offered and objected to by Haywood, and that JOHNSTON, J., did receive him, and founded his decree upon that testimony.
Judges
  • TAYLOR, J.
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Attorney(S)
  • Haywood, for complainant, offered the evidence of a witness then present, and prayed that he might be sworn; this was objected to, and it was said that JOHNSTON, J., at last Wilmington court, would not receive such testimony offered by Haywood, in Walker v. Ashe, ante, 181. It was answered, it was true JOHNSTON, J., would not receive it, nor recognize the practice as stated by the counsel offering it, which was that a witness may be summoned to give testimony in equity as well as at law; but that the party summoning him must pay the costs of his attendance. It is equally true, however, that in Blount v. Stanley, in this Court, a witness was offered and objected to by Haywood, and that JOHNSTON, J., did receive him, and founded his decree upon that testimony.
Judges
  • TAYLOR, J.
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Smart Summary

MOURNING v. DAVIS.

Upon the hearing of an equity suit, without a jury, a witness may be sworn and examined.

TAYLOR, J.

I will not alter the practice, and the witness must be sworn; but I can perceive that cases may happen where its reception will be attended with inconvenience, as where a witness is produced to swear to a material fact which had not been sworn to before, the other party is taken by surprise; and perhaps had he been apprised in time, he would have disproved it, or discredited the witness.

The evidence was received, and a decree founded upon it.

NOTE. — See contra, Walker v. Ashe, ante, 181, and the note thereto.

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MOURNING v. DAVIS
(Jan 1, 1802)