Mecklenburg County NcArchives Court.....Parish, Vs. Fite 1811-18
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/nc/ncfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 12, 2008, 11:34 pm

Source: North Carolina Reports
Written: 1811-18

JUNE TERM, 1813.

ALLEN PARISH v. JACOB FITE.

From Mecklenburg.

Practice. The court may, in its discretion, permit new witnesses to be 
introduced and examined before the jury, after the arguments of counsel are 
closed and even after the jury have retired and come into court to ask for 
further information. But the rule which forbids witnesses to be introduced 
after the argument of the case has commenced ought not to be departed from, 
except for good reasons shown to the court.

Rule to show cause why a new trial should not be granted because, after the 
jury had retired under the charge of the court, they came into court and 
requested that further evidence might be heard by them, when the court 
permitted two witnesses to be examined who had not been previously introduced.

The facts of the case were that the plaintiff had brought two actions of the 
same nature against the defendant, and during the examination of the witnesses 
in the second, and whilst the jury were out deliberating on the first, two new 
witnesses appeared in the second, who deposed to facts which, in the opinion 
of the court, were important, and whose evidence would have been equally 
important in the first. After the jury in the second case had retired, the 
jury in the first came into court and stated that they were not likely to 
agree, and wanted some further information, upon which the counsel for the 
plaintiff moved for leave to introduce the two witnesses examined in the 
second case. The court granted the leave, and there was a verdict for the 
plaintiff.

Locke, J. It is certainly the regular and proper practice never to suffer 
witnesses to be introduced after the first examination, particularly after the 
arguments of counsel are closed. Yet we are of opinion that the discretion of 
the judge must govern this rule of practice; the rule is founded on the
temptation which a departure from it would hold out for committing the crime 
of perjury. Where a case has been argued and the party discovers the points on 
which it rests, the court will not permit him to support the weak parts of his 
case by a re-examination of it; and this rule ought never to be departed from, 
unless the court discover the necessity of a reexamination, and that it will 
not produce the evil which it is the object of the rule to prevent. In this 
case the jury were in great doubt, and the evidence was sought for and asked 
by them. To satisfy them and relieve them from difficulty, the evidence was 
permitted to go to them. The evidence was properly admitted, and the rule must 
be discharged.

Cited: Gilbert v. James, 86 N. C., 249; Featherston v. Wilson, 123 N. C., 627.

Additional Comments:
North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme 
Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 
1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. 
Uzzell and Company, State printers and binders, 1910.

File at: http://files.usgwarchives.net/nc/mecklenburg/court/parish561gwl.txt

This file has been created by a form at http://www.genrecords.org/ncfiles/

File size: 3.6 Kb