Moo. & R. 304; S. C. 6 Car. & P. 202, 386; Vance v. Vance, 2 Metc. (Ky.), 581.

ff. Matter of discretion. - It seems, that the question as to which party shall open and close the case is a matter of practice, to be regulated by the discretion of the judge, whose decision upon it is not a subject of exception. Fry v. Bennett, 28 N. Y. (1 Tiff.), 324; Aff'g S. C. 9 Abb. 45; 3 Bosw. 202.

gg. Addressing the jury.-Whether counsel shall be permitted to address the jury is a matter resting in the sound discretion of the court. People v. Cook, 8 N. Y. (4 Seld.), 77. The court will restrain the remarks of counsel to the issues. Mitchell v. Borden, 8 Wend. 570; Bullock v. Smith, 15 Ga. 395; Mitchum v. State, 11 Ga. 615; Fry v. Bennett, 3 Bosw. 202; S. C. 9 Abb. 45; S. C. Aff'd, 28 N. Y. (1 Tiff.), 324.

hh. Opening the case. Each party should be confined to a legitimate and proper opening of his own case. Ayrault v. Chamberlain, 33 Barb. 229; S. C. Aff'd, 31 N. Y. (4 Tiff.), 614. Evidence cannot be excluded because it is not embraced within the opening. Nearing v. Bell, 5 Hill, 291. Or a defense rejected merely on the opening of counsel. Sawyer v. Chambers, 43 Barb. 622; S. C. 44 id. 42. Or a complaint be dismissed solely on the ground that counsel in his opening has not stated facts sufficient to constitute a cause of action. Stewart v. Hamilton, 3 Rob. 672; S. C. 18 Abb. 298; 28 How. 265.

ii. Objection to pleadings.-But two objections can be raised to the complaint at the trial, viz.: that it does not state facts constituting a cause of action, and that the court has not jurisdiction. Winterson Eighth Avenue Railroad Co. 2 Hilt. 389;| Luddington v. Taft, 10 Barb. 447. See Kelly v. Kelly, 3 Barb. 419.

V.

- when to be raised.-Objections to the pleadings or proof must be taken on the trial or hearing to be entitled to review on appeal. Rosebrooks v. Dinsmore, 36 How. 138; S. C. 1 Trans. App. 265; 5 Abb. N. S. 59. If the defect is capable of being obviated. Brookman v. Hamil, 54 Barb. 209. See, also, Fillo v. Jones, 4 Keyes, 328; Sawyer v. Chambers, 43 Barb. 622; S. C. 44 id. 42.

The practice of a defendant's waiting until the plaintiff has closed the evidence in his case, without objecting to the sufficiency of the complaint, and then doing so, disapproved. Meyer v. Fiegel, 7 Rob. 122; S. C. 34 How. 434. kk.- striking out.-All objections to the pleadings should be decided before the circuit. A judge has no power to strike out pleadings on the trial. Smith v. Countryman, 30 N. Y. (3 Tiff.), 655.

1. disregarding counterclaim.-The court may disregard matter set up as a counterclaim to which there is no demurrer or reply, and which in effect does not constitute a counterclaim. Van Valen v. Lapham, 13 How. 240; S. C. Aff'd, 5 Duer, 689.

mm.- election.-It seems that where the complaint asks both legal and equitable relief, the defendant may require the plaintiff to elect upon which he will rely. Pennsylvania Coal Co. v. Delaware and Hudson Canal Co. 1 Keyes, 72.

A motion to compel the defendant to elect upon which of several defenses he will rely, is addressed to the discretion of the court, and its decision not reviewable on appeal Kerr v. Hays, 35 N. Y. (8 Tiff.) 331.

A general objection, at the trial, that the answer does not sufficiently set out the facts constituting the several defenses, or either of them, is not available. Ib.

nn. Postponement.-A motion for ad journment must be based upon affidavit. Brooklyn Oil Works v. Brown, 38 How. 451; S. C. 7 Abb. N. S. 382.

00.

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discretionary.—The refusal of an adjournment is not the subject of exception, but may be reviewed on motion for a new trial. Brooklyn Oil Works v. Brown, 38 How. 451; S. C. 7 Abb. N. S. 382 Miller v. Porter, 17 How. 526. Or on appeal when the trial was by the court. Howard v. Freeman, 7 Rob. 25; S. C. 3 Abb. N. S. 292. But where the trial does not proceed, the order denying a motion to postpone is not reviewable. Howard v. Freeman, 6 Rob. 511.

pp. — pending trial.—An order of a judge that the cause stand over to a future day, to enable a party to introduce additional testimony, is not reviewable by an appeal from such order. Phelps v. Ward, 10 Bosw.

617.

99.- tendering costs.-Where, upon a cause being reached at circuit and moved by the defendants, the plaintiff applied for a postponement, which was denied an he then gave notice of a discontinuance and tendered the costs, and ten days afterward, during he same circuit, the judg ordered the complaint dismissed with costs and an extra allowance, held, that the judge have power to make the order. Moffatt v. Ford, 14 Barb. 577.

Where the defendant has been offered his costs of the circuit, and it does not appear that they have ever been made out or adjusted in any way, or he prepared to receive them, he is not entitled to a dismissal of the complaint for not bringing the cause to trial at the circuit. Hawley v. Seymour, 8 How. 96.

a. Leading questions. It is within the discretion of the judge, on the trial of a cause, to permit leading questions to be put to a witness. Cheeney v. Arnold, 18 Barb. 434; Budlong v. Van Nostrand, 24 id. 25; Vrooman v.

| Griffiths, 1 Keyes, 53. And, also, to determine whether a question is objectionable as leading. Walker v. Dunspaugh, 20 N. Y. (6 Smith), 170.

The refusal of the court to permit a witness to answer a question put to him is not error, unless it appear that the answer might be material to the question at issue. Pratt v. Strong, 3 Keyes, 53.

Where testimony is offered which is relevant as to one of two defendants, but irrelevant as to the other, it must be objected to by the latter on that ground, and not by both. Black v. Foster, 28 Barb. 387; S. C. 7 Abb. 406.

Where evidence offered in defense is excluded on the ground that it is not warranted by the pleadings, the party should offer it again in mitigation of damages, if he desires to avail himself of it for that purpose. Travis v. Barger, 24 Barb. 614.

The reception of incompetent testimony, duly objected and excepted to, is ground for reversal, unless it is obvious that it could not possibly have injured the opposite party. Wilson v. Wilson, 4 Keyes, 413.

If an offer of evidence contains any matter not admissible, the whole may be rejected. Hosley v. Black, 26 How. 97; S. C. 28 N. Y. (1 Tiff.), 438; Harger v. Edmonds, 4 Barb. 256.

j. Credibility of witness.-Whether a witness is credible or not, is solely a question for the consideration of the jury. Merritt v. Lyon, 3 Barb. 110. The jury must determine the credibility of a witness at the time he testifies. People v. Haynes, 38 How. 369.

The credibility of a witness cannot be impeached by proof of any single act of bad conduct. Varona v. Socarras, 8 Abb. 302.

An accomplice is a competent witness to testify in a criminal case; such fact affects his credibility only. People v. Haynes, 38 How.

369.

A witness whose credibility is impeached is still competent; the jury may disregard his testimony, but are not bound to do so. Lee v. Chadsey, 2 Keyes, 543; S. C. 3 Keyes, 225.

It is no error not to give credit to the testimony of a witness upon a point where his testimony stands uncontradicted, when he has

testified in direct conflict with other witnesses and the finding of the court upon the principal questions of fact in the case. Tomlinson v. Miller, 3 Trans. App. 250; S. C. 3 Keyes, 517.

It is in the discretion of a judge or referee to determine when testimony respecting the character of witnesses shall cease, when it may be resumed, and, under some circumstan ces, which party shall close the examination, and the court will not interfere with the exercise of such discretion unless it has been abused. Spear v. Myers, 6 Barb. 445.

k. Withdrawing and striking out evidence. After a party has introduced evidence before a jury, on the trial of a cause, he cannot withdraw it, on finding that it does not answer his purpose. Decker v. Bryant, 7 Barb. 182.

The judge at circuit has no power to strike out evidence bearing upon the issues after it has been duly taken without objection, or exclude it from the consideration of the jury. Hall v. Earnest, 36 Barb. 585.

Where a witness testifies to facts, not within his knowledge, his testimony cannot be stricken out; the only remedy is to show his Rushmore v. Hall, 12 Abb. 421. want of knowledge by cross-examination.

1. Impeaching own witness. - A party cannot impeach his own witness directly or indirectly; but if surprised by his testimony, he may show by other witnesses that the facts are otherwise. Hunt v. Fish, 4 Barb.

324.

m. Contradicting testimony.Where a witness gives testimony upon the plaintiff's examination, and in reference to a matter about which no inquiry has been made by the defendant, the plaintiff cannot be allowed to call witnesses to contradict him. First Baptist Church in Brooklyn v. Brooklyn Fire Insurance Co. 23 How. 448; S. C. Aff'd, 28 N. Y. (1 Tiff.), 153.

n. Juror a witness.-A person may be examined as a witness in a cause on which he is sitting as a juror. Manley v. Shaw, 1 Car. & M. 361.

0. Husband and wife. Where husband and wife are parties to an action they are competent witnesses in behalf of other parties or of themselves; and when they are examined they are subject to the same rules as other persons, except with regard to communications, inter se. Wehrkamp v. Willett, 1 Keyes, 250. But see Hicks v. Bradner, 5 Trans. App. 239; S. C. 35 How. 118.

a. May be ordered, when. - A defendant may move for a nonsuit when the plaintiff rests, or he may give testimony and rest, and then move for a nonsuit; or he may move upon the whole evidence after both par-| ties have rested. Ernst v. Hudson River Railroad Co. 24 How. 97. See, also, Winfield v. Potter, id. 446.

b. Must specify grounds. A defendant moving for a nonsuit must bring to the notice of the judge the special grounds claimed as justifying it. Castle v. Duryea, 32 Barb. 480; S. Č. Aff'd, 2 Keyes, 169, sub nom. Castle v. Duryee, 30 How. 591. A general objection is not sufficient. Binsie v. Wood, 37 N. Y. (10 Tiff.), 526; S. C. 5

Trans. App. 42. A motion for a nonsuit on the ground that the plaintiff has shown no right to recover, is entirely too general and indefinite. Trustees of St. Mary's Church in city of Albany v. Cagger, 6 Barb. 576. And see Cronk v. Canfield, 31 Barb. 171.

c. Request to submit to jury. Where a defendant, at the conclusion of the evidence, moves for a nonsuit, which is denied, if he wishes questions of fact submitted to the jury, must distinctly request it. The objection that there were questions of fact which should have been submitted, is not available under a general exception to the judge's direction of a verdict. Winchell v. Hicks, 18 N. Y. (4 Smith), 558; Bidwell v. Lament, 17 How. 357. And if either party desires the case to be submitted to the jury, he must so request at the trial. Seymour v. Cowing, 1 Keyes, 532; Mallory v. Tioga Railroad Co. 5 Abb. N. S. 420; S. C. 3 Keyes, 354; 36 How. 202; 1 Trans. App. 203; Carnes v. Platt, 6 Rob. 270; Hoogland v. Trask, 6 id. 540; Monk v. Union Mutual Life Insurance Co. id. 455.

Where

d. Conflicting testimony. the facts are not entirely clear, but depends upon conflicting tesimony, the case must be submitted to the jury. Bidwell v. Lament, 17 How. 357; Smith v. Tiffany, 36 Barb. 23; Bernhard v. Brunner, 4 Bosw. 528. See, also, Howell v. Gould, 3 Keyes, 422; S. C. 2 Trans. App. 360; Nourry v. Lord, 2 Keyes, 617; Dunham v. Troy Union Railroad Co. 3 id. 543; S. C. 3 Trans. App. 67; Cook v. New York Central Railroad Co. 3 Keyes, 467; S. C. 3 Trans. App. 8; Renwick v. New York Central Railroad Co. 36 N. Y. (9 Tiff.), 132; S. C. 34 How. 91; 1 Trans. App. 46; Wolfkiel v. Sixth Avenue Railroad Co. 38 N. Y. (11 Tiff.), 49; S. C. 5 Trans. App. 217; Ernst v. Hudson River Railroad Co. 35 N. Y. (8 Tiff.), 9; S. C. 32 How. 61; 3 Abb. N. S. 82.

e. When court may nonsuit. It is the duty of the court to nonsuit a plaintiff, when the evidence will not authorize a jury to find a verdict for him, or where the court would set it aside, if so found, as contrary to evidence, or against the clear weight and effect of the evidence. Smith v. Sanger, 3 Barb. 360. See, also, Kelly v. Kelly, id. 419; Carpenter v. Smith, 10 id. 663; Thompson v. Dickerson, 12 id. 108; Dascomb v. Buffalo and State Line Railroad Co. 27 id. 222; Ernst v. Hudson River Railroad Co. 24 How. 97; Bidwell v. Lament, 17 How. 357; Fales v. McKeon, 2 Hilt. 53; Meyer v. Betz, 3 Rob. 172; Redpath v. Vaughn, 52 Barb. 489; Deyo v. New York Central Railroad Co. 34 N. Y. (7 Tiff.), 9; Newkirk v. New York and Harlem Railroad Co. 38 N. Y. (11 Tiff.), 158; S. C. 6 Trans. App. 196; Murray v. New York Central Railroad Company, 4 Keyes, 274; Patterson v. Patterson, 1 Rob. 184; S. C. 1 Abb. N. S. 262; Thrings v. Central Park Railroad Co. 7 Rob. 616.

In an action against the lessees of the wharfage of a public pier with covenant to repair, for injury caused by neglect to repair, it is error to nonsuit the plaintiffs on the ground that they have not shown possession in the defendants at the time of the injury. Radway v. Briggs, 35 How. 422; S. C. 37 N. Y. (10 Tiff.), 256; 4 Trans. App. 98.

Defects in the complaint may be stated as a ground for a motion for nonsuit, but if the testimony given without objection is sufficient to establish a cause of action the

motion should be denied. Kern v. Towsley, 51 Barb 386.

Misnomer is not a ground for nonsuit; e. g. the commencement of an action in the maiden name of a female after her marriage, Traver v. Eighth Avenue Railroad Co. 3 Keyes, 497; S. C. 3 Trans. App. 203; 6 Abb.

N. S. 46.

A refusal to nonsuit will be sustained on appeal where there is finally sufficient evidence in the case to be submitted to the jury. Haupt v. Pohlmann, 1 Rob. 121; S. C. 16 Abb. 301; Schwerin v. McKie, 5 Rob. 404. And where the testimony tends to establish the plaintiff's cause of action, it should go to the jury. Neale v. Seeley, 47 Barb. 314. For grounds upon which a nonsuit was asked and denied, see opinion of MASON, J., in Stone v. Western Transportation Co. 38 N. Y. (11 Tiff.), 240.

Questions of negligence in connecnection with nonsuit.-See Thrings v. Central Park Railroad Co. 7 Rob. 616; Murray v. New York Central Railroad Co. 4 Keyes, 274; Deyo v. New York Central Railroad Co. 34 N. Y. (7 Tiff.), 9; Ernst v. Hudson River Railroad Co. 35 N. Y. (8 Tiff.), 9; S. C. 32 How. 61; 3 Abb. N. S. 82; Schwerin v. McKie, 5 Rob. 404; Wolfkiel v. Sixth Avenue Railroad Co. 38 N. Y. (11 Tiff.), 49; S. C. 5 Trans. App. 217; Renwick v. New York Central Railroad Co. 36 N. Y. (9 Tiff.), 132; S. C. 34 How. 91; 1 Trans. App. 46; Mulhado v. Brooklyn City Railroad Co. 30 N. Y. (3 Tiff.), 370; Stone v. Western Transportation Co. 38 N. Y. (11 Tiff.), 240; Coykendal v. Eaton, 37 How. 438; S. C. 55 Barb. 188.

on plaintiff's opening.-A nonsuit should not be granted on the ground that the plaintiff's counsel has not stated, in his opening, sufficient facts to constitute a cause of action. Stewart v. Hamilton, 28 How. 265; S. C. 3 Rob. 672; 18 Abb. 298.

Although an adherence by the plaintiff's counsel to an untenable point of law made in his opening might justify a dismissal of the