Monson & Valentine v. Cooke, Kenny & Co. (5 Cal. 436, 1855)

Heydenfeldt, J., delivered the opinion of the Court.

Murray, C. J., concurred.

Cgpke was admitted as a competent witness against the objection of defendants. After the case was submitted, the referee decided to exclude from his consideration the testimony of Cooke, on the ground of incompetency.

This was an erroneous proceeding, because it took the plaintiff at an unfair disadvantage. The referee should have held to his first decision, and given the defendants the benefit of it upon appeal, or after arriving at the conclusion that the witness was incompetent, he should have ordered a rehearing of the cause, so that the plaintiffs might have had the opportunity of otherwise supplying the excluded testimony of Cooke. This view renders it unnecessary to decide as to the competency of the witness.

The judgment is reversed, and the cause remanded.