By the Court.

delivering the opinion.

We think, that the Court below erred, in not allowing the witness, Ramsay, to be recalled, and, the question to be put to him. The excuse for not putting it, at first, was quite sufficient.

This was not denied; but it was said, that what was to be proved by Ramsay, does not appear — and, therefore, that the presumption must be, that it was something immaterial. But we think not. We think, the presumption must be the other way. For, the statement to the Court, by the counsel moving for the reintroduction of the witness, was, that he could prove "a material fact” — by the witness ; and no issue or question, as to whether this statement was true in fact, was suggested by the Court, or by the counsel on the other side. The counsel merely “ objected to the witness being recalled;” they did not object, that what he would say, if recalled would be immaterial.

Besides, when the intention is to rely, or to decide, on a special ground like this, the intention ought to be stated, in the objection, or, in the decision, respectively. Otherwise, it will be considered as having been waived — for the ground of such an objection, might perhaps be removed in a moment, t if the objection were known. In the present case, all that was necessary to be done, to remove or to establish this objection, was, simply, to ask the counsel to state the fact which he expected to prove.

*385[1.] We think, then, that the Court erred in not allowing the recall and re-examination of the witness.

We think too, that the Court ought to have opened the case, and have let in the testimony of the witness, Massey. That that testimony was material is unquestionable; it was not denied. And the excuse for not having it sooner, was ample; unless the law requires, of parties, impossibilities.

Judgment reversed.