delivered the opinion of the Court. “ Witnesses,” in a technical sense, are persons sworn to testify, or offered to testify in a cause. But it is apparent, that the legislature, in the act under consideration, meant to use the expression in a more comprehensive sense, and as synoni-mous with evidence. The object of the statute is to confine the parties to the same evidence examined before the justice, with the single exception of testimony offered, and improperly excluded by the justice. We, accordingly, decided, in Rawson v. Adams, (17 Johns. Rep. 132.) that the parties were to be confined to the same issue, and witnesses not offered in the Court below, could not be admitted. The admission of documentary evidence not offered in the Justice’s Court, stands upon the same ground ; for it may operate as a surprise upon the adverse party, and take him unawares. He may have omitted to adduce witnesses important to Kim, because the documentary evidence was not offered or given. It would contravene the spirit of the act to admit any evidence not given in the Court below, or offered to be given there.
Judgment affirmed.