REBUTTING EVIDENCE. That evidence which is given by a party in the cause to explain, repel, counteract, or disprove facts given in evidence on the other side. The term rebutting evidence is more particularly applied to that evidence given by the plain tiff to explain or repel the evidence given by the defendant.
It is a general rule that anything may be given as rebutting evidence which is a direct reply to that produced on the other side ; Scott v. Woodward, 2 McCord (S. C.) 161; and the proof of circumstances may be offer ed to rebut the most positive testimony; Nel son v. U. S., 1 Pet. C. C. 235, Fed. Cas. No. 10,116. It is within the discretion of the court to allow evidence in rebuttal which should have been offered in chief ; Simons v. People, 150 Ill. 1019, 36 N. E. 1019.
But there are several rules which exclude all rebutting evidence. A party cannot im peach his own witness, though he may dis prove, by other witnesses, matters to which he has testified ; Gray v. Gray, 3 Litt. (Ky.)
465; nor can he rebut or contradict what a witness has sworn to which is immaterial to the issue ; Smith v. Henry, 2 Bail. (S. C.) 118.
Parties and privies are estopped from con tradicting a written instrument bf parol proof ; but this rule does not apply to stran gers ; Overseers of Berlin v. Overseers, 10 Johns. (N. Y.) 229. But the parties may prove that before breach the agreement was abandoned, or annulled by a subsequent agreement not in writing ; Buel v. Miller, 4 N. H. 196. And when the writing was made by another, as where the log-book stated a desertion, the party affected by it may prove that the entry was false or made by mistake; Orne v. Townsend, 4 Mas. 541, Fed. Cas. No. 10,583. It is within the discretion of a trial court to permit witnesses to. be called in re buttal whose testimony is in support of that given in chief ; Kansas City, Ft. S. & M. R. Co. v. McDonald, 51 Fed. 178, 2 C. C. A. 153, 4 U. S. App. 563.