10 Ala. 796 | Ala. | 1846
The act of 1845, (Pamphlet Acts, 136,.) declares, that the mortgagor, or defendant in execution, in all cases of the trial of the right of property, shall be incompetent to give testimony between the parties. The policy of this act, was to render these persons incompetent to testify, independent of the question of interest, for as the law stood previous to this enactment, persons so circumstanced could not testify, unless they were disinterested-, or at least unless their interest was equally balanced, and their exclusion by this statute, is founded on public policy, irrespective altogether of the question of interest. It follows necessarily, that the bankruptcy of a witness did not render him competent, as that could only affect his interest, and therefore left him in the same condition he was in before' he took the benefit of the act. The act declares him an incompetent witness, and no act that he can do, can restore his competency. Such have been the previous decisions of this court upon the law. [Yarborough v. Moss, 9 Ala. 382, and Brumby v. Langdon & Co. at the present term.]
From these considerations it is apparent there is no error in the judgment of the circuit court, and it is therefore affirmed.