4 Willson 480 | Tex. App. | 1891
Opinion by
§ 280. Evidence; deposition to prove claim presented to executor is res inter alios when offered in suit after-wards instituted. Choate brought this suit against Huff and Cole as executors of one Fielding Hill to recover a thousand dollars alleged to be due him on a note executed by said Hill, deceased, on November 15, 1888, and due twelve months after date, bearing interest at ten per cent., and which note, it was alleged in the petition, was lost. At the trial, judgment was rendered for defendants, executors, and from that judgment this appeal is taken.
The first error complained of is that the court excluded
§ 281. Transaction with deceased person; evidence held to have been improperly ■ excluded as a. Appellant proposed to prove, when , upon the stand as a witness, that he had lost a note which purported to have been signed by the deceased, and given to him, and which was the subject-matter of this suit. This testimony was objected to, because it would necessarily involve the fact that the deceased had given the appellant such a note; and to have admitted such testimony would have been in contravention of the provisions of the statute (article 2248, Revised Statutes) which inhibits a party in suits against executors from testifying as “to any transaction with or statement by the testator or intestate, unless called to testify thereto by the opposite party.” We are of opinion that the statute quoted is not intended to prohibit a party from testifying to things which are independent of the act or transaction on the part of the
Eeversed and remanded.