17 Ala. 227 | Ala. | 1850
The witness Turner was no party to this suit, and swears that he is not either directly or indirectly interested in the result of it. Besides, if he had an interest, that interest was fully released before deposing, so that it is clear that the court below erred in rejecting his deposition on the ground of interest. This is conceded by the counsel for the defendant in error; but he contends that although the court committed an error in excluding the deposition for the reason assigned, still it was an error which works no injury to the plaintiffs, since, as he insists, the facts 'of the case set out in the bill of exceptions show that the plaintiffs are not entitled to recover.
The bill of exceptions shows tha^after the plaintiffs had introduced and read to the court the release which had been executed to the witness, the defendant, in order to prove that the witness was interested, produced and read to the. court the record of a recovery by the witness against the maker of the note upon which the defendant is now sued as the first endorser, Now it is insisted that although this recovery does not show that "the witness is interested, it does show that the plaintiffs have no right to declare upon an endorsement made by the witness to them, which must be considered as stricken out by the witness’ recovery, the endorsement having been made by the witness anterior to his putting the claim in suit in his own -name. This position, however correct it may be, assuming the facts set out
Let the nonsuit be set aside, and the cause remanded for further proceedings.