39 Ala. 161 | Ala. | 1863
The court committed no error, in excluding the declaration of Mrs. Sims, offered in evidence by the contestant. — Blackey v. Blackey, 33 Ala. 611; Taylor v. Kelly, 31 Ala. 59.
The question here is not the same with that which arises when the court, for a wrong reason, excludes illegal evidence. If evidence is intrinsically illegal, it is not entitled to any consideration from the jury, although it may happen to have been recited in their hearing; and no waiver on the part of either party can make it legal. On the other hand, the evidence adduced by a witness is not illegal, because the witness was incompetent on account of interest. A party may waive the objection for interest; and, if he does not make it, it is not the province of the court to make it for him. — Gray v. Brown, 22 Ala. 262. The ruléis, that an objection to the competency of a witness, on the ground óf interest, must be made at the first opportunity after its discovery. — Gray v. Brown, supra ; Hudson v. Crow, 26 Ala. 515 ; Drake v. Foster, 28 Ala. 649; Hair v. Little, ib. 236; Insurance Co. v. Goodman, 32 Ala. 108. This rule would not have permitted the appellee to claim, as a matter of right,
Reversed and remanded.