4 Tex. 109 | Tex. | 1849
On tlie trial there were several exceptions taken to charges asked to be given and refused by the court, and to charges given, and to testimony objected to by the defendant, but admitted by the court. There was a judgment for tlie plaintiff; from which judgment the defendant has brought the case into this court by an appeal.
Wc will only notice such points as are considered to be material. The plaintiff offered Bailey as a witness to prove an agreement or understanding, at the time of the hiring, that the owner was to pay the physician’s bill, if any should be raised. The defendant objected to the witness as incompetent on the ground of interest in the suit. The objection was overruled, and the witness allowed to give evidence. Bailey said that tlie negro had been hired by him as the agent of Hicks, and the negro was in the possession of Hicks when the services sued for were rendered. We cannot perceive any interest in the witness that would go to his competency. True he was jointly bound with nicks for the hire (o McGee, but it is not seen liow liis- liability conld have been increased or diminished by the result; of this case, whether Hicks or McGee should have to pay the money. There is nothing from which his liability could arise if it should be held that McGee, the owner of the slave, was not liable.
The second objection to testimony was to the admission of the plaintiff himself to swear for the purpose of proving his account, on the ground that the plaintiff had not brought himself within the provisions of the statute authorizing a party to give evidence in his own casci Section fifty-seven of the act to regulate proceedings in the District Court (Acts of 1846, p. 377) will be found to be as follows: “In the trial of appeals from Justices’ Courts, when cither party shall malee oath that he has no other evidence to prove any fact material to tlie prosecution or defense of his suit except his own oath, he shall be sworn and examined touching such facts; and the opposite party, in such cases, shall have 1 lie privilege of lining sworn as to tlie same facts.” From the bill of exceptions it appears that the defendant made, oath that lie knew of no one else by whom he could prove his account hut by William C. Ilicks; and by the representations of the deputy sheriff it appearing to the satisfaction of tlie court that the said Ilicks is, and was at the calling of the case, so beastly driiulcasto be unable to get to the court-house, and it appearing that said Hicks was habitually addicted to intemperance, tlie plaintiff was permitted to prove the fact of tlie truth of his own account by his own oath. The law allowing a man to swear in support of his own cause is an innovation on the rules of evidence, and it cannot be allowed unless he brings himself within the provisions of tlie statute oiled above. If the person by whom tlie same facts conld liave been proved was so drunk as to be inadmissible as a witness, and there was no prospect of his being in a bettor condition, the party might have safely sworn that he knew of no' evidence by which he conld prove the fact; but when he himself shows that Ilicks could prove the facts, and tlie canse of tlie incapacity of the person so referred to is not established bv the oath of any one, and merely on the. representation of tlie deputy sheriff, it can hardly be said that tlie spirit of the law lias been complied with. Tlie court should not have been satisfied of such incapacity by the representation of any one unsupported by oath.
I believe the court erred in its charge as given to the jury, and for this error the judgment ought to be reversed and the cause remanded.
Judgment reversed.