Saunders v. Duval

| Tex. | Jul 1, 1857

Wheeler, J.

The objection to the competency of the witness Duval, was not well taken. He had no certain interest in the event of the suit. Though he had been appointed executor and had qualified, he had been removed from the office, and was not then in possession of it. The most that can be said is, that he may have had a right to it; but whether he would ever hold it was uncertain. It must be a present, certain and vested interest, and not an interest uncertain, remote or contingent, to render a witness incompetent. (1 Greenl. Ev. Sec. 390, 408.) It is clear that the witness had no such interest. He was not a party to the record, or liable for costs. This release removed any interest he might have had as heir or distributee; and, beyond question, he was a competent witness.

There was no error in excluding the defendant’s books, when offered in evidence by himself. They were not only of his own creation, but he had denied the plaintiff access to an inspection of them. There was no evidence that they had been regularly and properly kept, but rather the contrary. To have admitted them, upon the defendant’s own oath, when it appeared by his statement to the witness, that they had not been regularly kept, and when he had refused the plaintiff inspection of them, would have been to allow a party to manufacture evidence for himself. The notice to produce did not make them evidence for the defendant, as it does not appear that they were inspected by the plaintiff. The production of papers, upon notice, does not make them evidence in the case, unless the party giving the notice inspects them, so as to become acquainted with their contents. (1 Greenl. Ev. Sec. 563 ; 7 Serg. & R. 14.) If the defendant would have given his books in evidence, he should not have withheld them from the plaintiff's inspection; but should have allowed him free access to them, in order that he might have the opportunity of coming prepared with evidence to rebut such evidence as the defendant might offer to establish their correctness, and to prove, if he could, that they were not correct. Having the sole management of the business, it devolved on the defendant to keep the books ; but he had no right to deny his copartner full and free access to, and inspection of, them at all times; and his refusal warranted the inference, either that he had not kept regular books, or that, if he had, the evidence they would furnish would be against him.

The deposition of Elkins, and the testimony of the witnesses Lacy and Duren, offered to prove the condition of the mill the previous year, were properly excluded as irrelevant. The proposed evidence afforded no reasonable presumption or inference as to the matter in issue, and the admission of it would have had a tendency to prejudice and mislead the jury. (Id. Sec. 52.) There is no error in the judgment, and it is affirmed.

Judgment affirmed.