5 Ala. 694 | Ala. | 1843
In several of the States, a party to the record is excluded as a witness, upon the ground, that his admission is opposed to policy. [See 2 Phil. Ev. C, & H’s notes, 134,
The question to be determined is, was Hammond interested in defeating a recovery against his co-defendants. In Marsh v. Smith, [1 Car. & P. Rep. 577,] it was held, that if one defendant suffer a judgment by default, and the other plead and go to trial, the former, cannot be a witness for the latter. Best, C. J., remarking, “ if this man’s evidence is to be admitted to give a complexion to the case, it may go to reduce the damages against him; and therefore, I am of opinion he is clearly interested, and ought not to be received.” [See also Bohun v. Taylor, 6 Cow. Rep. 313; Bostwick v. Lewis, 1 Day, 33.]
In Ward v. Haydon and Ventom, [2 Esp. Rep. 552,] which was a joint action of trover, one of the defendant’s suffered a judgment by default; and though it was objected that he was incompetent, Lord Kenyon, permitted him to give evidence for his co-defendant. The authority of this case we are aware has been questioned, but receives very powerful support from Worrall v. Jones, et al. [7 Bing. Rep. 395.] In that case Tindal, C. J. was of opinion that no case could be found in which a witness had been rejected upon the ground alone, that he was a party to the suit, and stated that many had been adduced in which a joint defendant, who has suffered a judgment by default, has been admitted as a witness against his own interest. He insisted that the only inquiry in a majority of the cases was, whether the witness
In Pilsbury v. Cammett, et al. [2 N. Hamp. Rep. 283,] a judgment was rendered by default against one of two defendants who were sued on a joint contract, and the defaulted defendant was rejected as a witness for the other on the ground, that the contract on which the suit was brought was joint, and in such case, judgment cannot be given against one defendant without the other; consequently, if the jury should find a verdict for the defendant, the judgment by default must be vacated. But where the law was so modified by the legislature, as to allow a recovery to be had against any one or more of the defendants sued on a contract, it was held, that a defendant who was defaulted is, with his consent, a competent witness in favor of co-defendants. [Bradlee, et al. v. Neal, et al. 16 Pick. Rep. 501.]
Conceding that the law is correctly laid down in the two cases last cited, then it will follow that the circuit court did not err in admitting the party as a witness. By the 12th section of the act of 1818, it is enacted,« where any suit shall be instituted against two or more persons as partners in any firm, if one or more persons, not partners in said firm, shall have been sued as such, the court before whom such suit is pending, shall discontinue said suit against such person or persons, as shall appear not to be partners in said firm, and proceed to judgment and execution against all, or any of the defendants in such action, who shall appear to
It does not appear as to what facts it was proposed to examine the party. It may be that as to some he should not have been allowed to testify; but it cannot be assumed that he was incompetent for all purposes. He may have been offered for the sole purpose of showing that the defendants in error were not his partners, as charged by the plaintiff; to prove this fact, he w'as certain-, ly a competent witness. It results from what has been said, that no error is shown by the record, and the judgment of the circuit court is c onsequently affirmed.