11 Ala. 512 | Ala. | 1847
The only question in this case is, was Sheppard a competent witness to establish the fact to which he was examined before the master. If we were authorized to infer from the report, that he was examined for the purpose of proving the justness of his account, and the amount of it, we should be inclined to think that he was an incompetent witness to establish these facts. But after the most careful consideration, we are constrained to conclude that there was no controversy upon these points, or that the account was proved by testimony to which no exception was taken.
Looking then to the report, and the opinion of the chancellor, as the only sources to which we are permitted to refer for information, we understand the testimony of the witness tended merely to show that the complainant agreed to assume the payment of the judgment which the firm had recovered against him, and that the account which he had against the complainant should be received in satisfaction. The witness affirms that both the parties assented to the arrangement, and it would seem that the defendant is still willing to abide by it. In this posture of the case, can it be
A joint judgment in favor of the complainant and defendant was recovered against the witness, while the complainant was individually indebted to the witness in an opeh account. The judgment may be enforced by execution, but the account, if not voluntarily paid, can only be colleeted under a judgment yet to be recovered. If the testimony of the witness establishes the agreement in respect to which he testifies, then his account will be discharged; not with money, it is true, but by satisfying the judgment against him. Thus fixing by his testimony a liability to pay his account, upon two instead of one, and at the same time receiving payment from them, or rather effecting a set off which could not be otherwise made. It is clear that the witness has such an interest as renders him incompetent to prove the agreement. We lay out of view the present insolvency of the witness, and the record imparts no information in respect to the situation of the complainant; for whatever may be the condition of the respective parties, it can have no influence upon the question of competency — at most it would go to the credibility of the witness, if he was competent. Our conclusion is, that the chancellor did not err in the rejection of the testimony; and his decree is therefore affirmed.
