9 Ind. 500 | Ind. | 1857
Archibald Thompson was the defendant below. Shaefer and others sued Thompson on an account. Trial by the Court, and judgment for the plaintiffs.
Thompson moved for a new trial, but did not file any written causes in that behalf. This was fatal to his motion, and accordingly it was correctly overruled. "Written causes are required to be filed. 2 R. S. p. 119. See, also, Kirby v. Cannon, at the present term
There was no error in this; it was in strict accordance with the statutory provision. Thus:
“ Sec. 300. A party examined by an adverse party may testify in his own behalf in respect to any matter pertinent to the issue;. but if he testify to any new matter not responsive to the inquiries put to him by the adverse party, such adverse party may offer himself as a witness on his own behalf, in respect to the new matter, and shall be so received.” 2 R. S. p. 96.
Something is said about an agreement to admit Thompson as a witness. Admitted; but it was not stipulated that the plaintiff should not avail himself of the statutory privilege- of testifying, upon a proper contingency. Had Thompson confined himself to the questions asked him by the plaintiffs, the latter could not have been witnesses. But when he chose to testify to new matter not responsive to the inquiries of the plaintiffs, he created the contingency upon which they had a right to be witnesses also; and they availed themselves of that right.
It is true, that in one paragraph of his answer, Thompson sets up this item of 90 dollars paid. This must be regarded.as a part of the issue; and the section quoted would, at a hasty glance, seem to give him full latitude to
The judgment is affirmed, with 5 per cent, damages and costs.
Ante, 371.