Logan v. Hodges' Adm'r , 7 Ala. 66 ( 1844 )

COLLIER, C. J.

— The fifth section of the act of 1819, “to regulate the rate of interest,” enacts, that “ when any suit or action may be brought in any Court of record in this State, touching or concerning any usurious bond, specialty, promise or agreement, the borrower or party to such usurious bond, specialty, contract, promise or agreement, from whom such higher rate of interest is or shall be taken, shall be a good and sufficient witness to give evidence of such offence : Provided, that any person against whom such evidence is offered to be given, will deny upon oath to be administered in open Court, the truth of what such witness offers to swear against him, then such evidence shall not be admitted, &c.” [Clay’s Dig. 590.] Without stopping to inquire whether the facts testified by the defendant should not have been first stated and submitted to the plaintiff, that he might determine whether he could deny them in the manner prescribed by the statute, we are satisfied that the recital of his testimony set out in the bill of exceptions, is a full denial of the defendants statement. He declares not only that the note was not tainted with usury, but he sets out what he affirms to be its consideration, and thus completely negatives what the defendant had deposed.

In this posture of the case, the Court should have rejected in toto what the defendant testified. But instead of thus ruling, it was adjudged that so far as he was uncontradicted his testimony was properly before the jury; and even further, that they should take the part of his evidence that was contradicted, if corroborated by other proof.

It was no objection to the admission of the deposition that the defendant was the bearer of it from the commissioner to the clerk of the Court, and himself deposed, that he had delivered it in the same condition in which he received it. Such a course of procedure is not inhibited by the rule which declares, that one shall not be a witness in his own cause; for his statement was of a fact merely preliminary to the admission of the evidence, and intended to prevent spurious testimony from being imposed upon the Courts. If the plaintiff had reason for believing the deposition had been interpolated or otherwise altered, he might, upon application to the County Court, have obtained a continuance in order to take it de novo, or to procure the necessary proof to have it suppressed. But the practice which permits parties to bring their own depositions into Court, is too strongly commended by conve» íúence, and too long sanctioned, both by judicial acquiescence and even express decision, to be now departed from.

Without adding any thing more, it has been already shown that the County Court erred in the admission of the defend-» ant’s testimony, and in the instructions to the jury. The judgment is consequently reversed and the cause remanded.