Palmer v. Severance , 9 Ala. 751 ( 1846 )

GOLDTHWAITE, J.

1. The allowance of one of the defendants as a witness to prove the fact of usury, before he had prepared and offered to the court a statement of the facts he intended to swear to, was certainly irregular, and directly at variance with the decisions of this court. [Richards v. Griffin, 5 Ala. Rep. 195; Logan v. Hodges, 7 Ib. 66.] But if the oath of the nominal plaintiff had been to the same effect as that which the statute calls for, we should incline against a reversal of the judgment. It is a mistake however to suppose »the statute authorizes the plaintiff to select any one fact, which the defendant has asserted, and by the denial of this, to exclude the other matters aliedged. The proviso of the statute is, “ that if 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.” Now, although the plaintiff, under this proviso, may deny in general terms, the truth of what the other party has offered to swear, when the statement is entirely false, yet it never has been supposed that he may not deny'Specifically such facts as are false, and admit such as are true. Such was the course pursued in Logan v. Hodges, before cited, and we considered the denial in this mode sufficient to exclude the defendant’s statement from the jury. It is a very different matter to permit the party to select a single fact, and by denying that, insist upon the exclusion of every thing else. We are entirely clear, the examination should have been permitted to proceed, at least so far as to enable the court to pronounce that the usury was substantially denied.

2. The question raised as to the admissibility of the evidence of the agreement by one of the defendants, to pay, if delay was given, may be disposed of with the remark, that if the same admission was proved against the other defendant, a complete case would have been made. The evidence was competent, but its legal effect, whether to charge one or both of the defendants, was matter of instruction to the jury.

For the error in not allowing a more extended examination of the nominal plaintiff, the judgment is reversed and remanded.