Hudgins v. Nix , 10 Ala. 575 ( 1846 )

ORMOND, J.

The statute under which the parties were offered as witnesses, provides, that when the demand does not exceed one hundred dollars, “ the oath of the plaintiff shall be received as evidence of the demand, unless the same be controverted by the oath of the defendant; but this section shall not apply to the case of executors, administrators, trustees and guardians, when sued.” [Clay’s .Digest, 342, § 161.]

The design of this statute was not to introduce the plaintiff, and defendant, as witnesses, to be passed upon by the jury, to draw their own conclusions, as in other cases, but it was to enable the plaintiff to establish his demand, by his own oath, unless the defendant controverted by his oath, the statement of the plaintiff. When he does so, the effiect is to exclude the testimony of the plaintiff altogether. Anderson v. Collins, 6 Ala. 783, and in our opinion it is wholly unimportant, whether the plaintiff swears to his account generally, or whether he details the particular circumstances relating to it; in either event, if the statement of the plaintiff is controverted, by the defendant, it is excluded from the jury.

From this it appears, that the court erred in instructing the jury, to pass upon the testimony of both the parties. But although this was an error, it is one of which the defendants cannot complain, as it was an error committed in their favor. The statute confers this privilege on those defendants only, who have personal knowledge upon the subject, and excludes executors, administrators, &c. when sued. A husband sued for a debt due from his wife, when sole, stands precisely in this predicament. He is sued for a debt of which he has no personal knowledge, his denial therefore does not controvert the plaintiff’s oath, as he must of necessity swear from information, and not from actual knowledge of the fact. It is probably the true construction of the statute, that where the defendant is excluded by its terms from controverting the plaintiff’s statement, that he cannot by his own oath establish his demand; but here there was such a defendant. The wife, with whom the contract was alledged to be made, was a party to the suit, and she, and not the husband, was the defendant indicated by the statute, to controvert the plaintiff’s oath. It is true, the husband does state, he was present when the subsequent promise was alledged to be made, and undertakes to deny that any promise was made at that time. It is clear, he could not prove such a negative, as he admits he was not present the whole time ; but in addition to this, the plaintiff swore the contract was made previously, of which the husband does not profess to have any personal knowledge.

As the only error committed by the court, was in permitting the husband to testify, and of which he cannot complain, the judgment of the circuit court must be affirmed.