Lankford v. Keith , 21 Ala. 342 ( 1852 )

DARGAN, C. J.

— It is conceded in the argument, that the witness was in fact interested, being bound on the bond as it appears in the record. But it is insisted, that the bond was not before the court, when the question was made in the court below, and that the question was decided exclusively upon the parol proof, showing that the witness was the plaintiff’s agent in suing out the attachment, and that he signed the bond for her as agent; and, looking to this proof alone, that it does not render him incompetent. But, we think, that the question must have been decided by the court below, in view both of the bond and the parol proof that was offered. The bond constituted a part of the record, or of the papers in the cause, and the parol evidence could only have been introduced to show that the witness was the same person who acted as the plaintiff’s agent in suing out the attachment, and who signed the bond. We cannot well conceive how the court would have decided the question, without considering the bond, or rather without looking at its legal effect as respects the interest of the witness.

It is true, that in reviewing the decision of the court below, upon a question of the competency of a witness, we ought to look to the Jkcts, as they were disclosed to that court, and should not consider other facts not brought to the view of the court below. But when tlie incompeicucy of the witness is made to appear in part by the record, or the papers in the cause, and in part by parol proof, we cannot infer that the court looked to the parol proof alone, irrespective of the record; especially, when the parol proof points to the particular paper in the cause which shows tbe interest of the witness. In tbe case before us, tbe bond was one of tbe papers in tbe cause, and tbe parol proof showed that tbe witness, as tbe agent of tbe plaintiff, signed it. We cannot think that tbe court decided tbe question without considering tbe bond; consequently, we infer that tbe court allowed tbe witness to testify, in view both of tbe bond and tbe parol proof connecting tbe witness with it, and so considered bis interest clearly appeared, and tbe court erred in permitting him to testify.

Let tbe judgment be reversed, and tbe cause remanded.