Pryon v. Harris , 30 Ala. 118 ( 1857 )

"WALKER, J.

The plaintiff presented in the court below a sworn statement of facts, which, he proposed to prove by his own oath under section 2313 of the Code. This statement of facts did not assert that the claim was unpaid, and was, therefore, insufficient to establish the correctness of the demand; and the plaintiff was not a competent witness, as is decided in the case of Jordan v. Owen, 2T Ala. 152. The court should, upon'the authority of this decision, have entirely excluded the plaintiff as a witness.

When the plaintiff offered himself as a witness to prove the facts, the court decided that, if he became a witness, he should be liable to cross-examination generally by the defendant. The plaintiff objected to this decision of the court, but became a witness, proved the facts stated in his written proposition, and was cross-examined as to relevant matters outside of the written statement. The plaintiff, if testifying under the statute, could not have been cross-examined as to any matters extrinsic of the statement of proposed facts; but in this case he was not, as we have decided, a competent witnessat all, and cannot be regarded as having testified under the statute, or as being entitled to protection against a cross-examination under the statute. It cannot be error, available to the plaintiff himself, that the court permitted him to testify on his own motion; and having become a witness in the cause, without any objection by the defendant, it would have been improper in the court to have limited Ms examination to the facts proposed. If an incompetent witness testifies, without objection by either party, he should be examined generally, as other witnesses, and the allowance of such an examination cannot be error. The bill of exceptions shows that the defendant was permitted to controvert the facts, outside of the proposed statement, proved by the plaintiff. It does not appear in what manner those facts were controverted, and we cannot intend, for the purpose of reversing the judgment, that the defendant was permitted to controvert those facts in an illegal manner. "We must, therefore, presume that the court permitted the defendant to controvert the facts by the testimony of other witnesses, and not by his own oath.

The judgment of the court below is affirmed.