Coltart v. Laughinghouse , 38 Ala. 190 ( 1861 )

R. W. WALKER, J.

We aré not able to perceive any ground on which to hold that the witness Weaver was incompetent to testify for the defendant. Under the Code, (§ 2302,) the competency of a witness depends upon-the question, whether the verdict and judgment would be evidence for him in another suit'; and the test whether- they would be evidence for him, is the inquiry, would they be evidence against him if adverse to the party introducing him? In other words, the witness is competent, unless the verdict and judgment would be evidence for or against him .in another suit, according as they may be for or against the .party calling him. As a judgment in this case against the defendant would, as to- the witness Weaver, be res inter alios acta, and, therefore, could not in any subsequent suit be evidence against him, he was not incompetent.—Harris v. Plant, 31 Ala. 644; Blakey v. Blakey, 33 Ala. 618; Nesbitt v. Pearson, 33 Ala. 673; Atwood v. Wright, 29 Ala. 346 ; Moore v. Lea, 32 Ala. 375; Rupert v. Elston, 35 Ala. 86; Crutchfield v. Hudson, 23 Ala. 393.

[2.] The 'second assignment of error is, that the court erred in excluding Gen’l L. P. Walker as a witness. The record does not show that this witness was excluded, but simply that a part of his testimony was-rejected.; and this ruling of the court is not covered by the assignment of error.

The third assignment of error is unsupported by any exception in the court below. The defendant asked a charge; but the bill of exceptions does not show that it was refused,- or that any exception was taken by the defendant.

Judgment reversed, and cause remanded. •