Gould v. Beal , 26 Tex. 665 ( 1863 )

BélL, J.

We are of opinion that there is no error in the judgment of the court below.

The tendency of modern decisions is to the relaxation of the old rule, that a party to the record is not a competent witness. A party to the record may be called by the opposite party to testify against his interest, if he is willing to do so; and a merely nominal party, who is not interested, is not disqualified simply because he is a party to the record. It is also true, that a party to a negotiable instrument may be called as a witness to impeach the instrument; hut this is only where he is not interested, or where he is called by the opposite party to testify against his own interest. (See the cases of Ware v. Bennett, 18 Tex., 794; and Parsons v. Phipps, 4 Tex., 341.) It is also true, that a party who may be collaterally affected by the judgment to he rendered, and who is, therefore, incompetent on the ground of interest, may have his incompetency restored by a release, by the substitution of another person in his stead, or by a deposit of money. The case of a warrantor of the title to land, of a security for costs, and of a surety on a bail bond, are cases of this kind. But these are always cases of collateral interest, and not cases in which the party called to testify is interested directly in the contract upon which the cause of action arises. In the present cáse, the party called as a witness was directly interested as.a party to the contract, and was called by his co-defendant to testify in support of the interest of both. If this were allowed, there would be an end of all questions as to the competency of witnesses on the ground of interest. The case is not one where a deposit of money can restore to competency a party otherwise incompetent. As well might the maker of a promissory note, in a suit by the payee, propose to render himself competent as a witness in his own behalf, by depositing in court the amount in controversy, to answer the judgment if it went against him.

There is no etror in the judgment, and it is therefore affirmed.

Judgment affirmed.