Patterson & Co. v. Wallace

The opinion of the court was delivered, by

Read, J.

A party, having a full knowledge that a witness called by his opponent is incompetent to testify on the ground of interest, may waive his objection, and permit him to give evidence in thq cause. The effect of this is to remove entirely the legal bar to his examination, hut leaves the question as to how far it should affect his credibility for the consideration of the jury. The witness is sworn to tell the whole truth, and he is accordingly examined, cross-examined, and re-examined. It turns out that he knows other facts material to the issue, and in a later stage of the case he is again called by the plaintiff to testify. The testimony in itself is competent and relevant, hut tbe objection is then taken that he is interested, and cannot testify farther, without even requesting the court to strike out or withdraw from the jury the preceding part of his evidence, thus preventing the whole truth, as far as the witness knew it, from being laid before the jury.

This is not the law, for the objection to the competency being waived by a party with a full knowledge of the facts, cannot be taken at any subsequent stage of the trial. The alterations in the law of England, and of many of our sister states, removing objections to the competency of witnesses, and permitting interested persons to testify, are strong evidences of the change of both legal and public opinion on this subject; and we cannot, therefore, be expected to enforce a rule which the party himself has dispensed with, and waived voluntarily in this particular case.

Judgment affirmed.