Redman v. . Redman

*261 Read, J. Tbe jury found, that the $600 of gold and silver in controversy, was the property of the defendant Thomas,, and that is conclusive, unless the plaintiff’s exceptions to the admissibility of evidence, can be sustained. When Thomas Redman, the defendant offered to testify as to a transaction between himself and his deceased father, about the gold and silver, he was deadly incompetent, under the genera] provisions of C. C. P. sec. 343. But he says, that he took himself out of the general provision, by the fact, that the plaintiff had examined Absalom Redman, as to the declarations of the deceased, in regard to the same transaction. That fact would have made it-competent for the-defendant Thomas -to speak of it, if Absalom Redman had been the plainttff; but •he was-one of the defendants, and it is only where the plaintiff speaks of a transaction with the deceased, that the defendant may do so too. But under the circumstances of this case, we have to treat Absalom, the defendant and witness, as if he were the plaintiff, for, ho was the plaintiff m interest, although he is nominally the defendant. All the children and next of kin of the deceased, of whom Absalom was one, claim that the gold and silver in controversy was the .property of their father, the deceased ; and are trying to make the defendant Thomas, the administrator and also a son of the deceased, account for it to the estate, while he, Thomas, claims it as his own. So that all the other children and next of kin are plaintiffs in interest, ■and are to be considered as plaintiffs ,5n fact. So that, when Absalom testified as a witness of the transaction with the deceased, it is to be considered that he testified as a party plaintiff; and then, that made it competent for the defendant Thomas to testify also, as to that transaction. In considering •the other two exceptions by the plaintiff to the evidence, we may consider the case as if Hosea Redman, the deceased, wer.e alive and claiming the money of the defendant Thomas. And then, very clearly, Hosea could not give in .evidence his •own declarations, made o.ut of the presence of the .defendant *262 Thomas,, that the money was his. That would be to make evidence for himself. That disposes of the second exception. It was competent for the defendant Thomas, to prove that Hosea said, he had been robbed of all his gold and silver, for the purpose of establishing the fact, that Hosea had no gold and silver. But it would have been incompetent for Hosea to prove, that,, at some other time, he had said that he had not been robbed of his gold and silver. That would be to make-evidence for himself. That disposes of the third exception. There is no other exception in the record j and we consider no other. There is no error. This will be certified. Pee Cubiam. Judgment affirmed.