Daniel v. Burts

Blandeord, Justice. On the trial of this case, one Woolfolk Walker was offered as a witness by plaintiff in error to prove that hej the witness, had paid a certain amount of money, due on a judgment and execution in favor of plaintiff’s intestate against himself, to D. H. Burts, defendant’s intestate, in his lifetime, he being the attorney at law for said intestate of the plaintiff. He was objected to, upon the ground that Burts was dead. The court sustained the objection, and thereupon plaintiff offered to discharge and release Walker from all liability to her on the judgment. The court held that this would not make the witness competent. To this ruling the plaintiff excepted, and error is assigned thereon. It is clear that Walker, the witness offered, was incompetent to testify in this case at the common law, because he, being liable on the judgment, was interested in placing the liability on Burts, the attorney, thus relieving himself, and the release offered him did not discharge his liability on tho judgment to Burts, the attorney, represented by his administratrix, who held a lien on the judgment for the fees of her intestate.. So if he was a competent witness at all, it must be under the new evidence act of 1868, pp. 138, 139, Code, §3854, which provides, “ No person offered as a witness shall be excluded by reason of incapacity for crime or interest, or from being a party, from giving evidence, * * * * but every person so offered shall be competent and compellable to give evidence, * * * * except as follows: ‘•Where one of the original parties to the contract or cause of action in issue or on trial is dead, or is shown to [145] be insane, or where an executor or administrator is a party in any suit on a contract of his testator or intestate, the other party shall not be admitted to testify in his own favor.’’ It is shown that Burts, the attorney, to whom it is suggested that Walker paid this money, is dead. The cause of action is the receiving the money by Burts from Walker, whereby he became liable to the plaintiff for so much money had and received for her use, Walker still being interested. While he might have been admitted as a witness under this act, yet he falls within the exception to the act whereby he is still rendered incompetent, as the other party to the cause of action is dead.- So as to his competency he remains, notwithstanding this act, where he stood before its passage, and as we have seen, he is incompetent as a witness at the common law, and as the law stood before the act; and not being restored by the act by reason of the exception thereto already stated, it follows that the judgment of the court below refusing to allow the witness to testify, under the facts of this case, was right, and the judgment is affirmed.