Whatley v. Johnson

By JUDGE WHITE. It appears by the bill of exceptions that the plaintiff proposed to introduce Whatley, the other defendant, to [499] prove the execution of the instrument by Gragg. This was objected to, but the objection was overruled by the Court. Whatley was sworn as a witness, and it is now among other things assigned as error, that in this opinion the Court below erred. It is manifest that Whatley was directly interested in fixing the liability of Gragg, because in so doing- he would lighten a burden likely to fall, and which in the event of Gragg’s being exonerated, would fall entirely upon himself. He therefore was an incompetent witness. It is true, that a plaintiff may consent that a defendant be sworn, and if the latter does not object, it can be done; but this is on the principle that the plaintiff has a right to waive the privilege of excluding the defendant’s oath, of introducing him at his own hazard, and apparently against his own interest, though not as we conceive to promote his interest, and to the prejudice of the rights of the other defendant. For this error the judgement must be reversed, and the cause remanded. The other assignments of error cannot be sustained.