Bryan v. Coursey ex rel. De Coursey

Tuck, J., delivered the opinion of this court. Our attention is confined to the first exception, the others having been abandoned. From this it appears that when the cause was called for trial, the defendant’s counsel claimed a continuance in consequence of the absence of a material witness. The plaintiff’s attorney waived a formal affidavit, and offered to receive instead, the defendant’s oral statement on oath, of what he expected his witness to prove, and proceeded, with the permission of the court, and after objection made by the defendant’s counsel, to propound interrogatories to the defendant as to what he expected to prove by the absent witness. The parties then went to trial, and after evidence by the plaintiff of his case, the defendant’s counsel called a member of the bar, who had been present when the defendant made his statement, and “offered to prove the declarations of the defendant, made while under the foregoing examination, as to the reasons why the items set up in bar of the plaintiff’s claim were not stated in the account thereof, and all that the defendant had stated under said examination, in reply to the [66] questions asked him by the plaintiff’s counsel. To this offer the plaintiff’s counsel objected, and the court sustained the objection.” This is all the information we have on the subject, except that the record contains certain facts which the defendant stated, while thus interrogated before the trial commenced, his witness would prove. The counsel for the appellee contends, that this evidence was inadmissible, because there was no agreement that the defendant’s statement should be received as proof at the trial. We are of opinion that if a party goes to trial upon an admissiomof whaka witness, if present, would prove, whether it be in the form of an affidavit or by statement of the party at bar, he is concluded as to the matter of the affidavit or statement, and cannot dispute its truth at the trial. This is the effect of the act of 1787, ch. 9, secs. 2, 3, and does not depend on agreement of parties. If the testimony be material, and the court determines that the party has shown sufficient ground for a continuance, the other side may elect to continue the cause or go to trial, conceding as true what his adversary says his witness, if present, would prove. If therefore it appeared that this evidence was competent and had been rejected, because the plaintiff had not agreed to receive the defendant’s statement as proof, we should say there was error in the ruling of the court below. But the offer does not state what the defendant had said his witness would prove. It should appear to us that the evidence was proper to be received; for although the party against whom the proof is offered cannot deny its truth, yet it must be within the issues. The act of Assembly does not dispense with the rule that the allegata and probata shall correspond. The facts which the defendant had said his witness would prove, we think, were not admissible under the pleadings, and yet, accompanied by the circumstances under which the articles were taken by the plaintiff, and the reasons for not charging him with them, they may have been sufficient to show that he had no cause of action against the defendant. But these are not [67] stated in the offer on the part of the defendant, and they cannot be supplied in argument. In Thomas vs. Catheral, 5 G. & J., 23, a witness was offered who was clearly incompetent. A release was executed to remove the objection, but it was not set out in the exception. The court said: “We have nothing before us to show that the objection to her competency was removed, and are therefore constrained to say, that for any thing appearing in the record, her testimony should not have been received.” And in Duvall vs. Peach, 1 Gill, 172, the Court of Appeals could not decide, “whether the county court erred in refusing to let a record go to the jury because it was not made a part of the bill of exceptions,” although the exception stated the character of the record and the purpose for which it was offered. “The principle is well settled, that the judgment of an inferior jurisdiction will not be reversed except for errors apparent, and that they will be sustained by every fair legal intendment in favor of their correctness.” State vs. Harrison, 9 Gill and Johns., 15. Judgment affirmed.