Riddles v. Aikin

Ewing, Judge, delivered the opinion of the court. The ground upon which the evidence of William 0. Price was excluded from the consideration of the jury does not appear from any thing in the record or bill of exceptions. He is no party to the action, nor does he appear to be a person for whose immediate benefit the action is prosecuted. If he is neither the one nor the other, although he may have an interest in the event of the action, he is not on that account an incompetent witness. Such interest would not disqualify, but only go to his credibility. But it does not even appear that he had any interest whatever. It is true he was an attorney, but it is not shown that he had any interest in the suit beyond what ordinarily arises from that relation. But be that as it may, the interest, if any he had, so far as we can see, was not such as to render him incompetent. That the testimony related to privileged communications — such as were made to the witness as an attorney — does not disqualify him, because the witness was introduced and examined by the client himself, (who was the plaintiff below,) and the seal which the law fixes upon such communications being thus removed by the client himself, the attorney became a competent witness. (R. C. 1855, p. 1578, tit. Witnesses.) The court erred, therefore, In excluding the testimony of W. C. Price from the jury. We think the court erred also in refusing the amendment to the petition without the payment of costs. The amendment proposed was the date of the settlement of the defendant as administrator in the probate court. The allegation of the petition as to this matter is, that the defendant afterwards, to-wit, on the-day of-, 185 — , at a term of the court of probate aforesaid not his regular term, procured himself, as such administrator, to be credited with said re [455] ceipt for said sum of two hundred and fifty dollars. On the trial, the bill of exceptions states that it was proved, among other things, by the record of settlement, that defendant got on settlement on the 3d of March, 1852, in the court of probate, a credit of two hundred and fifty dollars as the distributive interest of the said James P. Aikin of said estate. After this evidence had been given on the trial, the plaintiff asked leave to amend the petition by inserting the date of the settlement, which was refused by the court except on condition that the plaintiff should pay the costs of the term. Our practice act enacts that no variance between the allegation in the pleading and the proof shall be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defence upon the merits ; (R. C. 1855, p. 1253 ;) and that, when the variance between the allegation in the pleading and the proof is not material, the court may direct the_ facts to be found according to the evidence, or may order an- immediate amendment without costs. (Ib.) The amendment proposed related to a fact of which the defendant, of course, had knowledge. As administrator, he knew when he made his settlements with the court; the fact of the settlement itself was averred in the petition ; and the defendant was apprised by the petition that the plaintiff would claim interest, on the amount- for which it is alleged he obtained credit, from the date of such settlement. Being thus fully advised of the ground of the plaintiff’s claim and the time from which interest would be claimed, the defendant must be presumed to have come prepared to contest it; and he could not therefore have been misled or surprised had the amendment asked been permitted. His defence upon the merits could not have been prejudiced or affected by such an, amendment; and we think the discretion of the court below was improperly exercised in refusing it except upon the terms sought to be imposed. The judgment will be reversed and the cause remanded; the other judges concurring.