ADKINS V. HERSHY. VOL. 17 *ADKINS P425 V. HERSHY. Where a party, in a suit before a justice of the peace, or ou appeal from such justice to the circuit court, is made a witness, under the statute, by the opposite party, he may give evidence as well for, as against himself—as where a defendant files a set-off, and is called by the oppasite:party to prove the cause of action sued on, he may also give evidence to prove his own set-off. Appeal from the Circuit Court of John-son County. ON. JOHN . J. CLENDENIN, H Circuit Judge. May, for the appellant. HANLY, J. This cause was originally commenced before a justice of the peace, on an open account, and was before, decided by this court, at the January term, 1854, when the judgment of the circuit court was reversed, and the cause remanded. At the September term of the John-son circuit court for 1855, the judgment of this court was spread upon the
JAN. TERM, 1856. ADKINS 1 1. HERSHY. minutes of that court, and the cause be sworn, and examined in relation again proceeded in, when, by consent, thereto, and after the examination of it was submitted to the court, sitting as either party, no further evidence shall a jury, when the finding and judgment be given in relation to such demand or were a gain for the appellee on the evi- set-off. See Digest, sec. 108, p. 656. dence. We think it clear, from the forego-The appellant moved the court for ing provision of the statute, that the a new trial, and on his motion being design which the Legislature had in overruled, he excepted, and set out in view by its enactment, was, to make his bill, the following facts, to-wit : the party sworn as a witness, stand in That the appellee, to prove his de- the place and attitude of a witness in mand, called upon the appellant to the cause, as much so, as if he were an testify ; who, being duly sworn, said indifferent party. And we are con-that appellee's account was just and firmed in this, by the latter phrase of correct : that he bad bought and re- the section, the substance of which we ceived of appellee the articles therein have given above, which is, that "after specified ; aud thereupon appellee the examination of either party, no closed his evidence, when appel- further evidence shall be given in rela-lant's counsel offered to prove by tion to such demand or set-off; "coupled 426*1*hini his set-off, which was filed with the provision contained in the in due and ample time, and in proper 109th section of the same chapter, which form to which evidence the appellee is in these words : " Either party, in objected, and the court sustained the any suit founded on a contract, may objection, and refused to permit appel- cause the opposite party to be sub-lant to prove his set-off by his own tes- pcenaed as a witness in the cause timony, to which the appellant ex- g n the same manner, and with F427 cepted at the time. like effect, as any other person." It The appellant appealed ; upon which would be extremely onerous and un-the cause is now pending in this court. just, if it were competent for the ap-1. Upon an appeal being taken from pellee, in the case we are considering, a justice of the peace, to the circuit to require the appellant to be sworn as court, that court proceeds to try, hear a witness in his behalf, for a special and determine the cause anew on its purpose, as, for instance, to prove his merits, and the same course of proced - demand, and after he had established ure, and the same rules of practice are it, as was really the case in the in-observed iu the circuit court that ob- stance before us, to discharge him from tain, in such case, before a justice of the stand, and thereby preclude him the peace. See Digest, sec. 181,p. 668; from giving evidence to sustain his Drennen v. Lindsey, 15 Ark. Rep. 359. set-off: An indifferent witness, in or-2. If there shall be no evidence given dinary causes pending in the courts, is to establish any demand founded upon sworn to speak the truth, and the a contract, or to establish any set-off, whole truth, touching the cause in or if the evidence given be insufficient which he is sworn. We cannot speak for that purpose, the justice, before as to the practice in relation to the whom any such cause may be pending, swearing of parties under the provisions or the circuit court in which jurisdic- of the statute before referred to. tion may have been acquired of such Whether it is uniform throughout the cause by appeal, upon the application State, we know not. But as far as our of the party offering such demand or experience in, and knowledge of the set-off, im.y order the opposite party to practice in such case extends, it is to
VOL. 17 administer the same oath to parties, when sworn as witnesses under the statute as above, that is usually administered to witnesses in ordinary cases. When a party is called as a witness by his adversary, the presumption is, that he has no other means of proving his case, except by his testimony. By the aet of calling him, the party virtually declares that he confides the cause to his conscience, and relies upon his integrity and truthfulness for the facts. When a set-off is filed, that is as much a part of the case, and is, to all intents and purposes, as much at issue, as the original demand, upon which the action was founded. A witness, sworn in such cause, might as properly be interrogated iu reference to the set-off, as the original cause of action. And such, we apprehend, is the case in reference to the party who is made a witness. He may testify in regard to any matter that is pertinent to the issue to be tried. Whether the evidence of appellant would have changed the result in this cause, we, of course, cannot determine, except from conjecture. We think it possible, at least, that he would swear to his set-off: if so, it is evident the result of the cause would have been different, had the judge, who tried the cause, given heed to his evidence. 4281: *We are clearly of the opinion, that the court below should have allowed the appellant, when upon the stand, to have testified in reference to his set-off: Having refused to allow him to do this , and believing it possible that, had he been allowed to testify, the result might have beenldifferent,the judgment of the court below will be reversed,and the catise remanded, with directions to the circuit court of Johnson county, to grant the appellant a new trial, and that the cause proceed in accordance with law, and not inconsistent with this opinion. Let the judgment be reversed at the cost of the appellee. Absent, Mr. Justice Scott.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.