JAN. TERM, 1856. KOWANACHI V. ASKEW. It appears by bill of exceptions, taken to the overruling of a motion for new trial, that after the plaintiff below had read the note sued on, which was 'payable to the order of E. W. Christian, and had never been endorsed by him, and the defendant had read the credits endorsed thereon, and had introduced the plaintiff as a witness, to prove the further payment of fifteen dollars, "who answered t hat he knew nothing about it," the defendant then moved the court to be allowed to be sworn and testify himself in relation to the fifteen dollars, which the court refused, and the defendant excepted. o No further evidence having P596 been introduced by either party, the court found $25.83 debt, and $2.89 damages for the plaintiff; and rendered 595 4 1 '"-KOWANACHI judgment against the defendant accord-V. ingly. ASKEW AS AD. The defendant then moved for a new trial upon the grounds: A party, who calls his adversary as a witness, 1st. That the court had erred in re-under section NS, chap. 95, Digest, has no right to be tes-sworn as a witners himself, unless his adversary refusing his motion to be allowed to fuse to testify. tify as to the $15. Pieas to the merits are a wai ver of the necessity 2d. Because no evidence had been of proving the representative character of the produced by the plaintiff to show either plaitniff; in a suit by an administrator. the death of his alleged intestate, E. Appeal from Columbia Circuit Court. W. Christian, or the grant of letters of administration upon his estate to the 110N. SHELTON WATSON, Cir-plaintiff: cuit Judge. The court overruled the motion, and H. Carleton, for appellant. - the defendant excepted and appealed to this court. Scorr, J. This cause was tried, de Our statute does not adopt the al-novo, in the circuit court of Columbia leged rule of the civil law, "that if a county, on appeal from a justice of the person alleges another to be his debtor, peace. The style of the suit, as well as and refers it to the oath of the debtor, all the proceedings in the circuit court, he (the debtor), will be obliged to indicate distinctly, that the plaintiff swear he owes him nothing ; and if he below sought a recovery in his repre-refuses, it will be taken as true, and the sentative character. debtor condemned to pay the debt ;" but The defendant below interposed the enacts, that if a party required to tes-pleas of the general issue, payment aud tify under its provisions (Digest, chap. set-off; in short upon the recOrd, by con-95, sec. 108, p. 656), refuse to do so, sent ; on which, in like manner, issues "the justice shall allow the party of-were formed and submitted to the fering tile demand or set-off, be court sitting as a jury., sworn and examined in relation tu the I. Sec th..t.. r, Hicks. 1-42.. sante matter.-
VoL. 17 In this case, so far from the party required to testify having refused, he seems to have been sworn and interrogated . The other ground was equally untenable, because the matter insisted upon, had been waived by the pleas to merits interposed. The • udgment of the circuit court will be affirmed with ten''per cent. damages. Cited :-22-225.
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.