Archer v. Greer

36 Ga. 107

Opinion

Harris, J.

The bill of exception alleges error in the circuit Judge, in refusing to allow him (defendant below,) to become, on his own motion, a witness in his own behalf to support his plea of failure of consideration. Until the act of the Legislature of 1866, parties were not authorized to give testimony in their own behalf, and by it only in certain circumstances. The question here is, could Archer be a witness as the case was situated. The facts are, that Carver, to whom the note was made payable, and of whom the purchase of the fertilizer was made, is dead, — that Greer, the plaintiff in the suit, is his administrator. In a case thus situated, the surviving party is not allowed to testify for himself. The fact drawn out by the examination of Greer, that Carver was the agent of Wilcox & Co. of Augusta, to sell the guano for them, cannot change the rule — as Garner was an agent with a del-credere commission, and having taken the note payable to himself, he should be deemed, in giving a fair interpretation to the act of 1866, as an original party to the contract and competent to have testified, had he been alive.

Judgment affirmed.