Brown v. Jackson

42 Ala. 81

• Court: Supreme Court of Alabama
• Decided: January 15, 1868
• Status: Published

Opinion

A. J. WALKER, C. J.

The defendant in this case made an application for a continuance. The court decided to continue the case, unless the plaintiff would admit that one McMullen would, if present, prove certain facts stated in the defendant’s affidavit. The plaintiff proposed to make the admission upon the. condition that he should be allowed to impeach the statements of McMullen without laying any predicate therefor, thus giving him the same right he would have had if McMullen had been put on the stand, and the proper questions had been asked him as a predicate for his impeachment. , The court assented to this proposition, and the parties went into trial. Whether the admission of the plaintiff was oral or in writing is not disclosed by the bill of exceptions. We would presume it was in writing, if necessary to an affirmance of the judgment of the court below. The effect of the agreement on the part of the plaintiff was, that the statement of what McMullen would prove, if present, should be read in evidence upon the condition that the plaintiff should be allowed to impeach the witness by proof of declarations inconsistent with the statement, without having interrogated the witness as to the making of those declarations at a specified time and place, and to a specified person. The defendant, in availing himself of the plaintiff’s .admission by reading in evidence the statement of what McMullen would prove, committed himself to the condition upon which the admission was made. He would not avail himself of the agreement without submitting to the condition upon which it was made. The defendant must be understood to have assented to the introduction of the impeaching evidence, and could not be permitted to withdraw that consent after availing himself of the benefit of the plaintiff’s agreement, and while holding on to it.

Judgment affirmed.