Ford v. Grieshaber

39 Tenn. 435

Opinion

McKinney, J.,

delivered the opinion of the Court.

The error assigned in this case, is the refusal of the Court to reject the deposition of the witness Wheatley.

At the time the deposition was taken in the case, Wheatley stood hound as security for the prosecution of the suit, and the deposition was taken by the plaintiff, for whom he was surety.

When offered on the trial, the objection was urged, that the deposition was incompetent evidence on the ground of interest in the witness. Thereupon the plaintiff was allowed to release the deponent, Wheatley, by substituting other security; and this being done, the deposition was again offered, and admitted to go to the jury, though still objected to by the defendant.

This was erroneous. The objection to the deposition was, that it was the statement of a person incompetent, by law, to give evidence in the suit at the time it was made. The subsequent release of the interest, on the trial, could not operate to remove the objection existing at the time the deposition was taken. The deposition remained as objectionable after the release as before. It was still, notwithstanding the release, the statement of one disqualified to give evidence by reason of interest.

Judgment reversed.