McCall v. Smith

13 S.C.L. 375

• Court: Supreme Court of South Carolina
• Decided: May 15, 1823
• Status: Published

Opinion

Mr. Justice Johnson

delivered the opinion of the court:

It is not necessary to render a witness incompetent that he should have a direct and immediate interest in the event of the suit. If he is to derive any advantage from it, it is enough. Although it be consequential only, he cannot he sworn. (2 Bacon’s Mr. 384, Tit. Euidence (B.)

The application of this rule to the present case, is obvious. May, the witness, is not directly interested ; but if the plaintiff in this case recovers, he may immediately set off this judgment against that recovered against him by the defendant; and the judgment against May being for the same cause of action, it will operate as a satisfaction of that also ; so that the payment of the judgment against him is the necessaryf consequence of the plaintiff-’s recovering in this case, and renders him incompetent.

Applications for continüances are always Addressed to the discretion of the court, about which, it is impossible to lay down any rule which can or ought to control it.

We know from daily experience that parties resort to the most wiley artifices, supported by the most abominable perjury for the purposes of delay and oppression ; and there is none so competent to judge of the merits or demerits of such application as the judge, before whom these things transpired. He ought not therefore to be controlled in the exercise of a sound discretion, and in my judgment this court ought never to interfere, except as a mere instrument in the hands of the presiding judge to aid him in revising liis own judgment, or to correct his own inadvertance.

De Saussure, for the motion. Gregg, contra.

The motion is refused.

Justices Nott, Richa?'dson and Huger, concurred. Justices Colcock and Gantt, dissented.