Newburg v. Ratliff

2 Ky. Op. 646, 1869 Ky. LEXIS 550

• Court: Court of Appeals of Kentucky
• Decided: February 16, 1869
• Status: Published

Opinion

Opinion of the Court by

Judge Peters :

Although the instructions submitted to the jury were proper, and the evidence, as admitted, preponderates in favor of the ver-, diet, still the preponderance is not so decisive as to authorize an .affirmance of the judgment, notwithstanding the rejection by the court below, as incompetent, the deposition of John H. Allison, remote vendor, offered by appellant.

' In Carbon & Bettis vs. Stout, 2 Bush, 246, where the same question arose, this court, after citing a string of authorities to the point, said:

“The possible interest of Turnbull was not direct, certain or immediate, and consequently, could only affect the credibility of his testimony when heardj the spirit of our code harmonizing with the genius of the age inclines more than the common law, to let interest discredit, rather than disqualify, a witness.”

Allison being only a remote vendor of appellant, was a competent witness, and as his testimony was material and it cannot be known what effect it may have had with the jury, the circuit court erred in rejecting his deposition. But no other error is presented in the record. Por the error named, however, the judgment must be reversed, and the cause remanded, with directions to award a new trial, and for further proceedings not inconsistent with this opinion.